Butler v. Carolyn W. Colvin, Commissioner of Social Security
Filing
22
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER re 1 - Signed by JUDGE HELEN GILLMOR on 11/16/2016. "The Commissioner of Social Security Administration's decision is AFFIR MED. The Clerk of Court is Ordered to CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
KENDA J. BUTLER,
)
)
Plaintiff,
)
)
)
vs.
)
CAROLYN W. COLVIN, Social
)
Security Administration
)
)
Commissioner,
)
)
Defendant.
_______________________________ )
CIVIL NO. 15-00466 HG-KSC
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER
This case involves the appeal of the Social Security
Administration Commissioner’s denial of Disability Insurance
Benefits to Plaintiff Kenda J. Butler.
On March 26, 2012, Plaintiff filed an application for
Disability Insurance Benefits pursuant to Title II of the Social
Security Act.
Plaintiff claimed that she has been disabled since
June 15, 2010 because of conditions affecting her spinal column.
The Social Security Administration denied her application.
Following an administrative hearing, the Administrative Law Judge
(“ALJ”) held that Plaintiff was not disabled for a continuous
period of at least 12 months following her onset disability date
of June 15, 2010.
The Appeals Council denied Plaintiff's request
for review and Plaintiff appealed to this Court.
1
The Court AFFIRMS the decision of the Social Security
Administration Commissioner.
PROCEDURAL HISTORY
On March 26, 2012, Plaintiff Kenda J. Butler filed an
application for Disability Insurance Benefits with the Social
Security Administration.
(Administrative Record (“AR”) at 182-
190, ECF No. 12).
On October 9, 2012, the Social Security Administration
denied Plaintiff’s initial application and on August 15, 2013,
they denied her request for reconsideration.
(AR at pp. 125-28,
132-37).
Following the denial of Plaintiff’s request for
reconsideration, she sought a hearing before an Administrative
Law Judge (“ALJ”).
On February 24, 2014, an ALJ conducted a
hearing on Plaintiff’s application.
(AR at pp. 50-96).
On April
24, 2014, the ALJ issued a written decision denying Plaintiff’s
application.
(ECF No. 29-43).
Plaintiff sought review by the Appeals Council for the
Social Security Administration.
(AR at pp. 8-28).
The Appeals
Council denied further review of Plaintiff’s application on
September 29, 2015, rendering the ALJ’s decision as the final
administrative decision by the Commissioner of Social Security.
(AR at pp. 2-4).
2
On November 5, 2015, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny her
application for Disability Benefits in this Court pursuant to 42
U.S.C. § 405(g).
(Complaint for Review of Social Security
Disability Insurance Determination, ECF No. 1).
On March 3, 2016, the Magistrate Judge issued a briefing
schedule.
(ECF No. 13).
On May 31, 2016, Plaintiff filed PLAINTIFF’S OPENING BRIEF.
(ECF No. 14).
On July 13, 2016, Defendant filed DEFENDANT’S MOTION FOR
FIRST EXTENSION OF 35 DAYS TO FILE THE ANSWERING BRIEF.
(ECF No.
16).
On July 15, 2016, the Magistrate Judge granted Defendant’s
Motion for First Extension to File the Answering Brief.
17).
(ECF No.
The Magistrate Judge also granted Plaintiff an extension of
time to file her Reply brief.
(Id.)
On August 22, 2016, Defendant filed DEFENDANT’S ANSWERING
BRIEF.
(ECF No. 18).
On September 1, 2016, Plaintiff filed PLAINTIFF’S REPLY
BRIEF.
(ECF No. 19).
On October 11, 2016, the Court held a hearing on Plaintiff’s
appeal of the decision of the Social Security Administration
Commissioner.
(ECF No. 21).
3
BACKGROUND
Plaintiff’s Work History Between 2001 And 2007
Plaintiff is a 34 year-old female.
(“AR”) at p. 184, ECF No. 12).
graduate.
(Id. at p. 53).
(Administrative Record
Plaintiff is a high school
Between 2001 and 2007, Plaintiff
worked in various positions including restaurant work at Little
Caesar’s Pizza, conducting telephone surveys for a telemarketing
company, teaching day care at a religious institution, clerical
work with a staffing agency, and as an administrative assistant
for a church.
(Id. at pp. 53-55).
Plaintiff stopped working in 2007 to take care of her
children.
(Id. at p. 56).
Plaintiff is married and resides with
her husband and their two minor children.
(Id. at pp. 37, 185).
At the time of the 2014 administrative hearing, Plaintiff’s
children were aged six and four.
(Id. at p. 37).
Plaintiff testified that she homeschooled her six year-old
child.
(Id. at pp. 68-69).
Her four year-old child was not of
school age at the time of her administrative hearing.
(Id. at p.
68).
Plaintiff’s June 2010 Surgery
In June 2010, Plaintiff had surgery due to medical
conditions that caused part of her brain to protrude into her
4
spinal column.
(Id. at pp. 325, 379-381).
Plaintiff’s
conditions caused her to have double vision, headaches,
dizziness, eye twitching, and muscular weakness on the right side
of her body.
(Id. at pp. 303-305).
Following the surgery, Plaintiff’s conditions improved but
she claimed that she still suffered from headaches, eye
twitching, double vision, and some right-weakness.
(Id. at pp.
58-59).
Plaintiff’s March 2012 Application For Social Security Disability
Benefits
Nineteen months after her surgery, on March 26, 2012,
Plaintiff filed an application for Disability Insurance Benefits
pursuant to 42 U.S.C. § 423.
