Fullerton v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 31, 2019
• Docket: 3:19-cv-05478
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RICHARD F., CASE NO. 3:19-CV-5478-DWC 11 ORDER AFFIRMING 12 Plaintiff, DEFENDANT’S DECISION TO 13 v. DENY BENEFITS

14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16

17 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the 18 Commissioner of the Social Security Administration’s (“Commissioner”) denial of Plaintiff’s 19 application for disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal 20 Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this 21 matter heard by the undersigned Magistrate Judge. See Dkt. 2. 22 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 23 properly analyzed Plaintiff’s credibility and the lay opinion testimony. As the ALJ’s decision 24 1 finding Plaintiff not disabled is supported by substantial evidence, the undersigned affirms the 2 Commissioner’s decision pursuant to sentence four of 42 U.S.C. § 405(g). 3 FACTUAL AND PROCEDURAL HISTORY 4 On March 11, 2016, Plaintiff filed an application for DIB, alleging disability as of

5 September 14, 2015. See Dkt. 16, Administrative Record (“AR”) 15. The application was denied 6 upon initial administrative review and on reconsideration. See AR 15. A hearing was held before 7 ALJ Gerald J. Hill on May 11, 2018. See AR 15. In a decision dated July 17, 2018, the ALJ 8 determined Plaintiff to be not disabled. See AR 21. Plaintiff’s request for review of the ALJ’s 9 decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the 10 Commissioner. See AR 1; 20 C.F.R. § 404.981, § 416.1481. 11 In the Opening Brief, Plaintiff asserts the ALJ erred by failing to properly consider: (1) 12 Plaintiff’s subjective symptom testimony; and (2) Plaintiff’s spouse’s lay witness testimony. Dkt. 13 13, pp. 3-12. Plaintiff requests remand for an award of benefits. Id. at p. 11. 14 STANDARD OF REVIEW

15 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 16 social security benefits if the ALJ’s findings are based on legal error or not supported by 17 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 18 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 19 DISCUSSION

20 I. Whether the ALJ provided specific, clear, and convincing reasons for finding Plaintiff’s subjective symptom testimony not fully supported. 21 Plaintiff contends the ALJ erred by failing to provide specific, clear, and convincing 22 reasons for finding Plaintiff’s subjective symptom testimony not fully supported. Dkt. 13. 23 24 1 To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent 2 reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). 3 The ALJ “must identify what testimony is not credible and what evidence undermines the 4 claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless

5 affirmative evidence shows the claimant is malingering, the ALJ’s reasons for rejecting the 6 claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at 834. Questions of 7 credibility are solely within the control of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th 8 Cir. 1982). The Court should not “second-guess” this credibility determination. Allen v. Heckler, 9 749 F.2d 577, 580 (9th Cir. 1984). In addition, the Court may not reverse a credibility 10 determination where that determination is based on contradictory or ambiguous evidence. Id. at 11 579.1 Plaintiff has a history of pancreatitis, dating back to as early as 2003. See AR 231. Plaintiff 12 reported that he experiences severe abdominal pain and occasionally severe headaches. AR 32- 13 33, 42. Plaintiff says he deals with his pain most of the time by sleeping. AR 34, 42. Plaintiff 14 testified he can drive short distances but cannot walk more than a couple of blocks. AR 35, 37.

15 Plaintiff said he can go to the grocery store alone, but has trouble doing chores around the house 16 such as laundry or doing the dishes. AR 35. Plaintiff reported that he can stand for 10 to 15 17 minutes but cannot lift garbage or laundry. AR 37. Plaintiff spends his time reading, watching 18 television, and spending time with his two pet cats. AR 35. 19 20

