Harris et al v. SSA

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 9/9/16 ORDERING that plaintiff's motion for summary judgment 13 is DENIED; the Commissioner's cross-motion for summary judgment 14 is GRANTED; the clerk shall enter judgment for defendant and close the case. CASE CLOSED(Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINETTA M. HARRIS,

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Plaintiff,

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No. 2:14-cv-02092 AC

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying her application for supplemental security income (“SSI”) under Title

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XVI of the Social Security Act (“the Act”), 42 U.S.C. § 1381-1383f.1 For the reasons that

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follow, plaintiff’s motion for summary judgment will be DENIED and defendant’s cross-motion

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for summary judgment will be GRANTED.

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I. PROCEDURAL BACKGROUND

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Plaintiff initially applied for Disability Insurance Benefits (“DIB”) and Supplemental
Security income (“SSI”) on February 16, 2010, alleging her disability began May 15, 2006.

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SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept.
of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003)( Title
XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for
aged, blind, or disabled individuals, including children, whose income and assets fall below
specified levels).

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Administrative Record (“AR”)2 at 55 (ECF No. 12-4 at 5) (Decision). The claim was initially

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denied on May 18, 2010, and on reconsideration on September 13, 2010. Id. Plaintiff then filed a

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request for hearing on October 11, 2010, id., pursuant to 20 CFR 415.1429, and appeared at the

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hearing held on July 20, 2011 before Administrative Law Judge (“ALJ”) William C. Thompson.

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Id. At that time plaintiff changed her alleged disability onset date to February 16, 2010, which

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her attorney explained would result in the dismissal of her DIB application. Id.

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On September 9, 2011, ALJ Thompson found plaintiff “not disabled” and plaintiff

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requested review of that decision by the Appeals Council. Id. On June 27, 2012, the Appeals

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Council vacated the hearing decision and remanded the case to a new ALJ, Robert P. Wenten, for

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further adjudication specifically including consideration of the claimant’s knee impairment and

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her reported used of a cane and their vocational consequences. Id.

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On March 20, 2013, the plaintiff, plaintiff’s attorney, plaintiff’s husband Joey Harris, and

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IVE Jose L. Chaparro were present for and testified at the hearing held by Judge Wenten. Id. On

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April 27, 2013, Judge Wenten issued his decision finding that plaintiff had not proven disability.

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AR 81 (ECF No. 12-4 at 31).

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On May 31, 2013, plaintiff requested review of the Hearing Decision, AR 48-51 (ECF No.

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12-3 at 49-52), which request was denied on July 14, 2014. AR 1-7 (ECF No. 12-3 at 2-8).

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Plaintiff filed her Complaint in this court on September 9, 2014. ECF No. 1. The parties

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consented to the jurisdiction of the Magistrate Judge. ECF Nos. 3 (plaintiff) and 9 (defendant).

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The parties’ cross-motions for summary judgment, based upon the Administrative Record filed by

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the Commissioner, have been fully briefed. ECF No. 13 (plaintiff’s summary judgment motion

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dated July 27, 2015), ECF No. 14 (Commissioner’s cross-motion for summary judgment dated

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August 20, 2015) and ECF No. 15 (plaintiff’s reply memorandum).

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II. FACTUAL BACKGROUND

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Plaintiff was born in 1976 and thus was under fifty years of age at all relevant times. ECF
No. 13 at 4:24-25. She has a GED and has taken college courses. Id. at 25 -26. She can
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The Administrative Record, comprising 1,176 pages was filed in thirteen (13) parts found at
ECF No. 12-4 – 12-16.
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communicate in English as demonstrated in the transcript of her testimony at the hearing. AR 93

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et seq. (ECF 12-4 at 43 et seq.).

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III. LEGAL STANDARDS

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The Commissioner’s decision that a plaintiff is not disabled will be upheld “if it is

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supported by substantial evidence and if the Commissioner applied the correct legal standards.”

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Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “The findings of the

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Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Andrews v.

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Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).

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Substantial evidence is “more than a mere scintilla, [but] may be less than a

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preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Substantial evidence

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

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conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) ( internal quotation marks

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omitted). “While inferences from the record can constitute substantial evidence, only those

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‘reasonably drawn from the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066

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(9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of

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the Commissioner, the court nonetheless must review the record as a whole, “weighing both the

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evidence that supports and the evidence that detracts from the [Commissioner’s] conclusion.”

