Jolley v. Astrue

Filing 32

ORDER that Defendant's 17 Motion to Remand is granted pursuant to sentence 4 of 42 U.S.C. § 405(g); this case is remanded to the agency and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 3/25/2014.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Tamra Ann Jolley,
Plaintiff,

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vs.

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Carolyn W. Colvin,
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Defendant.
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No. CV 12-2447-PHX-JAT
ORDER

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I.

Defendant’s motion to remand

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As this Court noted in the Order of December 19, 2013:

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Plaintiff in this case applied for and was denied social security disability
benefits. Plaintiff appealed that denial to this Court. On appeal, Defendant
has conceded error and asked this Court to remand to the agency for further
findings. Plaintiff argues that remand should be for an immediate award of
benefits and not for further findings.

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Doc. 24.
The Court ordered supplemental briefing on the parties’ respective positions as
follows:
[T]he motion to remand claims that the Administrative Law Judge (ALJ) erred
in several respects regarding Plaintiff’s mental limitations. Conversely, the
response argues that regardless of the errors the ALJ committed on the mental
limitations, the ALJ’s errors regarding Plaintiff’s physical limitations (as
recounted by her treating physicians, herself, and third parties) alone justify a
remand for award of benefits. Plaintiff then argues that the ALJ’s errors as
admitted by Defendant regarding mental limitations do not justify remand for
a completely new determination on the physical limitations. Again, Defendant
did not file a reply to address any of these arguments.

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Id.
Consistent with the Court’s Order, the parties filed supplemental briefs on the physical

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limitations and whether a remand for a new determination or benefits is appropriate. As
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discussed above, Defendant has moved for remand for the ALJ to properly consider
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Plaintiff’s mental limitation. In the supplemental briefing, Defendant argues that the ALJ’s
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determination that Plaintiff’s physical limitations do not entitle her to benefits should be
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affirmed. However, Defendant states, “In any event, on remand, Plaintiff will receive a de
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novo hearing and will have the opportunity to present all the evidence related to both her
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physical and mental impairments to the ALJ, who will re-evaluate her residual functional
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capacity based on the record as a whole.” Doc. 25 at 7. In her sur-reply, Plaintiff continues
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to argue that based on her physical limitations alone, she is entitled to a remand for an award
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of benefits.
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A.

Plaintiff’s physical limitations

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1.

Treating physicians

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The ALJ can reject the opinion of a treating physician in favor of the conflicting
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opinion of another examining physician “if the ALJ makes ‘findings setting forth specific,
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legitimate reasons for doing so that are based on substantial evidence in the record.’ ”
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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v. Bowen, 881
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F.2d 747, 751 (9th Cir.1989)). Here, Plaintiff argues that the ALJ did not give specific and
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legitimate reasons for discrediting the testimony of Drs. Bhatka, Bernstein, and Yonan. Doc.
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21 at 2.
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Drs. Bhatka and Bernstein diagnosed Plaintiff with degenerative disc disease and
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fibromyalgia. Doc. 21 at 2. The ALJ articulated the following reasons for rejecting these
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diagnoses as disabling:
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1.

A May 2008 normal MRI with no fracture or subluxation or evidence of herniated
disc, spinal stenosis, neural foraminal narrowing, or marrow edem.

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An April 2008 self report of improvement with steroid injections.

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An October 2008 MRI with only mild degenerative change and minimal disc bulge.

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A December 2008 clinical finding of normal gait, and normal walking, negative
Romberg, 3+ reflexes, good range of motion, ability to flex well beyond 90 degrees,
and straight leg raising and hip range of motion being negative.

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A June 2009 physical examination of the musculoskeletal system with no joint pain,
swelling, injury, limitation on motion; no muscle weakness, pain, cramps; and a full
range of motion with good muscle tone and no joint inflammation.

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January 2010 progress notes documented normal gait and station, and Plaintiff had
a full range of motion in all extremities.

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In 2007 through 2009 Plaintiff’s diagnosed fibromyalgia was successfully managed
with medication.

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In 2010, Dr. Bhatka’s own records indicated that fibromyalgia was a past medical
condition, not a current condition.

