Garcia v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5

9 Marcos Garcia, No. CV-22-01648-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Marcos Garcia’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) final decision denying 17 social security disability benefits. (Doc. 1). The appeal is fully briefed (Docs. 12, 14, 15), 18 and the Court now rules. 20 The issue presented in this appeal is whether substantial evidence supported the 21 determination that Plaintiff was not disabled under Sections 216(i), 223(d), or 22 1614(a)(3)(A) of the Social Security Act. (Doc. 12 at 1, 8). More specifically, Plaintiff 23 alleges that “[t]he ALJ’s RFC determination is unsupported by substantial evidence as he 24 failed to properly evaluate the opinion of consultative examiner [J.] Peachey, M.D.” (Doc. 25 12 at 1). 26 A. Factual Overview 27 Plaintiff was fifty-one years old on his alleged disability onset date of February 28, 28 2018. (Id. at 1, 3). He had completed education up to the tenth grade and reported past work 1 as a carpentry foreman. (Id. at 3). On July 29, 2019, Plaintiff filed applications for social 2 security disability benefits and supplemental security income benefits. (Id. at 1). Plaintiff 3 alleged he suffered from neuropathy bilaterally in his feet and hands; chronic arthritis in 4 his back and joints; a herniated disc; two bulging discs; numbness in his back and legs; a 5 right knee issue; issues with his right elbow; and diabetes. (Id. at 3). Plaintiff’s claims were 6 denied initially on December 30, 2019, and upon reconsideration on May 5, 2020. (Id. at 7 2). Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”), 8 which was held via telephone on July 19, 2021. (Doc. 11-3 at 19). The ALJ issued an 9 unfavorable decision on August 4, 2021. (Doc. 12 at 2). In his decision, the ALJ found that 10 based on Plaintiff’s July 29, 2019, social security applications, Plaintiff has not been 11 disabled—as defined in the Social Security Act—from February 28, 2018, through the date 12 of the decision. (Id. at 2). The SSA Appeals Council denied Plaintiff’s request for review 13 of the ALJ’s decision and adopted that decision as the SSA’s final decision. (Id.) Plaintiff 14 then sought review in this Court. (Doc. 1). 15 B. The SSA’s Five-Step Evaluation Process 16 To qualify for social security disability insurance benefits, a claimant must show 17 that he “is under a disability.” 42 U.S.C. § 423(a)(1)(E). To be “under a disability,” the 18 claimant must be unable to engage in “substantial gainful activity” due to any medically 19 determinable physical or mental impairment that can be expected to result in death or that 20 has lasted or can be expected to last for a continuous period of not less than twelve months. 21 Id. § 423(d)(1). The impairment must be of such severity that the claimant cannot do his 22 previous work or any other substantial gainful work within the national economy. Id. 23 § 423(d)(2). The SSA has created a five-step sequential evaluation process for determining 24 whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(1). The steps are followed 25 in order, and each step is potentially dispositive. See id. § 404.1520(a)(4). 26 At step one, the ALJ determines whether the claimant is engaging in “substantial 27 gainful activity.” Id. § 404.1520(a)(4)(i). “Substantial gainful activity” is work activity that 28 is (1) “substantial,” e.g., doing “significant physical or mental activities;” and (2) “gainful,” 1 e.g., usually done “for pay or profit.” 20 C.F.R. § 416.972(a)(b). If the claimant is engaging 2 in substantial gainful work activity, the ALJ will find the claimant is not disabled. Id. 3 § 404.1520(a)(4)(i). 4 At step two, the ALJ determines whether the claimant has “a severe medically 5 determinable physical or mental impairment” or severe “combination of impairments.” Id. 6 § 404.1520(a)(4)(ii). To be “severe,” the claimant’s impairment must “significantly limit” 7 the claimant’s “physical or mental ability to do basic work activities.” Id. § 404.1520(c). 8 If the claimant does not have a severe impairment or combination of impairments, the ALJ 9 will find the claimant is not disabled. Id. § 404.1520(a)(4)(ii). 10 At step three, the ALJ determines whether the claimant’s impairment(s) “meets or 11 equals” an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. 