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Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d

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993, 995 (9th Cir. 1985) (“The court must consider both evidence that supports and evidence that

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detracts from the ALJ’s conclusion; it may not affirm simply by isolating a specific quantum of

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supporting evidence.”).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001). “Where the evidence is susceptible to more than one rational interpretation, one of which

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supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278

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F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ

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in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v.

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Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)
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(“It was error for the district court to affirm the ALJ’s credibility decision based on evidence that

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the ALJ did not discuss”).

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The court will not reverse the Commissioner’s decision if it is based on harmless error,

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which exists only when it is “clear from the record that an ‘ALJ’s error was inconsequential to the

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ultimate nondisability determination.”’ Robbins v. Social Security Administration, 466 F.3d 880,

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885 (9th Cir. 2005) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055-1056 (9th Cir. 2006));

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see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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IV.

RELEVANT LAW

Disability Insurance Benefits and Supplemental Security Income are available for every

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eligible individual who is “disabled.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The

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Commissioner uses a five-step sequential evaluation process to determine whether an applicant is

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disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v.

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Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the ”five-step sequential evaluation process to

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determine disability” under Title II and Title XVI. The following summarizes the sequential

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evaluation:

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Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.
20 C.F.R. §§ 404.1520(a)(4)(i), (b) and 416.920(a)(4)(i), (b).
Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, the claimant is not disabled.
Id., §§ 404.1520(a)(4)(ii), (c) and 416.920(a)(4)(ii), (c).

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Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is disabled. If not,
proceed to step four.
Id., §§ 404.1520(a)(4)(iii), (d) and 416.920(a)(4)(iii), (d).
Step four: Does the claimant’s residual functional capacity make
him capable of performing his past work? If so, the claimant is not
disabled. If not, proceed to step five.
Id., §§ 404.1520(a)(4)(iv), (e), (f) and 416.920(a)(4)(iv), (e), (f).
Step five: Does the claimant have the residual functional capacity
perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.
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Id., §§ 404.1520(a)(4)(v), (g) and 416.920(a)(4)(v), (g).
The plaintiff bears the burden of proof in the first four steps of the sequential evaluation

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process. 20 C.F.R. §§ 404.1512(a)(“In general, you have to prove to us that you are blind or

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disabled”), 20 C.F.R. § 416.912(a)(same). However, “[a]t the fifth step of the sequential analysis,

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the burden shifts to the Commissioner to demonstrate that the plaintiff is not disabled and can

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engage in work that exists in significant numbers in the national economy.” Hill v. Astrue, 698

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F.3d 1153, 1161 (9th Cir. 2012).

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V.

THE ALJ’s FINDINGS

The ALJ made the following findings:

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1. The claimant met the insured status requirements of the Social
Security Act through December 31, 2008. […]
2. [Step One] The claimant has not engaged in substantial gainful
activity since February 16, 2010, the amended alleged onset
date (20 CFR 404.1571 et seq. and 416.971 et seq.). […]
3. [Step Two] The claimant has the following severe impairments:
swelling and possible bursitis of the bilateral knees; asthma;
obesity; and bipolar disorder (20 CFR 404.1520(c) and
416.920(c)). […]
4. [Step Three] The claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 CFR Part 404,
Subpart P., Appendix 1 (20 CFR 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925 and 416.926). […]
5. [Preparation for Step 4 (Residual Functional Capacity
(“RFC”))] The claimant has the residual functional capacity to
perform a limited range of light work as defined in 20 CFR
404.1567(b) and 416.967(b). She lift or carry up to 20 pounds
occasionally and 10 pounds frequently. She can stand and walk
in combination for a total of 6 hours in an 8-hour workday and
sit up to six hours. She can occasionally climb stairs, but not
ladders, ropes or scaffolding, and should not be exposed to
heights or hazardous machinery. She should not be exposed to
extreme temperatures, excessive dust, fumes, smoke or other
respiratory irritants. She is limited to jobs involving simple
instructions, and limited to restricted contact with both the
public and coworkers. She work in the presence of others but
should not be part of a work team or a cooperative work
process. […]
6. [Step Four] The claimant is unable to perform any past relevant
work (20 CFR 404.1454 and 416.965). […]
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7. [Step Five] The claimant was born on May 28, 1976 and was
33 years old, which is defined as a younger individual age 1849, on the amended alleged disability onset date of February 16,
2010 (20 CFR 404.1563 and 416.963).

