Alvey v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 18, 2021
• Docket: 3:20-cv-08105
• Status: Unknown

Opinion

1 WO 2 3

5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7

8 Sheila Leigh Alvey, No. CV-20-08105-PCT-SPL 9 Plaintiff, ORDER 10 v. 11 Commissioner of Social Security 12 Administration,

13 Defendant.

14 15 Plaintiff Sheila Leigh Alvey seeks judicial review of the denial of her application 16 for disability insurance benefits under the Social Security Act, 42 U.S.C. §§ 401-434. 17 I. BACKGROUND 18 Plaintiff has the following conditions which she alleges render her disabled: 19 “degenerative disc disease of the lumbar and cervical spine with lumbar spinal discectomy; 20 tendinosis; tendinitis and acromioclavicular joint arthropathy of the right shoulder with 21 rotator cuff disease; osteoarthritis.” (Doc. 20 at 506). In April 2017, Plaintiff filed an 22 application for Social Security Disability Insurance benefits based on disability beginning 23 on November 22, 2014. (Doc. 1 at 2). At the hearing, Plaintiff moved to amend the 24 disability onset date to the date of her 55th birthday, which the ALJ denied. (Doc. 1 at 2). 25 On December 4, 2019, the ALJ issued an unfavorable decision which became final when 26 the Appeals Council denied a request for review on March 6, 2020 and adopted the ALJ 27 decision as final. (Doc. 1 at 2). 28 Having exhausted the administrative review process, Plaintiff sought judicial review 1 of the ALJ’s decision by filing a Complaint in this Court. (Doc. 1). This Court is also in 2 receipt of Defendant’s Answer (Doc. 13), Plaintiff’s Opening Brief (Doc. 20), Defendant’s 3 Response Brief (Doc. 23), and Plaintiff’s Reply Brief (Doc. 24). Despite the ALJ’s denial 4 of her request to amend the disability onset date, Plaintiff proceeds with this appeal based 5 on a disability onset date of her 55th birthday, which is March 18, 2016. (Doc. 1 at 2). 6 II. LEGAL STANDARD 7 A person is considered “disabled” for the purpose of receiving social security 8 benefits if he or she is unable to “engage in any substantial gainful activity by reason of 9 any medically determinable physical or mental impairment which can be expected to result 10 in death or which has lasted or can be expected to last for a continuous period of not less 11 than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration’s decision 12 to deny benefits should be upheld unless it is based on legal error or is not supported by 13 substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 14 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Bayliss 15 v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation omitted). “It means such 16 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 17 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The Court must review 18 the record as a whole and consider both the evidence that supports and the evidence that 19 detracts from the ALJ’s determination. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 20 III. DISCUSSION 21 Plaintiff contends the ALJ erred in three ways: (1) by failing to find that Plaintiff is 22 disabled under agency regulations because she was over the age of 55 and limited to light 23 work, (2) by rejecting the assessment from Plaintiff’s treating physician Charles W. Welly, 24 and (3) by rejecting Plaintiff’s symptom testimony. 25 A. Past Relevant Work 26 Plaintiff argues that, under the Agency guidelines’ rule 202.02, she is disabled. 27 (Doc. 20 at 14). Under the regulations, a person reaches “advanced age” when he or she 28 turns 55 years old. 20 C.F.R. § 404.1563(d) (1986). The table applicable to individuals 1 with a residual functional capacity of light work, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 2 No. 2, finds individuals of “advanced age” to be disabled if they have limited education 3 and are skilled or semiskilled with skills that are not transferable. See Rule 202.02. 4 However, individuals who possess the same characteristics but are not of “advanced age” 5 are not deemed to be disabled. See Rule 202.11. 6 Plaintiff argues this Court should proceed under the assumption that Plaintiff’s 7 disability onset date is March 18, 2016 (her 55th birthday), two years after the initial 8 alleged onset date which the ALJ used in her opinion. (Do. 20). As previously explained, 9 Plaintiff moved to amend the onset date to her 55th birthday at the initial hearing, and the 10 ALJ denied the request. (Doc. 20 at 2). Plaintiff now asserts that, nonetheless, she 11 “proceeds with this appeal based on a disability onset date of March 18, 2016.” (Doc. 20 12 at 2). Plaintiff provides Ninth Circuit caselaw indicating that this Court can apply an onset 13 date different than that applied by the ALJ. (Doc. 20 at 2 n.2). However, Plaintiff provides 14 absolutely no argument or analysis as to how the ALJ erred in denying the request or why 15 the Court should do so in this case. Therefore, the Court will use the ALJ’s original onset 16 date of November 22, 2014 (AR 22).1 See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 17 1994) (finding that arguments that are presented without substantive analysis are waived). 