Torres v. Commissioner of Social Security Administration

Filing 18

ORDER: IT IS ORDERED that the ALJ decision is AFFIRMED. The Clerk of Court shall enter judgment accordingly. (See Order for details.) Signed by Senior Judge James A Teilborg on 4/26/21. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Daniel Torres, Jr.,

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Plaintiff,

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ORDER

v.

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No. CV-20-00558-PHX-JAT

Commissioner of Social Security
Administration,

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Defendant.

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Pending before the Court is Plaintiff Jose Daniel Torres, Jr.’s appeal of his denial of

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social security disability benefits. The appeal is fully briefed (Docs. 14, 15, 16), and the

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Court now rules.

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I.

BACKGROUND

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Plaintiff was 44 years old at the time of his hearing. (AR 40). He completed high

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school and two years of college education. (Id. at 186) Plaintiff has past relevant work

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experience as an infantryman, sheriff’s deputy, corrections officer, security manager, and

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armored car driver. (Id. at 26). Plaintiff suffers from “minimal cervical and lumbar

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degenerative disc disease, post-traumatic stress disorder (‘PTSD’) and major depressive

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disorder.” (Id. at 17).

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On September 3, 2015, Plaintiff filed an application for Social Security Disability

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Insurance benefits for a disability beginning on December 1, 2014. (Id. at 14). The Social

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Security Administration denied Plaintiff’s application initially on May 2, 2016 and upon

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reconsideration on December 28, 2016. (Id.). On December 12, 2018, an Administrative

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Law Judge issued a decision finding Plaintiff not disabled and denied the application. (Id.

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at 14–20). Plaintiff’s request for review was denied by the Social Security Administration

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Appeals Council on January 17, 2020. (Id. at 1–3). Plaintiff now appeals the ALJ’s final

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decision. (Doc. 14).

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II.

LEGAL STANDARD

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The ALJ’s decision to deny disability benefits may be overturned “only when the

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ALJ’s findings are based on legal error or not supported by substantial evidence in the

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record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003).

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“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance,

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i.e., such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young

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v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

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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). “Where evidence is

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

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

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flowing from the evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec.

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Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not

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the reviewing court must resolve conflicts in the evidence, and if the evidence can support

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either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v.

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Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d at 1035 (“If the

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evidence can support either outcome, the Commissioner’s decision must be upheld.”).

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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 (9th

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Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the

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ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th

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Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not affirm

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simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007) (quotation omitted). The Court is not charged with reviewing the

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evidence and making its own judgment as to whether Plaintiff is or is not disabled. See

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Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Rather, the Court’s inquiry is

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

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those reasons. See id.

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a.

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To qualify for disability benefits under the Social Security Act, a claimant must

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show, among other things, that he is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The

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Social Security Act defines “disability” as the “inability to engage in any substantial gainful

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activity by reason of any medically determinable physical or mental impairment which can

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be expected to result in death or which has lasted or can be expected to last for a continuous

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period of not less than 12 months.” Id. § 423(d)(1)(A). A person is “under a disability only

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if his physical or mental impairment or impairments are of such severity that he is not only

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unable to do his previous work but cannot, considering his age, education, and work

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experience, engage in any other kind of substantial gainful work which exists in the

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national economy.” Id. § 423(d)(2)(A).

Definition of Disability

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b.

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The Social Security regulations set forth a five-step sequential process for

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evaluating disability claims. 20 C.F.R. § 404.1520; see also Reddick v. Chater, 157 F.3d

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715, 721 (9th Cir. 1998) (describing the sequential process). A finding of “not disabled” at

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any step in the sequential process will end the ALJ’s inquiry. 20 C.F.R. § 404.1520(a)(4).

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The claimant bears the burden of proof at the first four steps, but the burden shifts to the

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ALJ at the final step. Reddick, 157 F.3d at 721. The five steps are as follows:

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Five-Step Evaluation Process

First, the ALJ determines whether the claimant is “doing substantial gainful
activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled.

