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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eleanor Jo Darrington,

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Plaintiff,

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ORDER

vs.

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No. CV11-0953-PHX-DGC

Michael J. Astrue, Commissioner of Social
Security Administration,

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Defendant.

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In August 2007, Plaintiff protectively filed an application for disability insurance

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benefits under Titles II and XVI of the Social Security Act, claiming a disability onset

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date of January 1, 2008. Doc. 20, at 2. The application was denied initially on March 12,

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2008, and again upon reconsideration on September 5, 2008. Tr. 71, 78. A hearing

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before an administrative law judge (“ALJ”) was held on November 20, 2009. Tr. 20-51.

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The ALJ issued a decision on January 22, 2010, finding that Plaintiff was not disabled

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because she could perform her past work. Tr. 56-66. This decision became Defendant’s

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final decision when the Social Security Administration Appeals Council denied review.

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Tr. 1-5. Plaintiff commenced this action for judicial review pursuant to 42 U.S.C.

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§ 405(g). For the reasons that follow, the Court will affirm Defendant’s decision.

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I.

Background.

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In December 2007, Plaintiff was examined by Dr. Neil McPhee. Tr. 208. Plaintiff

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complained of high blood pressure, thyroid disease, severe sclerosis, and right knee

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arthritis. Id. The examination revealed high blood pressure, severe scoliosis in the mid-

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spine, tenderness in the shoulders and neck, and a normal range of motion in the

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extremities and reflexes. Tr. 209. Dr. McPhee opined that Plaintiff could lift 20 pounds

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occasionally and 10 pounds frequently; stand and walk about four hours in an eight-hour

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day; sit without limitations; occasionally kneel, crouch, crawl, and climb ramps and

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stairs; reach and stoop; and could never climb ladders, ropes, or scaffolds. Id. Plaintiff

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needed to avoid heights and moving machinery. Id. These ratings were compatible with

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sedentary work. Id.

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In January 2008, Plaintiff’s X-rays revealed dramatic scoliosis and osteoporosis.
Tr. 218.

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In March 2008, Dr. D. K. Varma, a nonexamining state agency physician,

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reviewed the medical evidence and completed a form agreeing with Dr. McPhee’s

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assessment. Tr. 222-28. Dr. Varma found that Plaintiff’s pain allegations were credible.

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Tr. 226.

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On August 9, 2008, Dr. Keith Cunningham performed a consultative examination

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of Plaintiff. He observed Plaintiff as she walked to and from the examination room

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independently and in heels. Tr. 233-34, 238-39. She was able to remove her shoes and

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walk up and down the hallway without difficulty. Tr. 234, 238. She stood on her heels

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and toes on each leg independently, and was able to squat and stand, though she did

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report some knee pain. Id. Plaintiff’s shoulders, elbows, wrists, fingers, and thumbs

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demonstrated a preserved range of motion. Id. Dr. Cunningham assessed Plaintiff with

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severe scoliosis and various deformities of the knees with a history of right patella

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surgery. Id. His report provided ratings consistent with sedentary work. Tr. 235-37.

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Later in August 2008, Dr. Thomas Disney, a nonexamining state agency

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physician, performed a physical residual functional capacity assessment. Dr. Disney

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affirmed that Plaintiff could perform light work with no climbing of ladders, ropes, or

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scaffolds; no more than occasional climbing of ramps or stairs, kneeling, crouching, or

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crawling; frequent balancing and stooping, and avoidance of concentrated exposure to

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extreme heat or cold, wetness, and hazards. Tr. 245-48. Dr. Disney noted that Plaintiff

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was only partially credible as to the severity of the symptoms alleged because the

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objective medical evidence did not corroborate her allegations. Tr. 249.

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A September 2008 X-ray revealed wedging in certain parts of the vertebrae,

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moderate to severe scoliosis in the lower thoracic spine, no infiltrative or destructive

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processes, no paraspinous abnormalities, and old partial osteoporotic fractures at certain

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parts of the vertebrae. Tr. 256-59. Otherwise, the lumbar, thoracic, and cervical spine

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appeared intact. Id.

