Scianna v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 13, 2020
• Docket: 2:18-cv-00830
• Status: Unknown

Opinion

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

9 Salvatore Scianna, No. CV-18-00830-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 Plaintiff Salvatore Scianna challenges the Social Security Administration’s (SSA) 17 finding that he is no longer entitled to Disability Insurance Benefits under the Social 18 Security Act (the Act). Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial 19 review of that decision, and the Court now addresses Plaintiff’s Opening Brief (Doc. 13, 20 Pl. Br.), Defendant Social Security Administration Commissioner’s Response Brief (Doc. 21 16, Def. Br.), and Plaintiff’s Reply (Doc. 19, Reply). The Court has reviewed the briefs 22 and Administrative Record (Doc. 12, R.) and now affirms the Administrative Law Judge’s 23 (ALJ) decision (R. at 15–35). 24 I. BACKGROUND 25 SSA previously determined Plaintiff to be disabled beginning on September 14, 26 2010. (R. at 18.) The most recent medical determination that Plaintiff was disabled is from 27 October 11, 2011. (R. at 19.) However, in a subsequent decision, SSA determined Plaintiff 28 was no longer be disabled as of November 30, 2014. (R. at 18.) This determination was 1 upheld upon reconsideration, and Plaintiff subsequently challenged it at a hearing before 2 an ALJ. (R. at 18.) On January 20, 2017, the ALJ confirmed that Plaintiff’s disability ended 3 on November 30, 2014. (R. at 18.) The ALJ made that determination by comparing 4 Plaintiff’s October 11, 2011 Residual Functional Capacity (RFC) with his RFC since 5 November 30, 2014. (R. at 19–20.) 6 The Court has reviewed the medical evidence in its entirety. The pertinent medical 7 evidence will be discussed in addressing the issues raised by the parties. Upon considering 8 the medical records and opinions, the ALJ evaluated Plaintiff’s disability after November 9 30, 2014 based on the following severe impairments: (1) status post femur fracture, 10 (2) tibial plateau fracture, (3) tibial shaft fracture, (4) comminuted fracture of the 11 calcaneous and avulsion of the gastrocnemius, (5) degenerative disc disease, (6) 12 hypertension, and (7) chronic pain syndrome. (R. at 22.) 13 Ultimately, the ALJ concluded that Plaintiff was not disabled as of November 30, 14 2014. (R. at 30.) Specifically, the ALJ found that by November 30, 2014, Plaintiff 15 experienced medical improvement in the severity of his symptoms and his impairments no 16 longer met any of the per se disability medical listings that he previously met. (R. at 21.) 17 Additionally, the ALJ found that Plaintiff has the RFC “to perform light work . . . except 18 [he] can lift or carry ten (10) pounds frequently and twenty (20) pounds occasionally, he 19 can stand and walk for two (2) hours and sit for about six (6) hours in a normal 8-hour 20 workday. He can frequently balance and stoop, but occasionally climb ramps and stairs, 21 occasionally kneel, crouch, but never climb ladders, ropes, and scaffolds and never crawl. 22 In addition, he can have no exposure to hazards such as moving machinery and unprotected 23 heights.” (R. at 22.) Although Plaintiff cannot perform his past relevant work, the ALJ 24 found he can perform a significant number of jobs that exist in the national economy. (R. 25 at 29.) 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews only 28 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 1 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 2 determination only if the determination is not supported by substantial evidence or is based 3 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 4 relevant evidence that a reasonable person might accept as adequate to support a conclusion 5 considering the record as a whole. Id. To determine whether substantial evidence supports 6 a decision, the Court must consider the record as a whole. Id. Generally, “[w]here the 7 evidence is susceptible to more than one rational interpretation, one of which supports the 8 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 9 954 (9th Cir. 2002) (citations omitted). 