Lolic v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 2, 2021
• Docket: 2:20-cv-01444
• Status: Unknown

Opinion

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

9 Remiza Lolic, No. CV-20-01444-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the Commissioner of Social Security Administration’s 17 (“Commissioner”) denial of Plaintiff Remiza Lolic’s (“Plaintiff”) application for disability 18 insurance benefits. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial 19 review of that denial. For the following reasons, the Court affirms the Administrative Law 20 Judge’s (“ALJ”) decision (Doc. 17-3 at 16–28), as upheld by the Appeals Council, id. at 21 1–6. 22 BACKGROUND 23 Plaintiff alleges disability beginning on October 1, 2015 (“Onset Date”). Id. at 16. 24 Her claim was denied initially on March 30, 2017, and upon reconsideration on June 30, 25 2017. Id. On May 7, 2019, she was granted a hearing. Id. On July 3, 2019, the ALJ 26 denied Plaintiff’s Application, and on May 22, 2020, the Appeals Council denied Plaintiff’s 27 Request for Review. Id. at 1. 28 1 The ALJ evaluated Plaintiff’s disability based on the following severe impairments: 2 migraine headaches, not intractable, without status migrainosus; right shoulder pain; major 3 depressive disorder (“MDD”); and post-traumatic stress disorder (“PTSD”). Id. at 18. 4 Ultimately, the ALJ concluded that Plaintiff was not disabled from the Onset Date through 5 March 31, 2019—Plaintiff’s date-last-insured. Id. at 28. The ALJ found that Plaintiff 6 “does not have an impairment or combination of impairments that meets or medically 7 equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, 8 Appendix 1.” Id at 19. Next, the ALJ calculated Plaintiff’s residual functional capacity 9 (“RFC”):

10 [Plaintiff] has the [RFC] to perform medium work as defined in 20 CFR 11 404.1567(c) and 416.967(c). She can lift and/or carry 50 pounds occasionally and 25 pounds frequently. She can stand and/or walk for at least 6 hours in 12 an 8-hour workday. She can sit for at least 6 hours in an 8-hour workday. She 13 can perform occasional climbing of ladders, ropes, or scaffolds. She can perform occasional overhead reaching with the right dominant arm. She 14 needs to avoid concentrated exposure to extreme cold, noise, and vibrations. 15 She needs to avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. She can do work involving simple, routine tasks, with only 16 occasional, superficial interaction with the public and co-workers. She can 17 do work in an environment where the claimant is not expected to resolve conflicts or persuade others to follow demands. She can work in a well- 18 defined work environment with specific, pre-set goals. 19 Id. at 21. Accordingly, the ALJ found that there are jobs that exist in significant numbers 20 in the national economy that Plaintiff can perform. Id. at 27. 21 DISCUSSION 22 I. Legal Standards 23 In determining whether to reverse an ALJ’s decision, the district court reviews only 24 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 25 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 26 determination only if it is not supported by substantial evidence or is based on legal error. 27 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 28 that a reasonable person might accept as adequate to support a conclusion considering the 1 record as a whole. Id. To determine whether substantial evidence supports a decision, the 2 Court must consider the record as a whole and may not affirm simply by isolating a 3 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 4 susceptible to more than one rational interpretation, one of which supports the ALJ’s 5 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 6 (9th Cir. 2002) (citations omitted). 7 To determine whether a claimant is disabled for purposes of the Act, the ALJ 8 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 9 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 10 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 11 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 12 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe,” 13 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 14 step three, the ALJ considers whether the claimant’s impairment or combination of 15 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 16 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 17 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 18 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 19 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 20 determines whether the claimant can perform any other work in the national economy 21 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 22 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 23 II. Analysis 24 Plaintiff raises three arguments on appeal. First, Plaintiff challenges the ALJ’s 25 rejection of the assessments from Petar Novakovic, M.D., certified physician assistant Julia 26 Turchaninov, P.A.