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Nicolas G. v. Saul

United States District Court, C.D. California

December 3, 2019

NICOLAS G., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security,[1] Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Nicolas G. (“Plaintiff”) applied for Social Security disability benefits in January 2015 alleging disability commencing on June 19, 2010, due to carpal tunnel syndrome (“CTS”) and pain in both wrists, right wrist surgery, a neck injury, and numbness in his left hand. Administrative Record (“AR”) 269, 323. On October 3, 2017, an Administrative Law Judge (“ALJ”) conducted a hearing at which Plaintiff, who was represented by an attorney, appeared and testified, as did a vocational expert (“VE”). AR 53-87. On December 15, 2017, the ALJ issued an unfavorable decision. AR 33-46. The ALJ found that Plaintiff suffered from the severe impairments of “bilateral carpal tunnel syndrome, neuropathy, depression, anxiety, and polysubstance abuse.” AR 39. The ALJ concluded that despite these impairments, Plaintiff had a residual functional capacity (“RFC”) to perform less-than-light work (including lifting 20 pound occasionally and 10 pounds frequently) with, as relevant to this appeal, the following additional limitations on the use of his hands: “He cannot perform constant or repetitive forceful gripping or torqueing with his bilateral upper extremities. He can occasionally perform fine finger manipulation with his bilateral upper extremities.” AR 41.

         Based on this RFC and the VE's testimony, the ALJ found that Plaintiff could not perform his past relevant work as a landscape laborer, but he could work as a housekeeping cleaner (Dictionary of Occupational Titles [“DOT”] 323.687-014) and an automatic car wash attendant (DOT 915.667-010). AR 45-46. The ALJ concluded that Plaintiff was not disabled. AR 46.

         II. ISSUE PRESENTED

         This appeal presents the sole issue of whether the ALJ gave specific and legitimate reasons for discounting the opinions of Plaintiff's treating physician, Dr. Rosa Cortes. (Dkt. 18, Joint Stipulation [“JS”] at 4.)

         III. STANDARD OF REVIEW

         Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the district court “must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or reversing, ” the reviewing court “may not substitute its judgment” for that of the Commissioner. Id. at 720-21.

         In deciding how to resolve conflicts between medical opinions, the ALJ must consider that there are three types of physicians who may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician's opinion is generally entitled to more weight than that of an examining physician, which is generally entitled to more weight than that of a non-examining physician. Id. If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing” reasons. Id. The ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion or an examining physician's opinion in favor of a non-examining physician's opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).[2]

         Here, the opinions in the “Medical Source Statement” by Dr. Cortes (AR 509-11) were contradicted by the opinions of consultative examining physician Dr. Bernabe (see AR 463-67), meaning that the dispositive question is whether the ALJ gave “specific, legitimate reasons” for discounting Dr. Cortes's opinions.

         IV. SUMMARY OF RELEVANT EVIDENCE

         Plaintiff was born in 1970. AR 457. In the last 15 years before the hearing, he had not held a full-time job. AR 63. In 2008, he worked as a cook and dishwasher at Frazee Community Center. AR 408; see also AR 64, 520. At the time of the October 2017 hearing, his most recent work involved landscaping 3 days/week. AR 63. While his records showed income in 2012 and 2013, he testified that he had not worked even part-time since 2010. AR 63-64. He was, however, frequently using marijuana and methamphetamine. AR 61-63. He had a driver's license and still drove occasionally. AR 60, 469.

         A. Medical Records from 2010-2013.

         In the summer of 2010, Plaintiff underwent a nerve conduction study which led to a diagnosis of bilateral CTS. AR 512. Plaintiff testified that he had surgery on his right hand in 2010 for CTS. AR 65. A January 2014 progress note from Dr. Cortes recounting Plaintiffs medical history gives the date of this surgery as March 28, 2011. AR 484. The AR contains no other records about this surgery.

         In July 2010, Dr. Cortes completed a “Certificate of Disability” indicating that Plaintiff was disabled from July 7, 2010, through September 6, 2010, but she opined that he could return to work on September 7, 2010. AR 446.

         In September 2010, Dr. Cortes completed another check-the-box form indicating that Plaintiffs condition began in November 2009, that he had “a medically verifiable condition that would limit or prevent him/her from performing certain tasks, ” and that he was unable to work. AR 447. Somewhat paradoxically, she also indicated that he did not “have any limitations that affect his/her ability to work or participate in education or training.” Id She repeated this opinion in October 2010. AR 449.

         The administrative record does not contain other medical records for the years 2010-2013. As discussed below, some later records mention past referrals for physical therapy (AR 484) and occupational therapy (AR 518), but Plaintiff provided no such therapy records.

         B. Medical Records from 2014.

         On January 9, 2014, Plaintiff saw Dr. Cortes to “follow up” on “hand pain.” AR 484. He reported pain at level “5” in both of his “hands.” Id Dr. Cortes noted that he had gone to physical therapy after his 2011 surgery, but therapy ...


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