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Bramer v. Commissioner of Social Security

United States District Court, E.D. California

July 10, 2017




         Plaintiff Melvin Bramer seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff's application for Disability Insurance Benefits (“DIB”) and for Supplemental Security Income (SSI) under Titles II and XVI of the Social Security Act (“Act”), respectively.[1] In his motion for summary judgment, plaintiff principally argues that the Commissioner erred by finding that plaintiff was not disabled. (ECF No. 20 at 4.) The Commissioner opposed plaintiff's motion and filed a cross-motion for summary judgment. (ECF No. 21.)

         After carefully considering the record and the parties' briefing, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and affirms the Commissioner's final decision.

         I. BACKGROUND

         Plaintiff was born on August 23, 1957; completed two years of junior college where he obtained an associate's degree; and previously worked as service supervisor, car salesman, finance manager, and diner owner/manager. (Administrative Transcript (“AT”) 27-31, 228-29.)[2]On August 23, 2012, plaintiff applied for DIB, alleging that his disability began on July 1, 2011. (AT 198.) Additionally, plaintiff filed for SSI on August 27, 2012, again alleging disability beginning on July 1, 2011. (AT 205.) Plaintiff claimed that he was disabled due to heart failure, stent in heart, back injury, Harrington rods in back, diabetes, ulcer in upper and lower GI tract, hardware in lower extremities, and high blood pressure. (AT 227.) After plaintiff's application was denied initially and on reconsideration, an ALJ conducted a hearing on April 2, 2014. (AT 24-75.) Plaintiff amended the onset date of alleged disability to August 2012 at the hearing, because he had continued to work until August 2012, when he suffered a heart attack. (AT 31- 32.) The ALJ issued a decision dated September 4, 2014, determining that plaintiff has not been under a disability, as defined in the Act, from August 1, 2012 through the date of the ALJ's decision. (AT 6-18.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on January 19, 2016. (AT 1-4.) Plaintiff subsequently filed this action on March 22, 2016, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)


         On appeal, plaintiff raises the following issues: (1) whether the ALJ failed to properly credit Dr. Trusnovic's treating opinion; (2) whether the ALJ improperly discounted plaintiff's credibility; and (3)whether the ALJ erred in not finding that plaintiff suffered from a severe mental impairment at step two.[3] (ECF No. 20 at 13.)


         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


         A. Summary of the ALJ's Findings

         The ALJ evaluated plaintiff's entitlement to DIB and SSI pursuant to the Commissioner's standard five-step analytical framework.[4] As a preliminary matter, the ALJ found that plaintiff met the insured status requirements of the Act through September 30, 2016. (AT 11.) At the first step, the ALJ found that plaintiff “has not engaged in substantial gainful activity since August 1, 2012.” (Id.) At step two, the ALJ determined that plaintiff has the following severe impairments:

cervical, thoracic and lumbar spine degenerative changes with intact Harrington rods from levels T8 through L2; old mild compression injury at level T12; old healed right hip femoral neck fracture with a screw in the femoral head without sign of avascular necrosis; left knee advanced degenerative joint disease probably indicating chronic internal derangement; right femur healed fracture with hardware in place; and left tibia old healed tibial and fibula fractures with hardware in place.

(Id.) At step three, however, the ALJ concluded that plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AT 14.)

         Before proceeding to step four, the ALJ assessed plaintiff's Residual Functional Capacity (“RFC”), finding that plaintiff could perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b):

Specifically, the claimant retains the capacity to lift and carry 20 pounds occasionally and 10 pounds frequently; sit for 6 hours in an 8 hour workday; stand or walk for 6 hours in an 8 hour workday; is precluded from climbing ladders, ropes or scaffolds; may perform postural movements frequently; and must avoid concentrated exposure to workplace hazards.

(Id.) At step four, the ALJ determined that plaintiff “is capable of performing past relevant work as a truck service advisor, auto sales advisor, auto sales person, loan interviewer, analyst and owner/manager of food service” because such work does not require performance precluded by his RFC. (AT 18.)

         Thus, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from August 1, 2012, plaintiff's alleged disability onset date, through the date of the ALJ's decision on September 4, 2014. (Id.)

         B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

         1. Whether the ALJ failed to properly credit Dr. Trusnovic's treating opinion

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion carries more weight than a non-examining physician's opinion. Holohan, 246 F.3d at 1202.

         To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for “specific and legitimate” reasons. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157, [5] except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, by itself, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

         On January 15, 2014, plaintiff's treating physician William Trusnovic, M.D. completed a medical source statement. (AT 560-63.) Dr. Trusnovic opined that plaintiff has arthropathy and osteoarthrosis with severe chronic pain of his back and multiple joints, crepitus, decreased range of motion, medication side effects, and depression[6]. (AT 560-61.) According to Dr. Trusnovic these conditions cause the following functional limitations for plaintiff: the need to shift from sitting and standing positions at will; take unscheduled breaks; elevate legs level with his pelvis 50% of the time; never lift 10 lbs or more; rarely lift less than 10 lbs; never twist, stoop, crouch/squat, or climb ladders; rarely climb stairs; experience significant limitations in reaching, handling, and fingering with the bilateral upper extremities; be off task 25% or more of the time; tolerate only low stress work; and have more than four work absences per month. (AT 561-63.)

         Dr. Trusnovic's opinion was contradicted by two non-examining consulting physicians, Christopher Maloney, M.D. and B. Sheehy, M.D. (See AT 78-86, 98-110.) Because Dr. Trusnovic's opinion was contradicted by other medical opinions in the record, the ALJ was required to provide specific and legitimate reasons for discounting his opinion. See Lester, 81 F.3d at 830-31. For the reasons discussed below, the court finds that the ALJ properly discharged that duty.

         The ALJ gave Dr. Trusnovic's opinions little weight, explaining that

[t]here is little evidence of any significant and persistent medication side effects, few complaints of depression in the progress notes, no impairment of his bilateral upper extremities including full range of motion and normal reflexes, sensation and motor strength, and adequate strength and neurologically intact lower extremities with the exception of some decreased sensation in the left lower extremity.

(AT 17.) The record supports the ALJ's finding that Dr. Trusnovic's opinion was supported by minimal clinical findings.

         First, plaintiff made some subjective complaints of being “depressed and anxious” or “mildly depressed” between August 27, 2012 and August 30, 2012. (AT 353, 358, 419.) Thereafter, plaintiff had multiple medical exams in September and October of 2012 where depression was not mentioned in either his subjective complaints or the objective diagnoses. (See AT 350-52, 392-97.) After October 2012, depression is consistently listed as part of plaintiff's medical history. However, in the overwhelming majority of his examinations ...

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