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Second, if the claimant is not gainfully employed, the ALJ next determines whether

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the claimant has a “severe medically determinable physical or mental impairment.” 20

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C.F.R. § 404.1520(a)(4)(ii). A severe impairment is one that “significantly limits [the

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claimant’s] physical or mental ability to do basic work activities.” Id. § 404.1520(c). Basic

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work activities mean the “abilities and aptitudes to do most jobs.” Id. § 404.1521(b).

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Further, the impairment must either be expected “to result in death” or “to last for a

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continuous period of twelve months.” Id. § 404.1509 (incorporated by reference in 20

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C.F.R. § 404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device to

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dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

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Third, having found a severe impairment, the ALJ next determines whether the

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impairment “meets or equals” one of the impairments specifically listed in the regulations.

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Id. § 404.1520(a)(4)(iii). If so, the claimant is found disabled without considering the

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claimant’s age, education, and work experience. Id. § 404.1520(d). Before proceeding to

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step four, the ALJ must assess the claimant’s “residual functional capacity” (RFC). Id. §

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404.1520(a)(4). The RFC represents the most a claimant “can still do despite [her]

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limitations.” Id. § 404.1545(a)(1). In assessing the claimant’s RFC, the ALJ will consider

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the claimant’s “impairment(s), and any related symptoms, such as pain, [that] may cause

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physical and mental limitations that affect what [the claimant] can do in a work setting.”

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Id.

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At step four, the ALJ determines whether, despite the impairments, the claimant can

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still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To make this determination,

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the ALJ compares its “residual functional capacity assessment . . . with the physical and

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mental demands of [the claimant’s] past relevant work.” Id. § 404.1520(f). If the claimant

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can still perform the kind of work the claimant previously did, the claimant is not disabled.

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Otherwise, the ALJ proceeds to the final step.

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At the fifth and final step, the ALJ determines whether the claimant “can make an

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adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In

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making this determination, the ALJ considers the claimant’s residual functional capacity,

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together with vocational factors (age, education, and work experience). Id.

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§ 404.1520(g)(1). If the claimant can make an adjustment to other work, then he is not

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disabled. If the claimant cannot perform other work, he will be found disabled. As

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previously noted, the ALJ has the burden of proving the claimant can perform other

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substantial gainful work that exists in the national economy. Reddick, 157 F.3d at 721.
ALJ’s Evaluation Under the Five-Step Process

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c.

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Here, at step one, the ALJ concluded that Plaintiff had not engaged in substantial

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gainful activity since his alleged disability onset date, December 1, 2014. (AR 16). At step

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two, the ALJ determined that Plaintiff suffered from the following severe impairments:

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post-traumatic stress disorder, major depressive disorder, and minimal cervical and lumbar

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degenerative disc disorder. (Id. at 17). At step three, the ALJ concluded that Plaintiff’s

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impairments did not meet the severity of a listed impairment in 20 C.F.R. Part 404, Subpart

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P, Appendix 1. (Id. at 18). At step four, the ALJ determined that Plaintiff had a residual

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functional capacity to perform medium work but concluded that Plaintiff would be unable

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to perform any of his past relevant work. (Id. at 19, 26). Finally, at step five, the ALJ found

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that Plaintiff was not disabled because he could perform jobs that existed in significant

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numbers in the national economy—such as a laundry worker, hand packager, or

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merchandise marker. (Id. at 27).

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III.

ANALYSIS

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Plaintiff argues that the ALJ erred by (1) rejecting Plaintiff’s symptom testimony,

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(2) assigning “little weight” to the opinion of Plaintiff’s treating physician, and (3)

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assigning “great weight” to the opinion of a state agency reviewing physician. (Doc. 14.).

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The Court addresses each in turn.

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a.

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Plaintiff first argues that the ALJ erred by rejecting Plaintiff’s symptom testimony

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without “specific, clear, and convincing reasons supported by substantial evidence” in the

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record. (Id. at 16). Specifically, Plaintiff argues that the ALJ failed to explicitly connect

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the objective medical evidence cited in the record to Plaintiff’s subjective testimony and

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did not find that a substantial part of Plaintiff’s usual day was spent doing activities

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inconsistent with his alleged limitations. (Id. at 18, 20).

