Tipa v. Commissioner of Social Security Administration

Filing 16

ORDER that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 9/11/2014. (LFIG)

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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 Valerie Tipa, No. CV-13-08293-PCT-DGC Plaintiff, 10 11 v. 12 ORDER Carolyn W. Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 16 Plaintiff Valerie Tipa seeks review under 42 U.S.C. § 405(g) of the final decision 17 of the Commissioner of Social Security (“the Commissioner”), which denied her 18 disability insurance benefits and supplemental security income under sections 216(i) and 19 223(d) of the Social Security Act. Because the decision of the Administrative Law Judge 20 (“ALJ”) is supported by substantial evidence and is not based on legal error, the 21 Commissioner’s decision will be affirmed. 22 I. Background. 23 On April 13, 2010, Plaintiff applied for disability insurance benefits and 24 supplemental security income, alleging disability beginning April 4, 2008. On June 29, 25 2012, she appeared with her attorney and testified at a hearing before the ALJ. A 26 vocational expert (“VE”) also testified. On July 24, 2012, the ALJ issued a decision that 27 Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals 28 1 Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s 2 decision the Commissioner’s final decision. 3 II. Legal Standard. 4 The district court reviews only those issues raised by the party challenging the 5 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 6 may set aside the Commissioner’s disability determination only if the determination is 7 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 8 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 9 preponderance, and relevant evidence that a reasonable person might accept as adequate 10 to support a conclusion considering the record as a whole. Id. In determining whether 11 substantial evidence supports a decision, the court must consider the record as a whole 12 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 13 As a general rule, “[w]here the evidence is susceptible to more than one rational 14 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 15 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 16 Harmless error principles apply in the Social Security Act context. Molina v. 17 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 18 substantial evidence supporting the ALJ’s decision and the error does not affect the 19 ultimate nondisability determination. Id. The claimant usually bears the burden of 20 showing that an error is harmful. Id. at 1111. 21 III. The ALJ’s Five-Step Evaluation Process. 22 To determine whether a claimant is disabled for purposes of the Social Security 23 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 24 the burden of proof on the first four steps, but at step five, the burden shifts to the 25 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 26 At the first step, the ALJ determines whether the claimant is engaging in 27 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 28 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant -2  1 has a “severe” medically determinable physical or mental impairment. 2 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 3 three, the ALJ considers whether the claimant’s impairment or combination of 4 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 5 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 6 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 7 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 8 still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant 9 is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final 10 step, where he determines whether the claimant can perform any other work based on the 11 claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the 12 claimant is not disabled. Id. If not, the claimant is disabled. Id. 13 At step one, the ALJ found that Plaintiff meets the insured status requirements of 14 the Social Security Act through December 31, 2013, and that she has not engaged in 15 substantial gainful activity since April 4, 2008. At step two, the ALJ found that Plaintiff 16 has the following severe impairments: lumbar back pain/degenerative disc disease status- 17 post fusion surgery, obesity, and degenerative joint disease of the right hip. At step three, 18 the ALJ determined that Plaintiff does not have an impairment or combination of 19 impairments that meets or medically equals an impairment listed in Appendix 1 to 20 Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to 21 perform: 22 23 24 25 [S]edentary work as defined in 20 CFR 404.1567(a) with no climbing ladders, ropes, or scaffolds; no more than occasional balancing, stooping, crouching, kneeling, crawling, climbing ramps and stairs; and no concentrated exposure to excessive vibrations, moving machinery except motor vehicles, or unprotected heights. 