Poni Anderson v. Commissioner of Social Security Administration

Opinion

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

9 Poni Anderson, No. CV-23-00272-TUC-JGZ (BGM)

10 Plaintiff, REPORT AND RECOMMENDATION

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Poni Anderson seeks 16 judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) This 17 matter was referred to Magistrate Judge Bruce G. Macdonald for a report and 18 recommendation and has been fully briefed. (Docs. 14, 17, 20, 23.) Based on the 19 administrative record (AR) and the parties’ briefings, the Magistrate Judge recommends 20 that the District Judge, upon her independent review, deny Plaintiff’s appeal and affirm the 21 Commissioner’s decision. 22 BACKGROUND 23 Poni Anderson was born in 1981 and is defined as a “younger person” by the Social 24 Security Administration. (AR 32); 20 C.F.R. § 416.963(c). She has a high school diploma 25 and one year of college education. (AR 47.) Since February 19, 2019, Anderson has been 26 “basically homeless1” and has complained of health complications due to fibromyalgia and 27 degenerative disc disease, among other ailments. (AR 46, 48.) Since that time, she also 28 1 Anderson also testified that she had been living in a garage. (AR 49.) 1 has had no relevant work history. (AR 47.) In addition to seeing a number of medical 2 providers over the years, Anderson has received pain management treatment from the Pima 3 Pain Center and Advanced Pain Management. (AR 576-631 (Pima Pain Center); 689-734, 4 794-962, 1023-1106, 1329-1482 (Advanced Pain Management).) She has also received 5 treatment from several neurologists. (AR 774-793, 1526-1551 (Western Neurosurgery); 6 1596-1599 (Banner Neurology).) Finally, Anderson has received treatment for generalized 7 systemic toxicity. (AR 500-509, 1552-1561, 1585-1595.) 8 Procedural History 9 On October 3, 2019, Anderson filed an application for Social Security disability 10 benefits alleging a disability onset date of October 1, 2004, for impairments including 11 fibromyalgia and a “bad spine.” (AR 87.) Her application was denied at the initial review 12 stage, (AR 100), and upon reconsideration, (AR 101). Shortly after her application was 13 denied on reconsideration, Anderson filed a request for a hearing before an Administrative 14 Law Judge (ALJ). (AR 122.) 15 On February 24, 2021, a telephonic hearing was held before the ALJ. (AR 70-86.) 16 The ALJ concluded that Anderson was not disabled and not entitled to disability benefits. 17 (AR 122-132.) Anderson’s request for decision review was granted and the matter was 18 remanded to the ALJ for further findings and an additional evaluation. (AR 139-140.) 19 On December 7, 2022, a second, in-person, hearing was held before the ALJ. (AR 20 43-69.) The ALJ once again issued an unfavorable disability determination, (AR 15-34), 21 and Anderson’s request for review was denied, (AR 1-4). As such, the ALJ’s second 22 decision is final for the purpose of judicial review. 42 U.S.C. § 1383(c)(3). 23 ALJ’s Final Decision 24 At step one, the ALJ determined that Anderson had not engaged in substantial 25 gainful activity since her amended disability onset date of February 25, 2019. (AR 17.) 26 At step two, the ALJ determined that Anderson suffered from the severe 27 impairments of degenerative disc disease and fibromyalgia. (Id.) 28 At step three, the ALJ determined that Anderson did not have a combination of 1 impairments that met the listing requirements for a disability determination. (AR 25.) 2 After step three but before step four, the ALJ determined that Anderson had the 3 Residual Functional Capacity (RFC) to perform sedentary work. (AR 25-26.) 4 At step four, the ALJ found that Anderson had no past relevant work. (AR 32.) 5 At step five, the ALJ concluded that based on her age, education, work experience, 6 and RFC, there were jobs in the national economy that Anderson could perform. (AR 33.) 7 Hearing Testimony 8 The ALJ’s final decision is based, in part, on Anderson’s December 7, 2022 hearing 9 testimony. (See AR 43-69.) At the hearing, Anderson testified that she is “basically 10 homeless.” (AR 48.) She showers either at her sister’s or her friend’s house. Id. She 11 sleeps either at her sister’s house or in “a spot that’s kind of like a guest house of [an] 12 unfinished building.” Id. Anderson refers to this guesthouse as a garage. (AR 49.) 13 Anderson testified that she is not being treated by a pain doctor because she 14 disagreed with her last provider’s treatment decision and decided to give herself a year off 15 because everything became too much. (AR 50.) She also stated that she is not seeing a 16 pain doctor because she lacks transportation. (Id.) Before taking a year off, Anderson 17 estimated that she was seeing various providers twice a week throughout the year. (AR 18 53.) She explained that she was receiving treatment at the Pima Pain Center, but that the 19 treatment caused her more pain, no one was listening to her about the pain that it caused, 20 and she could not walk for four months because of the treatment. (AR 54-55) 21 Anderson admitted that one provider refused to keep her as a patient because she 22 misused morphine given to her by her mother. (AR 55.) She testified that she currently 23 takes amitriptyline, hydroxyzine, and venlafaxine, and consumes “a handful” of aspirin and 24 Aleve a “couple times a day” for pain. (AR 54.) Anderson also testified that she has 25 cyclical vomiting syndrome, which she developed after receiving hysterectomy-related 26 scarring treatment in the form of a mesh implant. (AR 52, 1612, 1622.) 27 Anderson testified that she is able to stand for not quite 30 minutes (about enough 28 to do a load of dishes), sit for approximately an hour, and lift about ten pounds, or about a 1 gallon of milk. (AR 56.) She has pain throughout her body that averages in intensity of 2 six out of ten. (AR 57.) She suffers from headaches and at least four migraines a month. 3 (AR 58.) Anderson asserted that if she sits for too long, the pressure on her tailbone is too 4 much and she has to lie down. (AR 61.) She estimates needing to lie down for four to five 5 hours a day. (AR 61-62.) 6 Stacia Schonbrun, a vocational expert (VE), testified that a hypothetical person with 7 an RFC mirroring the ALJ’s determination of Anderson could perform several sedentary 8 jobs in the national economy. (AR 64-65.) Schonbrun also testified that a person limited 9 to sitting for an hour before needing to stand and/or walk for twenty minutes while staying 10 on-task would be unable to maintain employment because the types of sedentary jobs 11 available require sitting for longer periods of time. (AR 66-67.) 12 Dr. Barlow’s Medical Opinion 13 On October 22, 2022, Anderson was seen by neurologist Dr. Robert Barlow, who 14 offered a consultative examining opinion. (AR 1620-1636.) Dr. Barlow reviewed forty- 15 four pages of medical records consisting of primary care provider notes, lab reports, 16 imaging reports, and neurosurgery consultation notes. (AR 1628.) After reviewing the 17 records and conducting an examination, Dr. Barlow wrote:

