Darkins v. Colvin

Filing 18

ORDER affirming the June 6, 2013 decision of the Administrative Law Judge, (R. at 12-24), as upheld by the Appeals Council on October 24, 2014 (R. at 1-3). IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Signed by Judge John J Tuchi on 3/15/16. (KGM)

Download PDF
1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Braden Victor Darkins, Plaintiff, 10 11 12 No. CV-14-08246-PCT-JJT ORDER v. Carolyn W. Colvin, Defendant. 13 14 At issue is the denial of Plaintiff Braden Victor Darkins’s Application for 15 Disability Insurance Benefits by the Social Security Administration (“SSA”) under the 16 Social Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court 17 seeking judicial review of that denial, and the Court now considers Plaintiff’s Opening 18 Brief (Doc. 14, “Pl.’s Br.”), Defendant Social Security Administration Commissioner’s 19 Opposition (Doc. 15, “Def.’s Br.”), and Plaintiff’s Reply (Doc. 16, “Pl.’s Reply”). 20 I. BACKGROUND 21 Plaintiff filed an Application for a Period of Disability and Disability Insurance 22 Benefits under Titles II and XVIII of the Act on November 10, 2009, for a Period of 23 Disability beginning October 16, 2008. (Doc. 11, R. at 340.) The parties do not dispute 24 that Plaintiff’s Last Date Insured for purposes of determining benefits under the Act is 25 March 31, 2011. (R. at 340.) Plaintiff’s claim was initially denied on March 18, 2010. (R. 26 at 146.) Plaintiff testified at a hearing held before an Administrative Law Judge (“ALJ”) 27 on June 15, 2011. (R. at 73-123.) On July 6, 2011, the ALJ issued a decision denying 28 Plaintiff’s claim. (R. at 128-40.) On review, the Appeals Council (“AC”) remanded 1 Plaintiff’s case to the ALJ for further findings on December 7, 2012. (R. at 142-44.) 2 Specifically, the AC ordered the ALJ to address the treatment records of Dr. Robyn 3 Chase, to pose a hypothetical to a Vocational Expert that is consistent with the residual 4 functional capacity (RFC) assessment, and to address Plaintiff’s obesity. (R. at 142-44.) 5 Plaintiff testified at another hearing held before the same ALJ on April 26, 2013. (R. at 6 38-72.) On June 6, 2013, the ALJ issued another decision denying Plaintiff’s claims. (R. 7 at 12-24.) The AC upheld the ALJ’s second decision on October 24, 2014. (R. at 1-3.) 8 The present appeal followed. 9 The Court has reviewed the medical evidence in its entirety and provides a short 10 summary here. In 2008 and 2009, Plaintiff was under the care of a primary care 11 physician, Dr. Luis Egelsee. (E.g., R. at 754-78.) Dr. Egelsee found that Plaintiff had a 12 fractured vertebra in his lower back, and Plaintiff underwent surgery on October 16, 13 2008, the alleged onset date. (R. at 798.) Plaintiff continued to see Dr. Egelsee after the 14 surgery and underwent other procedures in his lower back, including medial branch 15 blocks. (E.g., R. at 436, 438, 483, 485, 487.) Dr. Egelsee prescribed medication and 16 physical therapy and observed that Plaintiff experienced some improvement but had 17 some difficulty standing, ambulating and sitting. (E.g., R. at 754.) 18 On February 13, 2010, about 16 months after the alleged onset date, psychiatrist 19 Dr. Rupali Chadha of the Los Angeles Department of Social Services examined Plaintiff. 20 (R. at 580-87.) She observed that no psychiatric records regarding Plaintiff were available 21 but that Plaintiff reported having Post Traumatic Stress Disorder (PTSD). (R. at 580.) 22 Plaintiff took medication for depression which helped his low mood, and after an 23 extensive examination, Dr. Chadha concluded that Plaintiff had mild depressive 24 symptoms that are most likely due to lower back pain but that he did not meet the 25 diagnostic criteria for Major Depressive Disorder and had no symptoms of PTSD. (R. at 26 586.) 27 At about the same time, on February 18, 2010, Dr. H. Harian Bleecker of the Los 28 Angeles Department of Social Services examined Plaintiff. (R. at 590-94.) He reported -2- 1 that Plaintiff had at least two accidents, on a motorcycle in 2004 and rollerblading in 2 2007, that he had various surgical procedures on his lower back in 2008 and 2009, that he 3 used a cane if he was required to walk more than ten minutes, and that he took 4 medications for pain. (R. at 590.) After a review of x-rays and an extensive physical and 5 functional examination, Dr. Bleecker concluded that, while Plaintiff had radicular pain 6 and numbness in his feet from his lower back injuries, Plaintiff could sit for six hours and 7 stand and walk with a cane up to four hours within an eight-hour period, and could lift 20 8 pounds occasionally and ten pounds frequently. (R. at 593.) 