Lee v. Colvin

Filing 26

ORDER that Plaintiff's 21 Brief is denied. The Clerk is directed to enter Judgment and terminate this action. Signed by Judge David G Campbell on 1/23/2014. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Theresa Ann Lee,

No. CV-13-00759-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Theresa Ann Lee seeks judicial review of

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the Commissioner’s decision finding her not disabled. Doc. 21. For the reasons that

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follow, the Court will deny Plaintiff’s request for relief.1

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I.

Background.

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Plaintiff was 30 years old on the date that her alleged disability began. She has a

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GED and has worked as a receptionist and data entry clerk. Plaintiff alleges disability

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due to autonomic disorder and orthostatic hypotension. Doc. 21 at 4-5.

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Plaintiff filed an application for disability insurance benefits on June 10, 2009.

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Tr. 19. She also filed an application for supplemental security income on June 10, 2009.

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Id. Plaintiff alleged disability beginning on October 21, 2008, in both applications. Id.

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After a hearing on April 5, 2011, an Administrative Law Judge (“ALJ”) issued an opinion

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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on July 22, 2011, finding Plaintiff not disabled. Id. Plaintiff’s request for review was

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denied by the Appeals Council and the ALJ’s opinion became the Commissioner’s final

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decision. Tr. 3.

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II.

Analysis.

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

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006). Plaintiff alleges that the ALJ committed legal error in three

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ways. First, she argues that the ALJ failed to properly weigh the opinion of a treating

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physician.

Second, she argues that the ALJ improperly discounted her subjective

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testimony concerning the intensity, persistence, and limiting effects of her symptoms.

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Finally, she contends that the ALJ erred in assessing her RFC. Because a vocational

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expert testified that the limitations outlined in the treating physician’s assessment and

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Plaintiff’s own testimony would preclude sustained work, Plaintiff urges the Court to

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remand for a computation of benefits. The Court will consider each argument in turn.

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A.

Plaintiff’s Subjective Testimony.

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In August 2009, Plaintiff completed a questionnaire about her daily activities,

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which involved caring for three young children, cooking, shopping, and driving. Tr. 220-

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31. In March 2010, Plaintiff completed a second questionnaire about her daily activities

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which reported that she had daily in-home support for her children, that meals were

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prepared by “support staff,” and that housework was performed by her children or by

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support staff. She asserted that she had no hobbies and engaged in practically no social

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activities, and that she spent the entire day on her couch or in bed. Tr. 244-52. At the

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hearing before the ALJ, Plaintiff testified that she left her job as a receptionist and data

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entry clerk in October 2008 because she had spent “two out of five days at the hospital

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and was not able to work.” Tr. 45. She was unable to find a new job or complete an

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employment training class because she was wearing a holter monitor “and the cardiac

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stuff was out of control.” Tr. 49. She testified that she was unable to work because of

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near-syncopal episodes that occur “three days a week or so” and that these episodes

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prevent her from leaving the house because she becomes fatigued. Tr. 48. She claimed

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to be bedridden on average for two days each week. Tr. 61. She testified that she could

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not do seated work because she might experience syncope when standing up from her

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seated position. Tr. 50-51.

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

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

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has presented objective medical evidence of an underlying impairment ‘which could

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reasonably be expected to produce the pain or other symptoms alleged.’” Lingenfelter v.

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Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991) (en banc)). If the claimant meets this first test, and there is no

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evidence of malingering, then the ALJ “can reject the claimant’s testimony about the

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severity of her symptoms only by offering specific, clear and convincing reasons for

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doing so.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ may consider

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

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

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

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

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

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

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

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impairment could reasonably be expected to cause the alleged symptoms[.]” Tr. 24. At

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step two, however, the ALJ concluded that the claimant’s statements concerning the

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intensity, persistence and limiting effects of these symptoms were not credible. Id. The

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ALJ relied on seven reasons discussed below to buttress his step-two conclusion. See 20

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C.F.R. § 404.1529(c)(4) (ALJ must consider conflicts between a claimant’s statements

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and signs and laboratory findings); Carmickle v. Comm’r Soc. Sec. Admin., 553 F.3d

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1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis

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for rejecting the claimant’s subjective testimony”) (citation omitted).

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First, the ALJ noted that there is little objective evidence to support the severity of

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the claimant’s allegedly disabling conditions. The ALJ cited medical notes stating that

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“multiple testing in [the] past has failed to uncover [Plaintiff’s] constellation of

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symptoms.” Tr. 24, 420. Further, on August 12, 2009, Plaintiff’s treating provider noted

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that Plaintiff had reported multiple symptoms, but significant work-up for connective

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tissue disorder and neurological work-up were negative. Tr. 429.