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In October 2008, Plaintiff complained of back pain to treating physician

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Dr. Edward Song. Tr. 253. Dr. Song’s records indicate that Plaintiff was working for the

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post office in 1985 when she was thrown forward and had an episode of mechanical low

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back pain. Id. She complained of constant neck, right shoulder, mid back, and low back

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pain that grows worse with sitting. Id. She has also had surgery on both knees. Id.

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Dr. Song diagnosed Plaintiff with scoliosis, osteoporosis, and pathologic facture to the T6

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and T7 vertebrae. In his discussion, Dr. Song noted that Plaintiff had a complicated

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problem because of her apparently severe osteoporosis, scoliosis, degenerative disc

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disease, and compression deformities in her mid-thoracic spine combined with her

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smoking habit. Tr. 254. Dr. Song explained that with osteoporosis, surgical deformity

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correction is not possible due to severe risk of instrumentation failure. Id. Surgery

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would most likely worsen Plaintiff’s problems and would not hold within her

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osteoporotic bone. Id. Dr. Song explained that Plaintiff’s compression injuries are

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healed and recommended physical therapy and interventional pain management rather

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than surgery. Id.

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Plaintiff began physical therapy in July 2009. She stated that her disability onset

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date was one year ago. Tr. 317. During her initial evaluation on July 30, 2009, Plaintiff

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complained of constant pain that prevented her from sleeping and using her right side.

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Id. She explained that her doctor wanted her to try physical therapy before surgery. Id.

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After several therapy visits, Plaintiff began tolerating more exercises, feeling less sore

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and tense, and improving her range of motion in her right shoulder. Tr. 307-16.

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Plaintiff’s treating physician, Dr. Anikar Chhabra, noted that her motion was

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improving with physical therapy. Tr. 347. At Plaintiff’s August 5, 2009 appointment,

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she complained of ongoing pain in her neck, numbness in her right forearm, and aching

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in her right shoulder. Tr. 339. She reported that her pain “cannot be ignored for any

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length of time but she is still able to go to work and participate in social activities.” Id.

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Dr. Chhabra stressed the importance of Plaintiff’s follow up with Dr. Nagul to rule out

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the possibility of cancer. Tr. 342-43. Dr. Chhabra ordered more lab studies, encouraged

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continuation of physical therapy, prescribed a trial sample of Ambien to assist with sleep,

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and affirmed Dr. Song’s conclusion that Plaintiff was not a surgical candidate. Tr. 343-

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44.

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On October 2, 2009, Plaintiff had a follow-up visit with Dr. Jonathan Carlson at

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Arizona Pain Specialists. She had undergone a right-sided C2-C6 medial branch block

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procedure from which she experienced approximately 50% pain relief. Tr. 322. Plaintiff

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reported that her pain was “a lot better,” though she continued to experience a “pulling

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toward the right side” and cramping in her midback. Id. Plaintiff also reported shoulder

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pain and right hand and wrist pain due to carpal tunnel syndrome. Id.

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On October 21, 2009, a motor nerve, sensory nerve, and needle EMG examination

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revealed normal nerve testing of the arms and no electrophysiological evidence of

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neuropathy, myopathy, or radiolopathy. Tr. 367-68.

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On November 20, 2009, Plaintiff had a hearing before the ALJ.

Tr. 22-51.

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Plaintiff testified that she stopped working on a regular basis due to pain in her neck,

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back, hands, and fingers. Tr. 31, 36. She explained that her hands would lock, she would

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experience numbness, and she would not be able to hold anything. Tr. 41. She testified

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that she was living with her adult grandchildren who helped her with grooming, and that

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she was laying down most of the time. Tr. 42, 45.

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Dr. George Bluth, a vocational expert, also testified at the November 20, 2009

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hearing. Tr. 46. The ALJ asked Dr. Bluth a hypothetical question: whether an individual

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in the condition that Dr. Disney reported in Plaintiff’s residual functional capacity

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assessment (Tr. 244-51) would be able to do any of Plaintiff’s past work. Tr. 47-48.

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Dr. Bluth responded that an individual with Plaintiff’s condition could do the past work,

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with the exception of work as a driver and recreational instructor. Tr. 48. Dr. Bluth then

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testified that an individual limited to occasional reaching, handling, finger, and feeling

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could not do those jobs. Id.

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II.

Standard of Review.