21 1 On March 28, 2016, the Social Security Administration changed the way it analyzes a claimant’s 22 subjective symptom testimony. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2016 WL 1237954 (Mar. 24, 2016). The term “credibility” is no longer used. 2016 WL 1119029, at *1. Further, symptom evaluation is no longer an examination of a claimant’s character. See id. at *10 (“adjudicators will not assess an individual’s overall 23 character or truthfulness”). However, the applicable Ninth Circuit case law still refers to the term “credibility.” See Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (noting SSR 16-3p is consistent with existing Ninth 24 Circuit precedent). Thus, the Court will use “credibility” and “subjective symptom testimony” interchangeably. 1 Plaintiff has tried several medications in attempt to ameliorate his pain but consistently 2 reports that none provide any significant relief. See AR 246, 249, 266, 299, 326, 351. He 3 consistently reports he does not like opiates because of how they make him feel. AR 243, 249, 4 270. Plaintiff testified that enzyme therapy was helpful in treating his nausea and diarrhea but not

5 in treating his pain. AR 39, 297, 347. 6 After outlining the medical evidence contained in the record, the ALJ found Plaintiff’s 7 “medically determinable impairments could reasonably be expected to cause the alleged 8 symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting 9 effects of these symptoms are not entirely consistent with the medical evidence and other evidence 10 in the record…” AR 18. 11 First, the ALJ discussed Plaintiff’s testimony and found it was not supported by the 12 medical evidence of record, which the ALJ called “relatively sparse.” AR 18. The ALJ essentially 13 found that Plaintiff’s lack of treatment supports the conclusion of nondisability. A determination 14 that a claimant’s complaints are “inconsistent with clinical observations” can satisfy the clear

15 and convincing requirement. Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 16 1294, 1297 (9th Cir. 1998). Further, “[t]he ALJ is permitted to consider lack of treatment in his 17 credibility determination.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But an ALJ 18 cannot draw adverse credibility inferences based on failure to seek regular medical treatment 19 without first considering the claimant’s explanations. SSR 96–7p, 1996 WL 374186, at *3 (July 20 2, 1996); see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 21 Plaintiff’s counsel argues Plaintiff’s loss of insurance is the reason why the medical record 22 is sparse. AR 31. Plaintiff’s counsel also points out that Plaintiff is entirely reliant on his wife’s 23 insurance, which has very limited coverage. AR 31. This requires Plaintiff to limit his clinical

24 1 visits because he has to pay out of pocket for medication and doctor’s visits. AR 31. Plaintiff’s 2 counsel said this is another reason why the medical record is sparse. AR 31. 3 The ALJ considered, then addressed Plaintiff’s loss of insurance and found it did not keep 4 Plaintiff from getting treatment for longer than a short time. AR 19. In support, the ALJ referenced

5 a medical note from PA-C Melissa Sharp, which stated that “[Plaintiff] experienced recent changes 6 in his insurance, with loss of employment for his wife. He is now back under the care of his 7 primary care team.” AR 19, 347. However, the ALJ did not address the statement from Plaintiff’s 8 counsel that because the insurance coverage is so limited, Plaintiff limits his clinical visits in order 9 to afford paying for them. The ALJ should have considered Plaintiff’s explanations of why he 10 failed to seek medical treatment, which included his insurance’s limited coverage and the 11 corresponding costs of paying for clinical visits. SSR 96–7p, 1996 WL 374186, at *3 (July 2, 12 1996); see also Fair, 885 F.2d 597 at 603. Thus, discounting Plaintiff’s testimony regarding his 13 symptoms and limitations because he did not seek treatment is not a clear and convincing reason 14 supported by substantial evidence.

