Herold v. Commissioner of Social Security Administration

Filing 26

*ORDER - IT IS ORDERED that the ALJ decision is AFFIRMED. The Clerk of Court shall enter judgment accordingly. See document for further details. Signed by Senior Judge James A Teilborg on 7/19/21. (SMH) *Modified to add/correct text on 7/19/2021. (SMH)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Beth Herold,

No. CV-20-01133-PHX-JAT
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 Plaintiff Beth Herold’s appeal of her denial of social

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security disability benefits. The appeal is fully briefed (Doc. 18, Doc. 21, Doc. 25), and the

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Court now rules.

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I.

BACKGROUND

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a.

Factual Overview

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Plaintiff was 58 years old at the time of her hearing and has a Doctor of Chiropractic

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degree. (AR 34, 40). Plaintiff has past relevant work experience as a consultant. (AR 23).

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Plaintiff suffers from lumbar and cervical degenerative disc disease, asthma, irritable bowel

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syndrome, gastroesophageal reflux disease, fibromyalgia, depression, and anxiety. (AR

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17–18).

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On April 25, 2018, Plaintiff filed applications for a period of disability and disability

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insurance benefits. (AR 13). Plaintiff also filed an application for supplemental security

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income on May 3, 2018. (AR 13). Plaintiff alleged disability beginning January 29, 2015

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due to a combination of physical and mental impairments such as: pain in her back, neck,

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wrist, knees, shoulder, and feet, along with chronic fatigue, fibromyalgia fog, temperature

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issues, migraine headaches, and irritable bowel syndrome with chronic diarrhea. (AR 20,

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237).

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Plaintiff’s claims were denied initially on September 8, 2018, and upon

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reconsideration on December 20, 2018. (AR 13). An ALJ conducted a hearing on

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November 5, 2019 and denied Plaintiff’s claim on December 03, 2019. (AR 13–24). The

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SSA Appeals Counsel denied a request for review of that decision and adopted the ALJ’s

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decision as the agency’s final decision. (AR 1).

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b.

The SSA’s Five-Step Evaluation Process

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To qualify for social security benefits, a claimant must show she “is under a

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disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically

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determinable physical or mental impairment that prevents her from engaging “in any

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substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process

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for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1).

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Each step is potentially dispositive. See id. § 404.1520(a)(4).

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At the first step, the ALJ determines whether the claimant is “doing substantial

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gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial

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gainful activity is work activity that is both “substantial,” involving “significant physical

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or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b).

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At the second step, the ALJ considers the medical severity of the claimant’s

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impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically

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determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe

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impairment” is one which “significantly limits [the claimant’s] physical or mental ability

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to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and

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aptitudes necessary to do most jobs.” Id. § 404.1522(b).

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At the third step, the ALJ determines whether the claimant’s impairment or

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combination of impairments “meets or equals” an impairment listed in the regulations. Id. §

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404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, before proceeding to step four,

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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.” Id.

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At the fourth step, the ALJ uses the RFC to determine whether the claimant can still

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perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the

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claimant’s RFC with the physical and mental demands of the claimant’s past relevant

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work. Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ

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will find that the claimant is not disabled. Id. § 404.1520(a)(4)(iv).

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At the fifth and final step, the ALJ determines whether—considering the claimant’s

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RFC, age, education, and work experience—she “can make an adjustment to other

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work.” Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment

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to other work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot

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make an adjustment to other work, then the claimant is disabled. Id.
The ALJ’s Application of the Factors

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c.

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At the first step, the ALJ concluded that Plaintiff had not engaged in substantial

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gainful activity since the alleged onset date of her disability. (AR 17). At step two, the ALJ

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concluded that Plaintiff’s lumbar and cervical degenerative disc disease and asthma

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constituted severe impairments. (AR 17). During the third step, the ALJ determined that

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Plaintiff’s impairments did not meet the severity of one of the impairments listed in the

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regulations. (AR 19). After evaluating Plaintiff’s RFC, the ALJ concluded that Plaintiff

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could perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except,

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as relevant here, Plaintiff can occasionally climb ramps and stairs, but never climb ladders,

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ropes, or scaffolds. (AR 22). Plaintiff can also occasionally balance, stoop, kneel, crouch,

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crawl, and reach overhead. (AR 22). Lastly, Plaintiff must avoid chemicals, odors, dusts,

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fumes, gases, and hazards, including moving machinery and unprotected heights. (AR 22).

