O'Grady-Spear v. Colvin

Filing 27

ORDER that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment and terminate this case. Signed by Senior Judge James A Teilborg on 9/7/16. (LSP)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Deborah O’Grady-Spear, Plaintiff, 10 11 ORDER v. 12 No. CV-15-08088-PCT-JAT Carolyn W. Colvin, 13 Defendant. 14 15 Pending before the Court is Plaintiff Deborah O’Grady-Spear’s appeal from the 16 Social Security Commissioner’s denial of her application for disability benefits, disability 17 insurance benefits, and supplemental security income under the Social Security Act. 18 Plaintiff argues that the administrative law judge (“ALJ”) erred by finding that 19 (1) Plaintiff’s fibromyalgia is neither medically determinable nor severe, (2) Plaintiff’s 20 migraines are not severe, and (3) Plaintiff is not credible. The Court now rules on 21 Plaintiff’s appeal. 22 I. Background 23 A. Procedural Background 24 On November 24, 2010, Plaintiff filed an application for disability and disability 25 insurance benefits. (Tr. 16).1 On December 8, 2011, Plaintiff filed an application for 26 supplemental security income. (Id.) In her applications, Plaintiff alleged a disability onset 27 28 1 Citations to “Tr.” are to the certified administrative transcript of record. (Doc. 17). 1 date of May 31, 2007. (Id.) Plaintiff’s claims were initially denied on July 18, 2012, and 2 upon reconsideration on November 1, 2012. (Id.) Plaintiff timely requested a hearing, 3 which was conducted before ALJ Paula Fow via videoconference on July 16, 2013. (Id.) 4 On September 19, 2013, the ALJ issued an unfavorable decision. (Tr. 26). After 5 Plaintiff’s request for review by the Social Security Administration Appeals Council was 6 denied, she commenced this action in federal court on May 5, 2015. (Doc. 1). 7 B. 8 Plaintiff was born in 1951 and lives with her husband in Flagstaff, Arizona. 9 (Tr. 48, 97). Plaintiff completed high school and multiple years of college before working 10 for several decades as a bookkeeper, auditor, office manager, accounting clerk, and retail 11 manager. (Tr. 48, 61, 72). Currently, Plaintiff’s sole source of income is from retirement 12 social security benefits. (Tr. 49). Plaintiff’s Background 13 In 2006, an ALJ determined that Plaintiff was disabled and entitled to social 14 security benefits from September 4, 2000 through August 31, 2005. (Tr. 75). During that 15 closed period of disability, Plaintiff suffered from the following impairments: 16 fibromyalgia, asthma, obesity, sinus problems, affective disorder-moderate, and cervical 17 arthritis. (Tr. 73). The ALJ found, however, that on September 1, 2005, Plaintiff 18 “experienced ‘medical improvement’ related to her ability to work” and “retained the 19 residual functional capacity to perform sedentary exertional work.” (Tr. 74). 20 Consequently, as of September 1, 2005, Plaintiff has not been found disabled under social 21 security standards. Plaintiff now seeks disability with an alleged onset date of May 31, 22 2007. (Doc. 1). 23 II. Legal Standard 24 The ALJ’s decision to deny benefits will be overturned “only if it is not supported 25 by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 26 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere 27 scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 28 1998). -2- 1 “The inquiry here is whether the record, read as a whole, yields such evidence as 2 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 3 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether 4 there is substantial evidence to support a decision, the Court considers the record as a 5 whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence 6 that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is 7 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which 8 must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences 9 logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see 10 Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is 11 because “[t]he trier of fact and not the reviewing court must resolve conflicts in the 12 evidence, and if the evidence can support either outcome, the court may not substitute its 13 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); 14 see Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 15 The ALJ is responsible for resolving conflicts in medical testimony, determining 16 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 17 Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports 18 the Commissioner’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 19 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may 20 not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 21 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted). 