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Spayd v. Berryhill

United States District Court, S.D. California

July 27, 2017

Aaron Spayd, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION [ECF NOS. 16, 18]

          Hon. Jill L. Burkhardt, United States Magistrate Judge

         This matter is before the Court on cross-motions for summary judgment. (ECF Nos. 16, 18.) Plaintiff Aaron Spayd moves under 42 U.S.C. § 405(g)[1] for judicial review of the Commissioner of Social Security's[2] (“Commissioner”) final decision denying his applications for a period of disability and disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act.

         This Report and Recommendation is submitted to United States District Judge Janis L. Sammartino pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. After careful review of the moving and opposing papers, the administrative record, the facts, and the applicable law, the Court hereby RECOMMENDS that Plaintiff's motion for summary judgment (ECF No. 16) be DENIED IN PART AND GRANTED IN PART. The Court further RECOMMENDS that the Commissioner's cross-motion for summary judgment affirming the Administrative Law Judge's (“ALJ”) decision (ECF No. 18) be DENIED.

         I. BACKGROUND

         Plaintiff filed applications for a period of disability and disability insurance benefits and supplemental security benefits on April 19, 2012.[3] In both applications, Plaintiff initially alleged disability commencing February 27, 2010.[4] (ECF No. 13-5 at 2, 4.) On April 9, 2014, Plaintiff requested that the alleged onset date of disability be amended from February 27, 2010 to October 8, 2010. (ECF Nos. 13-2 at 57; 13-5 at 16.) The Commissioner denied the applications by initial determination on August 29, 2012. (ECF No. 13-3 at 18-19; ECF No. 13-4 at 2.) Plaintiff requested reconsideration of the initial determination on October 29, 2012. (ECF 13-4 at 7-8.) The Commissioner denied reconsideration on March 1, 2013. (Id. at 9-14; ECF No. 13-3 at 50-51.) Plaintiff requested a de novo hearing before an ALJ on March 7, 2013. (ECF No. 13-4 at 15-16.) The Commissioner granted this request and appointed an ALJ. (Id. at 17-19, 69-73, 75-79.) On April 9, 2014, Plaintiff, his attorney, a psychological expert, and a vocational expert appeared before the ALJ, James Carletti. (ECF No. 13-2 at 30.) In a decision dated August 29, 2014, the ALJ issued an unfavorable decision and found Plaintiff was not disabled from October 8, 2010, through the date of his decision. (Id. at 46.)

         Thereafter, the Social Security Administration Appeals Council denied Plaintiff's request for review of the ALJ's unfavorable decision, making the ALJ's decision the final decision of the Commissioner. (Id. at 2.) Plaintiff then commenced this instant action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. STANDARD OF REVIEW

         The Social Security Act allows for unsuccessful applicants to seek judicial review of the Commissioner's final agency decision.[5] The scope of judicial review, however, is limited. The Commissioner's final decision should not be disturbed unless: (1) The ALJ's findings are based on legal error; or (2) the ALJ's determinations are not supported by substantial evidence in the record as a whole.[6] Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.”[7] Substantial evidence is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.”[8]

         In making this determination, the Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion.[9] Where the evidence can reasonably be construed to support more than one rational interpretation, the Court must uphold the ALJ's decision.[10] This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts.[11]

         III. THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [12] the ALJ first found that Plaintiff's last date insured was September 30, 2011 and that Plaintiff had not engaged in substantial gainful activity since October 8, 2010, the alleged onset date. (ECF No. 13-2 at 33.)

         Before proceeding to step two, the ALJ addressed whether Plaintiff was subject to res judicata in light of Plaintiff's final unfavorable decision of nondisability issued by Administrative Law Judge Parker on October 7, 2010. (Id.) The ALJ explained that, absent a showing of changed circumstances since that final unfavorable decision, Plaintiff was subject to presumptions of nondisability and of continuing applicability of residual functional capacity as determined by Judge Parker. (Id.) The ALJ concluded that the evidence showed changed circumstances, and provided the following analysis:

Judge Parker found the claimant only had asthma. The evidence now before the undersigned shows asthma, schizophrenia. affective disorders and Polly-substance abuse. While the claimant's physical limitations are unchanged, he now has mental limitations. Accordingly, there are changed circumstances, and the Chavez presumptions do not apply.[13]

(Id.)

         The ALJ then proceeded to step two and found that Plaintiff had the following severe impairments: asthma; schizophrenia; affective disorders; and polysubstance abuse.[14] (Id.) In making this determination, the ALJ explained that Plaintiff also had the following conditions that do not meet the criteria for severe impairments: right hand infection; right hand pain; and right hand skin disease. (Id.)

         At step three, the ALJ found that Plaintiff does not have an impairment or a combination of impairments that meet the severity required to stop analysis at step three and award benefits. (Id.) Before considering step four, the ALJ found that Plaintiff has the residual functional capacity to perform sedentary work except has environmental limitations to no exposure to extreme cold and heat; can perform simple repetitive tasks, with no public contact; and minimum interactions with co-workers and supervisors. (Id. at 35.) In arriving at this residual functional capacity determination, the ALJ looked at the entire record, including Plaintiff's medical history to determine the limitations of his asthma, low back pain, affective disorder, and polysubstance abuse. (Id. at 34-44.)

