McCormack v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: July 2, 2021
• Docket: 2:20-cv-00651
• Status: Unknown

Opinion

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

9 Leah Anne McCormack, No. CV-20-00651-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Leah Anne McCormack’s Application for Social 16 Security Disability Insurance (“SSDI”) benefits by the Social Security Administration 17 (SSA) under the Social Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) 18 seeking judicial review of that denial and an Opening Brief (Doc. 15)1. Defendant SSA 19 filed an Answering Brief (Doc. 16) and Plaintiff filed a Reply (Doc. 17). The Court has 20 reviewed the briefs and Administrative Record (“AR”) (Doc. 14), and it affirms the 21 Administrative Law Judge’s (“ALJ”) decision (AR at 10–33). 22 I. Background 23 Plaintiff filed an Application for SSDI benefits on March 11, 2016, alleging a 24 1 Plaintiff’s Opening Brief contains copious use of footnotes, a systemic problem of briefs 25 filed in these matters. If the content contained in the footnotes was placed in the body of the document, Plaintiff’s briefs would far exceed the page limit. The Court finds grounds 26 to strike the Opening Brief and the Reply because of the relative number and length of footnotes, but will not do so here. Counsel is cautioned on continuing this practice in the 27 future. See Kano v. Nat’l Consumer Coop. Bank, 22 F.3d 899 (9th Cir.1994) (imposing sanctions on a party who violated briefing rules through improper line spacing 28 and excessive footnotes). 1 disability beginning on October 1, 2014.2 (AR at 13). Plaintiff’s claim was initially denied 2 on August 15, 2016, and upon reconsideration on December 15, 2016. (Id.) A hearing 3 was held before ALJ Kathleen Mucerino on January 8, 2019. (Id. at 54-67). Plaintiff was 4 65 years old at the time of the hearing and held previous employment as a medical 5 technologist teaching supervisor, earning a peak yearly income of $175,000.00. (Id.) After 6 the hearing, Plaintiff’s claim was denied by the ALJ on April 15, 2019. (Id. at 10-33). On 7 January 31, 2020, the Appeals Council denied Plaintiff’s Request for Review of the ALJ’s 8 decision. (Id. at 1–6). 9 Upon considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 10 disability based on the following severe impairments: cervical and lumbar degenerative 11 disc disease, osteoarthritis, and bilateral rotator cuff tear. (Id. at 17). The ALJ determined 12 Plaintiff could meet the demands of light work as defined in agency regulations, which 13 require a worker to be on her feet six hours out of an eight-hour day and lift up to 20 pounds 14 throughout an eight-hour day. The ALJ concluded that Plaintiff could return to work as a 15 medical technologist teaching supervisor, based on the evidence of record and the agency 16 guidelines. Therefore, Plaintiff’s claim for SSDI benefits was denied. The Court has 17 reviewed the medical evidence and will discuss the pertinent evidence in addressing the 18 issues raised by the parties. 19 II. Legal Standards 20 In determining whether to reverse an ALJ’s decision, the district court reviews only 21 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 22 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 23 determination only if it is not supported by substantial evidence or is based on legal error. 24 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 25 that a reasonable person might accept as adequate to support a conclusion considering the 26 record as a whole. Id. To determine whether substantial evidence supports a decision, the

