1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paula Buccini, No. CV-22-00467-TUC-MSA
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Paula Buccini seeks judicial review of an unfavorable decision issued by 16 the Commissioner of Social Security Administration. The matter has been fully briefed. 17 For the following reasons, the Commissioner’s decision will be affirmed. 18 Background 19 Plaintiff is 58 years old. (AR 162.) She completed high school and cosmetology 20 school. (AR 203.) She worked as a cosmetology teacher for 13 years before quitting in 21 early 2021. (AR 203.) Before that, she worked as a hair stylist for 14 years. (AR 203.) She 22 alleges that she is disabled because of heart disease, difficulty breathing, fatigue, 23 headaches, and back pain. (AR 202.) She says that she loses her breath when she talks, 24 climbs stairs, stands for long periods of time, or lifts more than five pounds. (AR 79, 214, 25 218.) She also says that she needs breaks to complete household chores such as laundry, 26 and that she can walk or concentrate for only 15 minutes at a time. (AR 80, 82, 214–15, 27 218.) 28 In 2021, Plaintiff filed an application for disability insurance benefits. (AR 162.) 1 The application was denied initially and on reconsideration. (AR 93, 103.) Plaintiff 2 requested a hearing before an administrative law judge (ALJ), and a hearing was held in 3 February 2022. (AR 71–92, 132.) 4 After the hearing, the ALJ issued a written decision following the five-step process 5 for determining whether a person is disabled. 20 C.F.R. § 404.1520. At step one, the ALJ 6 found that Plaintiff had not engaged in substantial gainful activity since her alleged onset 7 date. (AR 57.) At step two, the ALJ found that Plaintiff had three severe impairments: 8 congestive heart failure, coronary heart disease, and obesity. (AR 57.) At step three, the 9 ALJ found that Plaintiff did not have an impairment or a combination of impairments that 10 met or medically equaled the severity of a listed impairment. (AR 58–59.) Between steps 11 three and four, the ALJ found that Plaintiff had the residual functional capacity to perform 12 light work with certain exertional limitations. (AR 59.) At step four, the ALJ found that 13 Plaintiff could return to her past relevant work as a vocational instructor. (AR 62.) The ALJ 14 therefore concluded that Plaintiff was not disabled. (AR 63.) 15 The Appeals Council denied review, making the ALJ’s decision the final decision 16 of the Commissioner. (AR 1.) This lawsuit followed. 17 Legal Standard 18 The Commissioner’s decision will be affirmed if it is supported by substantial 19 evidence and free of legal error. White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022) 20 (quoting Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). “Substantial evidence . . . 21 is such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (alteration in original) 23 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). 24 Discussion 25 Plaintiff’s lone claim of error is that the ALJ failed to provide legally sufficient 26 reasons for discounting her symptom testimony. Plaintiff testified that it takes very little 27 for her to lose her breath, and that sweeping or mopping for two or three minutes, walking 28 her dogs for 15 minutes, or even talking can cause shortness of breath. (AR 79–80, 82.) 1 She also reported occasional chest pain and heart palpitations when she lifts more than a 2 gallon of milk.1 (AR 80.) 3 The parties agree that the ALJ could discount these reports only for “specific, clear 4 and convincing reasons.” Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting 5 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). This standard is satisfied when 6 “the ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 7 53 F.4th 489, 499 (9th Cir. 2022). In this case, the ALJ found that Plaintiff’s testimony was 8 inconsistent with the record, which showed that Plaintiff improved after being observed 9 with dyspnea (shortness of breath) in early 2021. (AR 61.) In particular, the ALJ found that 10 the testimony was inconsistent with (1) objective medical findings, (2) prior statements 11 Plaintiff made about her symptoms, and (3) two medical opinions. (AR 60–62.) As 12 discussed below, these reasons satisfy the clear-and-convincing standard. See Smartt, 53 13 F.4th at 498 (stating the ALJ may rely on inconsistent medical findings); Popa v. Berryhill, 14 872 F.3d 901, 906 (9th Cir. 2017) (inconsistent prior statements); Moncada v. Chater, 60 15 F.3d 521, 524 (9th Cir. 1995) (per curiam) (inconsistent medical opinions). 