1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Sheri Loper, No. CV-18-08316-PCT-JAT
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Sheri Loper’s (“Plaintiff”) appeal from the 16 Social Security Commissioner’s (the “Commissioner”) denial of her application for a 17 period of disability and disability insurance benefits under Title II of the Social Security 18 Act, 42 U.S.C. §§ 401 et seq. (Doc. 1 at 1–2). This matter has been fully briefed by the 19 parties.1 The Court now rules on Plaintiff’s appeal. 20 I. BACKGROUND 21 The parties are familiar with the background information in this case, and it is 22 summarized in Administrative Law Judge (“ALJ”) Joan G. Knight’s September 26, 2017 23 decision. (See Doc 12-3 at 50–62). Accordingly, the Court will reference the background 24 only as necessary to the analysis below. 25 II. LEGAL STANDARD 26 The ALJ’s decision to deny disability benefits may be overturned “only when the 27 ALJ’s findings are based on legal error or not supported by substantial evidence in the 28 1 (See Doc. 13; Doc. 14; Doc. 15). 1 record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 2 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 3 i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young 5 v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 6 “The inquiry here is whether the record, read as a whole, yields such evidence as 7 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 8 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is 9 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must 10 be upheld; and in reaching [her] findings, the ALJ is entitled to draw inferences logically 11 flowing from the evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec. 12 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not 13 the reviewing court must resolve conflicts in the evidence, and if the evidence can support 14 either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 15 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d at 1035 (“If the 16 evidence can support either outcome, the Commissioner’s decision must be upheld.”). 17 The ALJ is responsible for resolving conflicts in medical testimony, determining 18 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 19 Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the 20 ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th 21 Cir. 1989). On the other hand, the Court “may not affirm simply by isolating a specific 22 quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 23 (internal quotations omitted). 24 Furthermore, the Court is not charged with reviewing the evidence and making its 25 own judgment as to whether Plaintiff is or is not disabled. Rather, it is a “fundamental rule 26 of administrative law” that a reviewing court, in dealing with a judgement which an 27 administrative agency alone is authorized to make, may only make its decision based upon 28 evidence discussed by the agency. Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S. 194, 1 196 (1947). Thus, the Court’s inquiry is constrained to the reasons asserted by the ALJ and 2 the evidence relied upon in support of those reasons. See Connett v. Barnhart, 340 F.3d 3 871, 874 (9th Cir. 2003). Similarly, when challenging an ALJ’s decision, “issues which are 4 not specifically and distinctly argued and raised in a party’s opening brief are waived.” 5 Arpin v. Santa Clara Valley Trans. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (citing 6 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n. 1 (9th Cir. 2000) (en banc), vacated and 7 remanded on other grounds, 535 U.S. 391 (2002)); see also Bray v. Comm’r of Soc. Sec. 8 Admin., 554 F.3d 1219, 1226 n. 7 (9th Cir. 2009) (applying the principle to Social Security 9 appeals). Accordingly, the Court “will not manufacture arguments for an appellant.” Arpin, 10 261 F.3d at 919 (citation omitted). 11 A. Definition of a Disability 12 A claimant can qualify for Social Security disability benefits only if she can show 13 that, among other things, she is disabled. 42 U.S.C. § 423(a)(1)(E). The Social Security 14 Act defines “disability” as the “inability to engage in any substantial gainful activity by 15 reason of any medically determinable physical or mental impairment which can be 16 expected to result in death or which has lasted or can be expected to last for a continuous 17 period of not less than 12 months.” Id. § 423(d)(1)(A). A person is disabled only if her 18 “physical or mental impairment or impairments are of such severity that [she] is not only 19 unable to do [her] previous work but cannot, considering [her] age, education, and work 20 experience, engage in any other kind of substantial gainful work which exists in the 21 national economy.” Id. § 423(d)(2)(A). 