Murphy v. Astrue

Filing 30

ORDER: The Commissioner's decision denying Plaintiff benefits in this case is AFFIRMED. The Clerk of Court is directed to terminate this action. IT IS FURTHER ORDERED that the 29 parties' Joint Inquiry Regarding Status is DENIED as moot. Signed by Magistrate Judge Bridget S Bade on 11/6/2013. (See attached PDF for complete information)(ALS)

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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 Erin K Murphy, No. CV-12-02244-PHX-BSB Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Erin K. Murphy seeks judicial review of the final decision of the 16 Commissioner of Social Security (the Commissioner) denying her applications for 17 disability insurance benefits and supplemental security income benefits under the Social 18 Security Act (the Act). The parties have consented to proceed before a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with 20 Local Rule of Civil Procedure 16.1. For the following reasons, the Court affirms the 21 Commissioner’s decision. 22 I. Procedural History 23 In July 2009, Plaintiff applied for disability insurance benefits, 42 U.S.C. § 401- 24 34, and supplemental security income, 42 U.S.C. § 1381-83c, under Titles II and XVI of 25 the Act. (Tr. 209-23.)1 Plaintiff alleged that she became disabled on October 31, 2005 26 due to posttraumatic stress disorder (PTSD), fibromyalgia, and chronic fatigue. (Tr. 260- 27 28 1 Citations to “Tr.” are to the certified administrative transcript of record located at docket 20. 1 61.) After the Commissioner denied Plaintiff’s claims at the initial and reconsideration 2 levels, she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 108-09, 3 144-47, 110-43, 162-64.) The ALJ conducted a hearing and issued a decision on October 4 7, 2011 denying Plaintiff’s claims. (Tr. 25-47.) 5 The ALJ’s decision became the final decision of the Commissioner when the 6 Social Security Administration Appeals Council denied Plaintiff’s request for review. 7 (Tr. 5-11.); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals 8 Council). Plaintiff exhausted the administrative review process and timely appealed the 9 Commissioner’s final determination pursuant to 42 U.S.C. § 405(g) by filing a Complaint 10 with this Court. 11 II. The record includes the following evidence regarding Plaintiff’s physical and 12 13 Medical Record mental impairments. A. 14 Physical Impairments 1. 15 Michael J. Fairfax, D.O. 16 Michael J. Fairfax, D.O., a rheumatologist, treated Plaintiff between September 17 20, 2006 and November 27, 2006. (Tr. 337-55.) During his initial assessment of 18 Plaintiff, Dr. Fairfax obtained a history of Plaintiff’s musculoskeletal pain and conducted 19 a physical examination. (Tr. 345-46.) Dr. Fairfax diagnosed fibromyalgia. (Tr. 346.) 20 He found tender points “over multiple major muscle bursal and tendon groups.” 21 (Tr. 347.) On November 27, 2006, Dr. Fairfax again assessed fibromyalgia. (Tr. 349.) 2. 22 Joe K. Gregory, D.O. 23 In July 19, 2007, Plaintiff began treating with Joe Gregory, D.O. (Tr. 440-42.) Dr. 24 Gregory diagnosed chronic fibromyalgia and chronic fatigue syndrome. (Tr. 442.) On 25 August 30, 2007, Dr. Gregory noted that Plaintiff’s fibromyalgia had gotten worse. (Tr. 26 439.) 27 headaches that were aggravated by sitting, walking, and standing. (Tr. 436.) He assessed 28 Plaintiff with chronic fibromyalgia and tension headaches. (Tr. 437.) On November 12, On October 16, 2007, Dr. Gregory treated Plaintiff for “moderately severe” -2- 1 2007, Dr. Gregory described the intensity of Plaintiff’s headaches and muscle pain as 2 “moderate-severe.” (Tr. 434.) On December 18, 2007, Dr. Gregory saw Plaintiff for a 3 follow-up regarding her muscle pain related to fibromyalgia. He noted that Lyrica 4 relieved some of Plaintiff’s pain. (Tr. 432.) Dr. Gregory reported that Plaintiff was also 5 taking Oxycodone, MS Contin, Baclofen, Phenergan, Doxepin, Cymbalta, and Voltaren. 6 (Id.) 7 3. Karen Acevedo-Mogharbel, D.O. 8 Karen Acevedo-Mogharbel, D.O., a primary care physician, treated Plaintiff for 9 fibromyalgia, asthma, chronic pain, kidney disease, chronic fatigue, hypothyroidism, 10 cervicalgia, and a history of deep vein thrombosis from November 20, 2008 through 11 2011. (Tr. 513-25, 695-701, 1121-57.) In August 2010, she completed a “residual 12 functional capacity form” indicating that Plaintiff could: (1) frequently lift and carry up 13 to five pounds, and occasionally lift and carry up to twenty pounds; (2) sit for two hours 14 total in an eight-hour workday; (3) stand for two hours total in an eight-hour workday; 15 (4) walk for three hours total in an eight-hour workday; (5) occasionally climb 16 stairs; (6) never bend, stoop, crouch, kneel, or crawl; and (7) never use her hands for 17 grasping, pushing/pulling, or fine manipulations. (Tr. 808-09.) She found that Plaintiff 18 could not be exposed to unprotected heights, moving machinery, and temperature 19 extremes. (Tr. 809.) She also found that Plaintiff had “severe” pain, fatigue, inability to 20 deal with stress, and cognitive problems. (Tr. 809.) 21 In October 2010, Dr. Acevedo-Mogharbel found that Plaintiff’s severe pain and 22 fatigue limited her to sitting, standing, and walking for no more than two to three hours in 23 an eight-hour workday. 24 September 2, 2011, to Plaintiff’s attorney, Scott Davis, and opined that Plaintiff was 25 unable “to sustain any kind of gainful employment presently or in the future.” (Tr. 1117.) 