Barbara Arellano v. Andrew Saul

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] BARBARA A.,1 ) Case No. EDCV 19-1373-JPR [11] ) Plaintiff, ) [12] ) MEMORANDUM DECISION AND ORDER v. ) AFFIRMING COMMISSIONER [13] ) ANDREW SAUL, Commissioner ) [14] of Social Security, ) ) [15] Defendant. ) ) [16] 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her application for Social Security disability insurance 20 benefits (“DIB”). The matter is before the Court on the parties’ 21 Joint Stipulation, filed June 25, 2020, which the Court has taken 22 under submission without oral argument. For the reasons 23 discussed below, the Commissioner’s decision is affirmed. [26] 1 Plaintiff’s name is partially redacted in line with 27 Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. [1] 1 II. BACKGROUND 2 Plaintiff was born in 1962. (Administrative Record (“AR”) 3 74, 210.) She completed 11th grade (AR 74) and worked as a 4 medical clerk and stores laborer (AR 80). 5 On November 12, 2015, Plaintiff applied for DIB, alleging 6 that she had been unable to work since March 1, 2013 (AR 210), 7 because of osteoarthritis, chronic obstructive pulmonary disease, 8 high blood pressure and cholesterol, diabetes, neuropathy, 9 depression, an aortic aneurysm, and a rotator-cuff tear (AR 248). 10 After her applications were denied initially (AR 95-110) and on 11 reconsideration (AR 112-27), she requested a hearing before an 12 Administrative Law Judge (AR 143-44). One was held on July 19, 13 2018, at which Plaintiff, who was represented by counsel, 14 testified, as did a vocational expert. (See AR 71-94.) At the 15 hearing, Plaintiff amended her alleged onset date to October 5, 16 2017. (AR 73.) In a written decision issued August 15, 2018, 17 the ALJ found her not disabled. (AR 35-44.) She sought Appeals 18 Council review (AR 207), which was denied on May 25, 2019 (AR 219 7). This action followed. 20 III. STANDARD OF REVIEW 21 Under 42 U.S.C. § 405 (g), a district court may review the 22 Commissioner’s decision to deny benefits. The ALJ’s findings and 23 decision should be upheld if they are free of legal error and 24 supported by substantial evidence based on the record as a whole. 25 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 26 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 27 means such evidence as a reasonable person might accept as 28 adequate to support a conclusion. Richardson, 402 U.S. at 401 ; [2] 1 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 2 is “more than a mere scintilla, but less than a preponderance.” 3 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 4 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). “[W]hatever the 5 meaning of ‘substantial’ in other contexts, the threshold for 6 such evidentiary sufficiency is not high.” Biestek v. Berryhill, [7] 139 S. Ct. 1148, 1154 (2019). To determine whether substantial 8 evidence supports a finding, the reviewing court “must review the 9 administrative record as a whole, weighing both the evidence that 10 supports and the evidence that detracts from the Commissioner’s 11 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 12 1998). “If the evidence can reasonably support either affirming 13 or reversing,” the reviewing court “may not substitute its 14 judgment” for the Commissioner’s. Id. at 720-21 . 15 IV. THE EVALUATION OF DISABILITY 16 People are “disabled” for Social Security purposes if they 17 are unable to engage in any substantial gainful activity owing to 18 a physical or mental impairment that is expected to result in 19 death or has lasted, or is expected to last, for a continuous 20 period of at least 12 months. 42 U.S.C. § 423 (d)(1)(A); Drouin 21 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 A. The Five-Step Evaluation Process 23 An ALJ follows a five-step sequential evaluation process to 24 assess whether someone is disabled. 20 C.F.R. § 404.1520 (a)(4); 25 Lester v. Chater, 81 F.3d 821 , 828 n.5 (9th Cir. 1995) (as 26 amended Apr. 9, 1996). In the first step, the Commissioner must 27 determine whether the claimant is currently engaged in 28 substantial gainful activity; if so, the claimant is not disabled [3] 1 and the claim must be denied. § 404.1520(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, a finding of not disabled is made and the 7 claim must be denied. § 404.1520(a)(4)(ii) & (c). 