Lee v. Colvin

Filing 22

ORDER that Plaintiff's appeal of the Social Security Commissioner's denial of her application for benefits (Doc. 19 ) is denied. Signed by Judge David G Campbell on 9/11/2013. (KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Melissa Bernice Lee,

No. CV-13-00152-PHX-DGC

Plaintiff,

10

ORDER

11

v.

12

Carolyn W. Colvin, Acting Commissioner
of Social Security,

13

Defendant.

14
15
16
17
18
19

Plaintiff Melissa Bernice Lee filed an application for Social Security disability
insurance benefits in June 2009, alleging a disability onset date of October 2008. Her
claim was denied initially and upon reconsideration, and she requested a hearing before
an Administrative Law Judge (“ALJ”). The hearing was held in June 2011, and the ALJ
denied Plaintiff’s application. The Appeals Council denied Plaintiff’s request for review,
making the ALJ’s decision final. Tr. at 1-4.

20
21
22
23
24
25
26
27
28

Plaintiff now appeals the Commissioner’s denial of her application for benefits.
Doc. 19. For the reasons that follow, the Court will deny Plaintiff’s appeal.
I.

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

by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but
less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”

Id.

In determining whether the decision is

supported by substantial evidence, the Court must consider the record as a whole,

1

weighing both the evidence that supports the decision and the evidence that detracts from

2

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

3

to support the Commissioner’s determination, the Court cannot substitute its own

4

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

5

II.

6
7
8
9
10

Analysis.
For purposes of Social Security benefits determinations, a disability is
the inability to do any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less
than 12 months.

20 C.F.R. § 404.1505.

11

Determining whether a claimant is disabled involves a five-step evaluation. The

12

claimant must show (1) she is not currently engaged in substantial gainful employment,

13

(2) she has a severe physical or mental impairment, and (3) the impairment meets or

14

equals a listed impairment or (4) her residual functional capacity (“RFC”) precludes her

15

from performing her past work. If at any step the Commission determines that a claimant

16

is or is not disabled, the analysis ends; otherwise it proceeds to the next step. If the

17

claimant establishes her burden through step four, the Commissioner bears the burden at

18

step five of showing that the claimant has the RFC to perform other work that exists in

19

substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).

20

The ALJ found that Plaintiff has not engaged in substantial gainful employment

21

since the disability onset date of October 29, 2008, and that she suffers from the severe

22

impairments of degenerative disc disease of the cervical and lumbar spine, obesity, and

23

chronic obstructive pulmonary disease (“COPD”).

24

Plaintiff’s depression, fibromyalgia, and peripheral vascular disease were not severe

25

because they did not result in more than minimal limitations in functioning. Tr. at 30. At

26

step three, the ALJ concluded that Plaintiff does not have an impairment or combination

27

of impairments that meets or equals the severity of one of the impairments listed in the

28

regulations. Tr. at 31. The ALJ then considered the record and found that Plaintiff has

-2-

Tr. at 29.

The ALJ found that

1

the RFC to “perform medium work as defined in 20 CFR 404.1567(c).” Tr. at 31. The

2

ALJ concluded that Plaintiff’s RFC included “lifting and carrying 50 pounds occasionally

3

and 25 pounds frequently, standing and walking 6 to 7 hours per day, and sitting 6 to 8

4

hours per day.”

5

occasional climbing of ladders, ropes, and scaffolds, crawling, and frequent climbing

6

ramps and stairs. Tr. at 31. Finally, the ALJ determined that Plaintiff did not need any

7

manipulative limitations, but there was a need to avoid unprotected heights, moving

8

machinery, dust, fumes, and gases. Tr. at 31. At step five, the ALJ concluded that

9

Plaintiff was capable of her performing past relevant work as a cashier checker, cashier

10

supervisor, car hop, server, payroll clerk, receptionist, inventory clerk, and human

11

resources assistant. Tr. at 35. Accordingly, the ALJ concluded that Plaintiff was not

12

disabled within the meaning of the Social Security Act. Tr. at 35.

Tr. at 31.

