Lallier v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 26, 2020
• Docket: 3:19-cv-08085
• Status: Unknown

Opinion

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

8 Danielle Renae Lallier, No. CV-19-08085-PCT-MTM

9 Plaintiff, ORDER

10 v.

11 Commissioner of Social Security Administration, 12 Defendant. 13 14 Plaintiff Danielle Renae Lallier seeks review under 42 U.S.C. § 405(g) of the final 15 decision of the Commissioner of Social Security (“the Commissioner”), which denied her 16 disability insurance benefits and supplemental security income under sections 216(i), 17 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the 18 Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based 19 on legal error, the Commissioner’s decision will be affirmed. 20 I. Background. 21 On November 21, 2014, Plaintiff applied for disability insurance benefits and 22 supplemental security income, alleging disability beginning June 9, 2014. On July 18, 23 2017, she appeared with her attorney and testified at a hearing before the ALJ. A vocational 24 expert also testified. On January 2, 2018, the ALJ issued a decision that Plaintiff was not 25 disabled within the meaning of the Social Security Act. The Appeals Council denied 26 Plaintiff’s request for review of the hearing decision, making the ALJ’s decision the 27 Commissioner’s final decision. 28 1 II. Legal Standard. 2 The district court reviews only those issues raised by the party challenging the ALJ’s 3 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set 4 aside the Commissioner’s disability determination only if the determination is not 5 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 6 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, 7 and relevant evidence that a reasonable person might accept as adequate to support a 8 conclusion considering the record as a whole. Id. In determining whether substantial 9 evidence supports a decision, the court must consider the record as a whole and may not 10 affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general 11 rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of 12 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 13 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 14 The ALJ is responsible for resolving conflicts in medical testimony, determining 15 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 16 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 17 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 18 881 F.2d 747, 755 (9th Cir. 1989). 19 III. The ALJ’s Five-Step Evaluation Process. 20 To determine whether a claimant is disabled for purposes of the Social Security Act, 21 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 22 burden of proof on the first four steps, but at step five, the burden shifts to the 23 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 24 At the first step, the ALJ determines whether the claimant is engaging in substantial 25 gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the 26 inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” 27 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the 28 claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether 1 the claimant’s impairment or combination of impairments meets or medically equals an 2 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 3 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step 4 four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) 5 and determines whether the claimant is still capable of performing past relevant work. § 6 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the 7 ALJ proceeds to the fifth and final step, and determines whether the claimant can perform 8 any other work based on the claimant’s RFC, age, education, and work experience. 9 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 10 Id. 11 At step one, the ALJ found that Plaintiff meets the insured status requirements of 12 the Social Security Act through December 31, 2019, and that she has not engaged in 13 substantial gainful activity since June 9, 2014. At step two, the ALJ found that Plaintiff has 14 the following severe impairments: obesity; persistent depressive disorder; generalized 15 anxiety disorder; unspecified anxiety disorder; conversion disorder with mixed symptoms; 16 major depressive disorder; panic disorder without agoraphobia; lumbar and cervical 17 degenerative disc disease, status post L5-S1 fusion; idiopathic progressive neuropathy; and 18 essential tremor. At step three, the ALJ determined that Plaintiff does not have an 19 impairment or combination of impairments that meets or medically equals an impairment 20 listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that 21 Plaintiff has the RFC to perform: 22 [L]ight work as defined in 20 CFR 404.1567(b). The claimant can occasionally climb ramps and stairs, but can never climb ladders, ropes, or 23 scaffolds. She is able to occasionally balance, stoop, kneel, crouch, and crawl. She can frequently handle, finger, and feel with her left upper 24 extremity. The claimant must avoid hazards, including moving machinery and unprotected heights. She is capable of performing simple, routine tasks 25 in an environment with few changes and free from fast-paced production requirements, like those found in assembly line work. She can have 26 occasional and superficial interaction with coworkers and the public, such that the interaction is incidental to the task performed. 