Garza v. Astrue

Filing 28

ORDER denying 18 Plaintiff's Motion for Summary Judgment; granting 22 Defendant's Motion for Summary Judgment. Signed by Judge James A Teilborg on 3/23/09.(DMT, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) ) Sylvia Garza,

No. CV 07-1948-PHX-JAT ORDER

Plaintiff appeals the Social Security Commissioner's denial of disability benefits. The Court now rules on Plaintiff Sylvia Garza's Motion for Summary Judgment (Doc. #18) and Defendant Commissioner's Cross Motion for Summary Judgment (Doc. #22). I. Background A. Procedural Background

Plaintiff, Sylvia Garza, filed an application on November 15, 2004 for Supplemental Security and Disability Insurance benefits based on a combination of physical impairments. (Tr. 17). The Agency denied the claim initially and upon reconsideration. On January 31, 2007, an Administrative Law Judge ("ALJ") issued an unfavorable decision after a hearing. (Tr. 14-22). The ALJ's decision became the final decision of the Commissioner on August 11, 2007, when the Appeals Council denied review. (Tr. 7).

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B.

Medical Background

On May 12, 2004, Ms. Garza was treated at Banner Thunderbird Medical Center for low back pain radiating into the buttocks and hips. (Tr. 266-269). An X-ray revealed mostly normal results. The doctor diagnosed her with back pain with joint inflammation and acute lumbosacral strain. (Tr. 266-67, 269). The hospital discharged her after prescribing Ibuprofen and 20 Vicodin with no refills. (Tr. 267, 269). Ms. Garza returned to Banner Thunderbird Medical Center on May 31, 2004 with pain in her back and hips. She reported that her pain might be related to recent cleaning and moving items around the house. Ms. Garza was diagnosed with acute lumbosacral strain and given a prescription for Naprosyn, Vicodin, and Flexeril. (Tr. 268-69). On August 12, 2004, Ms. Garza again sought treatment for low back and hip pain attributed to arthritis. (Tr. 231-32, 256-56a). The doctor ordered an EKG and X-rays of the low back and hips and also prescribed Ibuprofen 600 mg. (Tr. 231-32, 256-56a). The X-rays of the hips came back normal, and the X-rays of the low back revealed lumbar discogenic disease and facet artropathy. (Tr. 248, 260). Ms. Garza received treatment on September 11, 2004 for lumbar back pain and hip pain. Her doctor diagnosed her with osteoarthritis of the hips and the low back. (Tr. 229230, 255, 256a). The doctor also found that Ms. Garza was in the early stage of diabetes and recommended a low fat diet. (Tr. 230, 256a). On September 25, 2004, Ms. Garza's doctor diagnosed osteoarthritis of the hips and low back, degenerative joint disease of the low back, and anxiety. (Tr. 228, 254a). The doctor prescribed Motrin 800 mg and Xanax. (Tr. 227, 254). The doctor also recommended that Ms. Garza continue with weight loss. (Tr. 227-28, 254-54a). On March 26, 2005, Ms. Garza was treated for back and hip pain, with swelling and arthritis. (Tr. 225-26). On examination, there was a decreased range of motion of the back. (Tr. 225-26). The doctor ordered a bone density scan and labs to rule in arthritis. (Tr. 22526). -2-

