Klick v. Commissioner of Social Security Administration

Filing 19

ORDER - The ALJ's decision is affirmed and the Clerk is directed to enter judgment accordingly. Signed by Judge G Murray Snow on 7/20/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Alicia Klick,

No. CV-17-02018-PHX-GMS
Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Claimant Alicia Jeanne Klick’s appeal of the Social

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Security Administration’s (SSA) decision to deny disability insurance benefits and

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supplemental security income. (Doc. 16). For the following reasons, the Court affirms the

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denial of benefits.

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BACKGROUND

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Alicia Klick filed for disability benefits on April 2, 2013, alleging a disability

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onset date of May 16, 2011. Ms. Klick’s application for SSA disability benefits asserts

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traumatic brain injury, chronic pain, and an eye and sleep diagnosis. (Tr. 125). Her claim

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was denied on November 20, 2013; reconsideration was denied on June 16, 2014. (Tr.

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170–78; 184–91). Ms. Klick requested a hearing from an administrative law judge (ALJ),

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which was held on September 24, 2015. The ALJ determined that Ms. Klick had the

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following severe impairments: traumatic brain injury and hearing impairment. (Tr. 21).

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The ALJ found that Ms. Klick had the residual functional capacity (RFC) to perform a

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full range of work at all exertional levels. But, the ALJ assessed multiple non-exertional

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limitations, including: need for hearing aids, need to work in a quiet environment,

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moderate limitations on the ability to remember and carry out detailed instructions,

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moderate limitations on the ability to maintain attention and concentration, moderate

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limitations on the ability to perform work at a consistent pace, moderate limitations on

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the ability to interact with the general public and to get along with coworker, and other

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similar limitations. (Tr. 24). The ALJ found that, even with these restrictions, Ms. Klick

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could perform the work she had done in the past, namely working as a case manager or a

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nanny. (Tr. 33). The ALJ also concluded that Ms. Klick could perform other work that

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exists in significant numbers in the national economy. (Tr. 34). As such, the ALJ

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determined that Ms. Klick was not disabled under the Social Security Act. Id. The

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Appeals Council denied the request to review, making the Commissioner’s decision final.

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(Tr. 1–4). Ms. Klick now seeks judicial review of this decision pursuant to 42 U.S.C.

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§ 405(g).

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DISCUSSION
I.

Legal Standard

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A reviewing federal court will address only the issues raised by the claimant in the

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appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n. 13 (9th Cir.

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2001). A federal court may set aside a denial of disability benefits when that denial is

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either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart,

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278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less

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than a preponderance.” Id. (quotation omitted). It is “relevant evidence which,

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considering the record as a whole, a reasonable person might accept as adequate to

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support a conclusion.” Id. (quotation omitted).

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The ALJ is responsible for resolving conflicts in testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

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Cir. 1995). When evidence is “subject to more than one rational interpretation, [courts]

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must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court

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must resolve conflicts in evidence, and if the evidence can support either outcome, the

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court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981, F.2d

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1016, 1019 (9th Cir. 1992) (citations omitted).

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II.

Analysis

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Claimant alleges that the ALJ erred by (1) discounting the examining

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psychologist’s opinion and (2) rejecting the Claimant’s credibility and symptom

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testimony.

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A.

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Claimant states that “[a]s an initial matter, Klick disagrees with the ALJ’s

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assignment of weight to all medical opinions in this case . . . [h]owever, in the interest of

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streamlining Klick’s complex constellation of medical issues and assessments, Klick

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focuses on the ALJ’s error with regard to examining psychologist Brent Geary, Ph.D.”

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(Doc. 16, p. 17). Claimant did list all the providers’ whose opinions were discounted by

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the ALJ while detailing the medical evidence in the case. (Doc. 16, pp. 11–12). But that

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is not sufficient. Each of Claimant’s contentions “must be supported by specific reference

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to the portion of the record relied upon and by citations to statutes, regulations, and cases

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supporting [Claimant’s] position.” L.R. Civ. 16.1(a)(4). Each of the providers’ opinions

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were different in nature, length, and character, and the ALJ evaluated each independently.