         At step four, the ALJ compared the residual functional capacity assessed to the demands of Plaintiff's past relevant work as a cook/cashier, security guard, and shipping and receiving clerk. (Id. at 45.) In doing so, the ALJ relied on the testimony of the vocational expert to determine that Plaintiff is unable to perform any past relevant work. (Id.) At step five, the ALJ determined that, considering the Plaintiff's age, education, work experience, and residual functional capacity, there were jobs in significant numbers in the national economy that Plaintiff could perform. (Id.) The ALJ relied on the testimony of the vocational expert to determine that Plaintiff could work as an assembler or a production examiner. (Id. at 46.) The ALJ then concluded that Plaintiff “has not been under a disability, as defined in the Social Security Act, from October 8, 2010, through the date of this decision.” (Id.)

         IV. DISCUSSION

         Plaintiff challenges the ALJ's residual functional capacity determination. Plaintiff argues that it was not supported by substantial evidence and was the product of harmful legal error for two reasons. The first harmful legal error argued by Plaintiff is that the ALJ failed to provide “specific and legitimate reasons” for discounting two treating physicians' opinions. (ECF No. 16-1 at 18-26.) More specifically, Plaintiff argues that the ALJ failed to properly discount the following specific opinions of Dr. Francisco Recalde and Dr. Jonathan Kistler, which would change the outcome at the final step of determining disability: (1) Dr. Recalde's opinion that limited Plaintiff to “occasional” handling and fingering; (2) Dr. Kistler's opinion that found marked limitation in “sustaining an ordinary routine without special supervision;” and (3) both Dr. Recalde and Dr. Kistler opinions that Plaintiff would miss more than four days per month due to his mental and physical limitations.[15] (Id. at 20-21.)

         The second harmful legal error argued by Plaintiff is that the ALJ failed to provide “clear and convincing” reasons for discrediting Plaintiff's testimony regarding functional limitations with respect to the use of his hands. (Id. at 26-28; ECF No. 20 at 10-11.)

         The Commissioner opposes Plaintiff's motion and cross-moves for summary judgment, arguing: (1) the ALJ properly considered the medical evidence in the record when determining the appropriate weight to assign to Dr. Recalde's and Dr. Kistler's opinions (EFC No. 18-1 at 3-7); and (2) the ALJ properly assessed Plaintiff's credibility, which is supported by the substantial evidence of the record (id. at 7-10).

         For the reasons explained below, the Court concludes that the ALJ articulated specific and legitimate reasons supported by substantial evidence in the record to discount Dr. Reclade's opinions, but failed to articulate specific and legitimate reasons to discount Dr. Kistler's opinions. Further, the ALJ failed to articulate clear and convincing reasons to discredit Plaintiff's statements concerning the limiting effects on the use of his hands as a result of his symptoms.

         A. Treating Source Opinions

         Here, it is undisputed that both Drs. Recalde's and Kistler's opinions constitute opinions of a treating source.

         “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant. At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for ‘clear and convincing' reasons.”[16] In addition, “‘clear and convincing reasons' are required to reject the treating doctor's ultimate conclusions. Even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for doing so.”[17] An ALJ may “discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings.”[18]

         1. Dr. Recalde

         On November 18, 2013, Dr. Recalde provided a medical record to the Social Security Administration reflecting his opinion that Plaintiff met the requirements for listed impairment 3.03 due to his asthma. (ECF No. 13-8 at 89-91.) The medical record was a checklist on which Dr. Recalde checked off boxes describing 3.03 asthma criteria that he believed applied to Plaintiff. In completing this checklist, Dr. Recalde said that Plaintiff had chronic asthmatic bronchitis with FEV1 equal to or less than the value specified corresponding to the person's height without shoes. (Id. at 90.) He also said that over the course of a 12 or more consecutive month evaluation period, Plaintiff experienced asthma attacks, in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year and hospitalized for longer than 24 hours. (Id.)

         The ALJ found, and Plaintiff's medical records rationally support the conclusion, that Plaintiff did not suffer from asthma attacks requiring physician intervention at least every two months or at least six times a year. (ECF No. 13-2 at 36.) As a result, the ALJ gave Dr. Recalde's asthma opinion less weight. (Id.) Plaintiff does not challenge this determination.

         Plaintiff does, however, challenge whether the ALJ's decision to give “no weight” to the Residual Functional Capacity Questionnaire completed by Dr. Recalde on October 31, 2013 (the same date Dr. Recalde signed the 3.03 asthma opinion discussed above) is supported by specific and legitimate reasons for doing so.[19] (ECF No. 16-1 at 20-24.) In the Questionnaire, Dr. Recalde essentially concluded that Plaintiff's physical condition was severe enough to render him disabled under the Social Security Administration regulations, concluding that Plaintiff was not capable of working an 8-hour day, 5 days a week on a sustained basis. (ECF No. 13-8 at 94-95.) As part of the Questionnaire, Dr. Recalde diagnosed Plaintiff as having three impairments: (1) central extrusion L5-S1; (2) degenerative disc disease; and (3) asthma. (Id. at 94.) When asked to “[i]dentify all of your patient's symptoms, ” Dr. Recalde said the following constituted all of Plaintiff's symptoms: pain, exertional dyspnea, and shortness of breath. (Id. (emphasis added).)

