Norma Miranda v. Carolyn W. Colvin

Filing 28

MEMORANDUM AND OPINION by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. (ig)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 NORMA MIRANDA, 11 Case No. 5:16-cv-01962-GJS Plaintiff 12 v. 13 14 NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, 15 MEMORANDUM OPINION AND ORDER Defendant. 16 17 I. 18 PROCEDURAL HISTORY Plaintiff Norma Miranda (“Plaintiff”) filed a complaint seeking review of the 19 decision of the Commissioner of Social Security denying her application for 20 Supplemental Security Income (“SSI”). The parties filed consents to proceed before 21 the undersigned United States Magistrate Judge [Dkts. 11 and 12] and briefs 22 addressing disputed issues in the case [Dkt. 19 (“Pl. Brief”) and Dkt. 26 (“Def. 23 Brief”)]. The Court has taken the parties’ briefing under submission without oral 24 argument. For the reasons discussed below, the Court finds that this matter should 25 be affirmed. 26 27 28 1 Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration, is substituted as the defendant in this action pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 1 2 II. ADMINISTRATIVE DECISION UNDER REVIEW In July 2014, Plaintiff filed an application for SSI, alleging disability as of 3 December 9, 2013. [Dkt. 15, Administrative Record (“AR”) 23, 80-81.] Plaintiff’s 4 application was denied at the initial level of review and on reconsideration. [AR 23, 5 50-53, 55-60.] On November 19, 2015, a hearing was held before Administrative 6 Law Judge Dana E. McDonald (“the ALJ”). [AR 596-625.] On December 10, 7 2015, the ALJ issued an unfavorable decision. [AR 23-29.] 8 The ALJ applied the five-step sequential evaluation process to find Plaintiff 9 not disabled. See 20 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ found that 10 Plaintiff had not engaged in substantial gainful activity since the application date. 11 [AR 25.] At step two, the ALJ found that Plaintiff suffered from the severe 12 impairments of thyroid cancer in remission and status post gastric bypass surgery 13 (December 2013). [Id.] At step three, the ALJ determined that Plaintiff did not 14 have an impairment or combination of impairments that meets or medically equals 15 the severity of one of the impairments listed in Appendix I of the Regulations, (“the 16 Listings”). [Id.]; see 20 C.F.R. Pt. 404, Subpt. P, App. 1. Next, the ALJ found that 17 Plaintiff had the residual functional capacity (“RFC”) to perform the full range of 18 medium work (20 C.F.R. § 416.967(c)). [AR 25.] At step four, the ALJ found that 19 Plaintiff did not have any past relevant work. [AR 28.] At step five, the ALJ found 20 Plaintiff not disabled under Rule 203.25 of the Medical-Vocational Guidelines 21 (“Grids”) 20 C.F.R. Part 404, Subpt. P, App. 2, based on Plaintiff’s RFC, age (30 22 years at time of application), education, and work experience. [AR 28-29.] 23 24 25 26 The Appeals Council denied review of the ALJ’s decision on July 14, 2016. [AR 5-8.] This action followed. III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 27 determine if: (1) the Commissioner’s findings are supported by substantial 28 evidence; and (2) the Commissioner used correct legal standards. Carmickle v. 2 1 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 2 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant 3 evidence as a reasonable mind might accept as adequate to support a conclusion.” 4 Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations 5 omitted); see also Hoopai, 499 F.3d at 1074. IV. 6 DISCUSSION Plaintiff contends that the ALJ erred by: (1) failing to adequately consider the 7 8 severity of Plaintiff’s fibromyalgia; (2) rejecting the opinion of an examining 9 physician; and (3) rejecting Plaintiff’s pain and symptom testimony. [Pl.’s Br. at 4- 10 12.] 11 A. Plaintiff’s Fibromyalgia 12 Plaintiff claims the ALJ failed to properly evaluate her fibromyalgia as a 13 14 severe impairment. [Pl. Brief at 5-7.] At step two of the sequential analysis, the claimant bears the burden to show 15 the existence of medically determinable impairments that have more than a minimal 16 effect on the ability to perform work-related activities. 