Courtney v. Colvin

Filing 25

ORDER: The Commissioner's final decision in this matter is AFFIRMED. The Clerk of the Court is instructed to enter judgment accordingly and close this case. Signed by Magistrate Judge Leslie A Bowman on 2/7/2017. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Acting Commissioner)
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of Social Security,
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Defendant.
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Carol G. Courtney,
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No. CV 16-389-TUC-LAB
ORDER

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The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review of the final
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decision of the Commissioner for Social Security denying her application for disability
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insurance benefits. (Doc. 1)
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The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having
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received the written consent of both parties. (Doc. 15)
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The ALJ’s decision is supported by substantial evidence. His finding that Courtney’s
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mental impairment is non-severe is supported by substantial evidence and free from legal error.
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PROCEDURAL HISTORY
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On June 16, 2014, Courtney filed for disability insurance benefits pursuant to Title II of
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the Social Security Act. (Tr. 83) She alleged disability beginning on February 6, 2014, due
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to coronary artery disease, triple bypass surgery, three heart stents, anxiety with panic attacks,
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depression, diverticulitis, thyroid disease, recurring basal skin cancer, tongue surgery, and
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bilateral carpal tunnel syndrome. (Tr. 28, 191) Her claim was denied initially and upon

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reconsideration. (Tr. 113-116; 119-121) Courtney requested review and appeared with an

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advocate at a hearing before Administrative Law Judge (ALJ) Peter J. Baum on December 2,

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2015. (Tr. 56) In his decision, dated December 28, 2015, the ALJ found Courtney was not

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disabled because she could return to her past work as an insurance customer service

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representative, insurance customer service supervisor, team supervisor, airline customer service

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representative, or union representative. (Tr. 28-39)

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Courtney submitted additional exhibits, but the Appeals Council denied review making

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the decision of the ALJ the final decision of the Commissioner. (Tr. 1-5) Courtney

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subsequently filed this action for review pursuant to 42 U.S.C. § 405(g). (Doc. 1) She argues

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the ALJ erred by finding her mental impairments non-severe. (Doc. 21)

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Claimant’s Work History and Medical History

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From August of 1996 to March of 2007, Courtney worked in the airline industry, first

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in customer service and afterwards as a union representative, team supervisor, and project

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supervisor. (Tr. 202) From May of 2007 to February of 2014, she worked in the insurance

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industry, first as a customer service representative, then as a customer service supervisor, and

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again as a customer service representative. Id.

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In 2011, Courtney had triple bypass heart surgery, which “she had difficulty recovering

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from.” (Tr. 388) Her mother died the previous year, and in November of 2013, her sister died,

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“whom she states was her primary source of support.” Id.

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These events caused a worsening of her mental health, and in February of 2014, she

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experienced an “emotional breakdown.” (Tr. 60) On February 6, 2014, she stopped work due

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to “panic attacks” and “anxiety.” (Tr. 61); (Tr. 608)

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In April of 2014, Courtney began psychiatric treatment with Tina LeMarque-Denisen,

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MA, MSW, LGSW. (Doc. 608) In May of 2014, Courtney attempted suicide by taking an

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overdose of lorazepam. (Tr. 388) She “felt increasingly alone and hopeless, [experiencing]

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general anhedonia, feeling sad, tearful[;] she stopped going to work feeling like it was just too
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much.” (Tr. 388) She had not been sleeping well, and she had been “overusing, or possibly

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abusing some of her Vicodin after her bypass surgery . . . .” (Tr. 388) Courtney was admitted

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to the Sonora Behavioral Health Hospital and was discharged after six days. (Doc. 388)

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Karen Floyd, D.O., offered the following diagnosis on discharge: “Axis I: Major

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depressive disorder, severe, without psychosis, Cocaine dependence in sustained remission,

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Opiate abuse; Axis II: Deferred; Axis III: Gastroesophageal reflux disease; Hyperlipidemia;

