Bell v. Astrue

Filing 19

ORDER that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Neil V Wake on 4/8/13. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Janette Bell, No. CV-12-08179-PCT-NVW Plaintiff, 10 11 vs. 12 ORDER Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Janette Bell seeks review under 42 U.S.C. § 405(g) of the final decision 16 of the Commissioner of Social Security (“the Commissioner”), which denied her 17 supplemental security income under section 1614(a)(3)(A) of the Social Security Act. 18 Because the decision of the Administrative Law Judge (“ALJ”) is supported by 19 substantial evidence and is not based on legal error, the Commissioner’s decision will be 20 affirmed. 21 I. 22 23 24 25 26 27 28 BACKGROUND A. Factual Background Bell was born in January 1964. She completed high school and is able to communicate in English. She has worked as a housecleaner, grocery clerk, server, personnel clerk, and pharmacy clerk. She has been diagnosed with chronic obstructive pulmonary disease (“COPD”), fibromyalgia, migraine headaches, and possible seizure disorder. She had right hip surgery after a motor vehicle accident in 1994. In her 1 2 Opening Brief, Bell states that her “most compelling problem is respiratory in nature” 3 and that her medical problems “include COPD, fibromyalgia, and migraine headaches.” 4 B. Procedural History 5 On October 1, 2007, Bell protectively applied for supplemental security income, 6 alleging disability beginning July 10, 2007. On July 16, 2010, she appeared with her 7 attorney and testified at a hearing before the ALJ. A vocational expert also testified. 8 On November 18, 2010, the ALJ issued a decision that Bell was not disabled 9 within the meaning of the Social Security Act. The Appeals Council denied Bell’s 10 request for review of the hearing decision, making the ALJ’s decision the 11 Commissioner’s final decision. On September 6, 2012, Bell sought review by this Court. 12 II. STANDARD OF REVIEW 13 The district court reviews only those issues raised by the party challenging the 14 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 15 may set aside the Commissioner’s disability determination only if the determination is 16 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 17 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 18 preponderance, and relevant evidence that a reasonable person might accept as adequate 19 to support a conclusion considering the record as a whole. Id. In determining whether 20 substantial evidence supports a decision, the court must consider the record as a whole 21 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 22 As a general rule, “[w]here the evidence is susceptible to more than one rational 23 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 24 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 25 The ALJ is responsible for resolving conflicts in medical testimony, determining 26 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 27 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 28 -2  1 2 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 3 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 4 III. FIVE-STEP SEQUENTIAL EVALUATION PROCESS 5 To determine whether a claimant is disabled for purposes of the Social Security 6 Act, the ALJ follows a five-step process. 20 C.F.R. § 416.920(a). The claimant bears the 7 burden of proof on the first four steps, but at step five, the burden shifts to the 8 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 9 At the first step, the ALJ determines whether the claimant is engaging in 10 substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not 11 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant 12 has 13 § 416.920(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 14 three, the ALJ considers whether the claimant’s impairment or combination of 15 impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 20 16 C.F.R. Pt. 404. § 416.920(a)(4)(iii). If so, the claimant is automatically found to be 17 disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 18 claimant’s residual functional capacity and determines whether the claimant is still 19 capable of performing past relevant work. § 416.920(a)(4)(iv). If so, the claimant is not 20 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 21 where he determines whether the claimant can perform any other work based on the 22 claimant’s residual functional capacity, age, education, and work experience. 23 § 416.920(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 24 disabled. Id. 25 IV. 26 27 28 a “severe” medically determinable physical or mental impairment. ANALYSIS The ALJ found that Bell has not engaged in substantial gainful activity since October 1, 2007. At step two, the ALJ found that Bell “has the following severe -3  1 2 impairments: chronic obstructive pulmonary disease (COPD), fibromyalgia, a history of 3 right hip fracture, carpal tunnel syndrome, questionable history of stroke, seizure, 4 migraines, a history of polysubstance abuse and an adjustment disorder with depressed 5 mood.” At step three, the ALJ determined that Bell does not have an impairment or 6 combination of impairments that meets or medically equals one of the listed impairments 7 in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Bell: 8 12 has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except the claimant cannot be exposed to hazards or to extremes of heat or cold. She must avoid fumes. She can perform the simple and repetitive tasks characteristic of unskilled work. She must avoid ladders, ropes or scaffolds, but she can perform other postural activities occasionally. 