20 C.F.R. § 17 416.920(a)(4)(ii); see also Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). 18 An impairment or combination of impairments may be found “‘not severe’ only if 19 the evidence establishes a slight abnormality that has ‘no more than a minimal effect 20 on an individual’s ability to work.’” Smolen, 80 F.3d at 1290 (quoting Social 21 Security Ruling (“SSR”) 85-28); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 22 1988). 23 Fibromyalgia “is a complex medical condition characterized primarily by 24 widespread pain in the joints, muscles, tendons, or nearby soft tissues that has 25 persisted for at least 3 months.” SSR 12-2p, 2013 WL 3104869 at *2. As there are 26 no laboratory tests to confirm a diagnosis of fibromyalgia, “[t]he condition is 27 diagnosed ‘entirely on the basis of the patients’ reports of pain and other 28 symptoms.’” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (quoting 3 1 2 Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). SSR 12-2p directs how claims of fibromyalgia should be evaluated. See 3 Revels, 874 F.3d at 662 (explaining that in evaluating a claim of fibromyalgia, “the 4 medical evidence must be construed in light of fibromyalgia’s unique symptoms and 5 diagnostic methods, as described in SSR 12-2P and Benecke”). To establish that 6 fibromyalgia is a medically determinable impairment, the claimant must show that 7 an acceptable medical source (licensed physician): (1) diagnosed fibromyalgia and 8 (2) provided evidence to satisfy the diagnostic criteria set forth in either the 1990 9 American College of Rheumatology Criteria for the Classification of Fibromyalgia 10 (“1990 Criteria”) or the 2010 American College of Rheumatology Preliminary 11 Diagnostic Criteria (“2010 Criteria”). SSR 12-2p, 2013 WL 3104869 at *2-3 12 (noting that a physician’s diagnosis of fibromyalgia alone is not sufficient; the 13 “evidence must document that the physician reviewed the claimant’s medical history 14 and conducted a physical exam”). 15 Under the 1990 Criteria, the medical evidence must show: 1) “a history of 16 widespread pain . . . that has persisted . . . for at least 3 months;” 2) at least 11 17 positive tender points, found bilaterally and above and below the waist; and 3) 18 evidence that other disorders which could cause the symptoms were excluded. Id. at 19 *3 (footnotes omitted). 20 Under the 2010 Criteria, the medical evidence must show: 1) a history of 21 widespread pain; 2) repeated manifestations of six or more fibromyalgia symptoms, 22 signs, or co-occurring conditions, “especially manifestations of fatigue, cognitive or 23 memory problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or 24 irritable bowel syndrome;” and 3) evidence that other disorders which could cause 25 the symptoms were excluded. Id. (footnotes omitted). 26 In the decision, the ALJ noted that Plaintiff alleged fibromyalgia as part of 27 her disability claim, but concluded that fibromyalgia was not a severe, medically 28 determinable impairment. [AR 25-26.] Plaintiff argues in her brief that she was 4 1 diagnosed with fibromyalgia and that the medical evidence satisfies the diagnostic 2 criteria of SSR 12-2p. [Pl. Brief at 6-7; AR 224-25, 228-29.] Plaintiff’s argument, 3 however, is not supported by the record. First, Plaintiff does not cite to a diagnosis of fibromyalgia from a physician or 4 5 acceptable medical source. SSR 12-2p, 2013 WL 3104869 at *2. Instead, Plaintiff 6 refers to the report of an examining physician, Dr. Khuram Sial, which references 7 Plaintiff’s complaint of fibromyalgia and indicates that Plaintiff was assessed with a 8 widespread pain index (“WPI”) score of 18 and a symptom severity scale (“SS”) 9 score of 6. [Pl. Brief at 6.] But Dr. Sial did not diagnose fibromyalgia. Rather, Dr. 10 Sial diagnosed Plaintiff with myofascial pain syndrome, cervicalgia, and lumbago. 