27 28 (AR 22). 1 2 The ALJ further found that Plaintiff is unable to perform any of her past relevant 3 work. At step five, the ALJ concluded that, considering Plaintiff’s age, education, work 4 experience, and residual functional capacity, there are jobs that exist in significant numbers 5 in the national economy that Plaintiff could perform. The ALJ ultimately concluded that 6 Plaintiff is not disabled within the meaning of the Social Security Act. 7 IV. Analysis. 8 Plaintiff argues that the ALJ improperly weighed the medical opinions of the 9 following medical sources: Dr. Rosebrock, Dr. Frankel, and Dr. Mayer. The Court will 10 address the ALJ’s treatment of the medical opinions below. 11 A. Legal Standard. 12 The Ninth Circuit distinguishes between the opinions of treating physicians, 13 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 14 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician’s 15 opinion and more weight to the opinion of an examining physician than to one of a non- 16 examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see 17 also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating 18 opinion evidence, including length of examining or treating relationship, frequency of 19 examination, consistency with the record, and support from objective evidence). If it is not 20 contradicted by another doctor’s opinion, the opinion of a treating or examining physician 21 can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing 22 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion of a treating 23 or examining physician “can only be rejected for specific and legitimate reasons that are 24 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 25 53 F.3d at 1043). 26 An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 27 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 28 interpretation thereof, and making findings.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 1 Cir. 2017) (quotations omitted). But “[t]he ALJ must do more than offer [her] conclusions. 2 [She] must set forth [her] own interpretations and explain why they, rather than the 3 doctors’, are correct.” Embrey, 849 F.2d at 421-22. The Commissioner is responsible for 4 determining whether a claimant meets the statutory definition of disability and does not 5 give significance to a statement by a medical source that the claimant is “disabled” or 6 “unable to work.” 20 C.F.R. § 416.927(d). 7 B. Record Evidence of Supporting Physicians. 8 Dr. Benjamin Rosebrock first treated Plaintiff by conducting an orthopedic 9 consultative examination on March 6, 2015. (AR 346). Dr. Rosebrock stated that Plaintiff 10 can complete self-care activities including meals, hygiene, and light housework, but 11 observes some instability in her gait related to numbness in her feet. (AR 347). Dr. 12 Rosebrock observed no acute distress and found during his examination that Plaintiff had 13 a normal gait, was able to stoop without difficulty, and was able to demonstrate appropriate 14 balance. (AR 348). When conducting an examination of Plaintiff’s upper extremities, Dr. 15 Rosebrock opined that Plaintiff demonstrated reduced grip strength in the left upper 16 extremity, had difficulty picking up coins, but was able to screw a nut and bolt together 17 without much difficulty. (AR 349). Plaintiff indicated no decreased sensation in her ulnar, 18 median, and radial nerves. (AR 349). 19 In Plaintiff’s local extremities, Dr. Rosebrock observed “no gross deformity noted 20 in the bilateral lower extremity.” (AR 350). Dr. Rosebrock noted Plaintiff had a full range 21 of motion but Plaintiff reported decreased sensation to light touch, vibration, and pain over 22 the plantar surface of bilateral lower extremities. (AR 350). 23 In Dr. Rosebrock’s medical source statement, Plaintiff was diagnosed with left 24 upper extremity weakness secondary to subjective findings, neuropathy of bilateral feet 25 secondary to subjective findings, and chronic back pain secondary to previous lumbar 26 function. (AR 352). Dr. Rosebrock concluded that Plaintiff’s condition would impose 27 limitations on her ability to perform work-related activities for 12 continuous months. (AR 28 352). Dr. Rosebrock opined that Plaintiff could carry a maximum of 20 pounds 1 occasionally, and 10 pounds frequently. (AR 352). He also concluded Plaintiff had the 2 ability to stand or walk six-to-eight hours in an eight-hour day, had no limitations in sitting, 3 seeing, hearing, or speaking. (AR 353). Dr. Rosebrock stated that Plaintiff could only 4 occasionally climb, balance, handle, finger, or feel objects, but she had no limitations 5 stooping, kneeling, crouching, crawling, or reaching. (AR 353). Finally, Dr. Rosebrock 6 concluded that Plaintiff should not work around heights, moving machinery, or extremes 7 in temperature. (AR 354). 