Henderson v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 8, 2022
• Docket: 2:20-cv-01767
• Status: Unknown

Opinion

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

9 Julie Henderson, No. CV-20-01767-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is Plaintiff’s Complaint (Doc. 1) seeking judicial review of the 16 Commissioner’s denial of her application for Social Security Disability Insurance Benefits. 17 The Commissioner has filed an Answer (Doc. 19) and both parties have submitted briefs 18 in support of their respective position. (Docs. 21, 22 and 23). The Court has reviewed the 19 briefs and Administrative Record, and now affirms the Administrative Law Judge’s 20 (“ALJ”) decision. (R.1 at 2317).2 21 I. Background 22 Plaintiff alleges a disability onset date of January 25, 2012. After the Appeals 23 Council remanded an earlier denial of her disability claim, an ALJ reviewed the 24 administrative record, and conducted a hearing on December 6, 2016. The ALJ determined 25 that Plaintiff had not been under a disability from June 25, 2012, through the date of his 26 March 10, 2017, decision. The Appeals Council affirmed the decision and Plaintiff 27 1 “R” refers to the Administrative Record followed by page number. 28 2 The assigned ALJ was Randolph E. Schum. 1 appealed the decision to the district court. Henderson v. Commissioner of Soc. Sec. Admin., 2 2:17-cv-04488- DWL. 3 The district court found that the ALJ’s decision was based on reversible legal error 4 and remanded for further proceedings. Id. Specifically, the district court stated “the ALJ 5 committed reversible legal error when discounting [Plaintiff’s] pain and symptom 6 testimony. The Court will remand for further proceedings as opposed to remanding for an 7 award of benefits, because further proceedings would serve a useful purpose and the record 8 creates serious doubts as to whether [Plaintiff] is, in fact, disabled.” (Id. at 4). Accordingly, 9 the matter was remanded and reopened. Plaintiff subsequently filed a claim for Title II 10 disability benefits on August 31, 2018, and the ALJ consolidated her claims.3 (R. at 2317). 11 On remand, the ALJ conducted a telephonic hearing on March 24, 2020, in which 12 Plaintiff and a vocational expert (“VE”) testified. Plaintiff testified that she received knee 13 injections from Dr. Musci, explaining that the injections were her only option for pain 14 because she is not a candidate for surgery. (R. at 2349). She stated that she did not use a 15 wheelchair for these appointments because it did not fit in the transporting vehicle. (Id.) 16 She testified having a prescription for a wheelchair and a shower chair and that she 17 previously had used a walker. (R. at 2350). She stated that she is not able to put weight 18 on her legs, that she could no longer use compression socks on her left leg, and that she 19 spends most of the day “in bed with [her feet] up.” (Id.) She stated using medical 20 marijuana but stopped in 2017 because she went on oxygen. (R. at 2352). She also testified 21 to using methamphetamine about 15 years ago when her opioid and muscle relaxer 22 prescriptions for cancer stopped. (R. at 2358). She stated having migraine treatments but 23 was unclear about the type or medication, only that her medication interferes with her 24 ability to drive and her other treatments. (R. at 2352). She testified that she needs knee 25 and back surgery but that she is unable to “be put under for more than four hours.” (R. at 26 2353). She also stated that she has had 13 “TIA strokes.” (R. at 2356). 27 Regarding her work history, Plaintiff testified that she used to work at Walmart, in 28 3 A new ALJ, Paul Isherwood, was assigned to the matter. 1 the fitting room and as a cashier, and at a grocery store deli. She left Walmart because she 2 was hit by a car in 2009 and she could no longer stand and bend. (R. at 2353). She also 3 stated that she has an associate’s degree. (R. at 2355). She stated she is unable to work 4 because she is not “able to stand for long periods of time and having to lay down or having 5 to bend over to pick something up. I can’t squat, I can’t go down on my knees.” (R. at 6 2358). Regarding her daily activities, she stated that her average day consists of lying in 7 bed, and reading and watching TV if she does not have an appointment. (R. at 2354). She 8 stated “I can walk around the house, like, maybe to the bathroom and coming back. But 9 any long-term walking, I can’t do it.” (Id.) She testified that she does not do chores and 10 that her roommate cooks and cleans. (Id.) 11 The VE testified that there were jobs in the national economy which Plaintiff could 12 perform even with limitations of light work and additional restrictions and mental 13 limitations that she is “able to perform simple routine tasks . . . make simple work-related 14 decisions and occasionally interact with supervisors, co-workers and the public.” (R. at 15 2358–61). The VE also testified that there were jobs available, albeit in reduced numbers. 