-C., Bronislava Shafran, M.D., and nurse practitioner Sorana L. Pop, 27 N.P. Second, Plaintiff challenges the ALJ’s rejection of consultative examiner Janeen A. 28 DeMarte’s, Ph.D. assessment and the ALJ’s reliance upon the opinions of the state agency 1 consultants. Third, Plaintiff challenges the ALJ’s rejection of Plaintiff’s symptom 2 testimony. The Court finds that the ALJ did not err. 3 A. Symptom Testimony 4 Because the severity of an impairment may be greater than what can be shown by 5 objective medical evidence alone, the ALJ considers a claimant’s subjective testimony 6 regarding pain and symptoms. 20 C.F.R. § 404.1529(c)(3); Burch v. Barnhart, 400 F.3d 7 676, 680 (9th Cir. 2005). The claimant, however, must still show objective medical 8 evidence of an underlying impairment that could reasonably be expected to produce the 9 pain or symptoms alleged. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 404.1529(a). However, 10 while such evidence is required to show the existence of an underlying impairment, “the 11 [ALJ] may not discredit the claimant’s testimony as to subjective symptoms merely 12 because they are unsupported by objective evidence.” Berry v. Astrue, 622 F.3d 1228, 13 1234 (9th Cir. 2010). Nevertheless, the ALJ evaluates the testimony in relation to the 14 objective medical evidence and other evidence in determining the extent to which the pain 15 or symptoms affect her capacity to perform basic work activities. 20 C.F.R. 16 § 404.1529(c)(4). 17 Unless there is evidence of malingering by the claimant, the ALJ may only reject 18 symptom testimony for reasons that are specific, clear, and convincing. Burch, 400 F.3d 19 at 680. In evaluating the credibility of a claimant’s testimony, the ALJ may consider the 20 claimant’s “reputation for truthfulness, inconsistencies either in his testimony or between 21 his testimony and his conduct, his daily activities, his work record, and testimony from 22 physicians and third parties concerning the nature, severity, and effect of the symptoms of 23 which he complains.” Light v. Soc. Sec. Admin., Comm’r, 119 F.3d 789, 792 (9th Cir. 24 1997); see 20 C.F.R. § 404.1529(c)(4). General findings pertaining to a claimant’s 25 credibility are not sufficient. Lester, 81 F.3d at 821. Rather, “the ALJ must specifically 26 identify the testimony she or he finds not be credible and must explain what evidence 27 undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 28 In doing so, the ALJ need not engage in “extensive” analysis but should, at the very least 1 “provide some reasoning in order [for a reviewing court] to meaningfully determine 2 whether [the ALJ’s] conclusions were supported by substantial evidence.” Brown-Hunter 3 v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). 4 Here, the ALJ determined that Plaintiff’s medically determinable impairments could 5 reasonably be expected to cause the alleged symptoms but that her statements concerning 6 the intensity, persistence, and limiting effects of these symptoms were not fully consistent 7 with the record. (Doc. 17-3 at 22.) As the ALJ cited no evidence of malingering, the ALJ 8 was required to give specific, clear, and convincing reasons for rejecting Plaintiff’s 9 testimony. Plaintiff fails to show that the ALJ did not meet this standard. 