KAREN E. SCOTT, Magistrate Judge.
Celia C. ("Plaintiff") was born in 1958 outside of the United States. Administrative Record ("AR") 75, 229. She completed the second grade in 1966. AR 265. She came to the United States at age 14; she became a naturalized citizen, but she did not pursue school and never became proficient in English. AR 74-75. Between 1997 and 2007, she worked as an inspector for a supplement manufacturer, a retail laborer at Target, a newspaper stuffer, and a school janitor. AR 78-79, 265.
During her last job as a school janitor, she developed back pain. AR 81. It worsened over three years until she had surgery on her right shoulder in 2010. AR 81-82, 700. Five months after her surgery, she returned to work and continued to work as a janitor, although she may have had a second shoulder surgery in 2011. AR 82, 90. When a doctor involved with her workers' compensation claim told her that she should not do work that required lifting more than five pounds, she asked her supervisor if she could be reassigned to a security guard position. AR 83. The supervisor declined the reassignment because of Plaintiff's limited English.
In May 2013, Plaintiff filed an application for disability insurance benefits ("DIB") alleging a disability onset date of May 18, 2012, the same day she says she stopped working. AR 264. Plaintiff initially identified her disabling conditions as injuries to her back and shoulder.
On January 27, 2016, an Administrative Law Judge ("ALJ") conducted a hearing at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE"). AR 68-100.
On February 12, 2016, the ALJ issued a decision denying Plaintiff's application. AR 23-41. The ALJ found that Plaintiff suffered from the medically determinable impairments of "right shoulder arthropathy (status post rotator cuff repair) and depressive disorder." AR 28. Despite these impairments, the ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform a reduced range of medium work limited to "simple routine tasks and simple work-related decisions." AR 30.
Based on this RFC and the VE's testimony, the ALJ determined that Plaintiff could perform her past relevant work as a store laborer, which the Dictionary of Occupational Titles ("DOT") classifies as medium, unskilled work. AR 35. The ALJ concluded that Plaintiff was not disabled. AR 35-36.
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);
"A decision of the ALJ will not be reversed for errors that are harmless."
After the ALJ's adverse decision, and as is relevant here, Plaintiff submitted the following proposed new exhibits to the Appeals Council: (1) Treatment records from the San Fernando Mental Health Center ("SFMHC") dating from November 2014 through January 2015 (AR 764-67); (2) a mental disorder questionnaire completed by SFMHC psychiatrist Dr. George Sabounjian in May 2017 (AR 754-57); and (3) a Psychiatric Medical Source Statement, also completed by Dr. Sabounjian in May 2017 (AR 758-62).
The 2014-2015 SFMHC records include (1) an individual service progress note by psychologist Nancy Chandler dated November 6, 2014, referring Plaintiff for a medical evaluation with Dr. Gregory Doane (AR 766), (2) a medication progress service note ("MPSN") from Dr. Doane dated November 6, 2014, indicating that Plaintiff "agreed to trial of Zoloft for depression" (AR 765); (3) a MPSN from Dr. Shanthi Keshava dated January 7, 2015, discontinuing Zoloft due to side effects and prescribing Celexa (AR 764); and (4) a letter dated May 5, 2017, from psychiatrist Dr. Ryan Horst verifying that Plaintiff is a client of SFMHC who was first seen by Dr. Horst on January 21, 2015 for medication support services due to a diagnosis of major depressive disorder
The Appeals Council also declined to consider or make Dr. Sabounjian's new records part of the AR, reasoning that they did not relate to the relevant time before the ALJ's decision.
The Appeals Council declined to make the relevant records part of the administrative record.
To be material, the new evidence must bear "directly and substantially on the matter in dispute."
"To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable earlier."
Plaintiff argues that Dr. Sabounjian's new records are material to the relevant time because they "relate to [Plaintiff's] conditions, treatment, symptoms and limitations that were present on or before the ALJ's decision." (JS at 5.)
The mental impairment questionnaire indicates that Plaintiff has been a client at SFMHC from December 2014 through May 2017, but it does not state when Dr. Sabounjian treated Plaintiff. AR 754. Dr. Sabounjian wrote that Plaintiff "started group therapy and medication three years ago" (i.e., in 2014), but she is "very tearful in groups" and "continues to not be motivated."
These opinions sound quite different from the evidence before the ALJ. Plaintiff did not describe isolation from family. Plaintiff testified that she went grocery shopping with her adult daughter weekly and lived with her adult son. AR 74, 76, 289. Her children helped support her. AR 77. Her sister would bring her food, invite her over for meals, and help with house cleaning. AR 87, 289. She also visited her nieces and spent time with her grandson. AR 87, 288. Her family submitted letters in support of her DIB application. AR 318-19, 321-23.