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Dr. Malcolm McPhee, a specialist in physical medicine and rehabilitation, reviewed Ms. Garza's medical records and performed a consultative examination of her on April 11, 2005. (Tr. 197-201). Dr. McPhee diagnosed Ms. Garza with diffuse myofascial tenderness of the lumbar spine. (Tr. 197-201). Dr. McPhee opined that Ms. Garza could, in particular, lift and carry 50 pounds occasionally and 25 pounds frequently. (Tr. 197-201). Treating records from May 21, 2005, show that Ms. Garza complained of numerous ailments, including: left-sided back and hip pain, headaches, right blurry vision, allergies, fatigue, left ankle pain, and stiffness in the arm. (Tr. 223-24). She was diagnosed with lumbar discogenic disease, metabolic syndrome, previous gallbladder removal, elevated liver function, and radicular pain. (Tr. 223-224). The doctor prescribed Vicodin. (Tr. 224). In June 2005, the results of a bone densitometry came back within normal limits. (Tr. 246). Also in June 20005, an MRI revealed mild central spinal stenosis and mild left-sided neuroforaminal stenosis at L4-S1 and moderate to severe degenerative disc space and small posterior disc protrusion, which did not compromise the spinal canal, at L5-S1. (Tr. 242). In an undated opinion, sent by fax on September 21, 2005, Dr. Wayne Finley, Ms. Garza's treating physician, wrote that Ms. Garza suffered from degenerative disc disease of the lumbar spine and bilateral hip pain. (Tr. 249). Dr. Finley opined, in particular, that Ms. Garza could stand or walk only from 2 to 6 hours a day, could sit less than six hours a day, and could lift 10 pounds occasionally and less than 10 pounds frequently. (Tr. 249-5). In October of 2005, Ms. Garza was treated for mild diabetes mellitus, arthritis, and spinal stenosis. (Tr. 211). The doctor referred her to an orthopedist, but did not believe that referral to a neurologist was appropriate in the absence of radicular symptoms. (Tr. 212). On October 11, an unidentified doctor wrote a one-sentence note on a form that Ms. Garza was "unable to work at this time, secondary to spinal stenosis of back." (Tr. 290)(emphasis added). On November 16, 2005, Dr. Neil McPhee reviewed Ms. Garza's updated treatment records and diagnostic studies and examined Ms. Garza. (Tr. 183-88). Dr. McPhee noted -3-

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that Ms. Garza had received only conservative treatment with Ibuprofen, Tylenol No. 3, and Vicodin. (Tr. 183). On examination, Dr. McPhee found mostly normal results with, in particular, negative straight leg raising test and largely normal ranges of motion, although Ms. Garza complained of low back discomfort with bending and lower back tenderness. (Tr. 184). Dr. McPhee opined that, in an eight-hour work day, Ms. Garza could lift or carry 20 pounds occasionally and 10 pounds frequently. (Tr. 184). He further opined that she would not be restricted in sitting, standing, or walking, as long as she could take breaks hourly for a few minutes. (Tr. 184). On December 5, 2005, a State Agency physician concurred with Dr. McPhee's opinion. On February 17, 2006, Family Nurse Practitioner Emily McWinters referred Ms. Garza to "home health" care for Ms. Garza to receive help with home care. (Tr. 290). On April 25, 2006, Ms. Garza was treated for increased lumbar pain. (Tr. 293). She was prescribed Tylenol No. 3 and Motrin. (Tr. 293). A July 17, 2006 MRI revealed a broad-based right posterior paramedium disc extrusion, which extended into the neural foramen, but no significant neurological problems. (Tr. 295-96). On August 10, 2006, Ms. Garza sought treatment for reported increased lumbar back pain with pain radiating down the left leg. (Tr. 292). On September 12, 2006, Dr. Glen Bair, Ms. Garza's treating orthopedist, reviewed her MRI and made mostly normal findings upon examination. (Tr. 297). In particular, straight leg raising test in the sitting position was not uncomfortable and back range was minimally decreased for reflexes. (Tr. 297). Dr. Bair recommended a home exercise program and weight loss and did not feel that narcotic pain medication was appropriate. (Tr. 297). On January 4, 2007, Ms. Garza consulted with Dr. Amrani at Desert Valley Spine. Dr. Amrani made mostly normal findings on examination, but noted straight leg raising reproduced back pain at 90 degrees on each side. (Tr. 299). Dr. Armani did not believe that surgery was appropriate and referred Ms. Garza to pain management for evaluation. (Tr. -4-

