Frigon v. Commissioner of Social Security Administration

Opinion

1 WO 2

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Russell Lee Frigon, No. CV-18-1544-PHX-ESW 9 10 Plaintiff, ORDER

11 v. 12 Acting Commissioner of the Social Security 13 Administration,

14 Defendant. 15

16 17 18 Pending before the Court is Russell Lee Frigon’s (“Plaintiff”) appeal of the Social 19 Security Administration’s (“Social Security”) denial of his application for disability 20 insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 21 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based 22 upon the pleadings and transcript of the record, a judgment affirming, modifying, or 23 reversing the decision of the Commissioner of Social Security, with or without 24 remanding the case for a rehearing. Both parties have consented to the exercise of U.S. 25 Magistrate Judge jurisdiction. (Doc. 7). 26 After reviewing the Administrative Record (“A.R.”) and the parties’ briefing 27 (Docs. 10, 14, 15), the Court finds that the Administrative Law Judge’s (“ALJ”) decision 28 1 is supported by substantial evidence and is free of harmful legal error. The decision is 2 therefore affirmed. 3 I. BACKGROUND 4 Plaintiff, who was born in 1963, has experience working as a hair stylist and retail 5 store manager. (A.R. 67, 93). Plaintiff’s application for disability insurance benefits 6 alleged that on May 15, 2011, he became unable to work due to human 7 immunodeficiency virus (“HIV”), back injury/back pain, arthritis, and depression. (A.R. 8 93). Social Security denied the application. (A.R. 127-30). In November 2012, upon 9 Plaintiff’s request for reconsideration, Social Security affirmed the denial of benefits. 10 (A.R. 132-34). Plaintiff sought further review by an ALJ, who conducted a hearing in 11 October 2013. (A.R. 36-91). 12 In a October 31, 2013 decision, the ALJ found that Plaintiff is not disabled within 13 the meaning of the Social Security Act. (A.R. 18-35). The Appeals Council denied 14 Plaintiff’s request for review. (A.R. 1-6). On February 12, 2015, Plaintiff filed a 15 Complaint in the U.S. District Court for the District of Arizona seeking judicial review 16 and reversal of the ALJ’s decision. Case No. CV-15-00269-PHX-DGC, Doc. 1. Plaintiff 17 argued that the ALJ (i) improperly rejected the medical opinions of Drs. Thanes Vanig, 18 Drew Kovach, and Brent Geary and (ii) erroneously failed to consider Reiter’s Syndrome 19 as a severe impairment. (A.R. 1144-45). The assigned District Judge ruled that because 20 the ALJ’s decision “is generally supported by substantial evidence and not based on legal 21 error, the decision will be generally affirmed.” (A.R. 1142). The District Judge 22 remanded the matter for further proceedings to address Dr. Vanig’s opinion concerning 23 Plaintiff’s alleged fatigue. (A.R. 1150). 24 On remand, the matter was assigned to a different ALJ, who held a second 25 administrative hearing in March 2016. (A.R. 1070-1106). In an October 2016 decision, 26 the ALJ determined that Plaintiff is capable of performing his past relevant work. (A.R. 27 1051-63). The Appeals Council denied review, and Plaintiff filed the instant action. 28 1 II. LEGAL STANDARDS 2 A. Disability Analysis: Five-Step Evaluation 3 The Social Security Act (the “Act”) provides for disability insurance benefits to 4 those who have contributed to the Social Security program and who suffer from a 5 physical or mental disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits based 6 on an alleged disability, the claimant must show that he or she suffers from a medically 7 determinable physical or mental impairment that prohibits him or her from engaging in 8 any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show 9 that the impairment is expected to cause death or last for a continuous period of at least 10 12 months. Id. 11 To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an 12 analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. 13 § 404.1520(a). The claimant has the burden of proof regarding the first four steps:1 14 Step One: Is the claimant engaged in “substantial gainful 15 activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to step two. 16 Step Two: Does the claimant have a medically severe 17 impairment or combination of impairments? A severe 18 impairment is one which significantly limits the claimant’s 19 physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe 20 impairment or combination of impairments, disability benefits 21 are denied at this step. Otherwise, the ALJ proceeds to step 22 three. 23 Step Three: Is the impairment equivalent to one of a number 24 of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 25 C.F.R. § 404.1520(d). If the impairment meets or equals one 26 of the listed impairments, the claimant is conclusively 27 presumed to be disabled. If the impairment is not one that is