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[Step Five, continued] The claimant has at least a high school
education and is able to communicate in English (20 CFR
404.1564 and 416.964). […]

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9. [Step Five, continued] Transferability of job skills is not
material to the determination of disability because using the
Medical-Vocational Rules as a framework supports a finding
that the plaintiff is “not disabled,” whether or not the plaintiff
has transferable job skills (See SSR 92-41 and 20 C.F.R. Part
404, Subpart P, Appendix 2).
10. [Step Five, continued]
Considering the plaintiff’s age,
education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national
economy that the plaintiff can perform (20 C.F.R. 416.969 and
416.969(a)). […]
11. The claimant has not adequately proven she has been under a
disability, as defined in the Social Security Act, from February
16, 2010 through the date of this decision (20 C.F.R.
404.1520(g) and 416.920(g)).
AR 58-81 (ECF No. 12-4 at 8-31) (excerpted).

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VI. ANALYSIS

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Plaintiff contends that the ALJ committed legal error by rejecting treating physician Dr.

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Tanson’s “assessment” that plaintiff required supplemental oxygen, and that this error renders

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invalid the ALJ’s findings regarding plaintiff’s credibility and her residual functional capacity.

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ECF No. 13 at 12. Plaintiff’s brief affirmatively indicates both that the ALJ rejected a medical

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opinion provided by plaintiff’s treating physician, e.g. ECF No. 13 at 12 (“An ALJ Must

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Reasonably Evaluate a Treating Source’s Opinion”), and that the ALJ improperly failed to

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consider a doctor’s prescription, id. at 14 (“Dr. Tanson Prescribed Oxygen” and “ALJ Wenten

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Did Not Give Legally Sufficient Reasons for Rejecting Dr. Tanson’s Prescription of Oxygen”).

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Neither representation, however, is accurate. The record before the ALJ included neither a

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medical opinion from Dr. Tanson, nor a prescription for oxygen from Dr. Tanson or anyone else.

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There was no error.

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A. The Medical Record Regarding Plaintiff’s Asthma Treatment

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The ALJ accurately summarizes the record regarding plaintiff’s history of treatment for

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asthma and respiratory difficulties from May 2005 through April 2012. AR 71-72 (ECF No. 12-4

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at 21-22). Throughout this timeframe, plaintiff’s condition waxed and waned. The record

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reflects complaints and emergency room visits alternating with exams that demonstrated normal

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respiration, clear lungs, and reports of improvement. The effect of plaintiff’s smoking on her

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asthma was repeatedly discussed. Id. The ALJ also reviewed the evidence of plaintiff’s

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hospitalization for four days in April 2012, when she was admitted to San Joaquin General

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Hospital for shortness of breath and was diagnosed with asthma exacerbation secondary to

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bronchitis. During her inpatient treatment, plaintiff’s chest x-ray was negative and her oxygen

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intake level was measured at 96% on “room air.” Id. at 72 (ECF No. 12-4 at 22). On discharge

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plaintiff was counseled about smoking cessation, and she was permitted to return to school and

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regular P.E. activities a few days later. Id. The court’s independent review of the hospital

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records reflects that “slight bilateral expiratory wheezing” was identified during the

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hospitalization, and that medications were prescribed. AR 1152 (ECF No. 12-16 at 7). The

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discharge summary notes that an outpatient sleep study was recommended and medications were

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continued, id. at 8-9, but there is no recommendation or prescription for oxygen. 3

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The record reflects that plaintiff saw Dr. Tanson five times between October 2011 and

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May 2012. AR 1171-74 (ECF No. 12-16 at 26-29). Prior to plaintiff’s April 2012

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hospitalization, Dr. Tanson’s progress notes do not mention oxygen. On April 27, 2012,

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following her discharge, plaintiff reported having been treated at the hospital for COPD,

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pneumonia, bronchitis and asthma.4 AR 1172 (ECF No. 12-16 at 27). Dr. Tanson’s notes

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indicate that the patient was to be contacted to “see whether she needs oxygen on an outpatient

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basis.” Id. At her next visit with Dr. Tanson, on May 21, 2012, plaintiff reported that she had

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been “set up” on oxygen three weeks previously. AR 1171 (ECF No. 12-16 at 26). Dr. Tanson’s

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A final PA note indicates that plaintiff “[r]ecently had a sleep study where she is pending O2
use at night.” AR 1156 (ECF 12-16 at 11). The medical record does not include the results of
any sleep study.
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She also sought treatment for blood clots in her legs.
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notes state that plaintiff is “using oxygen on [a] regular basis,” and until he has her medical

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records to review she should “continue oxygen.” AR 1171 (ECF No. 12-16 at 26). The statement

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of her condition includes “chronic hypoxia on oxygen.” There is no further reporting from Dr.