22 B. The Five-Step Evaluation Process 23 The Social Security regulations set forth a five-step sequential process for 24 evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick v. Chater, 157 25 F.3d 715, 721 (9th Cir. 1998). A finding of “not disabled” at any step in the sequential 26 process will end the inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of 27 proof at the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 157 28 F.3d at 721. The five steps are as follows: 1 First, the ALJ determines whether the claimant is engaged in “substantial gainful 2 activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. 3 At the second step, the ALJ next considers whether the claimant has a “severe 4 medically determinable physical or mental impairment.” Id. § 404.1520(a)(4)(ii). If the 5 claimant does not have a severe impairment, then the claimant is not disabled. 6 Id. § 404.1520(c). A “severe impairment” is one that “significantly limits [the claimant’s] 7 physical or mental ability to do basic work activities.” Id. Basic work activities are the 8 “abilities and aptitudes to do most jobs,” such as lifting, carrying, reaching, understanding, 9 carrying out and remembering simple instructions, responding appropriately to co-workers, 10 and dealing with changes in routine.” Id. § 404.1521(b). Additionally, unless the claimant’s 11 impairment is expected to result in death, “it must have lasted or must be expected to last 12 for a continuous period of at least 12 months” for the claimant to be found disabled. Id. § 13 404.1509. 14 Third, having found a severe impairment, the ALJ then considers the severity of the 15 claimant’s impairment. Id. § 404.1520(a)(4)(iii). This requires the ALJ to determine if the 16 claimant’s impairment “meets or equals” one of the impairments listed in the regulations. 17 Id. If so, then the ALJ will find that the claimant is disabled. Id. If the claimant’s 18 impairment does not meet or equal a listed impairment, then the ALJ will assess the 19 claimant’s “residual functional capacity based on all the relevant medical and other 20 evidence in [the claimant’s] case record.” Id. § 404.1520(e). In assessing the claimant’s 21 residual functional capacity (“RFC”), the ALJ will consider the claimant’s “impairment(s), 22 and any related symptoms, such as pain, [that] may cause physical and mental limitations 23 that affect what [the claimant] can do in a work setting.” Id. § 404.1545(a)(1). A claimant’s 24 RFC is the most the claimant can still do despite the effects of all the claimant’s medically 25 determinable impairments, including those that are not severe. Id. § 404.1545(a)(1–2). 26 At step four, the ALJ determines whether, despite her impairments, the claimant can 27 still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To do this, the ALJ compares 28 the claimant’s residual function capacity with the physical and mental demands of the 1 claimant’s past relevant work. Id. § 404.1520(f). If the claimant can still perform her past 2 relevant work, the ALJ will find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 3 Otherwise, the ALJ proceeds to the final step. 4 At the fifth and final step, the ALJ considers whether the claimant “can make an 5 adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 6 making this determination, the ALJ considers the claimant’s RFC, age, education, and 7 work experience. Id. § 404.1520(g)(1). If the ALJ finds that the claimant can make an 8 adjustment to other work, then the claimant is not disabled. Id. § 404.1520(a)(4)(v). 9 However, if the ALJ finds that the claimant cannot make an adjustment to other work, then 10 the claimant is disabled. Id. 11 In evaluating the claimant’s disability under this five-step process, the ALJ must 12 consider all evidence in the case record. Id. § 404.1520(a)(3). This includes medical 13 opinions, records, self-reported symptoms, and third-party reporting. See id. §§ 404.1527, 14 404.1529. 15 C. The ALJ’s Evaluation under the Five Step Process 16 At step one of the sequential evaluation process, the ALJ found that Plaintiff had 17 not engaged in substantial gainful activity since October 15, 2013, the alleged onset date. 18 (Doc. 12-3 at 50). In step two, the ALJ ascertained that Plaintiff had the following severe 19 impairments: “right shoulder recurrent adhesive capsulitis, status post left knee 20 replacement, right knee osteoarthritis, status post lumbar fusion, spinal stenosis, mood 21 disorder NO, and cognitive disorder NOS.” (Id. at 51). Under the third step, the ALJ 22 determined that the severity of Plaintiff’s impairments, singly and in combination, did not 23 meet or medically equal the severity of the impairments listed in the Social Security 24 Regulations. (Id.). 