Blome v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 2, 2022
• Docket: 2:21-cv-00812
• Status: Unknown

Opinion

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

9 Robert V Blome, No. CV-21-00812-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff seeks judicial review of the Social Security Administration (“SSA”) 16 Commissioner’s decision denying his application for SSA disability benefits. Plaintiff 17 filed an Opening Brief (Doc. 14) on December 6, 2021. Defendant filed a Response Brief 18 (Doc. 16) on January 5, 2022. Plaintiff filed his Reply Brief (Doc. 17) on January 19, 2022. 19 The Court has reviewed the briefs and the Administrative Record (Doc. 7, “R.”). For the 20 reasons discussed herein, the Commissioner’s decision is reversed and remanded for 21 further proceedings consistent with this Order. 22 I. Background 23 On September 5, 2013, Plaintiff filed an application for a period of disability and 24 disability benefits with an onset date of January 1, 2011, which was later amended to an 25 onset date of October 1, 2013. (R. at 17, 641). On May 11, 2016, the ALJ issued an 26 unfavorable decision. (R. at 14). The Appeals Council denied review of that decision. 27 (R. at 1). The matter was remanded from the Appeals Counsel by remand form this Court. 28 (R. at 764). Upon remand, the ALJ issued another unfavorable decision. (R. at 638). The 1 Appeals Council denied review. (R. at 628). This appeal followed. 2 In its most recent decision, the ALJ found that through the date last insured, 3 Plaintiff’s severe impairments included degenerative disc disease and obesity. (R. at 644). 4 In reviewing the record, the ALJ found that Plaintiff’s symptom testimony was not entirely 5 consistent with the evidence. (R. at 648). The ALJ also assigned little weight to opinion 6 evidence from Drs. Ashish Sachdeva and Robert Winter. (R. at 651–52). 7 The ALJ concluded that Plaintiff through the date last insured, Plaintiff “did not 8 have an impairment or combination of impairments” that could be considered severe. 9 (R. at 647). The ALJ found that Plaintiff had the residual functional capacity (“RFC”) “to 10 perform the full range of medium work . . . .” (Id.) 11 II. Standard of Review 12 In determining whether to reverse an ALJ’s decision, the district court reviews only 13 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 14 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 15 determination only if it is not supported by substantial evidence or is based on legal error. 16 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 17 that a reasonable person might accept as adequate to support a conclusion considering the 18 record as a whole. Id. To determine whether substantial evidence supports a decision, the 19 Court must consider the record as a whole and may not affirm simply by isolating a 20 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 21 susceptible to more than one rational interpretation, one of which supports the ALJ’s 22 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 23 (9th Cir. 2002) (citations omitted). 24 To determine whether a claimant is disabled for purposes of the Act, the ALJ 25 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 26 proof on the first four steps, but the burden shifts to the Commissioner at step five. 27 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines 28 whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 1 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 2 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 3 step three, the ALJ considers whether the claimant’s impairment or combination of 4 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 5 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 6 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 7 capacity and determines whether the claimant is still capable of performing past relevant 8 work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, 9 where she determines whether the claimant can perform any other work in the national 10 economy based on the claimant’s residual functional capacity, age, education, and work 11 experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 12 III. Discussion 13 Plaintiff argues that the ALJ erred by (1) improperly rejecting Plaintiff’s symptom 14 testimony, (2) improperly rejecting opinion evidence, and (3) failing to consider the 15 potential combination of mental and physical impairments as a severe impairment. 16 a. Symptom Testimony 17 Plaintiff argues that the ALJ erred in rejecting Plaintiff’s symptom testimony. The 18 Ninth Circuit has held that an “ALJ must provide clear and convincing reasons for rejecting 19 the claimant’s testimony regarding the severity of symptoms.” Rollins v. Massanari, 261 20 F.3d 853, 857 (9th Cir. 2001). Defendant argues that this standard is not consistent with 21 the substantial evidence standard established in 42 U.S.C. § 405(g), but it also argues that 22 there is sufficient evidence to support the ALJ’s determination under either standard. (Doc. 23 16 at 10 n.5). The Court need not resolve this legal issue here, as the ALJ has provided 24 sufficiently clear and convincing reasons to reject Plaintiff’s symptom testimony. 