Wolgast v. Berryhill

• Court: District Court, D. Nevada
• Decided: February 6, 2020
• Docket: 2:18-cv-01840
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 DAWN A. WOLGAST, Case No. 2:18-cv-01840-DJA 7 Plaintiff, 8 ORDER v. 9 NANCY A. BERRYHILL, 1 Commissioner of 10 Social Security,

11 Defendant.

12 13 This matter involves the review of an administrative action by the Commissioner of Social 14 Security (“Commissioner”) denying Plaintiff Dawn A. Wolgast’s (“Plaintiff”) application for 15 disability insurance benefits under Title II of the Social Security Act. The Court has reviewed 16 Plaintiff’s Motion for Reversal or to Remand (ECF No. 16), filed on February 7, 2019, and the 17 Commissioner’s Response and Cross-Motion to Affirm (ECF Nos. 20-21), filed on April 10, 18 2019. Plaintiff filed a Reply (ECF No. 22) on April 30, 2019. 19 I. BACKGROUND 20 1. Procedural History 21 On June 30, 2015, Plaintiff applied for disability insurance benefits, alleging an onset date 22 of May 31, 2014. AR2 291-94. Plaintiff’s claim was denied initially, and on reconsideration. 23 AR 216-20 and 222-26. A hearing was held before an Administrative Law Judge (“ALJ”) on 24 October 2, 2017. AR 94-122. On April 3, 2018, the ALJ issued a decision denying Plaintiff’s 25 claim. AR 19-39. The ALJ’s decision became the Commissioner’s final decision when the 26

27 1 Andrew Saul is now the Commissioner of Social Security and substituted as a party. 1 Appeals Council finally denied review, on September 28, 2018. AR 1-4. On September 21, 2018 2 Plaintiff commenced this action for judicial review under 42 U.S.C. §§ 405(g). (See 3 Motion/Application for Leave to Proceed in forma pauperis. (ECF No. 1).) 4 2. The ALJ Decision 5 The ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 6 404.1520. AR 23-38. At step one, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity from the alleged onset date of May 31, 2014 through the date last insured of 8 September 30, 2016. AR 23. At step two, the ALJ found that Plaintiff had medically 9 determinable “severe” impairments of fibromyalgia, sarcoidosis, spinal degenerative disc disease, 10 and obesity as a secondary factor under SSR 02-1p. Id. at 24. She found all other impairments 11 including alleged asthma, headaches affecting vision, scoliosis, sleep disturbance, history of 12 breast mass, left kidney stones, history of remote bilateral knee surgeries, history of remote 13 shoulder surgery, depression, and Von Wollebrand impairment as non-severe. Id. The ALJ 14 assessed the paragraph B criteria as no more than mild limitation. AR 26-28. 15 At step three, the ALJ found that Plaintiff did not have an impairment or combination of 16 impairments that met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subpart P, 17 Appendix 1. Id. at 29. At step four, the ALJ found that Plaintiff has the residual functional 18 capacity to perform light work as defined in 20 CFR 404.1567(b) in that she could lift and carry 19 no more than 10 pounds frequently and twenty pounds occasionally, sit for six hours cumulatively 20 in an eight hour workday, stand/walk for four hours cumulative in an eight hour work day, 21 occasionally climb stairs/ramps, balance, stoop, kneel, crouch, crawl, and reach overhead 22 bilaterally, could not climb ladders, ropes or scaffolds, and avoid all exposure to pulmonary 23 irritants and hazards. Id. at 30. The ALJ found that Plaintiff is capable of performing her past 24 relevant work as a telephone operator and data entry clerk as the positions are generally 25 performed, but not as actually performed. Id. at 38. This work does not require the performance 26 of work-related activities precluded by the claimant’s RFC. Id. Accordingly, the ALJ concluded 27 that Plaintiff was not under a disability at any time from May 31, 2014, through the date last 1 II. DISCUSSION 2 1. Standard of Review 3 Administrative decisions in social security disability benefits cases are reviewed under 42 4 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) 5 states: “Any individual, after any final decision of the Commissioner of Social Security made 6 after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 7 review of such decision by a civil action . . . brought in the district court of the United States for 8 the judicial district in which the plaintiff resides.” The court may enter “upon the pleadings and 9 transcripts of the record, a judgment affirming, modifying, or reversing the decision of the 10 Commissioner of Social Security, with or without remanding the cause for a rehearing.” Id. The 11 Ninth Circuit reviews a decision affirming, modifying, or reversing a decision of the 12 Commissioner de novo. See Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). 13 The Commissioner’s findings of fact are conclusive if supported by substantial evidence. 