22 Notably, the Court is not charged with reviewing the evidence and making its own 23 judgment as to whether Plaintiff is or is not disabled. Rather, the Court’s inquiry is 24 constrained to the reasons asserted by the ALJ and the evidence relied upon in support of 25 those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 26 A. 27 To qualify for disability benefits under the Social Security Act, a claimant must 28 show that, among other things, she is “under a disability.” 42 U.S.C. § 423(a)(1)(E). The Definition of Disability -3- 1 Social Security Act defines “disability” as the “inability to engage in any substantial 2 gainful activity by reason of any medically determinable physical or mental impairment 3 which can be expected to result in death or which has lasted or can be expected to last for 4 a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). A person is: 5 6 7 8 9 under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Id. § 423(d)(2)(A). B. Five-Step Evaluation Process 10 The Social Security regulations set forth a five-step sequential process for 11 evaluating disability claims. 20 C.F.R. § 404.1520(a)(4); see also Reddick, 157 F.3d at 12 721. A finding of “not disabled” at any step in the sequential process will end the inquiry. 13 20 C.F.R. § 404.1520(a)(4). The claimant bears the burden of proof at the first four steps, 14 but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. The 15 five steps are as follows: 16 17 1. First, the ALJ determines whether the claimant is “doing substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. 18 2. If the claimant is not gainfully employed, the ALJ next determines whether the 19 claimant has a “severe medically determinable physical or mental impairment.” Id. 20 § 404.1520(a)(4)(ii). To be considered severe, the impairment must “significantly limit[] 21 [the claimant’s] physical or mental ability to do basic work activities.” Id. § 404.1520(c). 22 Basic work activities are the “abilities and aptitudes to do most jobs,” such as lifting, 23 carrying, reaching, understanding, carrying out and remembering simple instructions, 24 responding appropriately to co-workers, and dealing with changes in routine. Id. 25 § 404.1521(b). Further, the impairment must either have lasted for “a continuous period 26 of at least twelve months,” be expected to last for such a period, or be expected “to result 27 in death.” Id. § 404.1509 (incorporated by reference in id. § 404.1520(a)(4)(ii)). The 28 “step-two inquiry is a de minimis screening device to dispose of groundless claims.” -4- 1 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If the claimant does not have a 2 severe medically determinable impairment, then the claimant is not disabled. 3 3. Having found a severe impairment, the ALJ next determines whether the 4 impairment “meets or equals” one of the impairments listed in the regulations. 20 C.F.R. 5 § 404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not, 6 before proceeding to the next step, the ALJ will make a finding regarding the claimant’s 7 “residual functional capacity based on all the relevant medical and other evidence in [the] 8 case record.” Id. § 404.1520(e). A claimant’s “residual functional capacity” is the most 9 he can still do despite all his impairments, including those that are not severe, and any 10 related symptoms. Id. § 404.1545(a)(1). 11 4. At step four, the ALJ determines whether, despite the impairments, the claimant 12 can still perform “past relevant work.” Id. § 404.1520(a)(4)(iv). To make this 13 determination, the ALJ compares its “residual functional capacity assessment . . . with the 14 physical and mental demands of [the claimant’s] past relevant work.” Id. § 404.1520(f). 15 If the claimant can still perform the kind of work he previously did, the claimant is not 16 disabled. Otherwise, the ALJ proceeds to the final step. 17 5. At the final step, the ALJ determines whether the claimant “can make an 18 adjustment to other work” that exists in the national economy. Id. § 404.1520(a)(4)(v). In 19 making this determination, the ALJ considers the claimant’s “residual functional 20 capacity” and his “age, education, and work experience.” Id. § 404.1520(g)(1). If the 21 claimant can perform other work, he is not disabled. If the claimant cannot perform other 22 work, he will be found disabled. 23 In evaluating the claimant’s disability under this five-step process, the ALJ must 24 consider all evidence in the case record. See id. § 404.1520(a)(3); id. § 404.1520b. This 25 includes medical opinions, records, self-reported symptoms, and third-party reporting. 26 See id. §§ 404.1527, 404.1529; Social Security Ruling (“SSR”) 06–3p, 71 Fed. Reg. 27 45593-03. 