Far from not bathing or leaving the house, at the time of the 2016 hearing Plaintiff was enrolled in an English as a Second Language ("ESL") class at a local college, because "I don't have anything to do at home, and I want to learn how to write and read English." AR 76, 88. Plaintiff started taking ESL classes in 2014. AR 320. On a daily basis, she went to school two or four hours. AR 76. While sometimes she did not want to go to class, she attended enough to pass from the first year to the second. AR 89-90. She drove herself to class. AR 87. On an average day in 2013, she would groom herself and take a short walk to the public park which "relaxes [her] and helps [her] feel fit." AR 288. On an average night, she would sleep six hours. AR 290.
Based on the wording of the questionnaire, the ambiguity concerning when Dr. Sabounjian (as opposed to the other doctors at SFMHC) treated Plaintiff, and the significant differences between Dr. Sabounjian's assessment of Plaintiff's depression-related functional limitations and Plaintiff's own reported activities at or before the disability hearing, the Court agrees that the questionnaire does not relate to the relevant time. Thus, by definition, this questionnaire is immaterial.
In contrast, Dr. Sabounjian's medical source statement is expressly retrospective. He opined that the functional limitations he described were "reasonably consistent" over three years of treatment, i.e., from 2014-2017. AR 762. While this means that the medical source statement relates to the relevant time, per the above-cited authorities, the statement is only "material" if there is a reasonable possibility that it would have changed the outcome.
There is no reasonable possibility that Dr. Sabounjian's medical source statement would have changed the outcome for several reasons. First, it is internally inconsistent, rendering it unreliable. For example, he opined that Plaintiff has an "extreme" limitation interacting with others, but also opined that she could interact with co-workers 70% of the time. AR 758, 761. He first opined that Plaintiff would likely not report for work because she "walks away from group therapy and activities," but then opined that she would miss work due to "poor memory." AR 760-61. At the same time, he acknowledged that she reliably attended medical appointments. AR 761. The medical source statement is also inconsistent with the questionnaire he signed on the same day.
Second, the medical source statement is inconsistent with SFMHC's treating records generated during the relevant period. At Plaintiff's intake assessment, she denied suicidal ideation. AR 725. None of the subsequent progress notes report suicidal thoughts or consider Plaintiff a danger to herself; most expressly disclaim such findings. AR 722-45 (compare AR 758 [Dr. Sabounjian opining that Plaintiff has thoughts of death or suicide].) Dr. Sabounjian found her "moderately" limited at understanding, remembering, and executing simple, 1- or 2-step instructions, and that this functional limitation had been consistently present over three years. AR 758, 760. In contrast, Plaintiff told the SFMHC staff, "I don't want my [crying spells] to interfere with the ability to focus at school so that's why I am asking for help." AR 728. They discussed practicing positive self-affirmations and journaling.
Third, Dr. Sabounjian's medical source statement is inconsistent with Plaintiff's reported activities. As discussed above, Plaintiff was able to drive herself to daily ESL classes, go out in public to shop and visit the park, and interact frequently with family members. This is inconsistent with his opinion of an "extreme" limitation interacting with others and an inability to do even simple tasks.
Fourth, the treating records from SFMHC do not mention Dr. Sabounjian. AR 722-45, 764-68. It is unclear what treating relationship he had with Plaintiff or when. His observations discuss Plaintiff's participation in group therapy, so perhaps he was a group facilitator. The fact remains, however, that the AR does not contain a single record documenting a treating appointment between Plaintiff and Dr. Sabounjian.
For all these reasons, the Court finds Dr. Sabounjian's medical source statement immaterial.
Last, the Court concludes that the additional pages of records from SFMHC are immaterial. The 2014-2015 SFMHC records do not provide significant new information. At the time of the ALJ's decision, the AR reflected that Plaintiff was seeing Dr. Horst for medication support services.
Plaintiff's treating relationship with SFMHC started in 2014. AR 722 (noting admission date). The JS does not address why Dr. Sabounjian failed to provide any opinions before the ALJ's decision. Plaintiff has not carried her burden to establish good cause for failing to submit opinions by Dr. Sabounjian earlier. Nor has Plaintiff demonstrated good cause for failing to obtain and submit the additional 2014-2015 SFMHC records, especially given that she obtained and submitted other SFMHC records to the ALJ before the 2016 hearing.