14 See 42 U.S.C. § 405(g); Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005). However, the 15 Commissioner’s findings may be set aside if they are based on legal error or not supported by 16 substantial evidence. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 17 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Ninth Circuit defines 18 substantial evidence as “more than a mere scintilla but less than a preponderance; it is such 19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 20 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 21 1211, 1214 n.1 (9th Cir. 2005). In determining whether the Commissioner’s findings are 22 supported by substantial evidence, the court “must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the Commissioner’s 24 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see also Smolen v. Chater, 80 25 F.3d 1273, 1279 (9th Cir. 1996). 26 Under the substantial evidence test, findings must be upheld if supported by inferences 27 reasonably drawn from the record. Batson, 359 F.3d at 1193. When the evidence will support 1 See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); Flaten v. Sec’y of Health and Human 2 Serv., 44 F.3d 1453, 1457 (9th Cir. 1995). Consequently, the issue before the court is not whether 3 the Commissioner could reasonably have reached a different conclusion, but whether the final 4 decision is supported by substantial evidence. It is incumbent on the ALJ to make specific 5 findings so that the court does not speculate as to the basis of the findings when determining if the 6 Commissioner’s decision is supported by substantial evidence. Mere cursory findings of fact 7 without explicit statements as to what portions of the evidence were accepted or rejected are not 8 sufficient. Lewin v. Schweiker, 654 F.2d 631, 634 (9th Cir. 1981). The ALJ’s findings “should 9 be as comprehensive and analytical as feasible, and where appropriate, should include a statement 10 of subordinate factual foundations on which the ultimate factual conclusions are based.” Id. 11 2. Disability Evaluation Process 12 The individual seeking disability benefits has the initial burden of proving disability. 13 Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995). To meet this burden, the individual must 14 demonstrate the “inability to engage in any substantial gainful activity by reason of any medically 15 determinable physical or mental impairment which can be expected . . . to last for a continuous 16 period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). More specifically, the individual 17 must provide “specific medical evidence” in support of her claim for disability. 20 C.F.R. § 18 404.1514. If the individual establishes an inability to perform her prior work, then the burden 19 shifts to the Commissioner to show that the individual can perform other substantial gainful work 20 that exists in the national economy. Reddick, 157 F.3d at 721. 21 The ALJ follows a five-step sequential evaluation process in determining whether an 22 individual is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If 23 at any step the ALJ determines that she can make a finding of disability or nondisability, a 24 determination will be made and no further evaluation is required. See 20 C.F.R. § 25 404.1520(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24 (2003). Step one requires the ALJ to 26 determine whether the individual is engaged in substantial gainful activity (“SGA”). 20 C.F.R. § 27 404.1520(b). SGA is defined as work activity that is both substantial and gainful; it involves 1 the individual is engaged in SGA, then a finding of not disabled is made. If the individual is not 2 engaged in SGA, then the analysis proceeds to the step two. Step two addresses whether the 3 individual has a medically determinable impairment that is severe or a combination of 4 impairments that significantly limits her from performing basic work activities. Id. § 5 404.1520(c). An impairment or combination of impairments is not severe when medical and 6 other evidence establishes only a slight abnormality or a combination of slight abnormalities that 7 would have no more than a minimal effect on the individual’s ability to work. Id. § 404.1521; see 8 also Social Security Rulings (“SSRs”) 85-28, 96-3p, and 96-4p.3 If the individual does not have a 9 severe medically determinable impairment or combination of impairments, then a finding of not 10 disabled is made. If the individual has a severe medically determinable impairment or 11 combination of impairments, then the analysis proceeds to step three. 