9 Plaintiff first sought treatment for back pain from Dr. Robyn Chase beginning in 10 September 2010, nearly two years after the alleged onset date. (R. at 710.) Dr. Chase 11 referred Plaintiff to physical therapy for his back pain and prescribed medication for 12 depression. (R. at 711.) Dr. Chase provided evaluations of Plaintiff’s functional capacity 13 in May 2011, August 2011 and March 2013—all of which were after the Last Date 14 Insured. (R. at 643, 1362-70.) In those evaluations, Dr. Chase opined that Plaintiff 15 showed “objective signs of radiculopathy (nerve damage) and myelopathy (muscular 16 function),” that “his lower back x-rays and MRI do not explain these current findings,” 17 and that “his CT myelogram of the neck does reveal spinal cord impingement on 18 numerous levels.” (R. at 643.) Dr. Chase also opined that Plaintiff “suffers from 19 depression and anxiety from his condition which is moderately controlled at the present 20 time,” though there is no record of a psychological examination of Plaintiff by Dr. Chase. 21 (R. at 643.) She concluded that Plaintiff “is prohibited by his body’s inability to sit or 22 stand for long periods of time, as well as the pain that accompanies this.” (R. at 643; see 23 also R. at 1362-70.) 24 II. ANALYSIS 25 The district court reviews only those issues raised by the party challenging the 26 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 27 may set aside the Commissioner’s disability determination only if the determination is 28 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d -3- 1 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, but less than a 2 preponderance; it is relevant evidence that a reasonable person might accept as adequate 3 to support a conclusion considering the record as a whole. Id. In determining whether 4 substantial evidence supports a decision, the court must consider the record as a whole 5 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 6 As a general rule, “[w]here the evidence is susceptible to more than one rational 7 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 8 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 9 To determine whether a claimant is disabled for purposes of the Act, the ALJ 10 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 11 proof on the first four steps, but the burden shifts to the Commissioner at step five. 12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 13 determines whether the claimant is presently engaging in substantial gainful activity. 20 14 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At 15 step two, the ALJ determines whether the claimant has a “severe” medically determinable 16 physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not 17 disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 18 impairment or combination of impairments meets or medically equals an impairment 19 listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). 20 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to 21 step four. Id. At step four, the ALJ assesses the claimant’s RFC and determines whether 22 the claimant is still capable of performing past relevant work. 20 C.F.R. 23 § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, 24 the ALJ proceeds to the fifth and final step, where he determines whether the claimant 25 can perform any other work in the national economy based on the claimant’s RFC, age, 26 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not 27 disabled. Id. If not, the claimant is disabled. Id. 28 -4- 1 A. 2 Plaintiff disputes the ALJ’s finding at step four of the five-step process, 3 4 5 6 7 8 9 10 specifically, that when considering the combination of Plaintiff’s impairments, Plaintiff’s RFC allowed him to perform his past relevant work. Plaintiff’s first argument is that the ALJ committed reversible error by assigning inadequate weight to the assessments of Plaintiff’s medical care providers related to his lower back pain.1 (Pl.’s Br. at 6-9.) Defendant argues that the ALJ properly weighed the treating professionals’ assessments, offering specific