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At step four, the ALJ concluded that Plaintiff could perform past relevant work as a

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consultant because that work “does not require the performance of work-related activities

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precluded by the claimant’s residual functional capacity.” (AR 23). Accordingly, the ALJ

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determined that Plaintiff was not disabled.1

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II.

LEGAL STANDARD

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This Court may not overturn the ALJ’s denial of disability benefits absent legal error

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or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018).

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“Substantial evidence means . . . such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017)

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(quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)).

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

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

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753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is susceptible of

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more than one rational interpretation, it is the ALJ’s conclusion which must be upheld; and

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in reaching [her] findings, the ALJ is entitled to draw inferences logically flowing from the

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evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not the reviewing court

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must resolve conflicts in the 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); see Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035

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(9th Cir. 2003) (“If the evidence can support either outcome, the Commissioner’s decision

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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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Because she determined that Plaintiff could perform past relevant work, the ALJ did not
need to analyze the fifth step. (AR 23).
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625, 630 (9th Cir. 2007) (quotation omitted). The Court is not charged with reviewing

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

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See 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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ANALYSIS

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

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and (2) rejecting the assessments of Plaintiff’s treating physician and finding the state

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agency physician’s assessment persuasive. (Doc. 18). The Court addresses each in turn.

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a.

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Plaintiff argues that the ALJ committed material harmful error by rejecting

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Plaintiff’s symptom testimony in the absence of clear and convincing reasons supported by

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substantial evidence in the record. (Id. at 10). Specifically, Plaintiff argues that the ALJ

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improperly rejected testimony regarding the severity of the symptoms on the basis that the

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severity is not consistent with the medical evidence. (Id. at 12).

Symptom Testimony

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When evaluating the credibility of a claimant’s testimony regarding subjective pain,

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the ALJ must engage in a two-step analysis. First, the ALJ must determine if the claimant

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has presented objective medical evidence of an underlying impairment which could

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

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Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Second, if there is no evidence of

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malingering, the ALJ can reject the claimant’s testimony about the severity of the

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symptoms only by giving specific, clear, and convincing reasons for the rejection. Id. at

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1014–15.

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Plaintiff’s symptom testimony included statements about her physical and mental

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limitations. Specifically, Plaintiff testified that her pain is so severe she can only do one

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outing per day, she sometimes has trouble getting dressed or taking a shower because she

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does not feel stable and the water causes her pain, and she cannot unload the washing

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machine and dryer. (AR 45–46). Furthermore, Plaintiff stated she has a hard time bending

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over, she cannot read books or magazines because they are difficult to understand, and she

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cannot put a pot in the oven. (AR 47–48). Regarding her mental well-being, Plaintiff stated

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she cries all the time, cannot eat, frequently throws up, and has had suicidal thoughts. (AR

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51–52). Lastly, Plaintiff testified that she can only walk a quarter of the way around the

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grocery store, has trouble standing in one spot, sitting for longer than an hour, and has

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trouble focusing and must re-read more than half the time. (AR 54–55).

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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 these symptoms [were] not entirely consistent with the medical evidence

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and other evidence in the record for the reasons explained in [the] decision.” (AR 20).

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Plaintiff argues the ALJ committed a “fundamental legal error” by requiring

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Plaintiff’s subjective symptom testimony be “entirely consistent” with medical evidence.

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(Doc. 18 at 12). The Court, however, does not read the ALJ’s language as requiring the

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Plaintiff to fully corroborate her symptom testimony with objective medical evidence.

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Rather, the ALJ’s statement notes that the record contains conflicting evidence as to the

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severity of Plaintiff’s symptoms. Although Plaintiff is not required to provide medical

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evidence of the severity of her symptoms, see Bunnell v. Sullivan, 947 F.2d 341, 345 (9th

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Cir. 1991) (explaining that “an adjudicator may not reject a Plaintiff’s subjective

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complaints based solely on a lack of objective medical evidence to fully corroborate the

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alleged severity of pain”), the ALJ may properly consider objective medical evidence to

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assess Plaintiff’s credibility regarding the intensity and persistence

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symptoms. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (pointing to

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medical evidence as a relevant factor in determining severity of Plaintiff’s pain and

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disabling effects).

