Breckenridge Alhabbash v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MARSHA A.B.A., CASE NO. 2:21-cv-00364-JRC 11 Plaintiff, ORDER ON PLAINTIFF’S 12 v. COMPLAINT 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 16 17 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 18 Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate 19 Judge, Dkt. 3. This matter has been fully briefed. See Dkts. 18–20. 20 Plaintiff was fitted with an internal defibrillator as the result of severe cardiac problems 21 stemming from a congenital heart defect, and while this treatment was effective, alleges that she 22 continued to suffer from anxiety due to the unpredictable and painful activation of the 23 defibrillator, as well as musculoskeletal issues. The ALJ properly found plaintiff’s subjective 24 1 complaints were not fully supported by medical evidence during the period leading up to her date 2 last insured. Finding no error, the Court affirms the ALJ’s decision. 3 PROCEDURAL HISTORY 4 Plaintiff’s application for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. §

5 423 (Title II) of the Social Security Act was denied initially and following reconsideration. See 6 AR 76, 84. Plaintiff’s requested hearing was held before Administrative Law Judge C. Howard 7 Prinsloo (“the ALJ”) on June 18, 2020. See AR 45. On July 10, 2020, the ALJ issued a written 8 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social 9 Security Act. See AR 21–44. 10 On September 8, 2020, the Appeals Council denied plaintiff’s request for review, making 11 the written decision by the ALJ the final agency decision subject to judicial review. AR 1–6; see 12 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s 13 written decision in March 2021. See Dkt. 7. Defendant filed the sealed administrative record 14 regarding this matter (“AR”) on July 29, 2021. See Dkt. 14.

15 BACKGROUND 16 Plaintiff was born in 1958 and was 50 years old on the alleged date of disability onset of 17 January 31, 2008. See AR 49, 166. Plaintiff has an associate’s degree in nursing and worked as a 18 registered nurse, but stopped working in late 2007 amid a move from Mississippi to Washington, 19 and did not work again due to her declining health after her parents and brother passed away. See 20 AR 55–57. 21 According to the ALJ, plaintiff has at least the severe impairment of congenital heart 22 disease. AR 27. 23

24 1 STANDARD OF REVIEW 2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 3 social security benefits if the ALJ's findings are based on legal error or not supported by 4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th

5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 6 DISCUSSION 7 In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) whether the ALJ 8 erred in evaluating plaintiff’s subjective testimony; (2) whether the ALJ erred in determining 9 plaintiff’s age category; and (3) whether the ALJ erred in evaluating plaintiff’s residual 10 functional capacity (“RFC”). See Dkt. 18, pp. 1–2. 11 1. Whether the ALJ Erred in Evaluating Plaintiff’s Subjective Testimony 12 Plaintiff first claims that the ALJ erred by finding her own testimony not fully credible. 13 See Dkt. 18, p. 3. 14 If the medical evidence in the record is not conclusive, sole responsibility for resolving 15 conflicting testimony and analyzing a claimant’s testimony regarding limitations lies with the 16 ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 17 F.2d 855, 858 n.7 (9th Cir. 1971) (Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). An 18 ALJ is not “required to believe every allegation of disabling pain” or other non-exertional 19 impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citing 42 U.S.C. § 423(d)(5)(A) 20 (other citations and footnote omitted)). Even if a claimant “has an ailment reasonably expected to 21 produce some pain; many medical conditions produce pain not severe enough to preclude gainful 22 employment.” Fair, supra, 885 F.2d at 603. The ALJ may “draw inferences logically flowing 23 from the evidence.” Sample, supra, 694 F.2d at 642 (citing Beane v. Richardson, 457 F.2d 758 24 1 (9th Cir. 1972); Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ may 2 not speculate. See SSR 86-8, 1986 SSR LEXIS 15 at *22. 3 Here, plaintiff testified that a congenital heart defect caused ventricular tachycardia and 4 atrial fibrillation, contributing to plaintiff’s anxiety whenever her heart rate goes up, owing to

5 plaintiff needing an internal defibrillator that delivers painful shocks to stop tachycardic 6 episodes. AR 56. In turn, anxiety and stress can cause her heart rate to increase. According to 7 plaintiff, this stress was significantly exacerbated by the deaths of several family members 8 between 2007 and 2009. AR 55. 9 In addition, plaintiff stated in a function report that she suffered from dyspnea on 10 exertion, suffered hand pain that made chores difficult, could only walk 50 feet before needing to 11 rest, and could not walk up a flight of stairs. AR 219. At the hearing, she stated that she could not 12 stand for more than one hour at a time due to backaches and shoulder pain, and she could lift no 13 more than ten pounds. AR 63, 66. 14 The ALJ found that this testimony was not fully credible, reasoning that (1) plaintiff