and legitimate reasons supported by substantial evidence in the record for giving little weight to certain assessments. (Def.’s Br. at 5-12.) An ALJ “may only reject a treating or examining physician’s uncontradicted 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The ALJ Assigned Proper Weight to the Assessments of Plaintiff’s Treating Physicians and Properly Considered the Record as a Whole medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F. 3d 821, 830-31 (9th Cir. 1996)). “Where such an opinion is contradicted, however, it may be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Id. In this instance, the ALJ found that the assessments of two of Plaintiff’s treating physicians, Dr. Egelsee and Dr. Chase, were contradicted by the assessments of Dr. Bleecker. (R. at 18-23.) The Court must therefore examine whether the ALJ provided specific and legitimate reasons for discounting the assessments of Dr. Egelsee and Dr. Chase, supported by substantial evidence when examining the record as a whole. See Carmickle, 533 F.3d at 1164. Dr. Egelsee’s treatment notes are very difficult—nearly impossible—to read. For example, Plaintiff contends that Dr. Egelsee’s January 13, 2009 notes state that Plaintiff was “unable to sit or stand long period of time” (Pl.’s Br. at 8 (citing R. at 754)), but the notes do not so state. They appear to say, “Able to walk. Unable to sit for long periods 27 28 1 Plaintiff does not contend that the ALJ erred in assessing Plaintiff’s alleged PTSD and depression. -5- 1 [illegible].” (R. at 754.) No methodical evaluation by Dr. Egelsee of Plaintiff’s functional 2 capacity appears in the record, whether legible or not. But, in a letter to the ALJ dated 3 June 15, 2011, Dr. Egelsee stated that Plaintiff “is clearly disabled as a result of his 4 physical and emotional issues and is unable to work in any meaningful capacity.” (R. at 5 1288.) 6 The ALJ found that Dr. Egelsee’s generalized assessment of Plaintiff’s functional 7 capacity was both inconsistent with Dr. Egelsee’s treatment records and unsupported by 8 objective evidence, and the Court agrees. Several somewhat legible treatment notes—for 9 example from June 11, 2009—state that Plaintiff’s symptoms (both physical and 10 emotional) were under control with medication. (R. at 756.) Most other treatment notes 11 are illegible and therefore can neither lend support nor detract from Dr. Egelsee’s later 12 letter to the ALJ. 13 But on February 18, 2010, Dr. Bleecker methodically examined Plaintiff and 14 thoroughly reviewed Plaintiff’s treatment history. (R. at 590-94.) Dr. Bleecker concluded 15 that, while Plaintiff experienced pain and numbness from his injuries, he could sit for six 16 hours and stand and walk with a cane up to four hours within an eight-hour period, and 17 could lift 20 pounds occasionally and ten pounds frequently. (R. at 593.) The ALJ 18 provided specific and legitimate reasons for discounting Dr. Egelsee’s generalized 19 assessment of Plaintiff’s functional capacity and favoring that of examining physician Dr. 20 Bleecker. (See R. at 22.) 21 Likewise, the Court agrees with the ALJ’s decision to discount the evaluations of 22 Dr. Chase. First, as the ALJ pointed out, Dr. Chase only began to see Plaintiff nearly two 23 years after the alleged onset date (and near the Last Date Insured), and she conducted all 24 of her evaluations of Plaintiff’s functional capacity after the Last Date Insured. (See R. at 25 22.) The connection of her reported findings to Plaintiff’s actual functional capacity on or 26 around the alleged onset date is thus tenuous. The ALJ also concluded that Dr. Chase’s 27 conclusions were not fully consistent with her treatment records or her reports that 28 Plaintiff’s symptoms were improved with pain medication. (See, e.g., R. at 670 (April 6, -6- 1 2011—one week after Last Date Insured—”Med change last visit. He is doing well with 2 these.”).) Dr. Chase’s own notes indicate that x-rays and MRIs did not show a cause for 3 Plaintiff’s pain or show any instability in back flexion or extension. (See, e.g., R. at 672, 4 679 (January 26, 2011—”Patient would like to have a second opinion on his MRI results 5 because the first report stated that there was nothing wrong.”).) And, along with being 6 inconsistent with Dr. Bleecker’s findings, the ALJ pointed out that Dr. Chase’s findings 7 were inconsistent with those of other treating doctors. (See, e.g., R. at 445 (May 4, 2009: 8 “Gait is normal,” “range of motion is full with mild tenderness,” “motor examination 5/5 9 throughout,” and “patient’s clinical examination does not reveal any obvious causes for 10 his low back pain, although facet arthropathy may contribute.”).) The ALJ provided 11 specific and legitimate reasons for discounting Dr. Chase’s assessments of Plaintiff’s 12 functional capacity and favoring those of other examining physicians. (See R. at 22.) 