18 At L4-L5, there is disc desiccation with a posterior annular tear. There is a 19 4-mm broad midline disc protrusion resulting to abutment of the descending L5 nerve roots bilaterally with a mild degree of central canal narrowing. 20 There is mild facet arthropathy. At L5-S1, there is disc desiccation with a 21 posterior annular tear. There is a 3-mm midline disc protrusion resulting in effacement of the anterior thecal sac with no neural abutment. There is mild 22 central canal narrowing and mild facet arthropathy. 23 . . . At C6-C7, there is a 3-mm broad midline disc protrusion resulting 24 in flattening of the thecal sac with a mild degree of central canal narrowing. 25 There is also a 2-mm left foraminal disc protrusion with mild narrowing of the left neural foramen and mild abutment of the exiting left cervical nerve 26 root. On the edge of the images, there is a possibility of some tonsillar ectopia 27 at the foramen magnum. Further evaluation with dedicated MRI imaging of the brain is recommended. 28 . . . . 1 I was asked to comment on this patient’s tender/trigger points for the diagnosis of fibromyalgia. During the physical examination, the patient was 2 sensitive in 16 out of the 18 points, thus confirming the diagnosis. 3 On clinical examination today, the patient has fibromyalgia, mild-to-severe 4 generalized pain with a positive straight leg test with radicular signs, 5 peripheral neuropathy in the feet, migraines, and impaired balance. Patient otherwise has no over evidence of acute or chronic physical illness and 6 patient’s mental status was otherwise stable today. Other than the above, the 7 patient’s musculoskeletal examination reveals intact ranges of motion and strengths. 8

