Malherek v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: September 26, 2019
• Docket: 4:18-cv-00409
• Status: Unknown

Opinion

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

9 Karen Malherek, No. CV-18-00409-TUC-CKJ

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On June 5, 2019, Magistrate Judge D. Thomas Ferraro issued a Report and 16 Recommendation (“R&R”) (Doc. 16) in which he recommended this Court affirm the 17 decision of the Administrative Law Judge (“ALJ”). Plaintiff Karen Malherek has filed an 18 Objection (Doc. 17) and Andrew M. Saul (the “Commissioner”) a Reply (Doc. 18). 19 1. Standard of Review 20 The Court has reviewed Plaintiff’s Complaint (Doc. 1), the Commissioner’s Answer 21 (Doc. 11), Plaintiff’s Opening Brief (Doc. 13), the Commissioner’s Response Brief (Doc. 22 14), Plaintiff’s Reply Brief (Doc. 15), the R&R (Doc. 16), Plaintiff’s Objection (Doc. 17), 23 and the Commissioner’s Reply to Objection (Doc. 18). The R&R summarizes that Plaintiff 24 seeks to invalidate the ALJ’s determinations relating to her disability. Plaintiff alleges that 25 the ALJ’s determination that she could sit or stand for two-hour intervals was not supported 26 by substantial evidence and that the ALJ failed to provide a reasoned evaluation of her 27 statements. The Magistrate Judge recommends this Court reject Plaintiff’s allegations and 28 affirm the decision of the ALJ. 1 The standard of review that is applied to a magistrate judge’s report and 2 recommendation is dependent upon whether a party files objections – the Court need not 3 review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 4 150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s 5 disposition that has been properly objected to. The district judge may accept, reject, or 6 modify the recommended disposition; receive further evidence; or return the matter to the 7 magistrate judge with instruction.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) 8 (“A judge of the court shall make a de novo determination of those portions of the report 9 or specified proposed findings or recommendations to which objection is made.”). 10 Generally, the findings of the Commissioner are meant to be conclusive. 42 U.S.C. 11 §§ 405(g). A decision “to deny benefits will be overturned only if it is not supported by 12 substantial evidence or it is based on legal error.” Matney on Behalf of Matney v. Sullivan, 13 981 F.2d 1016, 1019 (9th Cir. 1992). “Substantial evidence is such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 15 F.3d 742, 746 (9th Cir. 2007). The standard is “more than a mere scintilla but is less than 16 a preponderance.” Matney, 981 F.2d at 1019 (internal citations and quotations omitted). 17 2. Objections 18 A. Dr. Jeri B. Hassman’s Opinion 19 Plaintiff alleges that the ALJ erroneously disregarded Dr. Hassman’s medical 20 opinion. See (Doc. 17, pg. 2) (“Ms. Malherek showed that substantial evidence does not 21 support the ALJ’s finding that she could sit two hours at a time because the ALJ 22 erroneously failed to acknowledge and to evaluate Dr. Hassman’s opinion that, prior to Ms. 23 Malherek’s December 31, 2012 date last insured, she could sit only thirty minutes at a 24 time.”). Plaintiff’s objection is unfounded. The ALJ’s decision to assign a lesser weight to 25 Dr. Hassman’s opinion was proper. 26 In February 2012, Dr. Bennet Davis examined Plaintiff and determined that Plaintiff 27 hard normal strength, gait, and range of motion in her lumbar spine with minimal pain. 28 (Doc 12-8, pg. 163). Dr. Davis also determined that Plaintiff could rise from a chair without 1 the use of assistance and could position herself without difficulty on the examination table. 