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Defendant’s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere

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scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Id. To determine whether substantial

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evidence supports Defendant’s decision, the Court must review the administrative record

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as a whole, weighing both the evidence that supports the decision and the evidence that

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detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is

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sufficient evidence to support Defendant’s determination, the Court cannot substitute its

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own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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III.

Analysis.

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Plaintiff claims that (1) the ALJ erred by rejecting Plaintiff’s symptom testimony

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in the absence of clear and convincing reasons for doing so; and (2) the ALJ erred by

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relying on the opinions of Dr. Cunningham, a one-time consultative examiner, and Dr.

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Disney, a non-examining state agency reviewer. Plaintiff asks the Court to remand the

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case for a determination of disability benefits.

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A.

Weight Accorded to Plaintiff’s Symptom Testimony.

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To determine whether a claimant’s testimony regarding subjective pain or

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symptoms is credible, the ALJ must engage in a two-step analysis. “First, the ALJ must

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determine whether the claimant has presented objective medical evidence of an

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underlying impairment ‘which could reasonably be expected to produce the pain or other

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symptoms alleged.’ The claimant, however, ‘need not show that her impairment could

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reasonably be expected to cause the severity of the symptom she has alleged; she need

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only show that it could reasonably have caused some degree of the symptom.’”

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Lingenfelter v. Astrue, 504 F.3d 1028, 1036-37 (9th Cir. 2007) (citations omitted).

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“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the

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ALJ can reject the claimant’s testimony about the severity of her symptoms only by

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offering specific, clear and convincing reasons for doing so.’” Id. at 1037 (citations

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omitted).

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In the first step, the ALJ found that “the claimant’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms.” Tr. 63. In

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the second step, the ALJ concluded that “the claimant’s statements concerning the

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intensity, persistence and limiting effects of these symptoms are not credible to the extent

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that they are inconsistent with the residual functional capacity assessment.” Id. Given

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that there is no dispute that Plaintiff’s impairments could reasonably produce the alleged

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symptoms, and because there is no evidence of malingering, the ALJ was required to

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present “specific, clear and convincing reasons” for his adverse credibility finding. See

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Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Plaintiff claims that the ALJ erred

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in the second step by rejecting her testimony without providing clear and convincing

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reasons for doing so. Doc. 20, at 16. She argues that it is inadequate under the “clear and

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convincing” standard for the ALJ to discuss the medical evidence without explaining how

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that evidence undercut her symptom testimony. Doc. 20, at 13-14, 18.

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Initially, Plaintiff and Defendant both agree that the ALJ committed a clear error

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by citing evidence that does not exist. Doc. 20, at 18; Doc. 21, at 11, n.7. The ALJ states

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in his decision that “[t]he vocational expert also testified at the hearing that there is

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nothing in the medical record regarding treatment notes or objective findings to support a

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greater limit that [sic] the residual functional capacity.” Tr. 65. The vocational expert,

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Dr. Bluth, did not give such testimony at Plaintiff’s hearing, yet the ALJ “finds this

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[nonexistent] testimony credible, and further finds the claimant’s testimony regarding

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extreme restrictions of activities of daily living . . . is not credible. Indeed, the claimant

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simply appears to have little incentive to work.” Id. The Court concludes that this

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reason, out of several that the ALJ offers to support his adverse credibility finding, is

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invalid. It must determine whether the ALJ’s reliance on this reason was harmless error.

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See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195-97 (9th Cir. 2004)

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(applying a harmless error standard where one of the ALJ’s several reasons supporting an

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adverse credibility finding was held invalid). “So long as there remains ‘substantial

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evidence supporting the ALJ’s conclusions on . . . credibility’ and the error ‘does not

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negate the validity of the ALJ’s ultimate [credibility] conclusion,’ such is deemed

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harmless and does not warrant reversal.” Carmickle v. Comm’r of Soc. Sec. Admin.,

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533 F.3d 1155, 1162 (9th Cir. 2008) (citing Batson, 359 F.3d at 1197). The relevant

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inquiry for the Court is not whether the ALJ would have made a different decision absent

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the error, but whether the ALJ’s decision remains legally valid despite the error. Id.