25 Before moving on to step four, the ALJ conducted an RFC determination after 26 consideration of the entire record. (Id. at 53). The ALJ determined that, from February 12, 27 2015 to September 30, 2016 (the recovery period following Plaintiff’s surgeries), Plaintiff 28 had “the residual functional capacity to perform a reduced range of light and sedentary 1 work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c).” (Id.). She added that Plaintiff 2 could have carried up to twenty pounds occasionally and ten pounds frequently, stood or 3 walked for two hours at a time, frequently balanced and climbed stairs, and occasionally 4 crawled. (Id. at 53–54). The ALJ also determined that, from October 15, 2013 to February 5 11, 2015 (the period prior to Plaintiff’s surgery) and from October 1, 2016 to the present 6 (the period following her recovery), Plaintiff had “the residual functional capacity to 7 perform medium work as defined in 20 C.F.R. § 404.1567(c) and 416.967(c).” (Id. at 53). 8 She added that Plaintiff could carry up to fifty pounds occasionally or twenty pounds 9 frequently, stand or walk for four hours at a time, frequently balance and climb stairs, and 10 occasionally crawl and climb ladders. (Id.). 11 At step four, the ALJ found that Plaintiff could not perform her past relevant work 12 as a barber due to limitations on “her frequent handling and fingering.” (Id. at 59–60). 13 Finally, at step five the ALJ evaluated Plaintiff’s RFC, age, education, and work 14 experience. She concluded that, from October 15, 2013 to February 11, 2015 and from 15 October 1, 2016 to the present, she could have performed a significant number of jobs in 16 the national economy (Id. at 60). However, from February 12, 2015 to September 30, 2016, 17 the ALJ found the opposite. (Id. at 61). Consequently, she concluded that Plaintiff was 18 disabled only from February 12, 2015 to September 30, 2016, and not any other time 19 period. (Id. at 62). 20 III. ANALYIS 21 Plaintiff argues that the ALJ’s decision should be vacated because the ALJ 22 improperly found that she improved enough to perform alternative work and improperly 23 rejected her credible, material testimony. (Doc. 13 at 19). Specifically, Plaintiff argues that: 24 (1) the ALJ improperly found substantial evidence that her left knee improved after 25 surgery; (2) the ALJ improperly identified her “lack of more aggressive treatment” as 26 substantial evidence that her right knee improved; (3) the ALJ improperly relied on medical 27 images of Plaintiff’s spine as substantial evidence of medical improvement; (4) the ALJ 28 improperly relied on Plaintiff’s daily activity as substantial evidence of medical 1 improvement; (5) the ALJ improperly relied on Dr. Cano’s examination as substantial 2 evidence of medical improvement; and (6) the ALJ improperly discredited Plaintiff’s 3 credible testimony without a “clear and convincing” reason. (Id. at 6–17). Accordingly, 4 Plaintiff asks that the ALJ’s decision be reversed and remanded for an award of benefits. 5 (Id. at 19). However, for the reasons set forth below, the final decision of the Commissioner 6 is affirmed. 7 A. Whether substantial medical evidence showed Plaintiff’s left knee 8 improved after surgery 9 Plaintiff first claims that the ALJ erred in finding substantial evidence that her left 10 knee improved after surgery. (Id. at 8). She critiques the opinions of both Dr. Heiner and 11 Dr. Schmitter. Her arguments fail. 12 1. Dr. Heiner’s Evaluations 13 Plaintiff contends that the ALJ misconstrued Dr. Heiner’s progress notes issued four 14 months after her February 25, 2016 knee replacement. (Id.). In them, Dr. Heiner wrote that 15 “many times it takes over four to six months to get through a knee replacement.” (Ex. 32F 16 at 21). Plaintiff claims this does not mean that her knee actually healed within that time 17 frame. (Doc. 13 at 8). However, Dr. Heiner’s estimate certainly supports that it did— 18 especially when considered with his additional notes that Plaintiff’s left knee 19 “demonstrate[d] essentially a completely normal knee replacement” with a range of motion 20 of up to 120 degrees, “normal distal pulses,” “normal sensation,” “typical warmth,” “no 21 excessive induration, swelling, or edema,” and “no mechanical deficits.” (Ex. 32F at 21). 