Darrington v. Astrue

Filing 25

ORDER Defendant's decision denying disability insurance benefits (Tr. 59-66) is affirmed. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 1/11/2012. (KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eleanor Jo Darrington, 10 Plaintiff, 11 ORDER vs. 12 No. CV11-0953-PHX-DGC Michael J. Astrue, Commissioner of Social Security Administration, 13 Defendant. 14 15 16 In August 2007, Plaintiff protectively filed an application for disability insurance 17 benefits under Titles II and XVI of the Social Security Act, claiming a disability onset 18 date of January 1, 2008. Doc. 20, at 2. The application was denied initially on March 12, 19 2008, and again upon reconsideration on September 5, 2008. Tr. 71, 78. A hearing 20 before an administrative law judge (“ALJ”) was held on November 20, 2009. Tr. 20-51. 21 The ALJ issued a decision on January 22, 2010, finding that Plaintiff was not disabled 22 because she could perform her past work. Tr. 56-66. This decision became Defendant’s 23 final decision when the Social Security Administration Appeals Council denied review. 24 Tr. 1-5. Plaintiff commenced this action for judicial review pursuant to 42 U.S.C. 25 § 405(g). For the reasons that follow, the Court will affirm Defendant’s decision. 26 I. Background. 27 In December 2007, Plaintiff was examined by Dr. Neil McPhee. Tr. 208. Plaintiff 28 complained of high blood pressure, thyroid disease, severe sclerosis, and right knee 1 arthritis. Id. The examination revealed high blood pressure, severe scoliosis in the mid- 2 spine, tenderness in the shoulders and neck, and a normal range of motion in the 3 extremities and reflexes. Tr. 209. Dr. McPhee opined that Plaintiff could lift 20 pounds 4 occasionally and 10 pounds frequently; stand and walk about four hours in an eight-hour 5 day; sit without limitations; occasionally kneel, crouch, crawl, and climb ramps and 6 stairs; reach and stoop; and could never climb ladders, ropes, or scaffolds. Id. Plaintiff 7 needed to avoid heights and moving machinery. Id. These ratings were compatible with 8 sedentary work. Id. 9 10 In January 2008, Plaintiff’s X-rays revealed dramatic scoliosis and osteoporosis. Tr. 218. 11 In March 2008, Dr. D. K. Varma, a nonexamining state agency physician, 12 reviewed the medical evidence and completed a form agreeing with Dr. McPhee’s 13 assessment. Tr. 222-28. Dr. Varma found that Plaintiff’s pain allegations were credible. 14 Tr. 226. 15 On August 9, 2008, Dr. Keith Cunningham performed a consultative examination 16 of Plaintiff. He observed Plaintiff as she walked to and from the examination room 17 independently and in heels. Tr. 233-34, 238-39. She was able to remove her shoes and 18 walk up and down the hallway without difficulty. Tr. 234, 238. She stood on her heels 19 and toes on each leg independently, and was able to squat and stand, though she did 20 report some knee pain. Id. Plaintiff’s shoulders, elbows, wrists, fingers, and thumbs 21 demonstrated a preserved range of motion. Id. Dr. Cunningham assessed Plaintiff with 22 severe scoliosis and various deformities of the knees with a history of right patella 23 surgery. Id. His report provided ratings consistent with sedentary work. Tr. 235-37. 24 Later in August 2008, Dr. Thomas Disney, a nonexamining state agency 25 physician, performed a physical residual functional capacity assessment. Dr. Disney 26 affirmed that Plaintiff could perform light work with no climbing of ladders, ropes, or 27 scaffolds; no more than occasional climbing of ramps or stairs, kneeling, crouching, or 28 -2- 1 crawling; frequent balancing and stooping, and avoidance of concentrated exposure to 2 extreme heat or cold, wetness, and hazards. Tr. 245-48. Dr. Disney noted that Plaintiff 3 was only partially credible as to the severity of the symptoms alleged because the 4 objective medical evidence did not corroborate her allegations. Tr. 249. 5 A September 2008 X-ray revealed wedging in certain parts of the vertebrae, 6 moderate to severe scoliosis in the lower thoracic spine, no infiltrative or destructive 7 processes, no paraspinous abnormalities, and old partial osteoporotic fractures at certain 8 parts of the vertebrae. Tr. 256-59. Otherwise, the lumbar, thoracic, and cervical spine 9 appeared intact. Id. 10 In October 2008, Plaintiff complained of back pain to treating physician 11 Dr. Edward Song. Tr. 253. Dr. Song’s records indicate that Plaintiff was working for the 12 post office in 1985 when she was thrown forward and had an episode of mechanical low 13 back pain. Id. She complained of constant neck, right shoulder, mid back, and low back 14 pain that grows worse with sitting. Id. She has also had surgery on both knees. Id. 