Mullen v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 5, 2022
• Docket: 3:20-cv-08174
• Status: Unknown

Opinion

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

9 Penelope Dee Mullen, No. CV-20-08174-PCT-JJT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 14 Defendant. 15 At issue is the denial of Plaintiff Penelope Dee Mullen’s Application for Disability 16 Insurance Benefits by the Social Security Administration under the Social Security Act. 17 Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, 18 and the Court now addresses Plaintiff’s Opening Brief (Doc. 24, Pl. Br.), Defendant Social 19 Security Administration Commissioner’s Response Brief (Doc. 30, Def. Br.), and 20 Plaintiff’s Reply (Doc. 37, Reply). The Court has reviewed the briefs and Administrative 21 Record (Doc. 19, R.) and now affirms the Administrative Law Judge’s (ALJ) decision (R. 22 at 20–30) as upheld by the Appeals Council (R. at 1–5). 23 I. BACKGROUND 24 Plaintiff filed an application for Disability Insurance Benefits on April 14, 2016 for 25 a period of disability beginning on November 1, 2014. (R. at 20.) Plaintiff is not covered 26 past her Date Last Insured—September 30, 2017. (R. at 20.) Her claim was denied initially 27 on October 13, 2016, and upon reconsideration on February 13, 2017. (R. at 20.) On May 28 16, 2019, Plaintiff appeared before the ALJ for a hearing regarding her claim. (R. at 20.) 1 On June 4, 2019, the ALJ denied Plaintiff’s claim (R. at 20–30), and on May 14, 2020, the 2 Appeals Council denied Plaintiff’s Request for Review of the ALJ’s decision. (R. at 1–5.) 3 The Court has reviewed the medical evidence in its entirety and finds it unnecessary 4 to provide a complete summary here. The pertinent medical evidence will be discussed in 5 addressing the issues raised by the parties. Upon considering the medical records and 6 opinions, the ALJ evaluated Plaintiff’s disability based on the severe impairment of 7 degenerative changes of the lumbar spine. (R. at 22.) 8 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 9 that Plaintiff is not disabled. (R. at 30.) In so doing, the ALJ determined that Plaintiff “does 10 not have an impairment or combination of impairments that meets or medically equals the 11 severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” 12 (R. at 24.) Upon reviewing the record, the ALJ found that Plaintiff has the Residual 13 Functional Capacity (RFC) to perform light, skilled work. (R. at 24–29.) Accordingly, the 14 ALJ found that Plaintiff can perform her past relevant work as a vocational instructor. (R. 15 at 28.) 16 II. LEGAL STANDARD 17 In determining whether to reverse an ALJ’s decision, the district court reviews only 18 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 19 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 20 determination only if the determination is not supported by substantial evidence or is based 21 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 22 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 23 person might accept as adequate to support a conclusion considering the record as a whole. 24 Id. To determine whether substantial evidence supports a decision, the Court must consider 25 the record as a whole and may not affirm simply by isolating a “specific quantum of 26 supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one 27 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 28 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 1 omitted). 2 To determine whether a claimant is disabled for purposes of the Act, the ALJ 3 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 4 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 5 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 6 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 7 § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step 8 two, the ALJ determines whether the claimant has a “severe” medically determinable 9 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 10 disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 11 impairment or combination of impairments meets or medically equals an impairment listed 12 in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 13 the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 14 Id. At step four, the ALJ assesses the claimant’s residual functional capacity (RFC) and 15 determines whether the claimant is still capable of performing past relevant work. 16 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. 