Chapman v. Colvin

Filing 16

ORDER: The Commissioner's decision is affirmed. The Clerk is directed to enter judgment and terminate this action. Signed by Judge David G Campbell on 8/26/2014. (See Order for details)(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cindy Lynette Chapman,
Plaintiff,

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ORDER

v.

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No. CV-13-01674-PHX-DGC

Carolyn W. Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Cindy Lynette Chapman seeks judicial

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review of the Commissioner’s decision finding her not disabled within the meaning of the

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Social Security Act. Doc. 13. For the reasons that follow, the Court will affirm the

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Commissioner’s decision.

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I.

Background.

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Plaintiff applied for disability and supplemental security insurance benefits on

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July 29, 2009, alleging disability beginning June 1, 2008. Doc. 13 at 1. After a hearing

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on March 7, 2011, an administrative law judge (“ALJ”) issued an opinion finding

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Plaintiff not disabled (A.R. 35-43). Plaintiff’s request for review was denied by the

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Appeals Council and the ALJ’s opinion became the Commissioner’s final decision.

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Doc. 15 at 2.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the

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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

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may set aside the Commissioner’s disability determination only if the determination is

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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. In determining whether

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substantial evidence supports a decision, the court must consider the record as a whole

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and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

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As a general rule, “[w]here the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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A.

Five-Step Sequential Evaluation.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, but at step five the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has

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§ 404.1520(a) (4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At

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step three, the ALJ considers whether the claimant’s impairment or combination of

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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

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of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

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be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

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claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

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still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

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is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final

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step, where he determines whether the claimant can perform any other work based on the

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“severe”

medically

determinable

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physical

or

mental

impairment.

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claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

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claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ determined that Plaintiff meets the insured status

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requirements of the Social Security Act and that she has not engaged in substantial

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gainful activity since June 1, 2008. At step two, the ALJ found that Plaintiff has the

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severe impairments of pneumothorax, asthma, chronic fatigue, and obesity. At step three,

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the ALJ found that Plaintiff does not have an impairment or combination of impairments

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that meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20

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C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to perform less

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than the full range of sedentary work as defined in 20 C.F.R.. § 404.1567(a). At step

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five, the ALJ concluded that there are jobs that exist in significant numbers in the

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national economy that Plaintiff can perform.

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III.

Analysis.

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The only issue for review asserted at the outset of Plaintiff’s brief is that the ALJ’s

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decision is not supported by substantial evidence. Doc. 15 at 1. The Court, however, is

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only required to review those issues raised by the parties, see Lewis, 236 F.3d at 517

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n.13, and simply asserting that the ALJ’s decision is not supported by substantial

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evidence does not constitute raising a specific issue for review. Plaintiff does raise

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specific issues later in her brief. She argues that the ALJ erred in her determination about

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Plaintiff’s credibility. Doc. 13 at 5. Although not clear from her brief, Plaintiff appears

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to argue that the ALJ erred in her assessment of the opinion of Dr. Angulo, a state-agency

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examining physician. Doc. 13 at 8. She further argues that the ALJ’s RFC assessment is

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“not accurate, nor lawful[.]” Id. at 12. Finally, Plaintiff argues that the ALJ erred by not

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relying on testimony of the vocational expert that testified in this case. Id. at 13. The

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Court will consider each argument in turn.

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A.

Plaintiff’s Credibility.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

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whether the claimant presented objective medical evidence of an impairment that could

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reasonably be expected to produce some degree of the pain or other symptoms alleged;

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and, if there is no evidence of malingering, (2) reject the claimant’s testimony about the

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severity of the symptoms only by giving specific, clear, and convincing reasons for the

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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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First, the ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause her alleged symptoms. A.R. 39. Second, the ALJ found

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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the

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symptoms not credible to the extent they were inconsistent with the ALJ’s RFC

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assessment. A.R. 40.

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Plaintiff takes issue with the ALJ’s assessment of her medical records related to

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her pneumothoraces, which the ALJ concluded had resolved by late 2008. Plaintiff

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argues that even though her pneumothoraces may have resolved, “recurrent pleuritic

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chest pain interfered with [her] ability to take a deep breath[.]” Doc. 13 at 6. She goes

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on to argue that she was not “required to present herself to an emergency room every

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time a pneumothorax developed,” and that her treating physician “had sufficient

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information at least to infer that Plaintiff ‘may have had a small pneumothorax’ the

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previous day, even though it was no longer apparent on a chest x-ray[.]” Id. (citing

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A.R. 409). Plaintiff’s treating physician did note in December 2009 that Plaintiff may

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have had a small pneumothorax, but a chest x-ray conducted on that date noted that there

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were no pneumothoraces observed. A.R. 409. That Plaintiff’s treating physician stated

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in December 2009 that Plaintiff “may have had a pneumothorax” is not a basis for

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concluding that the ALJ committed legal error in her assessment of these medical

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records.

