Smith v. Commissioner of Social Security Administration

Opinion

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

9 Martha Inchaurregui Smith, No. CV-19-04475-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 Before the Court is Plaintiff Martha Inchaurregui Smith’s challenge to the Social 17 Security Administration (“SSA”)’s denials of her disability benefits applications. For the 18 reasons expressed herein, the Court affirms the Administrative Law Judge’s (“ALJ”) 19 decision. 20 I. BACKGROUND 21 This case deals with the denial of Ms. Smith’s second application for social security 22 disability benefits. (Doc. 1 at 2.) The ALJ’s decision in this case relied, in part, on certain 23 findings in a prior benefit denial decision (the “2014 decision.”). (Id. at 4.) After 24 considering the record, the ALJ found that Ms. Smith had thoracic degenerative disc and 25 joint disease and radiculopathy, chronic obstructive pulmonary disease (“COPD”); and 26 chronic pain syndrome. (R. at 18.) Ultimately, however, the ALJ concluded that Ms. Smith 27 could, with certain limitations, perform her past relevant work as an adult education 28 teacher. (R. at 24.) The ALJ found that Ms. Smith did not make the requisite showing that 1 her ability to work had lessened since the 2014 decision. (R. at 16.) Alternately, the ALJ 2 found that Ms. Smith was not disabled. (R. at 25.) This ruling became final when the 3 Appeals Council denied Ms. Smith’s request for review. (R. at 1-2.) Ms. Smith now 4 appeals the ALJ decision in this Court. 5 II. LEGAL STANDARD 6 The district court reviews only those issues in an ALJ’s decision that the challenging 7 party raises. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may 8 set aside the agency’s determination only if it is not supported by substantial evidence or 9 is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial 10 evidence is more than a scintilla, but less than a preponderance; it is relevant evidence that 11 a reasonable person might accept as adequate to support a conclusion considering the 12 record as a whole. Id. The Court reviews the ALJ’s legal conclusions de novo. Mendoza- 13 Pablo v. Holder, 667 F.3d 1308, 1312 (9th Cir. 2012). 14 An ALJ follows a five-step process to determine whether a plaintiff is disabled. “If 15 a claimant is found to be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is 16 no need to consider subsequent steps.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 17 1999). First, the ALJ determines whether the claimant is engaged in substantial gainful 18 activity. 20 C.F.R. § 404.1520(a)(4)(i). Second, the ALJ determines whether the claimant 19 has a “severe” medically determinable physical or mental impairment. 20 C.F.R. 20 § 404.1520(a)(4)(ii). Third, the ALJ determines whether the claimant’s impairment(s) is 21 enumerated in a certain federal regulatory provision or is the equivalent of one of those 22 conditions. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the ALJ assesses the extent of 23 the claimant’s ability to work and determines whether the claimant is capable of performing 24 past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to step five, 25 which analyzes several factors to assess whether a claimant can perform another type of 26 work. 20 C.F.R. § 404.1520(a)(4)(v). A claimant who can perform other work is disabled, 27 whereas a claimant who cannot is disabled. Id. The claimant bears the burden of proof at 28 1 the first four steps. Tackett, 180 F.3d at 1098. Then the burden shifts to the Social Security 2 Administration. Id. 3 Res judicata may apply to administrative decisions. 20 C.F.R. §§ 404.957(c)(1), 4 416.1457(c)(1). The Ninth Circuit has held that if a claimant is found not disabled, a 5 presumption of continuing non-disability arises. Chavez v. Bowen, 844 F.2d 691, 693 (9th 6 Cir. 1988). The claimant can rebut the presumption by showing “changed circumstances,” 7 such as an increase in the severity of an impairment or the existence of a new impairment. 8 Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). If the claimant rebuts the presumption, 9 the initial ALJ’s findings concerning the claimant’s age, education, and ability to work may 10 be entitled to preclusive effect. Chavez, 844 F.2d at 694. The ALJ may reconsider those 11 issues only if the claimant produces new and material evidence relevant to those issues or 12 there has been a change in the applicable law and regulations. Id. 13 III. ANALYSIS 14 Ms. Smith raises three issues for the Court’s consideration: (1) The ALJ should have 15 introduced into the record the evidence upon which the first 2014 decision relied. Failure 16 to do so, according to Ms. Smith, was a due process violation and reversible error; (2) The 17 ALJ erred by rejecting Ms. Smith’s symptom testimony; and (3) the ALJ erred by rejecting 18 the opinions of Ms. Smith’s treating physicians. The Court finds that the ALJ did not 19 commit reversible error and accordingly affirms the decision. 