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299). II. Standard of Review A district court: may set aside a denial of disability benefits only if it is not supported by substantial evidence or if it is based on legal error. Substantial evidence means more than a mere scintilla but less than a preponderance. Substantial evidence is relevant evidence, which considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's decision must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation and quotation omitted). This is because "[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Also under this standard, the Court will uphold the ALJ's findings if supported by inferences reasonably drawn from the record. Batson v. Comm'r of the Social Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). However, the Court must consider the entire record as a whole and cannot affirm simply by isolating a "specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)(internal quotation omitted). III. Discussion To qualify for disability benefits under the Social Security Act a claimant must show, among other things, that she is "under a disability." 42 U.S.C. §423(a)(1)(E). The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §423(d)(1)(A). A person is under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.SC. §423(d)(2)(A). -5-

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The Social Security regulations set forth a five-step sequential process for evaluating disability claims. 20 C.F.R. §404.1520; see also Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). A finding of "not disabled" at any step in the sequential process will end the inquiry. 20 C.F.R. §404.1520(a)(4). The claimant bears the burden of proof at the first four steps, but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. The five steps are as follows: 1. First, the ALJ determines whether the claimant is "doing substantial gainful activity." 20 C.F.R. §404.1520(a)(4)(i). If so, the claimant is not disabled. 2. If the claimant is not gainfully employed, the ALJ next determines whether the claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. §404.1520(a)(4)(ii). To be considered severe, the impairment must "significantly limit[] [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §404.1520(c). Basic work activities are the "abilities and aptitudes to do most jobs," for example: lifting; carrying; reaching; understanding, carrying out and remembering simple instructions; responding appropriately to co-workers; and dealing with changes in routine. 20 C.F.R. §404.1521(b). Further, the impairment must either be expected "to result in death" or "to last for a continuous period of twelve months." 20 C.F.R. §404.1509 (incorporated by reference in 20 C.F.R. §404.1520(a)(4)(ii)). The "step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If the claimant does not have a severe impairment, the claimant is not disabled. 3. Having found a severe impairment, the ALJ next determines whether the impairment "meets or equals" one of the impairments listed in the regulations. 20 C.F.R. §404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not, before proceeding to the next step, the ALJ will make a finding regarding the claimant's "residual functional capacity based on all the relevant medical and other evidence in [the] record." 20 C.F.R. §404.1520(e). A claimant's "residual functional capacity" is the most he can do despite all his impairments, including those that are not severe, and any related -6-

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symptoms. 20 C.F.R. §404.1545(a)(1). 4. At step four, the ALJ determines whether, despite the impairments, the claimant can still perform "past relevant work." 20 C.F.R. §404.1520(a)(4)(iv). To make this determination, the ALJ compares its "residual functional capacity assessment . . . with the physical and mental demands of [the claimant's] past relevant work." 20 C.F.R.

§404.1520(f). If the claimant can still perform the kind of work he previously engaged in, the claimant is not disabled. Otherwise, the ALJ proceeds to the final step. 5. At the final step, the ALJ determines whether the claimant "can make an adjustment to other work" that exists in the national economy. 20 C.F.R. §404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant's "residual functional capacity" and his "age, education, and work experience." 20 C.F.R. §404.1520(g)(1). If the claimant can perform other work, he is not disabled. If the claimant cannot perform other work, he will be found disabled. As previously noted, the Commissioner has the burden of proving the claimant can perform other work. Reddick, 157 F.3d at 721. In this case, the ALJ concluded at step four of the sequential process that Ms. Garza was not disabled. The ALJ found that Plaintiff was capable of performing her past relevant sedentary work as a clerical worker, customs service representative/manager, account manager, and typist "because these jobs do not require the performance of work-related activities precluded by the claimant's residual functional capacity." (Tr. 21). The ALJ therefore found that Plaintiff had not been under a "disability" since June 17, 2004 and denied benefits. (Tr. 21-22). On appeal, Plaintiff does not allege the ALJ erred in his findings at steps one through three of the sequential evaluation process. Plaintiff does contend that the ALJ incorrectly assessed her residual functional capacity and erred in finding she could perform her past work. Ms. Garza argues that: 1) the ALJ failed to properly consider her subjective complaint testimony and 2) the ALJ failed to properly weigh the opinions of her treating physicians.

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A.