11 [AR 223, 227, 232.] There is also no indication in the record that any other 12 physician diagnosed Plaintiff with fibromyalgia.2 That fibromyalgia was mentioned 13 in the medical records or reported by Plaintiff does not constitute a diagnosis from a 14 medically acceptable source, as required by SSR 12-2p. See, e.g., Jordon v. 15 Berryhill, No. 2:16-CV-00322, 2017 WL 6816694, at *9 (E.D. Tenn. Nov. 30, 16 2017) (“Fibromyalgia simply appearing on records without more or Plaintiff 17 reporting she has the condition does not constitute a diagnosis as required by 18 Section I of SSR 12-2p.”). 19 Second, Plaintiff has not provided evidence from an acceptable medical 20 source to satisfy the 1990 Criteria or the 2010 Criteria. While Dr. Sial’s report 21 indicates that the widespread pain requirement of both the 1990 Criteria and the 22 2010 Criteria is satisfied, there is insufficient medical evidence to satisfy all of the 23 remaining criteria. The record contains no indication that a physician conducted a 24 physical examination of tender points or that a physician ruled out other disorders as 25 26 27 28 2 A medical record from November 2014 shows that Plaintiff reported fibromyalgia during an examination, but the physician diagnosed Plaintiff with diabetes (no complication Type I or II), generalized weakness, osteoporosis, and unspecified osteoarthrosis. [AR 186.] 5 1 causing Plaintiff’s symptoms, as required by the 1990 Criteria. SSR 12-2p, 2013 2 WL 3104869 at *3. As for the 2010 Criteria, while Dr. Sial’s reports indicates that 3 Plaintiff manifests some fibromyalgia symptoms, signs or co-occurring conditions 4 (i.e., fatigue, waking unrefreshed, and various somatic symptoms), there is no 5 indication in the record that disorders that could cause these manifestations were 6 excluded. [AR 229]; see SSR 12-2p, 2013 WL 3104869 at *3. As noted, Dr. Sial 7 diagnosed Plaintiff with myofascial pain syndrome, cervicalgia, and lumbago, and 8 not fibromyalgia. [AR 223, 227, 232.] 9 Accordingly, the ALJ’s determination that Plaintiff does not have a medically 10 determinable, severe impairment of fibromyalgia is supported by substantial 11 evidence. 12 B. Examining Physician 13 Plaintiff contends the ALJ erroneously rejected the opinion of the examining 14 internist, Dr. Bahaa Girgis. [Pl. Brief at 7-9.] Plaintiff argues that the ALJ 15 improperly discounted Dr. Girgis’ finding that Plaintiff would need to make 16 “frequent stops” for about “10 minutes per hour” when walking and standing. [AR 17 27, 182.] 18 An ALJ must provide clear and convincing reasons supported by substantial 19 evidence in rejecting the uncontradicted opinion of an examining physician, Bayliss 20 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005), and specific and legitimate 21 reasons supported by substantial evidence to reject the contradicted opinion of an 22 examining physician, Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 23 However, an ALJ is not required to accept an opinion of a treating physician, or any 24 other medical source, if it is conclusory, brief, and not supported by clinical 25 findings. See Tonapetvan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). If the 26 record as a whole does not support the medical source’s opinion, the ALJ may reject 27 that opinion. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 28 Cir. 2004). 6 1 Dr. Girgis conducted an internal medicine evaluation of Plaintiff in October 2 2014. [AR 178-83.] He found that Plaintiff’s conditions included: morbid obesity 3 status post gastric bypass surgery; peripheral neuropathy; thyroid cancer status post 4 total thyroidectomy; diabetes mellitus Type II, well controlled; multiple bone pain; 5 and chronic back pain. [AR 182.] Dr. Girgis determined that Plaintiff was able to 6 lift and carry 50 pounds occasionally and 25 pounds frequently, sit 6 hours in an 8- 7 hour workday, and stand and walk 6 hours in an 8-hour workday with “frequent 8 stops about 10 minutes per hour.” [AR 182.] 