Flynn v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 15, 2024
• Docket: 2:22-cv-01776
• Status: Unknown

Opinion

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

9 Richard Patrick Flynn, III, No. CV-22-01776-PHX-JJT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Richard Patrick Flynn, III’s Applications for 16 Disability Insurance Benefits and Supplemental Security Income by the Social Security 17 Administration under the Social Security Act. Plaintiff filed a Complaint (Doc. 1) with this 18 Court seeking judicial review of that denial. The Court now addresses Plaintiff’s Opening 19 Brief (Doc. 19, Pl. Br.), Defendant Social Security Administration Commissioner’s 20 Response Brief (Doc. 23, Def. Br.), and Plaintiff’s Reply (Doc. 24, Reply). The Court has 21 reviewed the briefs and Administrative Record (Doc. 16, R.) and now affirms the 22 Administrative Law Judge’s (ALJ) decision (R. at 14–27) as upheld by the Appeals 23 Council (R. at 1–3). 24 I. BACKGROUND 25 Plaintiff filed an Application for Disability Insurance Benefits on June 16, 2020, 26 and an Application for Supplemental Security Income on June 17, 2020, for a period of 27 disability beginning on October 1, 2019. (R. at 14.) His claims were denied initially on 28 July 24, 2020, and upon reconsideration on September 23, 2020. (R. at 14.) On April 30, 1 2021, Plaintiff appeared telephonically before the ALJ for a hearing regarding his claim. 2 (R. at 14.) On July 8, 2021, the ALJ denied Plaintiff’s claim. (R. at 14–27.) On 3 September 9, 2022, the Appeals Council denied Plaintiff’s Request for Review of the 4 ALJ’s decision. (R. at 1–3.) 5 In the Decision, the ALJ found Plaintiff had the severe impairments of bipolar 6 type I, anxiety, and post-traumatic stress disorder (PTSD). (R. at 19.) The ALJ evaluated 7 the medical evidence and testimony and ultimately concluded that Plaintiff was not 8 disabled. (R. at 27.) In so doing, the ALJ determined that Plaintiff did “not have an 9 impairment or combination of impairments that meets or medically equals the severity of 10 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (R. at 20.) 11 The ALJ found that Plaintiff had the Residual Functional Capacity (RFC) to perform work 12 at all exertional levels but with mental limitations. (R. at 25.) Based on the RFC 13 formulation and the testimony of the Vocational Expert (VE) at the hearing, the ALJ found 14 that Plaintiff could perform jobs that exist in significant numbers in the national economy 15 such that Plaintiff was not under a disability as defined in the Social Security Act. (R. 16 at 26–27.) 17 II. LEGAL STANDARD 18 In determining whether to reverse an ALJ’s decision, the district court reviews only 19 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 20 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 21 determination only if the determination is not supported by substantial evidence or is based 22 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 23 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 24 person might accept as adequate to support a conclusion considering the record as a whole. 25 Id.; see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). To determine whether 26 substantial evidence supports a decision, the Court must consider the record as a whole and 27 may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 28 Generally, “[w]here the evidence is susceptible to more than one rational interpretation, 1 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 2 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 3 To determine whether a claimant is disabled for purposes of the Act, the ALJ 4 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 5 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 6 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 7 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 8 § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step 9 two, the ALJ determines whether the claimant has a “severe” medically determinable 10 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 11 disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 12 impairment or combination of impairments meets or medically equals an impairment listed 13 in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 14 the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 15 Id. At step four, the ALJ assesses the claimant’s residual functional capacity and 16 determines whether the claimant is still capable of performing past relevant work. 17 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. 18 If not, the ALJ proceeds to the fifth and final step, where she determines whether the 19 claimant can perform any other work in the national economy based on the claimant’s RFC, 20 age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is 21 not disabled. Id. If not, the claimant is disabled. Id. 22 III. ANALYSIS 23 Plaintiff raises the following arguments for the Court’s consideration: (1) the ALJ’s 24 reasons for discounting the opinions of Plaintiff’s medical care providers were not 25 supported by substantial evidence in the record; and (2) the ALJ rejected Plaintiff’s 26 testimony without clear and convincing reasons. (Pl. Br. at 1.) The Court now examines 27 these in turn. 28 1 A. Medical Opinions 2 Plaintiff first challenges the ALJ’s assessment of the opinions of Michael Duerden, 3 M.D., a psychiatry resident at the University of Arizona who treated Plaintiff for bipolar 4 disorder and anxiety beginning in July 2020. (Pl. Br. at 12–19.) 