20 A. Due Process 21 Ms. Smith argues that the ALJ in this case committed reversible error by failing to 22 introduce into the record the evidence upon which the 2014 decision relied. (Pl. Br. at 23 15.) She further argues that this deprived her of the opportunity to rebut the ALJ’s finding 24 that she did not produce the requisite new evidence of a changed circumstance. (Pl. Br. 25 at 15.) Relatedly, Ms. Smith argues that the ALJ violated her due process rights by relying 26 on the 2014 decision rather than the evidence underlying it. (Pl. Br. at 16.) The Court 27 disagrees. 28 1 Ms. Smith has not alleged a colorable claim of a due process violation. Her assertion 2 that the ALJ improperly relied on the 2014 decision, rather than the evidence underlying 3 it, does not sustain a claim for a due process violation because she had an opportunity to 4 be meaningfully heard. Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012). Nor does 5 the Court find that the ALJ committed reversible error. Ms. Smith cites no legal authority 6 to support her argument that an ALJ is required to admit certain evidence or cannot rely on 7 prior administrative decisions. Moreover, although the ALJ found that Ms. Smith failed to 8 provide new and material evidence of changed circumstances, the ALJ also determined, in 9 the alternative, that Ms. Smith was not disabled for the period at issue. Accordingly, the 10 ALJ’s finding that Ms. Smith did not provide new and material evidence of a changed 11 circumstance was, at most, harmless error. 12 B. Symptom Testimony 13 The ALJ gave four reasons for rejecting Ms. Smith’s symptom testimony. First, 14 Ms. Smith has a documented history of substance abuse. (R. at 21–23.) Second, there 15 were inconsistencies between her testimony and the record. (R. at 21–22.) Third, the 16 objective medical evidence did not support her alleged limitations. (R. at 21–22.) Fourth, 17 Ms. Smith’s daily activities indicate that she is more functional than alleged.* (R. at 21– 18 22.) The Court finds that the ALJ’s rationale was sufficient. 19 While credibility is the province of the ALJ, an adverse credibility determination 20 requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 21 claimant’s testimony.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 22 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ may 23 consider whether objective medical evidence supports the claimant’s testimony, but that 24 cannot be the sole basis for an adverse credibility finding. Burch v. Barnhart, 400 F.3d

25 * The ALJ’s finding that Ms. Smith’s daily activities suggest she is capable of 26 performing light work is not supported by substantial evidence. The ALJ must determine the extent to which the claimant engages in activities in order to conclude she is capable of 27 work. See Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2014). Nevertheless, because the ALJ gave other reasons for her adverse credibility finding, her erroneous reliance on Ms. 28 Smith’s daily activities was harmless. See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008). 1 676, 681 (9th Cir. 2005). The ALJ may also consider the claimant’s daily activities, 2 inconsistent statements, and course of treatment. Id. 3 The ALJ’s finding that Ms. Smith’s symptom testimony was undermined by her 4 history of prescription drug abuse is specific, clear and convincing, and supported by 5 substantial evidence. The ALJ may properly reject the claimant’s symptom testimony if 6 she exhibits drug-seeking behavior during her alleged period of disability. Edlund v. 7 Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). The ALJ cited multiple treatment records 8 in which Ms. Smith’s treating providers noted her prescription drug misuse. (R. at 755, 9 1369, 1400, 1873, 2016, 2171.) Ms. Smith argues that her husband reported her overuse 10 of pain medications because they were divorcing during the relevant period. (Pl. Br. at 11 25.) However, many of the reports are based on the providers’ direct observations, rather 12 than statements made by her husband. Ms. Smith also argues that her substance abuse is 13 unrelated to her symptoms and is only relevant to a judgment about her willpower or moral 14 rectitude. (Pl. Br. at 25.) The Court disagrees. The ALJ is responsible for determining 15 credibility, and a claimant’s misuse of prescribed medication may call into question the 16 legitimacy of her complaints. See Edlund, 253 F.3d at 1157; Anderson v. Barnhart, 344 17 F.3d 809, 815 (8th Cir. 2003). The ALJ properly considered Ms. Smith’s misuse of pain 18 medications and relied on it as a basis to discredit her symptom testimony. 