12 Step three requires the ALJ to determine whether the individual’s impairments or 13 combination of impairments meet or medically equal the criteria of an impairment listed in 20 14 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526. If 15 the individual’s impairment or combination of impairments meet or equal the criteria of a listing 16 and the duration requirement (20 C.F.R. § 404.1509), then a finding of disabled is made. 20 17 C.F.R. § 404.1520(h). If the individual’s impairment or combination of impairments does not 18 meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds 19 to step four. 20 Before moving to step four, however, the ALJ must first determine the individual’s 21 residual functional capacity (“RFC”), which is a function-by-function assessment of the 22 individual’s ability to do physical and mental work-related activities on a sustained basis despite 23 limitations from impairments. See 20 C.F.R. § 404.1520(e); see also SSR 96-8p. In making this 24 finding, the ALJ must consider all the relevant evidence, such as all symptoms and the extent to 25

26 3 SSRs constitute the SSA’s official interpretation of the statute and regulations. See Bray v. 27 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009); see also 20 C.F.R. § 402.35(b)(1). They are entitled to some deference as long as they are consistent with the Social Security Act and 1 which the symptoms can reasonably be accepted as consistent with the objective medical 2 evidence and other evidence. 20 C.F.R. § 404.1529; see also SSRs 96-4p and 16-3p. To the 3 extent that statements about the intensity, persistence, or functionally limiting effects of pain or 4 other symptoms are not substantiated by objective medical evidence, the ALJ must evaluate the 5 individual’s statements based on a consideration of the entire case record. The ALJ must also 6 consider opinion evidence in accordance with the requirements of 20 C.F.R. § 404.1527 and 7 SSRs 96-2p, 96-5p, 96-6p, and 06-3p. 8 Step four requires the ALJ to determine whether the individual has the RFC to perform 9 her past relevant work (“PRW”). 20 C.F.R. § 404.1520(f). PRW means work performed either 10 as the individual actually performed it or as it is generally performed in the national economy 11 within the last 15 years or 15 years before the date that disability must be established. In 12 addition, the work must have lasted long enough for the individual to learn the job and performed 13 at SGA. 20 C.F.R. §§ 404.1560(b) and 404.1565. If the individual has the RFC to perform her 14 past work, then a finding of not disabled is made. If the individual is unable to perform any PRW 15 or does not have any PRW, then the analysis proceeds to step five. 16 The fifth and final step requires the ALJ to determine whether the individual is able to do 17 any other work considering her RFC, age, education, and work experience. 20 C.F.R. § 18 404.1520(g). If she is able to do other work, then a finding of not disabled is made. Although the 19 individual generally continues to have the burden of proving disability at this step, a limited 20 burden of going forward with the evidence shifts to the Commissioner. The Commissioner is 21 responsible for providing evidence that demonstrates that other work exists in significant numbers 22 in the national economy that the individual can do. Yuckert, 482 U.S. at 141-42. 23 3. Analysis 24 a. Whether the ALJ Properly Considered Plaintiff’s Subjective 25 Testimony 26 Plaintiff contends that the ALJ failed to give clear and convincing reasons for rejecting 27 her subjective testimony. (ECF No. 16). Specifically, she contends that the ALJ merely 1 after which she improperly discounted Plaintiff’s testimony due to a conservative course of 2 treatment and lack of support from the medical records. (ECF No. 16, 5-13). The Commissioner 3 responds that the ALJ had three reasons for not fully crediting Plaintiff’s testimony including (1) 4 the lack of corroborating objective medical evidence, (2) her conservative treatment history, and 5 (3) admitted capacity to engage in a range of activities of daily living. (ECF No. 20, 10-17). 6 Plaintiff replies that the diagnosis of fibromyalgia does not rely on objective records so her 7 symptom testimony should not have been rejected based on the objective evidence or treatment 8 regimen. (ECF No. 22). 9 While an ALJ must consider a plaintiff’s representations about her symptoms and 10 limitations, her statements about her “pain or other symptoms will not alone establish that” she is 11 disabled. 20 C.F.R. § 404.1529(a). In fact, an “ALJ cannot be required to believe every 12 allegation of [disability], or else disability benefits would be available for the asking, a result 13 plainly contrary to [the Act].” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, 14 absent affirmative evidence that the claimant is malingering, the ALJ’s reasons for rejecting the 15 claimant’s testimony must be clear and convincing. Burrell v. Colvin, 775 F.3d 1133, 1136-37 16 (9th Cir. 2014). Specifically, the ALJ must state why the testimony is unpersuasive and point to 17 what testimony or evidence undermines the claimant’s testimony. See, e.g., Parra v. Astrue, 481 18 F.3d 742, 750 (9th Cir. 2007) (upholding ALJ’s credibility determination when he pointed out 19 numerous lab results that contradicted his subjective complaints); see also Robbins v. Social Sec. 20 Admin., 466 F.3d 880, 884-85 (9th Cir. 2006) (ALJ required to provide a “narrative discussion” 21 and state specific evidence in the record supporting an adverse credibility finding). 22 The ALJ “may not reject a claimant’s subjective complaints based solely on a lack of 23 medical evidence to fully corroborate the alleged severity of pain.” Burch, 400 F.3d at 680. This 24 is because the lack of an objective medical basis is just one factor in evaluating the credibility of a 25 claimant’s testimony and complaints. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 26 (en banc). Moreover, the Court notes that SSR 16-3 clarified that ALJ no longer has to make 27 credibility findings, but rather, evaluate the extent to which the alleged functional limitations and 1 can support either affirming or reversing the ALJ’s decision,” the Court may not substitute its 2 judgment for that of the ALJ’s. Robbins, 466 F.3d at 882. 3 Here, the ALJ considered the contrary objective medical evidence to Plaintiff’s subjective 4 claims. Although the Court understands the nature of fibromyalgia, it does not find that it can 5 second-guess the ALJ’s reasoning for discounting Plaintiff’s testimony under these circumstances 6 because she properly utilized the medical evidence as a relevant factor in the severity assessment. 7 Plaintiff’s examinations showed normal strength, normal gait, and normal range of motion 8 without muscle atrophy. AR 37. The ALJ found that as an overview of the entire relevant period 9 at issue, Plaintiff was provided with conservative measures to address her subjective complaints. 10 Id. The Court is not persuaded that the ALJ was mistaken in utilizing the conservative treatment 11 regimen as a relevant factor in light of a few periods of more aggressive treatment. Additionally, 12 the ALJ noted scans during the relevant adjudicatory period detected only mild abnormalities. 13 AR 33. Thus, the medical treatment in the record conflict with Plaintiff’s claim of disabling level 14 pain and symptoms. See Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003) (pain complaints 15 properly rejected where the ALJ “reasonably noted” evidence that pain had come under control). 16 Further, the ALJ highlighted the fact that there was no medical opinion evidence from an 17 objective treating or examining physician that supported Plaintiff’s allegation that her limitations 18 were disabling prior to her insured status expired. AR 37. As such, the medical opinion evidence 19 supports the ALJ’s finding that Plaintiff’s testimony is inconsistent with the overall record. See 20 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (medical source reports support 21 the ALJ’s determination). 22 Moreover, the ALJ highlighted Plaintiff’s inconsistent statements that undermined the 23 credibility of her claims. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (“ALJ may 24 consider inconsistencies either in the claimant’s testimony or between the testimony and the 25 claimant’s conduct.”); see also Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009) (ALJ 26 properly found claimant “demonstrated better abilities than he acknowledged in his written 27 statements and testimony”). For example, she highlighted that her allegation that she was in a 1 for groceries, drove a car, managed finances, etc. AR 20-30. Plaintiff’s allegation that the ALJ 2 should have further developed the record with respect to Plaintiff’s ability to care for her mother 3 is not persuasive. It does not appear as though this part of the record was inadequate to prevent 4 the ALJ from properly evaluating Plaintiff’s subjective testimony. After a careful review of the 5 ALJ’s evaluation of Plaintiff’s alleged limitations and pain and other symptoms, the Court finds 6 that she complied with SR 16-3 and the Ninth Circuit standard such that it may not substitute its 7 judgment for that of the ALJ’s. See Burch, 400 F.3d at 679. Therefore, the Court concludes that 8 the ALJ’s decision is supported by substantial evidence and free from reversible legal error. 9 III. CONCLUSION AND ORDER 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (ECF No. 11 16) is denied. 12 IT IS FURTHER ORDERED that the Commissioner’s Cross-Motion to Affirm (ECF No. 13 20) is granted. 14 15 DATED: February 6, 2020 16 17 DANIEL J. ALBREGTS 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27