22 This shows substantial improvement from Plaintiff’s preoperative condition: “[c]omplete 23 obliteration” of the patellofemoral joint and “severe arthrosis of both the medial and lateral 24 compartments with large areas of delaminating bone.” (Ex. 31F at 1). Other medical notes 25 before Plaintiff’s surgery also show that she once required an assistive device to walk, (Ex. 26 24F at 25, 30, 35, 40), whether a cane, (Ex. 25F at 16, 32), or a walker, (Ex. 33F at 21)— 27 neither of which she needed after her recovery (Ex. 30F at 2, Ex. 31F at 4, Ex. 32F at 5). 28 Dr. Heiner acknowledged Plaintiff’s subjective complaints of pain, but he also noted 1 upon examination that “there were no complications in the immediate postoperative phase, 2 and otherwise she was doing fine up until [four months post-surgery] . . . [when] she 3 seem[ed] to think things [we]re worsening.” (Ex. 32F at 20). At that point, he “reassured 4 her everything [wa]s appropriate. Her knee replacement look[ed] just fine. There [wa]s no 5 evidence that it had an atypical pattern to it.” (Id. at 21). In fact, x-rays from less than a 6 month after her surgery “demonstrate[d] a well-seated, cemented total knee arthroplasty in 7 neutral alignment. There [we]re no signs of displacement of the components; no signs of 8 loosening and no fractures or dislocations evident.” (Id. At 2). Just three months out of 9 surgery, Dr. Heiner noted that Plaintiff’s “knee replacement [was] working just fine” and 10 had an “excellent outcome.” (Id. at 17). Five months out, on July 29, 2016, he reiterated 11 that “generally everything appears appropriate about the knee replacement.” (Id. at 23). Dr. 12 Heiner may not have deemed Plaintiff’s knee perfectly healed, but he identified normal 13 healing patterns and provided no reason why her knee would not continue to improve in 14 the usual four to six months. At a minimum, by September 16, 2016, he reported that he 15 “[was] unable to identify any significant abnormalities” and that Plaintiff “[did] not really 16 have much in the way of pain in the past bursa region” (her problem area) after she received 17 a pes anserine bursa injection. (Id. at 33). Ultimately, the ALJ reasonably deferred to Dr. 18 Heiner’s continued, firsthand evaluations as substantial evidence of Plaintiff’s sustained 19 left knee recovery by October 1, 2016. See 20 C.F.R. § 404.1529(c)(2) (“Objective medical 20 evidence is evidence obtained from the application of medically acceptable clinical and 21 laboratory diagnostic techniques . . . .). 22 2. The Opinion of Dr. Schmitter 23 Moreover, on October 1, 2016, medical expert Dr. Schmitter issued his own opinion 24 on Plaintiff’s left knee replacement surgery. (Ex. 30F). After reviewing her records, he 25 estimated that her left knee recovered in just three months, sometime in May 2016—even 26 shorter than the four-to-six-months posed by Dr. Heiner. (Id. at 9). Dr. Schmitter also 27 concluded that Plaintiff, by the time of his opinion, could lift and carry up to twenty pounds 28 frequently and fifty pounds occasionally, (id. at 1), sit, stand, or walk for four hours at a 1 time without interruption (or a cane), (id. at 2), occasionally climb ladders, stoop, kneel, 2 crouch, and crawl, (id. at 4), and frequently climb stairs and balance, (id.). All of this 3 supported Plaintiff’s residual functional capacity to perform medium work again. See 20 4 C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50 pounds at a time 5 with frequent lifting or carrying of objects weighing up to 25 pounds.”). 6 Based on this opinion, too, the ALJ correctly found objective medical improvement. 7 See 20 C.F.R. § 404.1594(c)(1) (“Medical improvement is any decrease in the medical 8 severity of impairment(s) present at . . . the most recent . . . medical decision that [Plaintiff] 9 w[as] disabled . . . and is determined by a comparison of prior and current medical evidence 10 which must show that there have been changes . . . in the symptoms.”); Attmore v. Colvin, 11 827 F.3d 872, 874 (9th Cir. 2016) (“[A]n ALJ should compare the medical evidence used 12 to determine that the claimant was disabled with the medical evidence existing at the time 13 of asserted medical improvement.”). Here, Plaintiff’s RFC for medium work surpassed her 14 prior capacity for “a reduced range of light and sedentary work”—only able to carry twenty 15 pounds occasionally and ten pounds frequently and stand or walk for two hours at a time. 16 (Doc. 12-3 at 54). This increase in Plaintiff’s RFC was based on objective medical 17 improvement; and that improvement, in turn, expanded her occupational options. See 20 18 C.F.R. § 404.1594(b)(3) (“Medical improvement is related to [Plaintiff’s] ability to do 19 work if there has been . . . an increase in [her] functional capacity to do basic work . . . .”). 