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The ALJ observed that in July 2008, Plaintiff was diagnosed with 30%

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pneumothorax but that subsequent examinations revealed improvement. A.R. 40. She

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noted that an August 2008 x-ray revealed that the pneumothorax had been reduced to

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20%, that a September 2008 x-ray showed a pneumothorax of 15-20%; that a CT scan

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performed in November 2008 “showed the left pneumothorax had resolved,” that a

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December 2009 x-ray “revealed the previous pneumothorax seen in the left base was no

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longer present and there was no other pneumothorax seen,” and that a January 2010 x-ray

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did not show any evidence of pneumothorax. Id. The ALJ further noted that there “are

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no medical records indicating the [Plaintiff] has had recent incidents of pneumothoraces,

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as records reveal the most recent episode was resolved by November 2008.” Id. These

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are specific, clear, and convincing reasons for discounting Plaintiff’s credibility.

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The ALJ next discussed Plaintiff’s asthma symptoms, observing that “medications

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appear to be effective in controlling the [Plaintiff]’s symptoms,” and that Plaintiff had

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undergone “minimal and conservative treatment.” Id. The ALJ also notes that Plaintiff

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has received “little treatment specifically relating to fatigue,” and that treatment records

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“from 2009 and 2010 only show occasional complaints of fatigue” and no “report[s] [of]

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malaise.” Id. Additionally, the ALJ noted that “in July 2010, the [Plaintiff] reported no

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problems with initiation or maintenance of sleeping and averaging 9 to 10 hours of sleep

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per night.”

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Plaintiff’s credibility.

Id.

These are specific, clear, and convincing reasons for discounting

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Plaintiff takes issue with the ALJ’s characterization of her complaints about

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fatigue as “occasional” and cites several places in the record where she complained about

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fatigue. Doc. 13 at 7-8. But Plaintiff’s citations are misleading. In many of the medical

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records cited by Plaintiff, “malaise and fatigue” are listed under the heading “Active

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Problems,” but later in the same record, under the heading “Review of Systems,” it is

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noted that Plaintiff was “Not feeling tired (fatigue) and not feeling poorly (malaise).”

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See, e.g., A.R. 415-16. This is not a basis for concluding that the ALJ committed legal

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error.

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The ALJ finally concluded that Plaintiff’s daily activities were “not limited to the

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extent one would expect, given the complaints of disabling symptoms and limitations,”

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and noted that Plaintiff’s alleged physical impairments did not appear to significantly

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limit her daily functional abilities. A.R. 41. The ALJ noted that Plaintiff “reported

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preparing simple meals, driving, shopping, managing finances, caring for her children,

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and working part time on a continuous basis for a number of years.” Id.

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Plaintiff argues that the ALJ’s discussion of Plaintiff’s activities of daily living is

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“internally inconsistent” because the ALJ noted that although Plaintiff “reported not

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being able to do all of these activities together on the same day, it is of importance that

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she is able to do all of these activities on a weekly basis.” A.R. 41. Plaintiff cites to Orn

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for the proposition that “daily activities may be grounds for an adverse credibility finding

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‘if a claimant is able to spend a substantial part of his day engaged in pursuits involving

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the performance of physical functions that are transferable to a work setting.’” 495 F.3d

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at 639 (quoting Fair v. Bowen, 885 F.2d 597. 603 (9th Cir. 1989)). But Plaintiff provides

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no support for her assertion that her activities of daily living “were not of the type or

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extent or frequency that would permit an inference [that Plaintiff] was able to engage in

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the physical demands of work.” Doc. 13 at 11. Considering the record as a whole,

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evidence that Plaintiff prepared meals, drove, shopped, managed finances, cared for

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children, and worked part time is relevant evidence that a reasonable person might accept

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as adequate to support the ALJ’s conclusion that Plaintiff was not as limited as she

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alleged. See Orn, 495 F.3d at 630.

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In sum, the reasons provided by the ALJ for discounting Plaintiff’s credibility are

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specific, clear, and convincing, and supported by substantial evidence. The ALJ did not

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err in her evaluation of Plaintiff’s credibility.
Dr. Angulo.1

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B.