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CABG [Coronary artery bypass grafting] x3; Axis IV: Severe; Axis V: GAF (admission) =

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25, GAF (discharge) = 50.” (Doc. 392)

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On June 16, 2014, Courtney filed for disability insurance benefits alleging disability
beginning on February 6, 2014. (Tr. 28, 83, 191)

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In September of 2014, Raymond Novak, M.D., reviewed the medical record for the

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disability determination service and offered an opinion of Courtney’s mental limitations. He

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diagnosed her with affective disorder and anxiety-related disorder. (Tr. 89-90) He evaluated

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her “B” listing criteria, which gauge the severity of her mental impairment. See 20 C.F.R. §

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404.1520a(c)(3) (2011). He found Courtney has “mild” restrictions of her daily activities;

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“mild” difficulties in maintaining social functioning; “mild” difficulties in maintaining

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concentration, persistence or pace; and no evidence of decompensation. (Tr. 89) Novak further

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opined that the medical evidence did not establish the presence of the “C” criteria, which are

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an alternative gauge of the extent of her mental impairment. (Tr. 89) According to Novak,

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Courtney experienced a “crescendo” of psychosocial stressors, which resulted in her overdose.

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(Tr. 89-90) She has had an “uncomplicated [treatment] course since w/o any recurrence of

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[symptoms] and [is] receptive to ongoing [psychiatric] therapy and [shows] compliance to

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[psychiatric] med[ication] regimen.” (Tr. 90) He concluded Courtney’s mental impairment was

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non-severe because it would not last 12 months. (Tr. 90)

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In March of 2015, Eugene Campbell, Ph.D., reevaluated Courtney’s claim and affirmed

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Novak’s opinion. (Tr. 103-105) According to Campbell, Courtney appeared “very good

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overall” in her recent mental health exam. (Tr. 104) She was responding to her psychiatric

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medication.

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‘spectacular.’” Id.; (Tr. 515)

Id.

She “[h]ad also traveled out to Mexico and [] thought the trip was

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In September of 2014, J. Wright, M.D, reviewed the medical record for the disability

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determination service and offered an opinion of Courtney’s physical limitations. Wright opined

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that Courtney could lift 20 pounds occasionally and 10 pounds frequently. (Tr. 91) She could

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sit, stand, and/or walk for 6 hours in an 8-hour day. (Tr. 91) She should never climb ladders,

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ropes, or scaffolds. (Tr. 91) She should only occasionally crawl or climb ramps or stairs. (Tr.

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91) She should avoid concentrated exposures to extreme heat, extreme cold, humidity, fumes,

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and hazards. (Tr. 92) Wright’s opinion suggests that Courtney can perform light work with

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some exceptions. See 20 C.F.R. § 404.1567(b).
In March of 2015, Christopher Maloney, M.D., reevaluated the medical record and also
found that Courtney can perform light work with some exceptions. (Tr. 106-08)

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In May of 2015, Tina LeMarque-Denison, M.A., M.S.W., L.C.S.W., completed a

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physical capacities evaluation of Courtney’s ability to perform work related tasks. (Tr. 604)

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She opined Courtney could sit for one or two hours per day and stand or walk for one hour per

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day. Id. She could not use her hands for fine manipulations, repetitive motion tasks, or simple

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grasping. Id. Courtney could lift 20 pounds occasionally and 5 pounds frequently. Id.

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LeMarque-Denison also completed a Mental Residual Functional Capacity Assessment.

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(Tr. 605) She opined that Courtney was markedly limited in her ability to “remember locations

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and work-like procedures,” “understand and remember detailed instructions,” “maintain

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attention and concentration,” “complete a normal work day . . . without interruptions from

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psychologically based symptoms,” and “accept instructions and respond appropriately to

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criticism from supervisors.” (Tr. 606)

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On November 30, 2015, Courtney’s treating physician, Dennis C. Westin, M.D.,

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submitted an opinion that Courtney was “not healthy enough to be employed in any work, part-

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time or full time.” (Doc. 776) According to Westin, Courtney “has continued to struggle with

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depression, suicide ideation, and to be a suicide risk and have the need for frequent psychiatric

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follow up and psychotherapy.” Id. “Her ability to think logically seems to have been impaired

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and needs further evaluation.” Id.

