Bensing v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: April 4, 2023
• Docket: 2:21-cv-02090
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Bernadette Bensing, No. CV-21-02090-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Bernadette Bensing’s Application for Disability 16 Insurance Benefits by the Social Security Administration under the Social Security Act. 17 Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, 18 and the Court now addresses Plaintiff’s Opening Brief (Doc. 17, Pl. Br.), Defendant Social 19 Security Administration Commissioner’s Response Brief (Doc. 20, Def. Br.), and 20 Plaintiff’s Reply (Doc. 21, Reply). The Court has reviewed the briefs and Administrative 21 Record (Doc. 14, R.) and now affirms the Administrative Law Judge’s (ALJ) decision 22 (R. at 22–34) as upheld by the Appeals Council (R. at 2–6). 23 I. BACKGROUND 24 Plaintiff filed an application for Disability Insurance Benefits on October 4, 2018, 25 for a period of disability beginning on May 1, 2018. (R. at 22.) Her claim was denied 26 initially on March 7, 2019, and upon reconsideration on May 20, 2019. (R. at 22.) On 27 October 22, 2020, Plaintiff appeared before the ALJ for a hearing regarding her claim. 28 (R. at 22.) On December 23, 2020, the ALJ denied Plaintiff’s claim. (R. at 22–34.) On 1 October 19, 2021, the Appeals Council denied Plaintiff’s Request for Review of the ALJ’s 2 decision. (R. at 2–6.) 3 The Court has reviewed the record and will discuss the pertinent medical evidence 4 in addressing the issues raised by the parties. Upon considering the medical records and 5 opinions, the ALJ evaluated Plaintiff’s disability based on the severe impairments of 6 bipolar disorder, generalized anxiety disorder, and depression. (R. at 24.) 7 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 8 that Plaintiff is not disabled. (R. at 34.) In so doing, the ALJ determined that Plaintiff “does 9 not have an impairment or combination of impairments that meets or medically equals the 10 severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” 11 (R. at 26.) The ALJ found that Plaintiff has the Residual Functional Capacity (RFC) to 12 perform work at all exertional levels with some nonexertional limitations, including that 13 Plaintiff is limited to carrying out simple instructions and performing simple, routine, and 14 repetitive tasks, with occasional superficial interaction with the public and co-workers and 15 no contact with crowds. (R. at 28.) Accordingly, the ALJ found that Plaintiff can perform 16 work in the national economy, including as a housekeeper, assembler, or packager, such 17 that Plaintiff is not under a disability as defined in the Social Security Act. (R. at 33.) 18 II. LEGAL STANDARD 19 In determining whether to reverse an ALJ’s decision, the district court reviews only 20 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 21 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 22 determination only if the determination is not supported by substantial evidence or is based 23 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 24 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 25 person might accept as adequate to support a conclusion considering the record as a whole. 26 Id.; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). To determine whether 27 substantial evidence supports a decision, the Court must consider the record as a whole and 28 may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 1 Generally, “[w]here the evidence is susceptible to more than one rational interpretation, 2 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 3 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 4 To determine whether a claimant is disabled for purposes of the Act, the ALJ 5 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 6 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 7 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 8 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 9 § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step 10 two, the ALJ determines whether the claimant has a “severe” medically determinable 11 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 12 disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 13 impairment or combination of impairments meets or medically equals an impairment listed 14 in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 15 the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 16 Id. At step four, the ALJ assesses the claimant’s residual functional capacity and 17 determines whether the claimant is still capable of performing past relevant work. 18 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. 