10 To determine whether a claimant is disabled for purposes of the Act, the ALJ 11 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 12 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 13 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 14 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 15 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 16 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 17 step three, the ALJ considers whether the claimant’s impairment or combination of 18 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 19 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 20 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 21 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 22 § 404.1520(a)(4)(iv). At the fifth and final step, the ALJ determines whether the claimant 23 can perform any other work in the national economy based on the claimant’s RFC, age, 24 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is 25 disabled. Id. 26 If a person is disabled, his disability benefits can end if substantial evidence 27 demonstrates that his impairments have medically improved such that he can engage in 28 substantial gainful activity. See 42 U.S.C. § 423(f). To determine whether there is medical 1 improvement an ALJ must compare the claimant’s RFC when he was last disabled to his 2 current RFC. 20 C.F.R. § 404.1594(b)(7). 3 III. ANALYSIS 4 Plaintiff raises two arguments for the Court’s consideration. First, he argues that the 5 ALJ erred by rejecting the opinions of examining physician Dr. Ralph Purcell and 6 erroneously crediting the opinions of Dr. Angel Gomez and Dr. Martha Goodrich. (Pl. Br. 7 at 1.) Second, he argues that the ALJ erred by rejecting his testimony regarding the severity 8 of his symptoms. (Pl. Br. at 1.) The Court disagrees with both arguments. 9 A. The ALJ gave specific and legitimate reasons supported by substantial evidence for rejecting Dr. Purcell’s opinions. 10 11 Dr. Purcell twice examined Plaintiff, first on September 1, 2015, and next on July 12 6, 2016. (R. at 25.) Dr. Purcell also completed an RFC evaluation form on Plaintiff’s behalf 13 on August 15, 2015. (R. at 445.) In each of these assessments, Dr. Purcell opined to various 14 functional limitations stemming from Plaintiff’s physical impairments. Specifically, he 15 noted numerous issues with Plaintiff’s right leg, including pain, loss of sensitivity, reduced 16 range of motion, antalgic limp, leg-length discrepancy, and loss of the right heel. (R. at 17 296–97.) He also noted Plaintiff’s back issues, including disc protrusion along the 18 vertebrae and stenosis. (R. at 297.) Because of Plaintiff’s symptoms Dr. Purcell found that 19 Plaintiff is totally and permanently disabled and precluded from work that requires sitting 20 or standing. (R. at 297, 487.) 21 The ALJ rejected Dr. Purcell’s opinions for two reasons.1 First the ALJ pointed to 22 the lack of a treatment relationship between Plaintiff and Dr. Purcell. (R. at 26.) Second, 23 the ALJ analyzed the available medical evidence and concluded, though with unideal 24 clarity, that Dr. Purcell’s opinions were inconsistent with that evidence. (R. at 25–26.) 25 Though the ALJ did not explicitly state the second reason, the Court can infer this rationale 26 from the ALJ’s opinion based on the proximity and relatedness of the discussions of the 27 28 1 The ALJ also correctly rejected Dr. Purcell’s conclusion that Plaintiff is totally disabled because that determination is reserved to the ALJ. 20 C.F.R. § 404.1527(d). 1 medical evidence and Dr. Purcell’s opinions. See Brown-Hunter v. Colvin, 806 F.3d 487, 2 492 (9th Cir. 2015). 3 Plaintiff offers several reasons that the ALJ’s rejection of Dr. Purcell’s opinion, and 4 the crediting of the opinions of Dr. Martha Goodrich and Dr. Angel Gomez, was error. 5 First, he argues that the opinions of Dr. Goodrich and Dr. Gomez did not rely on enough 6 background medical information in reaching their conclusions. (Pl. Br. at 14.) Similarly, 7 he argues that their opinions were made at a time when the record was incomplete. Thus, 8 he argues their opinions are based on incomplete information and are therefore inadequate. 9 (Pl. Br. at 15.) He also argues that the ALJ failed to take into consideration Dr. Purcell’s 10 specialty as an orthopedic surgeon. (Pl. Br. at 16.) Finally, he challenges the ALJ’s 11 rationale that Dr. Purcell did not have a treating relationship with Plaintiff. (Pl. Br. at 17.) 