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Courtney appeared with a lay representative before the ALJ on December 2, 2015. (Tr.

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38) She testified that she was born in June of 1951 and attended college for two years. (Tr. 59)

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She stopped work in February of 2014 because she had “an emotional breakdown.” (Tr.

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60) She has not worked since. (Tr. 61) Courtney testified that she still has panic attacks,

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sometimes every day. (Tr. 64) She takes nitroglycerin for chest pain. (Tr. 65) Since she

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stopped working, Courtney has been to the emergency room “six or eight times” for heart or

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asthma complaints. (Tr. 65) Recently she had carpal tunnel surgery on her left hand. (Tr. 65)

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Tina LeMarque-Denison testified that she is a licenced clinical social worker who treats

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Courtney once a week. She explained that Courtney vacillates between moderate and severe

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depression. (Tr. 71) She is emotionally fragile and “collapses in fear” when confronted with

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bills or legal documents. (Tr. 71) She gets lost driving in familiar places. (Tr. 72) She goes

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to the market and then forgets why she is there. (Tr. 72) LeMarque-Denison testified that she

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“can’t see her holding down the simplest job.” (Tr. 74)

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Malcolm Brodzinsky testified as a vocational expert. (Tr. 76) He testified that

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Courtney’s past work is generally performed at the sedentary exertion level. (Tr. 78-80)

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Courtney reported that she performed her work at the medium level, but at the hearing stated

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that she performed her work at the light level. Id.

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CLAIM EVALUATION

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Social Security Administration (SSA) regulations require that disability claims be

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evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520; Baxter v. Sullivan,

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923 F.2d 1391, 1395 (9th Cir. 1991). The first step requires a determination of whether the

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claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the

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claimant is not disabled, and benefits are denied. Id.

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If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step

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two, which requires a determination of whether the claimant has a “severe medically
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determinable physical or mental impairment . . . that meets the durational requirement.” 20

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C.F.R. § 404.1520(a)(4) (2012). In making a determination at step two, the ALJ uses medical

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evidence to consider whether the claimant’s impairment “significantly limits” his or her

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“physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the ALJ

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concludes the impairment is not severe, the claim is denied. Id.

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Upon a finding of severity, the ALJ proceeds to step three, which requires a

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determination of whether the impairment meets or equals one of several listed impairments that

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the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20

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C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant’s impairment

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meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and

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no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the

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claimant’s impairment does not meet or equal a listed impairment, evaluation proceeds to the

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next step.

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The fourth step requires the ALJ to consider whether the claimant has sufficient residual

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functional capacity (RFC)1 to perform past work. 20 C.F.R. § 404.1520(a)(4). If yes, then the

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claim is denied. Id. If the claimant cannot perform any past work, then the ALJ must move

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to the fifth step, which requires consideration of the claimant’s RFC to perform other substantial

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gainful work in the national economy in view of the claimant’s age, education, and work

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experience. 20 C.F.R. § 404.1520(a)(4).