8 If the claimant has a “severe” impairment or combination of 9 impairments, the third step requires the Commissioner to 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments 12 (“Listing”) set forth at 20 C.F.R., part 404, subpart P, appendix 13 1; if so, disability is conclusively presumed and benefits are 14 awarded. § 404.1520(a)(4)(iii) & (d). 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal one in the Listing, the fourth step 17 requires the Commissioner to determine whether the claimant has 18 sufficient residual functional capacity (“RFC”)2 to perform her 19 past work; if so, she is not disabled and the claim must be 20 denied. § 404.1520(a)(4)(iv). The claimant has the burden of 21 proving she is unable to perform past relevant work. Drouin, 966 22 F.2d at 1257. If the claimant meets that burden, a prima facie 23 case of disability is established. Id. [24] 25 2 RFC is what a claimant can do despite existing exertional 26 and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152 , 1155 n.5 (9th Cir. 1989). The 27 Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) 28 (citing § 416.920(a)(4)). [4] 1 If that happens or if the claimant has no past relevant 2 work, the Commissioner bears the burden of establishing that the 3 claimant is not disabled because she can perform other 4 substantial gainful work available in the national economy, the 5 fifth and final step of the sequential analysis. 6 §§ 404.1520(a)(4)(v), 404.1560(b). 7 B. The ALJ’s Application of the Five-Step Process 8 At step one, the ALJ found that Plaintiff had not engaged in 9 substantial gainful activity since October 5, 2017, the amended 10 alleged onset date. (AR 38.) Her date last insured was 11 September 30, 2022. (AR 37.) At step two, he determined that 12 she had severe impairments of left-shoulder arthralgia, lumbar 13 and cervical strains, and history of aortic aneurysm. (AR 38.) 14 At step three, he found that Plaintiff’s impairments did not 15 meet or equal any of the impairments in the Listing. (AR 39.) 16 At step four, he determined that she had the RFC to perform a 17 range of light work with the following limitations: 18 [S]he can lift and carry up to 20 pounds occasionally and 19 10 pounds frequently; . . . stand and/or walk up to 6 20 hours in an 8-hour workday; . . . sit for 6 hours in an 21 8-hour workday; . . . never climb; . . . occasionally 22 kneel, balance, stoop, crouch and crawl; and . . . 23 frequently reach, handle and finger. 24 (AR 39.) 25 The ALJ found that Plaintiff was able to perform her past 26 work as a medical clerk as generally performed in the national 27 economy. (AR 43-44.) Thus, he found her not disabled. (AR 2628 27.) [5] 1 V. DISCUSSION 2 Plaintiff raises a sole claim on appeal: the ALJ erred in 3 assessing the opinion of examining orthopaedist Janet Dunlap. 4 (See J. Stip. at 4-11.) As discussed below, the ALJ provided 5 specific and legitimate reasons for giving the opinion only “some 6 weight,” and remand is not warranted. 7 A. Applicable Law 8 Three types of physicians may offer opinions in Social 9 Security cases: those who directly treated the plaintiff, those 10 who examined but did not treat the plaintiff, and those who did 11 neither. See Lester, 81 F.3d at 830 . A treating physician’s 12 opinion is generally entitled to more weight than an examining 13 physician’s, and an examining physician’s opinion is generally 14 entitled to more weight than a nonexamining physician’s. Id.; 15 see § 404.1527(c)(1)-(2).3 16 The ALJ may discount a physician’s opinion regardless of 17 whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747 , 18 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 19 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When a doctor’s 20 opinion is not contradicted by other medical-opinion evidence, 21 however, it may be rejected only for a “clear and convincing” 22 reason. Magallanes, 881 F.2d at 751 (citations omitted); 23 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31 ). 