19 The ALJ’s finding that Ms. Smith’s testimony was inconsistent with her previous 20 statements to treatment providers is also specific, clear and convincing, and supported by 21 substantial evidence. When evaluating the credibility of the claimant’s symptom 22 testimony, the ALJ may consider the claimant’s prior inconsistent statements concerning 23 the alleged severity of her symptoms. Smolen, 80 F.3d at 1284. Ms. Smith testified that 24 her pain was over 10/10 without medication, and that it improved to 8/10 with medication. 25 (R. at 306.) Yet, treatment records reflect that she experienced significant relief—50 to 26 100 percent—from pain medications and steroid injections. (R. at 22.) Thus, Ms. Smith’s 27 testimony regarding her response to treatment was inconsistent with her previous 28 statements to her treatment providers and was a sufficient basis to discredit her testimony. 1 Finally, the ALJ’s finding that Ms. Smith’s alleged limitations were not supported 2 by objective medical evidence is supported by substantial evidence. An ALJ may consider, 3 but not solely rely on, a lack of objective evidence to discredit the claimant’s testimony. 4 See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). The ALJ observed that aside 5 from acute COPD exacerbations, Ms. Smith’s clinical findings were generally benign. 6 (R. at 21.) For example, a December 2015 chest x-ray was unremarkable. (R. at 1247.) 7 On one occasion, Ms. Smith went to the emergency room complaining of shortness of 8 breath, but upon examination, she demonstrated no shortness of breath and her oxygen 9 levels were normal. (R. at 1400.) Later, Ms. Smith’s pulmonologist observed that her 10 airways were only minimally obstructed. (R. at 1810.) Finally, as the SSA points out, 11 many of Ms. Smith’s respiratory examinations were unremarkable. (R. at 756, 759–60, 12 763–64, 767, 773–74, 777–78, 1792–93, 1797.) Notably, in determining Ms. Smith’s 13 residual functional capacity – which measures how much work she can do despite her 14 disability, the ALJ accounted for Ms. Smith’s acute COPD exacerbations by limiting her 15 to light levels of exertion and environments free of pulmonary irritants. (R. at 21.) 16 Regarding Ms. Smith’s back pain, the ALJ found that the objective evidence 17 suggests that she experiences some pain and limitations but not to the extent alleged. 18 (R. at 22.) For example, one MRI showed that she had mild to moderate degenerative 19 changes in her spine, and she received epidural steroid injections to alleviate her pain. 20 (R. at 22.) However, many physical examinations showed that Ms. Smith had a normal 21 range of motion. (R. at 22.) Additionally, she appeared at a hearing with a cane and 22 testified that she needs a cane or walker to walk, but the record does not support this. 23 Though she was recorded to have a slow gait and mild limp on occasion, the record is lacks 24 evidence that she required an assistive device to walk. 25 In sum, substantial evidence supports the ALJ’s finding that the objective evidence 26 does not support the alleged severity of Ms. Smith’s limitations. Contrary to Ms. Smith’s 27 assertions, the ALJ is responsible for resolving conflicts and ambiguities in the medical 28 1 evidence. Though Ms. Smith argues for a more favorable reading of the evidence, the 2 ALJ’s interpretation was rational, and the Court will uphold it. Thomas, 278 F.3d at 954. 3 C. Rejecting the Opinions of Ms. Smith’s Physicians 4 Ms. Smith’s final argument is that the ALJ improperly rejected the opinions of her 5 treating physicians, Drs. Abdullah M. Yonan, Andrea Irving, and J. Julian Grove. Instead, 6 the ALJ gave significant weight to the opinions of the examining physician and state 7 agency consultants. (R. at 23.) The ALJ’s findings are supported by substantial evidence 8 and do not constitute error. 