Bergan v. Colvin

Filing 17

ORDER - IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. (See document for further details). Signed by Judge Neil V Wake on 4/25/14. (LAD)

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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 Sherri Bergan, No. CV-13-00856-PHX-NVW Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Sherri Bergan seeks review under 42 U.S.C. § 405(g) of the final decision 16 of the Commissioner of Social Security (“the Commissioner”), which denied her 17 disability insurance benefits and supplemental security income under sections 216(i) and 18 223(d) of the Social Security Act. Because the decision of the Administrative Law Judge 19 (“ALJ”) is supported by substantial evidence and is not based on legal error, the 20 Commissioner’s decision will be affirmed. 21 I. BACKGROUND 22 A. 23 Plaintiff was born in August 1965. She completed high school and a few years of 24 college and worked as a waitress, administrative assistant, and timekeeper. She has low 25 back problems. She testified that the main reason she is unable to work is severe pain in 26 her leg caused by a back injury in 2007. She does not use an assistive device for walking, 27 such as crutches or a cane. 28 Factual Background 1 B. 2 On August 5, 2009, Plaintiff applied for disability insurance benefits and Procedural History 3 supplemental security income, alleging disability beginning March 20, 2009. 4 August 3, 2011, she appeared with her attorney and testified at a hearing before the ALJ. 5 A vocational expert also testified. On 6 On August 26, 2011, the ALJ issued a decision that Plaintiff was not disabled 7 within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s 8 request for review of the hearing decision, making the ALJ’s decision the 9 Commissioner’s final decision. On April 26, 2013, Plaintiff sought review by this Court. 10 II. STANDARD OF REVIEW 11 The district court reviews only those issues raised by the party challenging the 12 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 13 may set aside the Commissioner’s disability determination only if the determination is 14 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 15 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 16 preponderance, and relevant evidence that a reasonable person might accept as adequate 17 to support a conclusion considering the record as a whole. Id. In determining whether 18 substantial evidence supports a decision, the court must consider the record as a whole 19 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 20 As a general rule, “[w]here the evidence is susceptible to more than one rational 21 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 22 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 23 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 24 To determine whether a claimant is disabled for purposes of the Social Security 25 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 26 the burden of proof on the first four steps, but the burden shifts to the Commissioner at 27 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 28 -2- 1 At the first step, the ALJ determines whether the claimant is engaging in 2 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 3 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 4 has 5 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 6 three, the ALJ considers whether the claimant’s impairment or combination of 7 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 8 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 9 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 10 claimant’s residual functional capacity and determines whether the claimant is still 11 capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not 12 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 13 where he determines whether the claimant can perform any other work based on the 14 claimant’s residual functional capacity, age, education, and work experience. 15 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 16 disabled. Id. a “severe” medically determinable physical or mental impairment. 17 At step one, the ALJ found that Plaintiff meets the insured status requirements of 18 the Social Security Act through December 31, 2011, and that she has not engaged in 19 substantial gainful activity since March 20, 2009. At step two, the ALJ found that 20 Plaintiff has the following severe impairment: lumbar stenosis with radiculopathy. At 21 step three, the ALJ determined that Plaintiff does not have an impairment or combination 22 of impairments that meets or medically equals an impairment listed in Appendix 1 to 23 Subpart P of 20 C.F.R. Pt. 404. 24 25 26 27 28 At step four, the ALJ found that Plaintiff: has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b); except for the following limitations: she is capable of standing and/or walking only two hours in an eight-hour workday; she is capable of frequently pushing and/or pulling with her lower extremities; and occasionally climbing ramps or stairs; but is precluded from climbing -3- 1 ladders, ropes or scaffolds. She is capable of occasionally balancing, bending, stooping, kneeling, crouching and crawling; but is precluded from all exposure to unprotected heights. 2 3 4 5 6 7 The ALJ further found that Plaintiff is capable of performing past relevant work as a timekeeper or administrative assistant. IV. ANALYSIS A. The ALJ Did Not Err in Weighing Medical Source Evidence. 