20 The ALJ thus reasonably found that Dr. Schmitter’s assessment reinforced the conclusions 21 in Dr. Heiner’s recovery notes. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 22 (holding that non-treating physicians can serve as substantial evidence when they back up 23 the findings of treating physicians). 24 Based on her reasonable finding of substantial evidence, the ALJ did not error in 25 concluding that Plaintiff’s left knee objectively improved. 26 B. Whether the ALJ improperly identified Plaintiff’s “lack of more 27 aggressive treatment” as substantial evidence that her right knee improved 28 Plaintiff next claims that the ALJ erred in identifying her “lack of more aggressive 1 treatment” as substantial evidence that her right knee improved. (Doc. 13 at 10). Her 2 argument here also fails. 3 On April 12, 2016, Dr. Heiner told Plaintiff that she faced “all the exact same issues 4 as [her] left knee” with her right knee. (Ex. 32F at 9). Although Plaintiff contends that the 5 record lacks evidence of alternative treatments (Doc. 13 at 11), Dr. Heiner offered a variety 6 of courses including “diagnostic arthroscopy, cortisone injections, Synvisc injections, 7 lubricating gel injections, physical therapy, and . . . partial or total knee replacements”— 8 just as with her left knee. (Ex. 32F at 9). Plaintiff resorted to physical therapy while waiting 9 on her left knee recovery. (Id.). At Plaintiff’s visit one month later, Dr. Heiner 10 recommended Hyalgan injections, (id. at 13), and Plaintiff subsequently received three of 11 them to ease her pain, (id. at 14, 18). After each injection, Heiner recorded that Plaintiff 12 “was able to move the [right] knee without difficulty.” (Id. at 13, 19). Plaintiff never opted 13 for right knee surgery or any other course of treatment initially proposed by Dr. Heiner. 14 Her minimalist approach, especially considering her willingness to undergo left knee 15 surgery, suggests that her right knee did not suffer as much and, therefore, did not disable 16 her. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (holding that conservative 17 medical treatment suggests less pain and functional limitation). 18 Plaintiff responds by citing Carmickle v. Comm'r, Soc. Sec. Admin.,2 asserting that 19 she had “good reason” for refusing “more aggressive treatment.” (Doc. 13 at 12). She 20 claims that the side effects of the cortisone shots, specifically her sixty-pound weight gain, 21 forced her to stop. (Id.; Trans. at 28). However, Carmickle describes a patient who declined 22 the “only [treatment] that . . . provided significant relief without . . . intolerable side effects” 23 because insurance did not cover it. 533 F.3d at 1162 (emphasis added). Here, although 24 Plaintiff may have reasonably sought to avoid gaining weight on cortisone shots, she still 25 neglected various backup options. Most notably, she did not pursue surgery on her right 26 knee despite its objectively favorable outcome on her left knee. Even if she claims that the 27 left knee surgery caused more side effects than benefit, she still never tried other types of 28 2 533 F.3d 1155, 1162 (9th Cir. 2008). 1 injections, less-invasive-than-surgery arthroscopy,3 or even a partial knee replacement. 2 Nor did she express concern about a lack of options to Dr. Heiner or specifically ask him 3 about alternatives beyond what he had already mentioned. Therefore, because Plaintiff 4 chose modest treatment and ignored other viable options, the ALJ reasonably found 5 substantial evidence that her right knee did not disable her or, even if it once did, it 6 improved with physical therapy and injections. 7 C. Whether the ALJ improperly relied on medical images of Plaintiff’s 8 spine as substantial evidence of medical improvement 9 Plaintiff next claims that the ALJ improperly relied on medical images showing 10 “failed” results from her spinal surgery as substantial evidence of objective medical 11 improvement. (Doc. 13 at 12). Her argument here, too, fails. 12 The ALJ acknowledged that when Plaintiff’s back pain did not improve with 13 bilateral steroid injections, she “underwent a[n] L5-S1 decompression laminectomy with 14 L4-L5 and L5-S1 bilateral instrumented intertransverse fusion and left L5-S1 15 transforaminal lumbar interbody fusion . . . However, subsequent to the procedure, 16 [Plaintiff] continued to report back pain . . . .” (Doc. 12-3 at 55) (emphasis added). The 17 ALJ then described post-surgery x-rays of Plaintiff’s spine from April 2016, noting “a good 18 fusion mass at the interbody fusion, relatively acceptable but poor spinal fusion mass in 19 between the transverse process of L4-L5, and satisfactory fusion mass at L5-S1. Upon 20 examination, [Plaintiff’s] lumbosacral spine showed good range of movement, no nerve 21 root compression signs, and no motor deficits.” (Id.) (emphasis added). The ALJ 22 objectively described the modest results of Plaintiff’s spinal surgery—neither neglecting 23 evidence that favored Plaintiff nor overstating evidence that did not. In fact, Dr. Heiner’s 24 official medical notes directly support the ALJ’s statements. (Ex. 32F at 3, 5). Plaintiff now 25 questions how a “failed” surgery can support medical improvement, (Doc. 13 at 13), but