2 Id. In contrast, Dr. Hassman performed an in-person evaluation of the Plaintiff in March 3 2016. This evaluation was intended to determine Plaintiff’s physical condition in 2012. In 4 that evaluation, Dr. Hassman determined that Plaintiff, in 2012, could sit for thirty minutes 5 at a time and for five hours total. (Doc. 17, pg. 2). Dr. Hassman also determined that 6 Plaintiff could stand for fifteen minutes at a time and for one- and one-half hours total. Id. 7 Although Dr. Hassman’s opinion was rendered in 2016 and is retrospective, “it is clear that 8 reports containing observations made after the period for disability are relevant to assess 9 the claimant’s disability. It is obvious that medical reports are inevitably rendered 10 retrospectively and should not be disregarded solely on that basis.” Smith v. Bowen, 849 11 F.2d 1222, 1225 (9th Cir. 1988) (internal citation omitted). Furthermore, “the 12 Commissioner must provide clear and convincing reasons for rejecting the uncontradicted 13 opinion of an examining physician. And like the opinion of a treating doctor, the opinion 14 of an examining doctor, even if contradicted by another doctor, can only be rejected for 15 specific and legitimate reasons that are supported by substantial evidence in the record.” 16 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995), as amended (Apr. 9, 1996) (internal 17 citations and quotations omitted). 18 However, in this case, the ALJ did not assign less weight to Dr. Hassman’s opinion 19 “solely” because it was retrospective. In addition, Dr. Hassman’s opinion was not 20 uncontradicted. Dr. Hassman’s opinion was afforded less weight because her examination 21 occurred four years after Plaintiff’s date last insured and was inconsistent with the findings 22 of Dr. Davis. In the ALJ’s opinion, she states: 23 The opinion of Dr. Hassman has been given reduced weight as her examination was performed nearly 4 years after the claimant’s date last 24 insured and was not consistent with the objective evidence from the time of 25 the claimant’s alleged onset date through her date last insured. Although Dr. Hassman opined Ms. Malherek’s established onset date would be when she 26 established care with Dr. Davis in February 2012, her limitations were not 27 consistent with his clinical findings. 28 (Doc. 12-3, pg. 26). 1 During Dr. Davis’s February 2012 examination, he reported that Plaintiff showed 2 normal posture and had full range of motion “of the lumbar spine . . . with minimal pain.” 3 (Doc. 12-8, pg. 163). Dr. Davis reported that Plaintiff could perform deep knee bends and 4 had normal strength and normal gait. Id. Dr. Davis also reported that Plaintiff was not in 5 “acute distress,” that he “observed no exaggerated or inconsistent pain-related behaviors,” 6 and that Plaintiff’s “[p]osture was normal.” Id. In sum, Dr. Hassman’s conclusions were in 7 direct contravention of Dr. Davis’s findings. Given that Dr. Davis issued his findings in 8 2012 and that Dr. Hassman’s opinion is post-dated by four years, the ALJ acted reasonably 9 in assigning a reduced weight to Dr. Hassman’s opinion. See Burch v. Barnhart, 400 F.3d 10 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational 11 interpretation, it is the ALJ’s conclusion that must be upheld.”). 12 B. Lay Witness Statements 13 Plaintiff further objects to the ALJ’s rejection of allegedly corroborating lay-witness 14 statements made by Plaintiff’s children regarding Plaintiff’s physical condition. More 15 specifically, Plaintiff cites Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) as 16 controlling and alleges that the “Magistrate Judge also unreasonably recommended finding 17 that a flawed rejection corroborating lay-witness statements is harmless because the 18 statements are corroborating. Supporting evidence does not lack probative value because 19 it is supportive.” (Doc. 17, pg. 5). 20 Ordinarily, “[i]f an ALJ disregards the testimony of a lay witness, the ALJ must 21 provide reasons that are germane to each witness.” Bruce, 557 F.3d at 1115 (internal 22 quotations and citation omitted). “[L]ay witness testimony as to a claimant’s symptoms or 23 how an impairment affects ability to work is competent evidence and therefore cannot be 24 disregarded without comment.” Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 25 Here, the ALJ properly disregarded the testimony of Plaintiff’s lay witnesses. With respect 26 to Plaintiff’s son Jacob Malherek’s testimony, the ALJ wrote that “the statement of the 27 claimant’s son is given some weight; however, the level of the claimant’s functioning 28 described by Mr. Malherek is not supported by the weight of overall objective evidence of 1 record from the alleged onset date through the date last insured. For example, the above 2 records indicated mild diagnostic findings, with examination notes indicated normal range 3 of motion of all extremities and normal ambulation.” (Doc. 12-3, pg. 25). 4 Similarly, while addressing Plaintiff’s daughter’s testimony, the ALJ wrote that “the 5 statement of the claimant’s daughter is given some weight; however, the level of the 6 claimant’s functioning described is not supported by the weight of overall objective 7 evidence of record from the alleged onset date through the date last insured. For example, 8 the above records indicated mild degenerative disc disease with sacroiliac joint 9 dysfunction. Treatment records further showed that Ms. Malherek was able to perform yard 10 work and exercise regularly.” Id. (internal citations omitted). The ALJ examined the 11 record, discovered multiple instances of contradictory evidence and properly discounted 12 Plaintiff’s lay witness testimony on those grounds. Since the ALJ provided a sufficient 13 justification for a reduced credibility determination for Plaintiff’s lay witnesses, the ALJ’s 14 decision to assign a lesser weight to those lay witnesses was proper. 15 C. Inconsistent Statements 16 Plaintiff also objects to the ALJ’s determination that she “made inconsistent 17 statements about her ability to stand.” (Doc. 17, pg. 7). In furtherance of that argument, 18 Plaintiff states that “the Magistrate Judge did not identify any activity in which Ms. 19 Malherek engaged that involved standing more than fifteen minutes at a time. At most, the 20 Magistrate Judge implied that Ms. Malherek either hinted that she stood more than fifteen 21 minutes at a time or that her activities must have involved standing that long.” Id. at 8 22 (internal citation omitted). In 2017, Plaintiff testified before Administrative Law Judge 23 Laura Speck Havens. In response to the question of whether Plaintiff could cook for herself 24 while she was disabled, Plaintiff responded that she “couldn’t stand long enough to finish” 25 chopping vegetables. (Doc. 12-3, pg. 63). Plaintiff further stated that she “would try sitting 26 at the table and doing it, but that hurt. And it just got that I had so many things that got 27 ruined, because I had to go lay down, because I was afraid I was going to pass out.” Id. 28 Plaintiff also testified that due to her disability, “standing was a huge problem.” Id. at 71. 1 Despite this testimony discussing Plaintiff’s physical condition, the record is replete 2 with instances of Plaintiff providing contradictory information to her doctors. For instance, 3 on December 28, 2010, nearly one month after Plaintiff’s disability date1, Dr. Lee Goldberg 4 noted that Plaintiff “is able to exercise frequently without any problems.” (Doc. 12-8, pg. 5 28). Furthermore, in May 2011, Dr. Elizabeth Kronlage noted that Plaintiff exercises, uses 6 the treadmill, and does “a lot of yardwork.” (Doc. 12-9, pg. 147). An ALJ is permitted to 7 utilize a variety of factors to assess credibility including “whether the claimant engages in 8 daily activities inconsistent with the alleged symptoms…” Lingenfelter v. Astrue, 504 F.3d 9 1028, 1040 (9th Cir. 2007). Although Plaintiff testified that her disability had a start date 10 of December 1, 2010, with pain so severe that she could not stand long enough to prepare 11 her own meals, she informed her healthcare providers, on multiple occasions, that she 12 exercised and performed yardwork. The ALJ properly evaluated Plaintiff’s inconsistent 13 statements and activities with respect to her ability to stand and the Magistrate Judge did 14 not err in affirming the ALJ. 15 D. Mental Limitations 16 Plaintiff objects to the ALJ’s decision to fail to consider Plaintiff’s mild mental 17 limitation when making her residual functional capacity (“RFC”) assessment. An RFC 18 assessment is an assessment of the capabilities