28 -5- 1 C. 2 At step one of the sequential evaluation process the ALJ found that Plaintiff did 3 not engage in substantial gainful activity since her alleged onset date of May 31, 2007. 4 (Tr. 18). At step two, the ALJ concluded that Plaintiff had the following “severe 5 impairments: diabetes mellitus; fibromyalgia; sinus migraines; asthma and obesity.” (Id.) 6 The ALJ deemed these impairments “severe” because they “have caused and will 7 continue to cause more than minimal work-related functional limitations.” (Tr. 18–19). 8 At step three, the ALJ determined that Plaintiff’s mental impairments did not meet or 9 equal any of the listed impairments in the Social Security regulations. (Tr. 20). The ALJ’s Evaluation under the Five-Step Process 10 Before moving to step four, the ALJ conducted an RFC determination in light of 11 Plaintiff’s testimony and the objective medical evidence. (Id.) The ALJ found that 12 Plaintiff “has the residual functional capacity to perform medium work” with several 13 physical limitations and stated that her fibromyalgia “does not meet the requirements set 14 forth by the Social Security Administration needed for the determination that 15 fibromyalgia is a medically determinable impairment.” (Tr. 20, 22). The also ALJ found 16 that Plaintiff’s “medical records do not contain any objective findings suggesting that her 17 migraines have imposed significant limitation on her ability to perform basic work 18 activities for any continuous 12-month period.” (Tr. 23). 19 At step four, the ALJ found that based on the assessed RFC, Plaintiff could 20 perform her past work of accounting clerk, office manager, and retail manager. (Tr. 25). 21 At step five, the ALJ declined to make an alternative finding that Plaintiff could perform 22 other jobs existing in the national economy. (Tr. 25–26). Because Plaintiff could perform 23 her past work, the ALJ held that Plaintiff was not disabled. (Tr. 26). 24 III. Analysis 25 Plaintiff makes three arguments for why the Court should set aside the ALJ’s 26 decision and remand her case for further proceedings. Specifically, Plaintiff asserts that 27 the ALJ erred in her findings regarding Plaintiff’s (1) fibromyalgia, (2) migraines, and 28 (3) credibility. (Doc. 19). The Court will address each argument in turn. -6- 1 A. 2 Whether the ALJ Properly Considered Plaintiff’s Fibromyalgia 1. Background 3 The Court first turns to Plaintiff’s argument that the ALJ erred by finding that 4 Plaintiff’s fibromyalgia was neither “medically determinable” nor “severe.” (Doc. 19 at 5 4–10). Initially, Plaintiff asserts that the ALJ’s fibromyalgia findings were contradictory. 6 (Id.) Particularly, Plaintiff finds internally inconsistent the ALJ’s factual finding at step 7 two that Plaintiff’s fibromyalgia was “severe” and the ALJ’s later finding that Plaintiff’s 8 fibromyalgia was “not medically determinable.” (Id. at 5–6).2 Regardless of the 9 decision’s consistency, Plaintiff contends that the ALJ erred in concluding that her 10 fibromyalgia was not “medically determinable.” (Id. at 5). Plaintiff asserts that the ALJ 11 inaccurately found that she failed to establish the requisite number of tender points 12 needed for fibromyalgia and that all other potential causes of her symptoms had been 13 excluded by a licensed physician. (Id. at 4–14). Plaintiff insists that the ALJ’s error was 14 not harmless because it made “meaningful judicial review [impossible] since, by 15 definition, the ALJ’s error is an error of omission.” (Id. at 9–10). 16 In response, the Commissioner argues that the ALJ’s decision is not contradictory. 17 (Doc. 23 at 4–8). The Commissioner explains that the ALJ found Plaintiff’s fibromyalgia 18 to be a “severe” impairment at step two and “[a]lthough the ALJ’s wording may not have 19 been clear, the ALJ did not conclude that fibromyalgia was not a medically determinable 20 impairment.” (Id. at 6). According to the Commissioner, when the ALJ stated that 21 Plaintiff’s fibromyalgia “does not meet the requirements set forth by the Social Security 22 Administration needed for the determination that fibromyalgia is a medically 23 determinable impairment,” (Tr. 22), the ALJ was “explaining that Plaintiff’s medical 24 records during the relevant period detracted from Plaintiff’s claims of disability following 25 her alleged onset date,” (Doc. 23 at 6). The Commissioner also asserts that substantial 26 evidence supports the ALJ’s conclusion that the record evidence did not establish the 27 28 2 Due to this inconsistency, Plaintiff argues that the ALJ erred by finding that her fibromyalgia was “neither ‘medically determinable’ or ‘severe.’” (Id. at 4). -7- 1 requisite number of tender points or that a licensed physician excluded all other 2 impairments before diagnosing Plaintiff with fibromyalgia. (Id. at 6–8). 