26 3Arthroscopy, MAYO CLINIC (Aug. 15, 2019), https://www.mayoclinic.org/tests- procedures/arthroscopy/about/pac-20392974 (“Arthroscopy . . . is a procedure for 27 diagnosing and treating joint problems. A surgeon inserts a narrow tube attached to a fiber- optic video camera through a small incision . . . Arthroscopy allows the surgeon to see 28 inside [a] joint without making a large incision. Surgeons can even repair some types of joint damage during arthroscopy . . . .”). 1 the ALJ did not claim that the x-rays showed that she improved, nor that the surgery even 2 succeeded. Rather, the ALJ recognized the surgery’s mixed results and added that she “took 3 [Plaintiff’s] spinal stenosis and status post lumbar fusion into consideration” for the 4 residual functional capacity score. (Doc. 12-3 at 56). Thus, Plaintiff misconstrues the ALJ’s 5 opinion. Ultimately, the ALJ reasonably factored Plaintiff’s x-rays into the RFC score 6 without relying on them to show medical improvement. 7 D. Whether the ALJ improperly relied on Plaintiff’s daily activity as 8 substantial evidence of medical improvement 9 Plaintiff next claims that the ALJ improperly relied on her daily activity as 10 substantial evidence of her medical improvement. (Doc. 13 at 14). Again, her argument 11 fails. 12 Contrary to Plaintiff’s assertion, the ALJ never found that her daily activity 13 confirmed medical improvement. Rather, the ALJ said that “[a]lthough [Plaintiff’s] 14 activities of daily living illustrate some functional deficits, they are not of the level of 15 severity related by [her].” (Doc. 12-3 at 56). She went on to list activities Plaintiff routinely 16 engaged in, including “tending to her own personal needs, cooking dinner, watering the 17 flowers, washing laundry, going outside daily, driving herself, shopping for groceries, 18 going to the movies regularly, and caring for her pets.” (Id.) The ALJ concluded that this 19 undercut Plaintiff’s testimony on her functional limitations. (Id. at 57). However, the ALJ 20 did not conclude that Plaintiff’s activity proved that she recovered completely, or even 21 enough to avoid a disability finding. Therefore, Plaintiff misconstrued the ALJ’s opinion 22 which, actually—as explained above—focused on Dr. Heiner’s examinations and 23 treatment notes (backed by Dr. Schmitter’s opinion) to find objective medical 24 improvement. (Doc. 12-3 at 55, 57). 25 Plaintiff argues that even if the ALJ did not rely on her daily activities as substantial 26 evidence of medical improvement, the ALJ should not have considered them at all. 27 Specifically, she notes that the court in Orn v. Astrue4 said that “the mere fact that a plaintiff 28 4 495 F.3d 625, 639 (9th Cir. 2007). 1 has carried on certain daily activities . . . does not in any way detract from her credibility 2 as to her overall disability.” (Doc. 13 at 14). Therefore, Plaintiff contends that her own day- 3 to-day routine should not—even to the slightest—discredit her statements on her functional 4 limitations. However, the plaintiff in Orn engaged in just reading, watching television, and 5 coloring. 495 F.3d at 639. The court held that these amusement-and-rest-related-activities 6 “d[id] not meet the threshold for transferable work skills.” (Id.). In contrast, Plaintiff has 7 engaged in various chores and physical tasks that could transfer to the workplace— 8 certainly more so than coloring in a coloring book. Although Plaintiff need not “be utterly 9 incapacitated to be eligible for benefits,”5 she has demonstrated the responsibility, self- 10 care, mental aptitude, motor skills, and carrying and handling capacity to succeed in at least 11 basic jobs. Hence, the ALJ did not err by adjusting her opinion on Plaintiff’s functional 12 limitations according to her daily activity. 13 E. Whether the ALJ improperly relied on Dr. Cano’s examination as 14 substantial evidence of medical improvement 15 Plaintiff next claims that the ALJ improperly relied on Dr. Cano’s 2014 evaluation 16 as substantial evidence of medical improvement. (Doc. 13 at 15). Her argument fails. 