Plaintiff argues that the ALJ erred by (1) failing to give sufficient reasons for giving "little weight" to the opinions of treating physician Dr. Bulczynski, (2) failing "to reject, discuss or acknowledge Dr. Coppelson's May 2012 opinion," (3) rejecting the records and opinions of treating psychiatrist, Dr. Horst, (4) failing to discuss the records of treating chiropractor Brian Padveen, and (5) failing to articulate a finding for weight afforded to the consultative examiner ("CE"), Dr. Wallack. (JS at 14, 18, 22-23, 28.)
If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight."
Only physicians and certain other qualified specialists are considered "[a]cceptable medical sources."
Dr. Bulczynski initially examined Plaintiff on June 13, 2012. AR 705. He noted that she had undergone surgery in June 2010 on her right shoulder, but she reported that the surgery made her shoulder pain worse. AR 706. Plaintiff had tenderness to palpations over her right shoulder blade and some reduced range of motion. AR 709-10, 712. She had normal posture, muscle tone, and motor strength.
On September 5, 2012, Dr. Bulczynski completed a "physician progress report." AR 681-85. He noted that Plaintiff had completed six physical therapy sessions since July 2012, but she reported increased right shoulder pain, worse with movement but improved with medications. AR 681. Again, Plaintiff had tenderness to palpations over her right shoulder blade and reduced range of motion. AR 682. She had normal posture, muscle tone, and motor strength. AR 682-83. He administered multiple tests with only two positive results indicating shoulder pain with movement. AR 684. He concluded, "the patient failed to improve despite conservative measures including physical therapy. The patient had an MRI of the cervical spine earlier this year on 06/22/12 without significant findings of neural element impingement. The patient also underwent an MRI of the right shoulder without contrast on 05/04/12, revealing no significant full-thickness rotator cuff tearing." AR 685. He noted that Plaintiff was scheduled for an arthro MRI "to evaluate the further healing of the rotator cuff" and a possible "occult labral tear."
On September 12, 2012, Plaintiff underwent the arthro MRI. AR 719-20. It revealed "no discrete glenoid labral tear." AR 720. It also showed no swelling or atrophy of the rotator cuff musculature. AR 719.
The ALJ gave "little weight" to Dr. Bulczynski's lifting restriction because, "Dr. Bulczynski's reported findings were largely within normal limits, and thus his assessment of a five-pound lifting restriction appears rather extreme. This opinion is further diminished by the fact that Dr. Bulczynski's treatment relationship with the claimant was very brief and in the adversarial context of a worker's compensation claim." AR 34. The ALJ further found that Dr. Bulczynski's five-pound lifting restriction "contrast[ed] sharply with the other contemporaneous medical findings and opinion evidence."
Plaintiff first argues that the ALJ mischaracterized Dr. Bulczynski's findings as "largely within normal limits." (JS at 20.) Plaintiff argues that "multiple significant and abnormal findings were identified. . . ." (
Regarding the length of Dr. Bulczynski's treating relationship with Plaintiff, Plaintiff argues (with no citations to the AR) that "Dr. Bulczynski examined [Plaintiff] on multiple occasions and provided detailed reports to support his opinions." (JS at 20.) In fact, Dr. Bulczynski assessed the 5-pound lifting restriction after his first examination of Plaintiff. AR 713. ALJs can consider the length of a treating relationship when considering how much weight to give a medical opinion.
Regarding inconsistency with other contemporaneous medical opinions, Plaintiff argues that the "ALJ failed to identify specific evidence or opinions that were inconsistent with the opinion of Dr. Bulczyn[s]ki." (JS at 20.) The ALJ, however, had earlier summarized the opinions of Plaintiff's treating orthopedic surgeon, Dr. Rosenberg, who released her to return to work in May 2012, concluding that she could return to her regular janitorial duties without restrictions. AR 33, citing AR 566.
In sum, the ALJ's three stated reasons are specific and legitimate reasons for discounting Dr. Bulczynski's extreme lifting restriction.
Plaintiff contends that the ALJ failed to "reject, discuss or acknowledge Dr. Coppelson's May 2012 opinion." (JS at 18.) Not so; the ALJ discussed this opinion. AR 33. Plaintiff also argues, "The ALJ failed to provide reasons for rejecting the opinion of Dr. Coppelson." (JS at 38.) The ALJ did not reject his opinion but instead noted that Dr. Coppelson's examination did not reveal "evidence of serious physical impairment."
The ALJ discussed Plaintiff's mental health treatment records from SFMHC but did not mention Dr. Horst by name. AR 32. The ALJ found that Plaintiff's depressive disorder was a severe impairment. AR 28. Plaintiff fails to demonstrate that the ALJ "functionally rejected" any opinions of Dr. Horst concerning her functional limitations.