9 The ALJ agreed with Dr. Girgis’ opinion to the extent it was consistent with 10 an RFC for medium work, but disagreed with Dr. Girgis’ finding that Plaintiff 11 would need frequent stops of 10 minutes per hour while standing and walking. [AR 12 27, 182.] The ALJ reasonably rejected this limitation because it was not well 13 supported by Dr. Girgis’s own findings on examination. [AR 27]; see Bayliss, 427 14 F.3d at 1216 (finding discrepancy between a physician’s notes, recorded 15 observations, and opinions and the physician’s assessment of claimant’s limited 16 ability to stand and walk was a clear and convincing reason for rejecting the 17 opinion); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (affirming 18 ALJ’s rejection of physician’s assessment of claimant’s functional limitations as 19 unsupported by physician’s treatment notes). The ALJ observed that Dr. Girgis 20 found no evidence of joint deformity or effusion or swelling in the lower extremities 21 and reported that Plaintiff had a normal gait and normal coordination. [AR 27, 180- 22 82.] While Plaintiff notes that Dr. Girgis reported decreased sensation to vibration 23 and touch in both Plaintiff’s lower extremities which may be associated with 24 peripheral neuropathy [Pl. Brief at 8], Dr. Girgis stated that Plaintiff’s sensory exam 25 was otherwise grossly intact and equal bilaterally. [AR 182.] In addition, Dr. Girgis 26 reported that Plaintiff “walks and moves easily,” was “able to change position and 27 get on and off the examining table without difficulty,” displayed grossly normal 28 range of motion in the bilateral hips, knees, and ankles, and had normal reflexes 7 1 bilaterally, good tone with good active motion, no atrophy or fasciculation, strength 2 of 5/5 throughout, no focal motor deficits, no tenderness to palpation to the midline 3 and paraspinal areas of the back, negative straight leg raising test at 90 degrees 4 (seated and supine positions), and only a mildly decreased range of motion in the 5 back (flexion to 88 degrees and lateral bending to 30 degrees). [AR 180-82.] 6 Further, Dr. Girgis found that Plaintiff could climb, stoop, kneel, crouch, and crawl 7 without limit. [AR 183.] Thus, the ALJ’s conclusion that Dr. Girgis’ recorded 8 observations and opinions regarding Plaintiff’s capabilities conflict with the 9 assessed limitation that Plaintiff would need frequent breaks of about 10 minutes for 10 every hour of standing and walking is supported by substantial evidence. [AR 180- 11 83.] Such a conflict was a specific and legitimate reason for discounting Dr. Girgis’ 12 opinion. See Bayliss, 427 F.3d at 1216; Connett, 340 F.3d at 875; see also 13 Tonapetvan, 242 F.3d at 1149; Batson, 359 F.3d at 1195. Although Plaintiff 14 disagrees with the ALJ’s conclusion, “the ALJ is the final arbiter with respect to 15 resolving ambiguities in the medical evidence.” Tommasetti v. Astrue, 533 F.3d 16 1035, 1041 (9th Cir. 2008); see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 17 2002) (“Where the evidence is susceptible to more than one rational interpretation, 18 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”). 19 C. Plaintiff’s Pain and Symptom Testimony 20 Plaintiff contends that the ALJ failed to provide sufficient reasons for 21 discounting her subjective symptom testimony. [Pl. Brief at 9-12.] For the reasons 22 discussed below, the ALJ did not err. 23 Once a disability claimant produces evidence of an underlying physical or 24 mental impairment that could reasonably be expected to produce the symptoms 25 alleged and there is no affirmative evidence of malingering, the ALJ must offer 26 “specific, clear and convincing reasons” to reject the claimant’s testimony. Brown- 27 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015); Smolen, 80 F.3d at 1284. The 28 ALJ must identify what testimony is not credible and what evidence discredits the 8 1 testimony. See Treichler v. Comm’r, Soc. Sec. Admin., 775 F.3d 1090, 1102-03 (9th 2 Cir. 2014); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). But if the ALJ’s 3 assessment of the claimant’s testimony is reasonable and is supported by substantial 4 evidence, it is not the Court’s role to “second-guess” it. Rollins v. Massanari, 261 5 F.3d 853, 857 (9th Cir. 2001). Plaintiff testified that she was unable to work due to pain throughout her 6 7 body, headaches, and weakness in her bones. [AR 26, 605-07, 609.] She 8 complained that she “can’t really do anything,” spends her days lying down (about 9 five hours) or sitting, and does not exercise, prepare meals, drive, vacuum, do 10 laundry, shop for groceries, or help her three children get to or from school. [AR 11 26, 608-11, 613-16.] Plaintiff claimed that she has difficulty sleeping and is unable 12 to stand more than 5 minutes, sit more than an hour, lift more than a plastic cup, 13 walk more than “a little bit,” or eat without vomiting. [AR 26, 609, 611, 613, 616- 14 17.] 