5 The Ninth Circuit no longer accords special deference to a treating or examining 6 physician. Woods v. Kijakazi, 32 F. 4th 785, 792 (9th Cir. 2022). In 2017, the Social 7 Security Administration amended the regulations for evaluating medical evidence. See 8 Revisions to Rules Regarding Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5844 9 (Jan. 18, 2017). The 2017 regulations provide that “[w]e will not defer or give any specific 10 evidentiary weight, including controlling weight, to any medical opinion . . . . The most 11 important factors we consider when we evaluate the persuasiveness of medical opinions 12 . . . are supportability . . . and consistency.” 20 C.F.R. § 404.1520c(a). Other factors, which 13 an ALJ “may, but [is] not required to[ ] explain” when evaluating the persuasiveness of a 14 medical opinion, are the medical source’s “relationship with the claimant,” 15 “specialization,” “familiarity with the other evidence in the claim,” and “understanding of 16 our disability program’s policies and evidentiary requirements.” Id. § 404.1520c(b)(2), (c). 17 Moreover, the Ninth Circuit held its requirement that ALJs provide “specific and 18 legitimate reasons” for rejecting a treating or examining doctor’s opinion is incompatible 19 with the revised regulations. Woods, 32 F. 4th at 790. Nonetheless, in rejecting a treating 20 or examining doctor’s opinion as unsupported or inconsistent, an ALJ must provide an 21 explanation—that is, reasons—supported by substantial evidence. Id. This means that the 22 ALJ “must ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from each 23 doctor or other source, and ‘explain how it considered the supportability and consistency 24 factors’ in reaching these findings.” Id. (citing 20 C.F.R. §§ 404.1520c(b), 404.1520(b)(2)). 25 Dr. Duerden noted Plaintiff’s history of manic and depressive episodes as well as 26 disturbance of mood, anhedonia, appetite and sleep disturbance, paranoia, psychomotor 27 retardation, decreased energy, hyperactivity, and distractability. (R. at 650–51.) On account 28 of Plaintiff’s bipolar disorder and anxiety as well as PTSD arising from being robbed at 1 gunpoint while working at a convenience store, Dr. Duerden opined that Plaintiff would be 2 moderately limited in his ability to adapt and his ability to understand, remember, and apply 3 information, and markedly limited in his ability to interact with others and his ability to 4 maintain concentration, persistence, or pace. (R. at 651.) Additionally, Dr. Duerden 5 concluded Plaintiff would have marked limitations in short-term memory, including in 6 remembering locations and work-like procedures. (R. at 652–53.) Dr. Duerden opined that 7 Plaintiff would be able to maintain attention and concentration for less than 30 minutes at 8 a time, would be off task greater than 25 percent of the time, and would be absent for more 9 than four days a month due to his impairments. (R. at 653–54.) 10 The ALJ found Dr. Duerden’s opinion “partially persuasive,” and indeed the ALJ 11 found the opinions of none of the medical care providers or state agency reviewing doctors 12 in the record entirely persuasive. (R. at 23, 25.) The ALJ found certain of Dr. Duerden’s 13 findings supported by his observations that Plaintiff “struggled with tasks, had problems 14 with depression and struggled with concentration,” and the ALJ assigned moderate 15 limitations to a number of “paragraph B” areas,1 including the ability to interact with 16 others; concentrate, persist, or maintain pace; and adapt or manage oneself. (R. at 25.) 17 Importantly, the ALJ found Dr. Duerden’s opinions that Plaintiff would be off task more 18 than 25 percent of the time and absent more than four days a month to be inconsistent with 19 his treatment notes. (R. at 25.) While the ALJ acknowledged that Dr. Duerden noted 20 Plaintiff’s “anxiety, depression and PTSD,” the ALJ observed that, in his treatment 21 sessions, Plaintiff often had “grossly intact memory, had average/appropriate fund of 22 knowledge, had a normal mood, had grossly intact attention/concentration and was alert 23 and/or oriented”; that he “reported improvement in his depression”; and that he “reported 24 things were ‘going well’ in multiple examinations.” (R. at 22, 25.) Elsewhere in her 25 decision, the ALJ stated that the mental impairments noted by Dr. Duerden “have similar 26 symptomology and are subjective in nature,” and the ALJ considered only Plaintiff’s 27 1 Part (or Paragraph) B of the Social Security Administrations rules with regard to 28 mental impairment lists evaluative criteria for a claimant’s mental condition, and limitation in these areas are rated as none, mild, moderate, marked, or extreme. 1 “psychological symptoms and their effect on his functioning, cumulatively, regardless of 2 the diagnoses.” (R. at 22.) 3 The ALJ thus concluded that Plaintiff’s mental impairments can be accommodated 4 by “limiting the changes in [Plaintiff’s] work environment and work procedures, limiting 5 his interactions with supervisors and co-workers, restricting his interaction with the public 6 and allowing him less than 10% off-task time.” (R. at 25.) In doing so, the ALJ properly 7 considered the supportability and consistency factors and relied on substantial evidence in 8 the record. While Plaintiff is correct that he underwent psychiatric hospitalization in 9 October 2019 and that certain treatment notes recorded that he was “distressed” and 10 “tearful,” many other treatment notes stated he had a “normal mood,” was improving, and 11 felt things were “going well.” (R. at 20–22.) 