15 Second, the ALJ discussed the extent to which Plaintiff was treated, essentially finding 16 that Plaintiff’s favorable response to conservative treatment undermines Plaintiff’s report of 17 disabling pain. See AR 19. The ALJ noted that “[w]hen treated with enzymes, [Plaintiff’s] 18 weight remained stable and he was free of constipation and diarrhea.” AR 19. The ALJ supports 19 this finding with a citation to the record where PA-C Sharp indicated Plaintiff’s weight remained 20 stable and Plaintiff reported no new diarrhea or constipation while taking the enzymes. AR 19; 21 AR 344. The ALJ also noted that Plaintiff’s “[n]ausea and abdominal pain, while not completely 22 relieved, were ameliorated with treatment.” AR 19. 23

24 1 An ALJ may consider “evidence of ‘conservative treatment’” in assessing a claimant’s 2 subjective symptom testimony. Parra v. Astrue, 481 F.3d 742, 750-751 (9th Cir. 2007) (quoting 3 Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). Conservative treatment can be 4 “sufficient to discount a claimant’s testimony regarding [the] severity of an impairment.” Id.

5 Further, an ALJ may discount a claimant’s testimony when the claimant’s subjective 6 complaints of pain are inconsistent with the level of treatment received. See Meanel v. Apfel, 7 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective pain complaints where petitioner's 8 “claim that she experienced pain approaching the highest level imaginable was inconsistent with 9 the ‘minimal, conservative treatment’ that she received”). 10 Here, Plaintiff and several of his care providers indicated he responded favorably to the 11 enzyme treatment. PA-C Sharp said the enzyme therapy “has provided improved control of 12 [Plaintiff’s] chronic symptoms” and “[w]ith regular access to this therapy, and daily dosing, he 13 has improved abdominal pain, improved stooling and less nausea.” AR 353. Plaintiff also agreed 14 the enzyme treatment improved digestive health, yet did not help alleviate any pain. AR 39. But

15 Plaintiff noted that when he was off the enzymes, “he was significantly worsened…” AR 347. 16 Dr. Jason Sugar said Plaintiff’s “[p]ain is better when he takes his [enzymes]…” AR 350; see 17 also AR 291. PA-C Sharp indicated Plaintiff’s anti-nausea medication showed “great 18 improvement with his nausea.” AR 347. PA-C Sharp also stated that although Plaintiff was not 19 responding to standard therapies, she was “not inclined to give narcotic pain medication at this 20 time” and believed “[Plaintiff] also has functional symptoms.” AR 328. She opined Plaintiff’s 21 symptoms may be caused by irritable bowel syndrome and not pancreatitis. AR 328. 22 Other physicians also questioned Plaintiff’s diagnosis of pancreatitis. Dr. Mark Doane 23 stated he is “not 100% convinced it is chronic pancreatitis.” AR 267. Dr. Christine Pizzute said

24 1 Plaintiff’s diagnosis of pancreatitis was “somewhat in question” for her and noted Plaintiff’s 2 report that his symptoms get better when he lays down is inconsistent with pancreatitis because it 3 often gets worse when lying down. AR 271. Dr. Sugar opined Plaintiff’s chronic abdominal pain 4 is “somewhat atypical for chronic pancreatitis…” AR 291. Dr. Sugar also noted Plaintiff had

5 some improvement in his abdominal pain with the enzyme treatment. AR 291. See Wilson v. 6 Colvin, 2013 WL 4040122, at *7 (C.D. Cal. Aug. 8, 2013) (“An ALJ may properly rely on the 7 fact that medication is helpful to discount a claimant’s credibility”). 8 Further, the objective medical evidence supports the ALJ’s conclusion that Plaintiff 9 responded favorably to conservative treatment. See AR 19. For example, several care providers 10 questioned whether Plaintiff’s diagnosis of pancreatitis was correct, including PA-C. Sharp and 11 Drs. Doane, Pizzute, and Sugar. See AR 328, 267, 271, 291. Some of the treatment notes 12 indicated Plaintiff was receiving at least some amount of pain relief from his enzyme treatment. 13 See AR 291, 350, 353. Plaintiff had an endoscopy performed which revealed a normal 14 esophagus, stomach, and duodenum. AR 293. Plaintiff was diagnosed with internal hemorrhoids