28 1 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007). 1 presumed to be disabling, the ALJ proceeds to the fourth step 2 of the analysis. 3 Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? 4 If not, the claimant is “not disabled” and disability benefits 5 are denied without continuing the analysis. 20 C.F.R. § 6 404.1520(f). Otherwise, the ALJ proceeds to the last step. 7 If the analysis proceeds to the final question, the burden of proof shifts to the 8 Commissioner:2 9 Step Five: Can the claimant perform other work in the 10 national economy in light of his or her age, education, and work experience? The claimant is entitled to disability 11 benefits only if he or she is unable to perform other work. 20 12 C.F.R. § 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in 13 significant numbers in the national economy that the claimant 14 can do, given the claimant’s residual functional capacity, age, education, and work experience. Id. 15 B. Standard of Review Applicable to ALJ’s Determination 16 The Court must affirm an ALJ’s decision if it is supported by substantial evidence 17 and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 18 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). “Substantial evidence” is 19 less than a preponderance, but more than a “mere scintilla.” Richardson v. Perales, 402 20 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). 21 It is “such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Id. 23 In determining whether substantial evidence supports the ALJ’s decision, the 24 Court considers the record as a whole, weighing both the evidence that supports and 25 detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 26 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient 27

28 2 Parra, 481 F.3d at 746. 1 evidence to support the ALJ’s determination, the Court cannot substitute its own 2 determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th 3 Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it 4 is the ALJ’s conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 5 (9th Cir. 1989). The ALJ, not the Court, is responsible for resolving conflicts and 6 ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; 7 see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 8 Finally, the Court considers the harmless error doctrine when reviewing an ALJ’s 9 decision. An ALJ’s decision need not be remanded or reversed if it is clear from the 10 record that the error is “inconsequential to the ultimate nondisability determination.” 11 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 12 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence 13 supporting the ALJ’s decision and the error “does not negate the validity of the ALJ’s 14 ultimate conclusion”) (citations omitted). 15 C. Law of the Case and Rule of Mandate Doctrines 16 In Stacy v. Colvin, 825 F.3d 563, 566 (9th Cir. 2016), the Ninth Circuit explained 17 that “the law of the case doctrine and the rule of mandate apply to social security 18 administrative remands from federal court in the same way they would apply to any other 19 case.” 20 “The law of the case doctrine generally prohibits a court from considering an 21 issue that has already been decided by that same court or a higher court in the same case.” 22 Id. at 567 (citing Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)). 23 Application of the doctrine by a court “is discretionary, not mandatory.” Merritt v. 24 Mackey, 932 F.2d 1317, 1320 (9th Cir. 1991). However, the Ninth Circuit has identified 25 only five circumstances under which a court may depart from the law of the case: “1) the 26 first decision was clearly erroneous; 2) an intervening change in the law has occurred; 3) 27 the evidence on remand is substantially different; 4) other changed circumstances exist; 28 or 5) a manifest injustice would otherwise result.” United States v. Alexander, 106 F.3d 1 874, 876 (9th Cir. 1997). “Failure to apply the doctrine of the law of the case absent one 2 of the requisite conditions constitutes an abuse of discretion.” Id. (citations omitted). 