Harris v. Commissioner of Social Security

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CAROLYN H., CASE NO. 2:19-CV-2102-DWC 11 Plaintiff, ORDER AFFIRMING 12 v. DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of 16 Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) and 17 disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 18 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 19 the undersigned Magistrate Judge. See Dkt. 2. 20 After considering the record, the Court concludes the Administrative Law Judge 21 (“ALJ”) did not err when he discounted Dr. David Cline’s opinions and Plaintiff’s testimony 22 and did not err in forming Plaintiff’s residual functional capacity (“RFC”). Accordingly, for 23 24 1 reasons contained herein, Defendant’s decision to deny benefits is affirmed and this case is 2 dismissed with prejudice. 3 FACTUAL AND PROCEDURAL HISTORY 4 On December 21, 2016, Plaintiff filed an application for DIB, and on March 27, 2017,

5 filed an application for SSI. See Dkt. 18, Administrative Record (“AR”) 15. In both 6 applications, Plaintiff alleges disability as of July 1, 2015. See AR 15. The applications were 7 denied upon initial administrative review and on reconsideration. See AR 15. A hearing was 8 held before ALJ Tom L. Morris on August 16, 2018. See AR 15. In a decision dated December 9 27, 2018, the ALJ determined Plaintiff to be not disabled. See AR 31-32. Plaintiff’s request for 10 review of the ALJ’s decision was denied by the Appeals Council, making the ALJ’s decision 11 the final decision of the Commissioner. See AR 12; 20 C.F.R. § 404.981, § 416.1481. 12 In the Opening Brief, Plaintiff maintains the ALJ erred by improperly: (1) considering 13 the medical opinion evidence; (2) evaluating Plaintiff’s testimony; and (3) basing his step five 14 finding on an improperly formed RFC. Dkt. 20. As a result of these alleged errors, Plaintiff

15 requests remand for an award of benefits. Id. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 18 social security benefits if the ALJ’s findings are based on legal error or not supported by 19 substantial evidence in the record as a whole.1 Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 20 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 21

22 1 The Court notes the Social Security Administration amended its regulations governing medical opinions for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 23 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5852-5857 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Here, the parties cite to the rules and legal standard applicable to claims filed prior to March 27, 2017, despite 24 1 DISCUSSION 2 I. Whether the ALJ properly considered the medical opinion evidence.

3 Plaintiff asserts the ALJ improperly discounted Dr. Cline’s opinions and also lists 4 various medical records which she argues the ALJ failed to properly evaluate. Dkt. 20, pp. 3-9. 5 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 6 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th 7 Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 8 F.2d 502, 506 (9th Cir. 1990)). When a treating or examining physician’s opinion is 9 contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported 10 by substantial evidence in the record.” Lester, 81 F.3d at 830-831 (citing Andrews v. Shalala, 11 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 12 The ALJ can accomplish this by “setting out a detailed and thorough summary of the facts and 13 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick 14 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751

15 (9th Cir. 1989)). 16 A. Dr. Cline 17 Dr. Cline, Plaintiff’s principal care provider, completed medical source statements 18 indicating Plaintiff had several debilitating mental and physical limitations and also provided 19 an assessment plan with lab and exam results. See AR 381-386, 387-392, 394-396, 399-401, 20 409-411, 805. For example, Dr. Cline diagnosed Plaintiff with chronic pain, myocardial 21 infarction, anxiety, bipolar disorder, hypertension, and pulmonary embolism. AR 381, 409. He 22

23 Plaintiff’s application for SSI being on March 27, 2017. See Dkts. 20, 21, 22. Thus, the Court will defer to the 24 parties’ assessment and apply the rules and legal standard applicable to claims filed prior to March 27, 2017. 1 opined Plaintiff would rarely be able to maintain attention and concentration required to 2 perform simple work tasks during a typical workday. AR 382. He found Plaintiff would have 3 no useful ability to complete a normal workday and workweek without interruptions from 4 psychologically based symptoms. AR 383. Dr. Cline indicated Plaintiff can occasionally lift