3 2. Analysis 4 Regarding Plaintiff’s fibromyalgia, the ALJ found, in relevant part: 5 3. The claimant has the following severe impairments: diabetes mellitus; fibromyalgia; sinus migraines; asthma and obesity. The medical evidence of record documents the existence of the above-mentioned impairments. The claimant’s symptoms arising from her diabetes mellitus; fibromyalgia; sinus migraines and asthma have caused and will continue to cause more than minimal work-related functional limitations. As such, the undersigned finds these impairments ‘severe.’ 6 7 8 9 10 11 12 13 14 15 16 17 18 19 (Tr. 18–19) (internal citations omitted). The record contains several references to the diagnosis of fibromyalgia. However, these medical records do not confirm that the claimant has the requisite number of tender point findings (or any tender points) and there is no evidence that licensed physicians have excluded other impairments as required in SSR 12-2p. Moreover, physical examination shows gait and station as ‘normal’; head and neck as ‘normal’ alignment and mobility[;] and the spine, ribs and pelvis show ‘normal’ alignment and mobility with no deformity. Consequently, the undersigned finds that this impairment does not meet the requirements set forth by the Social Security Administration needed for the determination that fibromyalgia is a medically determinable impairment. (Tr. 22) (internal citations omitted). 20 The Court agrees with Plaintiff that the ALJ’s findings are internally inconsistent. 21 The Commissioner’s artful attempt to reconcile the findings by rewording them is 22 unpersuasive. As readily seen, the ALJ expressly found at step two that Plaintiff’s 23 fibromyalgia was a “severe impairment,” but when crafting the RFC, stated that her 24 fibromyalgia was not a “medically determinable impairment.” There can be no debate 25 that these findings contradict each another as an “impairment” must be “medically 26 determinable” to be “severe.” See 20 C.F.R. § 404.1520(a)(4)(ii). The Court therefore 27 concludes that the ALJ’s findings regarding Plaintiff’s fibromyalgia were in error. 28 Nonetheless, not all errors mandate reversal of an ALJ’s non-disability decision. If -8- 1 an 2 determination[,]” reversal is prohibited. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 3 2012) (quotations omitted). The burden of establishing that an “error is harmful normally 4 falls upon the party attacking the agency’s determination.” Id. at 1111 (citing Shinseki v. 5 Sanders, 556 U.S. 396, 409 (2009)). In this case, the ALJ performed a full five-step 6 evaluation and crafted Plaintiff’s RFC after finding that her fibromyalgia was not a 7 medically determinable impairment. (Tr. 22). Thus, the ALJ’s inconsistent findings did 8 not prevent a complete review of Plaintiff’s application. Accordingly, if substantial 9 evidence supports the ALJ’s finding that Plaintiff’s fibromyalgia was not a medically 10 determinable impairment under the Social Security Rulings (“SSR”), the Court will not 11 reverse the ALJ’s decision because the internal inconsistency would be harmless. error is “harmless,” i.e., “inconsequential to the ultimate nondisability 12 For fibromyalgia to be considered a medically determinable impairment, Plaintiff 13 must establish the following three elements: (1) a history of widespread pain, (2) at least 14 eleven positive tender points on physical examination, and (3) evidence that other 15 disorders that could cause the symptoms or signs were excluded by a licensed physician. 16 SSR 12-2p.3 Here, the ALJ found that Plaintiff’s fibromyalgia was not a medically 17 determinable impairment for several reasons. First, the ALJ explained that the record was 18 devoid of any medical evidence establishing the requisite number of tender points. 19 (Tr. 22). Second, the ALJ stated that Plaintiff failed to provide any evidence that a 20 licensed physician excluded all other impairments before diagnosing fibromyalgia. (Id.) 21 Third, the ALJ considered that Plaintiff was purportedly diagnosed with fibromyalgia in 22 1985 but was able to work for nearly two dozen years thereafter. (Id.) Finally, the ALJ 23 noted that Plaintiff did not see specialists for treatment and her physical examination 24 showed normal findings as to her gait, station, head, neck, spine, ribs, and pelvis. (Id.) 25 Plaintiff argues that the ALJ erred in her findings regarding tender points and 26 3 27 28 The Court notes that even if all three of these elements are proven, SSR 12-2p does not obligate the Social Security Administration to find that a claimant has a medically determinable impairment of fibromyalgia. Rather, SSR 12-2p states that the Social Security Administration “may find” same. -9- 1 exclusion of other impairments. (Doc. 19 at 6–8). Plaintiff