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Tanson in the record.

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B. The ALJ Did Not Reject An Opinion From Dr. Tanson

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Plaintiff invokes the legal standards that apply to an ALJ’s rejection of an uncontroverted

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opinion from a claimant’s treating physician. ECF No. 13 at 12-13. Dr. Tanson, however, never

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rendered an opinion regarding the impact of plaintiff’s asthma on her functioning. Neither did he

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express an opinion regarding plaintiff’s alleged need for constant oxygen.

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Treatment notes (as opposed to formal functional assessments or other opinion reports)

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may constitute a “medical opinion” if they contain statements that reflect judgments about the

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nature and severity of a claimant’s impairment(s), including symptoms, diagnosis and prognosis,

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functioning, and medically indicated restrictions. See 20 C.F.R. § 404.1527(a)(2); Marsh v.

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Colvin, 792 F.3d 1170, 1172 n. 1 (9th Cir. 2015). Dr. Tanson’s progress notes do not contain any

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judgments about plaintiff’s asserted need for oxygen. Rather, they reflect plaintiff’s

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(uncorroborated) report to Dr. Tanson that she had been “set up” on oxygen. Dr. Tanson merely

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documented the fact of plaintiff’s oxygen use, he did not order it. His May 21, 2012 note that

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plaintiff should “continue oxygen” until he had obtained her records is no more than a direction

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that plaintiff maintain the status quo until Dr. Tanson was in a position to make a judgment

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himself. The record does not reflect that he ever did so.

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The ALJ’s failure to identify and give significant weight to Dr. Tanson’s notes regarding

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oxygen does not constitute rejection of a treating physician’s “opinion,” because there was no

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opinion. The authorities that plaintiff cites in this regard, including Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995) (requiring “clear and convincing reasons” for rejecting uncontroverted opinion

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of treating physician), are inapposite. There was no error involving the rejection of medical

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opinion evidence.

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C. The ALJ Did Not Fail To Consider A Prescription Issued By Dr. Tanson

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The medical record is devoid of any prescription for oxygen. Dr. Tanson did not prescribe

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oxygen, and his treatment notes cannot reasonably be construed as a prescription for the same

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reasons that they do not constitute an “opinion” that plaintiff required oxygen. Plaintiff insists

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that Dr. Tanson’s May 21, 2012 “assessment . . . that oxygen was needed for chronic hypoxia,”

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AR 1171, constituted a “prescription.” ECF No. 13 at 15:2-6. The referenced treatment note

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does not reflect a conclusion that plaintiff required oxygen for chronic hypoxia, however, it

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merely documented plaintiff’s reported use of oxygen.5 Because there was no evidence that

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oxygen had been prescribed, the ALJ cannot have erred by failing to account for prescribed

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oxygen in the RFC.

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D. The ALJ Committed No Error In Evaluating Plaintiff’s Credibility

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Plaintiff appeared at the hearing before the ALJ wearing an oxygen tank, and testified that

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she used oxygen 24 hours per day and had been doing so since she was released from the hospital

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in 2012. See AR 74 (ECF No. 12-4 at 24). The ALJ found plaintiff’s testimony regarding her

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need for oxygen (among other things) not to be credible, on grounds that the medical record

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contained no prescription for oxygen or indication that she had a breathing impairment so severe

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that oxygen would be required. Id. The ALJ also identified numerous inconsistencies in

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plaintiff’s reports to medical providers and her testimony regarding her respiratory problems and

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her smoking. Id. Overall, the ALJ found plaintiff’s testimony about her symptoms not to be

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credible because it was inconsistent with the longitudinal treatment history and not supported by

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the treatment evidence. AR 73 (ECF No. 12-4 at 23).

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If an ALJ finds that a claimant’s testimony as to the severity of her impairments is

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unreliable, the ALJ must make a credibility determination with findings sufficiently specific to

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permit the court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.

