Johnson v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 24, 2021
• Docket: 2:19-cv-00286
• Status: Unknown

Opinion

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

9 Nicholas Steven Johnson, No. CV-19-00286-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 At issue is the denial of Plaintiff Nicholas Johnson’s Application for Supplemental 16 Security Income benefits by the Social Security Administration (SSA) under the Social 17 Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking 18 judicial review of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 19 11, “Pl. Br.”), Defendant SSA Commissioner’s Answering Brief (Doc. 16, “Def. Br.”), and 20 Plaintiff’s Reply (Doc. 17, “Reply”). The Court has reviewed the briefs and Administrative 21 Record (Doc. 9, “R.”), and now affirms the Administrative Law Judge’s (“ALJ”) decision, 22 (R. at 26–57). 23 I. BACKGROUND 24 On October 2, 2014, a protective application for Supplemental Security Income 25 benefits was filed on Plaintiff’s behalf, who was then a child under 18. (Id. at 29.) Plaintiff 26 turned 18, on October 5, 2014. (Id. at 34.) Plaintiff’s claim was denied initially on April 27 14, 2015, and on reconsideration on September 15, 2015. (Id.) Plaintiff appeared before 28 the ALJ for a hearing on his claim on August 16, 2017. (Id.) On February 6, 2018, the ALJ 1 denied Plaintiff’s claim. (Id. at 49.) On November 21, 2018, the Appeals Council denied 2 Plaintiff’s Request for Review of the ALJ’s decision. (Id. at 1–7.) 3 The Court has reviewed the medical evidence and will discuss the pertinent 4 evidence in addressing the issues raised by the parties. Upon considering the medical 5 evidence and opinions, the ALJ evaluated Plaintiff’s disability based on the following 6 severe impairments: autism and a speech impairment. (Id. at 20.) 7 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 8 that Plaintiff was not disabled before age 18, or after. (Id. at 41, 49.) In doing so, the ALJ 9 performed two separate but related inquiries. First, the ALJ found that Plaintiff “did not 10 have an impairment or combination of impairments that met, medically equaled any listing 11 or functionally equaled the listings [in 20 CFR Part 404, Subpart P, Appendix 1, Part A or 12 B], [so Plaintiff] was not disabled prior to attaining age 18.” (Id. at 41.) Next, the ALJ 13 performed the typical five-step inquiry for determining whether Plaintiff was disabled after 14 age 18. (Id.) First, the ALJ found that Plaintiff “has not had an impairment or combination 15 of impairments that meets or medically equals a listed impairment.” (Id. at 41.) The ALJ 16 then calculated Plaintiff’s residual functional capacity (“RFC”), finding, “[Plaintiff] has 17 had the [RFC] to perform a full range of work at all exertional levels but with the following 18 nonexertional limitations: [Plaintiff] would be limited to occupations not performed in a 19 fast-paced production environment, involving only simple work related decisions, and 20 relatively few work place changes, and which require no more than occasional interaction 21 with the public.” (Id. at 43.) Based on Plaintiff’s RFC, the ALJ found that, “[s]ince attaining 22 age 18 . . . jobs have existed in significant numbers in the national economy that [Plaintiff] 23 has been able to perform.” (Id. at 48.) 24 II. LEGAL STANDARDS 25 In determining whether to reverse an ALJ’s decision, the district court reviews only 26 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 27 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 28 determination only if it is not supported by substantial evidence or is based on legal error. 1 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 2 that a reasonable person might accept as adequate to support a conclusion considering the 3 record as a whole. Id. To determine whether substantial evidence supports a decision, the 4 Court must consider the record as a whole and may not affirm simply by isolating a 5 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 6 susceptible to more than one rational interpretation, one of which supports the ALJ’s 7 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 8 (9th Cir. 2002) (citations omitted). 9 To determine whether a claimant is disabled for purposes of the Act, the ALJ 10 typically follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 11 burden of proof on the first four steps, but the burden shifts to the Commissioner at step 12 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 13 determines whether the claimant is presently engaging in substantial gainful activity. 14 20 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a 15 “severe” medically determinable physical or mental impairment. 