15 stopped working for reasons other than her impairments; (2) medical evidence showed that 16 plaintiff’s heart problems, though severe, did not prevent her from functioning during the period 17 at issue; and (3) plaintiff’s activities of daily living contradicted her alleged limitations. See AR 18 35–36. The Court addresses the ALJ’s second reason, which, if supported, is a sufficient basis to 19 discount plaintiff’s symptom testimony. 20 With respect to the ALJ’s second reason, although an ALJ may not discredit a plaintiff’s 21 testimony as not supported by objective medical evidence once evidence demonstrating an 22 impairment has been provided, Bunnell, supra, 947 F.2d at 343, 346-47 (citing Cotton, supra, 23

24 1 799 F.2d at 1407), an ALJ may discredit a plaintiff’s testimony when it contradicts evidence in 2 the medical record. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). 3 Here, the ALJ found that “when seen for routine evaluations, [plaintiff] consistently 4 reported doing well and denied any cardiac symptoms such as chest pain, dizziness, syncope, or

5 shortness of breath[,]” and “she did not indicate [the] occurrence [of shocks from the internal 6 defibrillator] affected her ability to function in any way.” AR 35. The ALJ considered notes from 7 some medical appointments in which plaintiff complained of more frequent shocks, but also 8 found that plaintiff reported she had “felt fine both before and after the shock and did not report 9 any problems or complaints[.]” AR 35 (citing AR 1651). 10 While plaintiff’s lack of consistent cardiac symptoms and complaints, aside from the 11 shocks themselves supports a finding that plaintiff’s defibrillator was working properly, does not 12 necessarily contradict plaintiff’s complaints of anxiety and even trauma resulting from its 13 activation, the ALJ considered the evidence and concluded this treatment did not inhibit 14 plaintiff’s functioning to the degree plaintiff alleged. Indeed, the ALJ found that, when plaintiff

15 did seek treatment for anxiety, “therapy notes [. . .] are brief and do not provide any insight into 16 [plaintiff’s] symptoms or functioning[.]” AR 35. In arguing that the ALJ erred, plaintiff points 17 primarily to evidence that post-dated the date last insured by several years. See, e.g., Dkt. 23, pp. 18 2,5 (citing AR 437, 2817–3050). While the ALJ indicated that he considered this evidence, he 19 correctly noted that plaintiff was required to establish disability before that date and “focus[ed] 20 primarily on the medical records pertaining to treatment during the period of adjudication[.]” AR 21 30. As to plaintiff’s musculoskeletal issues, the ALJ stated that they “have been mentioned 22 infrequently and treated conservatively, with nothing in the record to show they caused any 23 significant functional difficulties.” AR 35–36. The ALJ noted that, in one instance, plaintiff

24 1 reported pain and dyspnea on exertion, but contrasted this with other instances during the period 2 of adjudication when she did not report these symptoms. AR 33 (citing AR 1525–28, 1561). 3 While plaintiff offers an alternative interpretation of this evidence, “[i]f the ALJ’s finding is 4 supported by substantial evidence in the record, [the reviewing Court] may not engage in second

5 guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 6 In sum, the ALJ relied on an abundance of objective medical evidence to show that 7 plaintiff’s allegations regarding the severity of her impairments were contradicted by the medical 8 evidence. The Court does not agree with all of the ALJ’s reasons for discounting plaintiff’s 9 testimony, but the Court need not uphold all of an ALJ’s reasons for discounting a claimant’s 10 testimony to affirm the ALJ’s decision, so long as that decision enjoys the support of substantial 11 evidence. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). 12 Such support was present here. .. 13 The ALJ’s decision to reject plaintiff’s subjective symptom testimony was supported by 14 substantial evidence; thus, the ALJ did not err in rejecting this testimony.

