Eldredge v. Colvin

Filing 15

ORDER - IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the Court shall enter judgment accordingly. (See document for complete details). Signed by Senior Judge James A Teilborg on 8/24/17. (SLQ)

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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 Monica Rae Eldredge, 10 Plaintiff, 11 Commissioner Administration, ORDER v. 12 No. CV-16-02933-PHX-JAT 13 of Social Security Defendant. 14 15 Pending before the Court is Plaintiff’s appeal of Defendant’s denial of her claim 16 for social security disability benefits. Plaintiff argues that the Administrative Law Judge 17 (“ALJ”) erred in denying her claim for benefits in four ways: 1) the ALJ failed to give 18 adequate reasons for rejecting the opinion of Plaintiff’s treating neurologist, Dr. 19 Patterson; 2) the ALJ posed the wrong question to the vocational expert (“VE”); 3) the 20 examining and non-examining physicians, upon whose opinions the ALJ relied, did not 21 have relevant medical records; and 4) the ALJ failed to provide clear and convincing 22 reasons for rejecting Plaintiff’s testimony regarding her symptoms and limitations. (Doc. 23 9 at 1). The Court will address each of these claims of error below. 24 I. Review of ALJ Decision 25 The ALJ’s decision to deny benefits will be overturned “only if it is not supported 26 by substantial evidence or is based on legal error.” Magallanes v. Bowen, 27 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means 28 more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 1 157 F.3d 715, 720 (9th Cir. 1998). 2 “The inquiry here is whether the record, read as a whole, yields such evidence as 3 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 4 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether 5 there is substantial evidence to support a decision, the Court considers the record as a 6 whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence 7 that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is 8 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 9 must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 10 logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see 11 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 12 because “[t]he trier of fact and not the reviewing court must resolve conflicts in the 13 evidence, and if the evidence can support either outcome, the court may not substitute its 14 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). 15 The ALJ is responsible for resolving conflicts in medical testimony, determining 16 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 17 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence 18 supports the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 19 498, 501 (9th Cir. 1989). On the other hand, the Court “may not affirm simply by 20 isolating a specific quantum of supporting evidence.” Id. (quotation and citation omitted). 21 Finally, the Court is not charged with reviewing the evidence and making its own 22 judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is 23 constrained to the reasons asserted by the ALJ and the evidence relied on in support of 24 those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 25 II. 26 27 Issues on Appeal Because some of the errors on appeal argued by Plaintiff build on each other, the Court will not take them in the order presented by Plaintiff. 28 -2- 1 2 A. Whether the Examining and Non-examining Physicians had Substantial Evidence to Consider in Forming their Opinions 3 Plaintiff dedicates one sentence of her brief to this argument, which is “The ALJ 4 gave the opinions of Dr. Boatman and Bargan significant weight, their opinions cannot 5 constitute substantial evidence to support the Decision because they did not have any 6 treatment evidence to consider.” (Doc. 9 at 23). Plaintiff cites “fn 2, 20” to support this 7 argument. 8 Preliminary, the Court cannot decipher Plaintiff’s citation. Footnote 2 of 9 Plaintiff’s brief does not reference this topic. The brief does not have a footnote 20. The 10 ALJ’s opinion has no footnotes. Thus, Plaintiff has made an argument with no factual or 11 legal support. 12 The Court has reviewed the ALJ’s decision, which states “Significant weight is 13 further afforded to the January 2013 and July 2013 physical assessments of State 14 disability physicians, Dr. Bargan and Dr. Boatman who, after review of the medical 15 record, assessed the claimant capable of….” (Doc. 8-3 at 31).1 The ALJ then listed the 16 doctor’s conclusions about claimant’s ability to work in light of “the medical record as a 17 whole.” Id. The Court has no reason to believe the ALJ or the doctors are lying when 18 the record states that they reviewed the entire medical record. 