Vergara v. Commissioner of Social Security

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 ALLEN V., 9 Plaintiff, Case No. C20-5955-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits 15 (“DIB”). Plaintiff contends the administrative law judge (“ALJ”) erred in assessing the opinion 16 of an examining physician, Donald Ramsthel, M.D. (Dkt. # 19 at 1.) As discussed below, the 17 Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice. 18 II. BACKGROUND 19 Plaintiff was born in 1957, has a 10th-grade education and a GED, and has worked 20 installing drywall. AR at 62, 244. Plaintiff was last gainfully employed in 2005. Id. at 276-77. 21 In April 2018, Plaintiff applied for DIB, with an amended alleged onset date of May 14, 22 2007, and a date last insured (“DLI”) of September 30, 2009. AR at 39, 43, 212-13. Plaintiff’s 23 application was denied initially and on reconsideration, and Plaintiff requested a hearing. Id. at 1 123-29, 131-39. After the ALJ conducted a hearing in August 2019, the ALJ issued a decision 2 finding Plaintiff not disabled. Id. at 15-28. 3 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 4 Commissioner’s final decision. AR at 1-6. Plaintiff appealed the final decision of the

5 Commissioner to this Court. (Dkt. # 4.) 6 III. LEGAL STANDARDS 7 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 8 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 9 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 10 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 11 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 12 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 13 alters the outcome of the case.” Id. 14 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such

15 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 16 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 17 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 19 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 20 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 21 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 22 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 23 1 IV. DISCUSSION 2 A. The ALJ Did Not Err in Discounting Dr. Ramsthel’s Opinion 3 Dr. Ramsthel examined Plaintiff in March 2010 and opined that Plaintiff can stand/walk 4 for a total of two hours in an eight-hour workday (20-40 minutes at a time), can sit for a total of

5 four hours in an eight-hour workday (60-90 minutes at a time), and can lift/carry 10-15 pounds 6 infrequently and 10 pounds frequently. AR at 594-97. 7 The ALJ found Dr. Ramsthel’s conclusions to be inconsistent with the objective evidence 8 of Plaintiff’s normal gait and strength, and other testing (negative Romberg, straight leg raise, 9 and shoulder testing) indicating that Plaintiff could perform light work with the additional 10 limitations listed in the ALJ’s residual functional capacity (“RFC”) assessment. AR at 25. The 11 ALJ also found that because Dr. Ramsthel’s examination post-dated the DLI and was not based 12 on any examination or treatment during the adjudicated period, Dr. Ramsthel’s opinion was not 13 well-supported as to Plaintiff’s limitations during the adjudicated period. Id. 14 Plaintiff argues that the ALJ’s reasons to discount Dr. Ramsthel’s opinion are not specific

15 and legitimate, and therefore not legally sufficient. (Dkt. # 19 at 3-6.) The Court will consider 16 Plaintiff’s arguments in turn. 17 1. Legal Standards 18 The regulations effective March 27, 2017, 20 C.F.R. §§ 404.1520c(c), 416.920c(c), 19 require the ALJ to articulate how persuasive the ALJ finds medical opinions and to explain how 20 the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a)-(b), 21 416.920c(a)-(b). The regulations require an ALJ to specifically account for the legitimate factors 22 of supportability and consistency in addressing the persuasiveness of a medical opinion. Thus, 23 the regulations require the ALJ to provide specific and legitimate reasons to reject a doctor’s 1 opinions. See, e.g., Kathleen G. v. Comm’r of Social Sec., No. C20-461 RSM, 2020 WL 2 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (finding that the new regulations do not clearly 3 supersede the “specific and legitimate” standard because the “specific and legitimate” standard 4 refers not to how an ALJ should weigh or evaluate opinions, but rather the standard by which the