26 4. (Tr. 1121.) Dr. Acevedo-Mogharbel sent a letter, dated Mesa Pain Management Center 27 On referral from Dr. Acevedo-Mogharbel, between January 8, 2009 and July 7, 28 2010, Plaintiff received treatment at the Mesa Pain Management Center (MPMC) for -3- 1 chronic fibromyalgia pain. (Tr. 541-634; 702-709.) As the ALJ noted, the records from 2 MPMC indicate that Plaintiff received pain management, including epidural injections, to 3 treat her pain. (Tr. 35.) The treatment notes indicate that Plaintiff had a decreased range 4 of motion in her lumbar spine. (Tr. 543, 550, 557, 571, 578. 585, 705.) The majority of 5 the MPMC treatment records indicate that Plaintiff had “adequate” pain control, could 6 function “adequately” or “well,” and could perform all activities of daily living (ADL) 7 and function independently.2 (Tr. 544, 551, 562, 572, 579.) Plaintiff also reported that 8 yoga, muscles relaxers, and pain medication reduced her pain. (Tr. 553, 574.) 9 On March 4, 2009, MPMC records indicate that Plaintiff’s pain control was 10 “barely adequate” and she was functioning “barely adequately.” (Tr. 600.) However, she 11 was able to perform ADLs and function independently. (Id.) On August 9, 2009, 12 Plaintiff reported that her pain control was adequate, and that she was functioning “barely 13 adequately” on her current regimen. (Tr. 558.) Plaintiff, however, could perform ADLs 14 and function independently on that date. (Id.) 5. 15 Daniel Ryklin, M.D. 16 On referral from Dr. Acevedo-Mogharbel, Plaintiff also received treatment from 17 Dr. Ryklin at the Arizona Pain and Spine Institute from July 2010 through 2011. 18 (Tr. 795-96.) In July 2010, Dr. Ryklin found eleven out of eighteen fibromyalgia tender 19 points. (Tr. 798.) He noted that Plaintiff could heel walk, toe walk, perform a full squat, 20 and climb onto the examination table without difficulty. (Id.) In an August 2011 21 treatment note, nurse practitioner Linda Milam found myofascial trigger points. 22 (Tr. 986.) 23 On September 8, 2011, Dr. Ryklin and Nurse Milam jointly completed a “residual 24 functional capacity form” indicating that Plaintiff could: (1) occasionally lift and carry up 25 to five pounds; (2) sit for two hours total in an eight-hour workday; (3) stand for one hour 26 total in an eight hour workday; (4) walk for twenty minutes total in an eight-hour 27 2 28 Plaintiff’s “pain control” was assessed on a scale of “good” “adequate” “barely adequate” or “poor.” (Tr. 544.) Her ability to function was assessed on a scale of “well” “adequately” “barely adequately” or “poorly.” (Id.) -4- 1 workday; (5) very seldom climb stairs; (6) occasionally bend; and (7) never to very 2 seldom stoop, crouch, kneel, or crawl. (Tr. 1118.) They found that Plaintiff should avoid 3 exposure to unprotected heights, moving machinery, and temperature extremes. 4 (Tr. 1119.) They also noted that Plaintiff had “severe” pain, fatigue, and inability to deal 5 with stress. (Id.) In the “remarks” section of the form, Dr. Ryklin and Nurse Milam 6 noted that Plaintiff had recently been discharged from the hospital in August 2011 after 7 “extensive blood clot treatment, which had further limited her functional activity 8 tolerance.” (Tr. 1120.) 9 On September 15, 2011, Nurse Milam wrote a letter to Plaintiff’s attorney 10 confirming the presence of generalized trigger points and opining that Plaintiff “could not 11 tolerate activity to sustain full time work of any kind.” (Tr. 1160.) 12 6. Manuel Abrante, M.D. 13 In late December 2010 and continuing to 2011, Manuel Abrante, M.D., treated 14 Plaintiff for chronic kidney disease, stage III with related deep vein thrombosis and 15 history of hospitalization for acute renal failure. (Tr. 1100-16.) In December 2010, 16 Dr. Abrante noted Plaintiff’s diagnoses of chronic fatigue syndrome and fibromyalgia. 17 (Tr. 1100.) He noted that Plaintiff was “doing pretty well.” (Tr. 1104.) In August 2011, 18 Dr. Abrante noted that Plaintiff felt tired but was otherwise “well.” (Tr. 1101-1102.) 19 7. Stephen Dickstein, M.D. 20 In February 2010, Stephen Dickstein, M.D., a State agency physician, reviewed 21 the medical record and completed a physical residual functional capacity assessment. 22 (Tr. 742-49.) Dr. Dickstein concluded that Plaintiff could: (1) occasionally lift and/or 23 carry twenty pounds; (2) frequently lift and/or carry ten pounds; (3) sit for about six 24 hours in an eight-hour workday, (4) stand and/or walk for about six hours in an eight- 25 hour workday (Tr. 743); (5) Plaintiff could frequently climb ramps and stairs, balance, 26 and stoop; and (6) occasionally climb ladders, ropes, or scaffolds, kneel, crouch, and 27 crawl. (Tr. 744.) Dr. Dickstein found that Plaintiff had no manipulative, visual, or 28 communicative limitations. (Tr. 745-46.) He further found that Plaintiff should avoid -5- 1 concentrated exposure to temperature extremes and environmental pollutants, and should 2 be exposed to heights only occasionally. (Tr. 746.) 3 B. 1. 4 5 Mental Impairments Jonna Krabbenhoft, Psy.D. In January 2010, licensed psychologist Jonna Krabbenhoft, Psy.D., evaluated 6 Plaintiff. 7 otherwise specified (NOS), and post-traumatic stress disorder. (Tr. 717). 