5 and carry less than 10 pounds, can rarely lift and carry 10 pounds, and can never lift more than 6 20 pounds. AR 385. Dr. Cline opined to numerous other limitations and stated he believed 7 Plaintiff “is currently unable to participate in any productive job search or vocational program” 8 due to her limitations. See generally 381-386, 394-396, 399-401, 409-411; AR 805. 9 The ALJ discussed Dr. Cline’s opinions and gave them little weight, for four reasons: 10 (1) Dr. Cline provided little evidence of objective findings which support his opinions; (2) he 11 relied heavily on Plaintiff’s subjective reports; (3) they are not consistent with the objective 12 evidence of record; and (4) they are inconsistent with Plaintiff’s activities of daily living. AR 13 28-29. 14 The Court finds the ALJ’s third reason for discounting Dr. Cline’s opinions, that they

15 are not consistent with the objective evidence of record, is specific and legitimate and 16 supported by substantial evidence. An ALJ may properly reject a physician’s opinion which is 17 inconsistent with the record as a whole. See 20 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4) (the 18 more consistent an opinion is with the record as a whole, the more weight it will be given); see 19 also Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th Cir. 1999) (a medical 20 report’s inconsistency with the overall record constitutes a legitimate reason for discounting 21 the opinion). The ALJ must provide his interpretations of the evidence and explain why those 22 interpretations, rather than the physician’s interpretations, are correct. See Embrey, 849 F.2d at 23 421.

24 1 In discounting Dr. Cline’s opinions, the ALJ stated the opinions “are not consistent 2 with the objective medical evidence or record as a whole” and referenced his discussion of 3 their inconsistencies with the evidence of record elsewhere in his opinion.2 See AR 29, 4 referencing AR 24-26. There, the ALJ provided an extensive analysis regarding the

5 inconsistencies between Dr. Cline’s opinions and the record. For example, several instances in 6 the record indicate Plaintiff’s physical examinations revealed largely unremarkable findings, 7 including normal heart activity, no musculoskeletal tenderness or deformities, and normal gait. 8 AR 24, citing AR 421, 552, 616, 867, 924, 940. The ALJ noted in one instance, after being 9 seen for multiple pain complaints, testing of Plaintiff indicated 5/5 motor strength in the 10 bilateral upper and lower extremities, intact coordination, normal, steady gait, intact sensation 11 throughout, and a normal range of motion, with no focal bony tenderness to palpation or 12 deformity, and no edema. AR 25, citing AR 564. In more recent physical examinations, 13 Plaintiff demonstrated normal, steady gait, had no complaints of migraines or back/neck pain, 14 and had intact strength and sensation in both lower extremities. AR 25. citing AR 864, 922,

15 936, 940. These findings are inconsistent with Dr. Cline’s opinions that Plaintiff was unable to 16 walk or stand and had debilitating back pain. See AR 410, 394, 399. 17 Further, the record also indicates Plaintiff’s mental health treatment records note 18 symptom complaints and some mental status abnormalities, but do not indicate significant 19 limitations. For example, during a November 2016 mental health assessment, Plaintiff was 20 alert, fully oriented, had logical and linear thought form and fair insight and judgment despite 21

22 2 The Court is “not deprived of our facilities for drawing specific and legitimate inferences from the ALJ’s 23 opinion… It is proper for us to reach the paragraph discussing [conflicting evidence] and draw inferences relevant to [the doctor’s] findings and opinion, if those inferences are there to be drawn.” Magallanes v. Bowen, 881 F.2d 747, 24 755 (9th Cir. 1989). 1 mild impairments noted in memory, attention, and concentration. AR 526. Several progress 2 notes indicate Plaintiff’s speech was rapid at times and that Plaintiff had some impaired 3 concentration/attention, but was alert and oriented, and demonstrated intact memory and 4 logical thought form. See AR 665, 678, 685. These findings are further support within the

5 record which support the ALJ’s conclusion that Dr. Cline’s opinion regarding the debilitating 6 nature of Plaintiff’s mental health limitations is not consistent with the record as a whole. See 7 AR 381-386, 394-396, 399-401, 409-411, 805. 8 Accordingly, as the ALJ has sufficiently shown that Dr. Cline’s opinions are 9 inconsistent with the medical record, the ALJ’s first reason for discounting Dr. Cline’s 10 opinions is specific and legitimate and supported by substantial evidence. 11 While the ALJ had additional reasons to discount Dr. Cline’s opinions, the Court need 12 not consider whether these reasons contained error, as any error would be harmless because the 13 ALJ gave a legitimate reason to discount the opinions. See AR 29; Presley-Carrillo v. 14 Berryhill, 692 F. Appx. 941, 944-945 (9th Cir. 2017) (citing Carmickle v. Comm’r of Soc. Sec.

