Opinion
NO. EDCV 14-1740 AGR
05-06-2015
ROXANNE ROJAS, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff Roxanne Rojas filed this action on September 2, 2014. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 9, 10.) On March 5, 2015, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument.
Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for reconsideration of Dr. Richards' opinion for the period beginning October 19, 2011.
I.
PROCEDURAL BACKGROUND
On July 14, 2011, Rojas filed applications for disability insurance benefits and supplemental security income, alleging an onset date of June 23, 2010. Administrative Record ("AR") 9, 159-73. The applications were denied initially and on reconsideration. AR 9, 75-76, 97-100. Rojas requested a hearing before an Administrative Law Judge ("ALJ"). AR 116-18. On January 30, 2013, the ALJ conducted a hearing at which Rojas and a vocational expert testified. AR 26-56. On February 14, 2013, the ALJ issued a decision denying benefits. AR 9-21. On July 25, 2014, the Appeals Council denied the request for review. AR 1-3. This action followed.
II.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"Substantial evidence" means "more than a mere scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
III.
DISCUSSION
A. Disability
A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003).
B. The ALJ's Findings
Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006), the ALJ found that Rojas has the severe impairments of degenerative disc disease in the lumbosacral spine, orthostatic hypotension, history of myocardial infarct status post triple bypass, chronic congestive heart failure, coronary arteriosclerosis, diabetes mellitus, diabetic autonomic neuropathy, hypertension, and obesity. AR 11. Rojas has the residual functional capacity to perform sedentary work, except she can occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds; can occasionally balance, stoop, kneel, crouch, and crawl; should avoid working around heavy machinery or unprotected heights; should avoid concentrated exposure to temperature extremes of hot and cold; and requires the use of a cane for ambulation if walking away from the workstation. AR 13. Rojas is capable of performing past relevant work as a receptionist and customer complaint clerk. AR 20.
The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant's impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114.
C. Treating Physicians
Rojas contends the ALJ erred in evaluating the opinions of Dr. Fitzmorris and Dr. Richards, her treating physicians.
An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a medically acceptable treating source, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Orn, 495 F.3d at 632 (citations and quotation marks omitted). "When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002).
1. Dr. Fitzmorris
The record contains a one-page memorandum on Arrowhead Regional Medical Center letterhead dated January 28, 2013 and signed by Dr. Fitzmorris, a cardiologist. AR 417. In its entirety, the memorandum reads:
Mrs. Rojas has severe exercise limitation due to her coronary artery disease. She is unable to walk on the treadmill for more than a minute at a time. She has perfusion abnormalities even after bypass surgery and is completely disabled because of her heart disease.Id.
A treating physician's opinion as to the ultimate determination of disability is not binding on an ALJ. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011); 20 C.F.R. § 404.1527(d)(1) ("A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."). The existence of disability "is an administrative determination of how an impairment, in relation to education, age, technological, economic, and social factors, affects ability to engage in gainful activity" and is reserved to the Commissioner. McLeod, 640 F.3d at 885.
The ALJ gave Dr. Fitzmorris' opinion "no weight" because it was conclusory and inadequately supported by clinical findings, and was inconsistent with the objective medical evidence as a whole. AR 19.
The ALJ correctly found that Dr. Fitzmorris did not cite clinical testing or findings to support his opinion. AR 417. An ALJ may reject a treating physician's opinion that is conclusory and inadequately supported by clinical findings. Bray v. Comm'r, 554 F.3d 1219, 1228 (9th Cir. 2009); Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004). The treatment notes from Arrowhead Regional Medical Center Cardiac Clinic do not support Dr. Fitzmorris' opinion. AR 246-332, 398-416. As the ALJ noted, the treatment notes indicate Rojas' hypertension was stable and diabetes was under fair control in September 2010. AR 16, 286, 288. Rojas reported fatigue and numbness/tingling, but had good exercise tolerance and no chest pressure or shortness of breath. The physical examination findings were unremarkable. AR 16, 286, 288. In October 2010, Rojas reported residual parasthesia, without syncope, and indicated she walks 30 minutes. AR 16, 284. In November 2010, an echocardiogram included an ejection fraction of 36.7 percent, normal mitral valve function, normal tricuspid valve function, moderately decreased left ventricular ejection fraction, dyskinetic apical wall, akinetic septal wall, and diastolic dysfunction. AR 16, 281-82. In December 2010, Rojas was doing "generally well" and had returned to work after bypass surgery. AR 16, 276. She could walk approximately 30 minutes without excessive fatigue or symptoms, had no chest pain, orthopnea, or paroxysmal nocturnal dyspnea. AR 16, 276. In June 2011, Rojas reported she was doing well, with occasional lightheadedness and fatigue. AR 17, 249. She could walk approximately one mile a day, and denied chest pain or shortness of breath. AR 17, 250. In March 2011, x-rays of the lumbar spine indicated degenerative facet hypertrophy and sclerosis, with no acute fracture or subluxation of the lumbar spine, and minimal anterior subluxation of the coccyx. AR 17, 255. In July 2011, an echocardiogram included an ejection fraction of 45 percent, mild left ventricular hypertrophy, mildly decreased left ventricular ejection fraction, apical dyskinesis and LV distal inferoseptal akinesis and thinning, mildly dilated left ventricle, and diastolic dysfunction. AR 17, 246-47. The ALJ could reasonably conclude that Dr. Fitzmorris' opinion was conclusory and inadequately supported by clinical findings.