(AR at pp. 98-111, 184-90, ECF No.
12).
Plaintiff’s application was denied and reconsideration was
denied by the Social Security Administration.
28, 132-37).
(Id. at pp. 125-
Following Plaintiff’s request, a hearing was held
before an Administrative Law Judge (“ALJ”).
(Id. at pp. 50-96).
The ALJ denied Plaintiff’s application for Disability
Insurance Benefits, finding that Plaintiff had not met the
requirements set forth in 42 U.S.C. § 423.
(Id. at pp. 32-43).
42 U.S.C. § 423 establishes the statutory eligibility
requirements which an individual must satisfy to receive a
disability insurance benefit pursuant to the Social Security Act.
5
42 U.S.C. § 423(a)(1).
An individual is eligible to receive
disability insurance benefits if the individual:
(A)
is insured for disability insurance benefits as
determined by 42 U.S.C. § 423(c)(1);
(B)
has not attained retirement age;
(C)
has filed an application for disability insurance
benefits, and,
(D)
is under a disability as defined in 42 U.S.C. §
423(d)(1)(A).
42 U.S.C. § 423(a)(1)(A)-(D).
The ALJ evaluated the four requirements of 42 U.S.C. §
423(a)(1).
First, the ALJ reviewed if Plaintiff was insured for
disability insurance benefits pursuant to 42 U.S.C. § 423(c)(1).
The ALJ determined that Plaintiff’s earnings record showed that
she had made disability insurance coverage payments.
Based on
Plaintiff’s work history between 2001 to 2007, the ALJ found that
Plaintiff had acquired quarters of coverage to be insured until
December 31, 2012.
(AR at p. 32, ECF No. 12).
Next, the ALJ found that Plaintiff fulfilled sections (B)
and (C) of Section 423 because she had not reached retirement age
at the time of her application and had properly filed an
application for disability insurance benefits.
Finally, pursuant to 42 U.S.C. § 423(d), the ALJ examined
Plaintiff’s claim that she suffered from a disability before
6
December 31, 2012.1
42 U.S.C. § 423(d)(1)(A) provides, as follows:
The term “disability” means— inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can
be expected to last for a continuous period of not less
than 12 months.
Plaintiff claimed that she was disabled for a continuous
period following June 15, 2010 due to the conditions affecting
her spinal cord.
(AR at p. 184, ECF NO. 12).
The Administrative Law Judge determined that Plaintiff
failed to establish that she had a disability that lasted or was
expected to last at least twelve months between June 15, 2010 and
December 31, 2012, the last date by which she was eligible for
disability benefits.
(Id. at p. 34).
The ALJ found that Plaintiff was capable of performing her
past relevant work as a daycare teacher, telemarketer, and
administrative clerk.
(Id. at p. 41).
The Administrative Law
Judge found, in the alternative, that there was also work that
existed in significant numbers in the economy that Plaintiff
could perform.
(Id. at pp. 41-42).
The Administrative Law Judge
relied on the testimony of a vocational expert to find that
someone with Plaintiff’s limitations could perform work as an
1
December 31, 2012 is the date that Plaintiff’s disability
insured status ended. The evaluation of disability insured status
is set forth in 42 U.S.C. § 423(c), 20 C.F.R. § 404.316.
7
Assembler, Inspector, and Marker.
(Id. at p. 42).
Plaintiff sought review of the Administrative Law Judge’s
decision with the Appeals Council, which declined Plaintiff's
request for review and rendered a final administrative decision
by the Commissioner of Social Security.
(Id. at pp. 2-4).
STANDARD OF REVIEW
A claimant is disabled under the Social Security Act if he
or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which ... has lasted or can be expected to last for a
continuous period of not less than 12 months.”
42 U.S.C. §
423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
A decision by the Commissioner of Social Security must be
affirmed by the District Court if it is based on proper legal
standards and the findings are supported by substantial evidence
on the record as a whole.
See 42 U.S.C. § 405(g); Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.
1993).
8
ANALYSIS
I.
Plaintiff’s History And Claimed Disability
The Administrative Record reflects that Plaintiff was born
in August 1982.
ECF No. 14).
(Administrative Record (“AR”) at pp. 54, 354,
Plaintiff graduated from high school in 2000.
(AR
at p. 53).
A.
Plaintiff’s Employment History From 2001 To 2007
After graduation from high school, Plaintiff was employed
part-time at Little Caesar’s Pizza and also worked for a
telemarketing company conducting telephone surveys between 2001
and 2002.
(AR at pp. 53-54).
Plaintiff testified that she also
briefly worked with children teaching kindergarten at a religious
entity.
(AR at p. 54).
From 2004-2007, Plaintiff worked as an administrative
assistant for a church and performed clerical work through a
staffing agency.
(AR at pp. 54-55).
Plaintiff testified that she stopped working in 2007 in
order to raise her children.
B.
(AR at p. 56).
Plaintiff’s Surgery In 2010
Three years after Plaintiff stopped working, on June 18,
2010, Plaintiff went to the hospital experiencing headaches,
9
dizziness, and numbness in the right side of her body.
pp. 303-05, 322).
(AR at
A magnetic resonance imaging (“MRI”) of her
brain and spine was conducted.
The MRI showed a protrusion of
Plaintiff’s brain into her spinal column with lesions on her
spinal cord and degeneration of some of the discs in her spine.
(AR at pp. 325, 379-381).
Plaintiff was diagnosed with Chiari I type malformation2
with syringohydromyelia3 of her spinal cord and disc
degeneration.