13 The ALJ concluded that Bell is unable to perform any past relevant work. At step five, 14 the ALJ found that, considering Bell’s age, education, work experience, and residual 15 functional capacity, there are jobs that exist in significant numbers in the national 16 economy that she can perform. 9 10 11 17 18 A. The ALJ Did Not Err in Weighing Medical Source Evidence. 1. Legal Standard 19 In weighing medical source opinions in Social Security cases, the Ninth Circuit 20 distinguishes among three types of physicians: (1) treating physicians, who actually treat 21 the claimant; (2) examining physicians, who examine but do not treat the claimant; and 22 (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. 23 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the 24 opinion of a treating physician than to the opinions of non-treating physicians. Id. 25 Where a treating physician’s opinion is not contradicted by another physician, it may be 26 rejected only for “clear and convincing” reasons, and where it is contradicted, it may not 27 be rejected without “specific and legitimate reasons” supported by substantial evidence in 28 -4  1 2 the record. Id. Moreover, the Commissioner must give weight to the treating physician’s 3 subjective judgments in addition to his clinical findings and interpretation of test results. 4 Id. at 832-33. 5 Further, an examining physician’s opinion generally must be given greater weight 6 than that of a non-examining physician. Id. at 830. As with a treating physician, there 7 must be clear and convincing reasons for rejecting the uncontradicted opinion of an 8 examining physician, and specific and legitimate reasons, supported by substantial 9 evidence in the record, for rejecting an examining physician’s contradicted opinion. Id. 10 at 830-31. 11 The opinion of a non-examining physician is not itself substantial evidence that 12 justifies the rejection of the opinion of either a treating physician or an examining 13 physician. Id. at 831. “The opinions of non-treating or non-examining physicians may 14 also serve as substantial evidence when the opinions are consistent with independent 15 clinical findings or other evidence in the record.” Thomas, 278 F.3d at 957. Factors that 16 an ALJ may consider when evaluating any medical opinion include “the amount of 17 relevant evidence that supports the opinion and the quality of the explanation provided; 18 the consistency of the medical opinion with the record as a whole; [and] the specialty of 19 the physician providing the opinion.” Orn, 495 F.3d at 631. 20 Moreover, Social Security Rules expressly require a treating source’s opinion on 21 an issue of a claimant’s impairment be given controlling weight if it is well-supported by 22 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent 23 with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2). If a 24 treating source’s opinion is not given controlling weight, the weight that it will be given 25 is determined by length of the treatment relationship, frequency of examination, nature 26 and extent of the treatment relationship, relevant evidence supporting the opinion, 27 consistency with the record as a whole, the source’s specialization, and other factors. Id. 28 -5  1 2 Where there is a conflict between the opinion of a treating physician and an examining 3 physician, the ALJ may not reject the opinion of the treating physician without setting 4 forth specific, legitimate reasons supported by substantial evidence in the record. Orn, 5 495 F.3d at 632. 6 2. Treating Neurologist Ronald Bennett, M.D. 7 On August 4, 2008, Bell began seeing Dr. Bennett, a neurologist, with complaints 8 of headaches and seizures. During the initial consultation, Bell reported that she also 9 suffered from fibromyalgia, chronic depression, and alcoholism. She reported being 10 sober for the past year and a former smoker. Dr. Bennett’s initial consultation report lists 11 recommendations, including adding a tricyclic antidepressant to Bell’s regimen because it 12 has more effect on headaches than a serotonin reuptake inhibitor such as Paxil. 13 Bell returned to see Dr. Bennett four more times during August 2008. An 14 abnormal EEG study on August 11, 2008, indicated a probable source for a clinical 15 seizure disorder. On August 14, 2008, Dr. Bennett conducted a visual evoked potential 16 study and an auditory evoked potential study, both of which were normal. On October 3, 17 2008, a chart note states that Bell wanted Dr. Bennett to write a prescription for an 18 antidepressant other than Paxil because he had told her Paxil was not “headache 19 friendly.” 