26 27 The ALJ further found that Plaintiff is able to perform her past relevant work as a 28 receptionist. At step five, the ALJ concluded that considering Plaintiff’s age, education, -3  1 work experience, and RFC, there are jobs that exist in significant numbers in the national 2 economy that Plaintiff could perform. 3 IV. Analysis. 4 Plaintiff argues that the ALJ “misconstrued” practically all of the relevant 5 objective medical evidence and all of the subjective testimony. Plaintiff’s generalized 6 arguments appear to boil down to an assertion that the ALJ’s decision is defective for 7 three reasons: (1) the ALJ improperly weighed the opinions of Plaintiff’s treating 8 physician and a consultative examiner; (2) the ALJ improperly evaluated Plaintiff’s 9 credibility; and (3) the ALJ improperly determined that Plaintiff could perform her past 10 relevant work. Plaintiff also argues that this matter should be assigned to a different ALJ 11 if a remand is necessary because the ALJ assigned to her case is prejudiced against her. 12 The Court will address each argument below. 13 A. Weighing of Medical Source Evidence. 14 Plaintiff argues that the ALJ improperly weighed the medical opinions of the 15 following medical sources: treating physician Katherine Metzger, D.O., and consultative 16 examiner Mark Brecheisen, D.O. The Court will address the ALJ’s treatment of each 17 opinion below. 18 1. Legal Standard. 19 The Ninth Circuit distinguishes between the opinions of treating physicians, 20 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 21 830 (9th Cir. 1995). 22 physician’s opinion and more weight to the opinion of an examining physician than to 23 one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th 24 Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when 25 evaluating opinion evidence, including length of examining or treating relationship, 26 frequency of examination, consistency with the record, and support from objective 27 evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating 28 or examining physician can be rejected only for “clear and convincing” reasons. Lester, Generally, an ALJ should give greatest weight to a treating -4  1 81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A 2 contradicted opinion of a treating or examining physician “can only be rejected for 3 specific and legitimate reasons that are supported by substantial evidence in the record.” 4 Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). 5 An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 6 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 7 interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 8 Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set 9 forth [her] own interpretations and explain why they, rather than the doctors’, are 10 correct.” Embrey, 849 F.2d at 421-22. The Commissioner is responsible for determining 11 whether a claimant meets the statutory definition of disability and does not give 12 significance to a statement by a medical source that the claimant is “disabled” or “unable 13 to work.” 20 C.F.R. § 416.927(d). 14 15 2. Katherine Metzger, D.O. Dr. Metzger completed a check-the-box form on May 21, 2012 offering the 16 following opinions: Plaintiff could occasionally lift or carry ten pounds and could 17 frequently lift or carry five pounds; Plaintiff could stand and/or walk four hours in a work 18 day with the use of a cane; Plaintiff needs to alternate standing and sitting to avoid 19 stiffening and pain; Plaintiff needs to elevate her legs two to three times per day because 20 of swelling; Plaintiff could never climb, balance, stoop, kneel, crouch, or crawl; Plaintiff 21 had no restrictions as to heights, noise, temperature extremes, chemicals, or dust; and 22 Plaintiff should not be around moving machinery. A.R. 383-85. The ALJ accorded Dr. 23 Metzger’s opinion “partial weight.” A.R. 17. 24 Dr. Metzger’s medical opinion was contradicted by the opinion of Dr. Brecheisen, 25 who opined that Plaintiff had greater abilities than those identified by Dr. Metzger. The 26 ALJ could therefore discount Dr. Metzger’s opinion for specific and legitimate reasons 27 supported by substantial evidence. Lester, 81 F.3d at 830-31. The ALJ provided four 28 reasons for according Dr. Metzger’s opinion partial weight. -5  1 First, the ALJ noted that Dr. Metzger’s opinion assessed limitations from “5/8/12 2 to present” and not from Plaintiff’s alleged onset date. A.R. 17, 385. Dr. Metzger’s 3 opinion failed to meet the duration requirement because the assessed impairments had not 4 lasted for a continuous period of at least 12 months and Dr. Metzger’s opinion does not 5 state that Plaintiff’s limitations are expected to last for a continuous period of at least 12 6 months. 20 C.F.R. § 404.1509. 