8 (Tr. 710-18.) Dr. Krabbenhoft Dr. Krabbenhoft diagnosed Plaintiff with depression not completed a “psychological/psychiatric medical source 9 statement,” indicating that Plaintiff had: (1) no impairment in the ability to remember 10 locations and work-like procedures or understand and remember very short and simple 11 instructions; (2) mild impairment in the ability to understand and remember detailed 12 instructions; (3) no impairment in the ability to carry out very short and simple 13 instructions; (4) mild to moderate impairment in the ability to carry out detailed 14 instructions; (5) mild impairment in the ability to maintain attention and concentration for 15 extended periods, and in the ability to perform activities within a schedule, maintain 16 regular attendance, and be punctual within customary tolerances; (6) no impairment in 17 the ability to sustain an ordinary routine without special supervision, the ability to work 18 in coordination with or proximity to others without being distracted by them, or the 19 ability to make simple work-related decisions; (7) mild to moderate impairment in the 20 ability to complete a normal workday and work week without interruptions from 21 psychologically-based symptoms, and to perform at a consistent pace without an 22 unreasonable number and length of rest periods; (8) no impairment in the ability to 23 interact appropriately with the general public, or the ability to ask simple questions or 24 request assistance; (9) moderate impairment in the ability to accept instructions and 25 respond appropriately to criticism from supervisors, and the ability to get along with co- 26 workers or peers without distracting them or exhibiting behavioral extremes; and (10) no 27 impairment in the ability to maintain socially appropriate behavior, and to adhere to basic 28 standards of neatness and cleanliness. (Tr. 719.) -6- 1 2 2. Randall Garland, Ph.D. In February 2010, State agency psychologist Randall Garland, Ph.D., reviewed the 3 medical record and completed a Psychiatric Review Technique form. (Tr. 728-41.) 4 Dr. Garland found that Plaintiff had: (1) “mild” restriction of activities of daily living; 5 (2) “moderate” difficulties in maintaining social functioning; ( 3) “moderate” difficulties 6 in maintaining concentration, persistence or pace; and (4) no episodes of 7 decompensation. (Tr. 738.) 8 Dr. Garland also completed an assessment of Plaintiff’s mental functional capacity 9 and concluded that she was able to meet the basic demands of competitive, remunerative, 10 unskilled work on a sustained basis, including the ability to: “(1) understand, carry out, 11 and remember simple instructions; (2) make judgments commensurate with the functions 12 of unskilled work, i.e., simple work-related decisions; (3) respond appropriately to 13 supervision, co-workers, and work situations; and (4) deal with changes in a routine work 14 setting.” (Tr. 723-25.) 15 3. Phoenix Interfaith Counseling 16 Plaintiff obtained treatment from Phoenix Interfaith Counseling (PIC) from 2009 17 through 2011. (Tr. 635-94, Tr. 756-71, Tr. 936-82.) The PIC treatment notes include 18 diagnoses of mood disorder and post-traumatic stress disorder. (Tr. 650, 662, 668, 941, 19 982.) The PIC records mainly consist of therapy notes. However, psychiatric progress 20 notes indicate that Plaintiff’s global assessment of functioning (GAF) scores ranged from 21 52, indicating “moderate symptoms,” to 70, indicating “mild symptoms.” (Tr. 651, 665, 22 757, 766-67, 946, 955, 963, 974, 979.) 23 On October 19, 2010, Plaintiff reported that she was trying to work and socialize. 24 (Tr. 969.) On March 9, 2011, Plaintiff reported that her sleep and appetite were good, her 25 anxiety was low, and she was trying to start an online retail business. (Tr. 946.) On 26 March 25, 2011, Plaintiff reported that she was busy getting her business together, 27 scheduling appointments, and completing projects. (Tr. 944.) She indicated that she had 28 more energy and felt less pain. (Id.) -7- 1 III. Administrative Hearing Testimony 2 Plaintiff was in her mid-thirties at the time of the September 2011 administrative 3 hearing. (Tr. 39.) She had a high school education. (Id.) Her last relevant work 4 included sales representative, vocational training instructor, and “tavern manager.” 5 (Tr. 39.) Plaintiff testified that she could not work due to fibromyalgia pain, kidney pain, 6 chronic fatigue, depression, lower disc problems, concentration and memory difficulties, 7 dizziness, nausea, and vomiting. (Tr. 55.) Plaintiff also testified that she had chronic 8 fatigue, an eight on a scale of one to ten, and that she fell asleep unexpectedly several 9 times a week. (Tr. 59-60, 83, 85.) She stated that she usually napped once in morning 10 and once in the afternoon. (Id. at 60.) Plaintiff also testified that she spent ninety percent 11 of every week in her bedroom. (Tr. 90.) 12 Plaintiff testified that her medications made her dizzy and required her to sit with 13 her head between her knees for approximately thirty minutes. (Id. at 63.) She stated that 14 she experienced nausea daily and vomited three times a week. (Id.) Plaintiff also 15 testified that, although she had been in counseling for two years, it had not helped. (Id. at 16 61.) Plaintiff testified that she could sit for ten to fifteen minutes at a time and for two 17 hours total during the day, and stand and walk for five minutes each at a time and for one 18 hour total in an eight hour day. (Tr. 88-89.) Plaintiff testified that she could not lift or 19 carry a gallon of milk. (Tr. 89.) 20 Vocational expert (VE) Kathryn A. Atha also testified at the hearing. (Tr. 28.) 