18 Because Plaintiff’s disability onset date was before her 55th birthday, she is not 19 disabled under the Rules. Regardless of whether Plaintiff is limited to light work, she is not 20 disabled under Rule 202.02 because she is not of “advanced age.” Accordingly, the ALJ 21 did not err by failing to find Plaintiff disabled under agency regulations. 22 B. Treating Physician 23 Plaintiff argues the ALJ erred in discounting the opinion of her treating physician 24 Dr. Welly. (Doc. 20 at 16-21). “To reject an uncontradicted opinion of a treating or 25 examining doctor, an ALJ must state clear and convincing reasons that are supported by 26 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). “If a 27 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 28 1 Administrative Record. 1 may only reject it by providing specific and legitimate reasons that are supported by 2 substantial evidence.” Id. “The ALJ can meet this burden by setting out a detailed and 3 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 4 thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 5 Dr. Welly limited Plaintiff to sitting, standing and walking for less than 3 hours per 6 8-hour day, lifting and carrying less than 10 pounds, with the need for alternative sitting 7 and standing at least every 45 minutes for 15+ minute periods. (AR 6). He assessed 8 moderately severe pain, fatigue, dizziness and headaches, and said the claimant would miss 9 more than 6 days of work per month due to her impairment. (AR 6). The ALJ did not give 10 this opinion great weight, concluding that it is “less persuasive because it is somewhat 11 extreme and not consistent with or supported by the record” and because he “is not a 12 treatment provider, and the claimant benefited from treatment such as physical therapy and 13 injections.” (AR 26). Additionally, the opinion is contradicted by the opinion of Dr. 14 Palmer, a consultative examiner who concluded that Plaintiff can do a “wide range of light 15 work” with “lifting and carrying to 20 pounds occasionally and 10 pounds occasionally,” 16 and “sitting, standing and walking to 6 – 8 hours per 8-hour day.” (AR 26). 17 The ALJ provided specific and legitimate reasons for rejecting Dr. Welly’s opinion. 18 First, Dr. Welly is not Plaintiff’s treating physician, unlike Dr. Palmer. See, e.g., Nikki B. 19 v. Berryhill, No. C17-5970-MAT, 2018 WL 6413206, at *7 (W.D. Wash. Dec. 6, 2018) 20 (“Plaintiff fails to demonstrate error. The ALJ did not err in observing Dr. West served as 21 an examining, not a treating source, and accurately noted he examined plaintiff on only 22 one occasion.”). Further, Dr. Welly’s opinion is more extreme than all the other physician’s 23 opinions, each of whom consistently find less extreme limitations. (AR 24-26); see also 24 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007) (“When an examining 25 physician provides independent clinical findings that differ from the findings of the treating 26 physician, such findings are themselves ‘substantial evidence.’ . . . Under these 27 circumstances, ‘it is then solely the province of the ALJ to resolve the conflict’ and to 28 decide which medical opinions to credit.”) (citing Orn v. Astrue, 495 F.3d 625, 632 (9th 1 Cir. 2007); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.2002); Andrews v. Shalala, 53 2 F.3d 1035, 1041 (9th Cir.1995)). Accordingly, the Court finds that the ALJ provided 3 sufficient reasons for discounting Dr. Welly’s opinion. 4 C. Symptom Testimony 5 Plaintiff argues that the ALJ erred when evaluating Plaintiff’s symptom testimony. 6 (Doc. 20 at 21-26). The ALJ determined that Plaintiff’s “medically determinable 7 impairments could reasonably be expected to cause the alleged symptoms; however, 8 [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these 9 symptoms are not entirely consistent with the medical evidence and other evidence in the 10 record.” (AR 23). 