Earls v. Colvin

Filing 18

ORDER: IT IS THEREFORE ORDERED 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 3/31/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kaylee Earls,

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No. CV-15-08165-PCT-NVW
Plaintiff,

ORDER

v.

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Carolyn W. Colvin, Acting Commissioner
of Social Security,

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Defendant.

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Plaintiff Kaylee Earls seeks review under 42 U.S.C. § 405(g) of the final decision

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of the Commissioner of Social Security (“the Commissioner”), which denied her

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supplemental security income under section 1614(a)(3)(A) of the Social Security Act.

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Because the decision of the Administrative Law Judge (“ALJ”) is supported by

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substantial evidence and is not based on legal error, the Commissioner’s decision will be

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affirmed.

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I.

BACKGROUND

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Plaintiff was born in November 1990 and applied for Supplemental Security

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Income benefits when she was 21 years old. She has at least a high school education and

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is able to communicate in English. When she was 12 years old, she had surgery for

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lumbar scoliosis, which caused nerve damage. She continues to have leg and back pain

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for which she takes pain medication. In 2013, she worked two days a week for about

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three hours a day handling mail for a medical facility. She was able to drive, help with

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grocery shopping, do laundry, lift a gallon of milk, but not lift her two-year-old son who

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weighed 28 pounds. She drives three hours to visit her family, but has developed a leg

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cramp, which required her to stop and walk around for about an hour to relieve the

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cramp.

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On May 31, 2012, Plaintiff applied for supplemental security income benefits,

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alleging disability beginning April 13, 2008. On December 13, 2013, she appeared with

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her attorney and testified at a video hearing before the ALJ. A vocational expert also

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testified. On January 30, 2014, the ALJ issued a decision that Plaintiff was not disabled

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within the meaning of the Social Security Act. The Appeals Council denied Plaintiff’s

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request for review of the hearing decision, making the ALJ’s decision the

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Commissioner’s final decision. On August 31, 2015, Plaintiff sought review by this

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Court.

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II.

STANDARD OF REVIEW

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The district court reviews only those issues raised by the party challenging the

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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

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may set aside the Commissioner’s disability determination only if the determination is

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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. As a general rule,

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“[w]here the evidence is susceptible to more than one rational interpretation, one of

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which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted); accord Molina v. Astrue,

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674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more

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than one rational interpretation, we must uphold the ALJ’s findings if they are supported

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by inferences reasonably drawn from the record.”).

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III.

FIVE-STEP SEQUENTIAL EVALUATION PROCESS

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, but the burden shifts to the Commissioner at

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step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii).

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If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ

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considers whether the claimant’s impairment or combination of impairments meets or

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medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404.

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§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If

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not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s residual

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functional capacity and determines whether the claimant is still capable of performing

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past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the

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inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines

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whether the claimant can perform any other work based on the claimant’s residual

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functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

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claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ found that Plaintiff has not engaged in substantial gainful

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activity since May 31, 2012, the protective application date. At step two, the ALJ found

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that Plaintiff has the following severe impairments:

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reduction surgery and fusion (in 2003); degenerative disc disease; nerve damage; and leg

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pain. At step three, the ALJ determined that Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals an impairment listed in 20

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C.F.R. Part 404, Subpart P, Appendix 1.

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status post lumbar scoliosis

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At step four, the ALJ found that Plaintiff:

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has the residual functional capacity to perform light work as defined in 20
CFR 416.967(b) except: she is limited to occasional postural activities such
as climbing, balancing, stooping, kneeling, crouching and crawling; she is
precluded from climbing ladders, ropes, or scaffolds; she is to avoid
concentrated exposure to extreme cold; and, she is to avoid even moderate
exposure to hazards, such as machinery or working at heights.

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The ALJ further found that Plaintiff has no past relevant work. At step five, the ALJ

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concluded that, considering Plaintiff’s age, education, work experience, and residual

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functional capacity, there are jobs that exist in significant numbers in the national

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economy that Plaintiff can perform, such as bagger, cleaner, and ticket seller.

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IV.

ANALYSIS
A.

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The ALJ Provided Clear and Convincing Reasons for Discrediting
Plaintiff’s Symptom Testimony.

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If a claimant’s statements about pain or other symptoms are not substantiated by

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objective medical evidence, the ALJ must consider all of the evidence in the case record,

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including any statement by the claimant and other persons, concerning the claimant’s

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symptoms. SSR96-7p. Then the ALJ must make a finding on the credibility of the

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claimant’s statements about symptoms and their functional effects. Id.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

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whether the claimant presented objective medical evidence of an impairment that could

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

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and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the

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severity of the symptoms only by giving specific, clear, and convincing reasons for the

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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy

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requirement to meet: ‘The clear and convincing standard is the most demanding required

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in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)

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(quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

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To ensure meaningful review, the ALJ must specifically identify the testimony

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from a claimant the ALJ finds not to be credible and explain what evidence undermines

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the testimony. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir.