21 The ALJ asked the VE to consider a hypothetical individual who was Plaintiff’s age, with 22 the same education, and work experience. The hypothetical individual had the following 23 limitations: (1) occasionally lift or carry up to twenty pounds; (2) frequently lift or carry 24 ten pounds; (3) frequently climb ramps and stairs, balance, or stoop; (4) occasionally 25 climb ladders, ropes, and scaffolds, kneel, crouch, or crawl; (5) avoid concentrated 26 exposure to extreme cold, extreme heat, fumes, odors, dusts, gases, and poor ventilation; 27 (6) avoid even moderate exposure to hazards, such as moving machinery and unprotected 28 heights; and (7) limited to unskilled, rote, routine work. (Tr. 97.) -8- 1 The ALJ asked whether there were occupations that the hypothetical person could 2 perform. (Tr. 97.) The VE responded that the individual could perform unskilled, light 3 jobs, including garment sorter (Dictionary of Occupational Titles (DOT) 222.687-014) 4 (2,138 jobs in Arizona and 217,783 jobs in the United States); cafeteria attendant (DOT 5 311.677-010) (2,224 jobs in Arizona and 73,703 jobs in the United States); and restaurant 6 cashier (DOT 311.472-010) (22,974 jobs in Arizona and 1,126,369 jobs in the United 7 States). (Tr. 98.) 8 IV. The ALJ’s Decision 9 A claimant is considered disabled under the Act if he is unable “to engage in any 10 substantial gainful activity by reason of any medically determinable physical or mental 11 impairment which can be expected to result in death or which has lasted or can be 12 expected to last for a continuous period of not less than 12 months.” 13 § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (stating nearly identical standard for 14 supplemental security income disability insurance benefits). To determine whether a 15 claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20 16 C.F.R. § 404.1520, 416.920. 42 U.S.C. 17 In the first two steps, a claimant seeking disability benefits must initially 18 demonstrate (1) that he is not presently engaged in a substantial gainful activity, and (2) 19 that his disability is severe. 20 C.F.R. § 404.1520(a) (c). If a claimant meets steps one 20 and two, he may be found disabled in two ways at steps three or four. At step three, he 21 may prove that his impairment or combination of impairments meets or equals an 22 impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 20 C.F.R. 23 pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is presumptively disabled. If 24 not, the ALJ proceeds to step four. At step four, the ALJ determines a claimant’s residual 25 functional capacity. A claimant’s RFC is what he can still do despite existing physical, 26 mental, nonexertional, and other limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 27 n.5 (9th Cir. 1989). A claimant must prove that his RFC precludes him from performing 28 his past work. 20 C.F.R. § 404.1520(a)(4)(iv). Once the claimant has established this -9- 1 prima facie case, the burden shifts to the government at step five to establish that the 2 claimant can perform other jobs that exist in significant number in the national economy, 3 considering the claimant’s RFC, age, work experience, and education. If the government 4 does not meet this burden, then the claimant is considered disabled within the meaning of 5 the Act. Bray v. Comm’r. of Soc. Sec. Admin, 554 F.3d 1219, 1222-23 (9th Cir. 2009). 6 Applying the five-step sequential evaluation process, the ALJ first found that 7 Plaintiff had not performed substantial gainful activity since the October 31, 2005 alleged 8 onset date. (Tr. 30.) At step two, the ALJ found that Plaintiff had the following severe 9 impairments: “fibromyalgia, chronic kidney disease, lumbar degenerative disease, 10 hypertension, asthma, obesity, mood disorder, and posttraumatic stress disorder.” (Id.) 11 At the third step, the ALJ found that Plaintiff did not have an impairment or combination 12 of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. 13 pt. 404, subpt. P, app. 1. (Tr. 31.) 14 At step four, the ALJ found that Plaintiff had the RFC to perform light work as 15 defined in 20 CFR § 404.1567(b) and § 416.967(b). (Id. at 34.) The ALJ explained that 16 Plaintiff could “frequently balance, stoop, and climb ramps and stairs, and occasionally 17 kneel, crouch, crawl, and climb ladders, ropes, and scaffolds.” (Id. at 34-35.) The ALJ 18 further found that Plaintiff should “avoid concentrated exposure to extreme cold, extreme 19 heat, fumes, odors, dusts, gases, and poor ventilation, and even moderate exposure to 20 hazards, such as moving machinery and unprotected heights.” (Id. at 35.) The ALJ also 21 found that Plaintiff was limited to “unskilled, rote, routine work.” (Id.) 22 At step five, the ALJ found that Plaintiff was unable to perform her past relevant 23 work (Tr. 40), but that she could perform other jobs existing in significant numbers in the 24 national economy. (Id.) Thus, the ALJ found that Plaintiff was not disabled within the 25 meaning of the Act. (Id.) 26 V. Standard of Review 27 The district court has the “power to enter, upon the pleadings and transcript of 28 record, a judgment affirming, modifying, or reversing the decision of the Commissioner - 10 - 1 of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. 2 § 405(g). 3 substantial evidence standard. 4 Commissioner’s decision if it is supported by substantial evidence and it is free from 5 legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Ryan v. Comm’r of 6 Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008). 