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Doc. 10-3 at 23-24.
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The ALJ further explicitly discounted Dr. Bhatka’s endorsement of disability because
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Dr. Bhatka’s own treatment notes were consistent with only a mild impairment. Doc. 10-3
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at 28. Finally, the ALJ explicitly reject the disability finding of Nurse Practitioner Leisky,
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which was endorsed by Dr. Bernstein, because the finding that the fibromyalgia was
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disabling was inconsistent with the medical records that showed it was managed and
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improved with pain medication. Doc. 10-3 at 28. The Court finds the above list, together
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with the ALJ’s explicit findings as to these doctors, to be specific and legitimate reasons
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based on substantial evidence of record to the reject the testimony of Drs. Bhatka and
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Bernstein.
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Dr. Yonan diagnosed Plaintiff with pulmonary symptoms, shortness of breath, sleep
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apnea, and hypersomnolence syndrom. Doc. 21 at 2; Doc. 13 at 4. The ALJ articulated the
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following reasons for rejecting these diagnoses as disabling:
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An August 5, 2009 sleep study of claimant failed to demonstrate significant sleep
breathing disorders.

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An August 25, 2009 split night report, Plaintiff’s oxygen intake was assisted by a by
a CPAC mask.

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A September 2009, self report that Plaintiff’s sleep apnea was aided by servo
ventilation.

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By March 2010, Plaintiff’s sleep apnea had improved, with only occasional episodes

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and there was improvement by using the CPAC machine.
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By April 2010, Plaintiff had stopped using the CPAC device, which evidenced that
the sleep apnea had resolved and/or was not disabling.

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In April 2008 and May 2008 exams, Plaintiff’s chest and lungs were normal and clear.

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In August 2008 when Plaintiff had bronchitis, Plaintiff was negative for Sjogren’s
syndrome, various inflammatory markers, pneumonia and infective etiology.

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In September 2008, Plaintiff had only mild shortness of breath and was negative for
hemoptysis and sputum production; Plaintiff’s chest was within normal limits, and her
condition was aided by nebulized medication and a pulmonary functioning test
disclosed only mild abnormality.

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In November 2008 Plaintiff’s pulmonary status was stable and Plaintiff had no
wheezing, coughing, congestion, hemoptysis, respiratory infections, tuberculosis, or
chest wall pain.

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In December 2008, Plaintiff’s lungs were clear to auscultation and pulmonary
function testing revealed only mild bronchial abnormality. By April 2009, Plaintiff
was “doing well” as to her asthma.

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In April 2009, treating physician Bhatka’s notes state that Plaintiff’s respiratory
system was normal and that her lungs were clear to auscultation in all fields with no
rales, rhonchi, or wheezes.

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In August 2009, a pulmonary examination revealed no wheezing, cough, congestion,
hemoptysis, respiratory infections, tuberculosis or chest wall pain.

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In October and November 2009, Dr. Yonan’s own notes document that Plaintiff’s
pulmonary status was stable and that her pulmonary function testing showed no
significant restrictive or obstructive pulmonary pathologies.

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In March 2010, Plaintiff self reported that she was okay and did not have shortness
of breath, wheezing, cough, or congestion and that her asthma was improved.

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A July 2010 treatment record characterized Plaintiff’s pulmonary status as stable.

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Doc. 10-3 at 24-26.
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Finally, the ALJ explicitly discounted Dr. Yonan’s conclusion of disability because
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Dr. Yonan’s own notes consistently established that Plaintiff’s pulmonary status was stable.
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Doc. 10-3 at 28. The Court finds the above list, with the ALJ’s explicit finding as to Dr.
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Yonan, to be specific and legitimate reasons based on substantial evidence of record to reject
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the testimony of Dr. Yonan.
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Accordingly, the Court affirms the ALJ’s decision of non-disability based Plaintiff’s
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physical limitations.

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2.

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An ALJ must engage in a two-step analysis to determine
whether a claimant’s testimony regarding subjective pain or
symptoms is credible. Lingenfelter, 504 F.3d at 1035–36. First,
as a threshold matter, “the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’ ” Id. at 1036
(quoting Bunnell, 947 F.2d at 344). The claimant is not required
to show objective medical evidence of the pain itself or of a
causal relationship between the impairment and the symptom.
Smolen, 80 F.3d 1273, 1282 (9th Cir. 1996). Instead, the
claimant must only show that an objectively verifiable
impairment “could reasonably be expected” to produce the
claimed pain. Lingenfelter, 504 F.3d at 1036 (quoting Smolen,
80 F.3d at 1282); see also SSR 96–7p at 2; Carmickle, 533 F.3d
at 1160–61 (“reasonable inference, not a medically proven
phenomenon”). If the claimant fails this threshold test, then the
ALJ may reject the claimant’s subjective complaints. See,
Smolen, 80 F.3d at 1281 (citing Cotton v. Bowen, 799 F.2d 1403
(9th Cir. 1986) (reaffirmed in Bunnell, 947 F.2d 341)).