15 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (noting that although an ALJ erred with regard to 16 one reason he gave to discount a medical opinion, “this error was harmless because the ALJ 17 gave a reason supported by the record” to discount the opinion). 18 B. Other medical evidence 19 Plaintiff cites a lengthy list of medical findings in the record and asserts that these 20 findings support Dr. Cline’s opinions and Plaintiff’s testimony. Dkt. 20, pp. 6-9. However, 21 Plaintiff provides no analysis to link how any of the specific findings support either Dr. Cline’s 22 opinion or Plaintiff’s testimony. Given this lack of specificity in Plaintiff’s argument, Plaintiff 23 has failed to demonstrate any harmful error regarding other medical evidence. See Bailey v.

24 1 Colvin, 669 Fed. Appx. 839, 840 (9th Cir. 2016) (citing Ludwig v. Astrue, 681 F.3d 1047, 1054 2 (9th Cir. 2012)) (finding no error where the claimant did not “demonstrate prejudice from any 3 errors”). By failing to explain how the ALJ erred with regard to each particular finding, 4 Plaintiff failed to show how the ALJ’s alleged mistreatment of this evidence was consequential

5 to the RFC and the ultimate disability determination. The Court therefore rejects Plaintiff’s 6 conclusory argument. See Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692, n. 2 7 (9th Cir. 2009) (rejecting “any invitation” to find error where the claimant failed to explain 8 how the ALJ harmfully erred); see also Carmickle, 533 F.3d at 1161 (citation and internal 9 quotation omitted) (the court “ordinarily will not consider matters on appeal that are not 10 specifically and distinctly argued in an appellant’s opening brief”). 11 II. Whether the ALJ provided clear, specific, and convincing reasons for discounting Plaintiff’s symptom testimony 12 Plaintiff asserts the ALJ improperly considered her testimony regarding her symptoms. 13 Dkt. 20, pp. 10-14. 14 To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent 15 reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify 16 what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; 17 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the 18 claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 19 “clear and convincing.” Lester, 81 F.2d at 834. Questions of credibility are solely within the 20 control of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court should 21 not “second-guess” this determination. Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984). In 22 addition, the Court may not reverse an ALJ’s decision to discount a claimant’s testimony 23 where that determination is based on contradictory or ambiguous evidence. Id. at 579. 24 1 Plaintiff testified she had a pulmonary embolism in March 2015 and a heart attack in 2 July 2015. AR 57-58. She testified that her chronic pain, myocardial infarction, the residual 3 effects of the heart attack, anxiety, bipolar disorder, substance abuse disorder, chronic low 4 back pain and sciatica, post laminectomy syndrome, fibromyalgia, migraine headaches, and

5 depressive disorder are the largest barriers to her being able to work. AR 60. Plaintiff placed 6 particular emphasis on the pain she feels from fibromyalgia and her anxiety as the impairments 7 that most interfere with her ability to work. AR 60, 63. She testified she uses a cane to walk 8 whenever she is outside of her home. AR 63. Plaintiff alleged many problems with personal 9 care, including inability to wear shoes “due to pain, burning, and numbness in feet.” AR 319. 10 She stated she is able to cook meals twice a week and is also able to fold laundry one to two 11 times a week if someone brings it to her. AR 320. She said she is able to drive one to two times 12 a week but no more than a few miles, and can shop for groceries once a week. AR 321. 13 Plaintiff indicated she is unable to pay bills, count change, handle a savings account, or use a 14 checkbook/money orders. AR 347. Plaintiff further asserted difficulty with lifting, squatting,

15 bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory, completing 16 tasks, concentration, understanding, following instructions, and getting along with others. AR 17 349. 18 The ALJ found Plaintiff’s medically determinable impairments could reasonably be 19 expected to cause some of the alleged symptoms, but “[Plaintiff’s] statements concerning the 20 intensity, persistence, and limiting effects of these symptoms are not entirely consistent with 21 the medical evidence and other evidence in the record…” AR 24. The ALJ provided three 22 reasons to discount Plaintiff’s testimony for three reasons: (1) the medical record as a whole 23 does not support finding a more restrictive RFC; (2) “inconsistencies by [Plaintiff] undermine