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See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc). The ALJ may use the

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The treatment note says “chronic hypoxia on oxygen,” not “oxygen needed for chronic hypoxia”
as plaintiff’s brief suggests. See AR 1771 (ECF No. 12-16 at 26). The note is descriptive, not
prescriptive.
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ordinary techniques of credibility evaluation. See Turner v. Commissioner, 613 F.3d 1217, 1224

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n.3 (9th Cir. 2010). He may consider the following factors, among others: the claimant’s

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reputation for truthfulness, inconsistencies either in the claimant’s testimony or between her

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testimony and her conduct, the claimant’s daily activities, her work record, and testimony from

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physicians and third parties concerning the nature, severity, and effect of the symptoms of which

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claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Although the

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absence of objective medical evidence is not, standing alone, sufficient to support a negative

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credibility determination, when coupled with conflicts between testimony and conduct and/or

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internal contradictions in plaintiff’s representations, it provides a valid basis for rejecting the

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claimant’s testimony. Robbins v. Social Security Administration, 466 F.3d 880, 883-884 (9th

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Cir. 2006). If the ALJ’s credibility finding is supported by substantial evidence in the record, we

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may not engage in second-guessing. See Morgan v. Commissioner, 169 F.3d 595, 600 (9th Cir.

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1999).

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Here the ALJ gave specific, clear and convincing reasons for discounting plaintiff’s

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testimony. The ALJ identified extensive inconsistencies in plaintiff’s testimony, and between her

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testimony and the longitudinal medical history, both regarding her asthma and oxygen use and

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regarding the severity of other reported symptoms that are not at issue here. AR 72-76 (ECF No.

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12-4 at 22-26). The ALJ also properly considered plaintiff’s “unexplained or inadequately

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explained failure to . . . follow a prescribed course of treatment,” e.g. smoking cessation. See

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Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Because the ALJ’s credibility finding is

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supported by substantial evidence, there was no error.

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E. Substantial Evidence Supports the Residual Functioning Capacity Findings
In determining plaintiff’s RFC, the ALJ rejected plaintiff’s claim that she needed to be on

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oxygen at all times. He carefully reviewed the medical records regarding her treatment for

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asthma and found that even if plaintiff was using supplemental oxygen at the time of the hearing,

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it was not medically required. The ALJ then concluded that:

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[C]ontrary to her testimony and allegations, the claimant has only
occasional exacerbation of her symptoms, and she continues to
smoke against medical advice. The residual functional capacity set
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forth herei incorpora
in
ates adequat precautio in regar to her
te
ons
rd
asthma.

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AR 72 (ECF No. 12-4 at 22). Plaintif challenges this finding
R
N
2
ff
g.

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The co has alrea determin that the A did not err in reject
ourt
ady
ned
ALJ
t
ting plaintiff testimony
f’s
y

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reg
garding her need for oxy
ygen, or in failing to trea Dr. Tanson treatmen notes as a prescription
fa
at
n’s
nt
n

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for “24/7” oxy
ygen use or an opinion th such oxy
a
hat
ygen use was medically n
s
necessary. P
Plaintiff’s

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co
ontention tha the ALJ ov
at
verlooked sig
gnificant evi
idence of su
upplemental o
oxygen depe
endence fails
s

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for the reasons already exp
s
plained. The ALJ’s asse
e
essment of p
plaintiff’s RF is based o
FC
on

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su
ubstantial evi
idence, and therefore ma not be dis
t
ay
sturbed on ju
udicial review
w.

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F. The Co Need Not Address Plaintiff’s A
ourt
N
P
Additional Ar
rguments

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Plaintiff raises a nu
umber of iss
sues regardin the ALJ’s consideration of Vocational Expert
ng
s
t

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tes
stimony and application of Social Se
d
ecurity Rulin (SSR) 00
ng
0-4p. These issues are pr
resented in

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the context of harmless err analysis. ECF No. 1 at 17-21 (
e
ror
.
13
(“ALJ Wente Errors W
en’s
Were

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Ha
armful”). Because the court has fou no error, there is no n
c
und
need to addr these ma
ress
atters.
VII. CONC
CLUSION

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For the reasons set forth above IT IS HER
e
t
e,
REBY ORDE
ERED as fol
llows:

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1. Plaintiff’s motion for summary judgment, ECF No. 13 is DENIED
y
3,
D;

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2. The Co
ommissioner cross-mo
r’s
otion for sum
mmary judgm
ment, ECF N 14, is GR
No.
RANTED.

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3. The Cl
lerk of the Court shall en judgmen for defend and clos the case.
C
nter
nt
dant
se

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ATED: Sep
ptember 9, 20
016.
DA

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