3 “The rule of mandate is similar to, but broader than, the law of the case doctrine.” 4 Stacy, 825 F.3d at 567-68 (quoting United States v. Cote, 51 F.3d 178, 181 (9th Cir. 5 1995)). Under the rule of mandate, a lower court receiving a mandate “cannot vary it or 6 examine it for any other purpose than execution.” Cote, 51 F.3d at 181 (citation omitted). 7 The Ninth Circuit explained that a “remand order must be read holistically.” Stacy, 825 8 F.3d at 568. Thus, the Court found lower courts are permitted “to reexamine any issue on 9 remand that is not inconsistent with the mandate.” Id. Where a remand order does not 10 “restrict” an ALJ to address only a specific deficiency, an ALJ may be permitted to 11 review other findings related to a claimant’s application. See id. 12 III. DISCUSSION 13 A. The ALJ Provided Valid Reasons for Discounting Thanes Vanig, M.D.’s 14 Opinions Concerning Plaintiff’s Alleged Fatigue 15 In weighing medical source opinions in Social Security cases, there are three 16 categories of physicians: (i) treating physicians, who actually treat the claimant; (2) 17 examining physicians, who examine but do not treat the claimant; and (3) non-examining 18 physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 19 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that are 20 supported by substantial evidence for rejecting the uncontradicted opinion of a treating or 21 examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 22 2005). An ALJ cannot reject a treating or examining physician’s opinion in favor of 23 another physician’s opinion without first providing specific and legitimate reasons that 24 are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 25 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as 26 a whole); see also Batson, 359 F.3d at 1195; Thomas v. Barnhart, 278 F.3d 947, 957 (9th 27 Cir. 2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a 28 treating physician’s opinion that is inconsistent with the record). 1 On July 16, 2012, Plaintiff’s treating physician, Thanes Vanig, M.D., completed a 2 “Medical Report on Adult with Allegation of Human Immunodeficiency Virus (HIV) 3 Infection” (the “Medical Report”). (A.R. 966-68). The Medical Report states that 4 Plaintiff suffers from daily diarrhea and fatigue, which are manifestations of Plaintiff’s 5 HIV. (A.R. 968). 6 In his Order concerning Plaintiff’s judicial appeal of the first ALJ’s October 2013 7 decision, the District Judge found that the ALJ provided clear and convincing reasons for 8 rejecting Dr. Vanig’s opinion regarding Plaintiff’s alleged diarrhea. (A.R. 1149-50). The 9 District Judge noted that the October 2013 decision failed to address Dr. Vanig’s opinion 10 regarding Plaintiff’s alleged fatigue. (A.R. 1150). The District Judge remanded the 11 matter for further proceedings to address that opinion. (Id.). 12 On remand, the second ALJ gave Dr. Vanig’s opinion concerning Plaintiff’s 13 alleged fatigue little weight. (A.R. 1060). The ALJ observed that in several treatment 14 records, Dr. Vanig noted that Plaintiff was negative for fatigue. (Id.). The ALJ also 15 accurately observes that Dr. Vanig’s records do not provide a “description of the fatigue 16 or how it was affecting the claimant.” (Id.). Although the Medical Report notes that 17 Plaintiff has “marked restriction” of activities of daily living, “marked difficulties” in 18 maintaining social functioning, and “marked difficulties” in completing tasks in a timely 19 manner due to deficiencies in concentration, persistence, or pace, the Medical Report 20 does not state that these limitations are a result of fatigue. (A.R. 968). The Court finds 21 that the ALJ has provided legally valid reasons supported by substantial evidence in the 22 record for discounting Dr. Vanig’s opinion concerning Plaintiff’s alleged fatigue. 