Opinion
For Tatia Calhoun, Plaintiff: Young Chul Cho, LEAD ATTORNEY, Lawrence D Rohlfing Law Offices, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Scott J Borrowman, LEAD ATTORNEY, U.S. Attorney's Office, U.S. Department of Justice, San Francisco, CA.
ORDER AFFIRMING DECISION OF COMMISSIONER
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint (" Complaint") on April 30, 2013, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Social Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on January 15, 2015. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUES
1. Whether the Administrative Law Judge (" ALJ") properly assessed plaintiff's residual functional capacity (" RFC"). (Jt. Stip. 5-15.)
2. Whether the ALJ properly evaluated the opinion of treating physician Sam Bakshian, M.D. (" Dr. Bakshian"). (Jt. Stip. 15-21.)
DISCUSSION
I. Reversal is not warranted based on the ALJ's evaluation of the medical evidence .
In Disputed Issues One and Two, plaintiff makes two interconnected arguments. Accordingly, the Court addresses them collectively.
In Disputed Issue One, plaintiff contends that the ALJ's RFC determination is not supported by substantial evidence. (Jt. Stip. 5.) In particular, plaintiff argues that while the ALJ relied on the opinion of examining physician Kristof Siciarz, M.D. (" Dr. Siciarz"), which was provided on August 12, 2010, the ALJ " conceded that [plaintiff] suffered . . . additional impairment[s]" of " degenerative disc disease of the lumbar spine as of December 2012, " " a new injury to her left knee, which is the meniscal tear, as of December 2012, " and " a medial meniscal tear in her right knee as of May 2011." (Jt. Stip. 6-7.) Plaintiff also maintains that " [a]s to where the ALJ observed [plaintiff's] wrist pain as a sprain, and as to where Dr. Siciarz did not consider it significant, the objective evidence demonstrates the diagnosis of carpal tunnel syndrome, " and " [a]s to where Dr. Siziarz observed no difficulty in [plaintiff's] feet, subsequent examination confirmed calcaneal spurs that cause severe tenderness to palpation." (Jt. Stip. 7.)
In Disputed Issue Two, plaintiff asserts the ALJ " failed to articulate specific and legitimate reasons for rejecting Dr. Bakshian's opinions." (Jt. Stip. 18.)
In evaluating medical opinions, the Ninth Circuit distinguishes among three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (as amended), " [t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § § 404.1527(d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for " clear and convincing" reasons. Lester, 81 F.3d at 830. Where, as in this case, the treating physician's opinion is contradicted, it may not be rejected without " specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
On August 12, 2010, Dr. Siciarz performed an internal medicine evaluation of plaintiff. (AR 668-73.) Based on a limited review of the medical records, an interview of plaintiff, and a physical examination, Dr. Siciarz diagnosed plaintiff with severe obesity, bilateral knee pain, chronic joint pains, and noted a history of multiple falls. (AR 672.) Dr. Siciarz opined plaintiff can lift or carry 20 pounds occasionally, lift or carry 10 pounds frequently, can stand/walk six hours cumulatively in an eight-hour day, and can sit six hours cumulatively in an eight-hour day. (Id.) Dr. Siciarz found plaintiff can occasionally climb, stoop, kneel, and crouch. (Id.)
From 2011 though 2013, Dr. Bakshian treated plaintiff in connection with work-related injuries she suffered from a fall when she was employed as an administrative assistant. (See AR 1633-1729.) On April 1, 2011, Dr. Bakshian completed a Primary Treating Physician's Initial Orthopedic Evaluation Report and Medical Record Review. (AR 1633-48.) After a review of plaintiff's medical records and a physical examination, Dr. Bakshian recommended that plaintiff seek evaluation and treatment with a pain management specialist, an internist for a weight loss program, a rheumatologist, and orthopedic extremity specialist for her left wrist, bilateral knees, and bilateral foot and ankle pain, and a physical therapist for a functional capacity evaluation. (AR 1647.) Dr. Bakshian also requested authorization for an MRI of plaintiff's knees. (Id.) On March 28, 2012, Dr. Bakshian completed a Primary Treating Physician's Progress Report. (AR 1679-81.) In his report, Dr. Bakshian diagnosed plaintiff with back pain with radiation, bilateral knee pain, bilateral foot and ankle pain, right wrist sprain, chronic pain syndrome, morbid obesity, hypertension, neuropathic complaints, plantar fasciitis, and major depressive episode with panic disorder with psychologic factors. (AR 1680.) Throughout his treatment, Dr. Bakshian found plaintiff's work status to be " temporary totally disab[led]." (See, e.g., AR 1647, AR 1653, AR 1660, AR 1662, AR 1666.)
In his June 25, 2014 opinion, the ALJ did not assign " significant weight" to Dr. Bakshian's opinion and adopted Dr. Siciarz's opinion in formulating plaintiff's RFC. (AR 23, AR 34-35.) The Court concludes the ALJ properly evaluated the medical opinions.