19 claiming she has been disabled since April of 2008, so by the 2013 assessments, there 20 was a medical record to review. 21 evidence” that Plaintiff now complains the doctors did not have the benefit of; however, 22 the Court finds that given Plaintiff’s alleged onset date of 2008, assessments in 2013 are 23 adequate to review her medical record and constitute substantial evidence. Accordingly, 24 the ALJ did not commit error in this regard. 25 26 1. Further, Plaintiff is The Court is unclear as to the exact “treatment Dr. Starace Under this same heading, but seemingly completely unrelated to the above 27 28 1 Citations to the ALJ’s opinion are to the page numbers in this Court’s record, not the ALJ’s internal numbering. -3- 1 argument, Plaintiff argues that although the ALJ claimed to be giving significant weight 2 to the 2011 assessment of State agency physician Dr. Starace, the ALJ failed to give 3 adequate reasons for not incorporating all of Dr. Starace’s limitations. (Doc. 9 at 23-24). 4 Plaintiff has not cited, and the Court has not located, any law that requires the ALJ to 5 give explicit reasons for rejecting all or part of a State agency physician’s opinion. 6 Moreover, as Defendant notes, the ALJ’s residual functional capacity almost 7 mirrors the limitations found by Dr. Starace. (Doc. 13 at 8). Therefore, this argument 8 also fails as a matter of fact because the ALJ did include Dr. Starace’s limitations. 9 Accordingly, the ALJ did not commit error in this regard. 10 B. 11 Plaintiff argues the ALJ failed to give clear and convincing reasons for finding 12 claimant’s symptom testimony not credible. (Doc. 9 at 24). Defendant argues the ALJ 13 did not commit error because the ALJ gave clear and convincing reasons for not finding 14 Plaintiff’s symptom testimony regarding the severity of her symptoms to be credible. 15 (Doc. 13 at 9, 8-17). Defendant also argues that even if the Court found one of the ALJ’s 16 reasons improper, the Court should nonetheless affirm the decision because finding only 17 one reason improper would be harmless error given that Plaintiff did not appeal all of the 18 reasons given by the ALJ. (Doc. 13 at 9-10). 19 20 21 Claimant’s Subjective Symptom Testimony The ALJ gave the following reasons for not finding Plaintiff’s symptom testimony credible:  The medical records failed to demonstrate the presence of any pathological 22 clinical signs, significant medical 23 abnormalities that establish pain or symptoms of the such severity as to 24 prevent working; thus, the ALJ said he “must conclude” Plaintiff 25 exaggerates her physical and mental symptoms (Doc. 8-3 at 24); findings, or any neurological 26  Plaintiff’s description of her daily activities is inconsistent with her 27 symptom testimony; specifically Plaintiff maintains her own personal care 28 and hygiene; lives with her boyfriend and cooks, cleans, does light -4- 1 household chores, shops, uses public transportation, watches television, 2 reads, plays board games, takes walks, has no issues paying attention, and 3 finishes what she starts (Doc. 8-3 at 24); 4  Plaintiff has a somewhat normal level of daily interactions including calling 5 her grandmothers, living with her boyfriend, shopping for groceries, 6 attending AA meetings at her church, and using public transportation (Doc. 7 8-3 at 22, 24); 8  As part of Plaintiff’s daily activities after her alleged onset date, Plaintiff 9 worked, although not at the substantial gainful activity level, which 10 indicates a greater level of daily activity than Plaintiff self-reported (Doc. 11 8-3 at 24-25); 12  Plaintiff has not sought medical care at a level that one would expect of 13 someone with the symptoms Plaintiff claims; specifically, Plaintiff did not 14 seek specialized neurological care between her alleged onset date in 2008 15 and 2013 (while claiming disabling cognitive issues); Plaintiff never sought 16 mental health treatment (while claiming disabling anxiety and depression); 17 Plaintiff has also had significant gaps in treatment (for example not seeking 18 her neurologist for almost one year between visits); and Plaintiff has had 19 poor compliance with the doctor’s recommended therapy or treatment (for 20 example 2011 treatment records encourage Plaintiff to quit drinking, but 21 the record shows she continued drinking through at least 2012) (Doc. 8-3 at 22 25);  Plaintiff’s seizures were controlled with anti-seizure medication (Doc. 8-3 23 at 25);2 and 24 25  Plaintiff’s credibility was diminished by the fact that the medical records 26 show that Plaintiff told various treatment providers substantially 27 2 28 Plaintiff does not challenge the accuracy of this finding; however, she argues that her seizures are not the basis of her alleged disability. Thus, the Court has not considered this reason. -5- 1 inconsistent statements about her alcohol use (Doc. 8-3 at 25-26). 