of her

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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, [her] daily activities, [her]

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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 concluded that Plaintiff’s subjective

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symptom testimony was inconsistent with the objective medical evidence in the

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record. (AR 20). See Thomas, 278 F.3d at 960 (noting that an ALJ cannot reject a plaintiff’s

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

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alleged 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 (citation

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omitted)). Substantial evidence supports the ALJ’s conclusion. Medical providers

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consistently noted normal gait, coordination, and strength, and the record indicated

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improvement with conservative treatment. (AR 352, 594, 602, 609–10, 617–18, 624–25,

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647, 687, 703–04, 711–12, 741, 841, 849, 857, 865, 873, 880, 897–98, 905–06, 913–14,

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939); see Bunnell, 947 F.2d at 346 (noting that when determining a claimant’s credibility,

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the ALJ must consider the “type, dosage, effectiveness, and adverse side-effects” of

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treatment). Specifically, Plaintiff reported that steroid injections provided 20 percent relief,

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a SI joint injection provided 100 percent relief after 20 minutes, and lumbar facet and

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medial branch blocks provided significant relief 20 minutes after the procedure. (AR 598,

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658–65, 890–93). Likewise, the medical evidence showed that Plaintiff’s asthma was fairly

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well managed with medication (AR 441, 505), and “[i]mpairments that can be controlled

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effectively with medication are not disabling for purposes of determining eligibility for

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[disability] benefits.” See Warre v. Comm’r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir.

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2006).

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Along with her “entirely consistent” argument, Plaintiff also argues the ALJ

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committed legal error by making no “effort to connect the discussion of the medical

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evidence to a finding that any specific part of the symptom testimony lacked credibility.”

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(Doc. 18 at 13). See Nelson v. Comm’r of Soc. Sec. Admin., No. CV-19-08027-PCT-JZB,

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2020 WL 1510332, at *3 (D. Ariz. Mar. 30, 2020) (“Indeed, this Court has repeatedly

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rejected ALJ rationale that discussed medical evidence but provided no connection

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between that discussion and rejection of claimants’ symptom testimony.” (collecting

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cases)). The Court disagrees that the ALJ failed to connect the symptom testimony to the

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medical evidence.

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The ALJ explicitly recognized that Plaintiff complained of functional limitations of

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difficulty “lifting, squatting, standing, bending, reaching, walking, sitting, kneeling, [and]

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climbing stairs” (AR 20), but noted that contrary to these complaints, Plaintiff consistently

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exhibited normal gait, coordination, and strength. (AR 21, 352, 594, 602, 609–10, 617–18,

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624–25, 647, 687, 703–04, 711–12, 741, 841, 849, 857, 865, 873, 880, 897–98, 905–06,

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913–14, 939). Additionally, the ALJ explicitly recognized Plaintiff’s complaints of

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difficulty with “remembering, completing tasks, concentrating, understanding, [and]

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following instructions” (AR 20), but noted that contrary to these complaints Plaintiff had

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multiple mental examinations that came back normal. (AR 386, 388–89, 391–94, 402–03,

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555–60, 563, 585, 587, 589–90, 827). Accordingly, the ALJ properly rejected Plaintiff’s

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symptom testimony by providing specific, clear, and convincing reasons for determining

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that the testimony was not credible.

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b.

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Plaintiff next argues that the ALJ, in finding Plaintiff’s mental impairments to be

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non-severe, committed material harmful error by rejecting the assessments of Plaintiff’s

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treating physician, Dr. Parker. (Doc. 18 at 15).

Medical Assessment

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The law previously distinguished between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995). This distinction was known as the “treating physician

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rule.” See Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001), as amended on reh’g

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(Aug. 9, 2001). “In March of 2017, [t]he Social Security Administration amended their

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regulations to abrogate the treating physician rule, among other changes.” Alonzo v.

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Comm’r of Soc. Sec. Admin., No. CV-18-08317-PCT-JZB, 2020 WL 1000024, at *3 (D.

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Ariz. Mar. 2, 2020) (citing Revisions to Rules Regarding the Evaluation of Medical

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Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5852–57 (Jan. 18, 2017)). The new

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regulations apply to claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c,

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416.920c. The new regulations provide that the ALJ “will not defer or give any specific

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evidentiary weight, including controlling weight, to any medical opinion(s) or prior

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administrative medical finding(s), including those from your medical sources.” 20 C.F.R.