In connection with Plaintiff's worker's compensation claim, chiropractor Brian Padveen authored a report dated October 8, 2012. AR 402-18. Padveen related the history of Plaintiff's industrial injury and 2010 surgery. AR 403-05. After retaining counsel, she "utilized her right to change physician" and selected Padveen. AR 405. He did not review Plaintiff's medical records before writing the report. AR 414. Plaintiff told him that her "current lifting ability from ground to waist level is less than 5 pounds." AR 408. He observed a reduced range of motion in Plaintiff's cervical spine and right shoulder. AR 410. Under diagnostic impression, he noted "rule out recurrent tear of the right rotator cuff" and "lumbar spine strain," among other conditions. AR 415. He opined that she was "temporarily totally disabled" and should pursue chiropractic treatment and additional MRIs.
The ALJ gave "little weight" to the opinions expressed by Padveen as "neither well supported by medical findings nor consistent with the record as a whole." AR 34. The ALJ also noted that Padveen's characterization of Plaintiff as "totally disabled" is a conclusion on an issue reserved to the Commissioner.
The ALJ only needed to provide a "germane" reason supported by substantial evidence for discounting the opinions of Padveen. The ALJ did so by pointing out that his opinions were inconsistent with other doctors who examined Plaintiff during approximately the same time. AR 34. In May 2011, Dr. Rosenberg opined that Plaintiff could return to work with no restrictions. AR 638. In May 2012, Dr. Coppelson observed a full range of motion in Plaintiff's cervical spine and did not note any complaints about lumbar pain. AR 664-66. In June 2012, Dr. Bulczynksi did not diagnose Plaintiff with any injury of the lumbar spine. AR 713. Thus, the ALJ's finding of inconsistency is supported by substantial evidence.
CE Dr. Michael Wallack examined Plaintiff on September 9, 2013. AR 345. At that time, her only treatment for back and neck pain was taking Motrin daily.
The ALJ discussed Dr. Wallack's opinions, as follows:
AR 34.
The ALJ ultimately assessed an RFC more limited than Dr. Wallack's opinions. AR 30. Plaintiff fails to demonstrate prejudicial legal error in the ALJ's evaluation of Dr. Wallack's opinions.
A claimant's RFC is "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a), 416.945(a);
The ALJ found that Plaintiff could lift and carry 50 pounds occasionally and 25 pounds frequently. AR 30. The ALJ also found that Plaintiff could sit, stand, or walk for 6 hours/day.
In determining Plaintiff's RFC, the ALJ took a middle position between the opinions of Dr. Rosenberg (who opined in 2011 that Plaintiff could return to work without restrictions [AR 638]) and Dr. Wallack (who opined in 2013 that Plaintiff could work with almost no restrictions [AR 349-50), on the one hand, and Dr. Bulczynski (who limited Plaintiff to lifting five pounds [AR 713]), on the other hand. Instead of endorsing either extreme, the ALJ gave "great weight" to the state agency medical consultants Dr. Mani and Dr. Harris. AR 34-35 (citing AR 101-12 and 114-23).
In September 2013, Dr. Mani opined that Plaintiff could lift up to 25 pounds frequently and 50 pounds occasionally. AR 107-08. Dr. Mani also opined that Plaintiff could sit, stand, or walk for 6 hours/day. AR 108. Dr. Mani limited Plaintiff to "frequent" pushing or pulling, reaching overhead, and handling with her right arm or hand. AR 108-09. In January 2014, Dr. Harris echoed this assessment. AR 120-21. Both gave great weight to CE Dr. Wallack as providing objective opinions consistent with the treating records. AR 107, 120.
Indeed, in May 2013, Plaintiff visited the Facey Medical Group for a follow-up appointment after hysterectomy surgery. AR 367. She reported that she "has had some back pain since surgery," but "her pain has been improving progressively. She is doing much better now."
In August 2013, Facey Medical Group noted that Plaintiff was "trying to diet or exercise." AR 360. The physical examination findings were the same as those described below. AR 361.
In November 2013, Plaintiff went to the Facey Medical Group for a "routine physical exam and breast exam." AR 357. She told the medical staff "she is generally feeling well without any specific acute complaints today."
Later in December 2013, Facey Medical Group noted that while Plaintiff had complained of pelvic pain for the past 8 or 9 months, "she feels much better now. Her pain has completely resolved since the sutures [from the hysterectomy] were removed [in November 2013 per AR 365]." AR 364.