25 Plaintiff testified to being able to only lift about 20 pounds, to sit and stand for 30- 26 45 minutes, and to walk long enough to go around a block. (R. at 696). He testified to 27 having difficulty with supervisors at work as he was “somewhat confrontational . . . .” (R. 28 at 699). And he testified to needing assistances with household chores. (R. at 707). The 1 ALJ found that this testimony was not entirely consistent with the evidence. (R. at 648). 2 Here, the ALJ specifically noted two MRI scans from 2014 that lacked any showing of 3 “severe stenosis that would cause more pain and limitations” as well as clinical 4 examination findings that consistently showed Plaintiff exhibiting normal strength and a 5 normal gait. (R. at 648) (citing 418, 446, 505–09, 540). The ALJ cited to records showing 6 that treatment successfully controlled Plaintiff’s pain. (R. at 649) (citing R. at 487, 541, 7 549). The ALJ also noted that at a January 2014 examination, Plaintiff reported that he 8 continued to “golf, take care of the household, do house projects, walk, swim, and ride his 9 bike . . . .” (R. at 650) (citing R. 411–12). 10 Plaintiff argues that this evidence fails to meet a clear and convincing standard. He 11 cites to an October 2016 MRI showing that “moderate to severe left and severe right 12 foraminal stenosis.” (R. at 981). As to treatment records, Plaintiff argues that he “failed 13 conservative treatment and required more aggressive interventions over time” that only 14 provided “temporary” relief. (Doc. 14 at 15) (citing R. at 526, 538) Plaintiff also takes 15 issue with the ALJ’s characterization of Plaintiff’s golfing as he “no longer” plays a whole 16 game but merely “swung a club and hit a few golf balls.” (Doc. 14 at 18). He also claims 17 that his other physical activity does not establish that he “engaged in vigorous, prolonged 18 exercise that was inconsistent with his standing, lifting, and other testimony.” (Id. at 17). 19 Although Plaintiff has identified portions of the Record that tend to support his 20 testimony, the Record as a whole does not. The Court finds that the records cited to by the 21 ALJ provide clear and convincing evidence that contradicts Plaintiff’s testimony. Records 22 as late as 2019 show Plaintiff was able to sit without discomfort for the duration of a 23 medical exam and that he had a normal gait. (R. at 960). Although Plaintiff’s treatment 24 was more than conservative, the Record generally shows that the treatment was effective. 25 Finally, even if Plaintiff’s physical activities were not “vigorous,” they do tend to show a 26 greater physical capacity than only being able to sit and stand for about half an hour. The 27 Court finds that the ALJ’s decision to discount Plaintiff’s symptom testimony was 28 supported with clear and convincing evidence. 1 b. Opinion Evidence 2 Next, Plaintiff argues that the ALJ failed to afford proper weight to the opinions of 3 Drs. Sachdeva and Winter. The Court concludes that the ALJ provided specific and 4 legitimate reasons for affording each minimal weight. 5 i. Dr. Sachdeva 6 Dr. Sachdeva, a treating physician, opined in two checkbox forms that Plaintiff 7 could only sit, stand, or walk for fewer than two hours in a workday and that he could only 8 lift or carry between fifteen and twenty pounds. (R. at 474, 565). In addition, the opinion 9 stated that Plaintiff could only bend, reach, stoop, and use his left hand and feet on a “Less 10 than occasional” basis. (R. at 474, 565). The ALJ afforded minimal weight to this opinion 11 because Dr. Sachdevan’s opinion, as the ALJ found, was based upon “claimant’s subjective 12 complaints rather than objective medical findings.” (R. at 651). The ALJ found there was 13 “simply a lack of medical evidence in the file to support the walking, sitting, reaching, 14 manipulative, foot control, and stooping restrictions” as the Record showed “normal 15 strength and range of motion in all of his extremities and hips.” (Id.) Finally, the ALJ 16 noted that Plaintiff’s physical activities, such as golfing and going to the gym, are 17 inconsistent with the opinion. (Id.) 18 Generally, an ALJ weights a treating physician’s opinion more heavily than a non- 19 treating physician’s opinion. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). 20 However, “[a]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, 21 and unsupported by the record as a whole, or by objective medical findings.” Batson v. 22 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (cleaned up). “Where 23 an ALJ does not explicitly reject a medical opinion or set forth specific, legitimate reasons 24 for crediting one medical opinion over another, he errs.” Garrison v. Colvin, 759 F.3d 995, 25 1012 (9th Cir. 2014). 