5 Court evaluates whether the ALJ has reasonably articulated his or her consideration of the 6 evidence). 7 Further, the Court must continue to consider whether the ALJ’s analysis is supported by 8 substantial evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 9 Fed. Reg. 5852 (January 18, 2017) (“Courts reviewing claims under our current rules have 10 focused more on whether we sufficiently articulated the weight we gave treating source opinions, 11 rather than on whether substantial evidence supports our final decision … [T]hese courts, in 12 reviewing final agency decisions, are reweighing evidence instead of applying the substantial 13 evidence standard of review, which is intended to be highly deferential standard to us.”). 14 In this case, the ALJ cited the old regulations in her decision, yet evaluated the

15 supportability and consistency of the medical opinions. See AR at 20, 22-26. The Commissioner 16 contends that the ALJ’s reference to the old regulations was a harmless scrivener’s error and that 17 the ALJ’s analysis of the medical opinions complies with the new regulations. (Dkt. # 23 at 5.) 18 As explained in the previous two paragraphs, supra, the Court continues to review an ALJ’s 19 assessment of a medical opinion for specific, legitimate reasons supported by substantial 20 evidence, even under application of the new regulations, and agrees that the ALJ’s reference to 21 the old regulations in the decision does not prejudicially impact her assessment of Dr. 22 Ramsthel’s opinion or the Court’s evaluation of the sufficiency of that assessment. 23 1 2. The ALJ Did Not Err in Discounting Dr. Ramsthel’s Opinion as Inconsistent with the Record 2 In the ALJ’s discussion of Plaintiff’s alleged walking, sitting, standing, and 3 stair-climbing limitations, the ALJ noted that Plaintiff reported pain and tenderness in various 4 parts of his body, but that his functional testing related to walking, standing, and lifting indicated 5 that Plaintiff could perform light work with additional restrictions, as described in the ALJ’s 6 RFC assessment. AR at 21-22. The ALJ referenced objective findings (normal gait, normal 7 strength, and negative Romberg, straight leg raise, and shoulder testing) when concluding that 8 Dr. Ramsthel’s opinion was inconsistent with the record. Id. at 25. 9 Plaintiff argues that Dr. Ramsthel himself noted many normal findings (AR at 596-97) 10 and yet opined that Plaintiff had disabling standing, walking, and sitting limitations, and the ALJ 11 erred in second-guessing Dr. Ramsthel’s conclusions. (Dkt. # 19 at 4-5.) Plaintiff presumes that 12 when the ALJ referred to certain objective findings, she meant Dr. Ramsthel’s own findings (id. 13 at 5), but the ALJ explicitly contrasted Dr. Ramsthel’s conclusions with “the record,” which the 14 ALJ had summarized earlier in the decision and contains examples of objective findings 15 pertaining to standing, walking, sitting, and lifting that could be reasonably found to be 16 inconsistent with Dr. Ramsthel’s opinion. See AR at 21-22 (citing id. at 399-400, 433, 439-40, 17 704, 773-75). Although Plaintiff disputes on reply whether the ALJ referenced objective findings 18 outside Dr. Ramsthel’s opinion report (dkt. # 24 at 5), the Court infers from the ALJ’s reference 19 to “the record” that the ALJ intended to refer to findings throughout the record, specifically those 20 summarized in the ALJ’s decision. See AR at 21-22, 25. The Court is permitted to read the ALJ’s 21 decision as a whole in order to understand the ALJ’s logic. See Magallanes, 881 F.2d at 755 22 (“As a reviewing court, we are not deprived of our faculties for drawing specific and legitimate 23 inferences from the ALJ’s opinion.”); Rice v. Barnhart, 384 F.3d 363, 370 n.5 (7th Cir. 2004) 1 (“Because it is proper to read the ALJ’s decision as a whole, and because it would be a needless 2 formality to have the ALJ repeat substantially similar factual analyses at both steps three and 3 five, we consider the ALJ’s treatment of the record evidence in support of both his conclusions at 4 steps three and five.” (internal citation omitted)).