16 (Id.) The ALJ concluded that Plaintiff could perform “occupations such as assembler . . . 17 electronics worker . . . and inspector.” (R. at 2328). 18 The ALJ found that the Plaintiff had the following severe impairments: obesity; 19 mild degenerative joint disease of the lumbar spine, right ankle, left hip and both knees; 20 deep vein thrombosis and pulmonary embolism; degenerative disc disease of the cervical 21 spine; asthma/mild chronic obstructive pulmonary disease; and pain disorder. (R. at 2320). 22 The ALJ concluded that these impairments significantly limited here ability to perform 23 basic work activities as required by SSR 85-28. The ALJ further found that her mental 24 impairments of depressive disorder, anxiety disorder and post-traumatic stress disorder 25 considered singly and in combination do not cause more than minimal limitations in her 26 ability to perform basic mental work activities. (Id.) Thus, the ALJ concluded that Plaintiff 27 has not been under a disability from June 25, 2012, through the decisional date of August 28 10, 2020. (Id. at 2328–29). 1 II. Legal Standard 2 An ALJ’s factual findings “shall be conclusive if supported by substantial 3 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Commissioner’s 4 disability determination may be set aside only if it is not supported by substantial evidence 5 or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial 6 evidence is relevant evidence that a reasonable person might accept as adequate to support 7 a conclusion considering the record as a whole. Id. Generally, “[w]here the evidence is 8 susceptible to more than one rational interpretation, one of which supports the ALJ’s 9 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 10 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported by 11 substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r of 12 Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s 13 decision, the district court reviews only those issues raised by the party challenging the 14 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 15 To determine whether a claimant is disabled, the ALJ follows a five-step process.4 16 The claimant bears the burden of proof on the first four steps, but the burden shifts to the 17 Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The 18 ALJ first determines whether the claimant is presently engaging in substantial gainful 19 activity. Next, the ALJ determines whether the claimant has a “severe” medically 20 determinable physical or mental impairment. At step three, the ALJ considers whether the 21 claimant’s impairment or combination of impairments meets or medically equals an 22 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. If so, the claimant is 23 automatically found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC 24 and determines whether the claimant is still capable of performing past relevant work. If 25 not, the ALJ proceeds to the fifth and final step to determine whether the claimant can 26 perform any other work in the national economy based on the claimant’s RFC, age, 27 education, and work experience. If not, the claimant is disabled. Id. 28 4 See 20 C.F.R. § 404.1520(a)(4)(i)-(v). 1 III. Analysis 2 Plaintiff raises two issues on appeal: 1) the ALJ erred in analyzing her credibility about her 3 pain, and 2) the ALJ erred in rejecting the opinions of Drs. Gordon and Potter. (Doc. 21 4 at 1). The Court will discuss these issues in turn. 5 A. The ALJ provided specific, clear, and convincing reasons supported by 6 substantial evidence for rejecting Plaintiff’s symptom testimony. 7 Plaintiff argues that the ALJ did not give legitimate and convincing reasons 8 supported by substantial evidence for discounting her subjective symptom testimony. 9 (Doc. 21 at 12–15). The Commissioner responds that the ALJ properly examined the 10 medical evidence to find that the record did not support Plaintiff’s testimony as to the 11 severity of her symptoms. (Doc. 25). The Court agrees. 