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2014). The ALJ must make findings “sufficiently specific to permit the court to conclude

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that the ALJ did not arbitrarily discredit claimant’s testimony.” Thomas v. Barnhart, 278

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F.3d 947, 958 (9th Cir. 2002); accord Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

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Cir. 2008).

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In making a credibility determination, an ALJ “may not reject a claimant’s

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

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corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

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1219, 1227 (9th Cir. 2009) (internal quotation marks and citation omitted). But “an ALJ

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may weigh inconsistencies between the claimant’s testimony and his or her conduct,

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daily activities, and work record, among other factors.” Id. Further, the claimant is not

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required to produce objective medical evidence of the symptom or its severity. Garrison,

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759 F.3d at 1014. The ALJ must consider all of the evidence presented, including the

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claimant’s daily activities; the location, duration, frequency, and intensity of the pain or

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other symptoms; factors that precipitate and aggravate the symptoms; effectiveness and

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side effects of any medication taken to alleviate pain or other symptoms; treatment other

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than medication; any measures other than treatment the claimant uses to relieve pain or

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other symptoms; and any other factors concerning the claimant’s functional limitations

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and restrictions due to pain or other symptoms. SSR 96-7p.

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First, the ALJ found that Plaintiff’s “medically determinable impairments could

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reasonably be expected to cause the alleged symptoms.”

Second, the ALJ found

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Plaintiff’s “statements regarding the intensity, persistence, and limiting effects of the

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symptoms not entirely credible to the extent they are inconsistent with the residual

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functional capacity assessment.”

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Plaintiff testified that she is unable to work full-time because she has too much

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pain and cannot stay in a single position for very long, like working at an office desk.
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She said her pain is located in her back and right leg and is constant. She also said that

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she gets shooting pains from her back down to her right knee, which causes her knee to

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give out.

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The ALJ gave the following reasons for finding Plaintiff’s subjective symptom

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testimony less than fully credible: (1) Plaintiff acknowledged being able to drive, do

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some household chores and grocery shopping, and work for three hours a day, two days a

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week. (2) The objective evidence showed only mild tenderness on palpitation of her back

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and full range of motion in all of her extremities. (3) Plaintiff’s treatment during the

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relevant period has been routine and primarily limited to medication management. The

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ALJ specifically identified the testimony that he found to lack credibility and explained

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what evidence undermined it. The ALJ gave specific, clear, and convincing reasons for

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finding Plaintiff’s testimony regarding the severity of her symptoms not fully credible.

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B.

The ALJ Did Not Err in Weighing Medical Source Opinion Evidence.
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Legal Standard

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Generally, more weight should be given to the opinion of a treating physician than

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to the opinions of physicians who do not treat the claimant, and the weight afforded a

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non-examining physician’s opinion depends on the extent to which he provides

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supporting explanations for his opinions. Garrison v. Colvin, 759 F.3d 995, 1012 (9th

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Cir. 2014).

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physician, it may be rejected only for “clear and convincing” reasons, and where it is

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contradicted, it may not be rejected without “specific and legitimate reasons” supported

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by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

Where a treating physician’s opinion is not contradicted by another

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In deciding weight to give any medical opinion, the ALJ considers not only

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whether the source has a treating or examining relationship with the claimant, but also

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whether the treatment or examination is related to the alleged disability, the length of the

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relationship, frequency of examination, supporting evidence provided by the source, and

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medical specialization of the source. 20 C.F.R. § 404.1527(c). Generally, more weight is

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given to the opinion of a specialist about medical issues related to his area of specialty
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than to the opinion of a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5). The

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ALJ may discount a physician’s opinion that is based only the claimant’s subjective

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complaints without objective evidence. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1195 (9th Cir. 2004). The opinion of any physician, including that of a treating

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physician, need not be accepted “if that opinion is brief, conclusory, and inadequately

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supported by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

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1228 (9th Cir. 2009).

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2.

Treating Pain Specialist Sarah Buenviaje-Smith, M.D.

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On July 10, 2012, Dr. Buenviaje-Smith began treating Plaintiff for management of

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chronic low back and leg pain. She saw Plaintiff on August 7 and 21, 2012. On

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September 11, 2012, Dr. Buenviaje-Smith completed a Residual Functional Capacity

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Questionnaire and opined that Plaintiff can sit for 30 minutes at one time and stand/walk

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for 30 minutes at one time. She opined that in an 8-hour workday Plaintiff can sit for a

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total of one hour and stand/walk for a total of two hours. She further opined that Plaintiff

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would need to take 5-10 minute breaks every hour. Dr. Buenviaje-Smith said Plaintiff

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can frequently lift less than 10 pounds and occasionally lift up to 20 pounds. She

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estimated that Plaintiff would be absent from work 3-4 times a month as a result of her

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impairments or treatments. She also opined that Plaintiff is not physically capable of

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working an 8-hour day, 5 days a week, on a sustained basis.