10 Contrary to Plaintiff’s assertion, the ALJ did tie-in characterization of the medical 11 record with the symptom testimony. After listing the symptoms Plaintiff reported, the ALJ 12 specifically discussed which medical evidence he found inconsistent with Plaintiff’s 13 reported limitations. Id. at 24. Further, substantial evidence supports the ALJ’s 14 determination that Plaintiff’s self-reported improvement in her migraine headaches is 15 inconsistent with her testimony of disabling limitations. See Robbins v. Soc. Sec. Admin., 16 466 F.3d 880, 884 (9th Cir. 2006) (explaining that an ALJ may discredit a claimant’s 17 subjective testimony based on conflicts between her testimony and her own conduct or on 18 internal contradictions in her testimony). The record shows that Plaintiff reported 19 significant improvement in her migraines. See, e.g., (Docs. 17-11 at 747–51, 753, 755, 20 759–65; 17-10 at 588.) For example, in February 2018, Dr. Novakovic noted that 21 Plaintiff’s migraines had “significantly improved and now if they break through they are 22 mild & are easily aborted.” (Doc. 17-11 at 753.) Additionally, regardless of whether the 23 ALJ improperly discounted Plaintiff’s testimony because Plaintiff failed to report certain 24 symptoms or because her mental health symptoms existed prior to her Onset Date, the ALJ 25 provided other reasons for discounting the testimony that Plaintiff does not address. 26 Accordingly, Plaintiff has not shown that the ALJ committed materially harmful error in 27 rejecting Plaintiff’s symptom testimony. 28 1 B. Medical Opinions 2 The determination of a claimant’s RFC is an issue reserved for the Commissioner. 3 20 C.F.R. § 404.1527(d)(2). In formulating the RFC, the ALJ evaluates all medical 4 opinions in the record and assigns a weight to each. 20 C.F.R. §§ 404.1527(b), 5 404.1527(c). Courts “distinguish among the opinions of three types of physicians: (1) those 6 who treat the claimant (treating physicians); (2) those who examine but do not treat the 7 claimant (examining physicians); and (3) those who neither examine nor treat the claimant 8 (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 9 Generally, the ALJ should afford more weight to a treating source than a non-treating 10 source, and greater weight to an examining physician than a non-examining physician. 11 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “The weight afforded a non- 12 examining physician’s testimony depends on the degree to which [he] provide[s] 13 supporting explanations for [his] opinions.” Id. (internal quotations and citation omitted). 14 An ALJ must resolve any conflicts between medical opinions. Morgan v. Comm’r of Soc. 15 Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). 16 The ALJ may assign lesser weight to a controverted opinion of a treating physician 17 or examining physician’s opinion, as is the case here, if the ALJ articulates “specific and 18 legitimate reasons supported by substantial evidence.” Chater, 81 F.3d at 830. An ALJ 19 satisfies the “substantial evidence” requirement by providing a “detailed and thorough 20 summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, 21 and making findings.” Colvin, 759 F.3d at 1012. The ALJ, however, need only provide 22 “germane reasons” for discounting the opinion of a medical provider who does not meet 23 the definition of an “acceptable medical source,” such as physician assistants and nurse 24 practitioners. See Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); 20 C.F.R. 25 § 404.1502(a). 26 1. Dr. Novakovic and PA Turchaninov March 2017 Assessments 27 The ALJ assigned “low weight” to Dr. Novakovic and PA Turchaninov’s March 28 2017 assessments. (Doc. 17-3 at 26.) The ALJ assigned the assessments low weight for 1 several different reasons, including that the extreme limitations in the assessments are not 2 supported by the treatment record and that Plaintiff’s headaches had greatly improved from 3 2017 to 2019. Id. at 25. Plaintiff asserts that the ALJ erred by not providing specific 4 citations to the record. (Doc. 21 at 17.) However, the ALJ provided detailed citation to 5 Plaintiff’s treatment records for migraine headaches in a separate portion of the opinion. 6 (Doc. 17-3 at 22.) “The ALJ is not required to repeat each citation to the record after []he 7 has previously done so in detailed fashion.” Minnifield v. Comm’r of Soc. Sec. Admin., 8 No. CV-20-00913-PHX-MTL, 2021 WL 100105, at *3 (D. Ariz. Jan. 12, 2021). Further, 9 the ALJ’s observation that Plaintiff’s migraine headaches had improved since the 10 assessments is a specific and legitimate reason for discounting the assessments. See Berry, 11 622 F.3d at 1236. Accordingly, Plaintiff fails to show that the ALJ committed materially 12 harmful error in rejecting Dr. Novakovic and PA Turchaninov’s March 2017 assessments. 