cites several documents in the 2 record in attempt to show that she established the requisite number of tender points. (Id.) 3 However, some of the medical evidence Plaintiff identifies is from several years before 4 Plaintiff’s alleged onset date of May 31, 2007. See (Tr. 341). Moreover, the 2010 5 consultative examiner report to which Plaintiff cites does not establish the requisite 6 number of tender points and in fact observes that Plaintiff was capable of working with 7 only minor limitations. (Tr. 375–81) (noting that Plaintiff “was tender at points delineated 8 for fibromyalgia as well as control points in between” but could “stand and/or walk” for 9 six to eight hours per workday and had no limitations sitting).4 On the other hand, Glenn 10 R. Kunsman, a 2012 consultative examiner whose opinion was assigned “great weight” 11 by the ALJ, diagnosed Plaintiff with “fibromyalgia with 18 positive tender points.” 12 (Tr. 426). However, Dr. Kunsman concluded that Plaintiff’s conditions would not 13 “impose any limitations for 12 continuous months.” (Id.) Because a medically 14 determinable impairment must be expected to last for twelve months or result in death, 15 see 20 C.F.R. § 404.1509, substantial evidence supports the ALJ’s finding that Plaintiff 16 failed to establish the requisite number of tender points. 17 Plaintiff also contends she provided evidence that a licensed physician rejected all 18 other potential causes of her symptoms before diagnosing fibromyalgia. (Doc. 19 at 7–8). 19 The Court disagrees. As before, Plaintiff points to medical records that were applicable to 20 her prior disability between 2000 and 2005. (Id.) However, the ALJ who awarded 21 Plaintiff benefits for that closed period specifically found that Plaintiff improved from her 22 disability and was not disabled as of August 31, 2005. (Tr. 75). Accordingly, any 23 evidence establishing Plaintiff’s fibromyalgia before that date is irrelevant to the present 24 inquiry of whether her fibromyalgia was a medically determinable impairment at the time 25 of the alleged onset date in this case, May 31, 2007. Beyond this material, Plaintiff 26 identifies no other evidence showing that a licensed physician excluded all other causes 27 28 4 Similarly, Plaintiff cites to a 2006 report which does not expressly state that all other potential causes of her symptoms had been excluded. See (Tr. 337). - 10 - 1 of her symptoms before diagnosing fibromyalgia.5 Accordingly, substantial evidence 2 supports the ALJ’s finding that Plaintiff failed to show that a licensed physician excluded 3 other causes of Plaintiff’s symptoms and signs before diagnosing fibromyalgia. 4 3. Conclusion for Plaintiff’s Fibromyalgia 5 For the reasons set forth above, after “look[ing] at the record as a whole to 6 determine whether the ALJ’s error alters the outcome of the case,” the Court concludes 7 that although the ALJ issued contradictory findings as to Plaintiff’s fibromyalgia, the 8 error was harmless as it was “inconsequential to the ultimate nondisability 9 determination.” Molina, 674 F.3d at 1115. 10 B. 11 Whether the ALJ Properly Considered Plaintiff’s Migraines 1. Background 12 Plaintiff next argues that the ALJ erred by finding that Plaintiff’s sinus migraines 13 were “severe” but not “vocationally severe.” (Doc. 19 at 10–14) (citing Tr. 18, 23). 14 Plaintiff asserts that “[t]he ALJ provides no explanation for why she found migraines to 15 be ‘severe’ but then concluded that there was no evidence that they ‘imposed limitations.’ 16 . . . [I]t is impossible as a matter of law for impairment to be severe and cause no 17 limitations at all.” (Doc. 24 at 4) (citations omitted). Plaintiff further asserts that the ALJ 18 erred by considering “objective medical findings” when reviewing the severity of 19 Plaintiff’s migraines because migraines are a “diagnosis of exclusion.” (Doc. 19 at 12). 20 Plaintiff also insists that the ALJ erred by not expressly considering Listing of 21 Impairment – Adult Listing (“Listing”) 11.03. (Id. at 11). 22 In response, the Commissioner explains that “[r]ather than questioning the 23 existence of [Plaintiff’s] headaches, the ALJ noted a lack of evidence that these 24 headaches imposed significant limitation on work activity.” (Doc. 23 at 9). The 25 Commissioner argues the ALJ properly considered objective medical evidence when 26 27 28 5 Plaintiff states that Dr. Kunsman noted that Plaintiff has a “long history of fibromyalgia.” (Doc. 19 at 7). Dr. Kunsman, however, never expressly excluded all other impairments. (Tr. 421–26). - 11 - 1 determining the severity of Plaintiff’s migraines. (Id.) Finally, the Commissioner 2 contends that while the ALJ did not “expressly” consider Listing 11.03, the ALJ 3 “implicitly” analyzed the Listing. (Id. at 10). 