Symptom Testimony

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The ALJ must engage in a two-step analysis to determine whether a plaintiff’s

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symptom testimony is credible. First, the plaintiff must present “objective medical

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evidence of an underlying impairment which could reasonably be expected to produce the

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pain or other symptoms alleged.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)

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(quotation omitted). If the plaintiff produces such evidence, the ALJ cannot discredit the

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plaintiff’s symptom testimony “solely because the degree of pain alleged by the [plaintiff]

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is not supported by objective medical evidence.” Orteza v. Shalala, 50 F.3d 748, 749–750

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(9th Cir. 1995). Rather, the ALJ must offer “specific, clear and convincing reasons” for

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rejecting the symptom testimony. Garrison, 759 F.3d at 1015.

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The ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause some of Plaintiff’s alleged symptoms. (AR 20). However,

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the ALJ concluded that Plaintiff’s “statements concerning the intensity, persistence and

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limiting effects,” of some of the alleged symptoms were not “entirely consistent with the

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medical evidence and other evidence in the record for the reasons explained throughout

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[the] decision.” (Id.).

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The Court finds that the ALJ provided specific, clear, and convincing reasons for

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rejecting Plaintiff’s symptom testimony. When determining the credibility of a plaintiff’s

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symptom testimony, an ALJ can consider the following factors, including but not limited

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to: the plaintiff’s “reputation for truthfulness, inconsistencies either in [plaintiff’s]

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testimony or between [the plaintiff’s] testimony and conduct, [his] daily activities, [his]

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work record, and testimony from physicians and third parties concerning the nature,

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severity, and effect of the [alleged] symptoms.” Thomas v. Barnhart, 278 F.3d 947, 958–

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59 (9th Cir. 2002).

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After considering the factors above, the ALJ reasoned that Plaintiff’s subjective

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symptom testimony was inconsistent with the objective medical evidence in the record.

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(Id.).; see also Thomas, 278 F.3d at 960 (an ALJ cannot not reject a plaintiff’s symptom

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testimony solely because the objective medical evidence is inconsistent with the alleged

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limitations, however, the ALJ may properly reject the testimony “by using ordinary

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techniques of credibility evaluation” to determine the testimony was not credible (quotation

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omitted)). Substantial evidence supports the ALJ’s conclusion. For example, Plaintiff

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claimed that he experiences pain and walks with a limp, but Plaintiff’s exams yielded

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normal findings that “d[id] not show this level of discomfort or similar complaints.” (AR

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20). The evidence also showed Plaintiff was “generally doing well when adhering to

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treatment.” (Id. at 21–22); see Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (when

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determining plaintiff’s credibility, the ALJ must consider the “type, dosage, effectiveness,

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and adverse side-effects” of treatment). Specifically, Plaintiff reported that Cymbalta

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helped his depression and Hydroxyzine worked “okay” for his anxiety. (AR 21). Both

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Plaintiff and his wife confirmed that he had improved from treatment and that his panic

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attacks and depression were manageable. (Id.). The ALJ also considered the reports of

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various physicians that evidenced that Plaintiff’s “physical exams were generally

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unremarkable overall.” (Id. at 22).

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Further, the ALJ reasoned that Plaintiff’s daily activities were inconsistent with the

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severity of Plaintiff’s alleged limitations. (Id. at 20). Plaintiff reported riding his

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motorcycle, doing household chores, taking his children to Disneyland, exercising,

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working on cars, spending time with family, and occasionally attending his daughter’s

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extra-curricular activities. (Id.). The ALJ reasoned that Plaintiff’s ability to ride his

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motorcycle showed “far more concentration and ability to go into public than he asserted.”