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The ALJ’s Findings

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At step one of the disability analysis, the ALJ found Courtney “has not engaged in

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substantial gainful activity since February 6, 2014, the alleged onset date.” (Tr. 30) At step

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two, he found Courtney “has the following severe impairment: status post triple bypass surgery

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in August 2009.” (Tr. 30)

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Residual functional capacity is defined as that which an individual can still do despite
his or her limitations. 20 C.F.R. § 404.1545.
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At step three, the ALJ found Courtney “does not have an impairment or combination of

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impairments that meets or medically equals the severity of one of the listed impairments in 20

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C.F.R., Part 404, Subpart P, Appendix 1.” (Tr. 33)

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The ALJ then analyzed Courtney’s residual functional capacity (RFC). He found “the

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claimant had the residual functional capacity to perform light work . . . except that [she] can

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never climb ladders, ropes, or scaffolds, but can occasionally climb ramps and stairs. [She] can

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frequently balance, stoop, kneel, and crouch, but can only occasionally crawl. [She] must avoid

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concentrated exposure to extreme heat and cold, humidity, fumes, odors, dusts, gases, poor

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ventilation, etc., and hazards such as moving machinery and heights.” (Tr. 34)

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At step four, the ALJ found Courtney was “capable of performing past relevant work as

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an insurance customer service representative, Dictionary of Occupational Titles (DOT) Code

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249.262-010, sedentary, but performed at light to medium, skilled, SVP 6; insurance customer

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service supervisor, DOT Code 241.137-014, sedentary, but performed at light to medium,

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skilled, SVP 6; project supervisor, DOT Code 189.117-030, sedentary, but performed at light

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to medium, skilled, SVP 8; team supervisor, DOT Code 238.137-022, light, performed at light

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to medium, skilled, SVP 6; airline customer service representative, DOT Code 238.367-018,

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sedentary, but performed at light to medium, semi-skilled, SVP 4; and union representative,

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DOT Code 187.167-018, sedentary, but performed at heavy, skilled, SVP 8. This as generally

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performed work does not require the performance of work-related activities precluded by the

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claimant’s residual functional capacity.” (Tr. 38)

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Accordingly, the ALJ found that Courtney was not disabled from February 6, 2014, the
alleged onset date, through the date of the decision. (Tr. 38)

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STANDARD OF REVIEW

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An individual is entitled to disability benefits if he or she demonstrates, through

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medically acceptable clinical or laboratory standards, an inability to engage in substantial

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gainful activity due to a physical or mental impairment that can be expected to last for a

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continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “[A] claimant will be
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found disabled only if the impairment is so severe that, considering age, education, and work

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experience, that person cannot engage in any other kind of substantial gainful work which exists

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in the national economy.” Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993).

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The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The

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decision to deny benefits “should be upheld unless it contains legal error or is not supported by

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substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence

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is defined as “such relevant evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider

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the entire record as a whole and may not affirm simply by isolating a specific quantum of

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supporting evidence.” Id.

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In evaluating evidence to determine whether a claimant is disabled, the opinion of a

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treating physician is entitled to great weight. Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir.

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1993). The Commissioner may reject a treating physician’s uncontradicted opinion only if she

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sets forth clear and convincing reasons for doing so. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1995). If the treating physician’s opinion is contradicted by another doctor, the Commissioner

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may reject that opinion only if she provides specific and legitimate reasons supported by

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substantial evidence in the record. Lester, 81 F.3d at 830. No distinction is drawn “between

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a medical opinion as to a physical condition and a medical opinion on the ultimate issue of

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disability.” Rodriguez v. Bowen, 876 F.2d 759, 761 n.7 (9th Cir. 1989).

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DISCUSSION

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Courtney argues that the ALJ erred when he found her mental impairments were non-

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severe. Specifically, she argues the ALJ should have given more credence to the opinions

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offered by the clinical social worker, LeMarque-Denison, LCSW, and the treating physician,

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Dennis Westin, M.D. (Doc. 21)

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“At step two of the five-step sequential inquiry, the Commissioner determines whether

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the claimant has a medically severe impairment or combination of impairments.” Smolen v.

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Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). A severe impairment is one that “significantly

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limit[s] [the claimant’s] physical or mental ability to do basic work activities” and “must have

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lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. §

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404.1521(a); 20 C.F.R. § 404.1509. “Basic work activities” are “the abilities and aptitudes

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necessary to do most jobs” such as “understanding, carrying out, and remembering simple

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instructions, use of judgment, responding appropriately to supervision, co-workers and usual

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work situations; and dealing with changes in a routine work setting.” 20 C.F.R. § 404.1521(b)

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(punctuation and capitalization modified) The Commissioner employs a special technique to

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determine the severity of a mental impairment. 20 C.F.R. § 404.1520a.