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Plaintiff appears to contest the ALJ’s decision to give great weight to Dr. Angulo’s

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psychological assessment. The ALJ noted that Dr. Angulo indicated that “there are no

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indications that psychological factors are impeding her abilities to carry out activities of

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daily living affecting her cognitive capacities,” and ultimately concluded that Plaintiff’s

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“mental conditions were non-severe.” A.R. 38. Plaintiff argues that the “ALJ appears

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Plaintiff’s arguments on these points are confusing because she has included
them in the section of her brief about the ALJ’s credibility determination.
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simply to have relied on limited segments of the psychological report, out of context . . .

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and similarly misrepresented [Plaintiff]’s hearing testimony[.]” Doc. 13 at 10. But the

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ALJ does not appear to have considered Dr. Angulo’s opinion as to any of Plaintiff’s

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alleged mental health conditions in making her credibility determination. Rather, she

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relied on Dr. Angulo’s psychological examination to conclude that Plaintiff’s mental

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impairments were non-severe (A.R. 38), and then discounted Dr. Angulo’s physical

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assessment of Plaintiff (A.R. 41). The ALJ did not discuss depression or anxiety as a part

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of her analysis of Plaintiff’s credibility. A.R. 40-41.

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To the extent Plaintiff argues that the ALJ erred in her consideration of Dr.

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Angulo’s opinion by ignoring “discrepancies,” Plaintiff does not identify any

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discrepancies. Plaintiff cites Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001),

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for the proposition that a physician’s statements “must be read in the context of the

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overall diagnostic picture he draws,” but does not explain how the ALJ failed to read Dr.

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Angulo’s report in context. The Holohan court concluded that the ALJ there had erred

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because he was “selective in his reliance on [the physician]’s treatment notes,

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exaggerates in his description of their contents, and misattributes statements to [the

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physician].” 246 F.3d at 1205. Plaintiff has not identified the presence of any similar

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circumstances here.

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Dr. Angulo concluded that “[t]here are no indications that psychological factors

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are impeding [Plaintiff’s] abilities to carry out activities of daily living affecting her

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cognitive capacities,” and that “[f]rom a psychological point of view, no impediments are

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observed or detected at this point[.]” A.R. 319. The ALJ used this as a basis for her

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conclusion that Plaintiff’s depression was non-severe.

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identify any portion of Dr. Angulo’s report that the ALJ failed to consider, other than to

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highlight what Plaintiff told Dr. Angulo during the examination. Doc. 13 at 9. Plaintiff

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notes that she described “considerable anxiety” and “constant fatigue” to Dr. Angulo. Id.

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But Dr. Angulo clearly considered Plaintiff’s complaints in reaching his conclusion

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because he documented them in his report. A.R. 315-16.

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A.R. 38.

Plaintiff does not

Thus, the Court cannot

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conclude that the ALJ took Dr. Angulo’s conclusion that Plaintiff’s abilities were not

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impeded by psychological factors out of context.

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consideration of Dr. Angulo’s report.

The ALJ did not err in her

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Plaintiff also argues that she “objected at the hearing to the ALJ assigning any

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weight to Dr. Angulo’s opinions, because he had not been provided any significant

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historical medical records and because [Plaintiff] described, during the evaluation,

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several manifestations ‘likely to interfere at least episodically with the ability to work.’”

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Doc. 13 at 8. Plaintiff’s disagreement with the report of an examining physician is not a

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basis for reversal of the ALJ’s decision, absent a showing that the ALJ erred in her

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consideration of the report. Plaintiff has made no such showing.

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C.

Residual Functional Capacity.

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In her brief, Plaintiff “acknowledges that if this Court finds no material fact nor

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legal error with the ALJ’s adverse credibility finding, then it likely must, as a matter of

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law, except (sic) that the RFC determination is similarly devoid of material fact or legal

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error.” Doc. 13 at 12. Because the Court has concluded that the ALJ did not err in her

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evaluation of Plaintiff’s credibility, it concludes that the ALJ did not err in her RFC

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determination.

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D.

Vocational Expert.

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Plaintiff argues that the ALJ’s decision “did not rely on, and did not even mention,

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the vocational testimony, and particularly the part that substantiates [Plaintiff]’s claim she

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was, and remained, unable to perform [substantial gainful employment].” Doc. 13 at 13.

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She further argues that the vocational expert’s testimony “establishes that, if Plaintiff’s

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description of medical conditions that preclude her from working on a regular, sustained,

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and reliable schedule is deemed credible and a necessary aspect of the RFC

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determination, [Plaintiff] was unable to perform [substantial gainful employment].” Id.

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As noted above, however, the ALJ provided specific, clear, and convincing reasons for

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discounting Plaintiff’s credibility. Accordingly, the Court cannot conclude that the ALJ

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committed any error in her consideration of the vocational expert’s testimony.

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IT IS ORDERED:

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The Commissioner’s decision is affirmed.

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

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Dated this 26th day of August, 2014.

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