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Second, in addition to the lack of objective medical evidence to support the

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claimant’s alleged disabling complaints, the ALJ noted that physical examinations of the

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Plaintiff were normal and she generally had no neurological deficits. The ALJ cited to

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eight exhibits in the record in support of this finding. Tr. 25.

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Third, the ALJ juxtaposed Plaintiff’s subjective testimony that she was frequently

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bed-bound by disabling symptoms with evidence in the medical record that her

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headaches, syncope, and dizziness improved with treatment and that she could relieve her

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symptoms by standing up slowly. Tr. 25, 28, 602, 626, 740, 758.

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Fourth, the ALJ concluded that Plaintiff’s testimony about her limitations was not

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consistent with her daily activities. Plaintiff’s daily activities included caring for three

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young children, driving her children to and from school, cooking, cleaning, shopping for

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groceries, attending women’s meetings, participating in “personal growth activities,” and

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dancing with her AA group. Tr. 22, 25-26, 257, 567, 690, 717; see Berry v. Astrue, 622

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F.3d 1228, 1234-35 (9th Cir. 2010) (finding that ALJ may rely on inconsistencies in daily

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activities and alleged disability). The ALJ also noted that Plaintiff had engaged in

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physical labor a few days before the administrative hearing. Tr. 22, 26, 27-28, 792.

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Fifth, the ALJ noted that Plaintiff cares for three young children almost

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exclusively on her own, including one child with special needs. The ALJ concluded that

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Plaintiff’s ability to perform the demanding tasks associated with caring for these

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children is inconsistent with her complaints of disabling symptoms. Tr. 26.

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Sixth, the ALJ challenged Plaintiff’s credibility by highlighting her inconsistent

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statements made to medical providers regarding her use of cigarettes, alcohol, and illegal

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drugs. Tr. 26. For example, Plaintiff denied smoking or having a history of illegal drug

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use during her first examination with Dr. Cunningham (Tr. 560), but she admitted during

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other medical appointments that she was a smoker (Tr. 543, 620, 627, 833, 848, 865, 888)

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and a former methamphetamine user (Tr. 560, 887). Tr. 26; see Thomas, 278 F.3d at 959

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(affirming ALJ’s finding that claimant lacked candor which carried over to description of

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physical pain where claimant made inconsistent statements regarding her drug use). In

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addition, Plaintiff consistently reported that she cannot sit because she is dizzy and will

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faint when she stands up, but was able to quickly get off the table, stand up, and walk

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with a normal gait during her consultative examination. Tr. 560.

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Seventh, the ALJ relied on his own observations of Plaintiff at the administrative

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hearing. The ALJ observed that Plaintiff appeared to be a “very healthy young woman”

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who displayed no discomfort or pain. Tr. 26. The ALJ also noted that his impressions of

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Plaintiff’s demeanor and appearance at the administrative hearing were confirmed by Dr.

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Cunningham at a consultative examination after the hearing. Tr. 26, 888.

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Plaintiff argues that the ALJ made “a medical judgment, which the ALJ was not

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qualified to make,” when he weighed and interpreted the medical evidence and concluded

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that it undermined Plaintiff’s subjective testimony. Doc. 21 at 19; Tackett v. Apfel, 180

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F.3d 1094, 1103 (9th Cir. 1999) (rejecting ALJ’s RFC assessment where there was no

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medical evidence to support the ALJ’s finding).

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inapposite.

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unsupported by medical evidence, the ALJ made no such findings in this case. He simply

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resolved inconsistencies in the record. As the factfinder in this case, the ALJ is required

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to resolve conflicts in the record and find the relevant facts. See 42 U.S.C. § 405(g).

The cases cited by Plaintiff are

Although it is true that an ALJ cannot make findings that are wholly

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Plaintiff argues that the evidence cited by the ALJ to undermine Plaintiff’s

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subjective testimony does not establish that she was symptom-free. Doc. 21 at 20. But

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Plaintiff need not be symptom-free in order for the Court to affirm the ALJ’s finding of

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no disability. In fact, the ALJ found that Plaintiff did suffer from syncope and its

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accompanying symptoms, but also that Plaintiff’s “statements concerning the intensity,

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persistence and limiting effects of [her] symptoms are not credible.” Tr. 24. Thus, the

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ALJ need not present specific, clear and convincing reasons that Plaintiff suffered from

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no symptoms of syncope. He is required to present specific, clear and convincing reasons

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to undermine her credibility, which he did.