Given the lack of supporting-testing or findings, the ALJ could reasonably infer that Dr. Fitzmorris' opinion reflected Rojas' subjective complaints. An ALJ may draw reasonable inferences logically flowing from the record. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
The ALJ could reasonably conclude that Dr. Fitzmorris' opinion was inconsistent with the medical evidence as a whole. AR 19. Rojas was admitted to Arrowhead Regional Medical Center on June 23, 2010 for five days for shortness of breath and dry cough. AR 16, 299. Catherterization by Dr. Fitzmorris revealed triple-vessel coronary artery disease. AR 16, 299, 329, 331. On June 28, 2010, Rojas was transferred to Loma Linda University Medical Center for coronary bypass surgery. AR 16, 299-300. The Loma Linda treatment notes indicate that on July 29, 2010, Rojas had an abnormal echocardiogram, with possible left ventricle enlargement, left ventricle hypertrophy, and ST and T wave abnormality. AR 16, 240. The July and August 2010 treatment records indicate findings of erythema to the left leg, low blood sugar at times, and low blood pressure at times. AR 16, 237, 242, 245. The Arrowhead Westside Clinic treatment notes document Rojas' treatment between November 2010 and October 2012. AR 17, 338-49, 363-96. In November 2010, Rojas was doing well after the triple bypass surgery, with the most recent echocardiogram showing improvement. AR 17, 387. Rojas reported she had "tingling" all over her body, but had no chest pain and could walk long distances without shortness of breath. AR 17, 388. At subsequent visits, Rojas continued to deny chest pain, PND, and/or shortness of breath, with the exception of a December 2011 treatment record that indicates "possibly" shortness of breath. AR 17, 338, 343, 372, 374. In May 2012, Rojas reported to a consultative examiner that she exercised 30 to 45 minutes a day, including walking, and did a little cooking, cleaning, shopping, laundry, and occasional driving. AR 15, 350-51. In June 2012, treatment notes indicate Rojas denied chest pressure or shortness of breath. AR 15, 372.
At the hearing, Rojas did not recall reporting such information to the consultative examiner. AR 15, 48-50.
Rojas argues that the ALJ should have recontacted Dr. Fitzmorris for clarification of his opinion and/or for additional evidence. Rejection of a treating physician's opinion does not by itself trigger a duty to contact the physician for further explanation. McLeod, 640 F.3d at 885. The ALJ made no finding that the evidence was ambiguous or that the record was inadequate to allow for proper evaluation. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) ("An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."). Therefore, the ALJ did not have a duty to recontact Dr. Fitzmorris.
The ALJ articulated specific and legitimate reasons, supported by substantial evidence in the record, for rejecting Dr. Fitzmorris' opinion. The ALJ did not err.
2. Dr. Richards
Dr. Richards, Plaintiff's primary care physician, prepared a Medical Opinion Re: Ability To Do Work-Related Activities (Physical) form dated August 23, 2012. AR 359-61.
Dr. Richards indicated Rojas could lift and carry less than ten pounds occasionally and frequently, could stand and walk less than two hours in an eight- hour day, and could sit for an unlimited amount of time. AR 359. Rojas would sometimes need to lie down at unpredictable intervals during a work shift. In support of these limitations, Dr. Richards cited "orthostatic hypotension: blood pressure falls when patient stands/walks." AR 360.