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At step four, the ALJ must consider all of the claimant’s impairments together, the severe

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and the non-severe, and determine the claimant’s residual functional capacity. 20 C.F.R. §

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404.1545(e).

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In this case, the ALJ found at step two of the disability analysis that Courtney’s mental

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impairment was non-severe adopting the opinion of the two non-examining consulting

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physicians, Raymond Novak, M.D., and Eugene Campbell, Ph.D. (Tr. 31); (Tr. 89-90); (Tr.

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103-5) The two physicians acknowledged Courtney’s “breakdown,” but they believed it was

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caused by a “crescendo” of stressors, and once she began mental health treatment in earnest, her

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condition improved to the point where she suffered only mild functional limitations. Id. The

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two physicians concluded her mental impairment would not last 12 months and therefore it was

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non-severe. Id.

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The ALJ accepted and adopted the recommendation of the consulting physicians because

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he believed it was consistent with the medical record as a whole. (Tr. 32-33) He noted that

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between August of 2013 and November of 2014, Courtney presented to the Arizona Urgent

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Care twenty-seven times, but complained of psychological symptoms on only two occasions.

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(Tr. 32) On June 5, 2014, she reported depression and anxiety and on November 17, 2014 she

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reported anxiety. (Tr. 32); (Tr. 486); (Tr. 578) On the other occasions, she either explicitly
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denied anxiety and depression or “her judgment, mood, insight, affect, mental status, and

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behavior” were found to be “normal” on examination. (Tr. 32)

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The ALJ further noted that the medical records from Southern Arizona Family Care Plus,

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from December 15, 2014 through August 29, 2015, are “replete” with notations that Courtney

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is doing well. (Tr. 33) In some of those records, Courtney explicitly denies depression or

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anxiety. Id. In others, Courtney’s judgment, mood, insight, and behavior were found to be

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normal on examination. Id. In December of 2014, Courtney reported “getting out with friends

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and with grandchildren.” (Tr. 33, 711) In January of 2015, Courtney reported she was seeing

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a new psychiatric physician, she was getting new medication, and she was “doing much better.”

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(Tr. 33, 709)

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The ALJ also found that Courtney’s daily activities are inconsistent with a finding of

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disability. (Tr. 38); (Tr. 223-226) Courtney reported that “[s]he is able to bathe, dress, groom,

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and care for her personal hygiene without assistance.” Id. “She can prepare simple meals and

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can feed herself.” Id. “She takes care of the household cats.” Id. “She does household chores,

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including laundry.” Id. “She is able to drive, and can go out unaccompanied.” Id. “She shops

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in stores for necessities.” Id. “She is able to pay bills, count change, handle a savings account,

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and use a checkbook/money orders.” (Tr. 31); (Tr. 226) “She watches television, reads daily,

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and puts together puzzles.” Id.

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Household activities are not generally performed with the same persistence and pace

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required in the workplace, but they may be considered by the ALJ in evaluating a claimant’s

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level of impairment. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d, 595, 600 (9th

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Cir. 1999); see, e.g., Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (Where the

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claimant “indicated that she was able to take care of her personal needs, prepare easy meals, do

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light housework, and shop for some groceries,” the court found that “[a]n ability to perform

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such activities may be seen as inconsistent with the presence of a condition which would

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preclude all work activity.”).