9 (AR 1628.) 10 Dr. Barlow also completed a Medical Source Statement of Ability to do Work- 11 Related Activities (“Statement”), which indicated that: (i) Anderson could lift and carry up 12 to 10 pounds continuously and up to 20 pounds occasionally in a work week; (ii) she could 13 sit uninterrupted for 1 hour at a time and stand and/or walk uninterrupted for 20 minutes at 14 a time; (iii) she could sit for a total of 4 hours in an 8-hour day and stand and walk for 1 15 hour each in the same day; and (iv) she should be lying down for the remaining two hours 16 of the workday. (AR 1631-1632.) 17 CLAIM EVALUATION 18 The Commissioner employs a five-step sequential process to evaluate disability 19 claims. See 20 C.F.R. § 404.1520; Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). The 20 burden of proof is on the claimant at steps one through four. Saul, 950 F.3d at 1148. To 21 demonstrate a disability, the claimant must show that she: (i) is not working; (ii) has a 22 severe physical or mental impairment; (iii) the impairment meets or equals the 23 requirements of a listed impairment; and (iv) has an RFC that precludes her from 24 performing her past work. See id. § 404.1520(a)(4); Ford, 950 F.3d at 1148-49. At step 25 five, the burden shifts to the Commissioner to show that “the claimant can perform a 26 significant number of other jobs in the national economy.” Thomas v. Barnhart, 278 F.3d 27 947, 955 (9th Cir. 2002). This five-step determination is based upon the claimant’s RFC, 28 age, work experience, and education. Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 1 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” 2 at any point in the five-step process, the Commissioner does not proceed to the next step. 3 20 C.F.R. § 404.1520(a)(4). 4 LEGAL STANDARD 5 A federal court's review of Social Security determinations is limited. Brown-Hunter 6 v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Commissioner’s decision to deny 7 benefits is disturbed only if it is based on legal error or is not supported by substantial 8 evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence 9 is “such relevant evidence as a reasonable mind might accept as adequate to support a 10 conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103, 139 (2019) (cleaned up). To determine 11 whether an ALJ’s decision is supported by substantial evidence, district courts review the 12 administrative record as a whole and weigh the evidence that both supports and detracts 13 from the ALJ’s conclusion. Shalala, 53 F.3d at 1039. The ALJ is responsible for 14 determining credibility and for resolving conflicts in medical testimony and ambiguities in 15 the record. Id. Where evidence is susceptible to more than one rational interpretation, the 16 ALJ's decision must be upheld. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 17 DISCUSSION 18 Anderson raises two issues for review on appeal of the Commissioner’s disability 19 determination. (See Doc. 17 at 2.) First, she asserts that the ALJ erred by failing to provide 20 clear and convincing reasons to discount her symptom testimony. (Id. at 7-9.) Second, she 21 asserts that the ALJ erred by failing to sufficiently address a critical aspect of Dr. Barlow’s 22 medical opinion. (Id. at 9-11.) The Commissioner asserts that the ALJ reasonably 23 discounted Anderson’s symptom testimony because her subjective testimony was 24 inconsistent with the medical and other evidence in the record. (Doc. 20 at 5.) The 25 Commissioner also asserts that the ALJ reasonably evaluated Dr. Barlow’s opinion based 26 on its lack of supportability and inconsistency with the record. (Id. at 11.) The Court 27 agrees with the Commissioner and recommends that his determination be affirmed and 28 Anderson’s appeal denied. 1 I. Symptom Testimony Properly Discounted 2 An ALJ may not reject a claimant’s subjective pain complaints based solely on a 3 lack of medical evidence to fully corroborate the alleged severity of pain. Burch v. 4 Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). However, an ALJ may engage in ordinary 5 techniques of credibility evaluation, such as considering the claimant's reputation for 6 truthfulness and inconsistencies in the claimant's testimony. Id. The ALJ may also 7 consider the nature, location, onset, duration, frequency, radiation, and intensity of pain; 8 precipitating and aggravating factors (e.g., movement, activity, environmental conditions); 9 type, dosage, effectiveness, and adverse side-effects of pain medication; treatment, other 10 than medication, for relief of pain; functional restrictions; and the claimant's daily 11 activities. Id. The ALJ's reasons for rejecting pain testimony must be clear and convincing. 