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Plaintiff asserts that “the evidence the ALJ recited, in support of his belief that the

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severity of [Plaintiff’s] symptoms was belied by objective medical evidence, had nothing

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to do with her primary disabling symptoms related to autonomic disorder.” Doc. 21 at

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19-20. This assertion is incorrect. Although the ALJ cited to evidence relating to other

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symptoms and disorders claimed by Plaintiff, he also cited to evidence that relates

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directly to symptoms stemming from Plaintiff’s autonomic disorder. Tr. 24-25.

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B.

RFC Assessment.

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Plaintiff argues that the ALJ’s decision is “uncoupled with any articulated

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rationale for the determination of [Plaintiff’s] residual functional capacity” and that the

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ALJ impermissibly relied on his own opinion as evidence. Doc 21 at 23. The Court does

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not agree. No medical source opinion or witness testimony was conclusive as to the RFC

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assessment. The ALJ was required to resolve conflicts in the record and make a finding

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regarding Plaintiff’s ability to work. 42 U.S.C. § 405(g); 20 C.F.R. § 404.1545(a)(1);

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Richardson v. Perales, 402 U.S. 389, 399 (1971). Plaintiff argues that the ALJ erred

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because he “did not explain how the evidence supported the rated capacities.” Doc. 21 at

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23. Plaintiff effectively asserts that a function-by-function description is required to

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substantiate the RFC. Id.; see SSR 96-8p. Plaintiff’s interpretation of SSR 96-8p is

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incorrect. “SSR 96-8p requires only that the ALJ discuss how evidence supports the

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residual capacity assessment and explain how the ALJ resolved material inconsistencies

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or ambiguities in the evidence[.]” Mason v. Comm’r of Soc. Sec., 379 F.App’x 638, 639

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(9th Cir. 2010).

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In support of the RFC assessment, the ALJ discussed a wide range of medical

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evidence and witness testimony. Tr. 24-28. The ALJ identified which medical opinions

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were compelling and accorded them great weight in formulating the RFC. He also

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identified medical opinions that were less compelling, explained why they were less

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compelling, and accorded them little weight. The ALJ provided ample explanations as to

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how the medical evidence supported his RFC assessment and how he resolved

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inconsistencies in the evidence. Id. The ALJ summarized his findings by stating that the

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Plaintiff “does have restrictions due to her physical conditions, however, she is not as

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limited as she alleged.” Id. at 28.

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The Court concludes that the ALJ’s RFC assessment meets the burden imposed by
SSR 96-8p and is supported by substantial evidence.
C.

Treating Physician Opinion.

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Plaintiff’s primary attack on the ALJ’s decision focuses on the weight given to a

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medical opinion by Dr. Shukla. Tr. 28. Dr. Shukla treated Plaintiff from April 2009

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through March 2011. Id. 679, 758. In June 2009, Dr. Shukla completed a check-the-box

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form opining that Plaintiff was “unable to work [at] this time” and “temporarily

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unemployable.” Tr. 465, 467. On February 25, 2010, Dr. Shukla completed another

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check-the-box form opining that Plaintiff had significant physical limitations attributable

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to chest pain, palpitations, weakness, fatigue, shortness of breath, nausea, dizziness, and

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syncope. Tr. 731-32. He further opined that Plaintiff’s physical symptoms would cause

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significant emotional difficulties and that Plaintiff constantly experienced symptoms

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severe enough to interfere with her attention and concentration. Tr. 732. Dr. Shukla

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based his responses to the second form on objective findings that included “tilt table

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testing,” a holter monitor test, and an electrophysiology study. Tr. 731. The vocational

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expert testified that the limitations assessed by Dr. Shukla would preclude sustained

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work. Tr. 70-71.

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The ALJ accorded Dr. Shukla’s opinion little weight. Tr. 28. The ALJ found that

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Dr. Shukla’s opinion was not consistent with the “longitudinal medical evidence of

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record,” including Dr. Shukla’s own treatment records which state that Plaintiff’s

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supraventricular tachycardia was treated with an ablation and there were no new episodes

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of chest pain, shortness of breath, dizziness, or syncope. Id. The ALJ found that Dr.

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Shukla’s opinion was inconsistent with his indication that the claimant could participate

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in an exercise program, and that Dr. Shukla’s opinion was not consistent with Plaintiff’s

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activities of daily living. Id.

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995).

