Kenner v. Astrue

Filing 18

ORDER, the decision of the Administrative Law Judge is affirmed; the Clerk shall enter judgment accordingly; the judgment shall serve as the mandate of this Court. Signed by Senior Judge James A Teilborg on 7/29/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael Astrue, Commissioner, Social)
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Security Administration,
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Defendant.
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Toniann Kenner,

No. CV 12-0800-PHX-JAT
ORDER

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Pending before the Court is Plaintiff’s appeal from the Administrative Law Judge’s
(“ALJ”) denial of Plaintiff’s Title II application for disability insurance benefits.

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I.

PROCEDURAL BACKGROUND

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Plaintiff Toniann Kenner filed a Title II application for Disability Insurance Benefits

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on October 2, 2008, alleging that her disability began on February 22, 2002. (Record

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Transcript (“TR”) 116).1 Plaintiff was 38 years old at the time of filing her application, and

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listed her illnesses, injuries, and conditions as back, shoulder, neck, and knee pain. (TR 134).

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Plaintiff’s application was denied initially and upon reconsideration. (TR 70, 75). On May

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8, 2009, Plaintiff filed a request for a hearing, and, on December 11, 2009, Plaintiff appeared

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at a video hearing before an ALJ. (TR 80; TR 45). On December 22, 2009, the ALJ issued

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Although both parties indicate that Plaintiff’s application was filed in September
2008, the application itself is dated October 2, 2008. (TR 116).

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an unfavorable decision. (TR 24). On July 25, 2011, the Appeals Council denied Plaintiff’s

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January 11, 2010 request for review. (TR 14; TR 22).

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On April 17, 2012, Plaintiff filed her Complaint for Judicial Review of the ALJ’s

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decision. (Doc. 1). Plaintiff argues that the Court should vacate the Administrative Law

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Decision because: (1) the ALJ erred by rejecting the opinions of treating physicians; and (2)

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the ALJ erred by rejecting Plaintiff’s symptom testimony in the absence of clear and

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convincing reasons for so doing. (Doc. 12).

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II.

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The Commissioner’s decision to deny benefits will be overturned “only if it is not

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supported by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d

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747, 750 (9th Cir. 1989) (internal quotation omitted). Substantial evidence is more than a

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mere scintilla, but less than a preponderance. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir.

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1998). It is such relevant evidence as a reasonable mind might accept as adequate to support

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a conclusion. Id.

LEGAL STANDARD

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In determining whether there is substantial evidence to support a decision, this Court

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considers the record as a whole, weighing both the evidence that supports the administrative

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law judge’s conclusions and the evidence that detracts from the administrative law judge’s

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conclusions. Id. If there is sufficient evidence to support the Commissioner’s determination,

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the Court cannot substitute its own determination for that of the ALJ. Id. Additionally, the

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administrative law judge is responsible for resolving conflicts in medical testimony,

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determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035,

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1039 (9th Cir. 1995). Thus, if on the whole record before this Court, substantial evidence

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supports the Commissioner’s decision, this Court must affirm it. See Hammock v. Bowen,

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879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g).

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A.

Definition of Disability

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To qualify for disability benefits under the Social Security Act, a claimant must show,

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among other things, that he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The Social

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Security Act defines “disability” as the “inability to engage in any substantial gainful activity
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by reason of any medically determinable physical or mental impairment which can be

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expected to result in death or which has lasted or can be expected to last for a continuous

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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A person is “under a disability

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only if his physical or mental impairment or impairments are of such severity that he is not

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only unable to do his previous work but cannot, considering his age, education, and work

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experience, engage in any other kind of substantial gainful work which exists in the national

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economy.” 42 U.S.C. § 423(d)(2)(A).

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B.

Five-Step Evaluation Process

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The Social Security regulations set forth a five-step sequential process for evaluating

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disability claims. 20 C.F.R. § 404.1520; see also Reddick, 157 F.3d at 721 (describing the

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sequential process). A finding of “not disabled” at any step in the sequential process will end

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the ALJ’s inquiry. 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at

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the first four steps, but the burden shifts to the ALJ at the final step. Reddick, 157 F.3d at

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721.