15 The ALJ found Plaintiff’s medically determinable impairments could 16 reasonably be expected to cause her alleged symptoms, but Plaintiff’s statements 17 concerning intensity, persistence and limiting effects of the symptoms were not 18 entirely credible. [AR 26-28.] The ALJ first indicated that the medical evidence of 19 record did not support the level of limitation alleged by Plaintiff. [AR 27-28.] A 20 lack of supporting objective medical evidence is a factor which may be considered 21 in evaluating a claimant’s credibility, provided it is not the sole factor. Bunnell v. 22 Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). The ALJ noted there were no 23 documented findings of weakness on a sustained basis, joint swelling, or deformity 24 and Plaintiff had normal motor strength, reflexes, and gait. [AR 27-28, 180-82.] 25 The ALJ also cited a lack of any diffuse muscle atrophy despite Plaintiff’s claim that 26 she leads an inactive lifestyle that consists primarily of lying down or sitting all day. 27 [AR 28, 180-82, 608-11, 615-16.] The ALJ found that while Plaintiff complained 28 that she vomits after eating and is unable to hold down food, she has been described 9 1 as “well nourished” and has maintained a relatively stable weight since undergoing 2 gastric bypass surgery in 2013. [AR 26-28, 180, 221, 245-46, 252, 254, 256, 261, 3 611.] It was thus appropriate for the ALJ to conclude the objective medical 4 evidence did not support Plaintiff’s allegations of disabling physical limitations. 5 Second, the ALJ cited Plaintiff’s minimal treatment for her musculoskeletal 6 complaints. [AR 28.] The ALJ noted that the record contained no recommendation 7 for surgical intervention and that Dr. Sial actually advised Plaintiff to maintain 8 normal daily activities and avoid prolonged bed rest. [AR 28, 232.] “Evidence of 9 ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 10 severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 11 (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); see also Meanel 12 v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective pain complaints 13 where plaintiff’s “claim that she experienced pain approaching the highest level 14 imaginable was inconsistent with the ‘minimal, conservative treatment’ that she 15 received”). 16 Finally, the ALJ found that Plaintiff has a spotty work history, suggesting that 17 her lack of employment is related to her preference not to work, rather than her 18 claimed inability to work. [AR 28, 83-84.] Evidence of a poor work history is a 19 clear and convincing reason to discredit a claimant’s credibility. Thomas, 278 F.3d 20 at 958-59 (upholding ALJ’s negative credibility determination because, among other 21 factors, plaintiff’s “work history was spotty, at best” and she “has shown little 22 propensity to work in her lifetime”); see 20 C.F.R. § 416.929(c)(3) (an ALJ may 23 consider a claimant’s prior work record when assessing credibility). Plaintiff’s 24 earnings report demonstrates that Plaintiff had no earnings in 2002, 2003, 2004, 25 2006, and 2010, and very limited earnings in 2000, 2001, 2005, 2007, 2008, 2009, 26 and 2012. [AR 83.] Thus, the ALJ properly considered Plaintiff’s work history in 27 discounting her credibility. See Thomas, 278 F.3d at 958-59. 28 10 1 Accordingly, the Court concludes that the ALJ provided specific, clear and 2 convincing reasons, supported by substantial evidence, for finding Plaintiff’s 3 testimony less than fully credible. 4 V. 5 6 CONCLUSION For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. 7 8 IT IS ORDERED. 9 10 11 12 DATED: February 14, 2018 ___________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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