2 The Court finds that the all of these reasons offered by the ALJ provide clear and 3 convincing reasons to discount Plaintiff’s credibility. First, the lack of supportive clinical 4 evidence is a clear and convincing reason to discount claimant’s credibility. See Burch v. 5 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot 6 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider 7 in his credibility analysis.”). Here, Plaintiff argues that the record shows supportive 8 clinical evidence; therefore, the ALJ is factually incorrect. (Doc. 9 at 24-25). However, 9 the ALJ is correct that there is no clinical evidence to support symptoms of the severity 10 Plaintiff claims. 11 Next, the inconsistencies between Plaintiff’s daily activities and her symptom 12 testimony is a clear and convincing reason to discount Plaintiff’s credibility. See 13 Tommasetti v. Astue, 533 F.3d 1035, 1039 (9th Cir. 2008). Plaintiff does not dispute the 14 ALJ’s finding in this regard as a claim of error on appeal. 15 Further, Plaintiff’s failure to seek or comply with treatment as would be expected 16 of someone with Plaintiff’s claimed symptoms can be a clear and convincing reason to 17 discount Plaintiff’s credibility. Id. In a footnote, Plaintiff argues that such reason should 18 not be a clear and convincing reason in this case because claimant’s mental health or 19 neurological issues might be a basis for her failing to seek or comply with treatment. 20 (Doc. 9 at 25 n. 17). However, Defendant notes that the Court of Appeals has stated that 21 a mental medical condition overcomes Plaintiff’s failure to seek or follow treatment as a 22 valid reason to discredit her symptom testimony only if there is evidence in the record 23 that the failure to seek or follow treatment was due to the medical condition. (Doc. 13 at 24 13 (citing Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012))). Plaintiff does not 25 address Molina in her Reply, and instead argues the ALJ cannot pick and choose among 26 parts of the medical record. (Doc. 14 at 6). Applying Molina, the Court find that in this 27 case there is no evidence in the record that Plaintiff’s failure to seek or follow treatment 28 was due to a mental medical condition, and Plaintiff’s argument to the contrary is -6- 1 speculation. Accordingly, this reason given by the ALJ is a clear and convincing reason 2 to discredit Plaintiff’s symptom testimony. 3 Finally, Plaintiff not being honest with her doctors about her alcohol use is a 4 reason to discount Plaintiff’s credibility about her symptoms. Tommasetti, 533 F.3d at 5 1039 (ALJ may find Plaintiff not credible if she has made prior inconsistent statements or 6 otherwise appears less than candid). Plaintiff does not argue on appeal that this finding 7 by the ALJ was not a clear and convincing reason to discount Plaintiff’s credibility. 8 Based on all of the foregoing, the Court concludes the ALJ gave clear and 9 convincing reasons to not fully credit Plaintiff’s symptom testimony. Therefore, the ALJ 10 did not commit error in not fully crediting Plaintiff’s symptom testimony. 11 C. 12 Plaintiff argues that the ALJ failed to give specific and legitimate reasons, 13 supported by substantial evidence, to reject the opinion of treating physician, Dr. 14 Patterson. (Doc. 9 at 19 (citing Garrison v. Colvin, 759 F.3d 995 at 1009 (9th Cir. 15 2014)). Defendant responds and notes that Dr. Patterson’s opinion is contradicted by 7 16 other doctors’ opinions in the record (Doc. 13 at 4 n. 1) and agrees with Plaintiff that the 17 specific and legitimate reasons supported by substantial evidence standard applies. (Doc. 18 13 at 3). However, Defendant argues that the ALJ gave specific and legitimate reasons 19 supported by substantial evidence to reject Dr. Patterson’s opinion. (Doc. 13 at 3-7). 20 21 Treating Physician – Dr. Patterson The ALJ gave 9 reasons for giving no weight to Dr. Patterson’s opinions; specifically: 22  the opinions are not consistent with the medical records; 23  the opinions are not supported by the doctor’s own clinical and laboratory 24 25 26 27 28 findings;  the opinions are based on the claimant’s subjective complaints rather than any objective evidence;  Dr. Patterson had a short-term and sporadic treatment relationship with claimant, including a significant gap in treatment of almost one year; -7-  the opinions do not recognize that claimant’s seizures are controlled by 1 2 medication; 3  the opinions do not consider that claimant continues to drink alcohol; 4  the opinions are contradicted by 7 other doctors and the other doctors’ 5 opinions are supported by medically acceptable clinical and laboratory 6 findings and are consistent with the medical record as a whole; 7  Dr. Patterson rendered opinion’s outside her area of expertize;3 and 8  the limitations found by Dr. Patterson are inconsistent with claimant’s self- 9 10 reported activities of daily living. (Doc. 8-3 at 30). 