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The five steps are as follows:

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1.

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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.
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If the claimant is not gainfully employed, the ALJ next determines whether the

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claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R.

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§ 404.1520(a)(4)(ii). A severe impairment is one that “significantly limits [the claimant’s]

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physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Basic work

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activities means the “abilities and aptitudes to do most jobs.” 20 C.F.R. § 404.1521(b).

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Further, the impairment must either be expected “to result in death” or “to last for a

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continuous period of twelve months.” 20 C.F.R. § 404.1509 (incorporated by reference in

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20 C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to

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dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

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3.

Having found a severe impairment, the ALJ next determines whether the

impairment “meets or equals” one of the impairments specifically listed in the regulations.
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20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is found disabled without considering the

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claimant’s age, education, and work experience. 20 C.F.R. at § 404.1520(d).

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4.

At step four, the ALJ determines whether, despite the impairments, the

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claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(a)(4)(iv). To make

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this determination, the ALJ compares the “residual functional capacity assessment . . . with

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the physical and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. §

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404.1520(f). If the claimant can still perform the kind of work the claimant previously did,

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the claimant is not disabled. Otherwise, the ALJ proceeds to the final step.

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5.

At the final step, the ALJ determines whether the claimant “can make an

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adjustment to other work” that exists in the national economy.

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404.1520(a)(4)(v). In making this determination, the ALJ considers the claimant’s residual

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functional capacity, together with vocational factors (age, education, and work experience).

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20 C.F.R. § 404.1520(g)(1). If the claimant can make an adjustment to other work, then he

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is not disabled. If the claimant cannot perform other work, he will be found disabled. As

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previously noted, the ALJ has the burden of proving the claimant can perform other

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substantial gainful work that exists in the national economy. Reddick, 157 F.3d at 721.

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III.

20 C.F.R. §

ANALYSIS
A.

Whether the ALJ Erred by Rejecting the Opinions of Treating
Physicians

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Plaintiff first argues that the ALJ erred in assigning only limited weight to the opinion
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of Dr. Bajpai while assigning significant weight to the opinion of Dr. Ani. Plaintiff does not
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appear to object to the assignment of probative weight to the opinion of Dr. Guice. All three
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physicians treated Plaintiff.
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The ALJ must consider all medical evidence in the record. 20 C.F.R. § 404.1527(b).
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“The ALJ is responsible for resolving conflicts in the medical record.” Carmickle v.
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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Such conflicts may arise
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between a treating physician’s medical opinion and other evidence in the claimant’s record.
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A treating physician’s opinion is usually entitled to “substantial weight.” Bray v. Comm’r,
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Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quoting Embrey v. Bowen, 849 F.2d

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418, 422 (9th Cir. 1988)). A treating physician’s opinion is given controlling weight when

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it is “well-supported by medically accepted clinical and laboratory diagnostic techniques and

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is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20

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C.F.R. § 404.1527(d)(2). On the other hand, if a treating physician’s opinion “is not well-

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supported” or “is inconsistent with other substantial evidence in the record,” then it should

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not be given controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

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Substantial evidence that contradicts a treating physician’s opinion may consist of

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either (1) an examining physician’s opinion or (2) a nonexamining physician’s opinion

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combined with other evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). In the

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case of an examining physician, “[w]hen an examining physician relies on the same clinical

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findings as a treating physician, but differs only in his or her conclusions, the conclusions of

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the examining physician are not substantial evidence.” Orn, 495 F.3d at 632 (citing Murray

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v. Heckler, 722 F.2d 499, 501-502 (9th Cir. 1984)). To constitute substantial evidence, the

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examining physician must provide “independent clinical findings that differ from the findings

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of the treating physician.” Id. (citing Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985)).

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Independent clinical findings can be either “diagnoses that differ from those offered by

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another physician and that are supported by substantial evidence, . . . or findings based on

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objective medical tests that the treating physician has not herself considered.” Id. (citing

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Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984); Andrews v. Shalala, 53 F.3d 1035, 1041

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(9th Cir. 1995)).