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The Court and the Commissioner cannot do guesswork to determine how Claimant thinks

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the ALJ erred in evaluating multiple providers’ opinions. See Lewis, 236 F.3d at 517 n.

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13 (noting that courts will not address issues not raised by the Claimant on appeal).

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Therefore, the Court finds that Claimant has waived her arguments as to all providers

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who are not discussed with specificity.

Evaluation of Medical Evidence

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Dr. Geary performed a consultative examination of Claimant on September 11,

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2015. (Tr. 1417–27). Dr. Geary met with Claimant, observed her behavior, discussed her

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routine and habits, and reviewed some past psychological evaluations. Dr. Geary also

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administered a number of evaluations. Claimant scored a 30 out of 30 on the mini mental

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status exam. (Tr. 1418). Claimant was found to have a full scale IQ of 85. (Tr. 1421).

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Dr. Geary further opined that Claimant’s score was “decreased significantly by the low

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Working Memory and Processing Speed Indexes. . . . [and] [i]t appears likely that

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Alicia’s true intellectual abilities are represented by the Verbal Comprehension [96] and

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Perceptual Reasoning [96] Indexes, both in the average range.” Id. Dr. Geary also

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assessed Claimant’s memory, finding that she was “at the top of the low average range”

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but that she had “significant weakness in long-term memorial functioning.” Id. Claimant

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scored a 26 out of 30 on the Logical Memory Recognition items, 34 out of 40 on the

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Verbal Paired Associates Recognition, 5 out of 7 on Visual Reproduction Recognition,

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and 20 out of 20 on Designs Recognition. (Tr. 1421–22). Dr. Geary stated that these

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“values are well within normal limits.” (Tr. 1422). On the Trail Making Test, Dr. Geary

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noted that both of Claimant’s “performances far exceed normal limits.” Id. On the Rey

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Test, Claimant’s performance resulted in a “normal range finding.” Id. Claimant did not

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believe she was affected by depression. Id. And a personality inventory resulted in “a

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valid profile” and Claimant “seemingly responded to inventory items in an open and

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reasonable manner.” Id. Dr. Geary then opined that Claimant meets the criteria for

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Listing Impairments 12.02 and 12.06 and that the “psychological prognosis in this case is

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poor.” (Tr. 1423).

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The ALJ gave Dr. Geary’s opinion minimal weight. (Tr. 28). The ALJ noted that

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Dr. Geary’s opinion contained inconsistencies: many of the tests Dr. Geary administered

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resulted in normal findings, but Dr. Geary also opined that Claimant met two Listing

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Impairments. Id. The ALJ also noted that some of Dr. Geary’s statements about

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Claimant’s disability were opinions on issues reserved to the Commissioner. Id. Claimant

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asserts that the ALJ erred in assigning only minimal weight to Dr. Geary’s report. First,

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Claimant argues that the ALJ’s finding that Dr. Geary’s examination was largely normal

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is contradicted by some of Dr. Geary’s findings that Claimant had limitations.

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Dr. Geary’s report contained both findings of normal testing and some limitations.

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Internal inconsistencies in physician’s reports constitute relevant evidence, and the ALJ

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has the responsibility to determine whether inconsistencies are material and are relevant.

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Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). The ALJ did

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not err in evaluating the inconsistencies in Dr. Geary’s report and finding them relevant.

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Second, the Claimant argues that the ALJ erred by failing to specify what objective

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evidence he believed was inconsistent with Dr. Geary’s report. But, in evaluating

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Dr. Geary’s report, the ALJ made specific reference to all of Dr. Geary’s findings that

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Claimant fell within normal to average ranges. The ALJ discussed the lack of objective

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evidence in Dr. Geary’s report.