7 Second, the ALJ concluded that Dr. Metzger’s opinion was inconsistent with her 8 own treatment notes. A.R. 17. The treatment notes included reports of “unremarkable 9 examinations including no acute distress, ambulation without assistance, no neurological 10 abnormalities, a normal range of motion in all areas, an unremarkable back including 11 none-to-slight tenderness, and no edema.” A.R. 15, 377-85. The mild impairments 12 supported by Dr. Metzger’s treatment notes are not consistent with the severe restrictions 13 contained in her medical opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 14 Cir. 2008) (incongruity between questionnaire responses and medical records provides a 15 legitimate reason for discounting opinion). 16 Third, the ALJ found that the brevity of Dr. Metzger’s treating relationship with 17 Plaintiff strongly suggested that the limitations included in Dr. Metzger’s opinion were 18 “regurgitations of the claimant’s self-report.” A.R. 17. By the time Dr. Metzger filled 19 out her check-the-box form, the treating relationship had lasted less than one month and 20 Dr. Metzger had seen Plaintiff only one time. A.R. 381-85. The ALJ properly relied on 21 the short duration of the treatment relationship to discount Dr. Metzger’s opinion. 22 Benton v. Barnhart, 331 F.3d 1030, 1038-39 (9th Cir. 2003) (finding the duration of the 23 treatment relationship and the frequency and nature of the contact relevant in weighing 24 medical opinion evidence). The ALJ’s decision to discount Dr. Metzger’s opinion is 25 buttressed by Dr. Metzger’s notation in her treatment notes that she “filled out the form 26 for [Plaintiff’s] lawyers” with Plaintiff’s help. A.R. 379; see Batson v. Comm’r of Soc. 27 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (stating that the ALJ could discount a 28 treating physician’s opinion because it was “based on [the claimant]’s subjective -6  1 descriptions of pain.”); Benton, 331 F.3d at 1038-39. The mild limitations and 2 unremarkable findings made by Dr. Metzger further support the ALJ’s belief that Dr. 3 Metzger’s medical opinion was based on Plaintiff’s self-report rather than on Dr. 4 Metzger’s medical observations. A.R. 377-85. 5 Fourth, the ALJ asserted that Dr. Metzger’s opinion was inconsistent with reliable 6 medical evidence of record. The ALJ based this assertion on two sources: (1) physical 7 examinations performed by Dr. Metzger herself and described above, and (2) physical 8 therapy records submitted by a therapist from whom Plaintiff received treatment 9 following her surgery. A.R. 265-88. The physical therapy records include multiple 10 clinical tests establishing Plaintiff’s range of motion, strength, reflexes, gait, mobility, 11 and recuperation. The records also include multiple statements made and documents 12 submitted by Plaintiff indicating that her pain had significantly abated, she relied less on 13 her cane, she no longer wore her back brace, she could satisfactorily perform all of her 14 tasks of daily living, and her mobility had improved. A.R. 266-67, 71-72. The records 15 even contain a statement by Plaintiff asserting that she felt ready to return to work in an 16 office position so long as she did not have to lift more than 20 pounds. A.R. 267, 272. 17 See Orn, 495 F.3d 631 (explaining that consistency with the medical record as a whole is 18 a relevant factor when evaluating a medical opinion). 19 Plaintiff argues that it was error for the ALJ to rely on records submitted by the 20 physical therapist because the therapist is not an acceptable medical source as defined by 21 Social Security Rulings. Doc. 13 at 8; SSR 06-03p. Plaintiff is incorrect. Although the 22 therapist is not an “acceptable medical source” as defined by Ruling 06-03p, the ruling 23 clearly indicates that the therapist is an “other source” from whom the ALJ may gather 24 evidence that sheds light on the severity of Plaintiff’s impairments and how the 25 impairments affect Plaintiff’s ability to function. 26 physical therapist’s records to discount Dr. Metzger’s medical opinion. SSR 06-03p. 27 28 -7  Thus, the ALJ could rely on the 1 The ALJ relied on specific, legitimate, and permissible reasons to discount Dr. 2 Metzger’s opinion, and those reasons are supported by substantial evidence. The Court 3 concludes that the ALJ did not commit legal error. 3. 4 Mark Brecheisen, D.O. 5 Plaintiff argues that the ALJ mischaracterized the report submitted by consultative 6 examiner Mark Brecheisen, D.O., by stating that he opined that Plaintiff was capable of a 7 sedentary lifting level of “no more than 10 pounds,” when Dr. Brecheisen actually found 8 that Plaintiff was capable of “less than 10 pounds both occasionally and frequently.” 9 Doc. 13 at 9-10. Plaintiff is correct that these two standards are different and that the 10 ALJ incorrectly summarized Dr. Brecheisen’s finding. But this error had no impact on 11 the ALJ’s ultimate decision because the ALJ discounted Dr. Brecheisen’s lifting 12 requirement, noting that it was based on Plaintiff’s self-report. A.R. 16; Batson, 359 F.3d 13 at 1195. The Court concludes, therefore, that the ALJ did not commit legal error. 