12 § 404.1520(a)(4)(iii). If so, the ALJ will find the claimant is disabled, but if not, the ALJ 13 must assess the claimant’s “residual functional capacity” (“RFC”) before proceeding to 14 step four. Id. §§ 404.1520(a)(4)(iii), 404.1520(e). The claimant’s RFC is his ability to do 15 physical and mental work activities “despite [his] limitations,” based on all relevant 16 evidence in the case record. Id. § 404.1545(a)(1). To determine RFC, the ALJ must 17 consider all the claimant’s impairments, including those that are not “severe,” and any 18 related symptoms that “affect what [the claimant] can do in a work setting.” Id. 19 §§ 404.1545(a)(1)–(2). 20 At step four, the ALJ determines whether the claimant has the RFC to perform the 21 physical and mental demands of “[his] past relevant work.” Id. §§ 404.1520(a)(4)(iv), 22 404.1520(e). “Past relevant work” is work the claimant has “done within the past 15 years, 23 that was substantial gainful activity.” Id. § 404.1560(b)(1). If the claimant has the RFC to 24 perform his past relevant work, the ALJ will find the claimant is not disabled. Id. 25 § 404.1520(a)(4)(iv). If the claimant cannot perform his past relevant work, the ALJ will 26 proceed to step five in the sequential evaluation process. 27 At step five, the last in the sequence, the ALJ considers whether the claimant “can 28 make an adjustment to other work,” considering his RFC, age, education, and work 1 experience. Id. § 404.1520(a)(v). If so, the ALJ will find the claimant not disabled. Id. If 2 the claimant cannot make this adjustment, the ALJ will find the opposite. Id. 3 C. The ALJ’s Application of the Factors 4 Here, at step one, the ALJ concluded that Plaintiff had “not engaged in substantial 5 gainful activity since February 28, 2018, the alleged onset date.” (Doc. 11-3 at 22). 6 At step two, the ALJ determined that the following impairment was “severe”: 7 degenerative disc disease. (Id.) The ALJ found that Plaintiff’s degenerative disc disease 8 “significantly limit[ed] the ability to perform basic work activities.” (Id.) The ALJ analyzed 9 Plaintiff’s claimed mental impairment under the broad functional areas of mental 10 functioning set out in the disability regulations for evaluating mental disorders. (Id.) He 11 found that Plaintiff’s “medically determinable mental impairment causes no more than 12 ‘mild’ limitation in any of the functional areas and the evidence does not otherwise indicate 13 that there is more than a minimal limitation in the [Plaintiff]’s ability to do basic work 14 activities, it is nonsevere.” (Id. at 23 (emphasis in original)). 15 At step three, the ALJ concluded that Plaintiff did not have an impairment or 16 combination of impairments that meet or equal the severity of any impairment listed in 20 17 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ determined that Plaintiff has the 18 RFC to perform the full range of medium work as defined in 20 CFR §§ 404.1567(c) and 19 416.967(c). Although the reviewing medical consultants from the State agency opined that 20 Plaintiff could only “perform light work with occasional kneeling, crouching, crawling, 21 climbing ladders, ropes, or scaffolds and frequent balancing, stooping, and climbing 22 ramps/stairs,” the ALJ found that Plaintiff could perform medium work “due to his minimal 23 treatment and gaps in treatment.” (Id. at 28). The ALJ supported this finding by referencing 24 Plaintiff’s physical exams that showed Plaintiff had mostly normal gait, strength, and range 25 of motion with negative straight leg raises. (Id.) Additionally, Plaintiff reported signs of 26 improvement with treatment, and he used public transportation, tended to his own activities 27 of daily living, and rode a bicycle to get around. (Id.) 28 At step four, the ALJ determined that Plaintiff could not perform any past relevant 1 work as a concrete mason or concrete pouring supervisor, both of which Plaintiff 2 performed at a heavy level of exertion. 3 At step five, the ALJ considered Plaintiff’s age, education level, work experience, 4 and RFC and determined that there are jobs that exist in significant enough numbers in the 5 national economy that Plaintiff could perform. (Id. at 29–30). Consequently, the ALJ found 6 that Plaintiff is not disabled under the Social Security Act. (Id. at 30). 8 This Court may not set aside a final denial of disability benefits unless the ALJ 9 decision is “based on legal error or not supported by substantial evidence in the record.” 10 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Benton ex rel. Benton v. 11 Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). Substantial evidence refers to “such 12 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 13 Id. (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 14 1988)). The Court, in its review, must consider the record in its entirety, “weighing both 15 the evidence that supports and evidence that detracts from the [ALJ’s] conclusion.” Id. 16 (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). 