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Plaintiff’s subjective complaints

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Second, if the claimant meets the first test, then the ALJ “ ‘may
not discredit a claimant’s testimony of pain and deny disability
benefits solely because the degree of pain alleged by the
claimant is not supported by objective medical evidence.’ ”
Orteza v. Shalala, 50 F.3d 748, 749–750 (9th Cir. 1995)
(quoting Bunnell, 947 F.2d at 346–47). Rather, “unless an ALJ
makes a finding of malingering based on affirmative evidence
thereof,” the ALJ may only find the claimant not credible by
making specific findings supported by the record that provide
clear and convincing reasons to explain his credibility
evaluation. Robbins, 466 F.3d at 883 (citing Smolen, 80 F.3d at
1283–84 (“Once a claimant meets [step one] and there is no
affirmative evidence suggesting she is malingering, the ALJ
may reject the claimant’s testimony regarding the severity of her
symptoms only if he makes specific findings stating clear and
convincing reasons for doing so.”)); see also, e.g., Lingenfelter,
504 F.3d at 1036 (if the ALJ has found no evidence of
malingering, then the ALJ may reject the claimant’s testimony
“only by offering specific, clear and convincing reasons for
doing so”).

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Trembulak v. Colvin, No. CV-12-02420-PHX-JAT, 2014 WL 523007, at *8–9 (D. Ariz. Feb.

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10, 2014)).

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Plaintiff argues that the ALJ failed to provide clear and convincing reasons to explain
the ALJ’s credibility evaluation of Plaintiff. At one point in the opinion, the ALJ states:
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After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s statements concerning
the intensity, persistence and limited effects of these symptoms are not
credible to the extent they are inconsistent with the above residual functional
capacity.

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Doc. 10-3 at 27. Plaintiff argues this reasoning is inadequate because it is circular. Doc. 21
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at 6 (“The ALJ rejected [Plaintiff’s] testimony to the extent it conflicted with his RFC
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assessment, but the RFC assessment is supposed to be informed by a claimant’s testimony.”).
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Beyond the above quoted language, the ALJ made other findings regarding Plaintiff’s
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self-reported symptoms and credibility. Specifically, the ALJ stated:
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The claimant reports problems with focus, memory and concentration. She
also reports that she is unable to count change, pay bills, or handle a savings
account or check book. On the other hand, the clamant states she is able to
read and knit, which require focus and concentration. The claimant also
reportedly knows how to use a computer, and enjoys working on puzzles.

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Doc. 10-3 at 22 (internal citations to the record omitted). Thus, the ALJ gave the additional
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reason for discounting Plaintiff’s symptom testimony that the Plaintiff’s own self-reported
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symptoms were not consistent.
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Additionally, the ALJ noted Plaintiff’s narcotic dependancy, which included stealing,
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in detail. Specifically, the ALJ recounted:
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Lastly, the record is significant for narcotic dependency. Medical records
document a history of high dose narcotic medication, including the drugs
morphine and Percocet. In October 2008, the claimant’s pain management
speciality, Dr. Jain, reportedly was “uncomfortable” giving the claimant
further pain medications. In April 2010, the claimant reportedly was abusing
Percocet on a regular basis. On October 2, 2009, the claimant’s mother
reported year-long addiction behavior, and advised the claimant’s therapist at
Terros that the claimant had been admitted to Banner Thunderbird after an
accidental overdose on the anti-anxiety medication Ativan. The claimant
reportedly admitted stealing and taking her mother’s Soma pain medications.
In November 2009, claimant’s pulmonologist, Dr. Abdullah Yonan, diagnosed
the claimant with narcotic dependence.
Doc. 10-3 at 27 (internal citations to the record omitted).

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Evidence of a plaintiff’s drug seeking behavior can be a reason to find the plaintiff not

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credible. See Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001) (upholding the

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rejection on a doctor’s opinion that was premised on the plaintiff’s non-credible self-reported

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symptoms). In this case, the ALJ found that the claimant exhibited significant narcotic

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dependency, including stealing to obtain drugs, and that her own symptom testimony was

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inconsistent. The Court finds that these reasons are clear and convincing reasons supported

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by substantial evidence of record for the ALJ to have discounted Plaintiff’s credibility and

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symptom testimony.

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3.

Third party lay witness testimony

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Next, Plaintiff argues that the ALJ “failed to even mention” Plaintiff’s mother’s

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reporting of Plaintiff’s symptoms. Doc. 21 at 7. However, the ALJ addressed Plaintiff’s

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mother’s testimony in two places in his opinion.