(AR at p. 325).
On June 25, 2010, Plaintiff underwent surgery to relieve the
protrusion into her spinal column, which improved the numbness,
dizziness, and double vision that Plaintiff had been
experiencing.
II.
(AR at pp. 348-361, 399-400, 1156).
Plaintiff’s Condition Following Surgery In June 2010
A.
Objective Medical Evidence Following Surgery
Following Plaintiff’s June 25, 2010 surgery, Plaintiff had
MRI scans of her brain and spine conducted in September 2010,
March 2011, and April and May 2011.
(AR at pp. 715-18, 1866).
2
Chiari type I malformation is defined as a congenital
anomaly in which the cerebellum and medulla oblongata protrude
outside the cranium and into the spinal canal. See Dorland’s
Illustrated Medical Dictionary 1050 (29th ed. 2000).
3
Syringomyelia is a neurological deficit in the spinal cord
that results in lesions causing numbness and muscle weakness.
Dorland’s Illustrated Medical Dictionary 1775 (29th ed. 2000).
10
The MRI records demonstrated that Plaintiff had positive results
from the surgery with improvement of the conditions affecting her
spinal column.
(AR at pp. 715-18, 1866).
The MRI results showed
stable postoperative changes with significant reduction in the
protrusion into her spinal column, improvement in the lesions on
her spinal cord and stability in the degeneration of discs in her
spine.
(AR at pp. 38, 715-18, 1866).
Dr. Leon Liem was Plaintiff’s surgeon.
Dr. Liem examined
Plaintiff a year after the surgery on June 20, 2011, and again on
October 24, 2012.
(AR at pp. 1621-24).
Dr. Liem made objective
findings in his clinical reports stating that Plaintiff had
improvement in her spinal column conditions following surgery,
was fully oriented with full strength, but Plaintiff continued to
have some decreased sensation on her right side.
(AR at pp.
1621, 1624).
Plaintiff’s treating neurologist Dr. Todd Devere also
conducted examinations of Plaintiff.
In August 2012, Dr.
Devere’s clinical reports stated that Plaintiff had full strength
in all extremities, intact cranial nerves, normal and symmetric
muscles of expression, steady gait, intact reflexes, full visual
fields, and neurological stability.
(AR at pp. 1634-37).
Dr.
Devere found that Plaintiff’s headaches were “tolerable and
manageable.”
(Id. at pp. 1634-35).
Dr. Darnell Richey, the state agency medical consultant who
11
reviewed Plaintiff’s claim for disability benefits in October
2012, determined that Plaintiff could perform light work with
some restrictions due to her weaknesses in her right hand and
visual field.
(AR at p. 106).
Dr. Richey stated that
Plaintiff’s medical records documented that she had a normal and
“very stable” gait, improvement in her dizziness and double
vision following her June 2010 surgery, and normal bulk, tone and
strength in her extremities.
(AR at p. 106).
On August 10, 2013, Dr. Blatowski, another state agency
medical consultant, reviewed Plaintiff’s records and agreed with
Dr. Richey’s conclusions as to Plaintiff’s ability to perform
light work.
(AR at p. 122).
Plaintiff’s primary care physician, Dr. Carolyn Fong, issued
a letter to Plaintiff on March 5, 2013, indicating that Plaintiff
had double vision, vertigo, and migraines and was unable to drive
at night.
(AR at p. 1677).
Dr. Fong’s letter states that Plaintiff has restrictions in
driving at night, but Dr. Fong did not indicate that Plaintiff
could not drive at all.
(AR at p. 1677).
The March 2013 letter
did not state that Plaintiff had any other limitations in her
abilities, but, without explanation, she indicated that Plaintiff
required more assistance in the evening.
(AR at p. 1677).
On February 10, 2014, nearly three and a half years after
Plaintiff’s surgery and two years after Plaintiff filed her
12
application for disability benefits, Plaintiff’s neurologist, Dr.
Devere, examined Plaintiff again.
(AR at pp. 1679-84).
Dr.
Devere completed a “Medical Source Statement of Ability To Do
Work-Related Activities (Physical)” Form.
(AR at pp. 1679-84).
Dr. Devere indicated that Plaintiff could lift up to 20
pounds occasionally, sit for two hours at a time and four hours
in an eight-hour day, stand for fifteen minutes at a time and 30
minutes total in an eight-hour day, walk 10 minutes at a time and
20 minutes in an eight-hour day, manipulate occasionally with the
upper right extremity and frequently with the left, operate foot
controls occasionally on the right and frequently on the left,
and occasionally balance, stoop, and kneel.
(AR at pp. 1679-84).
Dr. Devere’s recitation of Plaintiff’s condition, in
February 2014, indicated that Plaintiff was able to perform all
work-related physical activities other than walk a block at a
reasonable pace on rough or uneven surfaces.
(AR at p. 1684).
But then Dr. Devere inconsistently stated that Plaintiff “is not
able to work.”
(AR at p. 1684).
Following Dr. Devere’s evaluation, Plaintiff sought review
of Dr. Devere’s conclusions by her primary care physician Dr.
Carolyn Fong.
Plaintiff obtained a two sentence letter from Dr.
Fong, dated February 11, 2014, stating “I completely agree with
Dr Todd Devere’s assessment that this patient is disabled due to
her medical conditions.”
(AR at p. 1686).
13
Dr. Fong’s two
sentence letter did not describe on what basis or to what extent
she believed that Plaintiff is disabled.
B.
(Id.)