4 2. Analysis 5 The ALJ made the following findings: (1) Plaintiff’s migraines were a “severe” 6 impairment at step two, (Tr. 18–19), and (2) Plaintiff “failed to prove she has a 7 vocationally ‘severe’ migraine condition” because her “medical records do not contain 8 any objective findings suggesting that her migraines have imposed significant limitations 9 on her ability to perform basic work activities for any continuous 12-month period,” 10 (Tr. 23). As with fibromyalgia, the Court agrees with Plaintiff that these findings are 11 internally inconsistent. A “severe” impairment means the impairment “significantly limits 12 [a claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. 13 § 404.1520(c). At step two, the ALJ determined that Plaintiff’s migraines were a “severe 14 medically determinable impairment” but found expressly to the contrary when crafting 15 Plaintiff’s RFC. This was error. 16 Nonetheless, as outlined above, reversal of a non-disability determination is 17 improper if the ALJ’s error was harmless. In this regard, Plaintiff asserts that the ALJ 18 erred by reviewing “objective medical findings” as a means to reject Plaintiff’s subjective 19 pain testimony. (Doc. 19 at 12). However, although the existence of subjective pain 20 testimony cannot be rejected solely due to lack of corroborating objective medical 21 evidence, an ALJ may properly look to objective medical evidence to determine the 22 vocational severity of an applicant’s complaints. See Rollins v. Massanari, 261 F.3d 853, 23 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole 24 ground that it is not fully corroborated by objective medical evidence, the medical 25 evidence is still a relevant factor in determining the severity of the claimant’s pain and its 26 disabling effects.” (citing 20 C.F.R. § 404.1529(c)(2))). Here, the ALJ found that 27 Plaintiff’s “medical records do not contain any objective findings suggesting that her 28 migraines have imposed significant limitations on her ability to perform basic work - 12 - 1 activities for any continuous 12-month period.” (Tr. 23). Beyond her own statements of 2 severity, Plaintiff does not point to any evidence in the record establishing that her 3 migraines imposed more than minimal related work limitations. Thus, assuming the 4 existence of Plaintiff’s migraines, the ALJ properly reviewed the “objective findings” of 5 the medical record and found the severity of the migraines to be nominal. Accordingly, 6 substantial evidence supports the ALJ’s finding that Plaintiff’s migraines were not 7 “vocationally severe” due to the lack of “objective findings” in the medical record. (Id.)6 8 Moreover, the ALJ did not commit reversible error by not expressly identifying 9 Listing 11.03 in the decision. Listing 11.03 identifies non-convulsive seizures as those 10 which cause significant interference with daytime activities. Here, the ALJ considered the 11 relevant aspects of Listing 11.03 in her analysis by discussing the lack of evidence that 12 Plaintiff’s migraines caused significant interference in basic daily activities. (Tr. 23). 13 3. Conclusion for Plaintiff’s Migraines 14 Based on the foregoing, the Court finds that the ALJ erred by issuing contradictory 15 findings as to Plaintiff’s migraines; however, because this error was inconsequential to 16 the ALJ’s ultimate non-disability determination, it was harmless. Therefore, the Court 17 will not remand for further proceedings based on this error. 18 C. 19 Whether the ALJ Properly Considered Plaintiff’s Credibility 1. Background 20 As her final contention of error, Plaintiff argues that the ALJ improperly found her 21 to be non-credible without considering her documented lack of health insurance and 22 “incredibly strong work record.” (Doc. 19 at 14). The Commissioner responds that 23 Plaintiff failed to establish her inability to afford medical coverage. (Doc. 23 at 12). The 24 Commissioner also contends that the ALJ’s analysis of Plaintiff’s work history was a 25 reasonable interpretation of the evidence. (Id. at 13–15). 