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Thibeaux v. Berryhill

United States District Court, C.D. California

May 10, 2017

JOSETTE NICOLE THIBEAUX, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          ALKA SAGAR UNITED STATES MAGISTRATE JUDGE

         PROCEEDINGS

         On May 24, 2016, Plaintiff Josette Nicole Thibeaux (“Plaintiff”) filed a Complaint seeking review of the Commissioner's denial of Plaintiff's application for a period of disability and Disability Insurance Benefits (DIB) and Supplemental Security Income Benefits (SSI). (Docket Entry No 1). On November 30, 2016, Defendant filed an Answer to the Complaint and the Certified Administrative Record (“AR”). (Docket Entry Nos. 18-19). The parties have consented to proceed before a United States Magistrate Judge. (Docket Entry Nos. 13, 15). The parties filed a Joint Stipulation (“Joint Stip.”) on February 28, 2017, setting forth their respective positions on Plaintiff's claims. (Docket Entry No. 20).

         SUMMARY OF ADMINISTRATIVE DECISION

         On February 25, 2014, Plaintiff, formerly employed as an information clerk, salesperson, and hostess, (see AR 366), filed an application for DIB and SSI benefits, alleging disability beginning on May 15, 2009. (AR 255, 262). On October 1, 2013, Administrative Law Judge (“ALJ”), Joseph Lisieski III, deferred a scheduled hearing because Plaintiff was not aware that her attorney had withdrawn as her representative. (AR 96-97). On April 8, 2014, the ALJ examined the record and heard testimony from Plaintiff who was represented by counsel. (AR 32-46). The ALJ continued the second hearing in order to obtain more records from Plaintiff's treating neurologist, Dr. Michael Mahdad, M.D. (AR 43-45). On July 15, 2014, the ALJ examined the record and heard testimony from Plaintiff, vocational expert, Corinne Porter (“VE”), and medical expert, Dr. Irvin S. Belzer, M.D. (AR 47-93). On September 12, 2014, the ALJ denied Plaintiff benefits in a written decision. (AR 11-31).

         The ALJ applied the five-step process in evaluating Plaintiff's case. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after the alleged onset date of May 15, 2009, and that Plaintiff's date last insured was June 30, 2011. (AR 16). At step two, the ALJ found that Plaintiff had the following severe impairments: multiple sclerosis (“MS”) with resulting loss of concentration, headaches, and poor vision in the right eye. (AR 16). At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a Listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 16).

         Before proceeding to step four, the ALJ found that, through the date last insured, Plaintiff had the residual functional capacity (“RFC”)[2] to do less than a full range of sedentary work, including frequent lifting or carrying ten pounds; standing or walking for 2 hours and in an 8-hour workday; sitting with no limitations; occasional foot controls; frequent pushing and pulling with the bilateral upper extremity; reaching, handling, and feeling; occasional postural limitations; no climbing, balancing, ropes, ladders, scaffolds, or unprotected heights; no job that requires driving a vehicle; no activities that require depth perception; no working with objects smaller than newspaper print; no frequent moisture and wetness; occasional cold; no concentrated exposure to heat or vibrations; limited to simple tasks with simple work related decisions, object oriented; and no inherently stressful jobs such as taking complaints. (AR 18).

         The ALJ found Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms not credible because (1) the objective medical record did not support Plaintiff's assertions of debilitating symptoms; (2) Plaintiff made inconsistent statements regarding her ability to work at a low-stress, sedentary job; (3) Plaintiff's condition remained unchanged when she stopped taking her MS medication while pregnant; (4) although Plaintiff was diagnosed with MS in 2000, she has had several jobs and worked after her May 2009 onset date, until August 2009; and (5) Plaintiff's daily activities indicated that she could do more than alleged. (AR 19-21).

         After making a credibility finding, the ALJ addressed the opinions of Plaintiff's treating and examining physicians and the non-examining consultants. (See AR 20-23). The ALJ gave partial weight to the opinion of nonexamining, medical expert, Dr. Belzer, who testified at the hearing. (AR 22). After reviewing the medical record, Dr. Belzer testified that Plaintiff had partial blindness in the right eye; took Rebif;[3] had headaches, but records did not indicate how severe or frequent; had good exercise habits; and an October 2012 MRI of the brain showed MS and volume loss, which suggests that Plaintiff was developing dementia on an “early basis, ” which may have caused memory problems. (AR 54-57).

         Dr. Belzer opined that Plaintiff could lift or carry 20 pounds occasionally and 10 pounds frequently; had no sitting limitations; could stand or walk for 4 hours in an 8-hour workday but not on a continuous basis and would need breaks every 4 hours for 5 minutes; could frequently push and pull; could occasionally use foot controls with both feet; could occasionally use the stairs but no ladders or scaffolds; could not do activities that required the ability to assess distance with vision or see small objects; no unprotected heights, moving machinery, or motor vehicles, no frequent exposure to wetness, odors, and dust; occasional exposure to cold; infrequent exposure to heat; and occasional exposure to vibrations. (AR 58-59). The ALJ gave partial weight to Dr. Belzer's opinion and gave Plaintiff's assertions “the benefit of the doubt, ” finding that she had a sedentary RFC. (AR 21). The ALJ found that Dr. Belzer's opinion was based on objective medical evidence. Plaintiff had a significant vision impairment in the right eye, and an October 2012 MRI of Plaintiff's brain showed MS and volume loss, which suggested that Plaintiff may be developing dementia, but was not conclusive that Plaintiff had severe MS. (AR 22).