Plaintiff’s Activities Following Surgery
Plaintiff testified before the ALJ about her recovery
following her June 25, 2010 surgery.
Plaintiff testified that
she had some improvement but even as of the hearing on February
24, 2014, she still experiences symptoms such as eye twitching
and headaches two times a week.
(AR at pp. 587-59).
Plaintiff
stated that she treats the headaches with medications that will
alleviate some of the pain.
(AR at pp. 58-59).
Plaintiff
testified that her doctors have offered to prescribe her with
other medications to treat the headaches such as antidepressants
and narcotics.
(AR at pp. 58-59).
Plaintiff said she has been
afraid to try other medications to treat her headaches.
(AR at
p. 61).
Plaintiff testified that as of February 2014, she still
experiences some dizziness and numbness in her right hand and
right leg.
(AR at p. 57).
Despite her purported symptoms,
Plaintiff stated that she does not use a cane to walk and is able
to play the piano.
(AR at pp. 66, 70).
Plaintiff testified that
she plays the piano a couple times a month for periods of 20
minutes.
(AR at p. 70).
Plaintiff testified that she is able to drive, go shopping,
14
and perform housework.
(AR at pp. 61, 67-68).
Plaintiff testified that she homeschools her six year-old
child, which requires her to obtain the curriculum over the
computer, read directions to her child, and enter relevant
reporting information into the computer.
(AR at p. 68-69).
Plaintiff’s four year-old child was not yet in school at the time
of Plaintiff’s testimony.
(AR at p. 68).
Plaintiff stated that she attends Bible study, travels to
the mainland to visit family, goes to the library, plays an
“active role” in church, attends biweekly music practices, plays
the piano, sings, and goes to the park.
(AR at pp. 69-70, 85-86,
242).
III. Applicable Law
The Social Security Administration has implemented
regulations establishing when a person is disabled so as to be
entitled to benefits under the Social Security Act, 42 U.S.C. §§
423, 1382c.
The regulations establish a five-step sequential
evaluation process to determine if a claimant is disabled.
The
Commissioner of the Social Security Administration reviews a
disability benefits claim by evaluating the following:
(1)
Has the claimant been engaged in substantial
gainful activity? If so, the claimant is not
disabled. If not, proceed to step two.
(2)
Has the claimant’s alleged impairment been
15
sufficiently severe to limit his ability to work?
If not, the claimant is not disabled. If so,
proceed to step three.
(3)
Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
the claimant is disabled. If not, proceed to step
four.
(4)
Does the claimant possess the residual functional
capacity to perform his past relevant work? If
so, the claimant is not disabled. If not, proceed
to step five.
(5)
Does the claimant’s residual functional capacity,
when considered with the claimant’s age,
education, and work experience, allow him to
adjust to other work that exists in significant
numbers in the national economy? If so, the
claimant is not disabled. If not, the claimant is
disabled.
Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006) (citing 20 C.F.R. § 404.1520).
The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step five.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
IV.
The Administrative Law Judge Reviewed Plaintiff’s
Application By Using The Five-Step Sequential Evaluation
At Plaintiff’s February 24, 2014 administrative hearing, the
Administrative Law Judge (“ALJ”) for the Social Security
Administration reviewed Plaintiff’s claim by engaging in the
five-step sequential evaluation.
Both Parties agree that there were no errors by the ALJ in
16
the first three steps of the evaluation.
First, the ALJ evaluated if Plaintiff had been engaged in
substantial gainful activity during the time she was eligible for
disability insurance benefits.
An individual may not receive disability insurance benefits
unless the claimant was insured at the time of the onset of the
disability.
20 C.F.R. § 404.101.
The alleged onset date of
Plaintiff’s disability was June 15, 2010, and Plaintiff had
insured status until December 31, 2012.
(AR at p. 34, ECF No.
12).
The ALJ evaluated the time period between June 15, 2010 and
December 31, 2012, and found that Plaintiff did not engage in
substantial gainful activity during that time.
(Id.)
Second, the ALJ found that Plaintiff had the following
impairments that limited her ability to work between June 15,
2010 and December 31, 2012: Chiari I type malformation with
syringohydromyelia in the entire spinal cord, status post
suboccipital decompression, C1 laminectomy, and microdissection
with residual nystagmus4 and right-sided weakness and numbness;
cervical spine degenerative disc disease; and migraine headaches.
(AR at p. 34).
Third, the ALJ found that Plaintiff did not have an
4
Nystagmus is an involuntary twitching of the eyeball. See
Dorland’s Illustrated Medical Dictionary 1249 (29th ed. 2000).
17
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1.
404.1525, and 404.1526.
20 C.F.R. § 404.1520(d),
(AR at p. 35).
In this case, Plaintiff's appeal concerns the ALJ’s decision
regarding step four in the evaluation process.
The Plaintiff challenges the ALJ’s determination that
between June 15, 2010 and December 31, 2012, she had the residual
functional capacity to perform work that she had previously
performed.
V.
The ALJ Properly Denied Plaintiff’s Application For
Disability Benefits At Step Four Of The Social Security
Administration’s Sequential Process
The ALJ denied Plaintiff’s application for Disability
Benefits at step four of the five-step disability determination
process.
At step four, the claimant has the burden of showing
that she suffered from a disability that lasted or is expected to
last at least twelve months such that she was unable to perform
her past relevant work.
20 C.F.R. § 404.1520(f); Pinto v.
Massanari, 249 F.3d 840, 844 (9th Cir. 2001).
In this case, Plaintiff asserted that she became disabled on
June 15, 2010.