24 When it is contradicted, the ALJ need provide only a “specific [26] 3 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating 27 opinion evidence for claims filed on or after Mar. 27, 2017). Plaintiff’s claim was filed before March 27, 2017, however, and 28 the Court therefore analyzes it under former § 404.1527. [6] 1 and legitimate” reason for discounting it. Carmickle, 533 F.3d 2 at 1164 (citing Lester, 81 F.3d at 830-31 ). The weight given a 3 doctor’s opinion, moreover, depends on whether it is consistent 4 with the record and accompanied by adequate explanation, among 5 other things. See § 404.1527(c); see also Orn v. Astrue, 495 6 F.3d 625 , 631 (9th Cir. 2007) (factors in assessing physician’s 7 opinion include length of treatment relationship, frequency of 8 examination, and nature and extent of treatment relationship). 9 B. Relevant Background 10 Dr. Dunlap evaluated Plaintiff on April 25, 2018, as part of 11 her worker’s-compensation claim. (AR 1473.) She did not have a 12 treating relationship with Plaintiff and examined her only that 13 one time, but she reviewed numerous of her medical records before 14 rendering her opinion. (AR 1474, 1489-97.) Although Plaintiff 15 told Dr. Dunlap that she was injured on July 25, 2017, lifting a 16 pallet at work, that accident was “not noted in the medical 17 records, nor was there a claim filed for that.” (AR 1498.) 18 Thus, Dr. Dunlap considered only a second accident, on September 19 22, 2017, when Plaintiff injured her back and right arm placing a 20 “large tote” on a conveyor belt. (AR 1475, 1498.) She was being 21 treated with two Norco4 a day; she told Dr. Dunlap that 22 “chiropractic is out of the question, and so is surgery, and so 23 are the steroid shots, due to my medical illnesses.” (AR 1475; 24 see AR 1477.) She apparently did not say what those illnesses [26] 4 Norco is an opioid-based medication for treating moderate 27 to severe pain, consisting of hydrocodone and acetaminophen. See Norco, WebMD, https://www.webmd.com/drugs/2/drug-63/norco-oral/ 28 details (last visited Mar. 21, 2021). [7] 1 were. She said she could sit and stand or walk no more than 20 2 minutes at a time each, and she was “no longer able to bend, 3 squat, do long walks, sleep, bathe without falling, sit or 4 stand.” (AR 1476.) 5 Dr. Dunlap noted numerous signs of malingering during her 6 examination of Plaintiff. Plaintiff made “no effort” when asked 7 to squat, “report[ing] that she was unable to,” and frequently 8 said “I can’t” “when asked to do various tasks, making no 9 effort.” (AR 1479.) Although she had tenderness to “light touch 10 palpation” “over the entire cervical, thoracic and lumbar 11 spines,” it was “out of proportion to the degree of palpation, 12 representing symptom embellishment/augmentation.” (Id.; see also 13 AR 1485.) The doctor noted that when she “more forcefully 14 palpated” at other times, “no tenderness was reported.” (AR 15 1479, 1485.) The same “symptom embellishment/augmentation” 16 occurred during Dr. Dunlap’s examination of Plaintiff’s shoulders 17 and elbows. (AR 1481-82.) And when the doctor examined her 18 knees, there was “reported tenderness to light touch palpation, 19 out of proportion to the degree of palpation, and nonfocal, over 20 every structure palpated in the left knee”; she did have 21 “positive crepitus beneath both patellae, right greater than 22 left,” although all testing of the knees was normal, as was range 23 of motion. (AR 1488.) Plaintiff made “poor effort” on the grip24 strength testing, “making the test invalid.” (AR 1485.) 25 Finally, all five Waddell signs were positive.5 (AR 1479.) [26] 27 5 A finding of three or more Waddell signs is “clinically significant” for malingering or some other psychological 28 (continued...) [8] 1 Beyond those suspect findings, most of the exam yielded 2 normal results. Plaintiff “require[d] no assistance getting up 3 and down from the exam table” (AR 1478), and examination and 4 testing of her feet and ankles were entirely normal (AR 1488-89). 5 The exam results for her cervical spine were all normal, 6 including for range of motion and motor skills. (AR 1479-81.) 