23 B. The ALJ Did Not Err With Respect to the Opinion of Brent Geary, Ph.D. 24 Consulting psychologist Brent Geary, Ph.D. provided a “Psychological/Psychiatric 25 Medical Source Statement” that opined that Plaintiff’s “mental energy and stamina are 26 considerably decreased. He would require frequent breaks. His pace is also slowed, so 27 he would tend to fall behind in execution of duties.” (A.R. 915). The first ALJ gave Dr. 28 Geary’s opinions little weight. (A.R. 27). Plaintiff challenged this determination in his 1 first judicial appeal. The assigned District Judge rejected Plaintiff’s challenge, finding 2 that the ALJ provided a clear and convincing reason for giving Dr. Geary’s opinions little 3 weight. (A.R. 1151). 4 On remand, the second ALJ gave Dr. Geary’s assessment “significant weight.” 5 (A.R. 1062). Plaintiff asserts that the RFC determination does not reflect Dr. Geary’s 6 opined limitations. (Doc. 10 at 14). Because the Court previously decided that the ALJ 7 did not erroneously weigh Dr. Geary’s opinions, it is arguable that the law of the case and 8 rule of mandate doctrines preclude the Court from revisiting that issue in the instant 9 action. However, even if the doctrines do not apply, the following explains that 10 Plaintiff’s argument is without merit. 11 It is well-settled that the ALJ, not the Court, is responsible for resolving conflicts, 12 ambiguity, and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews, 13 53 F.3d at 1039. This includes interpreting terms and phrases used by physicians in their 14 opinions. For example, in Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995), a 15 claimant’s treating physician opined that the claimant could perform a “sedentary type 16 job.” The ALJ concluded that the physician did not use the term to mean “sedentary 17 work” as defined by Social Security regulations. Id. The ALJ assessed that the claimant 18 could perform file clerk work, which Social Security regulations define as “light work.” 19 Id. at 751. On appeal, the claimant attached a letter from the physician, which stated that 20 the physician intended to use the term “sedentary” within the regulations’ technical 21 meaning. Id. The Ninth Circuit Court of Appeals agreed with the ALJ’s interpretation of 22 the physician's opinion as there “was no evidence at all before the ALJ” to indicate that 23 the physician meant that the claimant could only perform “sedentary work” as defined by 24 Social Security regulations. Id. at 750. The Court also refused to remand the case for 25 consideration of the physician’s newly-submitted letter as the claimant did not establish 26 good cause for failing to submit the evidence during the administrative proceedings. Id. 27 at 751. Finding that substantial evidence supported the ALJ’s conclusions, the Court 28 affirmed the ALJ’s decision. Id. 1 Here, like in Orteza, there was no evidence before the ALJ as to Dr. Geary’s 2 intended meanings of the terminology used in his opinions. Plaintiff has the burden of 3 proof at step four of the disability analysis. That is, Plaintiff is ultimately responsible for 4 providing the evidence to be used in making the RFC finding. Andrews v. Shalala, 53 5 F.3d 1035, 1040 (9th Cir. 1995) (a claimant bears the burden of proving entitlement to 6 disability benefits). Plaintiff could have requested that Dr. Geary answer interrogatories 7 or be subpoenaed at a hearing to clarify his opinions, but Plaintiff did not.3 The ALJ’s 8 decision states that Dr. Geary’s opinions are accommodated “in the form of additional 9 time off task.” (A.R. 1062). The RFC determination provides that Plaintiff would be off 10 task five percent of the workday. (A.R. 1055). The Court finds that the ALJ’s 11 interpretation of Dr. Geary’s opinions is rational and must be upheld. See Morgan, 169 12 F.3d at 599. 13 C. The ALJ Provided Specific, Clear, and Convincing Reasons for 14 Discounting Plaintiff’s Testimony 15 When evaluating the credibility of a plaintiff’s testimony regarding subjective pain 16 or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 17 586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant 18 has presented objective medical evidence of an underlying impairment “which could 19 reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. 20 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the 21 impairment could reasonably be expected to cause the severity of the symptoms. Rather, 22