9 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 10 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 11 Cir. 2008). Those who have treated a claimant are treating physicians, those who examined 12 but did not treat the claimant are examining physicians, and those who neither examined 13 nor treated the claimant are nonexamining physicians. Lester, 81 F.3d at 830. In general, 14 a treating physician’s opinion should be given controlling weight. Id. The ALJ may reject 15 a treating physician’s contradicted medical opinion only “for specific and legitimate 16 reasons that are supported by substantial evidence in the record.” Carmickle, 533 F.3d at 17 1164. “The ALJ can meet this burden by setting out a detailed and thorough summary of 18 the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making 19 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 20 1. The ALJ properly rejected Dr. Yonan’s opinion. 21 The ALJ first considered a Respiratory Questionnaire by Dr. Yonan. (R. at 786– 22 87.) He opined that Ms. Smith has slight shortness of breath at rest and moderate shortness 23 of breath when walking on level ground. (R. at 786.) This shortness of breath would have 24 a moderate impact on her work production, a slight impact on her ability to carry out short 25 and simple instructions, and no impact on her ability to speak easily, understand and 26 remember detailed instructions, interact with others, and respond appropriately to work 27 pressures. (R. at 786.) Dr. Yonan opined that Ms. Smith can sit for two hours at a time 28 and two hours total in an eight-hour workday; stand and walk for no amount of time; and 1 rarely lift or carry fewer than five pounds. (R. at 787.) The ALJ properly rejected Dr. 2 Yonan’s opinion because it was not only inconsistent with Ms. Smith’s treatment records 3 but also internally inconsistent. (R. at 23.) 4 The ALJ need not accept a medical opinion that is brief, conclusory, or inadequately 5 supported by treatment records. Thomas, 278 F.3d at 957. As previously discussed, the 6 ALJ correctly found that Ms. Smith’s COPD was well controlled aside from rare, acute 7 exacerbations. (R. at 21, 23.) Many of Ms. Smith’s respiratory examinations, including 8 those Dr. Yonan performed, were unremarkable. (R. at 21, 753, 756, 759, 763, 767, 770, 9 774, 777.) Though Dr. Yonan’s records include Ms. Smith’s reports that her COPD 10 symptoms were moderately severe, the ALJ was not required to accept those complaints 11 because they were properly discredited. See Evenhus v. Astrue, 815 F. Supp. 2d 1154, 12 1160 (D. Or. 2011) (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 13 (9th Cir. 1999)). 14 The ALJ also properly rejected Dr. Yonan’s opinion because of its internal 15 inconsistencies. See Morgan, 169 F.3d at 603. Despite finding that Ms. Smith had no 16 limitations in most functional areas and moderate limitations in only two areas, Dr. Yonan 17 opined that Ms. Smith could not stand or walk for any length of time. (R. 787.) The ALJ 18 was not required to accept Dr. Yonan’s opinion after finding that it was unreasonable given 19 Dr. Yonan’s other findings. See Morgan, 169 F.3d at 601. 20 In sum, the Court finds that the ALJ properly rejected Dr. Yonan’s opinion because 21 of its inconsistency with the record as a whole and its internal inconsistencies. 22 2. The ALJ properly rejected Dr. Irving’s opinion. 23 Next, the ALJ considered a Medical Assessment by Dr. Irving. (R. at 1335–37.) 24 Dr. Irving opined that Ms. Smith can sit for 20 minutes at a time and four hours total in an 25 eight-hour workday; continuously stand and walk for 30 minutes at a time with the 26 assistance of a walker and two hours total in an eight-hour workday; and occasionally lift 27 and carry up to five pounds. (R. at 1335–36.) Dr. Irving further indicated that Ms. Smith 28 has severe limitations in her elbow due to an unhealed fracture. (R. at 1337.) The ALJ 1 rejected Dr. Irving’s assessment because: (1) the overall record does not support Ms. 2 Smith’s need for a walker or difficulty using her left arm; and (2) Dr. Irving is an 3 emergency room provider who examined her on one occasion. (R. at 23.) 4 The ALJ’s finding that Dr. Irving’s opinion was inconsistent with Ms. Smith’s 5 treatment records is supported by substantial evidence. The ALJ was not required to give 6 weight to Dr. Irving’s opinion to the extent it was inconsistent with other evidence of 7 record. See Evenhus, 815 F. Supp. 2d at 1160 (citing Magallanes, 881 F.2d at 751–52) 8 (“The ALJ may reject a treating physician’s opinion in cases in which objective test results, 9 reports from other physicians, testimony from the claimant, or other evidence conflicts with 10 the opinion.”). Dr. Irving opined that Ms. Smith requires the assistance of a walker to be 11 able to stand or walk for 30 minutes at a time. (R. at 1335.) However, as previously 12 discussed, the record lacks objective evidence that she needs an assistive device to walk. 13 Notably, Ms. Smith’s other treating physicians denied that she used an assistive device. 