The RFC included no visual limitations and allowed

13

Plaintiff’s brief raises three challenges to the ALJ’s findings. First, she argues that

14

the ALJ erred at step two when he determined that Plaintiff’s depression, fibromyalgia,

15

and peripheral vascular disease were not severe. Second, she contends that the ALJ erred

16

by rejecting Plaintiff’s symptom testimony without clear and convincing reasons

17

supported by substantial evidence in the record. Third, Plaintiff argues that the ALJ

18

erroneously determined Plaintiff’s work capacities without support by substantial

19

evidence in the record.

20

A.

Step Two Severity Listings.

21

Step two is “a de minimis screening device [used] to dispose of groundless

22

claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may find that

23

a claimant lacks a medically severe impairment or combination of impairments only

24

when his conclusion is “clearly established by medical evidence.” S.S.R. 85–28 (1985).

25

Impairments are considered “not severe” when “the evidence establishes a slight

26

abnormality that has no more than a minimal effect on an individual’s ability to work.”

27

Smolen, 80 F.3d at 1290. The ALJ determined at step two that Plaintiff’s “depression,

28

fibromyalgia, [and] peripheral vascular disease are not severe impairments, because they

-3-

1

do not result in more than minimal limitations in functioning.” The ALJ explained in

2

some detail why he did not consider Plaintiff’s depression to be a severe impairment.

3

Tr. at 30. In that explanation, the ALJ relies partly on GAF scores which both parties

4

acknowledge are not part of the record in this case. With respect to the other two non-

5

severe ailments, fibromyalgia and peripheral vascular disease, the ALJ provides nothing

6

more than the conclusory statement above to explain why they were not considered

7

severe.

8

The Court finds that the ALJ failed to show that his conclusion was clearly

9

established by medical evidence. Error at this step may be harmless, however, if the ALJ

10

goes on to discuss the ailments that he deemed non-severe when formulating the RFC.

11

Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Because the ALJ proceeded to

12

analyze the effects of Plaintiff’s depression, fibromyalgia, and peripheral vascular disease

13

during the RFC assessment, the Court concludes that the error at step two was harmless.

14

B.

Plaintiff’s Symptom Testimony.

15

Plaintiff claimed that she has neck and back pain, lower extremity pain, pains

16

associated with fibromyalgia, breathing problems, shoulder pain, depression, and anxiety.

17

She claimed that her conditions limited her to walking for one hour and sitting for no

18

longer than twenty minutes before she must stand. She experiences muscle spasms, takes

19

naps for three to four hours a day, and spends most of her time sitting with her feet

20

elevated.

21

The ALJ must engage in a two-step analysis to evaluate the credibility of a

22

claimant’s testimony. “First, the ALJ must determine whether the claimant has presented

23

objective medical evidence of an underlying impairment ‘which could reasonably be

24

expected to produce the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504

25

F.3d 1028, 1036 (9th Cir.2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th

26

Cir.1991) (en banc)). If the claimant meets this first test, and there is no evidence of

27

malingering, the ALJ “can reject the claimant’s testimony about the severity of her

28

symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen,

-4-

1

80 F.3d at 1282. The ALJ may consider at least the following factors when weighing the

2

claimant’s credibility: the claimant’s reputation for truthfulness, inconsistencies either in

3

the claimant’s testimony or between her testimony and her conduct, the claimant’s daily

4

activities, her work record, and testimony from physicians and third parties concerning

5

the nature, severity, and effect of the symptoms of which claimant complains. Thomas v.

6

Barnhart, 278 F.3d 947, 958–59 (9th Cir.2002) (citing Light v. Soc. Sec. Admin., 119

7

F.3d 789,792 (9th Cir.1997)).

8

The ALJ considered the symptom testimony and determined that Plaintiff’s

9

medically determinable impairments could reasonably be expected to cause the alleged

10

symptoms. Tr. at 32. He then concluded that that Plaintiff’s statements concerning the

11

intensity, persistence, and limiting effects of the symptoms were not credible.

12

The ALJ noted several reasons for discounting Plaintiff’s subjective testimony.