17 If not, the ALJ proceeds to the fifth and final step, where she determines whether the 18 claimant can perform any other work in the national economy based on the claimant’s RFC, 19 age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is 20 not disabled. Id. If not, the claimant is disabled. Id. 21 III. ANALYSIS 22 Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ erred by 23 rejecting the assessment of treating physician James Arthur, M.D., and giving great weight 24 to the opinions of examining physician Adam Dawson, D.O., and the two state agency 25 reviewing physicians (Pl. Br. at 1), and (2) the ALJ erred in his analysis of Plaintiff’s 26 symptom testimony (Pl. Br. at 2). The Court resolves these arguments in turn. A. The ALJ provided sufficient reasons to give more weight to Dr. 27 Dawson’s assessment than Dr. Arthur’s assessment. 28 Dr. Arthur was Plaintiff’s “long-term primary care physician” who evaluated 1 Plaintiff in May 2017—almost three years after the alleged onset date—for “referral to 2 back pain specialist.” (Pl. Br. at 6 (citing R. at 394, 398–99).) He opined that, on account 3 of “long-standing lumbar [degenerative disc disease with radicular symptoms],” Plaintiff 4 could sit for six hours in an eight-hour workday and stand or walk for less than two hours 5 in an eight-hour workday. (R. at 403, 405.) He also stated Plaintiff has “moderately severe” 6 pain that would often interfere with attention and concentration. (R. at 401–402.) Dr. 7 Arthur updated his assessment in April 2019—four and a half years after the alleged onset 8 date and well past the Date Last Insured. (R. at 1058–59.) Dr. Arthur opined that Plaintiff 9 could stand or walk for at least two hours in an eight-hour workday but could sit for only 10 four hours. (R. at 1055.) He again stated that Plaintiff had “moderately severe” pain. (R. at 11 1058–59.) 12 Dr. Dawson examined Plaintiff in September 2016. (R. at 375–81.) While he noted 13 that Plaintiff reported “chronic low back pain thought to be degenerative in nature” and 14 “decreased range of motion,” he opined that Plaintiff had no restrictions in standing, 15 walking, or sitting. (R. at 379–80.) Two state agency nonexamining physicians concurred, 16 rating Plaintiff’s capacity as capable of light work. The ALJ gave great weight to these 17 three opinions and little weight to Dr. Arthur’s assessment. 18 “In conjunction with the relevant regulations, [the Ninth Circuit] has … developed 19 standards that guide [the] analysis of an ALJ’s weighing of medical evidence.” Garrison 20 v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). The ALJ is obligated to evaluate every 21 medical opinion in the record. 20 C.F.R. § 404.1527(c). Those who have treated a claimant 22 are treating physicians, those who examined but did not treat the claimant are examining 23 physicians, and those who neither examined nor treated the claimant are nonexamining 24 physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The general rule is that the 25 greatest evidentiary weight is given to the opinion of a treating physician; lesser weight is 26 given to that of a non-treating, examining physician; and the opinion of a non-treating, non- 27 examining physician is given the least weight, relatively. Garrison, 759 F.3d at 1012; see 28 also 20 C.F.R. § 1527(c)(1). Treating physicians are given this deference because they are 1 “employed to cure and [have] a greater opportunity to know and observe the patient as an 2 individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); see also 20 C.F.R. 3 § 404.1527(c)(2) (stating that treating sources “may bring a unique perspective to the 4 medical evidence that cannot be obtained from the objective medical findings alone”). 5 Relevant factors for the ALJ to consider in assigning weight to the opinion include the 6 length of the treatment relationship, frequency of examination, nature and extent of the 7 treatment relationship, the extent the opinion is supported by medical signs and laboratory 8 findings, consistency with the record as a whole, the specialization of the physician, and 9 “other factors.” 20 C.F.R. §§ 404.1527(c)(2)–404.1527(c)(6). 