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(Id.); see Garrison, 759 F.3d at 1016 (stating that Plaintiff’s daily activities impact his

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credibility if the activity level is inconsistent with Plaintiff’s alleged limitations). In terms

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of the level of Plaintiff’s capabilities, the ALJ stated that Plaintiff “tr[ies] to do chores” and

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cleans “as he can.” (Id.). See Shaw v. Berryhill, No. 6:16-CV-02188-PK, 2018 WL

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1406601, at 9 (D. Or. Jan. 23, 2018) (stating that the plaintiff’s continued engagement in

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an activity that challenges him “demonstrates that he is capable of accomplishing

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challenging tasks despite his limitations, and indicates capacities transferable to the

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workplace”); id. (noting that there was no evidence that the plaintiff required assistance

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from others in completing the daily activities). Finally, although Plaintiff testified that he

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stopped many of the activities recently, the evidence in the record supports that Plaintiff

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had been improving with treatment over the past year. (AR 21). Accordingly, the ALJ

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properly rejected Plaintiff’s symptom testimony by providing specific, clear, and

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convincing reasons for determining that the testimony was not credible.

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b.

Treating Psychiatrist’s Assessment

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Next, Plaintiff argues that the ALJ erred by rejecting the assessment provided by

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Plaintiff’s treating psychiatrist, Paul Valbuena, without specific and legitimate reasons for

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doing so based on substantial evidence in this record. (Doc. 14 at 9–16). The ALJ assigned

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“little weight” to Dr. Valbuena’s opinion because Dr. Valbuena did not cite specific

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treatment records to support his opinion and “his own treatment records d[id] not support

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the degree of limitations proposed [in his opinion].” (AR 23). Plaintiff specifically argues

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that the ALJ improperly relied on Dr. Valbuena’s lack of citations when rejecting his

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opinion and relied on “treatment record findings that were either inconsistent or irrelevant”

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to Plaintiff’s condition. (Doc. 14 at 11; AR 23).

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The opinion of a plaintiff’s treating physician is afforded “controlling weight” so

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long as it is supported by medically acceptable diagnostic techniques and is consistent with

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the other substantial evidence in the plaintiff’s record. Trevizo v. Berryhill, 871 F.3d 664,

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645 (9th Cir. 2017). Although the opinion of a treating physician is entitled to substantial

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weight, the ALJ can reject a physician’s uncontradicted opinion with ‘clear and convincing

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reasons that are supported by substantial evidence.” Id. If the treating physician’s opinion

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is contradicted by another physician’s opinion, however, the ALJ must provide “specific

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and legitimate reasons [for rejecting the opinion] that are supported by substantial

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evidence.” Id.

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Contrary to Plaintiff’s assertion that the ALJ is not qualified to analyze medical

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evidence, an ALJ “is responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities.” (Doc. 14 at 14). Tomasetti v. Astrue, 533 F.3d

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1035, 1041 (9th Cir. 2008). When determining the weight to give a treating physician’s

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opinion, the ALJ must consider factors such as the length of the treatment relationship and

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frequency of examination; the nature and extent of the treatment relationship; the

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supportability and consistency of the opinion; the physician’s specialization; and any other

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relevant factors. 20 C.F.R. 404.1527(c).

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Here, the ALJ provided “specific and legitimate” reasons for assigning “little

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weight” to Dr. Valbuena’s medical source statement. Although not expressly stated, the

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ALJ’s decision demonstrates that he considered the relevant factors set forth in 20 C.F.R.

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404.1527(c) when weighing Dr. Valbuena’s opinion. See Kelly v. Berryhill, 732 Fed.

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App’x 558, 562 n.4 (9th Cir. 2018) (the ALJ “is not required to make an express statement

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that []he considered all the factors” (quotation omitted)). The ALJ discussed the nature and

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length of the treatment relationship, noting that Dr. Valbuena was Plaintiff’s treating

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physician who conducted mental status exams on Plaintiff from December 22, 2015 to

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March 15, 2016. (AR 21, 23). See 20 C.F.R. 404.1527(c)(2)(i)–(ii). He also acknowledged

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that Dr. Valbuena specialized as a psychiatrist. (AR 26). See 20 C.F.R. 404.1527(c)(5).