12 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 13 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 14 2008). Those who have treated a claimant are treating physicians, those who examined but 15 did not treat the claimant are examining physicians, and those who neither examined nor 16 treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 17 Cir. 1995). An examining physician’s opinion is generally entitled to greater weight than the 18 opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). 19 An ALJ must provide clear and convincing reasons for rejecting the uncontradicted opinion 20 of an examining physician. Id. Even if the opinion of an examining physician is contradicted 21 by the opinion of another doctor, the examining physician’s opinion can only be rejected for 22 specific and legitimate reasons supported by substantial evidence. Andrews v. Shalala, 53 23 F.3d 1035, 1043 (9th Cir. 1995). 24 The ALJ offered specific and legitimate reasons supported by substantial evidence to 25 reject Dr. Purcell’s opinions. The ALJ could consider the lack of treatment history between 26 Dr. Purcell and Plaintiff in discounting Dr. Purcell’s opinions since length of treatment is a 27 relevant consideration for weighing medical opinions. 20 C.F.R. §§ 404.1527(c)(2)– 28 404.1527(c)(6). The ALJ could also appropriately consider whether the medical evidence 1 supports Dr. Purcell’s opinions since consistency with the record is a relevant 2 consideration. Id. Furthermore, the ALJ’s reasons are supported by substantial evidence 3 because they find significant support in the record. 4 Plaintiff’s challenges primarily advocate a reweighing of the ALJ’s consideration 5 of the evidence, which this Court cannot do. See Carmickle v. Comm’r of Soc. Sec., 533 6 F.3d 1155, 1164 (9th Cir. 2008). Plaintiff’s contentions that Dr. Gomez and Dr. Goodrich 7 did not consider enough medical evidence are unpersuasive. The ALJ is responsible for 8 holistically considering each medical opinion and determining the weight to give to each. 9 20 C.F.R. §§ 404.1527(c)(2)–404.1527(c)(6). Here, the ALJ reviewed all the evidence and 10 appropriately concluded that the opinions of Dr. Gomez and Dr. Goodrich were adequately 11 founded on reliable medical evidence. 12 The ALJ also appropriately concluded that the opinions of Dr. Gomez and Dr. 13 Goodrich were more consistent with the medical evidence than Dr. Purcell’s opinions. For 14 example, during a consultative examination, Dr. Gomez found that Plaintiff reported issues 15 only in his lower right leg and reported no issues with sitting. (R. at 24, 264, 267.) Despite 16 these issues, Plaintiff had normal exam findings in the other areas of his body. (R. at 24.) 17 Dr. Purcell found no spinal issues in September 2015 and no instability in either knee or 18 ankle, though there was mild pain with downward pressure on Plaintiff’s right knee. (R. at 19 25.) Ultimately, there is limited treatment or diagnostic evidence, and substantial evidence 20 supports the ALJ’s conclusion that Dr. Purcell’s opinions are inconsistent with the medical 21 evidence. (R. at 25.) 22 Finally, it was not error for the ALJ to consider the lack of a treatment relationship 23 between Plaintiff and Dr. Purcell. Even Dr. Purcell remarked that Plaintiff presented for a 24 follow-up only “after a long hiatus.” (R. at 485.) The ALJ could consider the length of the 25 treatment relationship and Dr. Purcell’s specialty in orthopedics in evaluating Dr. Purcell’s 26 opinion, and still give that opinion little weight without committing error. Notably, Plaintiff 27 does not challenge the ALJ’s treatment of his actual treating physician’s opinion. 28 1 In sum, the ALJ gave specific and legitimate reasons for rejecting Dr. Purcell’s 2 opinion and those reasons are supported by substantial evidence. Consequently, the ALJ 3 did not err in rejecting his opinions. 4 B. The ALJ gave specific, clear, and convincing reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony. 5 6 Plaintiff testified to various walking and sitting limitations because of his right leg 7 impairments. (R. at 53.) According to his testimony, his days consist largely of rest, 8 occasional helping with chores, and some exercise and walking. (R. at 54.) 