14 Accordingly, the ALJ properly discounted Dr. Irving’s opinion because of its inconsistency 15 with other evidence. 16 The ALJ also properly considered the brief nature of Dr. Irving’s treatment 17 relationship with Ms. Smith. When evaluating how much weight to afford a medical 18 opinion, the ALJ may consider the nature of the treatment relationship. 20 C.F.R. 19 § 404.1527(c)(2). Generally, the ALJ will give greater weight to the opinion of a source 20 that has a detailed understanding of the claimant’s impairments, developed over the course 21 of time. Id. These sources often have a unique perspective that cannot ordinarily be 22 obtained from individual examinations, like brief hospitalizations. Id. Though the ALJ 23 incorrectly identified Dr. Irving as an emergency room physician who saw Ms. Smith on 24 one occasion, this mischaracterization was harmless because substantial evidence supports 25 her decision. See Tommasetti, 533 F.3d at 1038. Dr. Irving, a physician at Black Canyon 26 Health, saw Ms. Smith on two occasions—once to follow up after her hospitalization for 27 sepsis, and again about a month later to complete disability paperwork. (R. at 1377–80.) 28 However, this additional appointment does not impact the validity of the ALJ’s decision 1 because substantial evidence shows that Dr. Irving’s relationship with Ms. Smith was brief 2 and therefore properly afforded less weight. See Carmickle, 533 F.3d at 1162. 3 In sum, the Court finds that the ALJ properly rejected Dr. Irving’s assessment 4 because it was inconsistent with other evidence of record and because of her brief 5 relationship with Ms. Smith. 6 3. The ALJ properly rejected Dr. Grove’s opinion. 7 Finally, the ALJ considered two medical assessments Dr. Grove completed. (R. at 8 1816–19.) He opined that Ms. Smith can sit for 10 to 45 minutes at a time and three hours 9 total in an eight-hour workday; stand and walk for 15 to 30 minutes at a time and two hours 10 total in an eight-hour workday; and occasionally lift and carry up to ten pounds. (R. at 11 1816.) Ms. Smith’s pain would result in severe limitations, and her fatigue would result in 12 moderate to marked limitations and cause her to miss one to 15 days of work per month. 13 (R. at 1819.) Because Dr. Grove’s own treatment records were inconsistent with his 14 assessments, the ALJ rejected them. (R. at 24.) 15 The ALJ properly rejected Dr. Grove’s assessments because of their inconsistencies 16 with Ms. Smith’s treatment records. See Thomas, 278 F.3d at 957. As previously 17 discussed, the ALJ found that Ms. Smith’s medical records do not support her subjective 18 reports of pain. Similarly, the ALJ determined that Dr. Grove’s opined-to limitations are 19 also unsupported by the treatment records. For example, Dr. Grove noted that Ms. Smith 20 responded well to treatment, reporting that she experienced 50 to 99 percent relief from 21 injections and medications. (R. at 22.) The ALJ also found that many of Ms. Smith’s 22 physical examinations were unremarkable and suggest few functional limitations. (R. at 23 22, 24.) These findings are inconsistent with Dr. Grove’s assessments regarding Ms. 24 Smith’s functional limitations, and the ALJ was therefore permitted to reject Dr. Grove’s 25 opinion. 26 Ms. Smith argues that the ALJ failed to cite to the record, making judicial review 27 impossible. (Pl. Br. at 19.) However, the ALJ discussed Ms. Smith’s medical records 28 earlier in her decision, and she was not required to methodically cite those records again. 1|| See Magallanes, 881 F.2d at 755 (finding that a court is permitted to draw reasonable || inferences where it is clear the ALJ relied on facts and evidence contained elsewhere in her || opinion). The ALJ properly evaluated the pertinent facts and evidence and did not err by 4|| rejecting Dr. Grove’s opinion. 5 In sum, the Court finds that the ALJ properly rejected the opinions of Ms. Smith’s treating physicians by providing specific and legitimate reasons that are supported by 7|| substantial evidence. IV. CONCLUSION 9 Accordingly, 10 IT IS ORDERED affirming the July 13, 2018 decision of the Administrative Law 11 || Judge. 12 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 13 | consistent with this Order and close this matter. 14 Dated this 26th day of June, 2020. 15 Wicked T. diburde Michael T. Liburdi 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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