These records are consistent with Plaintiff experiencing some neck and right-shoulder pain after her surgery in 2010 — but not pain that would disable her from performing medium exertional work and some reaching between 2012 and 2016. Plaintiff has not shown that the ALJ erred by giving great weight to the moderate opinions of the state agency consultants as more consistent with these treating records and the opinions of the objective CE rather than crediting the extreme opinions of the doctor and chiropractor who supported Plaintiff's worker's compensation claim.
Plaintiff argues that the ALJ should have included additional non-exertional limitations in the RFC based on mental health treating records from Dr. Horst and SFMHC. (JS at 41.) Plaintiff argues that these records show "limitations in her ability to appropriately interact with co-workers, supervisors and the public which were not included in the ALJ's RFC assessment." (JS at 42.)
In June 2013, she told the Facey Medical Clinic that she was seeing a psychiatrist "because she has a history of depression." AR 366. In March, May, and November 2013, however, the clinic noted that Plaintiff displayed "no signs or symptoms of acute depression." AR 365, 367, 371, 373.
In chronological order, the Court summarizes SFMHC's records, as follows:
• November 6, 2014: Plaintiff was referred for a medical evaluation with Dr. Doane. AR 766. Plaintiff agreed to trial of Zoloft for depression. AR 765.
• December 16, 2014: Upon intake assessment. Plaintiff's reported symptoms included crying spells, low energy, worry about her finances, poor sleep, and low self-esteem. AR 725. Plaintiff agreed to a treatment plan with goals and objectives. AR 726.
• January 6, 2015: Plaintiff reported feeling stable and in "okay" spirits. AR 722. Plaintiff was assigned to Dr. Horst for medication treatment support services. AR 724. Dr. Horst scheduled his first appointment with her for January 21. AR 745.
• January 7, 2015: Dr. Keshava discontinued Zoloft due to side effects and prescribed Celexa, noting that Plaintiff was also taking trazodone. AR 764.
• January 21, 2015: Plaintiff saw Dr. Horst for a medical evaluation. She showed him bottles of prescriptions for trazodone and Celexa. She told him she had suffered from depression for three years. She reported heart palpitations caused by Zoloft but denied these side effects since changing to Celexa. AR 742.
• February 5, 2015: Plaintiff reported feeling better and that she had recently enrolled in ESL classes. She also reported participating in some groups at the clinic and requested more information. AR 733. Her treatment goal was to reduce crying spells from daily to 3 times/week with medication support services and therapy.
• February 12, 2015: Plaintiff reported "feeling much better than [she] was feeling several months ago." The medication prescribed last month by the psychiatrist helped her feel motivated to begin healing from the past and moving forward. She stated that she was currently attending ESL courses 5 days a week, eating healthier, and taking a 10-minute walk 3 times a week. AR 732.
• March 2, 2015: Plaintiff reported that the medication was helping her sleep and stay motivated, but she was still experiencing crying spells and sad moods. She wanted to review the group therapy list to consider participation. AR 731.
• April 16, 2015: Plaintiff reported feeling slightly better than the last session due to increasing her social activities to once a week. She stated that sometimes she would rather be alone, but her sisters encouraged her to spend time with them. While she continued to take medication as prescribed, she advised that she wanted to taper off medication because she did not want to be on medication for the rest of her life. AR 730. She discussed her medication with Dr. Horst, telling him that Celexa helped but she had stopped trazodone because it was "too strong." She was also taking over-the-counter Benadryl and agreed to a trial of hydroxyzine as needed. AR 738.
• July 14, 2015: Plaintiff reported still feeling depressed with low energy and low motivation, but she saw some benefit from a higher dose of Celexa. She decided not to try group therapy, but she agreed to add Wellbutrin to her medications. AR 736.
• July 23, 2015: Plaintiff described regular crying spells and explained, "I don't want my symptoms to interfere with ability to focus at school so that's why I am asking for help." She discussed practicing positive affirmations and journaling with a social worker. AR 728.
• August 13, 2015: Plaintiff was feeling better due to practicing the adaptive coping skills discussed at the last session. AR 727. She discussed her medications with Dr. Horst which included Wellbutrin, Celexa, hydroxyzine, and blood pressure medication. AR 734.
These records do not establish that Plaintiff could only work if restricted against interacting with co-workers, supervisors and the public. To the contrary, they show that she was able to have productive interactions with multiple staff members at SFMHC, learn and practice coping skills, and take daily ESL classes. Overall, they reflect medication adjustments and improvement in Plaintiff's emotional state. Plaintiff fails to demonstrate legal error in the ALJ's RFC assessment accounting for the functional limitations caused by her depression.
For the reasons stated above, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.