12 An ALJ must evaluate whether the claimant has presented objective medical 13 evidence of an impairment “which could reasonably be expected to produce the pain or 14 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 15 (citations omitted). Plaintiff concedes that the ALJ made this finding and does not 16 otherwise contest it. (Id. at 13). However, she takes issue with the ALJ’s findings that 17 the limiting effects of those symptoms were not consistent with the medical evidence, 18 including her own statements and testimony regarding activities of daily living. (Id. at 25– 19 26). 20 An ALJ may “reject the claimant’s testimony about the severity of [the] symptoms” 21 provided that the ALJ also explains his decision “by providing specific, clear, and 22 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 23 2015). The ALJ may also consider “‘whether the claimant engages in daily activities 24 inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 25 1028, 1040 (9th Cir. 2007)). “Even where those activities suggest some difficulty 26 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 27 that they contradict claims of a totally debilitating impairment,” Id. at 1113, or where they 28 suggest that “later claims about the severity of [the] limitations were exaggerated.” 1 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). 2 1. The ALJ’s credibility determination 3 In making his credibility determination, the ALJ found that Plaintiff’s statements 4 about the intensity, persistence, and limiting effects of her symptoms were not entirely 5 consistent with the medical evidence and other evidence in the record. (R. at 2324). The 6 Commissioner responds that the ALJ identified records that show unremarkable 7 neurological and musculoskeletal findings, such as normal strength and tone of all 8 extremities, which belie Plaintiff’s alleged inability to stand and walk for extended periods. 9 (Doc. 22 at 6). The Commissioner also asserts that the ALJ compared Plaintiff’s pain and 10 symptom testimony to other evidence, including her inconsistent course of treatment, and 11 thus, the ALJ did not arbitrarily discredit her subjective testimony. 12 Plaintiff argues that the ALJ’s finding that the record does not support her need for 13 a wheelchair to ambulate is not supported with any medical record. (Doc. 21 at 13). The 14 Court notes that the ALJ found that the Plaintiff used a wheelchair due to a car accident, 15 but that the records were unclear when that occurred. Plaintiff testified that she was hit by 16 a car and injured in 2009. (R. at 2323).5 The record also refers to an accident, on an 17 unknown date, while Plaintiff was in a scooter resulting in a “dramatic hematoma” from 18 which she fully recovered. (R. at 2324). The ALJ correctly observed that Plaintiff 19 continued working after these accidents up to the time she was terminated in June 2012. 20 (R. at 685). 21 Though some medical records reflect that Plaintiff used a wheelchair, the ALJ could 22 not find medical records to support that Plaintiff required one. The records do include a 23 prescription pad-note for a “wheelchair and shower chair” dated October 24, 2014, but 24 without an accompanying examination record. The physician’s name on the note is Frank 25 Moussa, MD, Plaintiff’s Orthopedic physician. In 2014, Plaintiff appeared in Dr. 26 Moussa’s office several times with a chief complaint of knee pain but without using any 27 5 Reference was also made about a 2006 accident where Plaintiff, a pedestrian, was hit by 28 a vehicle traveling at 25 miles per hour resulting in a lower sternum injury. (R. at 132, 683, 691). 1 assistive devices. (R. at 953–72). She also routinely presented in these visits with a normal 2 gait. (R. at 1013–24). She received steroid injections on a couple of her visits, which were 3 effective. The ALJ also noted that in 2017, Plaintiff appeared for an examination that 4 showed mostly normal findings and noted that she was off of the wheelchair and using a 5 walker. (R. at 2324 citing Ex. 50F). The inconsistent record findings, as further discussed 6 below, and Plaintiff’s own testimony of her ability to attend appointments without a 7 wheelchair, support the ALJ’s finding that her limited daily activities cannot be objectively 8 verified with any reasonable degree of certainty. (R. at 28). 9 Furthermore, Plaintiff testified that she received knee injections from Dr. Musci as 10 they were her only option for pain because she is not a candidate for surgery. (R. at 2349). 11 In her December 2016 testimony, Plaintiff testified that Dr. Musi denied her knee 12 replacement surgery and believed that she was not a candidate for any surgery. (R. at 53). 