8 Non-examining State agency physician Ernest Griffith, M.D. reviewed Plaintiff’s 9 file and concurred with Dr. Rosebrock’s findings as to her ability to lift weight and perform 10 certain tasks. (AR 80-82). Non-examining State agency physician Mikhail Baragan, M.D. 11 agreed with Dr. Rosebrock’s and Dr. Griffith’s assessments of Plaintiff’s residual 12 functional capacity. (AR 96-99). 13 C. Record Evidence of Non-Supporting Physicians. 14 Dr. Rosebrock’s medical opinion was contradicted by the opinion of Dr. Justin 15 Garrison, D.O., who conducted an orthopedic consultative examination of Plaintiff on 16 March 6, 2015. (AR 368). Dr. Garrison opined Plaintiff had greater abilities than those 17 identified in Dr. Rosebrock’s opinion and concluded that Plaintiff did not have any 18 limitations on her ability to perform work-related tasks for 12 continuous months. (AR 19 373). The ALJ could therefore discount Dr. Rosebrock’s opinion for specific and legitimate 20 reasons supported by substantial evidence. Lester, 81 F.3d at 830-31. However, the ALJ 21 decided to afford little weight to Dr. Garrison’s opinion instead, as it “contrasts sharply 22 with other evidence of record.” (AR 25). Neither Plaintiff nor Defendant argues the ALJ 23 was incorrect to do so. 24 Separately, Dr. Harris Frankel, M.D. recorded normal EMG findings when he 25 examined Plaintiff in March 2014.1 (AR 331) Dr. Muhammad A. Nayer, M.D. performed 26 an EMG on February 16. 2016 that “showed no evidence of electrical instability.” (AR 27 1 Records indicate Plaintiff’s time at Nebraska Methodist Hospital where Dr. Frankel 28 conducted the EMG spanned March 10-13, 2014. (AR 299). The specific date of the EMG is not listed. 1 897). From these reports, the ALJ concluded that the medical evidence offset the credibility 2 of Dr. Rosebrock’s opinion, and after consideration of the record as a whole, Plaintiff was 3 not disabled within the meaning of the Social Security Act. 4 D. The ALJ’s Decision is Supported by Substantial Evidence. 5 The ALJ’s decision is supported by substantial evidence in the record. The ALJ 6 determined that Dr. Rosebrock’s opinion as an examining physician, and Drs. Griffith and 7 Baragan’s opinions as non-examining State agency physicians should be afforded weight, 8 but only “partial weight” as “their opinions regarding the claimant’s manipulative 9 limitations appear to be excessively restrictive and inconsistent with the normal 10 electromyography (EMG) of her left upper extremity, as well as the EMG of the lower 11 extremities that revealed only mild impairments.” (AR 25). The record includes normal 12 EMG findings from examining physician Dr. Frankel (AR 301) and an EMG performed by 13 Dr. Nayer that “showed no evidence of electrical instability. (AR 897). The ALJ articulated 14 that those studies were the basis for discounting the testimony of examining physician Dr. 15 Rosebrock and non-examining physicians Dr. Griffith and Dr. Baragan. As the 16 Commissioner argues, the EMG studies were performed both before and after Dr. 17 Rosebrock’s examination, which could increase the studies’ persuasive value. (Doc. 17 at 18 7.) The ALJ’s opinion is therefore supported by substantial evidence, even if rational 19 individuals might disagree on the correct outcome. “Where the evidence is susceptible to 20 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 21 conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) 22 (internal citations omitted). See also Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 23 1992) (“The trier of fact and not the reviewing court must resolve conflicts in the 24 evidence.”) 25 Plaintiff’s arguments that the ALJ’s determination lacked substantial evidence to 26 support it are unavailing. First, Plaintiff states that the ALJ’s general statement that Dr. 27 Rosebrock’s, Dr. Griffith’s, and Dr. Baragan’s opinions were “overly restrictive” is not a 28 valid reason to deny disability benefits to Plaintiff, as it fails to offer a substantive basis for 1 her conclusion. (Doc. 15 at 9, citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 2 1996).) However, the ALJ’s rationale for rejecting Dr. Rosebrock’s conclusions was not 3 merely a “boilerplate” statement regarding his credibility; the ALJ first considered Dr. 4 Rosebrock’s conclusion, that “the claimant is limited to performing work at a light 5 exertional level with additional manipulative, postural, and environmental limitations,” 6 before concluding that this diagnosis was not consistent with the “normal” readings of the 7 earlier and