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Finally, Claimant objects to the ALJ’s dismissal of Dr. Geary’s opinion because

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Dr. Geary commented on issues reserved to the Commissioner. The ALJ, however, never

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stated that he rejected all of Dr. Geary’s findings because some statements throughout

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were on issues reserved to the Commissioner. The ALJ did not err in rejecting

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Dr. Geary’s opinions about Claimant’s disability and inability to work. 20 C.F.R.

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§ 404.1527(d)(1) (“We are responsible for making the determination or decision about

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whether you meet the statutory definition of disability. . . . A statement that you are

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‘disabled’ or ‘unable to work’ does not mean that we will determine that you are

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disabled.”).

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Claimant further asserts that the ALJ erred by assigning great weight to the state

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agency reviewer’s evaluations. (Tr. 82–101, 102–22, 125–44, 145–65). Claimant argues

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that because the reviews were completed in 2014, and the ALJ’s hearing and opinion

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were not until 2015–2016, the reviewer’s opinions were not relevant. Claimant does not

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explain how this timing lessens the validity of the reviewer’s opinions of the medical

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evidence in the record. Where “it is an examining physician’s opinion that the ALJ has

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rejected in reliance on the testimony of a nonexamining advisor, reports of the

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nonexamining advisor need not be discounted and may serve as substantial evidence

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when they are supported by other evidence in the record and are consistent with it.”

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Andrews, 53 F.3d at 1041. Claimant also states that the ALJ erred by not providing

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citation to the record to support the conclusion that the reviewing doctors’ opinions are

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consistent with the totality of the evidence. (Tr. 27). While Claimant is correct that the

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ALJ does not provide a citation immediately after making such a statement, the ALJ’s

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whole opinion contains numerous citations to medical testing and evaluations throughout

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the record. The ALJ discusses the lack of physical evidence in brain scans (Tr. 25), the

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Claimant’s normal psychological examinations (Tr. 26), and the Claimant’s activities of

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daily living (Tr. 22). Even if the ALJ did err, it was harmless because the ALJ had

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extensively discussed such objective evidence in other parts of the opinion. Lewis v.

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Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

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B.

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When a claimant alleges subjective symptoms, like pain, the ALJ must follow a

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two-step analysis to decide whether to credit the claimant’s testimony. First, the claimant

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“must produce objective medical evidence of an underlying impairment which could

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

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Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991)) (quotation marks omitted). The claimant does not need to show “that

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her impairment could reasonably be expected to cause the severity of the symptom she

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has alleged; she need only show that it could reasonably have caused some degree of the

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symptom.” Smolen, 80 F.3d at 1282. Second, if the claimant can make the showing

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required in the first step and the ALJ does not find any evidence of malingering, “the ALJ

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can reject the claimant’s testimony about the severity of her symptoms only by offering

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specific, clear and convincing reasons for doing so.” Id. at 1281. The ALJ must

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“specifically identify what testimony is credible and what testimony undermines the

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claimant’s complaints.” Morgan, 169 F.3d at 599.

Claimant’s Credibility

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The ALJ found that Claimant’s impairments could reasonably be expected to

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cause her alleged symptoms and the ALJ did not find that Claimant was malingering.

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But, the ALJ did determine that Claimant’s statements about the intensity and persistence

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of her symptoms were not entirely credible. (Tr. 25). The ALJ found that (1) the

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Claimant’s allegations of learning disabilities were not supported by medical records; (2)

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the Claimant’s allegations of chronic pain were not supported by medical records; (3)

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there was no evidence of worsening of the Claimant’s condition over the years since her

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initial brain injury; (4) the Claimant’s psychological examinations did not result in a

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clinically significant or borderline evaluation; (5) the Claimant has failed to follow

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through with treatment plans; (6) the Claimant had no auditory difficulties at the hearing;

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and (7) the Claimant had a sporadic work history.