16 The ALJ observed that Plaintiff failed a stress test in January 2021 due to fatigue, 17 and that she reported increasing dyspnea in February and March 2021. (AR 60.) The ALJ 18 then found, based on later records, that Plaintiff’s condition improved to the point of non- 19 disability. (AR 61.) The ALJ observed that 24-hour heart monitoring in April 2021 showed 20 Plaintiff had normal sinus rhythm except for two short runs of atrial tachycardia. (AR 60, 21 523.) Tachycardia is “[a]n abnormally rapid beating of the heart,” which is a condition that 22 could reasonably be expected to produce shortness of breath. Tachycardia, Attorney’s 23 Dictionary of Medicine (2022). As such, the ALJ could rationally find that the heart 24 monitoring results, which showed normal heart rhythm with minimal tachycardia, were 25 inconsistent with Plaintiff’s testimony. Furthermore, during an appointment that same 26 month, Plaintiff denied dyspnea on exertion, chest pain, and irregular heartbeat. (AR 458.) 27 1 Plaintiff also reported frequent headaches, issues with her memory and ability to 28 concentrate, and daytime somnolence that requires her to take naps. (AR 78–79, 81, 214, 218.) She does not take issue with the ALJ’s treatment of these other reported symptoms. 1 The ALJ next observed that, in June 2021, Plaintiff reported “improved shortness 2 of breath.” (AR 60, 519.) In addition, she had no “other cardiac complaints,” and her 3 congestive heart failure was “compensated clinically.” (AR 60–61, 519.) The ALJ then 4 noted, accurately, that Plaintiff often denied “shortness of breath or chest pain with 5 exertion.” (AR 61; see AR 549 (July 2021); AR 614 (August 2021); AR 620 (September 6 2021).) The ALJ could rationally find that Plaintiff’s testimony about severe symptoms 7 was inconsistent with her prior reports of improved symptoms or no symptoms. The ALJ 8 could also rationally find that Plaintiff’s testimony was undermined by evidence that her 9 heart disease had compensated clinically. This is because dyspnea “[i]n most cases . . . is 10 due to heart disease,” Dyspnea, Attorney’s Dictionary of Medicine (2022), and 11 “compensated” heart failure typically means improved symptoms. See Decompensation, 12 Attorney’s Dictionary of Medicine (2022) (stating that decompensation of a heart condition 13 “is marked by . . . shortness of breath (dyspnea)”). 14 The ALJ noted that Plaintiff did not report dyspnea again until December 2021.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paula Buccini, No. CV-22-00467-TUC-MSA
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Paula Buccini seeks judicial review of an unfavorable decision issued by 16 the Commissioner of Social Security Administration. The matter has been fully briefed. 17 For the following reasons, the Commissioner’s decision will be affirmed. 18 Background 19 Plaintiff is 58 years old. (AR 162.) She completed high school and cosmetology 20 school. (AR 203.) She worked as a cosmetology teacher for 13 years before quitting in 21 early 2021. (AR 203.) Before that, she worked as a hair stylist for 14 years. (AR 203.) She 22 alleges that she is disabled because of heart disease, difficulty breathing, fatigue, 23 headaches, and back pain. (AR 202.) She says that she loses her breath when she talks, 24 climbs stairs, stands for long periods of time, or lifts more than five pounds. (AR 79, 214, 25 218.) She also says that she needs breaks to complete household chores such as laundry, 26 and that she can walk or concentrate for only 15 minutes at a time. (AR 80, 82, 214–15, 27 218.) 28 In 2021, Plaintiff filed an application for disability insurance benefits. (AR 162.) 1 The application was denied initially and on reconsideration. (AR 93, 103.) Plaintiff 2 requested a hearing before an administrative law judge (ALJ), and a hearing was held in 3 February 2022. (AR 71–92, 132.) 4 After the hearing, the ALJ issued a written decision following the five-step process 5 for determining whether a person is disabled. 20 C.F.R. § 404.1520. At step one, the ALJ 6 found that Plaintiff had not engaged in substantial gainful activity since her alleged onset 7 date. (AR 57.) At step two, the ALJ found that Plaintiff had three severe impairments: 8 congestive heart failure, coronary heart disease, and obesity. (AR 57.) At step three, the 9 ALJ found that Plaintiff did not have an impairment or a combination of impairments that 10 met or medically equaled the severity of a listed impairment. (AR 58–59.) Between steps 11 three and four, the ALJ found that Plaintiff had the residual functional capacity to perform 12 light work with certain exertional limitations. (AR 59.) At step four, the ALJ found that 13 Plaintiff could return to her past relevant work as a vocational instructor. (AR 62.) The ALJ 14 therefore concluded that Plaintiff was not disabled. (AR 63.) 15 The Appeals Council denied review, making the ALJ’s decision the final decision 16 of the Commissioner. (AR 1.) This lawsuit followed. 17 Legal Standard 18 The Commissioner’s decision will be affirmed if it is supported by substantial 19 evidence and free of legal error. White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022) 20 (quoting Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). “Substantial evidence . . . 