20 C.F.R. § 16 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant’s impairment or 17 combination of impairments meets or medically equals an impairment listed in Appendix 18 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant 19 is automatically found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC 20 and determines whether the claimant is still capable of performing past relevant work. 21 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where 22 she determines whether the claimant can perform any other work in the national economy 23 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 24 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 25 The analysis changes for claimants under the age of 18. To determine whether a 26 claimant under the age of 18 is disabled for purposes of the Act, the ALJ follows a three- 27 step process. 20 C.F.R. § 416.924(a). At the first step, the ALJ determines whether the 28 claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 416.924(b). At 1 step two, the ALJ determines whether the claimant has a medically determinable physical 2 or mental impairment that is “severe” or a combination of impairments that is “severe.” 20 3 C.F.R. § 416.924(c). At step three, the ALJ considers whether the claimant’s impairment 4 or combination of impairments meets, medically equals, or functionally equals an 5 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 6 20 C.F.R. § 416.924(d). If so, and the impairment has lasted or is expected to last for a 7 continuous period of at least 12 months, the claimant is automatically found to be disabled. 8 Id. 9 To determine whether the claimant’s impairment or combination of impairments 10 functionally equals a listed impairment, the ALJ assesses the claimant’s functioning in 11 terms of six domains: (1) acquiring and using information; (2) attending and completing 12 tasks; (3) interacting and relating with others; (4) moving about and manipulating objects; 13 (5) caring for oneself; and (6) health and physical well-being. 20 C.F.R. § 416.926a(d). 14 To functionally equal a listed impairment, the claimant’s impairment or combination of 15 impairments must result in at least a “marked” limitation in two domains or an “extreme” 16 limitation in one domain. Id. A claimant has a “marked” limitation when the claimant’s 17 impairment or combination of impairments “interferes seriously” with his ability to 18 independently initiate, sustain, or complete activities. 20 C.F.R. § 416.926a(e). A claimant 19 has an “extreme” limitation when the claimant’s impairment or combination of 20 impairments “interferes very seriously” with his ability to independently initiate, sustain, 21 or complete activities. Id. 22 III. ANALYSIS 23 Plaintiff challenges the ALJ’s nondisability determination with three primary 24 arguments. First, Plaintiff argues the ALJ erred in rejecting the opinions of Plaintiff’s 25 treating physician, Dr. Michael Perlstein. (Pl. Br. at 14–19.) Second, Plaintiff argues the 26 ALJ erroneously rejected his symptom testimony. (Id. at 19–23.) Third, Plaintiff argues the 27 ALJ misinterpreted the limitations assessed by vocational evaluation specialist, Joseph 28 Burridge, and erroneously concluded that Burridge’s assessed limitations support the 1 ALJ’s nondisability determination. (Id. at 23–25.) 2 For the reasons that follow, the Court rejects Plaintiff’s arguments and finds that 3 substantial evidence supports the ALJ’s nondisability determination.1 First, the ALJ 4 provided specific and legitimate reasons supported by substantial evidence for discounting 5 Dr. Perlstein’s opinions. Second, the ALJ appropriately discounted Plaintiff’s symptom 6 testimony by providing specific, clear, and convincing reasons supported by substantial 7 evidence. Finally, the ALJ did not err by concluding that Burridge’s opinion supported the 8 ALJ’s RFC calculation, without adopting that opinion word-for-word. 9 A. The ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting Dr. Perlstein’s opinion. 10 11 Dr. Perlstein provided four statements regarding Plaintiff’s physical and mental 12 functional limitations, which the ALJ collectively gave little weight for several reasons. 13 (R. at 44–45.) First, the ALJ found that Dr. Perlstein’s opinions were partly based on 14 Plaintiff’s anxiety that had never been treated despite treatment recommendations. (Id. at 15 45.) Second, the ALJ found Dr. Perlstein was a pediatrician rather than a behavior expert. 16 (Id.) Third, the ALJ found there were gaps of several years between Plaintiff’s visits with 17 Dr. Perlstein. (Id.) Finally, the ALJ found Plaintiff’s activities of daily living (ADLs) are 18 inconsistent with Dr. Perlstein’s opinions. (Id.) 19 When evaluating medical opinion evidence, “[t]he ALJ must consider all medical 20 opinion evidence,” and there is a hierarchy among the sources of medical opinions. 21 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Those who have treated a 22 claimant are treating physicians, those who examined but did not treat the claimant are 23