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The ALJ found that Plaintiff’s statements concerning the intensity, persistence,

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and limiting effects of her symptoms were not credible because the medical record

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demonstrated that Plaintiff’s symptoms did not prevent her from performing basic work

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functions. Tr. 63. In support of his conclusion, the ALJ cited the January 2008 X-rays

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that showed dramatic scoliosis and osteoporosis in the dorsal spine but a normal cervical

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spine, and the August 2008 X-rays that showed no infiltrative or destructive processes, no

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paraspinous abnormalities, no acute lesions, and a normal thoracic cord. Id. at 63-64. In

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October 2009, a motor nerve, sensory nerve, and needle EMG examination showed no

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electrophysiological evidence of neuropathy, myopathy, or radiculopathy. Id. at 64. The

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ALJ also considered the reports of Drs. Cunningham and Disney, who both concluded

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that Plaintiff would be able to perform light work with some limitations. Id. at 64-65. He

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noted that Dr. Disney found Plaintiff only “partially credible” because the objective

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medical evidence did not corroborate her allegations regarding the extent of her

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restrictions. Id. at 65.

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Plaintiff’s medical record alone is an insufficient basis for discrediting her

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testimony. This Circuit has held that an ALJ may not reject a claimant’s subjective

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complaints based solely on lack of objective medical evidence to fully corroborate the

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alleged severity of the pain. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Here,

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the ALJ did not rely solely on the objective medical record.

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inconsistencies in Plaintiff’s testimony and her statements to her treating and evaluating

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doctors. See Moisa, 367 F.3d at 885 (listing conflicts between a claimant’s testimony and

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her conduct, or internal contradictions in testimony, as examples of findings that would

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allow a reviewing court to conclude that an ALJ rejected the testimony on permissible

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grounds). When she began physical therapy in July 2009, Plaintiff admitted that her

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symptoms began a year before, not in 2005 as she had initially alleged. Tr. 64. She

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claimed that her doctor wanted her to try physical therapy before surgery, but Dr. Song

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had concluded that Plaintiff was not a surgery candidate. Id. Dr. Chhabra, Plaintiff’s

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treating physician, observed that Plaintiff’s motion improved with therapy, despite

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Plaintiff’s testimony at the hearing that physical therapy caused her to “cramp up.” Id.

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Plaintiff had also reported a history of osteoporosis, but did not report ongoing

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muscoskeletal pain, and had stopped taking Fosamax without requesting or requiring new

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medication for her back and joints. Id.; see Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

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1989) (“Another such form of evidence [sufficient to discredit an allegation of disabling

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excess pain] is an unexplained, or inadequately explained, failure to seek treatment or

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follow a prescribed course of treatment.”). At an August 5, 2009 examination with

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He also considered

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Dr. Carlson, Plaintiff reported that “[h]er pain cannot be ignored for any length of time

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but she is still able to go to work and participate in social activities.” Tr. 64, 339. This

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statement contradicts Plaintiff’s testimony that she had stopped working on a regular

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basis due to her pain and that her hands would lock, she would experience numbness, and

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she would not be able to hold anything. Tr. 31, 36, 41. These are not the kinds of

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general findings that this Circuit has held insufficient. Reddick v. Chater, 157 F.3d 715,

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722 (9th Cir. 1998). The ALJ specifically identified the testimony that is not credible and

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the evidence that undermines Plaintiff’s complaints. Id.

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In light of Plaintiff’s medical record and the inconsistencies in her statements, the

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ALJ concluded that Plaintiff’s testimony regarding the intensity, persistence, and limiting

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effects of her symptoms was not credible. The Court finds that despite the ALJ’s clear

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error in citing to nonexistent testimony, the ALJ’s decision remains legally valid. The

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ALJ has put forth other substantial evidence to support his conclusion on Plaintiff’s

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credibility.

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conclusion. Where, as here, the ALJ has made specific findings justifying a decision to

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disbelieve the Plaintiff’s symptom testimony, and those findings are supported by

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substantial evidence in the record, the Court will not second-guess that decision. See

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Bowen, 885 F.2d at 604. The Court concludes that the ALJ did not err in rejecting

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Plaintiff’s symptom testimony.

The error is harmless because it does not negate the validity of his

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B.

Weight Accorded to Consultative and Non-Examining Physicians.