7 The same was true for Plaintiff’s shoulders and hips, with all8 normal test results. (AR 1481-82, 1487.) Range of motion of the 9 elbows was normal. (AR 1483.) Dr. Dunlap’s examination of 10 Plaintiff’s wrists and hands also produced almost entirely normal 11 results. (AR 1483-85.) She did, however, have “pain 12 reproduction in the region of the right common extensor origin 13 with resisted finger and wrist extension,” providing “some 14 objective evidence of a right tennis elbow.” (AR 1482-83.) And 15 Plaintiff’s range of motion of her thoracic spine was below 16 normal (AR 1485), although her motor functions were all normal 17 (AR 1486). 18 Dr. Dunlap ultimately found “[l]umbar sprain/strain, 19 possible radiculopathy”; “right lateral epicondylitis,” or tennis 20 elbow; bilateral patellofemoral crepitus; and “possible lumbar 21 radiculopathy.” (AR 1497.) She rejected Plaintiff’s allegations 22 of left-knee injury as well as any injury of the cervical or 23 thoracic spines. (Id.) She did, however, conclude that “the [24] 5 (...continued) [25] component to pain symptoms. Meling v. Comm’r of Soc. Sec., No. 26 CV 19-04892-PHX-MTL, 2020 WL 5525352 , at *5 (D. Ariz. Sept. 15, 2020) (citation omitted); see also Makoviney v. Saul, 830 F. 27 App’x 192, 196 (9th Cir. 2020) (affirming ALJ’s rejection of plaintiff’s testimony based on finding of malingering in part 28 because two doctors found “at least one Waddell sign each”). [9] 1 mechanism of injury is credible for injuries to the right elbow 2 and lumbar spine.” (AR 1498.) Plaintiff was a “potential 3 candidate for a steroid injection or [other] injection, into the 4 region of the right tennis elbow.” (Id.) The doctor could not 5 determine whether she would benefit from “additional treatment 6 for the lumbar spine” until she had a lumbar MRI. (Id.) 7 Dr. Dunlap concluded that Plaintiff was “capable of working 8 modified duty”: “She should be restricted from repetitive 9 gripping and grasping with the right hand, repetitive bending and 10 twisting through the lumbar spine, and lifting over 25 pounds.” 11 (Id.) 12 The ALJ summarized Dr. Dunlap’s examination of Plaintiff (AR 13 41-42) and gave the doctor’s evaluation “some weight” (AR 42). 14 He noted that she did not have a treating relationship with 15 Plaintiff. (Id.) He found her functional assessments “somewhat 16 consistent with her examination findings and the overall evidence 17 of record” (AR 42-43) but noted that Plaintiff had “5/5 positive 18 Waddell signs during the examination and routinely demonstrated 19 symptom embellishment/exaggeration,” making it “difficult to 20 ascertain [her] true degree of pain and/or limitation.” (AR 43.) 21 Thus, the ALJ credited the doctor’s opinion only to the extent it 22 was “supported by and consistent with the overall record during 23 the relevant period.” (Id.) 24 C. Analysis 25 Plaintiff contends that the ALJ erred in implicitly 26 rejecting Dr. Dunlap’s restriction on “repetitive gripping and 27 grasping with the right hand.” (J. Stip. at 4.) She contends 28 that in worker’s-compensation parlance, “repetitive” means that [10] 1 an individual has lost 50 percent of her preinjury capacity in 2 that particular function. (Id. at 7.) She then argues that 3 because a “stores laborer,” the job she was performing when she 4 was injured, allegedly requires “frequent” handling and grasping 5 — that is, for up to two-thirds of the day — the ALJ necessarily 6 erred in finding that she could do that same amount of gripping 7 and grasping; she should have been limited to only half that, or 8 “occasional” grasping and handling with the right hand. (Id. at 9 8-9.) 10 Because the state-agency doctors assessed no grasping and 11 handling limitations (see AR 107, 124), the ALJ had to provide 12 only a specific and legitimate reason to reject Dr. Dunlap’s 13 restriction on gripping and grasping with the right hand, not a 14 clear and convincing one. See Carmickle, 533 F.3d at 1164 . He 15 did so. Plaintiff makes no mention of the main reason the ALJ 16 relied on to implicitly reject that portion of Dr. Dunlap’s [17] opinion: her malingering.6 Indeed, her malingering related [18] 19 6 There are several other gaps in Plaintiff’s reasoning. First, the ALJ did not find that she could perform the stores20 laborer job; rather, he concluded that she could do her past work as a medical clerk as generally performed. (AR 44.) That [21] position also requires frequent handling, however, see Medical22 Record Clerk, DOT 245.362-010, 1991 WL 672269 (Jan. 1, 2016), so the error