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The ALJ stated that he “considered, but ultimately gave very little weight to, the

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Residual Functional Capacity Questionnaire completed by Dr. Buenviaje-Smith” because

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(1) Dr. Buenviaje-Smith did not list the specific objective medical findings upon which

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she based her opinion, (2) the opinion was inconsistent with Plaintiff’s admitted activities

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of daily living, (3) Dr. Buenviaje-Smith’s treating relationship was of short duration, (4)

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Dr. Buenviaje-Smith’s treatment consisted entirely of medication management, and (5)

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Dr. Buenviaje-Smith’s opinion appears to have relied heavily on Plaintiff’s subjective

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complaints without objective evidence.

These are clear and convincing reasons,

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supported by substantial evidence in the record, for giving Dr. Buenviaje-Smith’s opinion

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little weight.
3.

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State Agency Medical Consultant D. Rose, M.D.

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Dr. Rose reviewed Plaintiff’s records at the reconsideration level and concluded

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she is capable of performing a limited range of light work. The ALJ gave great weight to

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Dr. Rose’s opinion because State agency consultants are highly qualified physicians who

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are experts in Social Security disability programs, the governing regulations, and

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evaluation of medical issues in disability claims. The ALJ gave greater weight to Dr.

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Rose’s opinion on reconsideration than to the opinion formed during the initial review,

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which found fewer limitations, because Dr. Rose was able to review more recent medical

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evidence.

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Plaintiff contends that the ALJ erred by giving great weight to Dr. Rose’s opinion

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because the opinion mentioned the symptoms in Plaintiff’s right leg only once and these

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symptoms could affect her ability to walk or stand for six hours as opined by Dr. Rose

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and concluded by the ALJ. Dr. Rose commented that on August 9, 2012, the treating

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orthopedist noted Plaintiff complained of low back pain with radiation down her right leg

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and right leg weakness. Dr. Rose did not note that on July 10, 2012, Dr. Buenviaje-Smith

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found mild right lower extremity weakness and diminished right lower extremity deep

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tendon reflexes. Dr. Rose also did not note that on September 20, 2012, November 27,

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2012, and December 13, 2012, Dr. Buenviaje-Smith found right leg pain within normal

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limits and no abnormal neurological findings. During examinations on October 30, 2012,

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and December 27, 2012, Dr. Buenviaje-Smith did not find right leg pain.

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omissions do not show that Dr. Rose’s opinion was not consistent with the overall

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medical record.

These

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Plaintiff also contends that Dr. Rose did not provide sufficient explanation for her

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opinion to find that it was supported by substantial evidence. Dr. Rose cited to a lumbar

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CT from July 27, 2012, but did not state that the CT report said, “There is some atrophy

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of the lower back paraspinous musculature.” Although Dr. Rose did not report every
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detail described in the CT report’s “Findings” section, Dr. Rose included everything

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reported in the CT report’s “Impressions” section. Plaintiff contends that “some atrophy”

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indicates a limited activity level, which is consistent with Plaintiff’s testimony and shows

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Dr. Rose apparently failed to consider the evidence of muscle atrophy. Mild atrophy may

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suggest that Plaintiff has not been actively using certain muscles, but Dr. Rose’s failure to

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comment on mild atrophy does not show that Dr. Rose failed to consider it. Mild atrophy

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of lower back muscles alone does not indicate Plaintiff’s functionality.

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accurately summarized the CT results as showing severe scoliosis in Plaintiff’s lower

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back, postoperative changes, and no significant bony spinal canal, neural foraminal

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Dr. Rose

stenosis, or acute fracture within the lumbar spine.
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Records Prior to May 31, 2012

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In the context of Plaintiff’s credibility regarding the severity of her symptoms and

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limitations, the ALJ noted that some of the records are for treatment occurring prior to

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May 31, 2012, and therefore are of limited usefulness. The ALJ stated, “However, in

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order to view the record in the light most favorable to the claimant, the undersigned has

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read and considered the entire medical record prior to making a decision on this case.”

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Contrary to Plaintiff’s assertion, the ALJ did not “essentially ignore” these treatment

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records.

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surgeries and nerve damage, but found treatment records before the relevant period to be

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of limited usefulness in assessing the severity of her current symptoms and limitations.

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C.

Rather, the ALJ expressly found Plaintiff had severe impairments due to

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The ALJ Did Not Err by Incomplete Questioning of the Vocational
Expert.

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It was not necessary for the ALJ to present to the vocational expert a hypothetical

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regarding an individual with limitations not supported by the medical evidence.

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IT IS THEREFORE ORDERED that the final decision of the Commissioner of

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Social Security is affirmed.

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terminate this case.

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The Clerk shall enter judgment accordingly and shall

Dated this 31st day of March, 2016.

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Neil V. Wake
United States District Judge

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