20 On July 15, 2010, Dr. Bennett reported that Bell had requested that he fill out her 21 Ability to Work Activity Form in support of her disability application. He said that he 22 had not seen her since April 2010 when she saw him for headaches, but the record does 23 not include treatment notes from April 2010. Dr. Bennett stated that Bell’s “problem is 24 migraine,” but she also has severe anxiety and depression. He also stated that, because of 25 her limp and problems with her right leg, he would like to do an electromyography test to 26 determine whether she has nerve damage from her motor vehicle accident and surgery 27 sixteen years earlier. The electromyography and nerve conduction tests performed on 28 -6  1 2 July 15, 2010, showed “evidence for a polyneuropathy bilaterally, both motor and 3 sensory.” On July 15, 2010, Dr. Bennett partially completed a Medical Assessment of 4 Ability to Do Work Related Activities form, on which he indicated that Bell “can not 5 stand or walk for a long duration” and in an 8-hour work day can stand or walk 0 hours. 6 He opined that Bell can never bend, squat, crawl, climb, or reach. He did not complete 7 the questions regarding her ability to sit, lift, carry, or use her hands. He indicated that 8 pain or fatigue (he did not indicate which) moderately affect Bell’s ability to function. 9 Bell contends the ALJ erred by giving Dr. Bennett’s July 15, 2010 opinion “less 10 weight.” The ALJ provided the following clear, convincing, specific, and legitimate 11 reasons for doing so: 12 23 Dr. Bennett’s opinion was entitled to less weight for several reasons. First, although the claimant may have a “problem” with her right leg, the evidentiary record does not support total preclusion from standing or walking throughout the day. Dr. Bennett’s treatment notes indicate an antalgic gait with a tendency to limp, but he describes her coordination as good []. In an initial examination, he described headaches and seizures but he did not express concern about leg pain, or describe limitations in walking or standing []. The underlying treatment notes are sparse, documenting about two months of treatment from August of 2008 to October of 2008 []. Dr. Bennett states that he saw the claimant in April of 2010 (for headaches) but the evidentiary record contains little or no evidence from this time. There is little evidence in the record to support a total preclusion from postural activities. Finally, Dr. Bennett did not cite to any objective and clinical evidence, and the lack of explanation reduced the persuasiveness of his opinion. 24 Bell concedes that Dr. Bennett did not cite any clinical or objective evidence in making 25 his assessment, but argues that the electromyography and nerve conduction tests study 26 finding peripheral neuropathy is sufficient support for Dr. Bennett’s opinion that she can 27 stand or walk 0 hours in an 8-hour work day. Without further explanation, the ALJ was 13 14 15 16 17 18 19 20 21 22 28 -7  1 2 not required to assume that a diagnosis of peripheral neuropathy precluded any walking 3 or standing. 4 require Bell to walk or stand. Moreover, the ALJ’s residual functional capacity assessment does not 5 The ALJ complied with Social Security Rules by weighing Dr. Bennett’s opinion 6 in accord with the length of the treatment relationship, frequency of examination, nature 7 and examination of the treatment relationship, relevant evidence supporting the opinion, 8 and consistency with the record as a whole. Bell alleged disability beginning in July 9 2007. Dr. Bennett began treating Bell in August 2008 for headaches and seizures and 10 noted her antalgic gait then, but did not attempt to diagnose her right leg problem (which 11 began in 1994) until July 2010 when she asked him to complete the disability assessment. 12 The record does not show that he ever treated Bell for peripheral neuropathy. 13 Further, Bell incorrectly contends “the ALJ accepts the opinion of the non- 14 examining state agency physician who relegated the claimant to light to sedentary work.” 15 In fact, the ALJ stated that she gave weight to the state agency consultants’ opinions, but 16 extended Bell “some benefit of the doubt” in consideration of her “partially credible 17 subjective complaints, the effects of pain or fatigue and any aggravating factors,” and 18 reduced the residual functional capacity assessment to the sedentary level. 19 Thus, the ALJ did not err by giving less weight to Dr. Bennett’s opinion. 20 B. 21 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 22 other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 23 whether the claimant presented objective medical evidence of an impairment that could 24 reasonably be expected to produce some degree of the pain or other symptoms alleged; 25 and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the 26 severity of the symptoms only by giving specific, clear, and convincing reasons for the 27 rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 28 The ALJ Did Not Err in Evaluating Bell’s Credibility. -8  1 2 First, the ALJ found that Bell’s medically determinable impairments could 3 reasonably be expected to cause the alleged symptoms. Second, the ALJ found Bell’s 4 statements regarding the intensity, persistence, and limiting effects of the symptoms not 5 credible to the extent they are inconsistent with the ALJ’s residual functional capacity 6 assessment. In other words, the ALJ found Bell’s statements not credible to the extent 7 she claims she is unable to perform sedentary work with simple and repetitive tasks. The 8 ALJ did not find evidence of malingering. 