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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Monica Rae Eldredge,

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Plaintiff,

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Commissioner
Administration,

ORDER

v.

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No. CV-16-02933-PHX-JAT

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff’s appeal of Defendant’s denial of her claim

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for social security disability benefits. Plaintiff argues that the Administrative Law Judge

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(“ALJ”) erred in denying her claim for benefits in four ways: 1) the ALJ failed to give

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adequate reasons for rejecting the opinion of Plaintiff’s treating neurologist, Dr.

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Patterson; 2) the ALJ posed the wrong question to the vocational expert (“VE”); 3) the

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examining and non-examining physicians, upon whose opinions the ALJ relied, did not

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have relevant medical records; and 4) the ALJ failed to provide clear and convincing

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reasons for rejecting Plaintiff’s testimony regarding her symptoms and limitations. (Doc.

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9 at 1). The Court will address each of these claims of error below.

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I.

Review of ALJ Decision

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The ALJ’s decision to deny benefits will be overturned “only if it is not supported

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by substantial evidence or is based on legal error.” Magallanes v. Bowen,

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881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means

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more than a mere scintilla, but less than a preponderance. Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

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The ALJ is responsible for resolving conflicts in medical testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039

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(9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence

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supports the ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d

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498, 501 (9th Cir. 1989). On the other hand, the Court “may not affirm simply by

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isolating a specific quantum of supporting evidence.” Id. (quotation and citation omitted).

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Finally, the Court is not charged with reviewing the evidence and making its own

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judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is

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constrained to the reasons asserted by the ALJ and the evidence relied on in support of

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those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

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II.

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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.

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A.

Whether

the

Examining

and

Non-examining

Physicians

had

Substantial Evidence to Consider in Forming their Opinions

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Plaintiff dedicates one sentence of her brief to this argument, which is “The ALJ

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gave the opinions of Dr. Boatman and Bargan significant weight, their opinions cannot

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constitute substantial evidence to support the Decision because they did not have any

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treatment evidence to consider.” (Doc. 9 at 23). Plaintiff cites “fn 2, 20” to support this

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argument.

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Preliminary, the Court cannot decipher Plaintiff’s citation.

Footnote 2 of

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Plaintiff’s brief does not reference this topic. The brief does not have a footnote 20. The

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ALJ’s opinion has no footnotes. Thus, Plaintiff has made an argument with no factual or

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legal support.

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The Court has reviewed the ALJ’s decision, which states “Significant weight is

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further afforded to the January 2013 and July 2013 physical assessments of State

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disability physicians, Dr. Bargan and Dr. Boatman who, after review of the medical

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record, assessed the claimant capable of….” (Doc. 8-3 at 31).1 The ALJ then listed the

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doctor’s conclusions about claimant’s ability to work in light of “the medical record as a

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whole.” Id. The Court has no reason to believe the ALJ or the doctors are lying when

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the record states that they reviewed the entire medical record.

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claiming she has been disabled since April of 2008, so by the 2013 assessments, there

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was a medical record to review.

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evidence” that Plaintiff now complains the doctors did not have the benefit of; however,

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the Court finds that given Plaintiff’s alleged onset date of 2008, assessments in 2013 are

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adequate to review her medical record and constitute substantial evidence. Accordingly,

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the ALJ did not commit error in this regard.

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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

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Citations to the ALJ’s opinion are to the page numbers in this Court’s record,
not the ALJ’s internal numbering.
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argument, Plaintiff argues that although the ALJ claimed to be giving significant weight

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to the 2011 assessment of State agency physician Dr. Starace, the ALJ failed to give

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adequate reasons for not incorporating all of Dr. Starace’s limitations. (Doc. 9 at 23-24).

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Plaintiff has not cited, and the Court has not located, any law that requires the ALJ to

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give explicit reasons for rejecting all or part of a State agency physician’s opinion.

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Moreover, as Defendant notes, the ALJ’s residual functional capacity almost

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mirrors the limitations found by Dr. Starace. (Doc. 13 at 8). Therefore, this argument

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also fails as a matter of fact because the ALJ did include Dr. Starace’s limitations.

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Accordingly, the ALJ did not commit error in this regard.

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B.

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Plaintiff argues the ALJ failed to give clear and convincing reasons for finding

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claimant’s symptom testimony not credible. (Doc. 9 at 24). Defendant argues the ALJ

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did not commit error because the ALJ gave clear and convincing reasons for not finding

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Plaintiff’s symptom testimony regarding the severity of her symptoms to be credible.

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(Doc. 13 at 9, 8-17). Defendant also argues that even if the Court found one of the ALJ’s

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reasons improper, the Court should nonetheless affirm the decision because finding only

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one reason improper would be harmless error given that Plaintiff did not appeal all of the

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reasons given by the ALJ. (Doc. 13 at 9-10).