         The ALJ rejected the opinion of examining physician, Dr. Robert A. Moore, M.D., because Dr. Moore did not have an opportunity to review additional relevant medical evidence. (AR 22). The ALJ rejected the opinions of State agency physicians, Dr. Nicolas Tsoulas, M.D., and Dr. Keith Wahl, M.D., because their opinions were not “supported by the cumulative evidence.” (AR 23).

         The ALJ gave no weight to the opinion of Plaintiff's treating neurologist, Dr. Mahdad. (Id.). Dr. Mahdad opined that Plaintiff could sit 6 hours and stand or walk 2 hours in an 8-hour workday; needed breaks every 30 to 45 minutes; could not handle low-stress jobs; could lift or carry less than 10 pounds occasionally and 10 pounds rarely; never climb ladders; was limited in grasping, twisting, reaching, and doing fine manipulations; should avoid exposure to extreme heat, humidity, and hazards; and would likely be absent four days per month. (AR 422-27). Dr. Mahdad also opined that because of Plaintiff's gait disturbance, poor coordination, vision and cognitive impairments, and general weakness, Plaintiff was “not employable in any capacity.” (AR 463). The ALJ gave no weight to Dr. Mahdad's opinion because (1) while Dr. Mahdad found that Plaintiff could not perform even a low-stress job, Plaintiff's July 2014 hearing testimony that she could perform a sedentary, low-stress job contradicted Dr. Mahdad's opinion; (2) the objective medical record, including Dr. Mahdad's own treatment notes, lacked support for his opinion; and (3) Dr. Mahdad's opinion that Plaintiff was not employable is a decision reserved for the Commissioner alone. (AR 23).

         The ALJ rejected the opinion of Plaintiff's treating primary care physician, Dr. Kenneth Horwitz, M.D. (Id.). Dr. Horwitz opined that Plaintiff could sit for 4 hours and stand or walk less than 2 hours in an 8-hour workday; lift or carry 20 pounds occasionally and 10 pounds frequently; and was incapable of even a low-stress job. (AR 428-33). The ALJ rejected Dr. Horwitz's opinion because Plaintiff's testimony that she could perform a job that required her to sit for 8 hours in an 8-hour workday day contradicted Dr. Horwitz's assessment, and Dr. Horwitz's own examination of Plaintiff did not support “such restrictive limitations.” (AR 23).

         The ALJ rejected the opinion of Plaintiff's former treating physician, Dr. Thuc Tu, M.D., who opined that Plaintiff could not work, because such a finding is reserved solely for the Commissioner. (AR 23, 410).

         The ALJ rejected the statements of Harriet Thibeaux, Plaintiff's mother, because (1) her statements discussed Plaintiff's symptoms in relation to her abilities, and Ms. Thibeaux was not a medical professional; (2) Ms. Thibeaux's statements were biased because of her familial relationship with Plaintiff; and (3) the medical evidence did not support her statements. (AR 23-24).

         At step four, the ALJ determined that Plaintiff was not able to perform her past relevant work as a policyholder information clerk. (AR 23). At step five, the ALJ found Plaintiff was able to perform jobs consistent with her age, education, and medical limitations existing in significant numbers in the national economy. The ALJ adopted VE testimony that Plaintiff could perform the jobs of addresser (Dictionary of Occupational Titles (“DOT”) 209.587-010) and order clerk (DOT 209.567-014). At the hearing, the ALJ asked the VE whether her testimony conflicted with the DOT description for these jobs. (See AR 91). Accordingly, the ALJ concluded that Plaintiff was not disabled. (AR 26).

         On November 11, 2014, Plaintiff requested that the Appeals Council review the ALJ's Decision, which was denied on March 25, 2016. (AR 1-10). The ALJ's Decision then became the final decision of the Commissioner, allowing this Court to review the decision. See 42 U.S.C. §§ 405(g), 1383(c).

         STANDARD OF REVIEW

         This court reviews the Administration's decision to determine if it is free of legal error and supported by substantial evidence. See Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). “Substantial evidence” is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine whether substantial evidence supports a finding, “a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As a result, “[i]f the evidence can reasonably support either affirming or reversing the ALJ's conclusion, [a court] may not substitute [its] judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

         PLAINTIFF'S CONTENTIONS

         Plaintiff alleges that the ALJ (1) improperly rejected the opinions of treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr. Tu, in favor of the opinion of nonexamining medical expert, Dr. Belzer; (2) erred in finding that Plaintiff could perform the jobs of addresser and order clerk; and (3) did not give clear and convincing reasons to reject Plaintiff's subjective pain testimony. (MSP 4-7, 14-18, 21-25, 32-33).

         DISCUSSION

         After reviewing the record, the Court finds that the ALJ (1) gave specific and legitimate reasons to reject the opinions of treating physicians, Dr. Mahdad, Dr. Horwitz, and Dr. Tu, in favor of the opinion of nonexamining medical expert, Dr. Belzer; (2) did not err at step five in finding that Plaintiff could perform other jobs existing in significant numbers in the national economy; and (3) articulated ...


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