13 Notably, the prior reviewing district court observed that Dr. Musci is a hematologist who 14 examined Plaintiff for deep vein thrombosis and pulmonary embolism and he noted the 15 nature of her disability as orthopedic. As noted by that court, it is unlikely that Dr. Musi, 16 a hematologist, would prescribe knee surgery. Indeed, in an October 2017 exam note, Dr. 17 Musi states “patient is contemplating a bilateral knee surgery. She is clear for the surgical 18 procedure from our perspective.” (R. at 2678) (emphasis added). 19 The ALJ properly concluded, given Plaintiff’s contradictory statements and 20 treatments sought, the examinations in the medical record did not support Plaintiff’s claims 21 of disabling limitations, and thus properly found that her subjective symptom testimony 22 was not persuasive. The Court must give due deference to the ALJ when it finds no error 23 in the discussion of the symptom testimony. See Thomas, 278 F.3d at 954 (“[w]here the 24 evidence is susceptible to more than one rational interpretation, one of which supports the 25 ALJ’s decision, the ALJ’s conclusion must be upheld.”). The Court finds that the ALJ 26 provided specific, clear, and convincing reasons for discounting Plaintiff’s symptom 27 testimony. 28 / / / 1 B. The ALJ did not err in evaluating the opinions of Drs. Gordon and Potter. 2 Plaintiff also argues that the ALJ erred in weighing the opinions of Drs. Gordon and 3 Potter. (Doc. 21 at 15). The Commissioner responds that there is substantial evidence to 4 support the ALJ’s determinations, and that these non-treating opinions were substantially 5 based on Plaintiff’s subjective accounts of pain and medical history. (Doc. 22 at 9). The 6 Court agrees. 7 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 8 among medical opinion sources. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 9 2008). Generally, “more weight should be given to the opinion of a treating source than to 10 the opinion of doctors who did not treat the claimant.” Id. Treating physicians have the 11 advantage of in-person interaction and typically a longer history of treatment than a 12 claimant’s other doctors, and their “subjective judgments . . . are important, and properly 13 play a part in their medical evaluations.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 14 1988). An ALJ “may only reject a treating or examining physician’s uncontradicted 15 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 16 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830–31). “Where such 17 an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 18 that are supported by substantial evidence in the record.” Id. An ALJ meets this standard 19 by “setting out a detailed and thorough summary of the facts and conflicting medical 20 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 21 881 F.2d 747, 751 (9th Cir. 1989). The ALJ must also evaluate the “consistency of [an] 22 opinion with the record as a whole.” See 20 C.F.R. § 404.1527(c)(4). 23 1. Dr. Gordon 24 Dr. Gordon is a consultative, non-treating physician who evaluated Plaintiff on 25 November 2, 2019, for thirty-minutes. (R. at 2527). Dr. Gordon noted that he had no 26 medical records for review. (Id.) He noted that Plaintiff was “minimally cooperative” and 27 that she declined to stand, walk, or ascend to the examination table. (Id.) She verbally 28 1 reported that she has “complete loss of bowel and bladder control,” she had “radiating pain 2 in her upper and lower extremities,” her pain was “9/10” and that she is unable to complete 3 self-care, meals, hygiene, or light housework. (Id. at 2528). She told him that she was 4 prescribed a wheelchair in 2014. (Id. at 2527). Based on his examination, Dr. Gordon 5 found that her wheelchair is medically necessary due to her history of lumbar, spine, knee, 6 ankle and foot pain. (Id. at 2536). He then determined that she could lift and carry up to 7 20 pounds frequently, and up to 50 pounds occasionally; that she could stand and walk one 8 hour at one time for a total of two hours in an eight-hour work-day. (R. at 2533). 9 The ALJ gave Dr. Gordon’s findings partial weight because they were based solely 10 on Plaintiff’s subjective reported history. Further, he observed that she declined to provide 11 Dr. Gordon with a full comprehensive range of motion evaluation. The ALJ provided a 12 sufficient summary of the facts and conflicting medical evidence in making his finding. 