17 The ALJ—not this Court—is responsible for resolving ambiguities, resolving 18 conflicts in medical testimony, determining credibility, and drawing logical inferences 19 from the medical record. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing 20 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Gallant v. Heckler, 753 F.2d 21 1450, 1453 (9th Cir. 1984)). Therefore, when the evidence of record could result in more 22 than one rational interpretation, “the ALJ’s decision should be upheld.” Orn v. Astrue, 495 23 F.3d 625, 630 (9th Cir. 2007). Further, this Court may only review the reasons the ALJ 24 provides in the disability determination; it “may not affirm the ALJ on a ground upon which 25 he did not rely.” Garrison, 759 F.3d at 1010. 27 Plaintiff raises one claim of error in the ALJ’s analysis: “[t]he ALJ’s RFC 28 determination is unsupported by substantial evidence as he failed to properly evaluate the 1 opinion of consultative examiner [J.] Peachey, M.D.” (Doc. 12 at 1). Plaintiff takes issue 2 with the way in which the ALJ conducted his evaluation of Dr. Peachey’s opinion evidence, 3 and thus Plaintiff asserts that the overall RFC determination is unsupported by substantial 4 evidence. The Court disagrees. 5 Plaintiff is correct that as of March 27, 2017, the SSA modified the rules for 6 evaluating opinion evidence. See 20 C.F.R. §§ 404.1520c, 416.920c. According to the new 7 regulations, the ALJ should “not defer or give any specific evidentiary weight, including 8 controlling weight, to any medical opinion(s) or prior administrative medical finding(s).” 9 Id. §§ 404.1520c(a), 416.920c(a). Instead, the ALJ considers the following factors when 10 considering a particular medical opinion in a case: (1) supportability; (2) consistency; (3) 11 relationship with the claimant, which includes length of the treatment relationship, 12 frequency of examinations, purpose of the treatment relationship, extent of the treatment 13 relationship, and examining relationship; (4) specialization; and (5) other factors. Id. 14 §§ 404.1520c(c)(1)–(5), 416.920c(c)(1)–(5). The most important of these factors are 15 supportability and consistency. Id. §§ 404.1520c(a), 416.920c(a). The ALJ should “explain 16 how [the ALJ] considered the supportability and consistency factors for a medical source’s 17 medical opinion or prior administrative medical findings in [a] determination or decision.” 18 Id. §§ 404.1520c(b)(2), 416.920c(b)(2). An ALJ will “articulate how [he or she] considered 19 the medical opinions” and “how persuasive [the ALJ] find[s] all of the medical opinions.” 20 Id. §§ 404.1520c(a) and (b)(1), 416.920c(a) and (b)(1). 21 Regarding the “supportability” factor, the new regulations explain that the “more 22 relevant the objective medical evidence and supporting explanations presented by a 23 medical source are to support his or her medical opinion(s), . . . the more persuasive the 24 medical opinions . . . will be.” Id. §§ 404.1520c(c)(1), 416.920c(c)(1). Regarding the 25 “consistency” factor, the “more consistent a medical opinion(s) . . . is with the evidence 26 from other medical sources and nonmedical sources in the claim, the more persuasive the 27 medical opinion(s) . . . will be.” Id. §§ 404.1520c(c)(2), 416.920c(c)(2). 28 1 A. Dr. Peachey’s Opinion 2 Dr. Peachey, a consultative medical examiner, examined Plaintiff on December 2, 3 2019, and created a tele-dictated report from his examination. (Doc. 11-10 at 29–34). 4 Regarding Plaintiff’s medical history, Dr. Peachey stated that Plaintiff: has back pain that radiates down to both legs, numbness on the upper back 5 on the right that comes and goes. The pain is constant, it varies in strength 6 depending upon his activities and rest by lying down helps to control the discomfort. He also states he has neuropathies in his leg, feet and hands, may 7 be that is where they [sic] get the diabetes. He has arthritis in his back and 8 joints. He has lumbar herniated disk, 2 bulging disks, and right knee pain and right elbow. He had lumbar spine surgery in 1991 and gradually pain has 9 recurred. 