12 Even in an instance such as this—where some of Dr. Duerden’s treatment notes 13 indicate more mental impairment than others and some medical care providers opined 14 Plaintiff was more limited than others—the ALJ must simply give sufficient reasons 15 supported by substantial evidence for resolving the discrepancies and reaching her 16 conclusions. Because the ALJ met that standard here, the Court will not disturb the ALJ’s 17 conclusions. See Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004) 18 (“When evidence reasonably supports either confirming or reversing the ALJ’s decision, 19 we may not substitute our judgment for that of the ALJ.” (internal citation omitted)). 20 Moreover, the RFC formulated by the ALJ accounted for Dr. Duerden’s findings by 21 limiting Plaintiff to no interaction with the public and only occasional changes in the work 22 environment and procedures. 23 The same applies to the ALJ’s evaluation of the opinion of Lori Fantry, M.D., an 24 infectious disease specialist Plaintiff saw to treat HIV. Dr. Fantry stated that Plaintiff would 25 have limitations including being off task greater than 25 percent of the time, maintaining 26 attention and concentration for less than one hour at a time, and standing or walking for 27 less than one hour in an eight-hour day. (R. at 640–41.) Plaintiff argues that the ALJ “failed 28 to perform even a surface level analysis of Dr. Fantry’s opinion” (Pl. Br. at 11, 19–21), but 1 that is not the case. The ALJ found that while Dr. Fantry’s opinion appeared to be supported 2 by testing she performed, it was inconsistent with the medical evidence. (R. at 24.) Indeed, 3 Plaintiff himself testified at the hearing that it would be fair to say he is not limited from 4 working due to any physical limitations and “there’s medically nothing physical that I 5 could not work” other than his mental impairments, and in particular, fear and anxiety. 6 (R. at 50–51.) The ALJ gave sufficient reasons supported by substantial evidence in the 7 record to discount Dr. Fantry’s opinion of Plaintiff’s physical limitations. 8 In sum, the Court finds no material error in the ALJ’s evaluation of the medical 9 evidence. 10 B. Symptom Testimony 11 In his testimony before the ALJ (R. at 35–69), Plaintiff emphasized that the reasons 12 he feels unable to work are fear and anxiety (R. at 41–42, 46) and that it causes him to lose 13 concentration in completing tasks and generally to want to stay in his home. Plaintiff now 14 argues that the ALJ failed to provide clear and convincing reasons for discounting 15 Plaintiff’s subjective testimony. (Pl. Br. at 21–25.) 16 While credibility is the province of the ALJ, an adverse credibility determination 17 requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 18 claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 19 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen v. Chater, 80 20 F.3d 1273, 1281 (9th Cir. 1996).)). For example, “[i]n evaluating the credibility of pain 21 testimony after a claimant produces objective medical evidence of an underlying 22 impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a 23 lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. 24 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). But the ALJ may properly consider that the 25 medical record lacks evidence to support certain symptom testimony. Id. at 681. The ALJ 26 may also properly consider inconsistencies in the claimant’s testimony, including 27 inconsistencies between the claimant’s testimony of daily activities and symptom 28 testimony. Id. 1 The ALJ concluded that, while Plaintiffs medically determinable mental 2 || impairments—bipolar type I, anxiety, and PTSD—could be expected to cause the alleged 3|| symptoms, Plaintiff's statements about the “intensity, persistence and limiting effects of 4|| these symptoms are not entirely consistent with the medical evidence.” (R. at 22.) For || example, the treatment notes showed that Plaintiff improved after the 2019 psychiatric || hospitalization and no longer had suicidal or homicidal ideations. (R. at 22.) Likewise, for Plaintiff’s symptom of headaches, grogginess, fatigue, and nausea induced by anxiety and 8 || the medications therefor, the treatment record showed that Plaintiff either did not report || these symptoms or that they had improved. (R. at 23.) As noted supra, the ALJ also noted || that, in many of Plaintiffs treatment sessions, he was calm with normal mood with “grossly 11 || intact concentration.” (R. at 23.) Moreover, in terms of treatment, the ALJ noted that 12 || Plaintiff has not undergone any further in-patient hospitalization for his reported symptoms 13 || since October 2019. (R. at 23.) 14 The ALJ provided specific and clear reasons for discounting Plaintiff's testimony, 15} and—like the ALJ’s evaluation of the medical evidence—the reasons were sufficiently convincing for the Court not to disturb them. See Batson, 359 F.3d at 1196. In the absence of finding material error on the part of the ALJ, the Court will affirm the ALJ’s decision. 18 IT IS THEREFORE ORDERED affirming the July 8, 2021 decision of the ALJ □□ (R. at 14-27), as affirmed by the Appeals Council (R. at 1-3). 20 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment and close this case. 22 Dated this 15th day of May, 2024. CN 23 “wok: 74 wefehlee— Unig StatesDistrict Judge 25 26 27 28

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