1. Legal Standard 8 In weighing medical source opinions in Social Security cases, the Ninth Circuit 9 distinguishes among three types of physicians: (1) treating physicians, who actually treat 10 the claimant; (2) examining physicians, who examine but do not treat the claimant; and 11 (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. 12 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the 13 opinion of a treating physician than to the opinions of non-treating physicians. Id. 14 Where a treating physician’s opinion is not contradicted by another physician, it may be 15 rejected only for “clear and convincing” reasons, and where it is contradicted, it may not 16 be rejected without “specific and legitimate reasons” supported by substantial evidence in 17 the record. Id. Factors that an ALJ may consider when evaluating any medical opinion 18 include “the amount of relevant evidence that supports the opinion and the quality of the 19 explanation provided; the consistency of the medical opinion with the record as a whole; 20 [and] the specialty of the physician providing the opinion.” Orn, 495 F.3d at 631. 21 2. Treating Physician Matthew Duke, D.O. 22 Plaintiff saw Dr. Duke of Southwest Family Practice on March 22, 2011, for 23 prescription refills. The progress note does not indicate that Dr. Duke examined Plaintiff, 24 reviewed any records, took any medical history, or identified any diagnosis. The record 25 does not include any evidence of actual treatment by Dr. Duke. 26 On July 25, 2011, Dr. Duke completed a Medical Assessment of Ability to Do 27 Work Related Physical Activities and a Pain Functional Capacity (RFC) Questionnaire. 28 -4- 1 He indicated a diagnosis of lumbar disc degenerative joint disease although there are no 2 records showing how he determined the diagnosis. He opined that the most Plaintiff can 3 lift and/or carry is less than 10 pounds, the longest she can stand or walk is less than 2 4 hours in an 8-hour work day, and the longest she can sit is less than one hour in an 8-hour 5 work day. He opined that she must alternate sitting and standing every 20 minutes and 6 can never climb, balance, stoop, kneel, crouch, or crawl. He stated that his finding 7 supporting these limitations is “severe pain, not safe for balance.” Also on July 25, 2011, 8 Plaintiff was discharged from physical therapy with no limitation on walking and only 9 mild limitations on sitting, bending, and recreational exercise. 10 Plaintiff contends that the ALJ erred by giving little weight to Dr. Duke’s opinion 11 because there is “ample objective evidence in the record to support Dr. Duke’s 12 assessments,” Dr. Duke did not discredit Plaintiff’s reported symptoms, and his opinion 13 “should be given greater weight based on the nature of the treatment relationship and the 14 consistency and supportability of the assessments when compared to the remainder of the 15 record.” The record does not show that Dr. Duke had any “treatment relationship” with 16 Plaintiff, only that she obtained prescription refills from him. Because the record does 17 not include any treatment notes, it is impossible to determine whether Dr. Duke had any 18 basis upon which to credit or discredit Plaintiff’s reported symptoms. Moreover, as the 19 ALJ found, Dr. Duke’s opinion is the only opinion evidence in the record that imposed 20 limitations greater than those included in the ALJ’s residual functional capacity 21 assessment. 22 3. Non-Examining State Agency Physicians 23 Plaintiff further contends that the ALJ erred by giving great weight to the opinions 24 of the non-examining state agency physicians, whom she does not identify. Plaintiff 25 alludes to the ALJ’s consideration of Alicia Blando, M.D., a state agency medical 26 consultant who reviewed the medical evidence of record and provided a residual 27 functional capacity assessment in April 2010. The ALJ found Dr. Blando’s opinion to be 28 consistent with the objective findings, opinion evidence, and the record as a whole. -5- 1 Plaintiff claims the ALJ erred by not providing independent support from the medical 2 evidence of record for this conclusion, but the ALJ did so in great detail, discussing 3 findings of physical examinations that were generally normal, successful treatment by 4 physical therapy and medication, lumbar spine MRI results, Plaintiff’s reported daily 5 activities, and pain management treatment notes. 6 7 8 Thus, the ALJ provided clear, convincing, specific, and legitimate reasons for giving little weight to Dr. Duke’s medical assessment. B. 9 The ALJ Did Not Err by Misinterpreting Evidence of the Severity of Plaintiff’s Back Problems. 10 Plaintiff contends that the ALJ misinterpreted evidence to the detriment of the 11 Plaintiff by noting that the physical therapy discharge notes dated July 25, 2011, 12 indicated “no limitation” with walking and “mild limitation” with sitting, bending, and 13 recreational exercise and not acknowledging that the initial physical therapy evaluation 14 on April 27, 2011, showed that Plaintiff reported moderate limitations in sitting and 15 walking and severe limitations in bending and recreational exercise before beginning 16 physical therapy. Plaintiff does not explain what error the ALJ committed by failing to 17 comment on her condition before she began the 8-week therapy she described as 18 successful. 