7 The district court reviews the Commissioner’s final decision under the Under this standard the court must affirm the Even if the ALJ erred, however, “[a] decision of the ALJ will not be reversed for 8 errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 9 Substantial evidence means more than a mere scintilla, but less than a preponderance; it 10 is “such relevant evidence as a reasonable mind might accept as adequate to support a 11 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted); see 12 also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). To determine whether 13 substantial evidence supports a decision, the court considers the record as a whole and 14 “may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. 15 Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal quotation and citation omitted). 16 The court also may not “affirm the ALJ’s . . . decision based on evidence that the 17 ALJ did not discuss.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); see also 18 SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (a reviewing court “must judge the 19 propriety of [administrative] action solely by the grounds invoked by the agency” and 20 stating that if “those grounds are inadequate or improper, the court is powerless to affirm 21 the administrative action by substituting what it considers to be a more adequate or 22 proper basis”). 23 The ALJ is responsible for resolving conflicts in testimony, determining 24 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 25 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 26 interpretation, [the court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. 27 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing Andrews, 53 F.3d at 1041) 28 - 11 - 1 VI. Discussion 2 Plaintiff contends that the ALJ erred by rejecting the opinions of Dr. Acevedo- 3 Mogharbel and Dr. Ryklin without providing specific and legitimate reasons and by 4 failing to give clear and convincing reasons for finding Plaintiff’s testimony not credible. 5 (Doc. 23 at 2.) 6 substantial evidence and is free from legal error. (Doc. 26.) The Commissioner asserts that the ALJ’s decision is supported by 7 A. Weight Assigned Medical Source Opinions 8 In weighing medical source evidence, the Ninth Circuit distinguishes between 9 three types of physicians: (1) treating physicians, who treat the claimant; (2) examining 10 physicians, who examine but do not treat the claimant; and (3) non-examining physicians, 11 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 12 1995). Generally, more weight is given to a treating physician’s opinion. Id. The ALJ 13 must provide clear and convincing reasons supported by substantial evidence for 14 rejecting a treating or an examining physician’s uncontradicted opinion. Id; Reddick v. 15 Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ may reject the controverted opinion 16 of a treating or an examining physician by providing specific and legitimate reasons that 17 are supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 18 1216 (9th Cir. 2005); Reddick, 157 F.3d at 725. 19 Opinions from non-examining medical sources are entitled to less weight than 20 treating or examining physicians. Lester, 81 F.3d at 831. Although an ALJ generally 21 gives more weight to an examining physician’s opinion than to a non-examining 22 physician’s opinion, a non-examining physician’s opinion may nonetheless constitute 23 substantial evidence if it is consistent with other independent evidence in the record. 24 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). When evaluating medical 25 opinion evidence, the ALJ may consider “the amount of relevant evidence that supports 26 the opinion and the quality of the explanation provided; the consistency of the medical 27 opinion with the record as a whole; [and] the specialty of the physician providing the 28 opinion . . . .” Orn, 495 F.3d at 631. - 12 - 1 B. Weight Assigned Medical Opinions in this Case 2 Contrary to Plaintiff’s assertion, the ALJ did not err in weighing the medical 3 opinions presented in this case. Based on the record evidence, the ALJ found that 4 Plaintiff had the residual functional capacity to frequently climb ramps and stairs, 5 balance, or stoop, occasionally climb ladders, ropes, and scaffolds, kneel, crouch, or 6 crawl. (Tr. 34-35.) She also found that Plaintiff should “avoid concentrated exposure to 7 extreme cold, extreme heat, fumes, odors, dusts, gases, and poor ventilation,” and that she 8 should avoid “even moderate exposure to hazards, such as moving machinery and 9 unprotected heights.” (Tr. 34.) 10 In making this assessment, the ALJ gave little weight to the Dr. Acevedo- 11 Mogharbel’s and Dr. Ryklin’s functional capacity assessments. (Tr. 33-36.) The ALJ 12 concluded that those opinions were unsupported by the doctors’ treatment notes and by 13 the medical record. (Id.) As discussed below, these are specific and legitimate reasons 14 for giving little weight to Dr. Acevedo-Mogharbel’s and Dr. Ryklin’s functional capacity 15 assessments, which were inconsistent with the functional capacity assessment completed 16 by non-examining agency physician Dickstein and with other record evidence. (Tr. 742- 17 47; Tr. 38 (citing exhibit 16F).)3 1. 18 Dr. Acevedo-Mogharbel 19 Dr. Acevedo-Mogharbel completed two medical source statements opining that, as 20 result of Plaintiff’s severe pain and fatigue, Plaintiff was capable of less than a full range 21 of sedentary work. (Tr. 808-10, Aug. 16, 2010 RFC form; Tr. 1121, Oct. 8, 2010 form.)4 22 On September 2, 2011, Dr. Acevedo-Mogharbel provided a letter to Plaintiff’s attorney, 23 Scott Davis, and opined that Plaintiff could not perform any type of gainful employment. 