Plaintiff was insured for disability insurance
until December 31, 2012.
Plaintiff was required to demonstrate
that she suffered from a disability between June 15, 2010 and
18
December 31, 2012 that was severe enough to prevent her from
engaging in substantial gainful work.
Barnhart v. Walton, 535
U.S. 212, 218-19 (2002); Flaten v. Sec. of Health & Hum. Srvs.,
44 F.3d 1453, 1459-60 (9th Cir. 1995).
If within a twelve month period following the disability,
the claimant was able to do any work she did in the past, the
claimant is not disabled and is not entitled to disability
insurance benefits.
Barnhardt, 535 U.S. at 222-23; Tackett v.
Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The ALJ determined that within a year of Plaintiff’s June
25, 2010 surgery, she had the residual functional capacity to
perform light work as defined in 20 C.F.R. § 404.1567(b), with
the following exceptions:
[S]he should have the option to alternate between
sitting and standing at will; cannot sit or stand
longer than 30 minutes at a time; and is limited to
occasional pushing or pulling with the right upper
extremity and right lower extremity; occasionally
reaching overhead with the right upper extremity;
frequently handling, fingering, grasping, gripping, and
feeling on the right; never kneeling, crouching,
crawling, or climbing ladders, ropes, or scaffolds;
occasionally climbing ramps or stairs, balancing, or
stooping; focusing in front of her but not moving her
eyes only to see right, left, up, or down; and no
exposure to hazards. She is likely to be off-task up
to 10% of the workday and be absent for six days a
year.
(AR at p. 35, ECF No. 12).
The ALJ determined that Plaintiff’s past relevant work was
defined pursuant to the Dictionary of Occupational Titles as a
19
daycare teacher (DOT 092.227-018, light), telemarketer (DOT
299.357-014, sedentary), and administrative clerk (DOT 219.362010, light).
(AR at p. 41, ECF No. 12).
The ALJ found that Plaintiff did not demonstrate that she
was unable perform her past work given the limitations set forth
in her residual functional capacity.
(AR at pp. 41, 89-91).
The
ALJ relied, in part, on the vocational expert who testified that
Plaintiff’s past positions did not have restrictions beyond
Plaintiff’s residual functional capacity as they allowed a
claimant to alternate between sitting and standing as needed.
(AR at pp. 89-91, ECF No. 12).
Specifically, the vocational
expert testified, based on her thirty years’ experience, that the
telemarketer position would be provided with headphones to allow
the individual to alternate between sitting and standing.
(AR at
p. 91, 93, ECF No. 12).
The vocational expert testified that even if Plaintiff could
not perform her past work, someone with her residual functional
capacity could perform work as an assembler (DOT 706.684-022,
light), inspector (DOT 559.687-074, light), and marker (DOT
209.587-.034, light).
(AR at pp. 41-42, 90-91, ECF No. 12).
The ALJ ultimately determined, based on the testimony and
medical evidence, that Plaintiff had the residual functional
capacity to perform light work with some limitations but that the
limitations would not have prevented her from performing her past
20
work as a telemarketer, administrative clerk, or daycare teacher.
(AR at pp. 41-42, ECF No. 12).
Plaintiff challenges the ALJ’s decision at step four of the
evaluation process on three grounds.
First, Plaintiff argues that the ALJ did not provide clear
and convincing reasons for rejecting her testimony about the
severity of her symptoms and inability to work.
Second, Plaintiff argues that the ALJ did not provide clear
and convincing reasons for rejecting the conclusion from her
neurologist, Dr. Devere, stating that Plaintiff “is unable to
work.”
Third, Plaintiff argues that the ALJ did not provide clear
and convincing reasons for rejecting evidence from Plaintiff’s
primary care physician, Dr. Fong, who wrote a letter stating that
she agreed with Dr. Devere’s conclusions and stated that
Plaintiff was disabled.
A.
The ALJ Did Not Err In Declining To Credit Plaintiff’s
Testimony As To The Severity Of Her Symptoms And Her
Claimed Inability To Work
An individual’s statement is not necessarily treated as
conclusive evidence of disability.
42 U.S.C. § 423(d)(5)(A); 20
C.F.R. § 404.1529(a).
The claimant must produce objective medical evidence of an
underlying impairment or impairments that could reasonably be
21
expected to produce some degree of symptom.
F.3d 1273, 1281-82 (9th Cir. 1996).
Smolen v. Chater, 80
An ALJ may discredit the
claimant’s testimony about the severity of her symptoms by
offering specific, clear and convincing reasons for doing so.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
The ALJ may consider many factors in weighing a claimant’s
credibility, including evaluating inconsistent statements
concerning the claimant’s symptoms against evidence of the
claimant’s participation in daily activities, and unexplained or
inadequately explained failure of the claimant to seek treatment
or to follow a prescribed course of treatment.
Tommasetti, 533
F.3d at 1039.
The ALJ’s credibility findings must be sufficiently specific
to permit the court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.
Thomas v. Barnhart, 278 F.3d
947, 958 (9th Cir. 2002).
Here, the ALJ made specific, clear and convincing findings
to discredit Plaintiff’s testimony as to the severity of her
symptoms and her claimed inability to work.
1.
The ALJ Made Specific Findings That Plaintiff’s
Testimony Was Inconsistent
The ALJ found that Plaintiff’s testimony regarding the
severity of her symptoms resulting from her spinal cord
conditions, including claimed balance problems, migraines, and
22
eye twitching, was undermined by her testimony regarding her
participation in daily activities.