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“The opinion of a nonexamining physician cannot by itself constitute substantial

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evidence that justifies the rejection of the opinion of either an examining physician or a

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treating physician.” Lester, 81 F.3d at 831. Such an opinion is only substantial evidence if

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supported by “substantial record evidence.” Id.

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If the ALJ determines that a treating physician’s opinion is inconsistent with

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substantial evidence and is not to be given controlling weight, the opinion remains entitled

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to deference and should be weighed according to the factors provided in 20 C.F.R. §
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404.1527(d). Orn, 495 F.3d at 631; SSR 96–2p at 4. These factors include: (1) the length

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of the treatment relationship and the frequency of examination; (2) the nature and extent of

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the treatment relationship; (3) the extent to which the opinion is supported by relevant

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medical evidence; (4) the opinion’s consistency with the record as a whole; and (5) whether

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the physician is a specialist giving an opinion within his specialty. 20 C.F.R. § 404.1527(d).

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If a treating physician’s opinion is not sufficiently supported by medical evidence and

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other substantial evidence in the case, however, the ALJ need not give the opinion

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controlling weight. Orn, 495 F.3d at 631.

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In this case, the record supports the ALJ’s decision to give limited weight to the

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opinion of Dr. Bajpai while assigning significant weight to the opinion of Dr. Ani. The ALJ

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set out a detailed and thorough summary of the facts and conflicting clinical evidence by

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recounting Plaintiff’s testimony and the medical reports of all three treating physicians. After

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discussing Dr. Bajpai’s opinion, the ALJ stated that she found his opinion to be “not

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consistent with the medical evidence of record.” (TR 32). The ALJ further stated, “Dr.

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Bajpai’s own reports fail to reveal the type of significant clinical and laboratory

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abnormalities one would expect if the claimant were in fact disabled and the doctor did not

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specifically address this weakness.” (TR 32). The ALJ did not err in assigning limited weight

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to Dr. Bajpai’s opinion after determining that his opinion was brief and conclusory with few

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clinical findings to support it. Accordingly, the reasons the ALJ gave for assigning limited

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weight to Dr. Bajpai’s opinion were sufficient.

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B.

Whether the ALJ Erred by Rejecting Plaintiff’s Symptom
Testimony in the Absence of Clear and Convincing Reasons

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Plaintiff’s second argument is that the ALJ failed to provide clear and convincing
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reasons for rejecting Plaintiff’s subjective reports regarding her symptoms. Plaintiff objects
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to the ALJ’s determination that her statements concerning the intensity, persistence, and
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limiting effects of the symptoms were not credible to the extent that they were inconsistent
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with the residual functional capacity assessment. Specifically, Plaintiff argues that the ALJ
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erred in finding that the evidence regarding Plaintiff’s role as caretaker of her son
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contradicted Plaintiff’s reported levels of pain. Plaintiff further argues that the ALJ

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improperly found that Plaintiff’s earnings history undermined her credibility. (Doc. 12).

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“Once a claimant produces medical evidence of an underlying impairment which is

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reasonably likely to be the cause of some pain, the ALJ ‘may not discredit a claimant’s

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testimony of pain and deny disability benefits solely because the degree of pain alleged by

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the claimant is not supported by objective medical evidence.’” Orteza v. Shalala, 50 F.3d

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748, 749-750 (9th Cir. 1995) (quoting Bunnell v. Sullivan, 947 F.2d 341, 346-347 (9th Cir.

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1991) (en banc)). The ALJ must make specific findings based on the record for discounting

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a claimant’s subjective complaints. See Savage v. Astrue, No. CV-11-02103, 2013 WL

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551461, at *7 n. 1 (D. Ariz. Feb. 13, 2013).

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There is no question in this case that the ALJ found that there was medical evidence

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of underlying impairments reasonably likely to cause pain. See TR 31 (“the claimant’s

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medically determinable impairments could reasonably be expected to cause the alleged

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symptoms; however, the claimant’s statements concerning the intensity, persistence and

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limiting effects of these symptoms are not credible to the extent they are inconsistent with

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the above residual functional capacity assessment”).