15 and had a small benign polyp removed from his rectum during a colonoscopy, which reported an 16 otherwise normal exam of Plaintiff’s colon. AR 294. A test analyzing Plaintiff’s gastrointestinal 17 system found normal gastric emptying. AR 343. Finally, no care providers in the record found 18 Plaintiff’s limitations disabling. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 19 1161 (9th Cir. 2008). 20 The ALJ also cited Plaintiff’s refusal of narcotics as support that Plaintiff responded 21 favorably to conservative treatment. AR 19. Where a claimant has good reason for not seeking 22 more aggressive treatment, a conservative course of treatment is not a proper basis for rejecting 23 the claimant’s credibility. Id. at 1164. Here, Plaintiff consistently reported that he does not like

24 1 opiates because of how they make him feel. AR 243, 249, 270. The ALJ did not consider why 2 Plaintiff repeatedly refused to try narcotics for his pain. Thus, Plaintiff’s refusal of narcotics does 3 not support the ALJ’s conclusion that Plaintiff responded favorably to conservative treatment. 4 See SSR 16-3p (“We will not find an individual’s symptoms inconsistent with the evidence in

5 the record on this basis without considering possible reasons he or she may not comply with 6 treatment or seek treatment consistent with the degree of his or her complaints.”). But, as 7 substantial evidence supports the ALJ’s findings that Plaintiff responded favorably to 8 conservative treatment by participating in the enzyme treatment, this was a specific, clear, and 9 convincing reason to discount Plaintiff’s subjective symptom testimony. See Beistek v. 10 Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations and quotation marks omitted) (“substantial 11 evidence” means only evidence such that “a reasonable mind might accept as adequate to support 12 a conclusion”). 13 Although the ALJ provided other reasons to discount Plaintiff’s testimony, the Court 14 need not assess whether these reasons were proper, as any error would be harmless. See Presley-

15 Carrillo v. Berryhill, 692 Fed. Appx. 941, 944-45 (9th Cir. 2017) (citing Carmickle, 533 F.3d at 16 1162 (although an ALJ erred on one reason he gave to discount a medical opinion, “this error 17 was harmless because the ALJ gave a reason supported by the record” to discount the opinion). 18 Accordingly, the ALJ did not err in his credibility determination. 19 II. Whether the ALJ provided germane reasons for discounting the lay testimony. 20 Plaintiff maintains the ALJ erred by discounting the lay witness testimony of his wife, 21 Rosemarie. Dkt. 13, pp. 9-10. 22 The ALJ gave Rosemarie’s testimony partial weight and provided essentially the same 23 reasons he gave for discounting Plaintiff’s testimony. See AR 19-20. The Court finds the ALJ’s 24 1 reason for discounting Plaintiff’s testimony that Plaintiff responded positively to conservative 2 treatment was specific, clear, and convincing. See Section I, supra. Thus, because the ALJ 3 provided specific, clear, and convincing reasons for rejecting Plaintiff’s own subjective 4 complaints, and because Rosemarie’s testimony was similar to such complaints, it follows that

5 the ALJ also gave germane reasons for rejecting Rosemarie’s testimony. See Molina v. Astrue, 6 674 F.3d 1104, 1114 (9th Cir. 2012); see also Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 7 685, 694 (9th Cir. 2009) (germane reasons provided for discounting a claimant’s testimony are 8 also germane to similar testimony by a lay witness). Further, the Court need not assess whether 9 the ALJ’s other reasons to discount Rosemarie’s testimony were proper, as any error would be 10 harmless. See Presley, 692 Fed. Appx. 941 at 944-45 (citing Carmickle, 533 F.3d at 1162). Thus, 11 the Court affirms the ALJ’s decision to discount Rosemarie’s testimony. Accordingly, the ALJ 12 did not err. 13 CONCLUSION 14 Based on the foregoing reasons, the Court hereby finds the ALJ properly concluded

15 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is affirmed pursuant 16 to sentence four of 42 U.S.C. § 405(g). 17 Dated this 31st day of December, 2019. 18 19 A 20 David W. Christel United States Magistrate Judge 21 22 23 24