24 1 In a footnote spanning nearly an entire page, Plaintiff argues the ALJ erred by 25 rejecting Plaintiff’s request that a medical expert evaluate Plaintiff’s case based on the entire record. (Pl. Br. at 2–3, n. 1.) Plaintiff’s footnote relies on Howard ex rel. Wolff v. 26 Barnhart, 341 F.3d 1006, 1014 (9th Cir. 2003). However, Plaintiff’s footnote largely contains summaries of the relevant statutes and Howard without application to his case. 27 (Pl. Br. at 2–3, n. 1.) Plaintiff does not elaborate on this argument in the body of his Opening Brief or Reply. Accordingly, the Court finds this argument is waived, since the 28 mention of an issue in a footnote without argument in support is insufficient to raise an issue on appeal. Foti v. McHugh, 247 F. App’x 899, 901 (9th Cir. 2007). 1 examining physicians, and those who neither examined nor treated the claimant are 2 nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating 3 physician’s opinion is not given controlling weight, then the ALJ must consider the relevant 4 factors listed in 20 C.F.R. § 404.1527(c)(1)–(6) and determine the appropriate weight to 5 give the opinion. Orn, 495 F.3d at 632. If a treating physician’s opinion is contradicted by 6 another doctor’s opinion, the ALJ cannot reject the treating physician’s opinion unless he 7 provides specific and legitimate reasons that are based on substantial evidence in the 8 record.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 9 Initially, the ALJ erred by rejecting Dr. Perlstein’s opinions because he is not a 10 behavior expert. (R. at 45.) Plaintiff is correct that the helpfulness of Dr. Perlstein’s 11 opinions depends on his superior vantage of Plaintiff’s impairments, rather than his 12 specialty. (Pl. Br. at 17.) Nevertheless, this error was harmless because the ALJ provided 13 additional sufficient reasons for discounting Dr. Perlstein’s opinions. See Stout v. Comm’r, 14 Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 15 The ALJ appropriately rejected Dr. Perlstein’s opinions based on Plaintiff’s 16 conservative treatment of his anxiety, Plaintiff’s ADLs, and the large time-gap between 17 Plaintiff’s visits with Dr. Perlstein. First, substantial evidence supports the ALJ’s 18 conclusion that Dr. Perlstein’s opinions were inconsistent with Plaintiff’s conservative 19 treatment of his anxiety symptoms. Though Plaintiff argues that Dr. Perlstein’s opinions 20 were primarily based on his autism and that he received other treatments aimed at 21 improving functioning, substantial evidence still supports the ALJ’s conclusion. (Pl. Br. at 22 18.) Dr. Perlstein repeatedly expressed that Plaintiff’s anxiety contributes to his limitations. 23 (R. at 2556, 2558, 2580–81, 2666.) Yet the medical records and Plaintiff’s testimony 24 confirm that he was not receiving treatment for his anxiety symptoms. (Id. at 74, 2424–25, 25 2557, 2581, 2666–68.) Thus, the ALJ’s conclusion that Plaintiff sought only conservative 26 treatment is supported by substantial evidence, and justifies the ALJ’s discounting of Dr. 27 Perlstein’s opinions, since those opinions were based, in part, on Plaintiff’s anxiety 28 symptoms. 1 Next, the ALJ properly relied on Plaintiff’s ADLs as a basis to discount Dr. 2 Perlstein’s opinions. A claimant’s ADLs are proper consideration for ALJ’s evaluating 3 medical opinions. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the 4 ALJ cited several of Plaintiff’s ADLs, including his doing well in school, driving 5 independently, and attending college. (R. at 45.) The ALJ’s analysis is supported by 6 Plaintiff’s other ADLs, including his doing chores his playing music in school marching 7 and concert bands, and his part-time work. (Id. at 64, 68, 70–71, 75–76, 1600, 1714, 1769, 8 2424.) Plaintiff argues the ALJ failed to account for significant limitations in Plaintiff’s 9 performance of ADLs. (Pl. Br. at 15–17.) The Court disagrees. The ALJ included 10 significant limitations in Plaintiff’s RFC based on Plaintiff’s difficulties with ADLs. (R. at 11 43–44.) 