and limitations of an individual seeking 19 disability status. Prior to the Plaintiff’s RFC assessment, the ALJ considered four broad 20 areas of mental functioning and determined that Plaintiff had mild mental limitations. See 21 (Doc. 12-3, pg. 19). Despite that acknowledgment, Plaintiff claims that the ALJ neglected 22 to consider her mental limitation when determining her RFC. “In determining a claimant’s 23 RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, 24 medical records, lay evidence, and the effects of symptoms, including pain, that are 25 reasonably attributed to a medically determinable impairment.” Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 883 (9th Cir. 2006) (internal citations and quotations omitted). 27

28 1 Plaintiff listed the date which she became disabled as December 1, 2010. (Doc. 12-3, pg. 60). 1 Plaintiff’s objection stems from the ALJ’s lack of specific reference to Plaintiff’s 2 mild mental limitation in the RFC. Plaintiff argues that there is no “rational explanation for 3 the disappearance of Ms. Malherek’s mild mental limitations when her residual functional 4 capacity was determined . . . The Court should reject [sic] Magistrate Judge’s 5 recommendation to hold that recognized mild mental limitations need not be accounted for 6 in an ALJ’s residual functional capacity assessment when at issue is semi-skilled work.” 7 (Doc. 17, pg. 9). However, contrary to Plaintiff’s argument, the Magistrate Judge did not 8 hold that Plaintiff’s mild mental limitation was not accounted for in the RFC. On the 9 contrary, the Magistrate Judge explicitly stated that in formulating the RFC, “the ALJ 10 thoroughly considered Malherek’s mild limitations in the four broad areas of mental 11 functioning.” (Doc. 16, pg. 12). 12 Plaintiff’s argument is solely predicated upon the fact that the ALJ did not 13 specifically mention her mild mental limitation when determining her RFC. However, the 14 ALJ explicitly stated that all the Plaintiff’s impairments were considered when determining 15 her RFC. See (Doc. 12-3, pg. 27) (“The claimant’s impairments were considered singly 16 and in combination, but do not significantly limited [sic] the claimant’s ability to perform 17 basic work activities.”). The ALJ did not err by electing not to devote a specific section to 18 discuss Plaintiff’s mild mental impairment in her RFC. An ALJ is required only “to discuss 19 and evaluate the evidence that supports his or her conclusion; it does not specify that the 20 ALJ must do so under [a specific] heading.” Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 21 2001). 22 However, even if the ALJ had neglected to include Plaintiff’s mild mental limitation 23 in her RFC analysis, that error would be harmless. Plaintiff’s argument is only that the ALJ 24 did not discuss her mild mental limitation, not that her mild mental limitation would 25 prevent her from performing work as a medical records clerk or receptionist. Plaintiff 26 lodged no objection to the ALJ’s determination of her depression as “non-severe.” (Doc. 27 12-3, pg. 19). A non-severe limitation by its very definition has nothing “more than a 28 minimal limitation” on Plaintiff’s “ability to do basic work activities.” 20 C.F.R. § 1|| 416.920a(d)(1). Furthermore, a mild mental limitation can present “no significant □□ interference with the ability to perform basic work-related activities.” Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). Ultimately, any error that does not affect the ALJ’s 4|| conclusion is harmless. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th 5 || Cir. 2006) (Harmless error is found when an ALJ’s error is “inconsequential to the ultimate 6 || nondisability determination.”). 7 Accordingly, IT IS ORDERED: 8 1. The R&R is adopted in full and the decision of the Administrative Law Judge 9 is affirmed. 10 2. The Clerk of Court is directed to close its file in this matter. 11 Dated this 26th day of September, 2019. I Eda 13 Honorable CindWK. Jéfgenson United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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