27 2 Plaintiff previously filed an Application for SSDI benefits that was denied on September 8, 2014, in a decision by ALJ Sheldon P. Zisook. (AR at 68-90). Plaintiff acknowledges 28 that the previous unfavorable ALJ decision creates a rebuttable presumption that she is not disabled. (Doc. 15 at 2). 1 Court must consider the record as a whole and may not affirm simply by isolating a 2 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 3 susceptible to more than one rational interpretation, one of which supports the ALJ’s 4 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 5 (9th Cir. 2002) (citations omitted). 6 To determine whether a claimant is disabled for purposes of the Act, the ALJ 7 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 8 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 9 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 10 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 11 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 12 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 13 step three, the ALJ considers whether the claimant’s impairment or combination of 14 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 15 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 16 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 17 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 18 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 19 determines whether the claimant can perform any other work in the national economy 20 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 21 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 22 III. Analysis 23 Plaintiff raises two issues on appeal. (Doc. 15 at 1). First, Plaintiff argues the ALJ 24 erred by rejecting opinions from Plaintiff’s treating physician, Dr. Bilal Shanti, MD, and 25 instead giving great weight to the opinion of Dr. Harvey Alpern, MD, and other non- 26 treating physicians. Second, Plaintiff argues the ALJ erred by rejecting her symptom 27 testimony without a legitimate basis for doing so. Plaintiff contends her case should be 28 remanded for computation and award of benefits. Id. 1 A. The ALJ provided specific and legitimate reasons supported by substantial evidence for rejecting opinions from Plaintiff’s treating 2 physician. 3 Plaintiff’s treating pain management physician, Dr. Shanti, provided an opinion as 4 to the functional limitations of Plaintiff based on her disability. (AR at 25). Dr. Shanti 5 opined that Plaintiff could sit, stand, or walk for only 15 minutes at a time for a total of two 6 hours or less. (Id. at 754-56). Dr. Shanti also opined that Plaintiff could occasionally lift 7 and carry up to 20 pounds, and could occasionally stoop, squat, and reach. The ALJ gave 8 little weight to the opinion that Plaintiff could only sit, stand, or walk for less than 15 9 minutes, finding that it conflicted with the medical evidence of record, and listing a number 10 of portions of the medical record for support. The ALJ gave great weight to portions of 11 the opinions from state agency reviewers, and found that Plaintiff would have been able to 12 meet the exertional demands of light work. (Id. at 24). The ALJ also gave great weight to 13 portions of Dr. Alpern’s opinions that Plaintiff would have been able to perform light work. 14 (Id.) Plaintiff argues that the ALJ did not give legitimate reasons to discount the opinions 15 Dr. Shanti. (Doc. 15 at 13). 16 When evaluating medical opinion evidence, “[t]he ALJ must consider all medical 17 opinion evidence,” and there is a hierarchy among the sources of medical opinions. 18 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Those who have treated a 19 claimant are treating physicians, those who examined but did not treat the claimant are 20 examining physicians, and those who neither examined nor treated the claimant are non- 21 examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 22 Although greater weight is generally afforded to treating physicians, a “treating 23 physician’s opinion is not, however, necessarily conclusive as to either a physical condition 24 or the ultimate issue of disability.” Rodriguez v. Bowen, 876 F.2d 759, 761–62 & n. 7 (9th 25 Cir. 1989). “The ALJ need not accept the opinion of any physician, including a treating 26 physician, if that opinion is brief, conclusory, and inadequately supported by clinical 27 findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). If a treating physician’s 28 opinion is contradicted by another doctor’s opinion, the ALJ cannot reject the treating 1 physician’s opinion unless he provides specific and legitimate reasons that are based on 2 substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 3 2005). “The ALJ can meet this burden by setting out a detailed and thorough summary of 4 the facts and conflicting clinical evidence, stating his interpretation thereof, and making 5 findings.” Magallanes, 881 F.2d at 751. 6 Here, the ALJ found that Dr. Shanti’s opinion that Plaintiff could only sit, stand, or 7 walk for 15 minutes at a time for a total of two hours or less in any given workday conflicted 8 with the overall medical evidence and opinions of non-examining physicians Dr. Griffith, 9 Dr. Blanco, and Dr. Alpern. (AR at 25). After reviewing the medical evidence, the non- 10 treating physicians opined that Plaintiff could perform light work. (Id.) In considering the 11 opinions of the non-treating physicians, and after a review of the medical evidence, the 12 ALJ found that these opinions were consistent with the overall record. The ALJ noted that 13 Plaintiff’s gait was normal, and while she noted pain in her right shoulder, her range of 14 motion was normal and she did not experience tenderness to palpitation. (AR at 25) (citing 15 AR at 321-42; 345-402; 431-63; 464-85; 501-67; 601-66). Moreover, some of the normal 16 objective findings cited by the ALJ came from Dr. Shanti’s own treatment notes of 17 Plaintiff. (AR at 431-63). Based on the medical evidence cited above, the ALJ found that 18 Plaintiff’s residual functional capacity was supported by her treatment records, and 19 therefore, the ALJ found Plaintiff had the ability to perform light work. (Id. at 27). The 20 Court finds that the ALJ provided specific and legitimate reasons based on substantial 21 evidence in the record to give little weight to portions of Dr. Shanti’s opinions.3 22 Plaintiff also takes issue with the ALJ’s use of the phrase “the undersigned finds,” 23 arguing that the ALJ “arrived at her own conclusions” about Plaintiff’s ability to perform 24 light work without considering the medical evidence. (Doc. 17 at 6-7). Plaintiff argues 25 that the use of the above phrase indicates that the ALJ inserted her own opinions into the 26 ruling. Id. For instance, Plaintiff argues that the following statement from the ALJ is