24 (Tr. 1117.) The ALJ did “not give great weight to those opinions” because they were not 25 3 26 27 28 Administrative hearing exhibit 16F is Dr. Dickstein’s physical residual capacity assessment. (Tr. 742-49.) 4 Dr. Acevedo-Mogharbel’s October 8, 2010 opinion regarding Plaintiff’s functional capacity was completed in relation to Plaintiff’s “application for a discharge of a federal student loan and/or a teaching serve obligation for a federal grant on the basis that he or she has a total and permanent disability.” (Tr. 1121.) - 13 - 1 supported by the overall record evidence, including Dr. Acevedo-Mogharbel’s own 2 treatment notes. (Tr. 35-36.) This finding is free from legal error and is supported by 3 substantial evidence. 4 When Dr. Acevedo-Mogharbel initially examined Plaintiff in November 2008, 5 Plaintiff had a normal gait, full range of motion, normal strength and tone of extremities, 6 and an appropriate mood and affect. (Tr. 523-25.) As the ALJ noted, Dr. Acevedo- 7 Mogharbel’s later treatment notes through August 2011, indicate that Plaintiff had a 8 decreased range of motion with tenderness in the cervical spine, intermittent lower 9 extremity edema, and some abdominal tenderness. However, the majority of 10 Dr. Acevedo-Mogharbel’s treatment notes indicate that Plaintiff’s neurologic, respiratory, 11 cardiovascular, musculoskeletal, and psychiatric findings were normal. (Tr. 36, 513-24, 12 696-99, 1123-49.) For example, in May 2010, she noted that Plaintiff had full range of 13 motion in her spine, a stable gait, full joint range of motion, and “5/5” muscle strength 14 and tone. (Tr. 1142.) 15 Plaintiff argues that in rejecting Dr. Acevedo-Mogharbel’s assessments, the ALJ 16 “ignored the nature of fibromyalgia, the methodology for diagnosing fibromyalgia and 17 the manner of assessing is severity.” (Tr. 23 at 15.) Plaintiff further argues that based on 18 the manner in which fibromyalgia is diagnosed; the ALJ erred in requiring objective 19 evidence of fibromyalgia. (Doc. 23 at 15.) As Plaintiff states, however, the ALJ found 20 that Plaintiff’s fibromyalgia was a severe impairment. (Doc. 23 at 15, Tr. 30.) Contrary 21 to Plaintiff’s assertion, the ALJ did not require objective medical evidence of Plaintiff’s 22 fibromyalgia and considered it a severe impairment. The ALJ did not err in considering 23 the medical records of Plaintiff’s fibromyalgia. 24 2. Dr. Ryklin 25 Plaintiff also asserts that the ALJ erred by not giving “substantial weight” to 26 Dr. Ryklin’s September 8, 2011 opinion that Plaintiff “is unable to perform even 27 sedentary work activity, and has severe pain and fatigue.” 28 than substantial weight to Dr. Ryklin’s assessment, the ALJ noted that Dr. Ryklin’s - 14 - (Tr. 36.) In assigning less 1 September 8, 2011 assessment appeared to be based, at least in part, on Plaintiff’s 2 hospitalization during the previous month for deep vein thrombosis. (Tr. 36 (citing 3 Tr. 1120 Dr. Ryklin’s notation that plaintiff “was discharged from the hospital 8/11/11 4 after extensive blood clot treatment that has further limited her function and activity 5 tolerance.”).) 6 “further” limited her ability to function, that impairment was not expected to remain 7 severe for the requisite twelve continuous months. (Tr. 30-31, 36.) Accordingly, the 8 ALJ did not err in giving little weight to Dr. Ryklin’s assessment to the extent that it was 9 based on Plaintiff’s deep vein thrombosis because, although it “further” limited Plaintiff’s 10 The record indicates that, although Plaintiff’s deep vein thrombosis functional abilities, it was expected to be of limited duration. 11 The ALJ further noted that Dr. Ryklin’s opinion was not supported by his own 12 treatment notes. (Tr. 36.) As the ALJ noted, during the initial July 2, 2010 examination, 13 Dr. Ryklin noted that Plaintiff had eleven of eighteen fibromyalgia tender points. 14 (Tr. 798.) He also noted that Plaintiff could heel walk, toe walk, perform a full squat, and 15 climb onto the examination table without difficulty. 16 indicated that Plaintiff had “5/5” strength bilaterally in her lower extremities, no “focal 17 motor weakness,” intact sensation to light touch and pinprick, and her reflexes were equal 18 and symmetric at the knees and ankles. (Tr. 798.) The record reflects that during 2010 19 follow-up appointments with Nurse Linda Milam, Plaintiff reported decreased range of 20 motion, muscle spasms, and tenderness or pain, but she also consistently reported that her 21 medications controlled her pain “reasonably well” without side effects and that they 22 helped her maintain her functional status and quality of life. (Tr. 1019, 1022, 1024, 1027, 23 1030.) Although Plaintiff reported experiencing “burning pain,” in a final treatment note 24 dated August 1, 2011, she indicated that she had “good relief” from a trigger point 25 injection from the week before. (Tr. 986-87.) 