(AR at pp. 38-39, ECF No.
12).
An ALJ may properly reject a claimant’s testimony about the
severity of her disability when it conflicts with her own
testimony about her ability to care for her personal needs, cook,
clean, shop, manage her finances, and interact with others.
Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).
Plaintiff testified that she was involved in a wide range of
activities.
Plaintiff testified that she is the wife of a
pastor, is involved in the decision-making of the church, and
occasionally leads a Bible study group.
(AR at pp. 69-70, ECF
No. 12).
The ALJ stated,
Despite her subjective symptoms and difficulties, the
claimant was able to care for her two minor children, a
potentially physically and emotionally demanding task
–including “everything involved w[ith] child-rearing,”
such as bathing, feeding, reading, overseeing outside
play, and taking them to the beach or park—with help a
few times a month from friends and her husband. She
was able to perform independent personal care without
problems, prepare meals daily, do light cleaning and
light laundry, vacuum, use the dishwasher, take public
transportation, drive short distances during the day,
run errands, shop in stores for necessities, handle her
finances, attend church weekly and play an “active
role,” attend biweekly music practice, go to the
library and park weekly, and play the piano and sing at
least once a week.
(AR at p. 39, ECF No. 12).
The ALJ also relied on the fact that Plaintiff testified
23
that she homeschooled her six year-old child.
69, ECF No. 12).
(AR at pp. 39, 68-
Plaintiff testified that she homeschooled her
child, which required her to read, use the computer, and
supervise the child, even though she claimed to be unable to work
based on difficulties with her vision and concentration.
(AR at
pp. 68-69, ECF No. 12).
Plaintiff testified that she had problems using her right
hand.
(Id. at p. 57).
Plaintiff’s testimony was undermined by
her testimony that she is able to play the piano for twenty
minutes at a time.
(Id. at p. 70).
Plaintiff testified that she continued to have trouble
functioning almost four years after her June 2010 surgery.
at p. 57).
(Id.
Despite her testimony, Plaintiff stated that she was
able to travel to the mainland on family vacations twice in 2011,
within months after her surgery.
(Id. at p. 86).
Plaintiff
testified that she traveled to the mainland again in January
2012.
(Id.)
The ALJ relied on Plaintiff’s testimony about her ability to
engage in a wide range of daily activities and home tasks such as
doing laundry, making beds, cleaning, and taking care of her
children.
The wide ranging activities did not support
Plaintiff’s testimony that her symptoms were so severe that she
could not work.
Cir. 2001).
Rollins v. Massanari, 261 F.3d 853, 857 (9th
Even if a claimant’s daily activities suggest some
24
difficulty functioning, the ALJ does not err in rejecting the
claimant’s allegations of a totally debilitating impairment.
Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citing
Turner v. Cmm’r of Soc. Sec., 613 F.3d 1217, 1225 (9th Cir.
2010)).
In addition, the ALJ found that Plaintiff was not credible
because there was evidence that Plaintiff was not working for
reasons unrelated to her alleged disability.
No. 12).
(AR at p. 39, ECF
Plaintiff stopped working in 2007 in order to take care
of her children.
(Id.)
There was no evidence that Plaintiff
ever sought to return to work between 2007 and her alleged onset
date of disability on June 15, 2010.
The ALJ did not err in declining to credit Plaintiff’s
testimony that she was unable to work due to her alleged
disability when there was evidence that Plaintiff had voluntarily
chosen not to work prior to her alleged disability onset date.
Harrelson v. Astrue, 273 Fed. Appx. 632, 634 (9th Cir. 2008);
Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001); Drouin v.
Sullivan, 966 F.2d 1255, 1258-59 (9th Cir. 1992).
2.
The ALJ Made Specific Findings About Plaintiff’s
Failure To Adequately Explain Her Refusal To
Follow A Recommended Course Of Treatment
An unexplained failure to seek treatment or follow a
prescribed course of treatment can support an ALJ’s credibility
25
determination.
Fricke v. Astrue, 2012 WL 2395178, *7 (W.D. Wash.
June 25, 2012) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.
1989)).
Plaintiff testified that she had migraine headaches that
prevented her from working since June 15, 2010.
ECF No. 12).
(AR at p. 58,
Plaintiff stated that her treating physicians had
recommended that she try different prescriptions to treat her
headaches but she has been unwilling to try any new medications.
(AR at pp. 59-61, ECF No. 12).
Plaintiff testified, as follows,
Q:
And so two times a week very severe
headaches, where you’re not able to keep
doing what you’re doing?
A:
Yes.
Q:
Have you told your doctors that?
A:
Yes.
Q:
And what have they done about it, anything?
A:
They’ve offered to have me try different
medications, I didn’t really want to take
antidepressants, they offered that. They’ve
offered narcotics, which I didn’t feel safe
taking medications that I could be addicted
to so, really, they’re doing all they can.
Q:
And why didn’t you want to take an
antidepressant?
A:
Because it can become habit forming. And the
one I did try, I felt very depressed with it,
it didn’t like — it didn’t make me feel good.
...
Q:
I’m going to ask you again, why not if it
possibly could help? And I understand that
26
one of them did not help you and it made you
feel worse but why not try other medications
that might take your headaches away or
lessen?
A:
When I talked to Dr. Devere, the neurologist,
he said it’s possible that it would work but
I mean, they’re all in the same class. He
didn’t feel very confident that it would — I
mean, if I’m okay on Butalbital and my pain
is at least okay, I just didn’t really want
to do that.