14 B. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility. 15 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 16 other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 17 whether the claimant presented objective medical evidence of an impairment that could 18 reasonably be expected to produce some degree of the pain or other symptoms alleged; 19 and, if so, and if there is no evidence of malingering, (2) reject the claimant’s testimony 20 about the severity of the symptoms only by giving specific, clear, and convincing reasons 21 for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 22 The ALJ complied with this two-step analysis. The ALJ first found that Plaintiff’s 23 medically determinable impairments could reasonably be expected to cause the alleged 24 symptoms. 25 persistence, and limiting effects of the symptoms not credible to the extent they are 26 inconsistent with the ALJ’s residual functional capacity assessment. In other words, the 27 ALJ found Plaintiff’s statements not credible to the extent she claims she is unable to 28 perform in a competitive work environment. The ALJ then found Plaintiff’s statements regarding the intensity, -8  1 At the hearing Plaintiff testified the she has not worked since April 2008, when 2 she “herniated [her] back.” A.R. 33. Plaintiff stated that she uses a cane to walk at all 3 times. A.R. 33-34. She asserted that she needs to recline and shift her weight when 4 sitting and alternate between sitting and standing in order to alleviate her pain. A.R. 34, 5 36. She testified the she experiences “excruciating” pain in her back and right hip that 6 has worsened since her October 2008 back surgery and which is not alleviated with pain 7 medication. A.R. 38, 41. Plaintiff testified that she experiences intensely painful muscle 8 spasms in her legs a few times a day that prevent her from driving and require two hours 9 or so of recovery time. A.R. 40-41. Plaintiff asserted that she has endured migraines 10 three times a week since 2008, which last twelve hours and require her to “go to a dark 11 room, put ice on [her] head, turn off the lights, [and hear] no sound.” A.R. 42-43. The 12 only medication she has taken to combat her migraines is Tylenol. A.R. 43. She testified 13 that her right kneecap pops out of place several times a week, requiring her to “push[] it 14 back in.” A.R. 43-44. She stated that she can lift “maybe ten pounds.” A.R. 44. She 15 asserted that she has trouble concentrating, which causes her to randomly forget what she 16 was talking about or doing several times per day. A.R. 45. As to activities of daily 17 living, Plaintiff testified that her disabled, quadriplegic husband does most of the 18 housework and that she remains in her bed some days because of her pain. A.R. 45-46. 19 At the hearing, Plaintiff’s attorney brought attention to the fact that Plaintiff elevated her 20 legs on a second chair while she was testifying, used a cane, brought a “grabber” to the 21 hearing in order to demonstrate that she could not stoop, and alternated between standing 22 and sitting during her testimony. 23 The ALJ gave the following reasons for finding Plaintiff’s testimony not fully 24 credible: (1) the objective medical evidence did not support Plaintiff’s allegations of total 25 disability; (2) Plaintiff’s testimony was inconsistent with statements made to healthcare 26 providers immediately after her surgery; (3) Plaintiff’s testimony about the intensity of 27 her back and hip pain is not consistent with her failure to seek treatment for nearly two 28 and a half years; (4) once Plaintiff did seek care for her pain, she received conservative -9  1 treatment and over-the-counter medication only; (5) Plaintiff’s activities of daily living 2 were inconsistent with her allegations of pain; (6) the record contains several inconsistent 3 statements from Plaintiff regarding both her degree of limitations and other matters 4 indirectly related to her functioning and overall credibility; and (7) Plaintiff’s hearing 5 testimony was exaggerated. A.R. 15-16. After carefully reviewing the record, the Court 6 finds that each of the reasons cited by the ALJ for finding Plaintiff’s testimony not fully 7 credible is supported by substantial evidence in the record. 8 Plaintiff argues that the ALJ’s assertion that her condition improved post-surgery 9 is baseless. Doc. 13 at 10, 15-16. To the contrary, multiple relevant sources indicate that 10 Plaintiff’s mobility and level of pain improved over time after her surgery, including her 11 physical therapist (A.R. 266-87) and a radiologist who found “less prominent” disc 12 bulges and a decrease in right-sided narrowing when comparing an April 2012 MRI of 13 Plaintiff’s back to a March 2008 MRI (A.R. 374). 