11 Plaintiff does not argue that these proffered reasons are not specific and legitimate 12 reasons to reject the opinion of a treating physician. Instead, Plaintiff argues that these 13 reasons are not supported by substantial evidence of record. 14 The Court has reviewed the record as a whole and finds that each of the ALJ’s 15 reasons is supported by substantial evidence of record. For example, turning to the ALJ’s 16 third reason, the ALJ may give little weight to the opinion of a treating physician if it is 17 based on claimant’s subjective symptom testimony if that testimony has been properly 18 discredited. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the ALJ 19 gave little weight to Dr. Patterson’s opinions because, since Dr. Patterson performed no 20 objective tests, her opinions were based only on Plaintiff’s self-reported symptoms. (Doc. 21 8-3 at 30). 22 By way of further example, Plaintiff argues that the ALJ’s eighth reason — the 23 doctor gave an opinion outside her area of expertise — was inadequate because “The 24 doctor is uniquely qualified to opine regarding the functional limitations Plaintiff’s 25 [traumatic brain injury] causes.” (Doc. 9 at 21). Plaintiff cites nothing in support of this 26 argument (other than two footnotes in her own brief that are not relevant to Dr. 27 28 3 For example, Dr. Patterson is a neurologist (Doc. 9 at 21), but opined about Plaintiff’s mental illness and how it is impacted by stress (Doc. 9 at 23). -8- 1 Patterson’s qualifications). The ALJ is responsible for resolving conflicts in the medical 2 testimony, and this Court cannot substitute its judgment for that of the ALJ (Matney, 981 3 F.2d at 1019); and more to the point, this Court cannot override the ALJ’s determination 4 of Dr. Patterson’s area of expertise based on Plaintiff’s unsupported assertion about Dr. 5 Patterson’s unique qualifications. 6 Accordingly, because the Court finds that all 9 reasons given by the ALJ were 7 specific and legitimate reasons supported by substantial evidence of record to reject the 8 opinion of the treating physician, the Court finds the ALJ did not commit error in giving 9 no weight to Dr. Patterson’s opinion. 10 D. 11 Plaintiff argues that the ALJ failed to include two limitations of Plaintiff in posing 12 the hypothetical to the VE about Plaintiff’s ability to work. (Doc. 9 at 22-23). Plaintiff 13 argues that the ALJ should have expressly included: 1) a limitation of a .3 percentile of 14 efficiency in processing speed/pace; and 2) Plaintiff’s functioning under stress. (Doc. 14 15 at 5). Plaintiff’s Residual Functional Capacity 16 Turning to stress first, any limitation based on stress would be founded in Dr. 17 Patterson’s opinion, which the Court has already concluded the ALJ properly rejected. 18 Regarding Plaintiff’s low processing speed, the ALJ included limitations that Plaintiff 19 should avoid all use of hazardous machinery. (Doc. 8-3 at 23). Further, the ALJ limited 20 Plaintiff to simple work procedures and instructions. (Id.) The ALJ also included that 21 Plaintiff was limited to simple work related decisions and responding to only basic work 22 setting changes and only with supervision that is direct and concrete. (Id.). Given 23 Plaintiff’s daily activities, Plaintiff fails to show that these limitations found by the ALJ 24 are inadequate to account for Plaintiff’s low processing speed/pace. Therefore, the Court 25 finds the ALJ did not commit error in determining Plaintiff’s limitations for purposes of 26 her residual functional capacity. 27 E. 28 In a footnote at the end of her brief Plaintiff states, “The ALJ also rejected the Waived Arguments -9- 1 third party statements of treating and lay witnesses that supported Plaintiff’s claims 2 without complying with SSR 06-03p ….” (Doc. 9 at 24 n 16). The Court does not know 3 who the third-party-treating witnesses or the third-party-lay witnesses are about whom 4 Plaintiff complains. Because Plaintiff failed to advance sufficient facts or law for the 5 Court to actually rule on this argument, the Court deems it waived on appeal. See NW 6 Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1996). 7 III. Conclusion 8 Based on the foregoing, 9 IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the 10 11 Court shall enter judgment accordingly.4 Dated this 24th day of August, 2017. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 To the extent a mandate is required, the judgment shall serve as the mandate. - 10 -

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