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physician’s opinion and more weight to the opinion of an examining physician than to

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one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

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Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when

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evaluating opinion evidence, including length of examining or treating relationship,

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frequency of examination, consistency with the record, and support from objective

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evidence). The opinion of a treating or examining physician can be rejected only for

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“clear and convincing” reasons if it is not contradicted by another doctor’s opinion.

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Lester, 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A

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contradicted opinion of a treating or examining physician “can only be rejected for

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specific and legitimate reasons that are supported by substantial evidence in the record.”

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Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

Generally, an ALJ should give greatest weight to a treating

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The opinion of Dr. Shukla was contradicted by the opinion of Dr. Cunningham, an

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examining physician, who opined that Plaintiff had abilities consistent with light work.

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Tr. 890-97. The ALJ therefore could discount Dr. Shukla’s opinion for specific and

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legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at

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830-31. The Court finds that the ALJ gave three specific and legitimate reasons for

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discounting the opinion of Dr. Shukla.2

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First, the ALJ cited inconsistencies between Dr. Shukla’s medical opinion and his

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own treatment notes, with specific citations to the record. Tr. 28. Dr. Shukla’s medical

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notes indicate that Plaintiff did not have a recurrence of supraventricular tachycardia after

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The ALJ’s blanket reference to “the longitudinal medical evidence of record” is
not specific and therefore falls short of the “specific and legitimate reasons” standard of
Embrey and Lester.
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the ablation procedure, and that her symptoms of dizziness associated with syncope had

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ameliorated and were “fairly tolerable” with medication. Tr. 740, 758.

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Second, the ALJ cited Dr. Shukla’s own recommendation that Plaintiff participate

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in an exercise program. Tr. 28. Dr. Shukla’s notes do contain repeated assertions that

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Plaintiff could participate in an exercise program. Tr. 684, 687, 691, 695, 737, 742, 773,

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881.

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Another reason the ALJ cited to support his conclusion that Dr. Shukla’s own

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treatment records are inconsistent with Dr. Shukla’s medical opinion was that Dr.

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Shukla’s treatment records indicate that Plaintiff’s condition had been treated with an

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ablation and there had been no recurrence and there were no new episodes of chest pain,

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shortness of breath, dizziness or syncope.

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statement indicates the ALJ failed to read Dr. Shukla’s comments in the context of the

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overall record. Doc. 21 at 12; Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1201 (9th

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Cir. 2008) (“[A treating physician’s] statements must be read in context of the overall

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diagnostic picture he draws”). In support of her argument, Plaintiff has provided many

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instances before and after Dr. Shukla’s opinion in which Plaintiff reported chest pain,

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shortness of breath, dizziness, and syncope. Doc. 21 at 12. The Court agrees with

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Plaintiff that the ALJ overstated the significance of Dr. Shukla’s notation that no new

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episodes of the symptoms occurred.

Tr. 28.

Plaintiff argues that the ALJ’s

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Third, the ALJ noted that Plaintiff participated in a volunteer project in which she

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hauled rocks in the Salt River bed ten days before her hearing in this case. Tr. 28.

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Plaintiff injured her hand at the volunteer project, but when she presented to receive

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treatment for her injured hand, her vitals were stable and she did not complain of chest

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pain, shortness of breath, dizziness, or syncope. Tr. 792-93.

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These reasons are specific, and the Court finds them to be legitimate because they

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are grounded in the record. The Court also finds that they are supported by substantial

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evidence, which is “more than a mere scintilla, but less than a preponderance, i.e., such

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relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d at 882.

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The Court’s substantial evidence conclusion, which requires the Court to consider

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the record as a whole, Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998), is supported

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by other medical evidence that conflicted with Dr. Shukla’s opinion and that was

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discussed by the ALJ. For example, the treatment notes of Drs. Leahy and Hsu indicated

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that Plaintiff’s symptoms of dizziness and syncope improved with medication and that

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Plaintiff could further relieve symptoms of syncope by standing up more slowly. Tr. 602.

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The record also included the report of a tilt table test, which indicated that Plaintiff was

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able to sit and stand without any drop in her blood pressure or heart rate. Tr. 628, 739.

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The medical evidence of record also included the medical notes of Dr. Finch, a

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psychological consultative examiner who opined that Plaintiff had no impairment in

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sustained concentration. Tr. 567-69.

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In summary, the Court finds that the ALJ provided specific and legitimate reasons

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for discounting Dr. Shukla’s opinion, and that the reasons are supported by substantial

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evidence.

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IT IS ORDERED:

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Plaintiff’s brief (Doc. 21) is denied.

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2.

The Clerk is directed to enter Judgment and terminate this action.

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Dated this 23rd day of January, 2014.

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