12 Id. She must specify what testimony is not credible and identify the evidence that 13 undermines the claimant's complaints. Id. 14 Anderson argues that the ALJ failed to provide clear and convincing reasons to 15 disregard her symptom testimony because the ALJ discounted her testimony regarding 16 having to lay down for approximately four hours a day with evidence of her opiate-seeking 17 behavior. (Doc. 17 at 7-8.) Anderson insinuates that this is the only evidence the ALJ used 18 to discount her symptom testimony. (Id.) Anderson also argues that the ALJ failed to 19 credit her daily activities such as gardening with her testimony that she needs to move 20 around at least once per hour throughout the day. (Id. at 8.) These arguments are 21 unavailing because the ALJ offered pages of creditworthy reasons to discount Anderson’s 22 subjective pain testimony, (see AR 26-30), and the Court cannot second-guess an ALJ’s 23 credibility finding when it is supported by substantial evidence, Thomas, 278 F.3d at 959. 24 Moreover, a claimant cannot defeat an ALJ’s credibility finding by dissecting discrete lines 25 from her opinion and extrapolating that they amount to legal error. See Smartt v. Kijakazi, 26 53 F.4th 489, 499 (9th Cir. 2022) (reiterating that the clear and convincing standard only 27 requires an ALJ to “show his work” and identify “specific, clear, and convincing” reasons 28 to support a finding that a claimant’s limitations were not as severe as she claimed). 1 In evaluating Anderson’s credibility, the ALJ provided more than sufficient 2 specific, clear, and convincing reasons to find her subjective pain testimony unpersuasive. 3 (See AR 26-30.) The ALJ found that: (i) Anderson had given conflicting testimony 4 regarding her previous use of morphine (AR 26); (ii) Anderson was not being treated by a 5 pain management provider despite her allegations of extreme pain (AR 27); (iii) Anderson 6 was only taking over-the-counter medications, essential oils, and vitamins for her pain (AR 7 27, 30); (iv) an examining provider reported normal muscle strength and tone, no 8 tenderness, no spasms, and no bony abnormalities in her spine with a full range of motion 9 (AR 28); (v) notations in Anderson’s medical records demonstrated a number of positive 10 drug screens and/or inconsistencies with the pain medications she was prescribed (AR 29); 11 (vi) Anderson reported 30-50% pain control with medication when being treated by a pain 12 management provider (AR 29); (vii) Anderson had been advised to engage in core 13 exercises, aerobic exercises, use a TENS unit, stretch, and use heat/ice for her pain (AR29); 14 (viii) Anderson had a history of missed medical appointments (AR 29); (ix) Anderson was 15 advised by a neurologist that her headaches were likely from medication overuse, and she 16 was instructed to stop taking large doses of over-the-counter medications (AR 30); (x) 17 Anderson had a number of unremarkable physical examinations (AR 30); and (xi) 18 consideration was given to Anderson’s symptom testimony such that she was limited to 19 sedentary work activity (AR 30). These findings are sufficiently specific to permit the 20 Court to conclude that the ALJ did not arbitrarily discredit Anderson’s symptom testimony. 21 See Thomas, 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with 22 findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 23 discredit claimant's testimony”). 24 Additionally, Anderson fails to provide convincing support for her assertion that an 25 ALJ must consider a claimant’s daily activities to bolster the claimant’s subjective 26 symptom testimony. (Doc. 17 at 8-9.) In fact, controlling case law indicates the reverse— 27 that an ALJ may use a claimant’s daily activities as evidence to discredit her testimony 28 upon making specific findings relating to those activities. See, e.g., Fair v. Bowen, 885 1 F.2d 597, 603 (9th Cir. 1989) (“[I]f, despite his claims of pain, a claimant is able to perform 2 household chores and other activities that involve many of the same physical tasks as a 3 particular type of job, it would not be farfetched for an ALJ to conclude that the claimant's 4 pain does not prevent the claimant from working.”); Smartt, 53 F.4th 489, 499 (reiterating 5 that a claimant’s daily activities “may be grounds for discrediting the claimant's testimony 6 to the extent that they contradict claims of a totally debilitating impairment”); Morgan v. 7 Apfel, 169 F.3d 595, 600 (9th Cir.1999) (concluding that claimant's ability to fix meals, do 8 laundry, work in the yard, and occasionally care for his friend's child was evidence of 9 claimant's ability to work). As such, Anderson’s first ground on appeal should be denied. 10 II. Dr. Barlow’s Opinion Properly Discounted 11 An ALJ cannot reject an examining doctor's opinion as unsupported or inconsistent 12 without providing an explanation supported by substantial evidence. Kitchen v. Kijakazi, 13 82 F.4th 732, 739 (9th Cir. 2023). “The [ALJ] must articulate how persuasive [she] finds 14 all of the medical opinions from each doctor or other source and explain how [she] 15 considered the supportability and consistency factors in reaching these findings.” Woods 16 v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (cleaned up). “Supportability concerns how 17 a medical source supports a medical opinion with relevant evidence, while consistency 18 concerns how a medical opinion is consistent with the evidence from other medical and 19 nonmedical sources.” Kitchen, 82 F.4th at 740 (cleaned up). “There is no longer a 20 hierarchy of medical