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The opinion of the consulting physicians is supported by the medical record. It therefore

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constitutes substantial evidence in support of the ALJ’s decision denying benefits. See Thomas

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v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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Courtney argues that the medical record contains evidence showing that her mental

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impairment is more profound than the ALJ believes. But while that might be true, it is

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somewhat beside the point. The ALJ’s opinion need not be supported by overwhelming

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evidence or even a preponderance of the evidence. It is sufficient if it is supported by

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substantial evidence. And here it is. See also Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th

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Cir. 2008) (“The court will uphold the ALJ’s conclusion when the evidence is susceptible to

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more than one rational interpretation.”).

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Courtney argues that the ALJ improperly discounted the opinion of her treating

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physician, Dennis C. Westin, M.D. (Doc. 776) On November 30, 2015, Westin submitted an

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opinion that Courtney was “not healthy enough to be employed in any work, part-time or full

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time.” Id. According to Westin, Courtney “has continued to struggle with depression, suicide

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ideation, and to be a suicide risk and have the need for frequent psychiatric follow up and

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psychotherapy.” Id. “Her ability to think logically seems to have been impaired and needs

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further evaluation.” Id.

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

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opinion of a non-examining consultant. The ALJ may, however, discount “treating physicians’

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opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective

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medical findings.” Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)

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In this case, the ALJ discounted Westin’s opinion because “there are no clinical records

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to support [his] opinion.” (Tr. 32) This is a specific and legitimate reason for discounting

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Westin’s opinion and adopting the opinion of the non-examining consultants.

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Courtney concedes that Westin’s opinion is not supported by any treatment notes. She
argues, however, that the ALJ erred by not supplementing the medical record.

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“The ALJ in a social security case has an independent duty to fully and fairly develop

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the record and to assure that the claimant’s interests are considered.” Tonapetyan v. Halter,
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242 F.3d 1144, 1150 (9th Cir. 2001) (punctuation modified). “This duty extends to the

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represented as well as to the unrepresented claimant.” Id. “The ALJ’s duty to develop the

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record fully is also heightened where the claimant may be mentally ill and thus unable to protect

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her own interests.” Id. The duty to supplement the medical record is triggered by “ambiguous

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evidence, the ALJ’s own finding that the record is inadequate or the ALJ’s reliance on an

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expert’s conclusion that the evidence is ambiguous.” Webb v. Barnhart, 433 F.3d 683, 687 (9th

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Cir. 2005); see also 20 C.F.R. § 404.1520b.

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In this case, the ALJ did not find that the evidence was ambiguous or that the record was
inadequate. Accordingly, the ALJ did not violate his duty to develop the record.

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Courtney further argues the ALJ improperly discounted the opinion of the clinical social

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worker, Tina LeMarque-Denison, who opined that Courtney was markedly limited in her ability

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to “remember locations and work-like procedures,” “understand and remember detailed

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instructions,” “maintain attention and concentration,” “complete a normal work day . . . without

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interruptions from psychologically based symptoms,” and “accept instructions and respond

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appropriately to criticism from supervisors.” (Tr. 606)

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A clinical social worker is not an “acceptable medical course” in the eyes of the SSA.

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Her opinion is not given the same level deference as that accorded a physician or psychologist’s.

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(Tr. 32); see 20 C.F.R. 404.1513 (2013); see also SSR 06-03p “The ALJ may discount

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testimony from these ‘other sources’ if the ALJ gives reasons germane to each witness for doing

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so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (punctuation modified).

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Here, the ALJ noted that LeMarque-Denison is not an “acceptable medical source.” He

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further explained that he gave her opinion “reduced weight” because it “is not consistent with

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the medical evidence of record.” (Tr. 32) The ALJ provided germane reasons for discounting

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LeMarque-Denison’s opinion.

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The ALJ’s decision is supported by substantial evidence. His decision to discount the

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opinion of the treating physician, Westin, and the clinical social worker, LeMarque-Denison,

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was not legal error. Accordingly,

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IT IS ORDERED that the Commissioner’s final decision in this matter is AFFIRMED.
The Clerk of the Court is instructed to enter judgment accordingly and close this case.

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DATED this 7th day of February, 2017.

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