17 The ALJ did not equate Dr. Cano’s examination with substantial evidence of 18 objective medical improvement. Again, the ALJ found medical improvement based 19 primarily on Dr. Heiner’s routine examinations from March to September 2016, as well as 20 Dr. Schmitter’s supporting October 2016 opinion. (Doc. 12-3 at 55, 57). Although the ALJ 21 referenced Dr. Cano’s 2014 exam, noting that Plaintiff could sit, stand, walk, get on or off 22 the examination table, stoop, stand on one foot, and balance, she did not conclude that this 23 showed Plaintiff’s medical improvement in October 2016. (Id. at 57). Rather, the ALJ 24 merely suggested that “this information indicates . . . that [Plaintiff] is more able-bodied 25 than she alleged.” (Id.). The ALJ also examined Plaintiff’s other medical records from 26 December 2013 to November 2016,6 comprehensively analyzing her condition during the 27 time she claimed disability. (Id.). Then the ALJ generally concluded that Plaintiff “[wa]s
28 5 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 6 Citing Ex. 7F, 15F, 19F, 21F, 25F, 33F. 1 described as well nourished, well developed, and in no acute distress.” (Id.). Regardless of 2 whether this analysis discredits Plaintiff’s recurring complaints about the severity of her 3 condition for all those years, the ALJ did not rely on it. In fact, the ALJ noted that she 4 “afford[ed] minimal weight” to Dr. Cano’s opinion. (Doc 12-3 at 58). Therefore, the ALJ 5 did not improperly equate records detailing Plaintiff’s pre-surgery condition with post- 6 surgery improvement. 7 F. Whether the ALJ arbitrarily discredited Plaintiff’s testimony without a 8 “clear and convincing” reason 9 Plaintiff last claims that the ALJ rejected her testimony without a “clear and 10 convincing” reason. (Doc. 13 at 16). Her argument fails. 11 An ALJ must engage in a two-step analysis to determine whether a claimant’s 12 testimony regarding subjective pain or symptoms is credible. Garrison v. Colvin, 759 F.3d 13 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the claimant has 14 presented objective medical evidence of an underlying impairment ‘which could 15 reasonably be expected to produce the pain or other symptoms alleged.’” Id. (quoting 16 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)). At this step, a claimant is 17 not required to show “that her impairment could reasonably be expected to cause the 18 severity of the symptom she has alleged; she need only show that it could reasonably have 19 caused some degree of the symptom.” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 20 (9th Cir. 1996)). Additionally, a claimant is not required to produce “objective medical 21 evidence of the pain or fatigue itself, or the severity thereof.” Id. 22 Second, if the claimant satisfies the first step of the analysis, then “the ALJ can 23 reject the claimant’s testimony about the severity of her symptoms only by offering 24 specific, clear and convincing reasons for doing so.” Id. at 1014–15 (quoting Smolen, 80 25 F.3d at 1281). “Unless an ALJ makes a finding of malingering based on affirmative 26 evidence thereof, [the ALJ] may only find an applicant not credible by making specific 27 findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466 28 F.3d at 883; see Lingenfelter, 504 F.3d at 1036. The ALJ may not fulfill this requirement 1 by making general findings; “rather, the ALJ must identify what testimony is not credible 2 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. “The 3 clear and convincing standard is the most demanding requirement in Social Security cases.” 4 Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002). 5 In assessing a claimant’s credibility, an ALJ may consider a range of factors, 6 including: “(1) ordinary techniques of credibility evaluation, such as the claimant’s 7 reputation for lying, prior inconsistent statements concerning the symptoms, and other 8 testimony by the claimant that appears less than candid; (2) unexplained or inadequately 9 explained failure to seek treatment or to follow a prescribed course of treatment; and (3) 10 the claimant’s daily activities.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) 11 (quoting Smolen, 80 F.3d at 1284). Other factors that an ALJ may consider when 12 determining the credibility of a claimant’s symptoms include: the location, duration, 13 frequency, and intensity of other symptoms; factors that precipitate and aggravate the 14 symptoms; medications taken and treatments received for symptom relief; any other 15 measures for symptom relief; and any other factors concerning the individual’s functional 16 limitations and restrictions due to pain or other symptoms. See SSR 16-3P, 2017 WL 17 5180304, at * 7–8 (Oct. 25, 2017). The ALJ may not, however, make a negative credibility 18 finding “solely because” the claimant’s symptom testimony “is not substantiated 19 affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883. 