9 The ALJ gave the following specific, clear, and convincing reasons, supported by 10 substantial evidence, for finding Bell’s subjective symptom testimony only partially 11 credible: 12 13 14 15 16 17 18 19 20 21 22 The claimant’s testimony regarding her symptoms and her complete inability to engage in work activity was not fully persuasive, and she has admitted to the ability to perform a variety of daily activities, inconsistent with her disability allegations. In a function report, the claimant reported that she spent most of her time sitting in a chair watching TV, and she attended to most personal needs without difficulty. The claimant admitted that she cooks simple meals, does ceramics and reads (a couple of times a week) []. The third party described spending 5-6 hours with the claimant, watching television or reading. He noted that the claimant had no problems caring for her personal needs, with the exception of getting out of the tub; she could cook simple meals and do household chores such as laundry and dishes []. Such activities are consistent with the range of sedentary exertional activity described herein. 23 Bell does not dispute that she can perform sedentary activities, but rather contends 24 that this evidence does not show that she is able to perform full-time sedentary work and 25 the ALJ was required to cite reasons unrelated to the subjective testimony for partially 26 discounting Bell’s credibility. In fact, the ALJ stated multiple objective reasons for doing 27 so: the treatment course was not consistent with Bell’s allegations of incapacity, some of 28 -9  1 2 the conditions existed while Bell was working, some showed significant improvement 3 with medication and routine medical treatment, adverse side effects of medication were 4 not documented in the record, and Bell admitted she stopped working for reasons other 5 than her medical conditions. 6 Moreover, the ALJ expressly gave Bell’s subjective symptom allegations “the 7 benefit of the doubt” by limiting her residual functional capacity to sedentary work. 8 Therefore, the ALJ did not err by finding Bell’s subjective symptom testimony partially 9 credible. 10 C. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 At Step Four, the ALJ Did Not Err by Failing to Properly Consider the “Listings” at 20 C.F.R. § 404, Subpart P, Appendix I. Bell contends the ALJ erred by failing to properly consider whether her COPD condition satisfied Listing 3.02(A). As explained above, at step three, the ALJ was required to consider whether the claimant’s impairment or combination of impairments meets or equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404, and Bell bore the burden of proof at step three. The ALJ considered the Listings and, regarding Bell’s COPD, stated: “Her spirometry results were abnormal, but they did not establish disability via the requirements of listing 3.02 (Chronic pulmonary insufficiency).” Listing 3.02A sets the standard for finding chronic pulmonary insufficiency based on a person’s height and pulmonary function testing. Listing 3.00E provides detailed instructions for pulmonary testing. It defines FEV1 as the reported forced expiratory volume. Listing 3.00E also requires that the FEV1 be the largest of at least three satisfactory forced expiratory maneuvers and that two of the satisfactory spirograms must be reproducible for both pre-bronchodilator and post-bronchodilator tests. To be reproducible, a value must not differ from the largest value by more than 5 percent or 0.1 L, whichever is greater. - 10   1 2 Listing 3.00E directs that spirometry should be repeated after administration of an 3 aerosolized bronchodilator if the pre-bronchodilator FEV1 value is less than 70 percent of 4 the predicted normal value. It states, “The effect of the administered bronchodilator in 5 relieving bronchospasm and improving ventilatory function is assessed by spirometry,” 6 and the values used in Listing 3.02A “must only be used as criteria for the level of 7 ventilatory impairment that exists during the individual’s most stable state of health.” 8 Listing 3.02A defines chronic pulmonary insufficiency for a person 67 inches tall 9 as having an FEV1 value equal to or less than 1.35 and for a person 68 inches tall as 10 having an FEV1 value equal to or less than 1.45. Three FEV1 tests were performed in 11 connection with Bell’s disability application: 12 September 25, 2008. The May test results had a variance too great to be considered 13 reproducible, and the examiner noted the variance was due to poor effort. The August 14 test reported Bell’s height as 67 inches, her pre-bronchodilator FEV1 as 1.39, and her 15 post-bronchodilator FEV1 as 1.97. The September test reported her height as 68 inches, 16 her pre-bronchodilator FEV1 as 1.37, and her post-bronchodilator FEV1 as 1.73. 17 Regardless of whether Bell is 67 or 68 inches tall and whether the pre-bronchodilator 18 FEV1 should be considered, none of the values were equal to or less than 1.35. 19 Therefore, the ALJ did not err by finding that Bell’s spirometry results did not meet 20 Listing 3.02A. 21 IT IS THEREFORE ORDERED that the final decision of the Commissioner of 22 Social Security is affirmed. 23 terminate this case. 24 The Clerk shall enter judgment accordingly and shall Dated this 8th day of April, 2013. 25 26 27 28 May 5, 2008; August 5, 2008; and - 11  

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