Dr. Richards further indicated that Rojas could frequently twist, and never stoop, crouch, or climb stairs or ladders. Rojas was not precluded from handling or fingering. In support of these limitations, Dr. Richards stated that Rojas "has poor sense of feel in legs/feet" and "cannot do any sort of heavy or aerobic work." Id. She described her findings in support of Rojas' reaching, feeling, and pushing/pulling limitations as peripheral neuropathy and severe shortness of breath with muscle activity. Id.
Dr. Richards indicated that Rojas should avoid all exposure to extreme heat and hazards such as machinery and heights, avoid moderate exposure to extreme cold, and avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. AR 361. She described her findings in support of the environmental restrictions as: "Extremes of temperature may cause blood pressure to fall and cause fainting. Irritation of airway will cause increased shortness of breath." Id.
Dr. Richards opined that Rojas would be absent from work about once a month due to her impairments or treatment. Id.
The ALJ gave "no weight" to Dr. Richards' opinion, finding it inadequately supported by clinical findings. AR 19-20. The ALJ may properly discount a treating physician's opinion that is not supported by treatment records. See Bayliss, 427 F.3d at 1216; Thomas, 278 F.3d at 957.
The ALJ noted that Dr. Richards assessed functional limitations that would preclude Rojas from working at a level of substantial gainful activity. The ALJ found that opinion to be inconsistent with Dr. Richards' own treatment records that show "relatively minimal positive objective clinical and diagnostic findings." AR 20. The record contains Dr. Richards' treatment records from Arrowhead Westside Clinic between November 2010 through October 2012. AR 17, 338-49, 363-96. As noted above, Rojas was noted to be doing well after triple bypass surgery and denied chest pain, PND or shortness of breath, with the exception of a December 2011 treatment record that indicates "possibly" shortness of breath. AR 17, 338, 343, 372, 374, 387. On subsequent office visits, either no neurological findings were documented or Rojas was generally noted to be neurologically within normal limits. AR 17, 341, 345, 347, 349, 372, 374, 390, 392, 394.
However, in May 2011, Rojas reported that she fell and hit her head several weeks prior and had dizziness that was getting better. She reported feeling fatigue. AR 17, 394. In October 2011, Dr. Richards noted (1) a positive stress test with ejection fraction of 48% with stress and 55% at rest; (2) orthostatic dizziness exacerbated by heat and eating, probably secondary to autonomic neuropathy, and significant peripheral neuropathy (for which Rojas was prescribed medication and Jobst stockings; and (3) diabetic peripheral neuropathy and difficulty with "position sense" and closing eyes in the shower. AR 17, 338. The ALJ noted that Rojas' standing and sitting blood pressure was consistent with orthostatic hypotension. AR 17, 338-39, 349, 390, 394. In December 2011, Rojas felt tired with minimal activity and complained that she had been turned down by SSI. AR 343. In February 2012, Rojas continued to feel weak. AR 345. In March 2012, Rojas reported she was less dizzy on the whole. AR 17, 347. Her orthostatic hypotension was less with medication. AR 346. In April 2012, Rojas reported that she had spells of "sickness" feeling weak and dizzy when up and walking about, which required lying down. AR 17, 349. She reported that the Jobst stockings worsened her symptoms. AR 17, 349. In August 2012, Rojas complained of dyspnea on exertion, easy fatigue, dizziness, and light-headedness, worse in hot weather. AR 17, 367. Rojas went to cardiac rehabilitation but "looked sick that day so was rescheduled." AR 367. Rojas felt the room was spinning; meclizine "perhaps helps a bit." AR 17, 367. In October 2012, Rojas reported difficulty going shopping or walking in the neighborhood due to getting light-headed. Dr. Richards requested authorization for a walker with a seat at Rojas' request. AR 17, 20, 365, 425-26. The ALJ noted that "there were no significant positive objective findings" from the October 2012 appointment when Rojas requested a walker with a seat. AR 20.
Dr. Richards noted that it was unclear if the medication would be helpful "cardiac wise." AR 339. Ultimately, that medication was not used. AR 342.
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It is the ALJ's province to resolve conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). However, the ALJ's conclusion that Dr. Richards' records reflect minimal positive objective findings is not supported by substantial evidence for the period beginning October 19, 2011.
IV.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of Dr. Richards' opinion for the period beginning October 19, 2011.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel. DATED: May 6, 2015
/s/_________
ALICIA G. ROSENBERG
United States Magistrate Judge