10 When a conflict exists between medical opinions, the ALJ must resolve it. Morgan 11 v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). However, if in resolving 12 inconsistent medical opinions, the ALJ chooses to reject or assign minimal weight to an 13 opinion of a treating or examining physician, the ALJ must articulate “specific and 14 legitimate reasons supported by substantial evidence in the record for doing so.” 1 Lester, 15 81 F.3d at 830 (internal quotations and citation omitted). “Substantial evidence means more 16 than a mere scintilla, but less than a preponderance.” Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). An ALJ satisfies the “substantial evidence” requirement by providing 18 a “detailed and thorough summary of the facts and conflicting clinical evidence, stating his 19 [or her] interpretation thereof, and making findings.” Garrison, 759 F.3d at 1012. “The 20 opinions of non-treating or non-examining physicians may also serve as substantial 21 evidence when the opinions are consistent with independent clinical findings or other 22

23 1 In 2017, the Social Security Administration amended the Regulations for evaluating medical evidence. See Revisions to Rules Regarding Evaluation of Medical 24 Evidence, 82 Fed. Reg. 5844, 5844 (Jan. 18, 2017). The new Regulations apply to claims 25 filed on or after March 27, 2017. Id. In Woods v. Kijakazi, the Ninth Circuit held its requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or 26 examining doctor’s opinion is incompatible with the new Regulations. --- F. 4th ---, 2022 27 WL 1195334, at *6 (9th Cir. Apr. 22, 2022). Here, because Plaintiff filed her application for Disability Insurance Benefits before March 27, 2017, neither the new Regulations nor 28 the holding in Woods apply to the Court’s evaluation of the ALJ’s decision. 1 evidence in the record.” Thomas, 278 F.3d at 957. An ALJ may properly reject “the opinion 2 of any physician, including a treating physician, if that opinion is brief, conclusory, and 3 inadequately supported by clinical findings.” Thomas, 278 F.3d at 957; see Batson v. 4 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming rejection of a 5 treating physician’s opinion that “was in the form of a checklist, did not have supportive 6 objective evidence, was contradicted by other statements and assessments of [claimant’s] 7 medical condition, and was based on [claimant’s] subjective descriptions of pain”). 8 The ALJ rejected Dr. Arthur’s assessment of Plaintiff in April 2019 because it was 9 completed a year and a half after the Date Last Insured and gave no indication if it applied 10 earlier—a sufficiently specific and legitimate reason to reject that assessment. (R. at 27.) 11 As for Dr. Arthur’s May 2017 assessment of Plaintiff, the ALJ notes that Dr. Arthur, who 12 is not a spine specialist, based his opinions on the conclusion that Plaintiff’s treatment 13 “failed,” but the medical record does not support that conclusion. (R. at 27.) Moreover, the 14 ALJ states that Dr. Arthur based his opinions on Plaintiff’s subjective complaints but did 15 not cite any clinical findings or objective medical evidence to support his opinions. (R. at 16 27.) By contrast, the ALJ states that Dr. Dawson cited specific clinical findings and 17 objective medical evidence to support his opinions after his examination of Plaintiff. (R. at 18 26.) The state agency reviewing physicians—to whose opinions the ALJ also gave great 19 weight—similarly relied on Dr. Dawson’s September 2016 examination of Plaintiff over 20 Dr. Arthur’s May 2017 and April 2019 assessments of Plaintiff. (R. at 26.) The Court finds 21 the ALJ provided sufficient specific and legitimate reasons to give great weight to Dr. 22 Dawson’s assessment and little weight to Dr. Arthur’s assessment, and the ALJ adequately 23 explained how the non-examining state agency physicians’ opinions were consistent with 24 the clinical findings in the record. Plaintiff thus has not identified any error on the part of 25 the ALJ in his weighing of the medical evidence. 26 B. The ALJ did not err in assessing Plaintiff’s symptom testimony. 27 At the hearing before the ALJ on May 16, 2019, Plaintiff testified to various 28 functional limitations due to lumbar spine condition—most notably that she could lift no 1 more than 15 to 20 pounds, sit for no more than 25 minutes at a time, stand for no more 2 than 20 minutes, and walk no more than one block. (R. at 22–27, 49.) The ALJ found that 3 Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these 4 symptoms are not entirely consistent with the medical evidence and other evidence in the 5 record.” (R. at 25.) Specifically, the ALJ rejected Plaintiff’s symptom testimony because 6 (1) the objective physical examinations illustrate Plaintiff’s limitations are not debilitating, 7 (2) the course of treatment does not corroborate Plaintiff’s allegations of disabling 8 symptoms and limitations, and (3) Plaintiff’s description of her daily activities is not 9 consistent with her complaints of disabling symptoms and limitations. (R. at 25–26.) 