         Also within the Questionnaire, Dr. Recalde provided an “estimate” of his “patient's functional limitations if your patient were placed in a competitive work situation on an ongoing basis.” (Id.) Dr. Recalde estimated that Plaintiff would not be able to walk more than 2-2½ city blocks without rest or significant pain; would be able to sit for only 45 minutes at a time and only for 3-hours in an 8-hour workday; would be able to stand/walk for 45 minutes at a time and only for 3-hours in an 8-hour workday; would need to shift positions from sitting, standing, or walking; and would take 5-6 unscheduled 10-15 minute breaks throughout the day. (Id.) With respect to Plaintiff's ability to “lift and carry in a competitive work situation, ” Dr. Recalde estimated that Plaintiff could only lift anything weighing 20 pounds or less occasionally (less than 1/3 of the 8-hour workday) and anything over 50 pounds never. (Id. at 95.) Dr. Recalde also checked a box indicating that Plaintiff has “limitations in doing repetitive reaching, handling or fingering, ” and provided the following estimates of these limitations during an 8-hour workday: Plaintiff could use his right hand to grasp, turn, or twist objects only 30% of the workday; could use his right fingers for fine manipulation only 50% of the workday; could use his right arm for reaching only 10% of the workday; could use his left hand to grasp, turn, or twist objects only 80% of the workday; could use his left fingers for fine manipulation only 80% of the workday; and could use his left arm for reaching only 25% of the workday. (Id.) Also within the Questionnaire, Dr. Recalde provided the following estimate of how often Plaintiff is likely to be absent from work as a result of his impairments or treatments: more than four times a month. (Id.)

         Plaintiff specifically challenges whether the ALJ articulated a sufficient basis to assign “no weight” to Dr. Recalde's opinions and focuses his argument on the portions of Dr. Recalde's opinion that show Plaintiff is only capable of “occasional” handling and fingering in a competitive work situation. (ECF No. 16-1 at 20-21.) Defendant responds generally that “[t]he ALJ properly considered the medical evidence of record” and the ALJ properly discounted Dr. Recalde's opinions because the record showed he had “less insight into [Plaintiff's] condition” than the hypothetical treating physician contemplated by the Social Security Regulations, which outline the general rule that more weight should be given to the opinion of a treating source. (ECF No. 18-1 at 3-6.) More specifically, Defendant argues that the ALJ reasonably concluded that Dr. Recalde was not familiar with information in Plaintiff's records and explained that this conclusion was supported by the fact that Plaintiff's appointments were always with Dr. Recalde's physician's assistant, Bernard Casillan, and Dr. Recalde relied on patently inaccurate information about the severity of Plaintiff's asthma in issuing his 3.03 asthma opinion. (Id. at 5-6.)[20]

         The Court concludes that the ALJ articulated specific and legitimate reasons supported by substantial evidence for rejecting and offering no weight to Dr. Recalde's opinions. For example, the ALJ explained that Dr. Recalde issued an opinion about Plaintiff's asthma that was contradicted by the record - by both Plaintiff's reports and the objective evidence in the record of hospitalizations and emergency visits. (ECF No. 13-2 at 36.) The ALJ also criticized Dr. Recalde for failing to provide any test results to support his asthma opinion. (Id.) Dr. Recalde provided his asthma opinion on the same date (October 31, 2013) as the Questionnaire form containing the opinions at issue. On both forms, asthma is a diagnosis. (ECF No. 13-8 at 90-95.) The contradictions between Dr. Recalde's opinions and the record show that Dr. Recalde was not sufficiently familiar with information in Plaintiff's records and constitute specific and legitimate reasons for rejecting Dr. Recalde's opinions.

         Besides asthma, the only other diagnoses listed by Dr. Recalde on the Questionnaire were central extrusion L5-S1 and degenerative disc disease. The ALJ addressed Dr. Recalde's opinions concerning Plaintiff's functional limitations arising from these diagnoses under the heading Low Back Pain. (ECF No. 13-2 at 37-38.) The ALJ rejected Dr. Recalde's opinions, explaining: (1) Dr. Recalde's Questionnaire answers were unreliable as evidenced by the fact that he failed to give Plaintiff environmental limitations in light of his severe asthma; (2) Dr. Recalde's Questionnaire answers were unreliable because Dr. Recalde had not seen Plaintiff in months; (3) Dr. Recalde's Questionnaire answers were inconsistent with the “generally unremarkable physical examination found by consultative examiner Dr. Dao”; and (4) Plaintiff “does not have objective physical findings of ...


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