15 Dr. Song diagnosed Plaintiff with scoliosis, osteoporosis, and pathologic facture to the T6 16 and T7 vertebrae. In his discussion, Dr. Song noted that Plaintiff had a complicated 17 problem because of her apparently severe osteoporosis, scoliosis, degenerative disc 18 disease, and compression deformities in her mid-thoracic spine combined with her 19 smoking habit. Tr. 254. Dr. Song explained that with osteoporosis, surgical deformity 20 correction is not possible due to severe risk of instrumentation failure. Id. Surgery 21 would most likely worsen Plaintiff’s problems and would not hold within her 22 osteoporotic bone. Id. Dr. Song explained that Plaintiff’s compression injuries are 23 healed and recommended physical therapy and interventional pain management rather 24 than surgery. Id. 25 Plaintiff began physical therapy in July 2009. She stated that her disability onset 26 date was one year ago. Tr. 317. During her initial evaluation on July 30, 2009, Plaintiff 27 complained of constant pain that prevented her from sleeping and using her right side. 28 -3- 1 Id. She explained that her doctor wanted her to try physical therapy before surgery. Id. 2 After several therapy visits, Plaintiff began tolerating more exercises, feeling less sore 3 and tense, and improving her range of motion in her right shoulder. Tr. 307-16. 4 Plaintiff’s treating physician, Dr. Anikar Chhabra, noted that her motion was 5 improving with physical therapy. Tr. 347. At Plaintiff’s August 5, 2009 appointment, 6 she complained of ongoing pain in her neck, numbness in her right forearm, and aching 7 in her right shoulder. Tr. 339. She reported that her pain “cannot be ignored for any 8 length of time but she is still able to go to work and participate in social activities.” Id. 9 Dr. Chhabra stressed the importance of Plaintiff’s follow up with Dr. Nagul to rule out 10 the possibility of cancer. Tr. 342-43. Dr. Chhabra ordered more lab studies, encouraged 11 continuation of physical therapy, prescribed a trial sample of Ambien to assist with sleep, 12 and affirmed Dr. Song’s conclusion that Plaintiff was not a surgical candidate. Tr. 343- 13 44. 14 On October 2, 2009, Plaintiff had a follow-up visit with Dr. Jonathan Carlson at 15 Arizona Pain Specialists. She had undergone a right-sided C2-C6 medial branch block 16 procedure from which she experienced approximately 50% pain relief. Tr. 322. Plaintiff 17 reported that her pain was “a lot better,” though she continued to experience a “pulling 18 toward the right side” and cramping in her midback. Id. Plaintiff also reported shoulder 19 pain and right hand and wrist pain due to carpal tunnel syndrome. Id. 20 On October 21, 2009, a motor nerve, sensory nerve, and needle EMG examination 21 revealed normal nerve testing of the arms and no electrophysiological evidence of 22 neuropathy, myopathy, or radiolopathy. Tr. 367-68. 23 On November 20, 2009, Plaintiff had a hearing before the ALJ. Tr. 22-51. 24 Plaintiff testified that she stopped working on a regular basis due to pain in her neck, 25 back, hands, and fingers. Tr. 31, 36. She explained that her hands would lock, she would 26 experience numbness, and she would not be able to hold anything. Tr. 41. She testified 27 that she was living with her adult grandchildren who helped her with grooming, and that 28 -4- 1 she was laying down most of the time. Tr. 42, 45. 2 Dr. George Bluth, a vocational expert, also testified at the November 20, 2009 3 hearing. Tr. 46. The ALJ asked Dr. Bluth a hypothetical question: whether an individual 4 in the condition that Dr. Disney reported in Plaintiff’s residual functional capacity 5 assessment (Tr. 244-51) would be able to do any of Plaintiff’s past work. Tr. 47-48. 6 Dr. Bluth responded that an individual with Plaintiff’s condition could do the past work, 7 with the exception of work as a driver and recreational instructor. Tr. 48. Dr. Bluth then 8 testified that an individual limited to occasional reaching, handling, finger, and feeling 9 could not do those jobs. Id. 10 II. Standard of Review. 11 Defendant’s decision to deny benefits will be vacated “only if it is not supported 12 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 13 466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere 14 scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion.” Id. To determine whether substantial 16 evidence supports Defendant’s decision, the Court must review the administrative record 17 as a whole, weighing both the evidence that supports the decision and the evidence that 18 detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is 19 sufficient evidence to support Defendant’s determination, the Court cannot substitute its 20 own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 21 III. Analysis. 