10 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 11 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 12 evaluates whether the claimant has presented objective medical evidence of an impairment 13 “which could reasonably be expected to produce the pain or symptoms alleged.” 14 Lingenfelter, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 15 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). If the claimant 16 presents such evidence, then “the ALJ can reject the claimant’s testimony about the 17 severity of her symptoms only by offering specific, clear and convincing reasons for doing 18 so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 19 1996)). 20 “In evaluating the credibility of pain testimony after a claimant produces objective 21 medical evidence of an underlying impairment, an ALJ may not reject a claimant’s 22 subjective complaints based solely on a lack of medical evidence to fully corroborate the 23 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). But the 24 ALJ may properly consider that the medical record lacks evidence to support certain 25 symptom testimony. Id. at 681. Additionally, if the ALJ rejects a Plaintiff’s symptom 26 testimony for a single permissible purpose, then the ALJ’s errant rejection of the testimony 27 for other additional reasons is harmless. See Carmickle, 533 F.3d at 1162. 28 The ALJ’s reasons for rejecting Plaintiff’s testimony are sufficiently specific, clear, 1 and convincing. In considering the objective medical examinations, the ALJ observed that 2 Donald Hales, M.D.—plaintiff’s spine surgeon and thus an expert in the source of 3 Plaintiff’s alleged pain—concluded that Plaintiff’s spinal fusion healed appropriately, 4 making the source of her reported pain unclear. (R. at 25.) In the physical examination by 5 Dr. Dawson, discussed above, he concluded that Plaintiff had normal strength in the upper 6 and lower extremities (including grip strength), a normal gait, and the ability to balance on 7 either foot, stoop, and switch from standing to sitting—all without assistance or difficulty. 8 (R. at 26.) Thus, the level of Plaintiff’s reported limitations is inconsistent with objective 9 medical examinations. 10 The ALJ also observed that Plaintiff did not follow through with treatment 11 recommendations. (R. at 25–26.) The only time Plaintiff sought physical therapy was in 12 May 2018, three years after her surgery and a year after her Date Last Insured, even though 13 Plaintiff’s surgeon recommended she exercise daily in 2016. (R. at 25.) Plaintiff also 14 declined to seek injections for her reported pain, even though her pain management 15 physician recommended them in January 2017. (R. at 26.) The Court agrees with the ALJ 16 that “the frequency and extent of treatment sought by the claimant is not comparable with 17 the degree of her subjective complaints”—a clear and convincing reason to question the 18 level of Plaintiff’s reported limitations. (R. at 26.) 19 Finally, Plaintiff reported driving and leaving her home at least once daily to run 20 errands—inconsistent with the reported inability to be active for more than 20 minutes. (R. 21 at 26.) Plaintiff also reported simultaneously to have problems engaging in social activities 22 but the ability to travel, spend time with family, and meet friends at a monthly embroidery 23 club. The ALJ again properly discounted Plaintiff’s symptom testimony for this reason. In 24 sum, Plaintiff has failed to show that the ALJ erred in evaluating her symptom testimony. 25 IT IS THEREFORE ORDERED affirming the June 4, 2019 decision of the 26 Administrative Law Judge (R. at 20–30), as upheld by the Appeals Council on May 14, 27 2020 (R. at 1–5). 28 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 2 || consistent with this Order and close this case. 3 Dated this 5th day of May, 2022. CN 4 “wok: Unie States#District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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