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§§ 404.1520c, 416.920c.

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Furthermore, the ALJ will consider all medical opinions according to several

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enumerated factors, including whether the opinion is supported by objective medical

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evidence and whether the opinion is consistent with the evidence from other

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sources. Alonzo, 2020 WL 1000024, at *3. Under the new regulations, the ALJ must

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consider and explain how well the medical evidence supports the medical opinion and how

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consistent the medical opinion is with the record, and may, but is not required to, explain

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how the other factors under § 404.1520c(c)(3)–(5) are considered. 20 C.F.R. §

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404.1520c(b)(2). If the ALJ finds that two or more medical opinions are equally well-

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supported, consistent with the record, but not the same, the ALJ must articulate how it

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considered other persuasive factors. 20 C.F.R. § 404.1520c(b)(3).

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“When the evidence before the ALJ is subject to more than one rational

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interpretation, [the court] must defer to the ALJ’s conclusion.” Batson, 359 F.3d at 1198.

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This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in

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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, 981 F.2d at 1019 (citations omitted).

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Considering the new regulations set by the Social Security Administration, each

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medical opinion is on equal ground, regardless of the source. To find the ALJ made a

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materially harmful error, this Court must find that the ALJ’s reliance on the non-treating

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physicians’ medical assessments are not supported by and are inconsistent with the medical

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evidence on record. This Court discerns no materially harmful error.

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Substantial evidence supports the ALJ’s determination that Plaintiff’s mental

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impairments were not severe. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)

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(applying substantial evidence review to an ALJ’s severity determination). The ALJ used

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the standard set forth at 20 C.F.R. § 404.1520a(c)(3)–(4) when evaluating Plaintiff’s mental

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impairments. (AR 17–18). The ALJ determined that Plaintiff’s limitations were mild in

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understanding, remembering, or applying information; interacting with others;

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concentrating, persisting, or maintaining pace; and adapting or managing oneself. (AR 18).

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This finding is supported by the medical evidence on record. Dr. Celia Drake noted that

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Plaintiff was alert, had logical and organized thought processes, related in a cooperative

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and appropriate manner, and scored a 28 out of 30 on the Mini-Mental State Examination.

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(AR 357). Furthermore, Dr. Joel Parker repeatedly found that Plaintiff had normal speech,

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full memory, full orientation, logical thought processes, full concentration, and normal

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judgement. (AR 386–94, 396–97, 399, 402–03, 556–57, 559–60, 563–67, 585–90, 827).

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Additionally, the ALJ states the mental symptoms are a “reasonable response” to

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Plaintiff’s financial difficulties and that the medical evidence of record indicates normal

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mental status examinations. (AR 18). These normal mental status examinations were

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demonstrated by the record from both Dr. Drake and Dr. Parker. (AR 357, 386–94, 396–

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97, 399, 402–03, 556–57, 559–60, 563–67, 585–90, 827). In addition, the Disability

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Determination Service reviewing psychological consultant found the mental impairments

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non-severe, which was affirmed on reconsideration. (AR 87, 107, 126, 145). The ALJ

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found these opinions persuasive because they were consistent with the remaining record

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which showed “essentially normal mental status examinations, with only occasion[al]

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periods of increased symptoms due to financial difficulty,” and the record supports this

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finding. (AR 22, 357, 386–99, 402–03, 556–60, 563–67, 585–90, 827, 1069). The opinions

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of the Disability Determination Service reviewing psychological consultant were also

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consistent with the psychological consultative examiner’s opinion.

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Lastly, the ALJ determined specifically that Dr. Parker’s opinion was not supported

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by Dr. Parker’s medical records, nor was it consistent with the medical evidence on record

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which indicated normal mental status other than some increased symptoms. (AR 23). The

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medical evidence from both Dr. Drake’s and Dr. Parker’s mental status examinations

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support the ALJ’s conclusion because most of the mental status examinations were normal.

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(AR 357, 386–94, 396–97, 399, 402–03, 556–57, 559–60, 563–67, 585–90, 827).

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Accordingly, this Court finds that the ALJ did not err by rejecting Dr. Parker’s assessment

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in favor of the State agency experts’ medical findings, and the findings were supported by

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and consistent with the medical record.

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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
enter judgment accordingly.
Dated this 19th day of July, 2021.

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