22 Plaintiff claims that (1) the ALJ erred by rejecting Plaintiff’s symptom testimony 23 in the absence of clear and convincing reasons for doing so; and (2) the ALJ erred by 24 relying on the opinions of Dr. Cunningham, a one-time consultative examiner, and Dr. 25 Disney, a non-examining state agency reviewer. Plaintiff asks the Court to remand the 26 case for a determination of disability benefits. 27 28 -5- 1 A. Weight Accorded to Plaintiff’s Symptom Testimony. 2 To determine whether a claimant’s testimony regarding subjective pain or 3 symptoms is credible, the ALJ must engage in a two-step analysis. “First, the ALJ must 4 determine whether the claimant has presented objective medical evidence of an 5 underlying impairment ‘which could reasonably be expected to produce the pain or other 6 symptoms alleged.’ The claimant, however, ‘need not show that her impairment could 7 reasonably be expected to cause the severity of the symptom she has alleged; she need 8 only show that it could reasonably have caused some degree of the symptom.’” 9 Lingenfelter v. Astrue, 504 F.3d 1028, 1036-37 (9th Cir. 2007) (citations omitted). 10 “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 11 ALJ can reject the claimant’s testimony about the severity of her symptoms only by 12 offering specific, clear and convincing reasons for doing so.’” Id. at 1037 (citations 13 omitted). 14 In the first step, the ALJ found that “the claimant’s medically determinable 15 impairments could reasonably be expected to cause the alleged symptoms.” Tr. 63. In 16 the second step, the ALJ concluded that “the claimant’s statements concerning the 17 intensity, persistence and limiting effects of these symptoms are not credible to the extent 18 that they are inconsistent with the residual functional capacity assessment.” Id. Given 19 that there is no dispute that Plaintiff’s impairments could reasonably produce the alleged 20 symptoms, and because there is no evidence of malingering, the ALJ was required to 21 present “specific, clear and convincing reasons” for his adverse credibility finding. See 22 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Plaintiff claims that the ALJ erred 23 in the second step by rejecting her testimony without providing clear and convincing 24 reasons for doing so. Doc. 20, at 16. She argues that it is inadequate under the “clear and 25 convincing” standard for the ALJ to discuss the medical evidence without explaining how 26 that evidence undercut her symptom testimony. Doc. 20, at 13-14, 18. 27 Initially, Plaintiff and Defendant both agree that the ALJ committed a clear error 28 -6- 1 by citing evidence that does not exist. Doc. 20, at 18; Doc. 21, at 11, n.7. The ALJ states 2 in his decision that “[t]he vocational expert also testified at the hearing that there is 3 nothing in the medical record regarding treatment notes or objective findings to support a 4 greater limit that [sic] the residual functional capacity.” Tr. 65. The vocational expert, 5 Dr. Bluth, did not give such testimony at Plaintiff’s hearing, yet the ALJ “finds this 6 [nonexistent] testimony credible, and further finds the claimant’s testimony regarding 7 extreme restrictions of activities of daily living . . . is not credible. Indeed, the claimant 8 simply appears to have little incentive to work.” Id. The Court concludes that this 9 reason, out of several that the ALJ offers to support his adverse credibility finding, is 10 invalid. It must determine whether the ALJ’s reliance on this reason was harmless error. 11 See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004) 12 (applying a harmless error standard where one of the ALJ’s several reasons supporting an 13 adverse credibility finding was held invalid). “So long as there remains ‘substantial 14 evidence supporting the ALJ’s conclusions on . . . credibility’ and the error ‘does not 15 negate the validity of the ALJ’s ultimate [credibility] conclusion,’ such is deemed 16 harmless and does not warrant reversal.” Carmickle v. Comm’r of Soc. Sec. Admin., 17 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Batson, 359 F.3d at 1197). The relevant 18 inquiry for the Court is not whether the ALJ would have made a different decision absent 19 the error, but whether the ALJ’s decision remains legally valid despite the error. Id. 20 The ALJ found that Plaintiff’s statements concerning the intensity, persistence, 21 and limiting effects of her symptoms were not credible because the medical record 22 demonstrated that Plaintiff’s symptoms did not prevent her from performing basic work 23 functions. Tr. 63. In support of his conclusion, the ALJ cited the January 2008 X-rays 24 that