27 3 The Court notes that the ALJ did not completely discount Dr. Shanti’s opinions as Plaintiff argues in her brief. The ALJ found that Dr. Shanti’s opinions as to Plaintiff’s 28 ability to stoop and occasionally lift up to 20 pounds was supported by the medical evidence. (AR at 25). 1 problematic: “After careful consideration of the entire record, the undersigned finds that 2 the claimant had the residual functional capacity to perform light work.” Id. (emphasis in 3 original). The Court suspects that this is simply the ALJ’s way of concluding this particular 4 section and nothing more. Plaintiff has not established that the ALJ’s use of the phrase 5 “the undersigned finds” demonstrates reversible error. 6 B. The ALJ provided specific, clear, and convincing reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony. 7 Plaintiff argues that the ALJ did not give legitimate and convincing reasons 8 supported by substantial evidence for discounting her subjective symptom testimony. 9 (Doc. 15 at 20). Defendant argues that the ALJ properly examined the medical evidence 10 to determine that the record did not support Plaintiff’s testimony as to the severity of her 11 symptoms. (Doc. 16 at 17). 12 An ALJ must evaluate whether the claimant has presented objective medical 13 evidence of an impairment “which could reasonably be expected to produce the pain or 14 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 15 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations 16 omitted)). “In evaluating the credibility of pain testimony after a claimant produces 17 objective medical evidence of an underlying impairment, an ALJ may not reject a 18 claimant’s subjective complaints based solely on a lack of medical evidence to fully 19 corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 20 2005). However, the ALJ may “reject the claimant’s testimony about the severity of [the] 21 symptoms” provided that the ALJ also explains her decision “by providing specific, clear, 22 and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th 23 Cir. 2015). 24 Here, the ALJ initially found that Plaintiff’s medically determinable impairments— 25 cervical and lumbar degenerative disc disease, osteoarthritis, and bilateral rotator cuff 26 tear—could reasonably be expected to cause her alleged symptoms. (AR at 23). However, 27 the ALJ found that Plaintiff’s symptom testimony as to the severe intensity, persistence 28 and limiting effects of her alleged symptoms was not supported by the objective medical || evidence of record. Ud.) The ALJ cited to over a dozen instances in the medical record || indicating that Plaintiff had a normal gait and muscle strength, full range of motion in her || right shoulder, and lack of muscle atrophy. (/d.) Also noted were the numerous reports of 4|| Plaintiffs pain and function improving after taking prescribed medications, and Plaintiff’ s 5 || reports of improved range of motion and pain management after physical therapy sessions. 6 || Plaintiff also reported a subsiding in the numbness in her hands after physical therapy. (/d.) 7\| The ALJ discussed Plaintiff's ability to prepare meals and perform household chores, and 8 || Plaintiff noted that she took care of her pets, did the laundry and grocery shopping, and volunteered at the Red Cross weekly. (/d.) The Court finds that the ALJ properly limited Plaintiffs testimony of the severity of her symptoms by providing specific, clear, and 11 |} convincing support in the medical record to do so. See Brown-Hunter, 806 F.3d at 488- || 89. The objective record supports the ALJ’s findings. Therefore, the Court will affirm the 13} ALJ’s decision. 14] IV. Conclusion 15 The Court finds that substantial evidence supports the ALJ’s nondisability 16 || determination. The ALJ provided specific and legitimate reasons supported by substantial 17 || evidence for rejecting Plaintiff's treating physician’s opinions and correctly discounted Plaintiffs symptom testimony by providing specific, clear, and convincing reasons 19 || supported by substantial evidence. 20 Accordingly, 21 IT IS HEREBY ORDERED that the decision of the ALJ is affirmed. The Clerk 22 || of Court is directed to enter judgment accordingly and dismiss this action. 23 Dated this 2nd day of July, 2021. 24 25 oC. . fo L □ 26 norable'Diang4. Huretewa United States District Judge 28

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