Q:
Okay. Okay but two days out of the week your
headaches are so severe that you testified
you can’t do anything.
A:
Right.
Q:
So, my question is why not try a medication
that might help you do things every day of
the week?
A:
I guess I’ve been afraid to, I don’t really
have an answer.
(AR at pp. 60-61, ECF No. 12).
The ALJ properly found that Plaintiff’s failure to
adequately explain her failure to follow recommended medical
treatment undermined her credibility.
In situations where
medication has been shown to be effective but the patient refuses
to avail herself of the treatment offered, that fact alone allows
a determination that the impairments that could be so treated are
not disabling.
Blackwell v. Colvin, 2016 WL 4702823, *5 (E.D.
Cal. Sept. 7, 2016) (citing Warre v. Commissioner, 439 F.3d 1001,
1006 (9th Cir. 2006)).
27
3.
The ALJ Made Specific Findings That Plaintiff’s
Testimony As To The Severity Of Her Symptoms Was
Inconsistent With Objective Medical Evidence In
The Record
The ALJ found that the Plaintiff’s credibility regarding the
disabling degree of her symptoms was undermined by the objective
medical evidence.
(AR at p. 39, ECF No. 12).
The documented
objective medical evidence stated that Plaintiff’s headaches were
tolerable and manageable.
(AR at p. 1634).
Plaintiff’s medical
records stated that she had a steady gait and generally normal
clinical findings, and normal bulk, tone and strength in her
extremities.
(AR at p. 106, 1634-37).
Garza v. Astrue, 380 Fed.
Appx. 672, 673 (9th Cir. 2010) (affirming the ALJ’s discrediting
of the claimant’s testimony as to the severity of her leg pain
where the claimant’s gait and sensory and motor exams were
normal).
The ALJ determined that Plaintiff’s statements regarding her
migraine headaches were inconsistent as she testified on February
24, 2014, that she had severe migraines twice a week but told her
neurologist on February 10, 2014, that she had bad headaches only
twice a month.
(AR at pp. 39, 1824, ECF No. 12).
The ALJ discounted Plaintiff’s testimony that she had
consistent problems with balance as she testified that she did
not use a cane to walk, suggesting Plaintiff’s balance issues
were not sufficiently severe.
(AR at p. 39, ECF No. 12).
28
The ALJ also found that Plaintiff’s testimony was undermined
because she did not see her treating neurologist between November
2013 and February 2014, suggesting that her symptoms were not
consistent enough to require more frequent follow-up
appointments.
(AR at p. 1814, ECF No. 12).
The ALJ properly discounted Plaintiff’s credibility by
citing the conflicts between her subjective complaints and the
objective medical evidence documenting her improvement following
her June 2010 surgery.
Morgan v. Comm’r of Soc. Sec., 169 F.3d
595, 600 (9th Cir. 1999).
B.
The ALJ Did Not Err In Declining To Credit The
Conclusions Of Plaintiff’s Neurologist, Dr. Devere
Plaintiff argues that the ALJ erred because she did not
provide sufficient reasons for rejecting some of the conclusions
of Dr. Todd Devere.
(Opening Brief at p. 10, ECF No. 14).
On February 10, 2014, Dr. Devere completed a questionnaire
about Plaintiff’s physical limitations.
No. 12).
(AR at pp. 1679-84, ECF
Dr. Devere concluded that Plaintiff could lift up to
twenty pounds occasionally, sit for two hours, stand for fifteen
minutes, and walk for ten minutes without interruption in an
eight-hour workday.
(AR at p. 1680, ECF No. 12).
Dr. Devere
found that Plaintiff could perform manipulative activities
occasionally with her right arm and frequently with her left arm
and that Plaintiff could operate foot controls occasionally with
29
her right foot and frequently with her left foot.
(AR at p.
1681, ECF No. 12).
Dr. Devere’s findings that Plaintiff had some physical
limitations did not support his final conclusion that Plaintiff
“is not able to work.”
(AR at p. 1684, ECF No. 12).
The ALJ afforded some weight to Dr. Devere’s conclusions as
to the physical limitations of Plaintiff, specifically crediting
his determinations that use of her right extremities was limited
to occasional use.
(AR at pp. 39-40, ECF No. 12).
The ALJ
discredited Dr. Devere’s conclusion that Plaintiff was unable to
work at all because it was inconsistent with objective medical
evidence in the record.
Thomas, 278 F.3d at 957 (finding that
the ALJ is not required to accept the opinion of any physician,
including a treating physician, if that opinion is not supported
by clinical findings).
The objective clinical findings in the record demonstrated
that following Plaintiff’s discharge from the hospital on June
30, 2010, Plaintiff was stable, able to ambulate, and was alert
and oriented.
(AR at pp. 521, 995, ECF No. 12).
Follow-up
examinations in July 2010, August 2010, September 2010, December
2010, March 2011, and May 2011, demonstrated that Plaintiff had
continued improvement with consistent, stable and unassisted
gait, full muscle strength, intact reflexes, intact range of
motion, and largely intact coordination and cranial nerve
30
functioning.
(AR at pp. 38, 40, 1156, 1163-67, 1254, 1261, 1268,
1286-87, ECF No. 12).
Additional examinations in 2012 continued
to make objective findings that Plaintiff was improving and
stated that Plaintiff appeared well, alert, and oriented.
(AR at
pp. 1321, 1355-56, 1621, ECF No. 12).
Plaintiff’s surgeon found on examination in June 2011 that
Plaintiff’s June 2010 procedure had markedly improved her
conditions.