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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

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clinical signs, significant medical

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abnormalities that establish pain or symptoms of the such severity as to

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prevent working; thus, the ALJ said he “must conclude” Plaintiff

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exaggerates her physical and mental symptoms (Doc. 8-3 at 24);

findings,

or any

neurological

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 Plaintiff’s description of her daily activities is inconsistent with her

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symptom testimony; specifically Plaintiff maintains her own personal care

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and hygiene; lives with her boyfriend and cooks, cleans, does light

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household chores, shops, uses public transportation, watches television,

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reads, plays board games, takes walks, has no issues paying attention, and

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finishes what she starts (Doc. 8-3 at 24);

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 Plaintiff has a somewhat normal level of daily interactions including calling

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her grandmothers, living with her boyfriend, shopping for groceries,

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attending AA meetings at her church, and using public transportation (Doc.

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8-3 at 22, 24);

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 As part of Plaintiff’s daily activities after her alleged onset date, Plaintiff

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worked, although not at the substantial gainful activity level, which

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indicates a greater level of daily activity than Plaintiff self-reported (Doc.

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8-3 at 24-25);

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 Plaintiff has not sought medical care at a level that one would expect of

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someone with the symptoms Plaintiff claims; specifically, Plaintiff did not

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seek specialized neurological care between her alleged onset date in 2008

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and 2013 (while claiming disabling cognitive issues); Plaintiff never sought

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mental health treatment (while claiming disabling anxiety and depression);

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Plaintiff has also had significant gaps in treatment (for example not seeking

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her neurologist for almost one year between visits); and Plaintiff has had

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poor compliance with the doctor’s recommended therapy or treatment (for

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example 2011 treatment records encourage Plaintiff to quit drinking, but

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the record shows she continued drinking through at least 2012) (Doc. 8-3 at

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25);
 Plaintiff’s seizures were controlled with anti-seizure medication (Doc. 8-3

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at 25);2 and

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 Plaintiff’s credibility was diminished by the fact that the medical records

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show that Plaintiff told various treatment providers substantially

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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.
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inconsistent statements about her alcohol use (Doc. 8-3 at 25-26).

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The Court finds that the all of these reasons offered by the ALJ provide clear and

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convincing reasons to discount Plaintiff’s credibility. First, the lack of supportive clinical

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evidence is a clear and convincing reason to discount claimant’s credibility. See Burch v.

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Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot

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form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider

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in his credibility analysis.”). Here, Plaintiff argues that the record shows supportive

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clinical evidence; therefore, the ALJ is factually incorrect. (Doc. 9 at 24-25). However,

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the ALJ is correct that there is no clinical evidence to support symptoms of the severity

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Plaintiff claims.

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Next, the inconsistencies between Plaintiff’s daily activities and her symptom

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testimony is a clear and convincing reason to discount Plaintiff’s credibility. See

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Tommasetti v. Astue, 533 F.3d 1035, 1039 (9th Cir. 2008). Plaintiff does not dispute the

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ALJ’s finding in this regard as a claim of error on appeal.

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Further, Plaintiff’s failure to seek or comply with treatment as would be expected

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of someone with Plaintiff’s claimed symptoms can be a clear and convincing reason to

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discount Plaintiff’s credibility. Id. In a footnote, Plaintiff argues that such reason should

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not be a clear and convincing reason in this case because claimant’s mental health or

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neurological issues might be a basis for her failing to seek or comply with treatment.

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(Doc. 9 at 25 n. 17). However, Defendant notes that the Court of Appeals has stated that

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a mental medical condition overcomes Plaintiff’s failure to seek or follow treatment as a

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valid reason to discredit her symptom testimony only if there is evidence in the record

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that the failure to seek or follow treatment was due to the medical condition. (Doc. 13 at

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13 (citing Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012))). Plaintiff does not

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address Molina in her Reply, and instead argues the ALJ cannot pick and choose among

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parts of the medical record. (Doc. 14 at 6). Applying Molina, the Court find that in this

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case there is no evidence in the record that Plaintiff’s failure to seek or follow treatment

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was due to a mental medical condition, and Plaintiff’s argument to the contrary is

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speculation. Accordingly, this reason given by the ALJ is a clear and convincing reason

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to discredit Plaintiff’s symptom testimony.

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Finally, Plaintiff not being honest with her doctors about her alcohol use is a

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reason to discount Plaintiff’s credibility about her symptoms. Tommasetti, 533 F.3d at

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1039 (ALJ may find Plaintiff not credible if she has made prior inconsistent statements or

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otherwise appears less than candid). Plaintiff does not argue on appeal that this finding

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by the ALJ was not a clear and convincing reason to discount Plaintiff’s credibility.

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Based on all of the foregoing, the Court concludes the ALJ gave clear and

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convincing reasons to not fully credit Plaintiff’s symptom testimony. Therefore, the ALJ

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did not commit error in not fully crediting Plaintiff’s symptom testimony.

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C.

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Plaintiff argues that the ALJ failed to give specific and legitimate reasons,

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supported by substantial evidence, to reject the opinion of treating physician, Dr.

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Patterson. (Doc. 9 at 19 (citing Garrison v. Colvin, 759 F.3d 995 at 1009 (9th Cir.