11 “In evaluating the credibility of pain testimony after a Plaintiff produces objective 12 medical evidence of an underlying impairment, an ALJ may not reject a Plaintiff’s 13 subjective complaints based solely on a lack of medical evidence to fully corroborate the 14 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Instead, 15 an ALJ must provide “specific, clear, and convincing reasons” for doing so. Burrell v. 16 Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 17 Plaintiff testified that she cannot sit, stand or walk for prolonged periods or lift or 18 carry much weight. (AR 24). She further testified that she alternates between sitting and 19 standing every 20 minutes on an average day, lies down twice a day for about 30 minutes 20 each day, and takes over-the-counter pain relievers. (AR 24). She further reported that she 21 has to take breaks while doing light household chores, that she obtained limited benefit 22 from nerve ablation therapy, that she can shop but must stop occasionally, and that she has 23 some mental problems including poor concentration and memory, confusion, and 24 forgetfulness. (AR 24). The ALJ found that the “objective clinical record supports the 25 severe impairments as established but does not support the claimant’s subjective 26 complaints to the degree alleged.” (AR 24). The ALJ reasoned that Plaintiff complained of 27 severe neck and back pain and yet she has “repeatedly appeared on exam in no acute 28 distress, which undermines her assertion of disabling pain.” (AR 23). Further, the ALJ 1 noted several normal or mild findings on her imaging. (AR 24). Additionally, although 2 Plaintiff had S1 radiculopathy, “no surgery was warranted for the low back, and continued 3 conservative care was recommended.” (AR 24). Additionally, the ALJ found that 4 “Plaintiff’s daily activities are consistent with the [residual functional capacity]. She does 5 light household chores, drives and shops.” (AR 24). 6 The ALJ provided specific, clear, and convincing reasons for finding that Plaintiff’s 7 subjective complaints were not supported by the record. First, the ALJ noted several 8 objective medical findings which were either normal or mild or recommended conservative 9 treatment, which would tend to negate a finding of severe impairment. Objective medical 10 evidence is a useful tool for an ALJ to assess Plaintiff’s credibility regarding the intensity 11 and persistence of her symptoms. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 12 (9th Cir. 2008) (holding that objective medical evidence was appropriately used to assess 13 credibility of plaintiff’s symptom testimony); Rollins v. Massanari, 261 F.3d 853, 857 (9th 14 Cir. 2001) (holding that medical evidence is “a relevant factor in determining the severity 15 of the claimant’s pain and its disabling effects”). Further, the ALJ’s finding that Plaintiff 16 was recommended conservative treatment supports the conclusion that the objective record 17 did not support the severity of her complaints. See Parra v. Astrue, 481 F.3d 742, 751 (9th 18 Cir. 2007) (holding that evidence of conservative and effective treatment are sufficient to 19 discount a claimant’s testimony regarding symptom severity) (citing Johnson v. Shalala, 20 60 F.3d 1428, 1434 (9th Cir. 1995)). Finally, even if Plaintiff’s daily activities suggest 21 some difficulty functioning, they may be grounds for discrediting her testimony “to the 22 extent that they contradict claims of a totally debilitating impairment.” Wennet v. Saul, 777 23 F. App’x 875, 877 (9th Cir. 2019) (internal quotation and citation omitted); Singh v. 24 Comm’r of Soc. Sec. Admin., No. CV-19-02315-PHX-MTM, 2020 WL 5757620, at *3 (D. 25 Ariz. Sept. 28, 2020) (affirming ALJ’s determination that daily activities refuted symptom 26 testimony even though plaintiff experienced difficulty while engaging in activities). 27 In sum, the Court does not find that the ALJ erred in discounting Plaintiff’s 28 symptom testimony after finding that it was contradicted by the medical record. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 2 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 3 subjective testimony.”). Because the ALJ provided specific and legitimate reasons for 4 discounting Plaintiff's symptom testimony, including the objective medical evidence, ° Plaintiff's treatment history, and Plaintiff's reported activities and demonstrated abilities, 6 the Court will not overturn the denial of disability benefits on this ground. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (“If the ALJ’s credibility finding is supported 8 by substantial evidence in the record, we may not engage in second-guessing.”). 9 IV. CONCLUSION 10 Based on the foregoing, i IT IS ORDERED that the ALJ’s decision is affirmed. The Clerk of the Court shall 12 enter judgment accordingly. 13 Dated this 18th day of August, 2021. 14 15 16 ore ee 17 18 19 20 21 22 23 24 25 26 27 28

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