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Plaintiff argues that the ALJ erred by relying on the opinion of a one-time

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consultative examiner, Dr. Cunningham, and an assessment form completed by a non-

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examining state agency reviewer, Dr. Disney. Doc. 20, at 21. The ALJ gave “great

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weight” to these opinions in reaching his conclusion that Plaintiff had the residual

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functional capacity to perform light work. Tr. 65.

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The Court disagrees with Plaintiff’s assertion that Defendant may rely on the

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opinions of non-examining physicians only in cases where those physicians testified at a

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hearing and were subject to cross-examination. Doc. 20, at 24. While this Circuit held in

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Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600

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(9th Cir. 1999), that “[o]pinions of a nonexamining, testifying medical advisor may serve

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as substantial evidence when they are supported by other evidence in the record and are

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consistent with it,” it did not specify that testifying was a mandatory component. The

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Circuit has allowed opinions of non-treating or non-examining physicians as substantial

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evidence when the opinions are consistent with independent clinical findings or other

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evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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Plaintiff argues that Dr. Cunningham’s report was not substantial evidence

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because the report does not evince a review of Plaintiff’s background medical records,

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including the X-rays showing that she had scoliosis. Doc. 20, at 22; Tr. 218. Defendant

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responds that it is irrelevant whether Dr. Cunningham reviewed the X-rays because

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Plaintiff does not argue that they would have changed his opinion. Doc. 21, at 14.

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Dr. Cunningham’s August 9, 2008 report lists scoliosis as part of Plaintiff’s past medical

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history, and a physical examination confirmed that Plaintiff had “fairly dramatic

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scoliosis.”

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consultative examinations because the report does take into account Plaintiff’s medical

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history.

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examination “should include” a “description, and disposition, of pertinent ‘positive’ and

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‘negative’ detailed findings based on the history, examination and laboratory tests related

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to the major complaint(s)” and the “results of laboratory and other tests (e.g., X-rays)”).

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The Court disagrees with Plaintiff’s argument that the ALJ’s reliance on Dr.

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Cunningham’s report was “egregious” (Doc. 20, at 22) since Plaintiff has not alleged or

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shown inconsistencies between Plaintiff’s medical record and Dr. Cunningham’s

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findings.

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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.

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Doc. 20, at 23.

A non-examining

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physician’s assessment may properly support a decision when other independent

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evidence supports those assessments. See Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir.

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1999). Although Dr. Disney did not independently evaluate Plaintiff, he reviewed the

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medical record and gave an assessment that is consistent with Dr. Cunningham’s.

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Compare Tr. 241-42 with Tr. 245-51 (both concluding that Plaintiff could occasionally

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lift or carry 20 pounds, frequently lift or carry approximately ten pounds, stand or walk

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for at least two hours, and sit for approximately six hours in a work day). Dr. Disney

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listed demineralization of the dorsal spine as evidence in support of his conclusions

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(Tr. 246), which echoes the results of Plaintiff’s January 2008 X-rays (Tr. 218). The

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Court disagrees with Plaintiff’s argument that Dr. Disney did not give an explanation for

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how the medical evidence failed to corroborate her symptom testimony. Doc. 20, at 23;

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Tr. 249 (“Medical objective evidence does not corroborate claimant’s allegations.”).

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Dr. Disney noted Plaintiff’s scoliosis and deformities in her knees, but weighed this

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evidence against other evidence that Plaintiff walked without difficulty, could sit 6-8

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hours, and did not need an assistive device. Tr. 246.

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Drs. Disney’s and Cunningham’s assessments are consistent with other evidence

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in the record, including Plaintiff’s X-rays and earlier assessments by Drs. McPhee and

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Varma. “Generally, the more consistent an opinion is with the record as a whole, the

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more weight we will give to that opinion.” 20 C.F.R. § 404.1527(d)(4). The ALJ gave

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great weight to Drs. Cunningham’s and Disney’s opinions because they “agree with the

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objective findings in the record.” Tr. 65. The Court concludes that the medical record

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supports Drs. Cunningham’s and Disney’s opinions and that the ALJ reasonably found

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that those opinions were entitled to great weight.

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IT IS ORDERED:

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1.

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Defendant’s decision denying disability insurance benefits (Tr. 59-66) is

affirmed.

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2.

The Clerk is directed to terminate this action.

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Dated this 11th day of January, 2012.

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