13 2. Dr. Shafran 14 The ALJ also assigned Dr. Shafran’s assessments of March 2017 and June 2017 15 “low weight.” (Doc. 17-3 at 26.) The ALJ discounted these assessments because Plaintiff 16 reported that her headaches and depressive symptoms had “improved remarkably” 17 throughout 2017 and into 2018. Id. As discussed above, improvement is a specific and 18 legitimate reason for discounting an assessment. Accordingly, Plaintiff fails to show that 19 the ALJ committed materially harmful error in rejecting Dr. Shafran’s assessments. 20 3. NP Pop and PA Turchaninov 21 Additionally, the ALJ discounted NP Pop’s 2018 assessment, (Doc. 17-10 at 659– 22 61) and PA Turchaninov’s March 2017 assessment, (Doc. 17-11 at 675–76). Plaintiff 23 asserts the ALJ improperly discounted these assessments because he noted they were not 24 from an “acceptable source” and rejected PA Turchaninov’s assessment because it did not 25 provide an adequate explanation. (Doc. 17-3 at 26.) Although the ALJ notes that these 26 assessments are not from an acceptable source, it is not clear that the ALJ discounted the 27 assessments on this basis. Further, beyond discounting PA Turchaninov’s assessment for 28 lack of explanation, Plaintiff does not address that the ALJ also discounted the sources 1 because they were not supported by the record and are contrary to Plaintiff’s “significant 2 improvement.” Id. An ALJ may properly reject a medical opinion that is unsupported by 3 the record as a whole. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 4 Cir. 2004). Accordingly, the ALJ provided germane reasons for discounting the 5 assessments. 6 4. Dr. DeMarte 7 The ALJ assigned “low weight” to Dr. DeMarte’s psychological report because her 8 statements “seem to be based on the claimant’s reported symptoms, which are unreliable.” 9 (Doc. 17-3 at 25.) The ALJ noted, as an example, that Plaintiff told Dr. DeMarte that she 10 has headaches everyday but, one week before, reported to Dr. Shafi that her headaches 11 were only bi-weekly and had decreased in frequency. Id. 12 An ALJ may reject a treating physician’s opinion “if it is based to a large extent on 13 a claimant’s self-reports that have been properly discounted as incredible.” Tommasetti v. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (internal quotations and citation omitted). As 15 previously discussed, the ALJ properly discounted Plaintiff’s symptom testimony because 16 of inconsistences between her testimony and her self-reports in the record. As the ALJ 17 properly discounted Plaintiff’s self-reports, and Dr. DeMarte’s report, upon review, is 18 largely based on Plaintiff’s self-reports, the ALJ did not err in assigning low weight to the 19 report. 20 5. State Agency Psychological Consultants 21 The ALJ assigned “substantial weight” to the state agency psychological 22 consultants’ opinions. (Doc. 17-3 at 25.) The ALJ detailed the opinions’ observations and 23 concluded that the opinions are “generally consistent with the treatment evidence, which 24 shows the claimant’s depression symptoms were mild throughout the period at issue and 25 were treatable with use of Zoloft.” Id. 26 Contrary to Plaintiff’s assertion, the ALJ did not err in considering the opinions, 27 despite that the state examiners did not review the entire record. See Owen v. Saul, 808 28 Fed. App’x. 421, 423 (9th Cir. 2020) (“[T]here is always some time lapse between a || consultant’s report and the ALJ hearing and decision, and the Social Security regulations 2 || impose no limit on such a gap in time.”). Further, the ALJ properly considered whether 3 || the opinions were consistent with the treatment evidence. See Thomas, 278 F.3d at 957 (‘The opinions of non-treating or non-examining physicians may also serve as substantial 5 || evidence when the opinions are consistent with independent clinical findings or other 6|| evidence in the record.”). Accordingly, Plaintiff fails to show that the ALJ erred in || assigning substantial weight to the state examiners’ opinions. 8 CONCLUSION 9 For the reasons stated above, the Court finds that the ALJ’s opinion is supported by 10 || substantial evidence in the record and is free from harmful legal error. 11 IT IS THEREFORE ORDERED affirming the July 3, 2019 decision of the 12 || Administrative Law Judge, as upheld by the Appeals Council on May 22, 2020. (Doc. 17-3.) 14 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 15 || accordingly and terminate this matter. 16 Dated this 30th day of July, 2021. Whirs ) 8 A Whacrsay Sooo) 19 Chief United states District Judge 20 21 22 23 24 25 26 27 28

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