26 3. (Id.) Dr. Ryklin’s notes also The ALJ’s Determination is Supported by Substantial Evidence 27 The ALJ did not err in giving less than substantial weight to the opinions of 28 Dr. Acevedo-Mogharbel and Dr. Ryklin and that determination is supported by - 15 - 1 substantial evidence in the record, which the ALJ discussed in her opinion. The 2 treatment notes of Michael J. Fairfax, D.O., and Joe K. Gregory, D.O., support the ALJ’s 3 determination. As the ALJ noted, Dr. Fairfax examined Plaintiff in September 2006 and 4 diagnosed fibromyalgia. (Tr. 35.) Plaintiff reported that she could carry on normal 5 activities and her physical examination was within normal limits. (Id.) Dr. Fairfax 6 examined Plaintiff again in November 2006 and, although Plaintiff reported worsening of 7 her condition, the examination remained the same. (Id., Tr. 337-55.) Additionally, Joe 8 K. Gregory, D.O., a treating physician, examined Plaintiff in July 2007 and noted that 9 Plaintiff had a normal range of motion without signs of edema or cyanosis. (Tr. 35, 432- 10 42.) In August 2007, Dr. Gregory again noted that Plaintiff had no signs of edema or 11 cyanosis. (Tr. 432-42.) 12 The treatment notes from the Mesa Pain Management Center from 2009 to 2010 13 also support the ALJ’s determination. As the ALJ noted, these records indicated that, 14 although Plaintiff had a decreased range of motion in her lumbar spine, her medications 15 provided “adequate” pain relief, she could function “adequately,” and that she could 16 perform ADLs and function independently. (See Section II.A.4, supra.) Additionally, 17 Dr. Abrante noted that Plaintiff was fatigued, but otherwise doing well (Tr. 1104, 1100- 18 02), and noted that she had a normal gait and station, and no edema or cyanosis of the 19 extremities. (Tr. 1100-1102.) 20 The opinion of non-examining physician Dickstein, which the ALJ gave 21 “persuasive weight,” is consistent with the overall record, including the treatment notes 22 of Dr. Fairfax, Dr. Gregory, Dr. Ryklin, Dr. Acevedo-Mogharbel, and the Mesa Pain 23 Management Center. (Tr. 38.) The ALJ properly gave Dr. Dickstein’s assessment 24 persuasive weight because it is consistent with other evidence in the record. See Thomas, 25 278 F.3d at 957 (stating that “[t]he opinions of non-treating or non-examining physicians 26 may also serve as substantial evidence when the opinions are consistent with independent 27 clinical findings or other evidence in the record”); Tonapetyan v. Halter, 242 F.3d 1144, 28 1149 (9th Cir. 2001) (same). - 16 - 1 In summary, the ALJ did not err in assigning less than substantial weight to the 2 opinions of Dr. Acevedo-Mogharbel and Dr. Ryklin and the ALJ’s determination is 3 supported by substantial evidence in the record. 4 (substantial evidence is “such relevant evidence as a reasonable mind might accept as 5 adequate to support a conclusion.”). 6 7 C. See Richardson, 402 U.S. at 401 Plaintiff’s Credibility 1. The Two-Step Analysis 8 Plaintiff also asserts that the ALJ erred in finding her testimony less than credible. 9 An ALJ engages in a two-step analysis to determine whether a claimant’s testimony 10 regarding subjective pain or symptoms is credible. Lingenfelter v. Astrue, 504 F.3d 1028, 11 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has 12 presented objective medical evidence of an underlying impairment ‘which could 13 reasonably be expected to produce the pain or other symptoms alleged.’” Id. at 1036 14 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). 15 The claimant is not required to show objective medical evidence of the pain itself 16 or of a causal relationship between the impairment and the symptom. Smolen, 80 F.3d at 17 1282. Instead, the claimant must only show that an objectively verifiable impairment 18 “could reasonably be expected@ to produce his pain.” Lingenfelter, 504 F.3d at 1036 19 (quoting Smolen, 80 F.3d at 1282); see also Carmickle v. Comm’r of Soc. Sec., 533 F.3d 20 at 1160B61 (9th Cir. 2008) (“requiring that the medical impairment ‘could reasonably be 21 expected to produce’ pain or another symptom . . . requires only that the causal 22 relationship be a reasonable inference, not a medically proven phenomenon”). 23 Second, if a claimant shows that he suffers from an underlying medical 24 impairment that could reasonably be expected to produce his pain or other symptoms, the 25 ALJ must “evaluate the intensity and persistence of [the] symptoms” to determine how 26 the symptoms, including pain, limit the claimant=s ability to work. 27 C.F.R. § 404.1529(c)(1). In making this evaluation, the ALJ may consider the objective 28 medical evidence, the claimant’s daily activities, the location, duration, frequency, and - 17 - See 20 1 intensity of the claimant’s pain or other symptoms, precipitating and aggravating factors, 2 medication taken, and treatments for relief of pain or other symptoms. 3 C.F.R. § 404.1529(c); Bunnell, 947 F.2d at 346. See 20 4 At this second evaluative step, the ALJ may reject a claimant’s testimony 5 regarding the severity of his symptoms only if the ALJ “makes a finding of malingering 6 based on affirmative evidence,” Lingenfelter, 504 F.3d at 1036 (quoting Robbins v. Soc. 7 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), or if the ALJ offers “clear and 8 convincing reasons” for finding the claimant not credible. Carmickle, 533 F.3d at 1160 9 (quoting Lingenfelter, 504 F.3d at 1036). 10 2. ALJ’s Assessment of Plaintiff’s Credibility 11 The ALJ found that Plaintiff had the residual functional capacity to perform a 12 limited range of light work. (Tr. 33-34.) In making this determination, the ALJ found 13 that Plaintiff’s allegations were “not fully credible with regard to the severity and extent 14 of her limitations.” (Tr. 38.) Because there was no finding of malingering, the ALJ was 15 required to give clear and convincing reasons for finding Plaintiff not credible. 16 Carmickle, 533 F.3d at 1160. Plaintiff asserts that the ALJ failed to give clear and 17 convincing reasons for rejecting her testimony. (Doc. 23 at 14.) 