9 The ALJ gave several reasons for rejecting Plaintiff’s testimony, but only two are 10 valid. They are: (1) Plaintiff’s daily activities are inconsistent with his alleged limitations, 11 and (2) the objective medical evidence does not fully substantiate his limitations. The 12 plainly invalid reasons the ALJ gave are: (1) Plaintiff’s daily activities cannot be 13 objectively verified, and (2) his alleged limitations may not be completely caused by his 14 physical impairments. The Court rejects these reasons because the ALJ has a duty to 15 provide specific reasons for rejecting testimony rather than speculate without proof that a 16 claimant’s activities are not limited or are not limited because of his impairments. 17 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 18 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 19 evaluates whether the claimant has presented objective medical evidence of an impairment 20 “which could reasonably be expected to produce the pain or symptoms alleged.” 21 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 22 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 23 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 24 about the severity of her symptoms only by offering specific, clear and convincing reasons 25 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 26 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 27 An ALJ may consider a variety of factors in evaluating symptom testimony 28 including, “[the claimant’s] reputation for truthfulness, inconsistencies either in his 1 testimony or between his testimony and his conduct, his daily activities, his work record, 2 and testimony from physicians and third parties concerning the nature, severity, and effect 3 of the symptoms of which he complains.” Light v. Soc. Sec. Admin., Comm’r, 119 F.3d 4 789, 792 (9th Cir. 1997). The ALJ may also consider that the medical record lacks evidence 5 to support certain symptom testimony but cannot reject a claimant’s testimony for that 6 reason alone. Burch v. Barnhart, 400 F.3d 676, 680–81 (9th Cir. 2005). Additionally, if the 7 ALJ rejects a Plaintiff’s symptom testimony for a single permissible purpose, then the 8 ALJ’s errant rejection of the testimony for other additional reasons is harmless. See 9 Carmickle, 533 F.3d at 1162. 10 The ALJ’s reasons for rejecting Plaintiff’s testimony—that it was contradicted by 11 his daily activities and the medical evidence—comprise a specific, clear, and convincing 12 reason supported by substantial evidence. The ALJ noted that Plaintiff has maintained the 13 ability to perform many daily activities that are inconsistent with total disability. These 14 activities include driving, walking three days per week for exercise, and daily swimming. 15 (R. at 26, 54, 284.) The ALJ correctly determined that these activities are inconsistent with 16 Plaintiff’s alleged total disability. Furthermore, the ALJ correctly determined that 17 Plaintiff’s alleged total disability was inconsistent with the medical evidence. Despite his 18 persistent issues with his right leg, the medical evidence does not indicate that his 19 limitations are totally disabling. (R. at 25.) Furthermore, Plaintiff testified that, despite his 20 limitations, he could still sit 30 to 40 minutes at a time and stand for one hour before he 21 needs to sit down, which is in line with the ALJ’s RFC calculation. (R. at 53.) Though the 22 ALJ could not reject Plaintiff’s testimony solely because of the medical evidence, the 23 testimony’s inconsistency with the medical evidence reinforces the ALJ’s other reason. 24 Accordingly, the ALJ’s analysis of Plaintiff’s testimony, his daily activities, and the 25 medical evidence is backed by substantial evidence and, consequently, the ALJ did not 26 err.2

27 2 The ALJ’s other offered reasons were insufficient to reject Plaintiff’s testimony. 28 Nevertheless, those errors were harmless because the ALJ also gave sufficient reasons for rejecting Plaintiff’s testimony. See Carmickle, 533 F.3d at 1162. 1 Because the ALJ’s evaluation of the medical opinions and symptom testimony in || Plaintiffs case is backed by substantial evidence, the ALJ did not commit reversable error. 3 IT IS THEREFORE ORDERED affirming the January 20, 2017 decision of the Administrative Law Judge (R. at 15-35), as upheld by the Appeals Council on January 17, 5 || 2018 (R. at 1-6). 6 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 8 Dated this 13th day of March, 2020. 9 10 — . RP 11 SO 12 Avonorable Susan M. Brnovich United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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