13 For example, the ALJ noted that in contradiction to her inability to bear weight and 14 ambulate, Plaintiff testified that she was able to walk around her house. (R. at 2324). In 15 direct conflict to her statement to Dr. Gordon, on November 22, 2019, she informed Dr. 16 Viswanath that “she denies bowel or bladder control issues or gait or balance issues.” (R. 17 at 3019). The ALJ also referenced medical records that contradicted Dr. Gordon’s 18 findings, including Plaintiff’s later examinations on November 22 and December 4, 2019, 19 by treating physician Dr. Kipp. Dr. Kipp observed that Plaintiff was “able to stand on tip 20 toes and heels” and was found to be in no acute distress, presenting with some decreased 21 lumbar extension, but normal muscle strength and reflexes in both extremities. (R. at 3016- 22 17). Dr. Kipp then provided her with a left knee steroid injection. (Id.) The ALJ also 23 referred to prior examinations from March 2019 through January 2020 which note 24 Plaintiff’s normal x-rays, normal upper GI endoscopy, normal mood and affect, normal 25 cardiac CTA, well-controlled hypertension, received left knee steroid injections, improved 26 diabetes and that she denied any new complications. (R. at 2325-26). Thus, the record 27 amply supports the weight given Dr. Gordon’s opinion, and the Court finds no error 28 occurred here. 1 2. Dr. Potter 2 Plaintiff argues that the ALJ erred when he found her mental impairments were non- 3 severe where evidence of these impairments was largely based on the same records 4 supporting the previous ALJ’s finding that Petitioner had severe mental impairments of 5 depression and anxiety. (Doc. 21 at 16–17). Plaintiff specifically states that the weight the 6 ALJ gave to Dr. Potter’s findings of depression, anxiety, and PTSD, was thus in error. (Id.) 7 The Commissioner asserts that the ALJ found little evidence to support Plaintiff’s opined 8 limitations and that he appropriately cited numerous examinations to refute her limitations. 9 (Doc. 22 at 9–10). 10 Dr. Potter is a consultative psychological examiner who examined Plaintiff on 11 November 19, 2019. (R. at 2518–25). The ALJ gave Dr. Potter’s opinions partial weight.6 12 (R. at 2326). Dr. Potter indicated Plaintiff had moderate limits in getting along with 13 authority figures but that she was able to interact with family and friends. In discussing 14 Dr. Potter’s findings, Plaintiff only refers to her checked box notations of marked and 15 moderate limitation in the “Ability to do Work-Related Activities (mental)” section. 16 (R. at 2523-24). Plaintiff overlooks Dr. Potter’s written accompanying “Summary and 17 Conclusions” note that “due to the inconclusive timeline of symptomology, along with the 18 unknown effects and interplay between her substance abuse, medical disorders, and 19 psychological disorders, a diagnosis in unable to be substantiated at this time[.]” 20 (R. at 2521) (emphasis added). Given the contradictions between the checked box and Dr. 21 Potter’s written conclusions, the Court finds no error in the partial weight assigned to Dr. 22 Potter’s findings given her ultimate inability to render a diagnosis for insufficient 23 information. 24 Moreover, the weight given to Dr. Potter’s opinion is supported by the ALJ’s 25 observation that “[the] medical evidence record does not contain much for mental health 26 treatment to corroborate any limitations.” (R. at 2327). He then cited other examiners’ 27 medical records through the years, including Dr. Coelho’s, who found her able to respond

28 6 Plaintiff overlooks that the ALJ also gave Dr. Coelho, who made mostly “mild” findings, “partial weight.” (Id.) 1 || appropriately to changes in the work setting. (R. at 2321). The ALJ also described other mental health records that consistently show Plaintiff pleasant, alert, and oriented. (R. at || 2327). The ALJ observed that Dr. Coelho’s findings were made during the time Plaintiff was maintaining regular employment at her job. (/d.) The ALJ described ample examples □□ of treatment records that discount Plaintiff's claimed severe mental health limits. 6 || Accordingly, the Court finds no error here. 7 IV. Conclusion 8 Having addressed the issues raised by Plaintiff under the applicable standards, and || conducted a review of the record and briefing, the Court affirms the decision of the ALJ □□ finding that Plaintiff is not disabled. Plaintiff requests that if this Court does not reverse 11 || the ALJ’s decision, that it be remanded for a new hearing. (Doc. 23 at 8). However, where, as here, the evidence supports the ALJ’s findings that the Plaintiff is not disabled under the 13 || meaning of the Social Security Act, remand is inappropriate. 14 Accordingly, 15 IT IS HEREBY ORDERED that the decision of the ALJ is affirmed. The Clerk || of Court is directed to enter judgment accordingly and dismiss this action. 17 Dated this 8th day of March, 2022. 18 19 oC. . fo 20 norable' Diang4. Huretewa 1 United States District Fudge 22 23 24 25 26 27 28

-ll-