19 If not, the ALJ proceeds to the fifth and final step, where she determines whether the 20 claimant can perform any other work in the national economy based on the claimant’s RFC, 21 age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is 22 not disabled. Id. If not, the claimant is disabled. Id. 23 III. ANALYSIS 24 Plaintiff raises two arguments for the Court’s consideration, namely, (1) the ALJ’s 25 reasons for discounting the opinions of treating psychiatrist Ewa Szafraniec, M.D. were 26 not supported by substantial evidence in the record, and (2) the ALJ erred in evaluating 27 Plaintiff’s symptom testimony. (Pl. Br. at 1.) The Court examines these arguments in turn. 28 1 A. Treating Pyschiatrist Ewa Szafraniec, M.D. 2 Plaintiff contends that the ALJ gave insufficient reasons for discounting the 3 opinions of Dr. Ewa Szafraniec. (Pl. Br. at 13–19.) Dr. Szafraniec treated Plaintiff from at 4 least March 2015 until after the alleged onset date of May 1, 2018. (R. at 501–27, 688– 5 730.) When Plaintiff reported she did not feel she could go to work in May 2018 due to a 6 depressed mood, Dr. Szafraniec ordered intensive outpatient therapy from May 17, 2018, 7 to July 25, 2018. (R. at 735.) Thereafter, Plaintiff returned to work from home part-time, 8 but stopped working completely in September 2018. (R. at 505.1) 9 On December 5, 2018, Laurene Griest, a counselor, completed an assessment of 10 Plaintiff’s ability to perform work-related activities from a psychological perspective. 11 (R. at 528–29.) Griest apparently provided counseling to Plaintiff, but no related treatment 12 notes or other medical records are available. (R. at 48.) Among other things, Griest 13 concluded without further elaboration or explanation that Plaintiff experienced severe 14 deterioration of personal habits and in her ability to understand, carry out, and remember 15 instructions, respond to customary work pressure, or sustain work pace. (R. at 528–29.) 16 Almost two years later, on October 15, 2020 (a week before Plaintiff’s hearing before the 17 ALJ), Dr. Szafraniec added a handwritten note to Griest’s evaluation, stating: “This is to 18 confirm I am in support of eval done by Laurene Griest.” (R. at 766.) The ALJ did not find 19 the opinions of Griest as later endorsed by Dr. Szafraniec persuasive. (R. at 31.) 20 The Ninth Circuit no longer accords special deference to a treating physician. Woods 21 v. Kijakazi, 32 F. 4th 785, 792 (9th Cir. 2022). In 2017, the Social Security Administration 22 amended the regulations for evaluating medical evidence. See Revisions to Rules 23 Regarding Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017). The 24 2017 regulations provide that “[w]e will not defer or give any specific evidentiary weight, 25 including controlling weight, to any medical opinion . . . . The most important factors we 26 consider when we evaluate the persuasiveness of medical opinions . . . are supportability 27 . . . and consistency.” 20 C.F.R. § 404.1520c(a). Other factors, which an ALJ “may, but

28 1 As the ALJ and the parties acknowledged, Dr. Szafraniec’s treatment notes are handwritten and extremely difficult to decipher. 1 [is] not required to[ ] explain” when evaluating the persuasiveness of a medical opinion, 2 are the medical source’s “relationship with the claimant,” “specialization,” “familiarity 3 with the other evidence in the claim,” and “understanding of our disability program’s 4 policies and evidentiary requirements.” Id. § 404.1520c(b)(2), (c). 5 Moreover, the Ninth Circuit held its requirement that ALJs provide “specific and 6 legitimate reasons” for rejecting a treating or examining doctor’s opinion is incompatible 7 with the revised regulations. Woods, 32 F. 4th at 790. Nonetheless, in rejecting an 8 examining or treating doctor’s opinion as unsupported or inconsistent, an ALJ must provide 9 an explanation—that is, reasons—supported by substantial evidence. Id. This means that 10 the ALJ “must ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from 11 each doctor or other source, and ‘explain how it considered the supportability and 12 consistency factors’ in reaching these findings.” Id. (citing 20 C.F.R. §§ 404.1520c(b), 13 404.1520(b)(2)). 