19 Plaintiff also contends the ALJ misinterpreted the May 29, 2009 MRI report, 20 which stated the impression of “Large L5-S1 disc extrusion to the left with S1 nerve root 21 displacement,” and erred by concluding that “evidence of record reveals minimal 22 objective medical evidence supporting the severity of [Plaintiff’s] allegations.” Plaintiff 23 incorrectly equates “large disc extrusion” with the degree of any functional limitation 24 imposed by the disc extrusion. 25 Finally, Plaintiff improperly asks the Court to find error in the ALJ’s 26 determination of the severity of Plaintiff’s back problems by considering the fact that she 27 eventually had back surgery, which she testified Dr. Ferguson recommended “in the 28 beginning” and she refused. The surgery performed on May 23, 2013, was not in the -6- 1 administrative record closed on August 23, 2011, and therefore not considered in this 2 appeal from the administrative determination. 3 5 Substantial Evidence Supports the ALJ’s Determination that Plaintiff Does Not Have an Impairment or Combination of Impairments That Meets or Medically Equals the Severity of One of the Listed Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. 6 Plaintiff contends that the ALJ erred by not finding that Plaintiff has an 7 impairment or combination of impairments that meets or medically equals Listing 8 1.04(A). To meet the requirements of a listing, a claimant must have a medically 9 determinable impairment that satisfies all of the criteria in the listing. 4 10 C. 20 C.F.R. § 404.1525(d). 11 Listing 1.04(A) requires a disorder of the spine, such as degenerative disc disease, 12 with evidence of “nerve root compression characterized by neuro-anatomic distribution 13 of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle 14 weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is 15 involvement of the lower back, positive straight-leg raising test (sitting and supine).” 16 “[A] report of atrophy is not acceptable as evidence of significant motor loss without 17 circumferential measurements of both thighs and lower legs, or both upper and lower 18 arms, as appropriate,” and must be accompanied by measure of the strength of the 19 muscles in question generally based on a grading system of 0 to 5. 20 Listing 1.00(B)(2)(a) defines functional loss as the inability to ambulate 21 effectively or perform fine and gross movements effectively on a sustained basis for any 22 reason, including pain. 23 effectively means an extreme limitation of the ability to walk; i.e., an impairment(s) that 24 interferes very seriously with the individual’s ability to independently initiate, sustain, or 25 complete activities.” Ineffective ambulation generally means the claimant is unable to 26 walk without the use of a walker, two crutches, or two canes. The ALJ “particularly 27 considered the criteria specified under section 1.00 generally of the Listing of Under Listing 1.00(B)(2)(b)(1), “[i]nability to ambulate 28 -7- 1 impairments” and concluded that “the medical evidence does not establish limitations of 2 Listing level security.” The ALJ elaborated: 10 Specifically, physical examinations were largely “normal,” “within normal limits,” and “unremarkable.” Findings repeatedly included “good” muscle strength, bulk and tone; “normal” gait; “normal” range of motion, flexion and extension; “unremarkable” sensory results; and “normal” deep tendon reflexes, with normal neurological findings as well (Exhibits 1F; 2F; 3F; 6F; 22F; 25F; 26F; 27F), despite positive MRI findings with nerve root pressure (Exhibit 25F). Additionally, the claimant uses no assistive device to ambulate and there has been no surgical intervention for her back impairment. Treatment was essentially routine and conservative in nature, consisting of physical therapy and epidural injections, with evidenced efficacy of the claimant’s physical therapy and medication regimen (Exhibits 23F; 25F). 11 Plaintiff contends “the record provides sufficient evidence to meet or medically 12 equal the requirements of Listing 1.04(A),” but she does not identify any evidence of 13 “motor loss (atrophy with associated muscle weakness or muscle weakness).” Plaintiff 14 cites to office visit notes showing decreased range of motion of the spine on several dates 15 in 2010, but the notes also show Plaintiff denied any muscular weakness or atrophy. 16 Similarly, she cites to the physical therapy initial evaluation in April 2011 to show she 17 reported low back pain with radicular symptoms down the left leg, but the evaluation also 18 states that testing showed minimal to moderate tightness in the lumbar paraspinal 19 muscles, negative straight-leg test, and negative quadrant test (L-Spine). Moreover, after 20 8 weeks of physical therapy, her gait and posture had returned to normal, her spine had 21 100% active range of motion, and her bilateral muscle strength was 5/5. 3 4 5 6 7 8 9 22 Therefore, the ALJ fully considered whether the medical evidence shows that 23 Plaintiff has an impairment or combination of impairments that meets or medically equals 24 the general requirements for any musculoskeletal listing, and substantial evidence 25 establishes that Plaintiff does not have an impairment or combination of impairments that 26 meets or medically equals Listing 1.04(A). 27 28 -8- 1 IT IS THEREFORE ORDERED that the final decision of the Commissioner of 2 Social Security is affirmed. 3 terminate this case. 4 The Clerk shall enter judgment accordingly and shall Dated this 25th day of April, 2014. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

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