21 is such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (alteration in original) 23 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). 24 Discussion 25 Plaintiff’s lone claim of error is that the ALJ failed to provide legally sufficient 26 reasons for discounting her symptom testimony. Plaintiff testified that it takes very little 27 for her to lose her breath, and that sweeping or mopping for two or three minutes, walking 28 her dogs for 15 minutes, or even talking can cause shortness of breath. (AR 79–80, 82.) 1 She also reported occasional chest pain and heart palpitations when she lifts more than a 2 gallon of milk.1 (AR 80.) 3 The parties agree that the ALJ could discount these reports only for “specific, clear 4 and convincing reasons.” Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting 5 Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). This standard is satisfied when 6 “the ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 7 53 F.4th 489, 499 (9th Cir. 2022). In this case, the ALJ found that Plaintiff’s testimony was 8 inconsistent with the record, which showed that Plaintiff improved after being observed 9 with dyspnea (shortness of breath) in early 2021. (AR 61.) In particular, the ALJ found that 10 the testimony was inconsistent with (1) objective medical findings, (2) prior statements 11 Plaintiff made about her symptoms, and (3) two medical opinions. (AR 60–62.) As 12 discussed below, these reasons satisfy the clear-and-convincing standard. See Smartt, 53 13 F.4th at 498 (stating the ALJ may rely on inconsistent medical findings); Popa v. Berryhill, 14 872 F.3d 901, 906 (9th Cir. 2017) (inconsistent prior statements); Moncada v. Chater, 60 15 F.3d 521, 524 (9th Cir. 1995) (per curiam) (inconsistent medical opinions). 16 The ALJ observed that Plaintiff failed a stress test in January 2021 due to fatigue, 17 and that she reported increasing dyspnea in February and March 2021. (AR 60.) The ALJ 18 then found, based on later records, that Plaintiff’s condition improved to the point of non- 19 disability. (AR 61.) The ALJ observed that 24-hour heart monitoring in April 2021 showed 20 Plaintiff had normal sinus rhythm except for two short runs of atrial tachycardia. (AR 60, 21 523.) Tachycardia is “[a]n abnormally rapid beating of the heart,” which is a condition that 22 could reasonably be expected to produce shortness of breath. Tachycardia, Attorney’s 23 Dictionary of Medicine (2022). As such, the ALJ could rationally find that the heart 24 monitoring results, which showed normal heart rhythm with minimal tachycardia, were 25 inconsistent with Plaintiff’s testimony. Furthermore, during an appointment that same 26 month, Plaintiff denied dyspnea on exertion, chest pain, and irregular heartbeat. (AR 458.) 27 1 Plaintiff also reported frequent headaches, issues with her memory and ability to 28 concentrate, and daytime somnolence that requires her to take naps. (AR 78–79, 81, 214, 218.) She does not take issue with the ALJ’s treatment of these other reported symptoms. 1 The ALJ next observed that, in June 2021, Plaintiff reported “improved shortness 2 of breath.” (AR 60, 519.) In addition, she had no “other cardiac complaints,” and her 3 congestive heart failure was “compensated clinically.” (AR 60–61, 519.) The ALJ then 4 noted, accurately, that Plaintiff often denied “shortness of breath or chest pain with 5 exertion.” (AR 61; see AR 549 (July 2021); AR 614 (August 2021); AR 620 (September 6 2021).) The ALJ could rationally find that Plaintiff’s testimony about severe symptoms 7 was inconsistent with her prior reports of improved symptoms or no symptoms. The ALJ 8 could also rationally find that Plaintiff’s testimony was undermined by evidence that her 9 heart disease had compensated clinically. This is because dyspnea “[i]n most cases . . . is 10 due to heart disease,” Dyspnea, Attorney’s Dictionary of Medicine (2022), and 11 “compensated” heart failure typically means improved symptoms. See Decompensation, 12 Attorney’s Dictionary of Medicine (2022) (stating that decompensation of a heart condition 13 “is marked by . . . shortness of breath (dyspnea)”). 14 The ALJ noted that Plaintiff did not report dyspnea again until December 2021. 15 (AR 61, 635.) At that time, however, she denied other cardiac complaints. (AR 635.) Her 16 next report of dyspnea came in March 2022. On March 22, she reported difficulty 17 breathing, but that was accompanied by flu-like symptoms, and she was discharged with a 18 diagnosis of acute bacterial bronchitis. (AR 656, 659.) Notably, that is a temporary 19 condition that could reasonably be expected to cause shortness of breath. Bronchitis, Acute, 20 Attorney’s Dictionary of Medicine (2022) (stating that acute bronchitis has “a short but 21 rather severe course” and is occasionally “marked by . . . shortness of breath”). The ALJ 22 next observed that, in April 2022 (when the record ends), Plaintiff’s pulse oximetry was 23 98% after walking on “room air” for a couple of minutes. (AR 61, 674–75.) Dr. Richard 24 Palmer, the doctor who administered the walking exercise, observed that while Plaintiff 25 claimed that the exercise had left her breathless, she showed no signs of breathlessness. 