13 B. The ALJ’s Alleged Misstatement of Fact Did Not Change the Outcome 14 Plaintiff contends that the ALJ erred when he stated, “I have found no evidence of 15 any nerve root impingement or severe stenosis to cause the severity of pain or limitations 16 [Plaintiff] has alleged.” (Pl.’s Br. at 9 (citing R. at 20).) In support of the ALJ’s findings, 17 multiple examining doctors concluded that Plaintiff’s symptoms were not explained by 18 physical examinations of Plaintiff’s spine and lower back. (See, e.g., R. at 445, 672.) 19 Plaintiff contends that other reports do provide an explanation of a potential physical 20 cause for his pain. (Pl.’s Br. at 9 (citing R. at 443, 643).) To the extent there is 21 contradictory evidence of the physical cause of Plaintiff’s reported pain, the ALJ also 22 relied on the functional capacity examinations of multiple examining physicians. (See, 23 e.g., R. at 445, 590-94.) Thus, even if the Court disregards the ALJ’s statement regarding 24 evidence of the source of Plaintiff’s pain, the ALJ’s conclusions were supported by 25 substantial evidence. 26 C. The ALJ Properly Weighed Plaintiff’s Testimony 27 Plaintiff also argues that the ALJ erred in his consideration of Plaintiff’s symptom 28 testimony. (Pl.’s Br. at 10-11.) In response, Defendant contends that the ALJ gave -7- 1 Plaintiff’s testimony the proper weight because some of his testimony was not supported 2 by objective medical evidence, Plaintiff was somewhat successful in controlling his 3 symptoms with medication and treatment and failed to follow certain treatment regimens, 4 and Plaintiff engaged in physical activity despite his claimed limitations. (Def.’s Br. at 5 13-20.) 6 While credibility is the province of the ALJ, an adverse credibility determination 7 requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 8 claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 9 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen v. Chater, 80 10 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ disagreed with certain statements of Plaintiff 11 regarding the intensity, persistence and limiting effects of his conditions and his 12 conclusion that he is disabled. (R. at 27, 41.) 13 In the instances in which the ALJ assigned little value to Plaintiff’s statements, the 14 Court finds the ALJ gave specific, clear and convincing reasons for doing so. The ALJ 15 pointed out that Plaintiff’s reports of his functional limitations were not consistent with 16 the findings of examining physicians (as detailed above); that Plaintiff’s pain improved 17 with medication and medial branch blocks and that he declined certain other treatment 18 regimens, such as regular exercise (see, e.g., R. at 446-47, 664, 701, 704, 741-42); and 19 that Plaintiff engaged in physical activities inconsistent with his reports of pain, such as 20 driving to California, fishing with his son, and lifting and moving objects (see, e.g., R. at 21 692, 696, 1294). The ALJ’s credibility determination was thus supported by substantial 22 evidence in the record and free from error. See 20 C.F.R. § 404.1529(c)(3); Stubbs- 23 Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008); Warre ex rel. E.T. IV v. 24 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 25 III. CONCLUSION 26 Plaintiff raises no error on the part of the ALJ, and the SSA’s decision denying 27 Plaintiff’s Application for a Period of Disability and Disability Insurance Benefits under 28 the Act was supported by substantial evidence in the record. -8- 1 IT IS THEREFORE ORDERED affirming the June 6, 2013 decision of the 2 Administrative Law Judge, (R. at 12-24), as upheld by the Appeals Council on October 3 24, 2014 (R. at 1-3). 4 5 6 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Dated this 15th day of March, 2016. 7 8 Honorable John J. Tuchi United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?