5 The ALJ did not purport to find Dr. Ramsthel’s conclusions inconsistent with his own 6 findings, although even if she had, she would not necessarily have erred. See, e.g., Bayliss, 427 7 F.3d at 1216 (rejecting physician’s opinion due to discrepancy or contradiction between opinion 8 and the physician’s own notes or observations is “a permissible determination within the ALJ’s 9 province”). In any event, in this case, the ALJ contrasted normal objective findings in the record 10 with the disabling limitations described by Dr. Ramsthel, and the ALJ reasonably found these to 11 be inconsistent. The providers who entered those normal objective findings described Plaintiff to 12 be less restricted than Dr. Ramsthel, which suggests that the ALJ’s interpretation of the evidence 13 as inconsistent is reasonable. See, e.g., AR at 401 (consultative examiner’s opinion that Plaintiff 14 had no restrictions in standing, walking, carrying, or lifting), 441 (examiners’ opinion that

15 Plaintiff had been able to work as a security guard since 2007), 705 (examiner’s opinion that 16 after completing work conditioning Plaintiff could return to modified work), 776 (examiner’s 17 opinion that Plaintiff can perform sedentary or sedentary-light work). Plaintiff has not shown that 18 the ALJ was unreasonable in finding that Dr. Ramsthel’s opinion was inconsistent with other 19 evidence in the record, or in discounting the opinion on this basis. See Tommasetti v. Astrue, 533 20 F.3d 1035, 1041 (9th Cir. 2008) (not improper to reject an opinion presenting inconsistencies 21 between the opinion and the medical record). 22 23 1 3. The ALJ Did Not Err in Finding Dr. Ramsthel’s Opinion Unsupported as to the Adjudicated Period 2 Plaintiff argues that the ALJ erred in discounting Dr. Ramsthel’s opinion as post-dating 3 the DLI because Dr. Ramsthel reviewed records dating to the period and his examination was a 4 mere six months after the DLI, during which time Plaintiff’s condition did not significantly 5 worsen. (Dkt. # 19 at 5.) 6 In order to be eligible for DIB, a claimant must establish disability on or before his or her 7 DLI. 20 C.F.R. §§ 404.131, 404.321. Medical opinions that post-date the DLI may nonetheless 8 be relevant to determining whether a claimant was disabled before the DLI. Smith v. Bowen, 849 9 F.2d 1222, 1225-26 (9th Cir. 1988). Post-DLI medical opinions cannot be disregarded solely 10 because they post-date the DLI. See Smith, 849 F.2d at 1225-26. Post-DLI opinions may be 11 properly discounted, however, where the opinion does not have retrospective applicability or 12 where the pre-DLI evidence is inconsistent with it. See Johnson v. Shalala, 60 F.3d 1428, 1433 13 (9th Cir. 1995) (holding that an ALJ may discount a post-DLI opinion that is inconsistent with 14 pre-DLI evidence); Capobres v. Astrue, 2011 WL 1114256, at *5 (D. Ida. Mar. 25, 2011) 15 (explaining that while post-DLI medical evidence cannot be rejected solely as remote in time, it 16 can be rejected on the grounds that the evidence itself is not retrospective). 17 Plaintiff correctly notes that Dr. Ramsthel reviewed a 2009 medical opinion that dates to 18 the adjudicated period (dkt. # 24 at 4-5), but has not shown that this fact is relevant: Dr. 19 Ramsthel’s opinion does not purport to describe Plaintiff’s limitations during the adjudicated 20 period and instead focuses on his current symptoms and functioning. See AR at 594-97. 21 Furthermore, as discussed in the previous section supra, the ALJ reasonably found that Dr. 22 Ramsthel’s conclusions were inconsistent with the objective evidence dating to the adjudicated 23 period. Under these circumstances, where Dr. Ramsthel’s opinion does not have retrospective 1 applicability and is inconsistent with evidence dating to the adjudicated period, Plaintiff has not 2 shown that the ALJ erred in discounting Dr. Ramsthel’s opinion in part because it post-dated the 3 DLI. 4 V. CONCLUSION

5 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED, and this 6 case is DISMISSED with prejudice. 7 Dated this 18th day of November, 2021. 8 9 A 10 MICHELLE L. PETERSON United States Magistrate Judge 11

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