26 6 27 28 The Court notes that following her alleged onset date, Plaintiff consistently and repeatedly denied having any problems with headaches. See (Tr. 361, 394, 439, 444, 452, 468, 472). Although the ALJ did not cite these documents in the decision, the ALJ properly relied upon the lack of evidence as to the severity of Plaintiff’s migraines. - 13 - 1 2 2. Analysis a. Health Insurance 3 Plaintiff argues that the ALJ erred in her credibility determination by failing to 4 consider Plaintiff’s “documented” lack of health insurance. (Doc. 19 at 14). According to 5 Plaintiff, the ALJ erred by “cit[ing] lack of objective evidence in addition to alleged 6 ‘conservative treatment’ as a basis to discredit her symptoms without acknowledging her 7 lack of medical insurance[.]” (Id. at 15). The record, however, does not establish that 8 Plaintiff lacked the means to obtain necessary medical treatment. Simply because a 9 claimant does not have medical insurance does not mean that she cannot obtain necessary 10 medical treatment. On the contrary, Plaintiff’s testimony clearly indicates that she has 11 been able to obtain the necessary medications for her ailments. See (Tr. 54–56) (listing 12 current medications as estrodiol, metformin, guaifenesin, furosemide, atenolol, Lisinopril, 13 levothyroxine, Effexor XR, albuterol spray, azmacort, and nortriptyline). Plaintiff does 14 not point to evidence that establishes she was unable to afford necessary treatment due to 15 a lack of health insurance, and her treatment records indicate that she has been able to 16 obtain ongoing medical care throughout her alleged disability period. See (Tr. 337–39, 17 347–68, 386–420, 438–53, 462–79). Consequently, as Plaintiff failed to establish that she 18 was unable to afford necessary medical treatment, the ALJ did not err by considering 19 Plaintiff’s “conservative treatment” as a factor diminishing Plaintiff’s credibility. 20 b. Work History 21 Similarly, Plaintiff asserts that the ALJ erred by failing to consider her “incredibly 22 strong work record” in the credibility analysis. (Doc. 19 at 15). The Court disagrees. The 23 ALJ expressly examined Plaintiff’s testimony that she quit her previous job immediately 24 after she was awarded disability benefits by the prior ALJ. (Tr. 23). This evidence alone 25 is a “clear and convincing” reason for discrediting Plaintiff and, in fact, is “affirmative 26 evidence of malingering.” See Berry v. Astrue, 622 F.3d 1228, 1235 (9th Cir. 2010) 27 (holding that ALJ properly found “affirmative evidence of malingering” because the 28 claimant “reported that he wanted to do volunteer work but refrained for fear of - 14 - 1 impacting his disability benefits, and claimed disability dating from his last day of 2 employment even though he admitted at the hearing that he left his job because his 3 employer went out of business and probably would have worked longer had his employer 4 continued to operate”); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as 5 amended (Nov. 9, 2001) (finding that ALJ properly discredited a claimant’s testimony 6 because he “stated at the administrative hearing and to at least one of his doctors that he 7 left his job because he was laid off, rather than because he was injured”). 8 To the extent Plaintiff argues that her “incredibly strong work record” establishes 9 that she is credible, the Court disagrees. The ALJ expressly considered Plaintiff’s 10 testimony that she had been able to work for over twenty years with her impairments and 11 determined that this factor detracted from Plaintiff’s credibility. (Tr. 23). An ALJ may 12 properly discredit a social security claimant’s testimony if the claimant was able to work 13 with the allegedly disabling impairments. See Morgan v. Comm’r of Soc. Sec., 169 F.3d 14 595, 601 (9th Cir. 1999) (discrediting a claimant’s testimony in part because he held his 15 previous job while under the same allegedly disabling conditions). Although Plaintiff 16 argues that similar evidence has been interpreted as indicating credibility, the ALJ’s 17 finding was a rationale and permissible interpretation of the evidence that must be 18 upheld. See Gallant, 753 F.2d at 1453. 19 3. Conclusion for Plaintiff’s Credibility 20 Based on the foregoing, the Court concludes that the ALJ did not err in finding 21 Plaintiff to be non-credible. The reasons appealed by Plaintiff constitute “clear and 22 convincing” reasons for discrediting her testimony.7 23 24 25 26 27 28 7 Even without considering these two reasons, the ALJ provided multiple other “clear and convincing” reasons for finding Plaintiff’s testimony to be non-credible thus requiring the ALJ’s decision to be upheld. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Namely, the ALJ also noted Plaintiff’s daily activity level, ability to effectively control her symptoms with medication, and self-reporting that her impairments do not impact her daily activities. (Tr. 23). As Plaintiff does not contend the ALJ erred in these areas, she waived doing so. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). - 15 - 1 IV. Conclusion 2 For the reasons set forth above, 3 IT IS ORDERED that the final decision of the Commissioner of Social Security 4 5 is affirmed. The Clerk of Court shall enter judgment accordingly and terminate this case. Dated this 7th day of September, 2016. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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?