26 Plaintiff argues, again, that the ALJ erred by misconstruing statements about 27 Plaintiff’s golfing and other physical activity. He also argues the ALJ failed to discuss 28 portions of the Record showing the kind of restrictions in support of Dr. Sachdeva’s 1 opinion. He cites records showing back and neck pain. (Doc. 14 at 21) (citing R. at 418, 2 486–87). And Plaintiff argues that there is no indication in the record that Dr. Sachdeva 3 based his opinions on Plaintiff’s subjective complaints. 4 The Court finds the ALJ gave specific and legitimate reasons to afford minimal 5 weight to Dr. Sachdeva’s opinion. As discussed above, the record of Plaintiff’s golfing 6 and other exercise do tend to show more mobility than was expressed in Dr. Sachdeva’s 7 opinion. As the ALJ found, the records that Plaintiff cites do not support the wide array of 8 restrictions called for in the opinion. Finally, as there is no indication as to what Dr. 9 Sachdeva used to base the opinion on, the ALJ properly rejected it. An “ALJ may 10 permissibly reject check-off reports that do not contain any explanation of the bases of their 11 conclusions.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (cleaned up). It was 12 reasonable to conclude that, without any other citation to evidence, that the opinion was 13 based on Plaintiff’s subjective complaints. 14 ii. Dr. Winter 15 Dr. Winter opined, in two checkbox forms, that Plaintiff could not sit, stand, or walk 16 for more than two hours in a workday and that he could only carry ten pounds or less. (R. 17 at 1524, 1543). He also opined that Plaintiff could only bend, reach, or stoop on a less than 18 occasional basis. (R. at 1524, 1543). The ALJ only afforded minimal weight to the opinion 19 because “[l]ike Dr. Sachdevan [sic], Dr. Winter used a checked box form with minimal 20 explanation or citation to the record.” (R. at 652). The ALJ also noted that Dr. Winter’s 21 “treatment with the claimant was well after the date last insured, and his opinion does not 22 pertain to the relevant period at issue. Again, there was a lack of objective findings to 23 support these restrictions upon lifting, carrying, walking, bending, stopping, and reaching.” 24 (Id.) 25 Because the ALJ critiqued Dr. Winter’s opinion for substantially similar reasons as 26 with Dr. Sachdeva, Plaintiff’s arguments as to why the ALJ erred are similar, as well. He 27 argues the checkbox form may be reliable and that the objective evidence supports the 28 opinion. But the Court rejects these arguments for the reasons stated above. Checkbox 1 forms may be discounted for failing to cite the basis for the opinions, and the Record 2 contains evidence contradicting limitations stated in the opinion. 3 c. Combined Impact of Physical and Mental Impairment 4 In its prior Order, this Court had found that it was not clear whether the ALJ had 5 considered the combined effects of Plaintiff’s impairments. (R. at 761). An ALJ is 6 required to consider the effect of the “combination of impairments” during step two. 20 7 C.F.R. § 404.1520(c). Plaintiff argues that the ALJ failed to do so because the ALJ failed 8 to discuss the interaction “between pain and mental distress.” (Doc. 14 at 24). Defendant 9 argues the Court’s prior Order only required the ALJ to consider “whether ‘any’ of 10 Plaintiff’s impairments ‘or more than one of them collectively’ constituted a severe 11 impairment.” (Doc. 16 at 24) (citing R. at 764). Defendant’s interpretation of the Order is 12 narrow and does not include the Court’s emphasis that the ALJ is to “consider the effect of 13 the ‘combination of impairments.’” (R. at 761). 14 As before, the ALJ’s decision contains lengthy examinations of Plaintiff’s 15 impairments. (R. at 644–47). When discussing Plaintiff’s mental impairments, the ALJ 16 found that the “impairments of mood/personality disorder and anxiety, considered singly 17 and in combination, did not cause more than minimal limitation” and so were nonsevere. 18 (R. at 645). At step two, the ALJ must consider “the combined effect of all of the 19 claimant’s impairments . . . .” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) 20 (emphasis added). Because it is not clear the ALJ considered whether any combination of 21 all Plaintiff’s impairments constitutes a severe combination, the Court finds legal error. 22 Accordingly, 23 IT IS ORDERED that the decision of the Commissioner is REVERSED, and this 24 case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 25 administrative proceedings, including a new administrative hearing, to allow the 26 Commissioner to consider whether a combination of any of Plaintiff’s impairments 27 constitute a severe impairment, and issue a new decision in accordance with this Order. 28 IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly. 2 Dated this 2nd day of September, 2022. 3 4 Do ee S norable'Diang/4. Hurmetewa 6 United States District Fudge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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