later EMG studies. That is a specific assessment of why the ALJ chose to afford 8 only partial weight to Dr. Rosebrock’s analysis. In Nguyen, the ALJ did not expressly reject 9 the opinion of an examining doctor, and the conclusions the ALJ did draw contradicted the 10 rest of the medical record. Id. at 1464. The ALJ’s decision in this case is more specific, 11 directly addresses Dr. Rosebrock’s conclusions, and refers to other record evidence in 12 support of the ultimate conclusion. Nguyen is distinguishable from this case. 13 Second, Plaintiff states that the medical analysis impermissibly substitutes the 14 medical professionals’ opinions in favor of the ALJ’s, citing to the Ninth Circuit’s decision 15 in Tackett. (Doc. 15 at 9.) Tackett is readily distinguishable; there, the Ninth Circuit 16 rejected the ALJ’s determination because the ALJ disregarded medical evidence based 17 solely on the claimant’s testimony during the administrative hearing that he once took a 18 road trip to California. Tackett, 180 F.3d at 1103. Here, the ALJ cited to the medical records 19 and notations of physicians who conducted EMG studies on Plaintiff. With conflicting 20 medical evidence from examining physicians, the ALJ here did not simply ignore medical 21 evidence in favor of a personal opinion; the ALJ determined which of competing medical 22 opinions was most persuasive, consistent with the ALJ’s responsibility as stated in Embrey. 23 Third, the ALJ also did not “ignore material evidence” of abnormal functioning of 24 the nerves. Plaintiff argues that the ALJ failed to consider the “positive findings” that 25 Plaintiff developed mild bilateral carpal tunnel syndrome affecting sensory components. 26 (Doc. 15 at 10.) The ALJ’s decision characterized the EMG of the lower extremities as 27 revealing “only mild impairments.” (AR 25). Plaintiff argues that the ALJ’s 28 characterization of the EMG of the lower extremities as revealing “only mild impairment” 1 was error, as the “only EMG and NCV of Lallier’s lower extremities […] revealed evidence 2 of peripheral neuropathy in bilateral lower extremities. The diagnostic impression did not 3 describe Lallier’s bilateral lower extremity peripheral neuropathy as ‘mild.’” (Doc. 15 at 4 10.) Plaintiff states that an ALJ “may not ignore material evidence contradicting its 5 conclusion,” which the ALJ in this case did by failing to take into account Plaintiff’s 6 bilateral lower extremity peripheral neuropathy. (Doc. 15 at 10, citing Gallant v. Heckler, 7 753 F.2d 1540, 1456 (9th Cir. 1984).) 8 The Commissioner counters that the ALJ’s use of the term “mild” should be read in 9 the context of whether it is “sufficiently severe to significantly affect a claimant’s ability 10 to perform work activity.” (Doc. 17 at 9, citing Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th 11 Cir. 2007).) The Court agrees; reading the term “mild” in the context of the Hoopai 12 standard is entirely consistent with the ALJ’s finding that Plaintiff, while not disabled 13 within the meaning of the Social Security Act, was still nonetheless unable to perform 14 certain work-related activities. (AR 26). It is Plaintiff’s burden to prove disability, which 15 means Plaintiff is responsible for demonstrating how the cited evidence contradicts the 16 ALJ’s conclusion, as opposed to merely asserting that it does. Tidwell v. Apfel, 161 F.3d 17 599, 601 (9th Cir. 1999). The Court will not set aside the ALJ’s determination that the 18 EMG of the lower extremities revealed “only mild impairments” that did not warrant a 19 finding of disability. 20 Finally, Plaintiff’s arguments against accepting the vocational expert’s testimony 21 regarding Plaintiff’s residual functional capacity focus on the ALJ’s decision to discount 22 the opinions of Drs. Rosebrock, Griffith, and Baragan. (Doc. 15 at 11.) (“Remand is 23 appropriate in this case because none of the hypothetical questions propounded at the 24 hearing include the manipulative limitations assessed by Drs. Rosebrock, Griffith, and 25 Baragan.”) As it was not legal error for the ALJ to discount the medical opinions of 26 Plaintiff’s experts, it is not legal error for the ALJ to have considered hypothetical 27 testimony from the vocational expert that did not account for the limitations elucidated by 28 Plaintiff’s medical experts. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). Accordingly, the Court concludes that the ALJ’s decision that Plaintiff is not disabled 2|| within the meaning of sections 216(1) and 223(d) of the Social Security Act is supported 3|| by substantial evidence. 4 IT IS ORDERED that the final decision of the Commissioner of Social Security is || affirmed. The Clerk shall enter judgment accordingly and terminate this case. 6 Dated this 26th day of March, 2020. 7 8 hak Ve Moreis ey Honorable Michael T. Morrissey 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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