10 (Id. at 29). Dr. Peachey did not have any medical records to rely upon. (Id. at 31). In further 11 conversation with Plaintiff, Dr. Peachey reported that Plaintiff had “some decreased 12 motion” and that “[h]e can walk approximately a fourth of a block and then he needs to 13 rest” and could walk again after resting five minutes. (Id. at 30). Additionally, Plaintiff 14 could “sit for 20 minutes and then his back pain causes him to have to move. He can stand 15 for 20 minutes and again back pain makes it uncomfortable. He lifts under 10 pounds. He 16 does not drive, he does his own [activities of daily living].” (Id.) 17 Upon examining Plaintiff, Dr. Peachey reported that Plaintiff “walks with a limp on 18 the right. He cannot tandem walk. He cannot toe walk, heel walk, no hopping. He can 19 squat.” (Id.) Additionally, Dr. Peachey conducted a range of motion examination where he 20 found that Plaintiff had lower ranges of motion than normal in multiple areas including the 21 cervical spine, lumbar spine, left shoulder, left elbow, right elbow, left wrist, and right 22 wrist. (Id. at 30–31). He also found that Plaintiff had normal sensation and muscle strength 23 in his arms, hands, and legs. (Id. at 31). 24 Based on his examination, Dr. Peachey opined that Plaintiff’s conditions would 25 impose limitations for continuous period of twelve months or more. (Id. at 32). He imposed 26 carrying restrictions of less than ten pounds, walking restrictions of two to four hours per 27 day, and sitting restrictions of less than six hours per day. (Id. at 32–33). He also stated that 28 Plaintiff could only occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl, 1 and Plaintiff could never climb ladders, ropes, or scaffolds, reach, handle, finger, or feel. 2 (Id. at 33). 3 B. The ALJ’s Evaluation of Dr. Peachey’s Opinion 4 The ALJ concluded that Dr. Peachey’s opinion was “unpersuasive.” (Doc. 11-3 5 at 28). The ALJ’s complete rational was as follows: On December 2, 2019, John Peachey, M.D., a consultative physician, 6 examined the claimant at the request of the State agency. He opined the 7 claimant was limited to sedentary work due to decreased range of motion and pain in the shoulders bilaterally. During an eight-hour workday, the claimant 8 was limited to 3 hours standing/walking and 4 hours sitting secondary to gait 9 limping and restrictions on types of walking and chronic low back pain. (Exhibit 5F). He can occasionally stoop, kneel, crouch, crawl, and climb 10 ramps/stairs but never climb ladders, ropes, or scaffolds due to decreased 11 range of motion in the shoulders and low back pain and lumbosacral degenerative disc disease. Dr. Peachey noted the claimant must avoid 12 working around heights and moving machinery. (Exhibit 5F). 13 The undersigned finds Dr. Peachey’s opinion unpersuasive. His extreme 14 limitations are not supported by the overall objective medical evidence 15 showing mostly normal gait and strength with negative straight leg raise tests. (Exhibit 1F; Exhibit 2F; Exhibit 3F/pp. 1-4). Dr. Peachey seemed to 16 rely heavily on the claimant’s subjective reports and only examined the claimant on a one-time basis. Furthermore, the claimant’s gaps in treatment 17 and lack of aggressive [sic] tend to suggest his pain is not disabling as 18 alleged. In addition, the claimant reported activities showing he is higher functioning than alleged including using public transportation, tending to his 19 own activities of daily living, and riding a bicycle to get around. (Exhibit 20 3F/pp. 1-4; Exhibit 5F; Testimony). An x-ray of the claimant’s lumbar spine dated December 2, 2019 revealed diffuse degenerative disc disease at L4-L5 21 with associated changes of muscle spasm otherwise negative study. (Exhibit 22 4F). Thus, the claimant has no neural compromise. 23 (Id.) 24 C. The Parties’ Arguments 25 Plaintiff primarily argues that the ALJ did not conduct a proper supportability 26 analysis when considering the opinion of Dr. Peachey. (See Doc. 12 at 10). He believes the 27 ALJ “solely rel[ied] on Plaintiff’s self-reports” when discounting Dr. Peachey’s opinion 28 and ignored the multiple probative findings from Dr. Peachey’s physical examination. (Id. 1 at 11). Plaintiff bases his argument on the ALJ’s failure to mention Dr. Peachey’s positive 2 objective medical findings from his examination of Plaintiff. (Id. at 11–12). Plaintiff also 3 argues, to a lesser degree, that Dr. Peachey’s opinion was consistent with the rest of the 4 record. 5 Defendant defends the sufficiency of the ALJ’s rationale for discrediting the opinion 6 of Dr. Peachey. (Doc. 14 at 6–10). According to Defendant, the ALJ permissibly found 7 that Dr. Peachey’s opinion could be discredited under both the “consistency” and 8 “supportability” factors. (Id.) Defendant responds to Plaintiff’s claim that the ALJ 9 discredited Dr. Peachey’s opinion purely because it was based on subjective reports by 10 stating that the ALJ was pointing out that Dr. Peachey only saw Plaintiff a single time and 11 thus many of Dr. Peachey’s observations were based on Plaintiff’s self-reports about 12 Plaintiff’s medical history. (Id. at 6). Defendant goes on to state that “what little objective 13 evidence was procured in preparation of Dr. Peachey’s assessment did not support his own 14 findings.” (Id.) Defendant references the ALJ’s discussion of the x-ray of Plaintiff’s lumbar 15 spine on the same day as Dr. Peachey’s examination and Dr. Peachey’s observations of 16 normal strength and good sensation as objective evidence supporting the ALJ’s conclusion. 