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First, the ALJ noted that he had a Third Party Function Report from Plaintiff’s mother

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which indicated that Plaintiff is able to independently shop for groceries. Doc. 10-3 at 22.

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Second, the ALJ noted that in 2009, Plaintiff’s mother reported year-long addiction behavior,

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including an accidental overdose. Id. at 27.

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Plaintiff’s mother’s Third Party Function Report has more information in it that the

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two items specifically identified by the ALJ. For example, it says that Plaintiff bathes several

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times per day and at night to try to relax. Doc. 10-7 at 18.

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Under Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993), “[i]f the ALJ wishes to

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discount the testimony of the lay witness[], he must give reasons that are germane to each

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witness.” In this case, while the ALJ clearly considered Plaintiff’s mother’s Third Party

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Function report, he did not articulate a specific “germane” reason why he was rejecting the

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report.

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This Court too has reviewed the report as a whole. Doc. 10-7 at 16-23. The Court

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notes that in the report, Plaintiff’s mother opined, “now she can not work, needs help w/

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cleaning , laundry, meals, bills”. Doc. 10-7 at 17. This third-party-lay opinion would favor

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a remand for an award of benefits. However, even when an ALJ has failed to give germane

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reasons for discounting a lay witness’s testimony, this Court can affirm if the error was

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harmless.1 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Specifically, the Court in

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Molina stated:

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[I]f an ALJ has provided well-supported grounds for rejecting testimony
regarding specified limitations, we cannot ignore the ALJ’s reasoning and
reverse the agency merely because the ALJ did not expressly discredit each
witness who described the same limitations. Further, where the ALJ rejects a
witness’s testimony without providing germane reasons, but has already
provided germane reasons for rejecting similar testimony, we cannot reverse
the agency merely because the ALJ did not “clearly link his determination to
those reasons.” Lewis, 236 F.3d at 512.

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Molina, 674 F.3d at 1121.
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Here, the ALJ rejected the same symptom and limitation testimony offered by
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Plaintiff’s mother in rejecting Plaintiff’s own complaints and Plaintiff’s doctor’s testimony.
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Accordingly, the ALJ was not required to “link” his rejections of those same symptoms to
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Plaintiff’s mother’s report. Additionally, the ALJ is not required to give deference to
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Plaintiff’s mother’s legal conclusion about whether Plaintiff is disabled. See generally
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McLeod v. Astrue, 640 F.3d 881, 884-85 (9th Cir. 2011) (holding that the ALJ does not have

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to give deference to a witness’s opinion on “the ultimate determination of disability”).
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Thus, based on all of the foregoing, the Court finds that the ALJ’s failure to give
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specific, germane reasons for discrediting Plaintiff’s mother’s report was harmless error.
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Nonetheless, the Court will remand this case for a de novo determination, at which point
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Plaintiff can argue that the ALJ should rely more heavily on Plaintiff’s mother’s report.2

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Because the Government has conceded error regarding Plaintiff’s mental limitations,
remand will be the ultimate result in this case. However, the Court will nonetheless apply
the harmless error standard to determine whether remand for award of immediate benefits
is appropriate.
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Further, on de novo review, the ALJ should assess Plaintiff’s mother’s credibility
considering that Plaintiff’s therapist noted that Plaintiff was concerned about her mother’s
motivations. Doc. 10-19 at 28. Specifically, the therapist noted: “CLIENT VENTED
ABOUT CONTINUOUS ISSUES IN LIVING WITH HER PARENTS.... CLIENT
INDICATED SHE HAS A SSN APPLICATION PENDING.... CLIENT HOPES TO
MOVE OUT ON HER OWN IF SHE IS APPROVED. CLIENT STATED SHE KNOWS
THAT IF SHE GETS APPROVED THEN SHE WILL GET A LUMP SUM AND HER

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B.

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Plaintiff also argues that the ALJ erred in considering her medical evidence by

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considering each of her symptoms separately and not as a combination of symptoms. Doc.

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21 at 4. In his opinion, the ALJ stated, “In sum, after a careful review of the record, the

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undersigned finds the claimant does not have an impairment, or combination of

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impairments, that limits her ability to perform basic work activity.” Doc. 10-3 at 28

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(emphasis added). Thus, the Court finds that the ALJ did review the Plaintiff’s symptoms

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together. Nonetheless, on remand for de novo review, Plaintiff may further explain to the

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ALJ her argument of how her combination of impairments compels a finding a disability.