showed dramatic scoliosis and osteoporosis in the dorsal spine but a normal cervical 25 spine, and the August 2008 X-rays that showed no infiltrative or destructive processes, no 26 paraspinous abnormalities, no acute lesions, and a normal thoracic cord. Id. at 63-64. In 27 October 2009, a motor nerve, sensory nerve, and needle EMG examination showed no 28 -7- 1 electrophysiological evidence of neuropathy, myopathy, or radiculopathy. Id. at 64. The 2 ALJ also considered the reports of Drs. Cunningham and Disney, who both concluded 3 that Plaintiff would be able to perform light work with some limitations. Id. at 64-65. He 4 noted that Dr. Disney found Plaintiff only “partially credible” because the objective 5 medical evidence did not corroborate her allegations regarding the extent of her 6 restrictions. Id. at 65. 7 Plaintiff’s medical record alone is an insufficient basis for discrediting her 8 testimony. This Circuit has held that an ALJ may not reject a claimant’s subjective 9 complaints based solely on lack of objective medical evidence to fully corroborate the 10 alleged severity of the pain. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Here, 11 the ALJ did not rely solely on the objective medical record. 12 inconsistencies in Plaintiff’s testimony and her statements to her treating and evaluating 13 doctors. See Moisa, 367 F.3d at 885 (listing conflicts between a claimant’s testimony and 14 her conduct, or internal contradictions in testimony, as examples of findings that would 15 allow a reviewing court to conclude that an ALJ rejected the testimony on permissible 16 grounds). When she began physical therapy in July 2009, Plaintiff admitted that her 17 symptoms began a year before, not in 2005 as she had initially alleged. Tr. 64. She 18 claimed that her doctor wanted her to try physical therapy before surgery, but Dr. Song 19 had concluded that Plaintiff was not a surgery candidate. Id. Dr. Chhabra, Plaintiff’s 20 treating physician, observed that Plaintiff’s motion improved with therapy, despite 21 Plaintiff’s testimony at the hearing that physical therapy caused her to “cramp up.” Id. 22 Plaintiff had also reported a history of osteoporosis, but did not report ongoing 23 muscoskeletal pain, and had stopped taking Fosamax without requesting or requiring new 24 medication for her back and joints. Id.; see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 25 1989) (“Another such form of evidence [sufficient to discredit an allegation of disabling 26 excess pain] is an unexplained, or inadequately explained, failure to seek treatment or 27 follow a prescribed course of treatment.”). At an August 5, 2009 examination with 28 -8- He also considered 1 Dr. Carlson, Plaintiff reported that “[h]er pain cannot be ignored for any length of time 2 but she is still able to go to work and participate in social activities.” Tr. 64, 339. This 3 statement contradicts Plaintiff’s testimony that she had stopped working on a regular 4 basis due to her pain and that her hands would lock, she would experience numbness, and 5 she would not be able to hold anything. Tr. 31, 36, 41. These are not the kinds of 6 general findings that this Circuit has held insufficient. Reddick v. Chater, 157 F.3d 715, 7 722 (9th Cir. 1998). The ALJ specifically identified the testimony that is not credible and 8 the evidence that undermines Plaintiff’s complaints. Id. 9 In light of Plaintiff’s medical record and the inconsistencies in her statements, the 10 ALJ concluded that Plaintiff’s testimony regarding the intensity, persistence, and limiting 11 effects of her symptoms was not credible. The Court finds that despite the ALJ’s clear 12 error in citing to nonexistent testimony, the ALJ’s decision remains legally valid. The 13 ALJ has put forth other substantial evidence to support his conclusion on Plaintiff’s 14 credibility. 15 conclusion. Where, as here, the ALJ has made specific findings justifying a decision to 16 disbelieve the Plaintiff’s symptom testimony, and those findings are supported by 17 substantial evidence in the record, the Court will not second-guess that decision. See 18 Bowen, 885 F.2d at 604. The Court concludes that the ALJ did not err in rejecting 19 Plaintiff’s symptom testimony. The error is harmless because it does not negate the validity of his 20 B. Weight Accorded to Consultative and Non-Examining Physicians. 21 Plaintiff argues that the ALJ erred by relying on the opinion of a one-time 22 consultative examiner, Dr. Cunningham, and an assessment form completed by a non- 23 examining state agency reviewer, Dr. Disney. Doc. 20, at 21. The ALJ gave “great 24 weight” to these opinions in reaching his conclusion that Plaintiff had the residual 25 functional capacity to perform light work. Tr. 65. 