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2014)). Defendant responds and notes that Dr. Patterson’s opinion is contradicted by 7

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other doctors’ opinions in the record (Doc. 13 at 4 n. 1) and agrees with Plaintiff that the

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specific and legitimate reasons supported by substantial evidence standard applies. (Doc.

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13 at 3). However, Defendant argues that the ALJ gave specific and legitimate reasons

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supported by substantial evidence to reject Dr. Patterson’s opinion. (Doc. 13 at 3-7).

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Treating Physician – Dr. Patterson

The ALJ gave 9 reasons for giving no weight to Dr. Patterson’s opinions;
specifically:

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 the opinions are not consistent with the medical records;

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 the opinions are not supported by the doctor’s own clinical and laboratory

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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;

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 the opinions do not recognize that claimant’s seizures are controlled by

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medication;

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 the opinions do not consider that claimant continues to drink alcohol;

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 the opinions are contradicted by 7 other doctors and the other doctors’

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opinions are supported by medically acceptable clinical and laboratory

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findings and are consistent with the medical record as a whole;

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 Dr. Patterson rendered opinion’s outside her area of expertize;3 and

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 the limitations found by Dr. Patterson are inconsistent with claimant’s self-

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reported activities of daily living.
(Doc. 8-3 at 30).

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Plaintiff does not argue that these proffered reasons are not specific and legitimate

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reasons to reject the opinion of a treating physician. Instead, Plaintiff argues that these

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reasons are not supported by substantial evidence of record.

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The Court has reviewed the record as a whole and finds that each of the ALJ’s

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reasons is supported by substantial evidence of record. For example, turning to the ALJ’s

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third reason, the ALJ may give little weight to the opinion of a treating physician if it is

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based on claimant’s subjective symptom testimony if that testimony has been properly

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discredited. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, the ALJ

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gave little weight to Dr. Patterson’s opinions because, since Dr. Patterson performed no

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objective tests, her opinions were based only on Plaintiff’s self-reported symptoms. (Doc.

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8-3 at 30).

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By way of further example, Plaintiff argues that the ALJ’s eighth reason — the

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doctor gave an opinion outside her area of expertise — was inadequate because “The

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doctor is uniquely qualified to opine regarding the functional limitations Plaintiff’s

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[traumatic brain injury] causes.” (Doc. 9 at 21). Plaintiff cites nothing in support of this

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argument (other than two footnotes in her own brief that are not relevant to Dr.

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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).
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Patterson’s qualifications). The ALJ is responsible for resolving conflicts in the medical

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testimony, and this Court cannot substitute its judgment for that of the ALJ (Matney, 981

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F.2d at 1019); and more to the point, this Court cannot override the ALJ’s determination

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of Dr. Patterson’s area of expertise based on Plaintiff’s unsupported assertion about Dr.

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Patterson’s unique qualifications.

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Accordingly, because the Court finds that all 9 reasons given by the ALJ were

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specific and legitimate reasons supported by substantial evidence of record to reject the

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opinion of the treating physician, the Court finds the ALJ did not commit error in giving

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no weight to Dr. Patterson’s opinion.

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D.

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Plaintiff argues that the ALJ failed to include two limitations of Plaintiff in posing

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the hypothetical to the VE about Plaintiff’s ability to work. (Doc. 9 at 22-23). Plaintiff

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argues that the ALJ should have expressly included: 1) a limitation of a .3 percentile of

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efficiency in processing speed/pace; and 2) Plaintiff’s functioning under stress. (Doc. 14

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at 5).

Plaintiff’s Residual Functional Capacity

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Turning to stress first, any limitation based on stress would be founded in Dr.

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Patterson’s opinion, which the Court has already concluded the ALJ properly rejected.

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Regarding Plaintiff’s low processing speed, the ALJ included limitations that Plaintiff

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should avoid all use of hazardous machinery. (Doc. 8-3 at 23). Further, the ALJ limited

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Plaintiff to simple work procedures and instructions. (Id.) The ALJ also included that

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Plaintiff was limited to simple work related decisions and responding to only basic work

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setting changes and only with supervision that is direct and concrete. (Id.). Given

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Plaintiff’s daily activities, Plaintiff fails to show that these limitations found by the ALJ

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are inadequate to account for Plaintiff’s low processing speed/pace. Therefore, the Court

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finds the ALJ did not commit error in determining Plaintiff’s limitations for purposes of

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her residual functional capacity.

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E.

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In a footnote at the end of her brief Plaintiff states, “The ALJ also rejected the

Waived Arguments

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third party statements of treating and lay witnesses that supported Plaintiff’s claims

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without complying with SSR 06-03p ….” (Doc. 9 at 24 n 16). The Court does not know

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who the third-party-treating witnesses or the third-party-lay witnesses are about whom

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Plaintiff complains. Because Plaintiff failed to advance sufficient facts or law for the

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Court to actually rule on this argument, the Court deems it waived on appeal. See NW

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Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1996).

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the

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Court shall enter judgment accordingly.4
Dated this 24th day of August, 2017.

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To the extent a mandate is required, the judgment shall serve as the mandate.
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