12 Finally, the ALJ appropriately discounted Dr. Perlstein’s opinions because of the 13 large time-gap in treatment. (Id. at 45.) This too was a permissible basis for discounting 14 Dr. Perlstein’s opinions. See 20 C.F.R. § 416.927(c)(2)(i), (ii); Benton v. Barnhart, 331 15 F.3d 1030, 1038 (9th Cir. 2003). Here, the ALJ reasonably discounted Dr. Perlstein’s 16 opinions since the record “shows that there were times he did not see [Plaintiff] for several 17 years.” (R. at 45.) Plaintiff argues the ALJ erred since the frequency of examination is only 18 one factor that warrants consideration. (Pl. Br. at 17–18.) But the ALJ’s opinion makes 19 clear that she considered other required factors. Accordingly, she did not err. 20 Substantial evidence supports the ALJ’s discounting of Dr. Perlstein’s opinions. The 21 ALJ relied on sufficient reasons—Plaintiff’s conservative treatment, his ADLs, and gaps 22 in his treatment with Dr. Perlstein—to discount Dr. Perlstein’s opinions. Further, each 23 reason was supported by substantial evidence. 24 . . . . 25 . . . . 26 . . . . B. The ALJ provided specific, clear, and convincing reasons supported by 27 substantial evidence for rejecting Plaintiff’s symptom testimony. 28 The ALJ discounted Plaintiff’s testimony for two primary reasons. First, the ALJ 1 found that Plaintiff’s allegations of disabling symptoms were inconsistent with his 2 conservative treatment for his impairments and symptoms. (R. at 44.) Second, the ALJ 3 found that Plaintiff’s allegations were undermined by his ADLs. (Id. at 42, 44, 46.) The 4 Court concludes that each reason was sufficient and supported by substantial evidence. 5 Thus, the ALJ did not err in discounting Plaintiff’s symptom testimony. 6 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 7 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 8 evaluates whether the claimant has presented objective medical evidence of an impairment 9 “which could reasonably be expected to produce the pain or symptoms alleged.” 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 11 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 12 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 13 about the severity of her symptoms only by offering specific, clear and convincing reasons 14 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 15 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 16 “In evaluating the credibility of pain testimony after a claimant produces objective medical 17 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 18 complaints based solely on a lack of medical evidence to fully corroborate the alleged 19 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 20 As previously discussed, substantial evidence supports the ALJ’s finding that 21 Plaintiff’s treatment was conservative, and that his allegations are inconsistent with his 22 ADLs. Each reason is sufficient to discount a claimant’s symptom testimony. See 23 Tommasetti, 533 F.3d at 1039–40 (finding the claimant’s “pain was not as all-disabling as 24 he reported in light of the fact that he did not seek an aggressive treatment program and did 25 not seek an alternative or more-tailored treatment program”); see also Rollins v. Massanari, 26 261 F.3d 853, 857 (9th Cir. 2001) (reiterating that claimant’s ADLs are a relevant 27 consideration in evaluating symptom testimony). Each reason was also supported by 28 substantial evidence. The ALJ found that there was a gap of several years between 1 treatments at the Center for Autism Research and Education. (R. at 44.) Similarly, the ALJ 2 found that Plaintiff had not pursued counseling or taking medication despite 3 recommendations from doctors. (Id.) Plaintiff argues the ALJ ignored the years of 4 treatment that Plaintiff did undergo. (Pl. Br. at 21.) Plaintiff argues for a different 5 interpretation of the evidence, but since the ALJ’s interpretation was a reasonable one, the 6 Court defers to it. See Thomas, 278 F.3d at 954. Further, Plaintiff miscomprehends case 7 law criticizing reliance on conservative treatment in cases of mental impairment. (Pl. Br. 8 at 21.) Plaintiff relies on Garrison, which criticizes punishing the mentally ill for 9 occasionally going off medication where the record indicates the noncompliance was due 10 to the mental illness. Id. at 1018 n. 24. Plaintiff does not argue Plaintiff’s noncompliance 11 was due to his impairment so his reliance on Garrison is misplaced. 12 Finally, the ALJ correctly relied on Plaintiff’s ADLs in discounting Plaintiff’s 13 testimony. The ALJ cited ADLs including Plaintiff’s preparing meals, driving, playing 14 sports, playing music in band, and doing well in school. (R. at 42, 44, 46.) Though Plaintiff 15 argues the ALJ failed to appreciate the limitations Plaintiff has despite his performance of 16 ADLs, the Court disagrees. (Pl. Br. at 22.) ALJs may rely on a claimant’s ADLs to the 17 extent they undermine the claimant’s testimony, even if the ADLs are not strictly consistent 18 with fulltime work. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (holding 19 that ALJs may rely on ADLs that undermine a claimant’s testimony even if they reflect 20 some limitations in functioning). Here, the ALJ’s interpretation that Plaintiff’s ADLs 21 undermine his allegations is reasonable, even if the ADLs do not inherently reflect an 22 ability to sustain fulltime work. Accordingly, the ALJ did not err in discounting Plaintiff’s 23 symptom testimony. 24 . . . . 25 . . . . 26 C. Substantial evidence supports the ALJ’s evaluation of vocational evaluation specialist, Joseph Burridge. 27 28 On October 15, 2016, Burridge evaluated Plaintiff “to assist in determining his 1 present level of function, while identifying vocational goals compatible to his impediment 2 to employment.” (R. at 2569.) Burridge found Plaintiff “posses[es] the learning potential 3 to benefit from the employment provisions of a Vocational Rehabilitation program 4 designed to obtain gainful employment.” (Id. at 2574.) He also found “[v]ocational 5 rehabilitation services should consider placing Mr. Johnson in a trial work plan or work 6 adjustment training program.” (Id.) He found that “[w]hen deemed viable direct placement 7 or [o]n the job training commensurate with Mr. Johnson’s transferable work skills, 8 measured aptitudes, and interests may include, but are certainly not limited to entry level 9 occupations in select work environments.” (Id.) Finally, Burridge opined that “Mr. 10 Johnson’s capacity to perform work-related activities in gainful employment settings, from 11 a physical or psychological point-of-view, will require the further insights of appropriate 12 medical doctors or behavioral health professionals.” (Id. at 2575.) The ALJ gave this 13 opinion significant weight because it is consistent with the overall evidence. (Id. at 47.) 14 Plaintiff argues the ALJ’s analysis of Burridge’s opinion was erroneous. (Pl. Br. at 15 23–25.) Plaintiff essentially argues there is disharmony between the ALJ’s acceptance of 16 Burridge’s opinion and Burridge’s actual findings. (Id. at 24.) Plaintiff argues “[i]f the ALJ 17 had in fact adopted Burridge’s opinion, the ALJ would have found Johnson disabled.” (Id.) 18 The Court rejects Plaintiff’s argument and finds that substantial evidence supports 19 the ALJ’s evaluation of Burridge’s opinion. Initially, it is the ALJ’s duty to evaluate the 20 medical evidence, resolve conflicts and ambiguities in the record and determine a claimant’s 21 RFC. See Tommasetti, 533 F.3d at 1041. The RFC need not match any particular medical 22 source opinion since it is a legal determination. 20 C.F.R. §§ 404.1527(d)(2), 404.1545, 23 404.1546(c). Accordingly, the ALJ was not required to adopt Burridge’s opinion word-for- 24 word. Burridge himself acknowledged that he did not have the final word regarding 25 Plaintiff’s capacity to perform work-related activities. (R. at 2575.) The ALJ was required 26 to evaluate Burridge’s opinion while taking into account all other available evidence. From 27 there, the ALJ had a duty to synthesize Plaintiff’s RFC. The ALJ also had to take into 28 account that Burridge’s opinion was at a snapshot in time nearly one year before Plaintiff’s 1 || hearing before the ALJ and over one year before the date of the ALJ’s decision. (/d. at 29.) 2|| Also, the ALJ adopted limitations consistent with Burridge’s opinion and other evidence || in Plaintiff’s RFC. (R. at 43.) Ultimately, substantial evidence supports the ALJ’s analysis of Burridge’s opinion and her decision to give it significant weight, yet not adopt its 5 || recommendations word-for-word. IV. CONCLUSION 7 Substantial evidence supports the ALJ’s nondisability determination. The ALJ 8 || provided specific and legitimate reasons supported by substantial evidence for rejecting the 9|| opinions of Dr. Perlstein. The ALJ also provided specific, clear, and convincing reasons 10 || supported by substantial evidence for discounting Plaintiff's symptom testimony. Finally, the ALJ appropriately evaluated Joseph Burridge’s opinion and incorporated it into Plaintiff's RFC. 13 IT IS THEREFORE ORDERED affirming the decision of the Administrative Law Judge (R. at 26-57) as upheld by the Appeals Council (R. at 1-7). 15 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly and close this matter. 17 Dated this 23rd day of March, 2021. 18 19 “Ss SO fonorable Susan M. Brnovich = 21 United States District Judge 22 23 24 25 26 27 28

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