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Initially, Claimant argues that the ALJ cannot discount the Claimant’s credibility

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regarding the severity of her symptoms by relying on a lack of objective medical

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evidence. However, “[a]lthough lack of medical evidence cannot form the sole basis for

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discounting pain testimony, it is a factor that the ALJ can consider in his credibility

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analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ did not

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rely solely on a lack of medical evidence, but considered it with other factors. The ALJ

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did not err in considering conflicts between the Claimant’s testimony and the medical

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record.

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Next, Claimant objects to the medical evidence on which the ALJ relies to

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discount her testimony. In discussing Claimant’s complaints of chronic pain and

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migraines, the ALJ noted that a physical examination had revealed normal sensations to

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touch, pain, position, and vibration. (Tr. 25). Claimant argues that this one piece of

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evidence is not particularly relevant to Claimant’s stated symptoms. But, normal findings

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on examinations related to pain are relevant, and it was just one piece of evidence

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considered by the ALJ. Claimant also criticizes the ALJ’s statement that there was no

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worsening of the Claimant’s symptoms between 1996 and 2012 (and Claimant’s accident

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occurred in 1998). Id. The ALJ relied on a mental health treatment history taken by a

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provider in 2012. (Tr. 443). Claimant is correct that the record does not explicitly state

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that there was no worsening of the Claimant’s symptoms between 1996 and 2012. Yet,

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ALJs may make findings “supported by inferences reasonably drawn from the record.”

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Batson, 359 F.3d at 1993. The mental health history referred to by the ALJ notes that

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Claimant saw providers for outpatient counseling on and off, and primarily focused on

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“family dynamics, self-awareness, and coping skills.” (Tr. 443). As noted by the ALJ,

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there is no discussion of emergent mental health difficulties or episodes of serious

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concern. The ALJ could permissibly draw the conclusion that because the mental health

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history contained no discussion of worsening conditions or serious episodes, none had in

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fact occurred. The ALJ made a similar statement while discussing the Claimant’s history

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of mental impairments and testing, noting that the Claimant has shown some impairments

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since the traumatic brain injury in 1998 but there have been no findings of the

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impairment worsening in recent years such that the Claimant would now be disabled. (Tr.

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26).

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In 2012, a provider recounted the testing done on Claimant four months after her

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traumatic brain injury. (Tr. 414). That testing revealed that Claimant had below average

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cognitive functioning, impaired attention, lowered frustration tolerance, and an IQ of 88.

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Id. Her more recent tests had assessed some memory difficulties and an IQ of 85. (Tr.

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26). The ALJ compared the tests done in 1998 to the ones done in 2012, and determined

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that the Claimant’s functioning had not markedly changed or worsened. These

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considerations are relevant because the primary injury to Claimant occurred in 1998, and

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yet Claimant worked for periods after the accident and did not apply for disability until

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2012. If Claimant’s symptoms did not worsen over the years and Claimant was also able

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to work over the years, then the ALJ could consider those facts in determining whether to

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accept the Claimant’s testimony regarding the extent of her symptoms and her assertion

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that she was not presently able to work. Claimant also cites to some providers’

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assessments that her impairments were now “severe” rather than “moderate.” As detailed

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by the ALJ, however, other testing revealed moderate impairments and average scores.

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The ALJ is responsible for resolving such conflicts in the record.

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Claimant asserts that the ALJ made contradictory statements in evaluating her

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mental health testing. The ALJ noted that Claimant had over twenty clinical tests

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administered and that most resulted in no significant clinical findings or borderline scale

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evaluations. (Tr. 26). The ALJ also stated that testing revealed that Claimant had a

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borderline evaluation on the schizoid and masochistic scale, and was in the borderline

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range for immediate recall and long-term memory. Id. While these statements do appear

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contradictory, they mirror the provider’s statements. The provider stated that “the

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patient’s responses did not result in any clinically significant or borderline scale

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elevations . . . [h]owever, she did exhibit a borderline elevation on the Schizoid [ ] scale

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and the Masochistic (Self-Defeating) scale.” (Tr. 1100). The ALJ is responsible for

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evaluating the record and reconciling conflicts. The ALJ’s contradictory statements

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merely mirror the contradictory statements of the provider themselves. The ALJ went on

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to consider multiple other clinical findings. The ALJ did not err.