opinions that determines how the opinions are weighed.” Id. Since 21 an ALJ is not required to take medical opinions at face value, she may consider the quality 22 of the explanation when determining how much weight to give an opinion. Ford, 950 F.3d 23 at 1155. She may also “reject check-off reports that do not contain any explanation of the 24 bases of their conclusions,” id., and is the final arbiter with respect to resolving ambiguities 25 in the medical evidence, Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 26 Anderson argues that the ALJ committed harmful error by failing to address Dr. 27 Barlow’s limitation that she could only sit for 1 hour at a time and stand or walk for 20 28 minutes at a time. (Doc. 17 at 10.) Anderson adds that the ALJ should have attributed the 1 doctor’s other supporting evidence to the blank portion of his Statement where he was to 2 provide justification for his check-off sitting/standing/walking limitation. (Id. at 10-11; 3 AR 1632.) The Court disagrees. First, an ALJ is permitted to reject a doctor’s check-off 4 report that lacks an explanation, which is exactly the scenario that Anderson complains of 5 here. See Ford, 950 F.3d at 1155; (AR 1632.) Second, even in the absence of the ALJ’s 6 permissible rejection, the Court concludes that she properly discounted Dr. Barlow’s 7 opinion by providing specific reasons supported by substantial evidence. (See AR 31-32.) 8 The ALJ thoroughly explained the persuasiveness of Dr. Barlow’s opinion and how she 9 considered the supportability and consistency factors in reaching her finding. (Id.) 10 In her final decision, the ALJ concluded that Dr. Barlow’s opinion was unpersuasive 11 because it was “inconsistent with [the doctor’s] examination findings and personal 12 observations,” as well as “unsupported by … the record and the findings of most other 13 treatment providers.” (AR 31.) She observed that while Dr. Barlow found that Anderson 14 could perform light exertional activity, he determined that she could only sit for 4 hours 15 and stand and walk for 1 hour each, which was less than a full workday. (Id.) She also 16 noted that while Dr. Barlow limited Anderson’s ability to reach and use her hands, his 17 physical exam indicated full range of motion in her upper extremities and the ability to 18 pinch, grasp, and manipulate objects. (AR 32.) Finally, the ALJ remarked that Dr. Barlow 19 stated that Anderson could never balance, stoop, kneel, crouch, or crawl, but his exam 20 showed that she had a normal and reciprocal gait, she could squat and rise without 21 difficulty, and that she could get on and off the examining table without trouble. (Id.) 22 As it concerned the supportability of Dr. Barlow’s check-off determination that 23 Anderson could only sit for 4 hours and stand and walk for 1 hour each in a full workday, 24 the ALJ observed that the doctor “left entirely blank” the portion of the Statement where 25 he was to identify the medical or clinical findings or other evidence that supported his 26 finding. (AR 31; 1632.) The ALJ indicated that this was particularly notable because in 27 all other sections of Dr. Barlow’s Statement, he provided a detailed narrative of findings. 28 (Id.; AR 1631-1636.) The ALJ also found that while Anderson testified that she had to lay 1 || down several times throughout the day to relieve pain, she made no such reports to any || treatment providers and the limited notation that the ALJ did find only pertained to a 2016 || record, which indicated that Anderson laid down to relieve pain after a lumbar epidural injection. (/d.; AR 903.) The ALJ noted that Anderson was encouraged by her pain 5 || management provider to be more rather than less active and that she reported to mental 6|| health providers that she was independent in her daily living activities, enjoyed gardening and being outdoors, and was helping her boyfriend with property management duties 8 || approximately 10 hours per day during consideration of her disability benefits application. (AR 31-32.) As such, Dr. Barlow’s opinion was properly discounted, and Anderson’s 10 || second ground on appeal should be denied. 11 RECOMMENDATION 12 The Magistrate Judge recommends that the District Judge, after her independent 13} review, deny Plaintiff's complaint (Doc. 1) and affirm the Commissioner’s final decision. || Under the Federal Rules of Civil Procedure, any party may serve and file written objections 15 || within fourteen (14) days of being served with a copy of this Report and Recommendation, 16 || anda party may respond to another party’s objections within fourteen (14) days after being 17 || served with a copy. Fed. R. Civ. P. 72(b)(2). No replies shall be filed unless leave is 18 || granted by the District Judge. If objections are filed, the parties shall use the following case number: 23-cv-272-JGZ. Failure to file timely objections to any factual or legal 20 || determination of the Magistrate Judge may result in waiver of the right of review. 21 22 Dated this 19th day of July, 2024. 23

25 Honorable Bruce G. Macdonald 6 United States Magistrate Judge 27 28

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