(AR at pp. 1623-24, ECF No. 12).
The State agency
medical consultants, Dr. Richey and Dr. Blakowski, found that
Plaintiff could perform light work with limited pushing and
pulling in the right upper extremity and limits to climbing,
stairs, balancing, and stooping.
(AR at pp. 106, 121, ECF No.
12).
The ALJ properly relied on the findings of the Plaintiff’s
surgeon and the State agency medical doctors which were based on
objective clinical findings.
Those findings supported the ALJ’s
rejection of the inconsistent conclusions asserted by Dr. Devere.
Hensley v. Colvin, 600 Fed. Appx. 526, 527 (9th Cir. 2015).
Dr. Devere’s finding in February 2014 that Plaintiff was
unable to work was inconsistent with his own objective clinical
findings made in August 2012.
In August 2012, Dr. Devere found
that Plaintiff had improvement in the conditions affecting her
spinal column, and he determined that her remaining symptoms,
such as headaches, were being properly treated with medication.
31
(AR at pp. 1634-36, ECF No. 12).
The ALJ did not err in declining to credit Dr. Devere’s
February 2014 conclusions that were inconsistent with objective
medical findings, including his own previous findings.
Tommasetti, 533 F.3d at 1041 (finding the ALJ properly rejected a
treating physician’s opinion regarding the claimant’s limitations
that “did not mesh with her objective data or history”).
The ALJ properly discounted Dr. Devere’s conclusions that
were based solely on the Plaintiff’s own subjective complaints.
The ALJ may discredit a treating physician’s opinion that is
premised solely on a claimant’s own report.
602-03.
Fair, 885 F.2d at
The ALJ may properly discredit Dr. Devere’s conclusions
concerning the persistence and severity of Plaintiff’s
limitations when they conflict with Plaintiff’s own testimony
about her participation in everyday activities.
Molina, 674 F.3d
at 1113 (citing Morgan, 169 F.3d at 600)).
C.
The ALJ Did Not Err In Declining To Credit The
Conclusions Of Plaintiff’s Primary Care Physician, Dr.
Fong
Plaintiff argues that the ALJ erred because she did not
provide sufficient reasons for rejecting some of the conclusions
of Dr. Carolyn Fong.
(Opening Brief at p. 18, ECF No. 14).
On February 13, 2014, Plaintiff’s primary care physician,
Dr. Carolyn Fong, wrote a letter as to Plaintiff’s physical
32
condition.
The entirety of the letter is as follows:
I saw and examined Mrs Kenda J Butler on 2/11/14. I
completely agree with Dr Todd Devere’s assessment that
this patient is disabled due to her medical conditions.
(AR at p. 1686, ECF No. 12).
An ALJ may discredit treating physicians’ opinions that are
conclusory, brief, and unsupported by the record as a whole or by
objective medical findings.
Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
Dr. Fong’s opinion is brief and conclusory.
There is no
basis to review much of Dr. Fong’s opinion as there are no
clinical findings, explanations, or objective data.
The ALJ did
not err in discreting Dr. Fong’s opinion because it was not
supported by findings of Dr. Fong or by the record as a whole.
(AR at p. 40, ECF No. 12).
The opinions of Dr. Devere and Dr. Fong that Plaintiff is
disabled and unable to work are inconsistent with the opinions of
Plaintiff’s surgeon, the State agency medical doctors, and the
objective medical findings in the record.
(AR at pp. 106, 121,
521, 995, 1156, 1286-87, 1163-67, 1254, 1268, 1287, 1321, 1355,
1621-24, ECF No. 12).
The ALJ did not err in rejecting the opinion of Dr. Fong to
the extent that it was based to a large extent on Plaintiff’s
self-reports that have been properly discounted as not credible.
Tommasetti, 533 F.3d at 1041.
33
The ALJ also properly declined to credit Dr. Fong’s February
2014 opinion to the extent it was inconsistent with her earlier
assessment of Plaintiff in March 2013.
In March 2013, Dr. Fong
issued a letter to Plaintiff stating that she was restricted from
driving at night.
(AR at p. 1677, ECF No. 12).
The March 2013
letter did not specify any additional limitations in Plaintiff’s
activities to suggest that she was completely disabled or unable
to work.
The ALJ properly reasoned that Dr. Fong’s opinion was worthy
of little weight because “within this time, Dr. Fong found the
claimant’s condition to have worsened considerably, although
there is little evidence in the record to support such worsening
and no evidence that Dr. Fong examined the claimant before she
issued her opinion.”
(AR at p. 40, ECF No. 12).
The ALJ did not err in declining to credit Dr. Fong’s
conclusion that Plaintiff was disabled.
Dean v. Comm’r of Soc.
Sec., 504 Fed. Appx. 563, 565 (9th Cir. 2013) (finding that the
ALJ properly rejected the treating doctor’s findings because he
submitted a standardized form rather than objective medical
findings.
The Doctor appeared to rely primarily on subjective
reporting and his findings were inconsistent with those of the
State’s physicians).
The Court has reviewed the entire record and finds that
there is substantial evidence to support the ALJ’s decision.
34
CONCLUSION
The Commissioner of Social Security Administration’s
decision is AFFIRMED.
The Clerk of Court is Ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: November 16, 2016, Honolulu, Hawaii.
___________________________________
Helen Gillmor
United States District Judge
Kenda J. Butler v. Carolyn W. Colvin, Social Security
Administration Commissioner; Civ. No. 15-00466 HG-KSC; ORDER
AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER
35
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