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Claimant argues that the ALJ erred in finding and considering that Claimant failed

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to follow through with treatment plans. ALJs may consider and rely on “unexplained or

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inadequately explained failure to seek treatment or to follow a prescribed course of

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treatment.” Smolen, 80 F.3d at 1284. The ALJ found that Claimant had not obtained

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counseling since 2012 and that the record contained evidence of providers’ unsuccessful

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attempts to contact her to schedule services leading to eventual termination and discharge

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from programs. (Tr. 26). Claimant objects that the ALJ was mistaken in stating that no

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treatment had occurred since 2012. Claimant notes that she attended counseling from

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May 2013 to July 2013 and October 2014 to January 2015. The record contains notes

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from Dr. Sanford Silverman, a licensed psychologist, covering the period of May to July

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2013. (Tr. 543–51). However, the handwritten notes are illegible, making it difficult for

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the Court to evaluate what treatment occurred. And, the record also contains emails from

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Claimant to Dr. Silverman cancelling appointments. (Tr. 551, 554). From October 2014

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to January 2015, Claimant saw providers at Lifewell Behavioral. (Tr. 873–920). Claimant

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did attend multiple sessions with providers there. But, the record also contains evidence

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of providers having difficulty contacting Claimant and reporting that Claimant did not

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attend scheduled sessions. (Tr. 888, 889, 900, 909). As cited in the ALJ’s opinion, there

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are other instances of Claimant failing to attend scheduled treatments. (Tr. 849, 930,

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1347). Thus, although the ALJ was incorrect in stating that Claimant had no counseling

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since 2012, the ALJ was not incorrect in finding that Claimant had been terminated from

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multiple treatment programs. Even the evidence Claimant cites to support her attending

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counseling contains significant instances of cancelling treatments. Any error made by the

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ALJ in using the incorrect date of 2012 is therefore harmless. Burch, 400 F.3d at 679 (“A

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decision of the ALJ will not be reversed for errors that are harmless.”). Claimant also

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objects that the ALJ failed to inquire as to the reason for the missed appointments and

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gaps in treatment. The burden of proving disability rests with Claimant. Bustamante v.

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Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (“The claimant has the burden of proof for

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steps one through four.”). The ALJ held a fair hearing, and Claimant did not present

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evidence or testimony to explain her gaps in treatment.

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Finally, Claimant objects to the ALJ’s consideration of her sporadic work history.

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The ALJ stated that Claimant “worked only sporadically prior to the alleged disability

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onset date, which raises a question as to whether the claimant’s continuing

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unemployment is actually due to medical impairments.” (Tr. 27). Claimant argues that an

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ALJ may only consider inconsistent work records in conjunction with other factors that

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discredit a claimant’s credibility. But, the ALJ did discuss multiple other reasons for

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discounting Claimant’s credibility, and the ALJ was permitted to consider the Claimant’s

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work history as one of those factors. Thomas, 278 F.3d at 959 (considering a claimant’s

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“extremely poor work history,” “little propensity to work in her lifetime,” and “spotty

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[work history], at best, with years of unemployment between jobs” in evaluating the

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claimant’s credibility). The ALJ provided clear and convincing reasons for rejecting

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Claimant’s pain testimony and there is substantial evidence to support his determination.

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CONCLUSION

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The ALJ did not err by discounting the consultative examiner’s opinion. The ALJ

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properly considered the internal inconsistencies in the report. The ALJ did not err by

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discounting the Claimant’s testimony. The ALJ evaluated the Claimant’s medical

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evidence, along with her inconsistent treatment history and work history.

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IT IS THEREFORE ORDERED that the ALJ’s decision is affirmed. The Clerk
of Court is directed to enter judgment accordingly.
Dated this 20th day of July, 2018.

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Honorable G. Murray Snow
United States District Judge

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