20 1. Plaintiff’s Denial of Recovery 21 First, Plaintiff alleges that she never reported any medical improvement to Dr. 22 Heiner but, in fact, repeatedly complained of knee pain. (Doc. 13 at 9) (citing Ex. 32F at 23 7, 20, 22). Moreover, five months after surgery, Plaintiff “threatened to sue [Dr. Heiner], 24 sa[ying] [he] was not paying attention to what she was asking or complaining about,” and 25 she “demanded to have her knee replacement removed . . . .” (Ex. 32F at 24). However, 26 Plaintiff ultimately backtracked, apologizing to Dr. Heiner and requesting his care again 27 (despite his own reluctance). (Id. at 32). This shows that she trusted his professional 28 judgment and valued his services as a means for her left knee recovery—recanting her prior 1 criticism of his performance. Regardless, her initial complaints lacked medical support. 2 See 20 C.F.R. § 404.1529(a) (“[S]tatements about [] pain or other symptoms will not alone 3 establish that [Plaintiff] [is] disabled.”). Although the ALJ must consider all of Plaintiff’s 4 statements, she must ignore all those that contradict “the medical signs and laboratory 5 findings and other evidence.” (Id.). Substantial evidence in Dr. Heiner’s and Dr. 6 Schmitter’s reports (detailed above) reveal the success of Plaintiff’s left knee surgery. This 7 directly conflicts with Plaintiff’s complaints, thus supporting the ALJ’s decision to 8 disregard her complaints. See Thomas, 278 F.3d at 959–60 (holding that when the ALJ 9 finds “no objective medical evidence to support [Plaintiff’s] descriptions of her pain and 10 limitations,” this serves as “specific, clear[,] and convincing” justification for discounting 11 her testimony). 12 2. Plaintiff’s Claims of Cane Use 13 Plaintiff also argues that the ALJ failed to acknowledge her testimony regarding her 14 current cane use. (Doc. 13 at 18) (citing Doc. 12-3 at 89). However, she testified to just 15 that—her use, and not her need, for a cane. Lacking “objective medical evidence” that 16 Plaintiff actually needed an assistive device to walk, the ALJ appropriately disregarded her 17 testimony on the matter. See Thomas, 278 F.3d at 959 (limiting the evidentiary influence 18 of a plaintiff’s conclusory, subjective statements about her need for a cane). 19 Moreover, the record contradicts Plaintiff’s statements here, too. Just two days after 20 her left knee replacement, Dr. Binder recorded that she “[did] reasonably well walking 21 around,” without mention of a cane. (Ex. 31F at 4). A month-and-a-half later, Dr. Eung- 22 Jun Cha confirmed that Plaintiff “walk[ed] independently.” (Ex. 32F at 5). Even though 23 Dr. Powar noted that Plaintiff limped in May 2016 (well before October when the ALJ 24 found that she recovered), he still did not recommend an assistive walking device. (Ex. 33F 25 at 17). Plaintiff also “walked with good reciprocating gait” after her pes anserine bursa 26 injections in August 2016. (Ex. 32F at 31). Another report from Dr. Powar in December 27 2016 noted her “normal” gait. (Ex. 34F at 6). None of these doctors referred to Plaintiff 28 using a cane, nor did they prescribe one to facilitate her recovery. In fact, they found that 1 || she could walk independently and normally as soon as two days after surgery. This medical || evidence refutes Plaintiff's claims that she required a cane to walk. Accordingly, the ALJ provided clear and convincing reasons for not crediting Plaintiff's symptom testimony 4|| regarding the use of a cane. 5 Plaintiff's symptom testimony being inconsistent with the objective medical 6 || evidence of record is thus a clear and convincing reason to discredit her testimony. See 7\| Carmickle, 533 F.3d at 1161. The ALJ neither erred in finding objective medical 8 || improvement despite Plaintiff's complaints, nor in dismissing her unsupported claim that 9|| she required an assistive device. 10] IV. CONCLUSION 11 For the foregoing reasons, 12 IT IS ORDERED that the final decision of the Commissioner of Social Security is AFFIRMED. 14 IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 15 || accordingly and terminate this case. 16 Dated this 17th day of September, 2019. 17 18 of 19 0 _ James A. Teil Org Senior United States District Judge 21 22 23 24 25 26 27 28
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