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The question then is whether the ALJ discredited Plaintiff’s subjective reports of pain

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solely because such pain was not supported by objective medical evidence. “Although an

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ALJ ‘cannot be required to believe every allegation of disabling pain,’ the ALJ cannot reject

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testimony of pain without making findings sufficiently specific to permit the reviewing court

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to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza, 50

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F.3d at 750 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The adjudicator

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should consider numerous factors when making such credibility determinations, including

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the nature, location, onset, duration, frequency, radiation, and intensity of any pain;

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precipitating and aggravating factors (e.g., movement, activity, environmental conditions);

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type, dosage, effectiveness, and adverse side-effects of any pain medication; treatment, other

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than medication, for relief of pain; functional restrictions; and the claimant’s daily activities.

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Bunnell, 947 F.2d at 346 (citing SSR 88-13, 1988 WL 236011, July 20, 1988).
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“[I]f the claimant engages in numerous daily activities involving skills that could be

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transferred to the workplace, an adjudicator may discredit the claimant’s allegations upon

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making specific findings relating to the claimant’s daily activities.” Id. (citing Fair, 885 F.2d

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at 603). “An adjudicator may also use ‘ordinary techniques of credibility evaluation’ to test

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a claimant’s credibility.” Id. (internal citation omitted). “So long as the adjudicator makes

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specific findings that are supported by the record, the adjudicator may discredit the

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claimant’s allegations based on inconsistencies in the testimony or on relevant character

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evidence.” Id.

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In this case, the ALJ made specific findings to support her determination that

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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her

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condition were not fully credible and did not prevent her from performing her past relevant

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work, which would not exceed her residual functional capacity to perform light work at a

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maximum specific vocational preparation (SVP) rating of three. In making the credibility

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determination, the ALJ considered the factors required by SSR 88-13.

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The ALJ compared the reports of Plaintiff’s treating physicians with Plaintiff’s own

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reports of her pain, and also examined Plaintiff’s own reports for internal consistency. The

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ALJ concluded that Plaintiff’s subjective reports of her pain were inconsistent with the fact

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that she “was able to care for her four year old son at home, which can be quite demanding

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both physically and emotionally, without any particular assistance on a regular basis.” (TR

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32). Plaintiff objects to this conclusion by pointing to her reports that her mother helped her

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with her son for a few months, that she would at times call her husband home from work to

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help with their son, and that she could not pick up her son once he weighed 10 pounds or

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play with him. (Doc. 12). These reports, however, do not overcome the fact that Plaintiff was

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regularly the only person at home to care for her son.

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The ALJ also noted that Plaintiff worked from 1986 to 2002, but that, during only five

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of those years, did she work at substantial gainful activity. The ALJ found that the earnings

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record “raise[d] a question as to whether [Plaintiff’s] continuing unemployment [was]

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actually due to medical impairments.” Plaintiff objects to this conclusion on the basis that the
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first year the ALJ considered was when Plaintiff was 16 years old and that the conclusion

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drawn “is unfounded and shows bias against lower wage earners.” (Doc. 12). Even if

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Plaintiff’s earnings history from the few years before she reached adulthood are disregarded,

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Plaintiff worked at substantial gainful activity for five out of fourteen or fifteen years. As

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such, the ALJ’s observation was not unfounded nor does it show bias against lower wage

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earners.

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Based on the foregoing, the ALJ did not “discredit a claimant’s testimony of pain and

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deny disability benefits solely because the degree of pain alleged by the claimant was not

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supported by objective medical evidence,” but rather made “specific findings that are

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supported by the record.”

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IV.

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Accordingly, the ALJ did not err in finding that Plaintiff was not disabled within the

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CONCLUSION

meaning of the Social Security Act.

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Based on the foregoing,

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IT IS ORDERED that the decision of the Administrative Law Judge is AFFIRMED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment

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accordingly. The judgment shall serve as the mandate of this Court.
DATED this 29th day of July, 2013.

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