23 3 Any argument that the case should be remanded for a determination of Dr. 24 Geary’s intended meanings of the terminology used in his opinions has been waived. Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (at least when claimants are 25 represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal); Bray v. Commissioner of Social Security 26 Admin., 554 F.3d 1219, 1226 n.7 (9th Cir. 2009) (deeming argument not made in disability claimant's Opening Brief waived). The ALJ, rather than the Court, was in the 27 optimal position to resolve any ambiguities in statements made in Dr. Geary’s report. See Meanel, 172 F.3d at 1115. The Court does not find that manifest injustice would occur in 28 deeming the argument waived. Id. (failure to comply with waiver rule is only excused when necessary to avoid manifest injustice). 1 a plaintiff must only show that it could have caused some degree of the symptoms. 2 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). 3 If a plaintiff meets the first step, and there is no affirmative evidence of 4 malingering, the ALJ can only reject a plaintiff’s testimony about the severity of his or 5 her symptoms by offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d 6 at 1036. The ALJ cannot rely on general findings. The ALJ must identify specifically 7 what testimony is not credible and what evidence undermines the plaintiff’s complaints. 8 Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s 9 credibility, the ALJ can consider many factors including: a plaintiff’s reputation for 10 truthfulness, prior inconsistent statements concerning the symptoms, unexplained or 11 inadequately explained failure to seek treatment, and the plaintiff’s daily activities. 12 Smolen, 80 F.3d at 1284; see also 20 C.F.R. § 404.1529(c)(4) (Social Security must 13 consider whether there are conflicts between a claimant’s statements and the rest of the 14 evidence). 15 Plaintiff erroneously asserts that the ALJ failed to make a finding of whether the 16 objective evidence could reasonably produce Plaintiff’s symptoms. (Doc. 10 at 16; Doc. 17 15 at 7). The ALJ’s decision states: 18 After careful consideration of the evidence, I find that the claimant’s medically determinable impairments could 19 reasonably be expected to cause the alleged symptoms; 20 however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not 21 entirely consistent with the medical evidence and other 22 evidence in the record for the reasons explained in this decision. 23 (A.R. 1057). The ALJ’s decision recounts Plaintiff’s testimony that he suffers from 24 severe fatigue. (A.R. 1056). The ALJ observed that Plaintiff was “unable to give a 25 specific example of how fatigue affected his concentration in 2011 and 2012 during 26 questioning at the hearing.” (Id.). In explaining why she did not find Plaintiff’s 27 testimony credible, the ALJ stated that Plaintiff has “engaged in a somewhat normal level 28 1 of daily activities and interaction[.]” (Id.). The ALJ then recounted Plaintiff’s reported 2 activities. (A.R. 1056-57). The ALJ concluded that Plaintiff’s activities 3 reflect a significant functional capacity and not an individual unable to sustain regular and continuing work due to 4 medically determinable impairments. It appears that despite 5 his impairment and complaints of fatigue, he has engaged in a rather normal level of daily activity and interaction. It should 6 be noted that the physical and mental capabilities requisite to 7 performing many of the tasks described above as well as the social interactions replicate those necessary for obtaining and 8 maintaining employment. 9 (A.R. 1057). It is possible that a different ALJ would find Plaintiff's symptom testimony 10 credible. But it is not the Court’s role to second guess an ALJ's decision to disbelieve a 11 Plaintiff's allegations. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“An ALJ 12 cannot be required to believe every allegation of disabling pain, or else disability benefits 13 would be available for the asking . . . .”). Where the evidence is susceptible to more than 14 one rational interpretation, it is the ALJ’s conclusion that must be upheld. Morgan, 169 15 F.3d at 599. The Court finds that the reasons provided by the ALJ for discrediting 16 Plaintiff's testimony are specific, clear, convincing, and are supported by substantial 17 evidence in the record. The Court therefore finds that the ALJ did not err in discrediting 18 Plaintiff's subjective testimony. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 19 1990) (upholding denial of disability benefits where claimant could “take care of her 20 personal needs, prepare easy meals, do light housework, and shop for some groceries”); 21 see also Molina, 674 F.3d at 1113 (“Even where [daily] activities suggest some difficulty 22 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 23 that they contradict claims of a totally debilitating impairment.”). 24 25 IV. CONCLUSION 26 Based on the foregoing, 27 IT IS ORDERED affirming the decision of the Commissioner of Social Security. 28 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 2 accordingly. 3 Dated this 8th day of July, 2019. . 4 g) | 3 / 5 Eileen S. Willett 6 United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-12-