17 (Id. at 6–7). 18 D. Analysis 19 The ALJ properly conducted the supportability and consistency analysis in finding 20 Dr. Peachey’s opinion unpersuasive. 21 As for supportability, the ALJ opined that Dr. Peachey “seemed to rely heavily on 22 the claimant’s subjective reports.” (Doc. 11-3 at 28). However, Plaintiff is incorrect in his 23 claim that the ALJ discounted Dr. Peachey’s opinion solely because his opinion was based 24 on subjective reports. The ALJ pointed to objective evidence at odds with Dr. Peachey’s 25 overall conclusion. This evidence included: Dr. Peachey’s own observation that Plaintiff 26 had normal strength and sensation; and the x-ray of Plaintiff’s lumbar spine taken on the 27 same day as Dr. Peachey’s examination that showed diffuse degenerative disc disease but 28 an otherwise negative study and no neural compromise. (Id.) Although the ALJ did not 1 include in his discussion weighing this objective evidence against the other evidence from 2 Dr. Peachey’s examination, it is nonetheless up to the ALJ to weigh evidence and make 3 credibility and ambiguity determinations. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 4 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989); Gallant v. 5 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984)). The ALJ was presented with conflicting 6 objective and subjective reports that formed the basis for Dr. Peachey’s opinion. The ALJ 7 made the determination that when Dr. Peachey ignored objective medical testing and some 8 of Plaintiff’s own reports, it made Dr. Peachey’s overall conclusions about Plaintiff’s 9 disability unpersuasive. Under substantial evidence review, it is not the role of this Court 10 to remand based on Plaintiff’s alternative interpretation of the evidence. See Orn v. Astrue, 11 495 F.3d 625, 630 (9th Cir. 2007) (“Where evidence is susceptible to more than one rational 12 interpretation,’ the ALJ's decision should be upheld.” (quoting Bayliss v. Barnhart, 427 13 F.3d 1211, 1214 n.1 (9th Cir. 2005)). 14 Regarding consistency, the ALJ properly found that Dr. Peachey’s opinion was 15 inconsistent with the rest of the medical and nonmedical record. The ALJ stated that Dr. 16 Peachey’s “extreme limitations are not supported by the overall objective medical evidence 17 showing mostly normal gait and strength with negative straight leg raise tests.” (Doc. 11-3 18 at 28). The ALJ also pointed out that Plaintiff had large gaps in his treatment history and 19 lacked aggressive attempts to deal with the alleged pain, demonstrating that his pain was 20 not as disabling as alleged. (Id.) Moreover, Plaintiff tended to his activities of daily living 21 and rode a bicycle and public transportation to get around. (Id.) This reasoning is 22 substantial evidence to support the ALJ’s conclusion that Dr. Peachey’s opinion was not 23 consistent with the rest of the medical and nonmedical record. 24 Plaintiff argues that “his lack of treatment was due to him being homeless since 25 losing his job” and the ALJ needed to “offer evidence that Plaintiff’s allegations of 26 homeless [sic] were not a factor in a lack of treatment.” The ALJ expressed a recognition 27 “that the claimant’s financial situation is not optimal[,] and it is unfortunate he has not been 28 able to afford healthcare.” (Id. at 27). However, he also found that Plaintiff had not || “exhausted all resources available to individuals who cannot afford medical treatment or || medication such as hospitals, clinics, or community agencies.” (/d. at 27). 3 In sum, particularly when examining the consistency and supportability findings in 4|| totality, substantial evidence supports the ALJ’s findings. They are free from legal error 5 || because the ALJ sufficiently explains how Dr. Peachey’s opinion lacks support from and || is inconsistent with the medical evidence on record and Dr. Peachey’s own observations, 7 || in accordance with SSA regulations. Thus, the Court affirms the ALJ’s decision. IV. CONCLUSION 9 For the foregoing reasons, 10 IT IS ORDERED that the ALJ’s decision is AFFIRMED. 11 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment || accordingly. 13 Dated this 28th day of November, 2023. 14 15 a 3 16 17 _ James A. Teil Org Senior United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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