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Additionally, the ALJ considered the supportability and consistency of Dr. Valbuena’s

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opinion on Plaintiff’s limitations. (AR 23). See 20 C.F.R. 404.1527(3)–(4).

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In his opinion, Dr. Valbuena concluded that Plaintiff’s impairments prevented him

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from completing an 8-hour workday, but Plaintiff’s treatment records showed that

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Plaintiff’s mental status exams from Valbuena Psychiatry were generally normal. (AR 23).

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The ALJ summarized the conflicting clinical evidence from Plaintiff’s mental status

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exams, noting that: Plaintiff’s appearance was unremarkable; his speech, memory,

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judgment, insight and associations were intact; his was behavior appropriate; his attention

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span was normal; his thinking was “basically logical;” and he did not exhibit cognitive

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difficulty, suicidal ideals or intentions, hallucinations or delusions. (Id.). Accordingly, the

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ALJ found that Dr. Valbuena failed to cite to specific treatment records to support his

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opinion and that the opinion was inconsistent with Dr. Valbuena’s own treatment records.

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(Id.). Thus, the ALJ satisfied the “specific and legitimate” standard when assigning “little

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weight” to Dr. Valbuena’s opinion. See Trevizo, 871 F.3d at 665 (the ALJ can meet the

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specific and legitimate standard by summarizing the facts and conflicting clinical evidence

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in detail, stating his own interpretation of the facts and evidence, and making findings

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accordingly).

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c.

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Finally, Plaintiff contends that the ALJ erred by assigning “great weight” to the

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opinion of state agency reviewing physician, Daniel Gross, Psy.D, who did not examine

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Plaintiff or review the entire medical record. (Doc. 14 at 9; AR 26). Because treating

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physicians’ opinions are generally given greater weight than all other medical source

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opinions, Garrison, 759 F.3d at 1012, Plaintiff argues that the ALJ gave too much weight

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to Dr. Gross’s opinion. (Doc. 14 at 9). Further, Plaintiff argues that Dr. Gross’s opinion did

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not serve as substantial evidence, on its own, to support the ALJ’s finding that Plaintiff is

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not disabled. (Id. at 10).

Reviewing Physician Assessment

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The conflicting opinion of a non-treating or non-examining physician can serve as

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substantial evidence for the ALJ to reject a treating physician’s opinion if the opinion is

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“consistent with independent clinical findings or other evidence in the record.” Thomas,

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278 F.3d at 957. On the other hand, the ALJ must provide specific and legitimate reasons

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for rejecting the treating physicians opinion, based on substantial evidence in the record, if

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the “nontreating source’s opinion contradicts that of the treating physician but is not based

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on independent clinical findings, or rests on clinical findings also considered by the treating

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physician.” Andrews, 53 F.3d at 1041.

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The ALJ assigned “great weight” to the opinion of state agency consultant, Daniel

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Gross—who opined that Plaintiff could perform certain work-related functions—because

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“the medical evidence does not support greater restrictions.” (AR 26). Because Dr. Gross’s

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opinion was based on a partial review of the record, rather than on independent findings,

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the ALJ had to meet the “specific and legitimate” standard for rejecting a treating

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physician’s opinion. (Doc. 11-4, Exhibit 4A). For the reasons discussed above, the ALJ

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provided specific and legitimate reasons for assigning “little weight” to Dr. Valbuena’s

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opinion, based on substantial evidence in the record that showed inconsistencies between

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his treatment findings and conclusions. See Orn, 495 F.3d at 632 (stating that an

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“examining physician’s independent clinical findings may be substantial evidence”). Thus,

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the ALJ did not err by assigning “great weight” to Dr. Gross’s opinion.

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IV.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that the ALJ decision is AFFIRMED. The Clerk of Court shall

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enter judgment accordingly.
Dated this 26th day of April, 2021.

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