26 (AR 61, 675.) 27 In the ALJ’s view, the foregoing evidence showed that Plaintiff’s dyspnea improved 28 to the point of non-disability. (AR 61.) That interpretation is rational. Plaintiff frequently 1 denied dyspnea and problems with her heart. When she presented with dyspnea, there were 2 other potential causes present. (See AR 461–62, 465 (in March 2021, Plaintiff had dyspnea 3 even at rest, but she had recently had COVID); AR 656, 659 (in March 2022, Plaintiff had 4 dyspnea when she had acute bronchitis).) The objective medical findings (heart monitoring 5 and pulse oximetry readings) indicated her heart was functioning properly, and her provider 6 noted that her heart disease had compensated. The ALJ could rationally conclude that this 7 evidence undermined Plaintiff’s testimony that she suffered from severe dyspnea. 8 The ALJ also relied on two medical opinions. (See AR 61 (noting that Dr. Palmer 9 “opined that the claimant can perform light exertion”); AR 62 (stating that the residual 10 functional capacity was supported by the opinions of the state-agency doctors and Dr. 11 Palmer).) The state-agency doctors found that Plaintiff’s symptoms were not as severe as 12 alleged, as she had reported improved symptoms and her heart condition was noted to be 13 compensated and stable. (AR 110.) Based on their review of the record, they also found 14 that Plaintiff could walk and stand for a significant part of the day. (AR 111–12.) Dr. 15 Palmer, a consulting physician, reached a similar conclusion based on his review of the 16 record and on his own examination. (AR 678–82.) The ALJ found these opinions 17 persuasive because they were well-supported with citations and were consistent with the 18 record. (AR 62.) The ALJ could rationally find that such evidence undermined Plaintiff’s 19 testimony. 20 Plaintiff contends that the evidence cited by the ALJ does not actually undermine 21 her specific symptom testimony. As an example, she argues that Dr. Palmer’s observation 22 that she can walk for “a couple minutes” without experiencing dyspnea does not undermine 23 her testimony that she experiences dyspnea after “walking the dogs for approximately 24 fifteen minutes.” (AR 80, 675.) However, the thrust of Plaintiff’s testimony was that it took 25 very little for her to lose her breath. (AR 79 (“I don’t have to exert myself very much to 26 have the shortness of breath.”).) For instance, she testified that she could lose her breath 27 simply from sweeping or mopping for two or three minutes, or even from just talking for 28 □□ a short period of time.” (AR 79, 82.) In this context, the Court cannot say that the ALJ’s 2|| findings were irrational. See Smartt, 53 F.4th at 499 (“The standard isn’t whether [the] 3 || court is convinced, but instead whether the ALJ’s rationale is clear enough that it has the power to convince.’). 5 Plaintiff also contends that the ALJ erred by conflating her ability to do “light || activities” at the consultative examination with the ability to do “light exertion,” as that || term is defined for purposes of social security claims. She points out that Dr. Palmer did 8 || not have her “lift[] a 20-pound weight” or “stand[] for a significant length of time,” both 9|| of which are required for light exertion. The Court disagrees that there was any such error. || As an initial matter, Dr. Palmer did not need to make Plaintiff lift 20-pound weights or 11 |} stand for six hours before opining that Plaintiff could do so. Moreover, the ALJ did not confuse light activity with light work. The ALJ rationally found, based on the longitudinal 13 || record and the opinions of two physicians, that Plaintiff's symptoms improved to the point 14]| that she could perform light work. The consultative examination was only part of that 15 | broader analysis. The Court rejects Plaintiff's claim of error. 16 Conclusion 17 The ALJ’s decision is supported by substantial evidence and free of legal error. 18 || Therefore, 19 IT IS ORDERED that the Commissioner's decision is affirmed. The Clerk of 20 || Court is directed to enter judgment accordingly and close this case. 21 Dated this 12th day of September, 2023. a ere 23 United States Mags ae □□□□□ 24 25 2 In her opening brief, Plaintiff claims her testimony was that she loses her breath after “speaking for extended periods of time.” She said no such thing. During her hearing 27 before the ALJ, she remarked that als [she was] sitting [there] talking, [she was] having {estimony, and she had given mostly short answers (many “yes” or “no” answers) up To that point. (AR 71-79.) -6-