26 The Court disagrees with Plaintiff’s assertion that Defendant may rely on the 27 opinions of non-examining physicians only in cases where those physicians testified at a 28 -9- 1 hearing and were subject to cross-examination. Doc. 20, at 24. While this Circuit held in 2 Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 3 (9th Cir. 1999), that “[o]pinions of a nonexamining, testifying medical advisor may serve 4 as substantial evidence when they are supported by other evidence in the record and are 5 consistent with it,” it did not specify that testifying was a mandatory component. The 6 Circuit has allowed opinions of non-treating or non-examining physicians as substantial 7 evidence when the opinions are consistent with independent clinical findings or other 8 evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 9 Plaintiff argues that Dr. Cunningham’s report was not substantial evidence 10 because the report does not evince a review of Plaintiff’s background medical records, 11 including the X-rays showing that she had scoliosis. Doc. 20, at 22; Tr. 218. Defendant 12 responds that it is irrelevant whether Dr. Cunningham reviewed the X-rays because 13 Plaintiff does not argue that they would have changed his opinion. Doc. 21, at 14. 14 Dr. Cunningham’s August 9, 2008 report lists scoliosis as part of Plaintiff’s past medical 15 history, and a physical examination confirmed that Plaintiff had “fairly dramatic 16 scoliosis.” 17 consultative examinations because the report does take into account Plaintiff’s medical 18 history. 19 examination “should include” a “description, and disposition, of pertinent ‘positive’ and 20 ‘negative’ detailed findings based on the history, examination and laboratory tests related 21 to the major complaint(s)” and the “results of laboratory and other tests (e.g., X-rays)”). 22 The Court disagrees with Plaintiff’s argument that the ALJ’s reliance on Dr. 23 Cunningham’s report was “egregious” (Doc. 20, at 22) since Plaintiff has not alleged or 24 shown inconsistencies between Plaintiff’s medical record and Dr. Cunningham’s 25 findings. 26 27 Tr. 233-34. The Court finds that the report meets the standards for See 20 C.F.R. § 404.1519n(c)(3)-(4) (stating that a complete consultative Plaintiff also argues that the ALJ improperly relied on Dr. Disney’s assessment because he was a non-examining physician. 28 - 10 - Doc. 20, at 23. A non-examining 1 physician’s assessment may properly support a decision when other independent 2 evidence supports those assessments. See Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 3 1999). Although Dr. Disney did not independently evaluate Plaintiff, he reviewed the 4 medical record and gave an assessment that is consistent with Dr. Cunningham’s. 5 Compare Tr. 241-42 with Tr. 245-51 (both concluding that Plaintiff could occasionally 6 lift or carry 20 pounds, frequently lift or carry approximately ten pounds, stand or walk 7 for at least two hours, and sit for approximately six hours in a work day). Dr. Disney 8 listed demineralization of the dorsal spine as evidence in support of his conclusions 9 (Tr. 246), which echoes the results of Plaintiff’s January 2008 X-rays (Tr. 218). The 10 Court disagrees with Plaintiff’s argument that Dr. Disney did not give an explanation for 11 how the medical evidence failed to corroborate her symptom testimony. Doc. 20, at 23; 12 Tr. 249 (“Medical objective evidence does not corroborate claimant’s allegations.”). 13 Dr. Disney noted Plaintiff’s scoliosis and deformities in her knees, but weighed this 14 evidence against other evidence that Plaintiff walked without difficulty, could sit 6-8 15 hours, and did not need an assistive device. Tr. 246. 16 Drs. Disney’s and Cunningham’s assessments are consistent with other evidence 17 in the record, including Plaintiff’s X-rays and earlier assessments by Drs. McPhee and 18 Varma. “Generally, the more consistent an opinion is with the record as a whole, the 19 more weight we will give to that opinion.” 20 C.F.R. § 404.1527(d)(4). The ALJ gave 20 great weight to Drs. Cunningham’s and Disney’s opinions because they “agree with the 21 objective findings in the record.” Tr. 65. The Court concludes that the medical record 22 supports Drs. Cunningham’s and Disney’s opinions and that the ALJ reasonably found 23 that those opinions were entitled to great weight. 24 IT IS ORDERED: 25 1. 26 Defendant’s decision denying disability insurance benefits (Tr. 59-66) is affirmed. 27 28 - 11 - 1 2. The Clerk is directed to terminate this action. 2 Dated this 11th day of January, 2012. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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