14 Here, the ALJ laid out specific reasons supported by the record (or lack thereof) in 15 finding the opinions of Griest as later endorsed by Dr. Szafraniec unpersuasive. First, the 16 ALJ stated that Griest’s opinions were not supported because none of her treatment notes 17 or other medical records were provided and even the evaluation form included no 18 explanation or elaboration; a review of the entire record confirms that. (R. at 31.) With 19 respect to Dr. Szafraniec, to the extent her treatment notes can be understood, the ALJ 20 concluded that Dr. Szafraniec’s endorsement of Griest’s opinions that Plaintiff had severe 21 limitations was inconsistent with Dr. Szafraniec’s treatment notes and generally 22 inconsistent with the longitudinal record. (R. at 31.) For example, the ALJ noted that 23 Dr. Szafraniec treated Plaintiff successfully, including with medication, for years prior to 24 the alleged onset date, through emotional swings from a divorce and financial insecurity 25 resulting in foreclosure on her home, and Plaintiff’s grief in April and May 2018 was 26 specifically from the loss of her father. (R. at 31, 590, 594.) The Court finds these reasons 27 for discounting the evaluation of Griest as endorsed by Dr. Szafraniec were well-founded, 28 reinforced by substantial evidence in the record, and demonstrated a lack of supportability 1 and consistency of Griest’s evaluation. The ALJ did assign moderate limitations to Plaintiff 2 in all areas of mental capacity in formulating Plaintiff’s RFC, as found by the psychological 3 reviewing consultants, Drs. South and Rubin. (R. at 30.) In sum, the ALJ did not err in 4 accounting for Griest’s evaluation as endorsed by Dr. Szafraniec. 5 B. Plaintiff’s Symptom Testimony 6 The ALJ also found Plaintiff’s “subjective complaints alleging limitations beyond 7 those described in the [RFC] are not consistent with the longitudinal objective medical 8 evidence.” (R. at 30.) 9 While credibility is the province of the ALJ, an adverse credibility determination 10 requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 11 claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 12 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen v. Chater, 80 F.3d 13 1273, 1281 (9th Cir. 1996)). For example, “[i]n evaluating the credibility of pain testimony 14 after a claimant produces objective medical evidence of an underlying impairment, an ALJ 15 may not reject a claimant’s subjective complaints based solely on a lack of medical 16 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 17 676, 680 (9th Cir. 2005). But the ALJ may properly consider that the medical record lacks 18 evidence to support certain symptom testimony. Id. at 681. The ALJ may also properly 19 consider inconsistencies in the claimant’s testimony, including inconsistencies between the 20 claimant’s testimony of daily activities and symptom testimony. Id. 21 In discounting Plaintiff’s symptom testimony, the ALJ did observe that the objective 22 medical evidence did not fully corroborate the full extent of Plaintiff’s alleged symptoms. 23 The ALJ further noted that, although Dr. Szafraniec ordered Plaintiff to intensive outpatient 24 therapy from May 17, 2018, to July 25, 2018, Plaintiff only attended 13 sessions and missed 25 14, due to “illness and travel out of state.” 2 (R. at 30, 735.) Although Plaintiff took one 26 trip to New York for her father’s funeral, she did not disclose to her psychiatrist the non-

27 2 In the summary report from the intensive outpatient program, which Plaintiff had participated in once before her alleged onset date, Plaintiff stated, “[I] needed a refresher 28 on my coping skill.” She planned to return to work immediately after the program, expressing a feeling “like I can this time, and it will go well. (R. at 735.) || funeral travel to Las Vegas with a friend in July 2018. (R. at 59-61.) The ALJ further || pointed to the fact that no evidence in the medical record indicated Plaintiff suffered from || memory loss, but Plaintiff reported to the Social Security Administration that she had 4|| significant memory difficulties. (R. at 30.) The ALJ thus concluded that Plaintiffs || “inconsistent statements and symptom magnification lessen the reliability of her limitation 6|| allegations,” and the Court finds this a specific, clear and convincing reason to discount 7\| Plaintiff’s symptom testimony. 8 In sum, the Court finds the ALJ’s reasons for discounting—but not ignoring— 9|| Plaintiff's symptom testimony were specific, clear, and sufficiently convincing for the Court not to disturb the ALJ’s conclusions. See Batson v. Comm’r of Soc. Sec., 359 F.3d 11}, 1190, 1196 (9th Cir. 2004) (“When evidence reasonably supports either confirming or || reversing the ALJ’s decision, we may not substitute our judgment for that of the ALJ.” 13 || (internal citation omitted)). In the absence of finding material error on the part of the ALJ, the Court will affirm the ALJ’s decision. 15 IT IS THEREFORE ORDERED affirming the December 23, 2020 decision of the □□ ALJ (R. at 22-34), as affirmed by the Appeals Council on July 12, 2021 (R. at 2-6). 17 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment and 18 || close this case. 19 Dated this 4th day of April, 2023. CN iy.

Unig State#District Judge 22 23 24 25 26 27 28

-7-