13

He cited objective medical evidence, including MRI results that revealed “only mild

14

spondylosis,” that undermine Plaintiff’s assertion that back pain is her most disabling

15

problem. Tr. at 32 (citing Tr. at 750). He also cited a residual functional capacity

16

evaluation completed by Julie Ziegelmeyer, a physical therapist, which found Plaintiff

17

was “able to work on a full-time basis.” Tr. at 32 (citing Tr. at 729). The ALJ noted that

18

despite “medical issues involving peripheral vascular disease,” one treatment note stated

19

that Plaintiff was “stable from a vascular standpoint.” Tr. at 32 (citing Tr. at 426). The

20

ALJ also cited Doppler ultrasound results that revealed no deep vein thrombosis. Tr. at

21

417-418.1 The ALJ noted that progress notes dated November 24, 2008, showed that

22

Plaintiff underwent successful stenting of the right common iliac artery and that the

23

surgery resulted in a resolution of Plaintiff’s symptoms. Tr. at 426. The ALJ also noted

24

that the results from a stress test performed in January 2009 found Plaintiff to have no

25

additional cardiovascular issues. Tr. at 33 (citing Tr. at 424). The ALJ noted that

26

Plaintiff takes only sleeping pills to treat her fibromyalgia and is not currently taking any

27
1

28

The ALJ cited to Exhibit 3F at page 28 (corresponding with Tr. at 418), but that
page contains a laboratory report from Sonora Quest Laboratories. Tr. at 418. The ALJ
appears to have intended to cite the previous page, Exhibit 3F at page 27. Tr. at 417.
-5-

1

pain medication. Tr. at 33.

2

The ALJ cited other nonmedical evidence to support his conclusion that Plaintiff’s

3

symptoms were not credible: Plaintiff appeared healthy at her hearing (Tr. at 33);

4

Plaintiff was fired for reasons unrelated to her disability (Tr. at 32); after her termination,

5

Plaintiff continued to collect unemployment benefits for two years, which required her to

6

assert that she was actively looking for work (Tr. at 32); Plaintiff cares for two children

7

ages three and fifteen, and takes her son to school, vacuums, does dishes, folds laundry,

8

makes simple meals, surfs the internet, pays bills, solves crossword puzzles, and has

9

babysat her grandson at least once (Tr. at 33).

10

Plaintiff argues that the ALJ’s reasons fall short of the clear and convincing

11

standard necessary to reject her subjective testimony.

She argues that the ALJ

12

improperly relied on her appearance at the hearing and gave too much weight to her

13

continued smoking. She also argues that her firing in April 2008 for nonmedical reasons

14

(Tr. at 52) should have no bearing on her credibility because her disability onset date is in

15

October 2008 (Tr. at 27). She contends that the ALJ drew an improper inference from

16

her receipt of unemployment benefits and failed to show how her activities of daily living

17

demonstrate that she is not disabled. Finally, Plaintiff argues that the note regarding

18

resolution of vascular symptoms (Tr. at 426) was created in November 2008, and that

19

other notes in the record show continued problems, including an additional surgery in

20

2009 (Tr. at 423, 539-40, 578-79).

21

Despite Plaintiff’s objections, the Court finds that the ALJ based his conclusion on

22

substantial evidence in the record. His reasons were also specific, clear, and convincing.

23

Where, as here, there is sufficient evidence to support the Commissioner’s determination,

24

the Court cannot substitute its own determination. See Young, 911 F.2d at 184. The ALJ

25

relied upon a functional capacity evaluation by a physical therapist (Tr. at 729), the fact

26

that Plaintiff did not take pain medication, testimony that Plaintiff may be “invested” in

27

her disabilities (Tr. at 752), and MRI results (Tr. at 750).

28

objections significantly undermine the validity of that evidence.

-6-

None of the Plaintiff’s

1

In light of this substantial evidence, the Court finds the ALJ’s partial reliance on

2

other irrelevant or less valuable evidence to be harmless. For instance, the Ninth Circuit

3

has held that “the fact that a claimant does not exhibit physical manifestations of

4

prolonged pain at the hearing provides little, if any support for the ALJ’s ultimate

5

conclusion that the claimant is not disabled or that his allegations of constant pain are not

6

credible.” Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (citation omitted).

7

But the Ninth Circuit has also stated that “the inclusion of the ALJ’s personal

8

observations does not render the decision improper.” Verduzco v. Apfel, 188 F.3d 1087,

9

1090 (9th Cir. 1999) (citations and internal quotation marks omitted).

10

Similarly, the timing of Plaintiff’s the nonmedical termination several months

11

before the disability onset date may detract from the inference that Plaintiff has not been

12

truthful, but inclusion of this evidence does not render the ALJ’s conclusion baseless.