24 1 the weight that can be given” to her testimony; and (3) her testimony is inconsistent with her 2 activities of daily living. AR 24-27. 3 The Court finds the ALJ’s second reason for discounting Plaintiff’s testimony, 4 “inconsistencies by Plaintiff undermine the weight that can be given” to her testimony, is

5 specific, clear, and convincing. The ALJ noted that “while [Plaintiff] reported problems with 6 severe migraines occurring about four to five times a week, she is taking no prescribed 7 medications for her headaches, only over the counter pain relievers.” AR 26. “The ALJ is 8 permitted to consider lack of treatment in his credibility determination.” Burch v. Barnhart, 9 400 F.3d 676, 681 (9th Cir. 2005). In addition, a claimant’s failure to assert a valid reason for 10 not seeking treatment for a health condition “can cast doubt on the sincerity of the claimant’s 11 testimony.” Fair v Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 12 Here, Plaintiff testified that her migraines stop her from doing anything because she 13 gets tunnel vision and has vision impairments. AR 71. When asked if she takes any medication 14 for her migraines, she replied “[n]o, I just take regular over-the-counter Tylenol, Excedrin for

15 migraine.” AR 71. Yet, despite having supposedly debilitating migraines occur four or five 16 times a week, there is no evidence Plaintiff sought treatment for such migraines. Further, 17 Plaintiff did not provide any reason as to why she did not seek treatment for her migraines. 18 Moreover, the ALJ’s analysis is supported by his first reason for discounting Plaintiff’s 19 testimony—that the testimony was not supported by the medical record as a whole. AR 24. 20 “While subjective pain testimony cannot be rejected on the sole ground that it is not fully 21 corroborated by objective medical evidence, the medical evidence is still a relevant factor” in 22 an ALJ’s consideration of a claimant’s subjective symptom testimony. Rollins v. Massanari, 23 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ provided a lengthy discussion of the medical

24 1 evidence, providing in-depth analysis and citations to the record in support. See AR 24-27. For 2 example, the ALJ cited to evidence of physical examinations indicating largely benign 3 findings, including normal strength, range of motion, sensation, reflexes, gait, and 4 coordination. See AR 421, 433, 444, 552, 564, 608, 616, 864, 924, 940. The ALJ also analyzed

5 Plaintiff’s history of mental health impairments and noted the record indicates providers 6 typically found Plaintiff alert and oriented, with mild or no distress, with appropriate and/or 7 normal mood and affect, normal judgment/insight, and intact memory. See AR 444, 506, 609, 8 623, 526, 552, 599, 616, 924. Thus, the ALJ has provided specific, clear, and convincing 9 reasons to discount Plaintiff’s subjective symptom testimony. 10 Although the ALJ provided an additional reason to discount Plaintiff’s testimony, the 11 Court need not assess whether this reason was proper, as any error would be harmless. See 12 Presley-Carrillo, 692 Fed. Appx. at 944-945 (citing Carmickle, 533 F.3d at 1162). 13 Accordingly, the ALJ did not err in discounting Plaintiff’s testimony. 14 III. Whether the ALJ erred at step five.

15 Plaintiff asserts the ALJ improperly determined Plaintiff’s RFC because it does not 16 include all the limitations opined to by Dr. Cline and by Plaintiff herself and erred by basing 17 his step five finding on his erroneous RFC assessment. Dkt. 20, pp. 14-15. The Court found the 18 ALJ properly discounted Dr. Cline’s opinions, as well as Plaintiff’s testimony. See Sections I 19 and II, supra. Accordingly, because the ALJ properly considered the medical evidence and 20 Plaintiff’s testimony and because Plaintiff made no other arguments regarding the ALJ’s RFC 21 formation or his finding at step five, the Court finds the ALJ’s RFC finding was supported by 22 substantial evidence and not erroneous. 23

24 1 CONCLUSION 2 Based on the foregoing reasons, the Court hereby finds the ALJ properly concluded 3 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is affirmed and 4 this case is dismissed with prejudice. The Clerk is directed to enter judgment for Defendant

5 and close the case. 6 Dated this 21st day of December, 2020. 7 8 A 9 David W. Christel United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23