is of no consequence. Second, the Ninth Circuit has 23 noted that a “repetitive” restriction refers to a “qualitative” one, not a “quantitative” one, Gardner v. Astrue, 257 F. App’x 24 28, 30 & n.5 (9th Cir. 2007), and thus relates not to how often someone does something but in what manner, see id. It is [25] therefore not clear that Dr. Dunlap’s assessed limitation was 26 inconsistent with a medical-record clerk’s duties in the way Plaintiff argues. Finally, Dr. Dunlap assessed only a 27 restriction on the right hand, not the left. Even if Dr. Dunlap’s use of the word “repetitive” meant no more than 28 (continued...) [11] 1 directly to the grasping and gripping restriction. She made 2 “poor effort” on the grip-strength testing, making the test 3 results “invalid.” (AR 1485.) She also engaged in “symptom 4 embellishment” during Dr. Dunlap’s examination of her shoulders 5 and elbows. (AR 1481-82.) Further, all five Waddell signs were 6 positive, which the ALJ reasonably interpreted as indicating 7 malingering. Meling v. Comm’r of Soc. Sec., No. CV 19-04892-PHX8 MTL, 2020 WL 5525352 , at *5 (D. Ariz. Sept. 15, 2020). 9 Finally, although Dr. Dunlap found some limited objective 10 evidence of right tennis elbow, she also noted that an October 11 2017 x-ray of that elbow was normal, with no fracture, 12 dislocation, or arthritic changes. (AR 1494.) A February 2018 13 x-ray of the same elbow was “unremarkable.” (AR 1496.) It was 14 thus entirely appropriate for the ALJ to reject Dr. Dunlap’s 15 functional assessments stemming from the tests and examination 16 during which Plaintiff malingered. See Tommasetti v. Astrue, 533 17 F.3d 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a . . . 18 physician’s opinion if it is based ‘to a large extent’ on a 19 claimant’s self-reports that have been properly discounted as 20 incredible.”); Freeman v. Colvin, 669 F. App’x 861 , 861 (9th Cir. [22] 6 (...continued) occasional gripping and grasping with the right hand, as 23 Plaintiff argues, she perhaps could have used her left hand to occasionally grip and grasp as well, thereby amounting to 24 “frequent” gripping and grasping overall. Cf. Lamear v. Berryhill, 865 F.3d 1201, 1205-06 (9th Cir. 2017) (remanding for [25] development of record concerning particular job duties when 26 plaintiff was limited to occasional handling with left hand and jobs identified by ALJ required “frequent” handling). Plaintiff 27 testified that her particular medical-clerk job consisted of “scanning medical records” “all day,” for instance, something 28 that presumably could be done with either hand. (AR 77.) [12] 192016) (finding that ALJ properly rejected doctor’s opinion given evidence that plaintiff had malingered). 3 The ALJ also properly found that Dr. Dunlap’s functional 4 || assessments were only “somewhat consistent with her examination 5 |} findings and the overall evidence of record.” (AR 42.) As 6 || noted, most of the examination and imaging findings concerning 7 || Plaintiff’s shoulders, elbows, and hands were entirely normal. 8} Further, Dr. Dunlap found that she might benefit from a steroid injection into her elbow, something she had never tried. (AR 101475, 1498.) Thus, the largely normal examination and imaging 11} findings, coupled with only “some objective evidence” of tennis 12 || elbow that had not yet been treated, did not support a complete 13 | preclusion on repetitive gripping and grasping with the right 14 | hand. See Garcia v. Colvin, 668 F. App’x 714, 715 (9th Cir. 15 2016) (finding that ALJ properly gave “very little weight” to 16 |] examining physician’s preclusion on use of upper left arm because 17 |} doctor’s clinical findings showed that although plaintiff “had 18 || some reduced range of motion,” nothing indicated “complete 19 f} inability to use her left arm in a work environment”). 20 The ALJ did not err, and remand is not warranted. 21 | VI. CONCLUSION 22 Consistent with the foregoing and under sentence four of 42 23 U.S.C. § 405 (g), IT IS ORDERED that judgment be entered AFFIRMING 24 the Commissioner’s decision denying Plaintiff’s DIB application, DENYING Plaintiff’s request for remand, and in the Commissioner’s 26 favor. h, whlidtl27 || DATED: March 23, 2021 {- JEAN ROSENBLUTH 28 U.S. Magistrate Judge