13

Plaintiff’s contention that the ALJ should not rely on the receipt of unemployment

14

benefits because the ALJ “did not inquire what work [Plaintiff] might try to do” (Doc. 19

15

at 26) does not invalidate the ALJ’s point that Plaintiff claimed disability while affirming

16

that she was looking for work. See Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir.

17

1988) (listing the receipt of unemployment insurance benefits as a reason for discounting

18

a claimant’s pain testimony).

19

Finally, while the ALJ cites a treatment note that predates evidence of continued

20

vascular problems, he also cites cardiovascular follow up notes from August 13, 2009,

21

and the results of a January 2009 stress test. Tr. at 33. These citations demonstrate that

22

the ALJ considered later evidence of vascular disease as well.

23
24

C.

Residual Functional Capacity.
1.

Medical Evidence.

25

Plaintiff contends that the ALJ erred by determining her work capacity without

26

support by substantial evidence in the record. Plaintiff finds the RFC finding that she is

27

capable of medium work to be objectionable because the ALJ gave “full consideration”

28

to the opinion of a physical therapist who stated that Plaintiff should be limited to light

-7-

1

work. Tr. at 34 (citing Exhibits 26F and 28F); see Tr. at 703, 729. Plaintiff argues that

2

the ALJ articulated no basis for finding that Plaintiff was capable of medium work.

3

Doc. 19 at 29.

4

There is no requirement that the RFC be based entirely on the residual functional

5

capacity assessment of a physician. Instead, 20 C.F.R. § 404.1545(a)(3) requires that the

6

ALJ form the RFC based on all relevant medical evidence and other evidence in the

7

record. The ALJ considered the residual functional capacity assessment completed by

8

the physical therapist and the evaluations of the state agency’s reviewing physicians.

9

Tr. 34-35. All of those opinions found Plaintiff could perform a range of light work. See

10

Tr. at 703-706, 512-519, 582-589. The ALJ found that in light of the other record

11

evidence, the opinions of these physicians were too limiting, and that Plaintiff was

12

actually capable of medium work.

13

The ALJ also considered the opinion of Dr. Steingard, who performed a mental

14

evaluation and opined that Plaintiff’s depression led to defects in concentration, but that

15

Plaintiff had “no more than mild mental limitations.” Tr. at 33 (citing Exhibit 17F).

16

By finding that Plaintiff needed fewer restrictions than the examining physicians

17

opined, the ALJ at least partially rejected their opinions.

To reject the opinion of

18

examining medical experts, the ALJ must give clear and convincing reasons. Regennitter

19

v. Comm=r of the Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999) (citing Lester

20

v. Chater, 81 F. 3d 821, 830 (9th Cir. 1995)). The ALJ fails to explain its reasons for

21

discounting the medical opinions beyond stating that “their opinions were not entirely

22

consistent with the greater objective record.” Tr. at 35. This explanation is not sufficient

23

to satisfy Ninth Circuit standards.

24

The Commissioner argues that the ALJ’s failure to explain his rational is

25

ameliorated by his reliance on the opinion of Dr. Fruchtman. Doc. 20 at 18. This

26

argument is unavailing because Dr. Fruchtman is not mentioned in the ALJ’s opinion,

27

and the Court is precluded from relying on “post hoc rationalizations that attempt to intuit

28

what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554

-8-

1
2

F.3d 1219, 1225 (9th Cir. 2009).
2.

Harmless Error.

3

Despite the ALJ’s improper decision to discount the opinions of medical experts,

4

the Commissioner argues that the error was harmless. The Court agrees. Had the ALJ

5

credited the most restrictive medical opinions in the record, it would have resulted in an

6

RFC that restricted Plaintiff to light work. The vocational expert testified that Plaintiff’s

7

past jobs as a cashier, lead supervisor cashier, carhop, and server all qualified as light

8

work. Tr. at 70-71. The opinions of the medical professionals would not have prevented

9

Plaintiff from performing these light work jobs. The Court accordingly finds that a

10

proper consideration of those opinions would still have led the ALJ to conclude that

11

Plaintiff is not disabled.

12
13
14

IT IS ORDERED that Plaintiff’s appeal of the Social Security Commissioner’s
denial of her application for benefits (Doc. 19) is denied.
Dated this 11th day of September, 2013.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-