18 Contrary to Plaintiff’s assertion, the ALJ did not err in assessing Plaintiff’s 19 credibility, and the ALJ supported her findings that Plaintiff’s limitations were less 20 serious than alleged with clear and convincing reasons. See Nyman v. Heckler, 779 F.2d 21 528, 531 (9th Cir. 1986) (stating that the reviewing court gives great weight to the ALJ’s 22 credibility determination.) 23 The ALJ noted that in March 2011, Plaintiff was attempting to start an online 24 retail business. (Tr. 38.) Additionally, as the ALJ noted, client progress notes from 25 Phoenix Interfaith Counseling indicate that Plaintiff was busy “getting her business 26 together, scheduling appointments, and finishing projects.” (Tr. 38, Tr. 936, 937, 942, 27 944-46, 948, 950, 954, 959, 967, 969.) In January and April 2011, Plaintiff house sat for 28 a friend. (Tr. 38, Tr. 942, 954.) A client progress note from March 25, 2011, indicates - 18 - 1 that Plaintiff reported “the injections work and that she was not in as much pain” and had 2 “more energy.” (Tr. 38, Tr. 944.) The ALJ properly considered Plaintiff’s activity level, 3 including evidence that she was attempting to work, in assessing her credibility. See 4 Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (the fact that a claimant has sought 5 out employment weighs against a finding of disability); Matney v. Sullivan, 981 F.2d 6 1016, 1020 (9th Cir. 1992) (stating that claimant’s activity level is relevant to assessing 7 subjective complaints); Decker v. Chater., 86 F.3d 953, 955 (10th Cir. 1996) (the fact that 8 claimant regularly exceeded work restrictions imposed by his doctors was relevant to 9 assessing the credibility of his testimony of disabling pain). 10 As the ALJ noted, the record includes inconsistent statements that discredit 11 Plaintiff’s subjective complaints. First, Plaintiff testified during the administrative 12 hearing that she had the Epstein-Barr virus. (Tr. 38, 83-84.) However, as the ALJ noted, 13 the record does not contain such a diagnosis. Additionally, Plaintiff testified that she has 14 to elevate her legs above heart level for two hours daily, and has to wear compression 15 stockings for two years. (Tr. 85-86.) However, this testimony is inconsistent with the 16 recommendations of her treating vascular surgeon. (Tr. 38, Tr. 1097-99 (recommending 17 that Plaintiff wear compression stockings for two years, but not specifying how long 18 Plaintiff should elevate her leg during the day).) The ALJ also noted that Plaintiff 19 testified that her mental health had not improved with counseling, (Tr. 38, Tr. 61), but the 20 record evidence indicated that Plaintiff’s mental health symptoms had improved. 21 (Tr. 936-82.) 22 Additionally, the ALJ noted that although Plaintiff testified that she experienced 23 side effects from her medication, including dizziness, nausea, vomiting, and “sleepiness,” 24 (Tr. 63), the record evidence reflected that those side effects were not as severe as 25 Plaintiff indicated. (Tr. 38, 511-40, 635-94, 695-701, 756-71, 793-805, 936-85, 986- 26 1047, 1122-57.)5 In August, September, October, November, and December 2010, 27 5 28 For example, several treatment notes from Dr. Acevedo-Mogharbel do not indicate that Plaintiff was experiencing any side effects, but that she should “call if any problems with medications and side effects.” (Tr. 1123, 1126, 1128, 1132, 1140, 1143.) - 19 - 1 Plaintiff denied experiencing any side effects from her medication, “such as constipation, 2 nausea, vomiting, or excessive sedation.” (Tr. 1019, 1022, 1024, 1027, 1030.) 3 As part of the overall disability analysis, the ALJ must consider whether there are 4 any inconsistencies in the evidence, such as Plaintiff’s inconsistent statements. See 20 5 C.F.R. § 404.1529(c)(4) (stating that an ALJ must consider “whether there are any 6 inconsistencies in the evidence.”); Social Security Ruling 96-7p, 1996 WL 374186, at *5 7 (stating that a strong indicator of the credibility an individual’s statements is their 8 consistency, both internally and with other information in the record); Webb v. Barnhart, 9 433 F.3d 683, 688 (9th Cir. 2005) (“Credibility determinations do bear on evaluations of 10 medical evidence when an ALJ is presented with conflicting medical opinions or an 11 inconsistency between a claimant’s subjective complaints and his diagnosed condition.”). 12 Thus, the ALJ properly considered Plaintiff’s inconsistent statements and inconsistencies 13 between her statements and the medical record when assessing her credibility. The ALJ 14 provided clear and convincing reasons for discrediting Plaintiff’s testimony. 15 VII. Conclusion 16 The ALJ did not commit legal error in discounting Plaintiff’s testimony regarding 17 the severity of her symptoms or in giving little weight to the assessments of Dr. Acevedo- 18 Mogharbel and Dr. Ryklin, and the record contains substantial evidence in support of the 19 ALJ’s determination that Plaintiff was not disabled. 20 Accordingly, 21 IT IS ORDERED that the Commissioner’s decision denying Plaintiff benefits 22 in this case is AFFIRMED. The Clerk of Court is directed to terminate this action. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// - 20 - 1 2 3 IT IS FURTHER ORDERED that the parties’ Joint Inquiry Regarding Status (Doc. 29) is DENIED as moot. Dated this 6th day of November, 2013. 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 - 21 -

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