Nitzel-Sampson v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 5, 2021
• Docket: 3:20-cv-05739
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CAMMY N.-S., 8 Plaintiff, Case No. C20-5739 RAJ 9 v. ORDER AFFIRMING DENIAL 10 OF BENEFITS 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 Plaintiff appeals denial of Disability Insurance Benefits, contending the ALJ erred 14 by rejecting a medical opinion and failing to account for necessary breaks. Dkt. 7. The 15 Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with 16 prejudice. 17 BACKGROUND 18 19 Plaintiff is 51 years old, has a high school education, and has worked as a sales 20 clerk and a management trainee. Dkt. 5, Admin. Transcript (Tr.) 22. The ALJ found 21 Plaintiff not disabled from her July 2011 alleged onset date through her December 2011 22 date last insured. Tr. 15-24. In pertinent part, the ALJ found Plaintiff’s severe 23 impairments of chronic obstructive pulmonary disease (COPD)/asthma restricted her to 1 sedentary work without pulmonary irritants. Tr. 17, 18. 2 DISCUSSION 3 This Court may set aside the Commissioner’s denial of Social Security benefits 4 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 5 in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 6 A. Vuthy Leng, M.D. 7 In March 2018, Dr. Leng opined that during the relevant period in 2011 Plaintiff 8 needed nebulizer treatments every four hours about half the time, and every two hours 9 about half the time. Tr. 1095-96. The ALJ found Dr. Leng’s opinions “not persuasive” 10 as inconsistent with the medical evidence because there was only a single record, in 11 August 2011, regarding nebulizer treatment and no indication of needing nebulizer 12 13 treatment every two hours. Tr. 21-22. 14 The ALJ’s finding was supported by substantial evidence. On August 23, 2011, 15 Dr. Leng prescribed “Nebulizer solution” three to four times daily. Tr. 733. The 16 prescription, for 60 vials with five refills, would last about two to three months at this 17 frequency. Id. Dr. Leng’s subsequent records show no further prescriptions for nebulizer 18 solution. See Tr. 735 (oral inhalers only). Plaintiff identifies no other evidence of 19 nebulizer treatment during, or near, the relevant period. Conflict with the medical 20 evidence was a sufficient reason to discount Dr. Leng’s opinions. See Ford v. Saul, 950 21 F.3d 1141, 1156 (9th Cir. 2020) (inconsistency with objective medical evidence is a 22 specific and legitimate reason for rejecting a doctor’s opinion). Inclusion of any 23 1 erroneous reasons was harmless. See Molina v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2 2012) (error harmless if “inconsequential to the ultimate disability determination”). 3 Plaintiff argues a treatment record may be missing, because Dr. Leng’s May 2012 4 treatment note references vital signs measured on December 6, 2011. See Tr. 734. 5 However, the ALJ’s inference that Plaintiff only interacted with a staff member on that 6 date is reasonable. See Tr. 719; Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 7 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by 8 inferences reasonably drawn from the record.”). In any case, the only relevance Plaintiff 9 claims of a December 2011 visit is to show “there was no long period for which Dr. Leng 10 did not see or trea[t] the Plaintiff.” Dkt. 12 at 3. This would not, however, undermine 11 12 the ALJ’s finding that Dr. Leng’s opinions conflicted with the medical evidence. 13 The Court concludes the ALJ did not err by discounting Dr. Leng’s opinions. 14 B. Additional Break During Workday 15 Plaintiff contends even if she only needed nebulizer treatment three to four times 16 per day, that would require an additional, unscheduled break and thus prevent her from 17 maintaining employment. Dkt. 12 at 1-2. Plaintiff’s contention is unsupported by the 18 record. If a person is awake 16 hours per day and spreads four treatments out evenly, 19 about five hours would pass between each treatment. This would, at most, require one 20 treatment during a normal eight-hour workday. A workday typically includes two 15- 21 minute breaks and a longer lunch break, which would accommodate Plaintiff’s asserted 22 need for more than 15 minutes. See Dkt. 7 at 3; but see Dkt. 12 at 2 (“The Plaintiff only 23 1 relies on the ALJ’s statement that the Plaintiff would need 3-4 treatments daily and that 2 these treatments take 10-15 minutes.”). 3 Plaintiff asserts, with no citation to the record, that she needs nebulizer treatments 4 when symptoms increase and thus cannot coordinate them with work breaks. Dkt. 12 at 5 2. Dr. Leng’s treatment records contradict Plaintiff’s assertion. He prescribed nebulizer 6 solution three to four times daily—not as needed or when symptoms increase. Tr. 733. 7 Plaintiff argues the ALJ erred by finding she stopped her COPD medications. 8 Dkt. 7 at 4. However, Dr. Leng’s May 2012 treatment records clearly state Plaintiff “had 9 … stop[ped] taking her medication of copd [sic].” 10 The Court concludes Plaintiff has shown no error in the ALJ’s evaluation of 11 12 Plaintiff’s need for nebulizer treatment. 13 CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and 15 this case is DISMISSED with prejudice. 16 DATED this 5th day of March, 2021.

A 18

19 The Honorable Richard A. Jones 20 United States District Judge

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