First, the ALJ properly gave limited weight to Dr. Bakshian's opinion because it " was not given in a context that demonstrates understanding of Social Security disability programs" and instead was given in the workers' compensation context. (AR 35); see Booth v. Barnhart, 181 F.Supp.2d 1099, 1104 (C.D. Cal. 2002) (" Workers' compensation disability ratings are not controlling in disability cases decided under the Social Security Act, and the terms of art used in the California workers' compensation guidelines are not equivalent to Social Security disability terminology."). In particular, the ALJ was entitled to reject Dr. Bakshian's opinion that plaintiff was " temporarily totally disab[led]." (See, e.g., AR 1647); see Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (" Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability."); 20 C.F.R. § § 404.1527(e)(1) (" We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . 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.") & 416.927(e)(1) (same).
Further, plaintiff complains that even though an opinion rendered in a workers' compensation case is not binding on an ALJ, he " must still consider" it. (Jt. Stip. 20-21.) But, the ALJ clearly did so, and plaintiff does not cite to any other portion of Dr. Bakshian's opinion, i.e., any further restrictions, which were improperly rejected by the ALJ. (See generally Jt. Stip. 15-21); see Brown v. Colvin, 2015 WL 382398, at *6 (C.D. Cal. June 19, 2015) (finding ALJ properly rejected treating physician's opinion that plaintiff was " temporarily totally disabled" and properly evaluated the rest of treating physician's opinion, which was provided in a workers' compensation context).
Moreover, plaintiff argues that although Dr. Bakshian did not provide a specific opinion " based on what [plaintiff] could or could not do, " the ALJ " can also try to recontact the treating doctor for clarification." (Jt. Stip. 21.) The Court does not agree. An ALJ's duty to augment an existing record is triggered " only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (as amended) (citation omitted). Here, the Court is not persuaded that the evidence in the record was unclear or inadequate such that it triggered the ALJ's duty to develop the record.
Second, Dr. Bakshian indicated that he " ha[d] read and reviewed the opinions of [physician Roger S. Sohn, M.D. (" Dr. Sohn")], the [Agreed Medical Examiner] in orthopedics in this matter" and stated that he " tend[s] to concur with his findings." (AR 1647.) On June 28, 2012, Dr. Sohn completed an Agreed Medical Examiner's Supplemental Report, and concluded that he had " substantial doubts as to the validity of [plaintiff's] complaints of chronic pain." (AR 1144, AR 1161.) While Dr. Sohn had periodically examined plaintiff since 2000 in relation to her workers' compensation claim, (see AR 1183), and had " felt she was a chronic pain patient, " (AR 1160), after review of a sub rosa video showing plaintiff " to be bowling" and " doing quite well, " (id.), Dr. Sohn stated that " her activities are inconsistent with her assertions of chronic pain" and reported that he has " very substantial problems with [plaintiff] and her complaints based on her severe chronic complaints of pain and the sub rosa video that would seem to be very substantial medical evidence to contradict her assertions of chronic pain." (AR 1161.) Accordingly, as Dr. Sohn concluded that his own opinion regarding plaintiff's significant limitations was undermined by the sub rosa video, Dr. Bakshian's opinion was equally undermined by the same evidence.
Third, the ALJ properly relied on Dr. Siciarz's opinion. (See AR 34.) As discussed above, Dr. Siciarz completed an internal medicine evaluation of plaintiff. (See AR 668-73.) This opinion constitutes substantial evidence supporting the ALJ's decision. Tonapetyanalso v. Halter, 242 F.3d 1144 (9th Cir. 2001) (consultative examiner's opinion on its own constituted substantial evidence, because it rested on independent examination of claimant).
Plaintiff argues that " by relying on Dr. Siciarz, the ALJ necessarily has relied on a physician who has not considered the numerous other impairments that the ALJ himself found severe, i.e., causing significant impact on [plaintiff's] ability to work." (Jt. Stip. 8.) The Court is not persuaded. Although the ALJ relied on Dr. Siciarz's opinion, but also found that plaintiff suffered from new " conditions" documented after the date Dr. Siciarz performed his evaluation, the ALJ properly considered the new impairments and determined that they did not create any further limitations. (See AR 13-14.) For example, the ALJ noted that plaintiff underwent right knee surgery on July 23, 2012, and initially was " recommended a cane, but by September 2012, [her treating physician] did not." (Id.; see also AR 1095 (treatment note, dated September 10, 2012, recommending physiotherapy to strengthen plaintiff's right knee), AR 1096 (treatment note, dated July 30, 2012, recommending physiotherapy, bilateral ankle braces, use of a cane with right hand, and suture removal).) More importantly, plaintiff points to no other opinion, treating or otherwise, more recent than the one provided by Dr. Siciarz, offering a more restrictive RFC assessment than the one determined by the ALJ. (See generally Jt. Stip. 5-15.)
Thus, Disputed Issues One and Two do not warrant reversal of the Commissioner's decision.
ORDER
IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice.
JUDGMENT
In accordance with the Order Affirming Decision of Commissioner filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is affirmed and this action is dismissed with prejudice.