Subjective Pain Testimony

The ALJ found Ms. Garza's complaints regarding the degree of her pain and impairments "not credible to the extent alleged." (Tr. 21). If a claimant produces objective medical evidence of an underlying impairment, as Ms. Garza did here, then the ALJ cannot reject the claimant's subjective complaints based solely on a lack of objective medical support for the alleged severity of the pain. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). If the ALJ finds the claimant's subjective pain testimony not credible, the ALJ must make findings sufficiently specific to allow the reviewing court to conclude that the ALJ rejected the testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony. Id. at 856-57. If no affirmative evidence of malingering exists, then the ALJ must provide clear and convincing reasons for rejecting the claimant's testimony about the severity of her symptoms. Id. at 857. Because no affirmative evidence of malingering exists, the ALJ had to provide clear and convincing reasons for disbelieving Ms. Garza's reports of the severity of her pain. The ALJ offered the following reasons for not fully crediting Plaintiff's subjective complaints: First, neurological examinations by the consultative examining doctor and by her treating physician were normal. Second, she requires no ambulatory devices. Third, she testified that she now weighs 160 pounds (has lost weight). Fourth, with regard to activities of daily living, she provides care for three minor children, ages three, five, and fifteen. She also drives. Her activities of daily living are consistent with a conclusion that she would be able to perform light work. (Tr. 21). Regarding the ALJ's first reason, "while subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects." Rollins, 261 F.3d at 857 (citing 20 C.F.R. §404.1529(c)(2)). The Court finds the ALJ legitimately considered the lack of corroborating medical evidence for Plaintiff's claimed level of pain. -8-

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The Court finds the ALJ's second reason also supports his credibility determination. Plaintiff testified that on a pain scale of one to ten, with ten being the worst pain, she would rate her average pain at an eight. (Tr. 336). The ALJ noted that Plaintiff does not use any ambulatory devices, such as a cane or any other device, to help her stand up, get in and out of a seat, bed, etc. The ALJ could find that Plaintiff's ability to function without the aid of an ambulatory device is inconsistent with such an extreme pain level. The ALJ's third stated reason for discounting Plaintiff's subjective complaints was that, at 160 pounds, she had lost weight. Without further elaboration, the Court cannot determine the ALJ's reasoning behind that comment. The Court therefore finds that Plaintiff's weight loss is not a clear and convincing reason for doubting her credibility. The ALJ's fourth reason involves a discrepancy between Plaintiff's daily activities and her reported amount of pain. The ALJ noted that Plaintiff cared for her three minor children, ages three, five, and fifteen, and that she could drive. An ability to care for small children and perform housekeeping duties can cut against a claimant's subjective complaints of severe pain. See e.g., Thomas, 278 F.3d at 959; Rollins, 261 F.3d at 857. Although Ms. Garza's testimony was somewhat equivocal about how well she could keep up with her activities without the help of her older children, and the ALJ's interpretation of her testimony might not be the only reasonable interpretation, it is still a reasonable interpretation that is supported by substantial evidence. Rollins, 261 F.3d at 857. It is not the Court's role to second-guess the ALJ. Id. The Court finds that with his first, second, and fourth reasons, the ALJ met his burden of providing clear and convincing reasons for rejecting Plaintiff's subjective pain testimony. The ALJ's reasons were sufficiently specific to allow the Court to determine that the ALJ did not arbitrarily discredit Ms. Garza's testimony. Id. at 856-57.

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B.