Combination of Impairments

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C.

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As discussed above, Defendant moved to remand to allow the ALJ, “to further

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evaluate Plaintiff’s mental impairments, reassess Plaintiff’s residual capacity (RFC), and re-

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determine whether Plaintiff can perform the physical and mental demands of her past

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relevant work, or alternatively whether she can perform other occupations existing in

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significant numbers in the national economy.” Doc. 18 at 1.

Plaintiff’s mental impairments

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In her response, Plaintiff did not dispute that the record required a remand to address

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Plaintiff’s mental impairments. Doc. 21. Instead, Plaintiff argued that benefits should be

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awarded based on Plaintiff’s physical limitations, self-reported symptoms, and third party

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reports. However, the Court has rejected each of these arguments above.

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In her sur-reply, Plaintiff argues that her psychological/mental impairments, alone,

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entitle her to a remand for an award of benefits. Doc. 31 at 11. Specifically, Plaintiff argues

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that if her doctors’ testimony is credited as true, she would be entitled to benefits. Id.

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Plaintiff seeks to have this Court credit Dr. Peetoom’s opinion that Plaintiff needed extra

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MOTHER WILL WANT TO CONTROL THE MONEY. CLIENT REPORTED THAT
SHE ALSO FEELS THAT HER PARENTS WILL DEMAND THAT THEY GET
REIMBURSED FOR ALLOWING HER TO STAY WITH THEM ALL THIS TIME.”
Id. (emphasis added).

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time and attention to adapt to changes in environment and routine and that Plaintiff needed

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consistent exposure to information to facilitate retention. Doc. 31 at 11. Plaintiff also seeks

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to have this Court credit Dr. Allen’s opinion that Plaintiff had problems with persistence and

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that her trembling and crying would likely cause problems. Id. Finally, Plaintiff seeks to

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have the Court credit Dr. Allen’s opinion that benefits for one year would be appropriate.

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Id.

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While Defendant has conceded that this case should be remanded for further

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development of the record relating to Plaintiff’s psychological/mental impairments,

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Defendant has not conceded that the ALJ did not give adequate reasons for discrediting

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Plaintiff’s examining physicians. Instead, Defendant conceded that the ALJ did not

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incorporate his findings regarding Plaintiff’s limitations regarding concentration, persistence

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and pace into Plaintiff’s RFC, and thus the ALJ did not include these limitations in his

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hypothetical to the vocational expert. Doc. 18 at 3. Further, Defendant argues that a remand

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for benefits would be inappropriate because there was conflicting testimony regarding the

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limitations caused by Plaintiff’s mental impairments. Id. at 5. Thus, Defendant seeks

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remand to resolve these factual disputes and to determine what impact, if any, the limitations

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have on Plaintiff’s RFC.

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As indicated above, Plaintiff asks this Court to credit as true the testimony of Drs.

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Allen and Peetoom, each of whom saw Plaintiff once. Doc. 31 at 11; Doc. 10-3 at 28. First,

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the Court agrees with the ALJ that these doctors are properly characterized as examining

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physicians, rather than treating physicians, because they each only saw Plaintiff once. Doc.

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10-3 at 28. Next, the ALJ noted that he gave their findings little weigh because they each

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only saw Plaintiff once and because their opinions were inconsistent with the weight of the

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evidence. Id.

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The ALJ further recounted in detail the various notes regarding Plaintiff’s mental state

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from her various doctors. Doc. 10-3 at 26-27. The Court agrees with Defendant that the

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various doctors’ notes are inconsistent with respect to the severity of Plaintiff’s symptoms

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as well as the impact of those symptoms. Given these conflicting reports, including the

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report of Plaintiff’s treating physician, Dr. Bhatka, who indicated that Plaintiff was feeling

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much better in June of 2009 due to a new medication, the Court will not credit the examining

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physicians statements as true. Indeed, the Court finds that the ALJ gave specific and

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legitimate reasons for discrediting the findings of these examining physicians; specifically,

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the ALJ recounted three paragraphs of medical testimony which reported significantly less

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severe mental limitations for Plaintiff than her examining physicians’ findings. See Doc. 10-

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Based on the foregoing, the Court will remand this case to the agency as requested by

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Defendant. The Court denies Plaintiff’s request for an immediate award of benefits.

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II.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Defendant’s motion to remand is granted (Doc. 17) pursuant

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to sentence 4 of 42 U.S.C. § 405(g); this case is remanded to the agency and the Clerk of the

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Court shall enter judgment accordingly.

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DATED this 25th day of March, 2014.

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