15 2. Whether the ALJ Erred in Determining Plaintiff’s Age Category 16 Plaintiff alleges that the ALJ erred by mechanically applying the age categories, resulting 17 in a finding that plaintiff was not disabled prior to his 55th birthday. Dkt. 18, pp. 13–14. The 18 Medical-Vocational Guidelines have three age categories: Younger person (under age 50); 19 Person closely approaching advanced age (age 50-54); and Person of advanced age (age 55 or 20 older). 20 C.F.R. §404.1563(c)-(e). At advanced age, the administration has determined that “age 21 significantly affects a person’s ability to adjust to other work.” 20 C.F.R. §404.1563(e). The ALJ 22 found that, as plaintiff was 50 years old on the alleged onset date and 54 years, 11 months old on 23

24 1 her date last insured, she should be considered an individual closely approaching advanced age 2 for the period at issue. AR 37. 3 Plaintiff’s date last insured was December 31, 2012, exactly one month before her 55th 4 birthday. AR 37. The Administration has stated that it will not mechanically apply the age

5 categories, and that “[i]f you are within a few days to a few months of reaching an older age 6 category, and using the older age category would result in a determination or decision that you 7 are disabled, we will consider whether to use the older age category after evaluation the overall 8 impact of all the factors of your case. 20 C.F.R. §§ 404.1563(b), 415.963(b). Although the ALJ is 9 required to consider using the older age category, the Ninth Circuit has held that the ALJ is not 10 required to do so. Lockwood v. Comm’r SSA, 616 F.3d 1068, 1071 (9th Cir. 2010) (citing Bowie 11 v. Comm’r, 539 F.3d 395, 399-401 (6th Cir. 2008) (holding that section 404.1563(b) “does not 12 impose on ALJs a per se procedural requirement to address borderline age categorization in 13 every borderline case”). 14 Here, the ALJ considered whether a non-mechanical application of the age categories

15 was appropriate, but found that “neither her education nor her work experience would justify 16 applying the next higher age category[,]” and there was “no evidence of any other factors that 17 would warrant applying the next higher age category.” AR 38. In Lockwood, the Ninth Circuit 18 found that this was sufficient: 19 [T]he ALJ satisfied the requirement that she consider whether to use the older age category. The ALJ mentioned in her decision Lockwood's date of birth and found 20 that Lockwood was 54 years old and, thus, a person closely approaching advanced age on the date of the ALJ's decision. Clearly the ALJ was aware that Lockwood 21 was just shy of her 55th birthday, at which point she would become a person of advanced age. The ALJ also cited to 20 C.F.R. § 404.1563, which prohibited her 22 from applying the age categories mechanically in a borderline situation. Thus, the ALJ's decision shows that the ALJ knew she had discretion "to use the older age 23 category after evaluating the overall impact of all the factors of [Lockwood's] case." 20 C.F.R. § 404.1563(b). Finally, we are satisfied the ALJ did not "apply 24 1 the age categories mechanically" because the ALJ "evaluat[ed] the overall impact of all the factors of [Lockwood's] case" when the ALJ relied on the testimony of a 2 vocational expert before she found Lockwood was not disabled. Id.

3 616 F.3d at 1071–72. The Court held that no further explanation was necessary. Id. at 174. 4 Accordingly, the ALJ properly considered whether it was proper in this case to mechanically 5 apply the age categories. 6 3. Whether the ALJ Erred in Formulating Plaintiff’s RFC 7 Finally, plaintiff assigns error to the ALJ’s RFC determination. Dkt. 18, p. 14. “The ALJ 8 is responsible for translating and incorporating clinical findings into a succinct [residual 9 functional capacity].” Rounds v. Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 10 2015). And as long as it is supported by “more than a mere scintilla[,]” Biestek, 139 S. Ct. at 11 1154, that finding is conclusive, even if “the ALJ’s interpretation of [the evidence] might not be 12 the only reasonable one.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 13 Plaintiff’s challenge to the ALJ’s RFC determination is predicated on the notion that the 14 ALJ erred in evaluating plaintiff’s symptom testimony and ignored objective medical evidence 15 that did not support his conclusion. See Dkt. 18, pp. 14–15. As discussed above, however, the 16 ALJ did not fail to properly evaluated plaintiff’s subjective testimony, and the ALJ did not 17 ignore evidence unfavorable to his conclusion but, rather, considered all of the medical evidence 18 and reasonably concluded that it did not support disability to the extent which plaintiff alleged. 19 Plaintiff has failed to show that no reasonable person could find as the ALJ did. 20 21 22 23

24 1 CONCLUSION 2 Based on these reasons and the relevant record, the Court ORDERS that this matter be 3 AFFIRMED. 4 JUDGMENT is for defendant and the case is closed.

5 Dated this 12th day of November, 2021. A 6

7 J. Richard Creatura Chief United States Magistrate Judge 8

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