Treating Physician Opinions

Plaintiff argues that the ALJ did not attribute sufficient weight to the medical opinions of her treating physicians. By rule, the Social Security Administration favors treating physician opinions over non-treating physicians. Orn, 495 F.3d at 631 (citing 20 C.F.R. §404.1527). In addition, the Administration favors examining physician opinions over opinions of non-examining physicians. Id. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case, then it is given "controlling weight." Id. If a treating physician's opinion is not sufficiently supported by medical evidence and other substantial evidence in the case, however, the ALJ need not give the opinion controlling weight. Id. Further, even when a treating doctor's opinion is given the most weight in a disability case, the opinion is not binding on the ALJ regarding the existence of an impairment or the ultimate determination of disability. Batson, 359 F.3d at 1195. If the treating doctor's opinion is contradicted by another doctor, the ALJ may reject the treating doctor's opinion by giving specific and legitimate reasons for doing so, rather than having to give clear and convincing reasons. Orn, 495 F.3d at 632. An ALJ meets his burden of providing specific and legitimate reasons for rejecting a treating physician's opinion if the ALJ sets out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Id. The Court disagrees with Ms. Garza that Dr. Finley's opinion is entitled to controlling weight. When filling out his Medical Source Statement of Ability to Do Work-Related Activities, Dr. Finley explicitly based his findings and conclusions on Plaintiff's reports of back and hip pain. (Tr. 249-51). An ALJ can give little weight to a treating doctor's opinion when the opinion is based on a claimant's subjective complaints. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Batson, 359 F.3d at 1195. Moreover, the Court has already held that the ALJ properly discredited Plaintiff's subjective pain testimony. The Court finds - 10 -

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that Dr. Finley's assessment of Plaintiff's capabilities is not well-supported by clinical findings and other substantial evidence in the record. Also, nothing in the October 2005 opinion, allegedly by treating physician Dr. Hiler, that Plaintiff "is unable to work at this time"due to spinal stenosis (Tr. 290) contradicts the ALJ's finding. In order for Plaintiff to be under a disability, she must be unable to work for at least twelve months. Nothing about the phrase "at this time" suggests a duration of a year, as required for a disability finding. Morever, this brief note does not have any supporting objective medical evidence. The ALJ therefore did not have to give any significant weight to the notation. See Bayliss, 427 F.3d at 1216 ("[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings."). In addition, treating physician Dr. Amrani's report regarding Plaintiff's MRI does not conflict with the ALJ's residual functional capacity assessment. While noting degenerative disk disease at L4-5 and a small central and right-sided disk bulge at L5-S1, nothing in Dr. Amrani's chart note contradicts the ALJ's determination that Plaintiff could perform sedentary work. (Tr. 299). Moreover, the opinion of one of Plaintiff's treating physicians, Dr. Bair, supports the ALJ's conclusion regarding her functional capacity. After reviewing her most recent MRI, Dr. Bair reported that he was "less impressed than the radiologist." (Tr. 297). Although he reported disc space bulging at L4-5 and L5-S1, he did not believe those conditions could cause leg pain and noted that Superior levels were normal. (Tr. 297). Upon examining Plaintiff, he found that her gait and station were normal, that she could get up on her heels and toes, could squat and rise, and could kick at the level of the waist. (Tr. 297). Dr. Bair found that Plaintiff's back range of motion was only minimally decreased. (Tr. 297). He further noted that Plaintiff could perform a straight leg raise from a sitting position without discomfort. (Tr. 297). In the treatment plan section of his report, Dr. Bair recommended a home exercise program and weight loss, but did not recommend narcotic medications. (Tr. 297). - 11 -

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Finally, the Court disagrees with Plaintiff that the opinions of the treating physicians were uncontradicted. Because their opinions were contradicted by record evidence, the ALJ only had to give specific and legitimate for rejecting the opinions. Orn, 495 F.3d at 632. The Court finds that the ALJ did that by setting out a thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Id. The Court holds that the ALJ properly considered and weighed the medical evidence in this case. Moreover, when the evidence supports either confirming or reversing the ALJ's decision, the Court may not substitute its judgment for that of the ALJ. Batson, 359 F.3d at 1196. Because the ALJ properly discredited Ms. Garza's testimony regarding the level of her pain and properly considered and resolved the conflicts in the medical evidence, the Court will affirm the decision of Commissioner. Consequently, IT IS HEREBY ORDERED GRANTING Defendant Commissioner's Cross Motion for Summary Judgment (Doc. #22). IT IS FURTHER ORDERED DENYING Plaintiff Sylvia Garza's Motion for Summary Judgment (Doc. #18). DATED this 23rd day of March, 2009.

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