14 supported that ALJ’s assertion that Plaintiff’s condition improved over time. Substantial evidence therefore 15 Plaintiff contends that the ALJ erred in finding her less credible based on the 16 assertion that Plaintiff collected unemployment benefits after the alleged onset of her 17 disability. 18 unemployment benefits during the relevant time period. A.R. 204-05. In addition, while 19 there may be an inconsistency between Plaintiff’s decision to file for unemployment 20 benefits, which requires an attestation of Plaintiff’s ability to work, and her decision to 21 file for disability benefits, which requires an attestation of Plaintiff’s inability to work, 22 the record here does not establish whether Plaintiff held herself out as available for full- 23 time or part-time work. Only the former is inconsistent with her disability allegations. 24 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Therefore, 25 the ALJ’s reliance on this potential inconsistency in discounting Plaintiff’s credibility 26 was error. Because the ALJ provided many other reasons for discounting Plaintiff’s 27 credibility, however, the Court concludes that the error was harmless. Doc. 13 at 11. Plaintiff correctly observes that she failed to collect 28 - 10   1 Plaintiff asserts that the ALJ erred in finding that she only takes “over-the-counter 2 pain medication.” Doc. 13 at 16. Plaintiff bases this assertion on the fact that she also 3 takes multiple prescription medications, including Tramadol, Gabapentin, and Ropinirole. 4 A.R. 245. While it is true that Plaintiff was prescribed these medications approximately 5 three months prior to her hearing before the ALJ, throughout the majority of the relevant 6 time period Plaintiff only reported taking over-the-counter medications for her pain. 7 A.R. 226, 244, 245, 311, 349-50. Thus, while the ALJ’s statement is not entirely correct, 8 it accurately captures the fact that Plaintiff medicated her “excruciating pain” with 9 Tylenol and other over-the-counter pain medications until just before her administrative 10 hearing. 11 Plaintiff contends that the ALJ erred by finding that Plaintiff used a cane that was 12 not prescribed or medically necessary. Doc. 13 at 8-9. Plaintiff asserts that both Drs. 13 Metzger and Brecheisen testified that the cane was prescribed and medically necessary. 14 Id. Plaintiff is correct. A.R. 312, 384. This error, which eliminates the ALJ’s conclusion 15 that Plaintiff used a cane that was not prescribed, does not render the ALJ’s other 16 findings legally erroneous. 17 Plaintiff contends that it was error for the ALJ to discount her testimony based on 18 contradictory evidence of her activities of daily living. Doc. 13 at 14. Plaintiff bases her 19 contention on the existence of evidence in the record that tends to support her testimony 20 regarding her activities of daily living. Plaintiff similarly contests the ALJ’s conclusions 21 that Plaintiff engaged in physical exercise and that she made inconsistent statements 22 regarding marijuana use during the administrative process because other evidence exists 23 in the record supporting an alternate interpretation of the record. The Court may not, 24 however, re-weigh the evidence. 25 evidence, the court may not engage in second-guessing.” Tommasetti, 533 F.3d at 1039. 26 The Court will not second-guess the ALJ’s conclusions because they are supported by 27 substantial evidence. “If the ALJ’s finding is supported by substantial 28 - 11   1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 C. ALJ’s Determination the Plaintiff Could Perform Past Relevant Work. Plaintiff argues that it was error for the ALJ to conclude that she was capable of performing her past work as a receptionist. Doc. 13 at 16-17. Plaintiff asserts that the ALJ stated that her former occupation as a receptionist was found in the Dictionary of Occupational Titles (“DOT”) number 237.367-010 with a sedentary exertion level and skill level of three, when it is actually found under DOT number 237.367-038 with a sedentary level and skill level of four. Id. Plaintiff is simply incorrect. The transcript from the hearing makes clear that the relevant occupation is listed under DOT number 237.267-010 with a sedentary exertion and skill level of three. A.R. 56. Plaintiff also asserts that the ALJ ignored certain testimony from the vocational expert. Doc. 13 at 17. The vocational expert testimony that the ALJ ignored, however, was responding to a hypothetical posed by Plaintiff’s attorney and was based on an RFC not adopted by the ALJ. The ALJ, therefore, properly disregarded the testimony. IT IS ORDERED that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. Dated this 11th day of September, 2014. 17 18 19 20 21 22 23 24 25 26 27 28 - 12  

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