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Gutierrez v. Commissioner of Social Security

United States District Court, E.D. California

October 11, 2019

VIRGINIA GUTIERREZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

         This matter is before the Court on Plaintiff's complaint for judicial review of an unfavorable decision by the Commissioner of the Social Security Administration regarding her application for Disability Insurance Benefits and Supplemental Security Income. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 8).

         At a hearing on October 10, 2019, the Court heard from the parties and, having reviewed the record, administrative transcript, the briefs of the parties, and the applicable law, finds as follows:

         I. Whether the ALJ Erred in Weighing the Opinion of the Consultative Examiner

         Plaintiff first challenges the ALJ's decision on the basis that “the ALJ erred by relying on the unsupported, unexplained opinion of a non-examining expert, rather than the well-supported opinion of the consultative examiner, who opined Plaintiff does not have the ability to sustain an 8-hour workday.” (ECF No. 14, at p. 1).

         In weighing medical source opinions in Social Security cases, there are three categories of physicians: (i) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that are supported by substantial evidence for rejecting the uncontradicted opinion of a treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician's opinion in favor of another physician's opinion without first providing specific and legitimate reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a whole); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding it not improper for an ALJ to reject a treating physician's opinion that is inconsistent with the record).

         Here, the ALJ discussed the examining consulting physician, Dr. Damania's, opinion in two places. In the context of the step two analysis to determine whether Plaintiff has any medically determinable impairments that are severe, the ALJ stated as follows:

On August 31, 2016, the claimant identified herself to consultative internist Rustom Damania, M.D. by displaying her California driver's license. The claimant contended that she could not stand for more than a half an hour due to low back pain, and her grip strength measurements were only 5 lbs. with her right hand and no weight at all with her left hand. However, the examination itself had found normal motor strength with good musculoskeletal range of motion, grossly intact sensation, and equal reflexes. Based then apparently on a combination of the examination findings and the claimant's subjective complaints, Dr. Damania assessed the claimant with Cushing's Syndrome, status-post pituitary adenoma post-surgery, osteoporosis, lumbar stenosis, old fractures of the vertebrae, possible cirrhosis/liver problem from longstanding fatty liver, fatigue, and fibromyalgia. Ex. 12F. The undersigned notes that osteopenia is the claimant's diagnosed condition, and not the more severe, osteoporosis. Further, as explained above, there is insufficient medical evidence to support a clinical diagnosis of fibromyalgia. In addition, radiographs have shown only “mild” central canal stenosis at once disc space level and without nerve root compression or impingement, and Dr. [] Damania did not question the discrepancy between the claimant's nearly absent grip strength results and her normal and full signs of muscle strength on examination. Dr. Damania even adds a finding of “visual limitations” for the claimant, Exh. 12F, without considering that she had displayed a driver's license as ID.

(A.R. 35). Additionally, the ALJ stated as follows regarding Dr. Damania's opinion in the context of step four, regarding Plaintiff's residual functional capacity:[1]

Less reliance is accorded to the consultative physician's RFC . . . because some of these specific limitations such as a restriction to sitting for less than 4 hours total in an 8-hour workday have no medical foundation in the record. Therefore, like the reference to the claimant's visual limitations, this limitation appears to have been disproportionately based on the claimant's subjective complaints without objective medical or clinical findings in the record or consulting examination for objective support.

(A.R. 36).

         As discussed at the hearing, while Dr. Damania examined Plaintiff, the findings from the examination were mostly normal. The critical limitations that “[t]he claimant can stand and walk less than four hours out of an eight hour work day” and “[t]he claimant can sit less than four hours out of an eight hour work day, ” do not appear based on the examination itself. Thus, the additional weight accorded an examining physician has less relevance here. With this in mind, and given that the ALJ's opinion was supported by the non-examining consultative examiner, the Court finds that the ALJ's reasons for the weight given to Dr. Damania's opinion were legally sufficient.

         II. The ALJ's Treatment of Plaintiff's Subjective Symptom Testimony

         Plaintiff next claims the “ALJ failed to include work-related limitations in the RFC consistent with the nature and intensity of Ms. Gutierrez's symptoms, and failed to offer any reason for discounting her symptoms of fatigue.” (ECF No. 14, at p. 1).

         As to subjective testimony, the Ninth Circuit has summarized the ALJ's task with respect to assessing a ...


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