James v. Berryhill

Filing 14

ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION AND DISMISSING THE CASE WITH PREJUDICE signed by U.S. District Judge John C Coughenour. (TH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RACHEL JAMES,
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Case No. C18-5015 JCC

Plaintiff,
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v.
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NANCY A. BERRYHILL, Deputy
11 Commissioner of Social Security for Operations,
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ORDER AFFIRMING THE
COMMISSIONER’S FINAL
DECISION AND DISMISSING THE
CASE WITH PREJUDICE

Defendant.
Plaintiff seeks review of the denial of her application for Disability Insurance Benefits.

14 Plaintiff contends the ALJ erred by rejecting her testimony and her treating physician’s opinions.
15 Dkt. 9. As discussed below, the Court AFFIRMS the Commissioner’s final decision and
16 DISMISSES the case with prejudice.
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BACKGROUND

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Plaintiff is currently 42 years old, has a high school education, and has worked as a

19 customer service representative, sales clerk, groomer, and waitress. Administrative Record (AR)
20 31. On January 28, 2015, plaintiff applied for benefits. AR 62. She alleges disability as of July
21 1, 2014. AR 20. Plaintiff’s applications were denied initially and on reconsideration. AR 61,
22 90. After the ALJ conducted a hearing on July 25, 2016, the ALJ issued a decision finding
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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 plaintiff not disabled. AR 37, 20-32.
THE ALJ’S DECISION

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Utilizing the five-step disability evaluation process, 1 the ALJ found:

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Step one: Plaintiff has not worked at the level of substantial gainful activity since the
alleged onset date of July 1, 2014, although she worked part time through November
2014.

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Step two: Plaintiff has the following severe impairments: pervasive depressive disorder,
generalized anxiety disorder, obesity, trapezius strain, synovial cyst, degenerative disc
disease, and asthma.

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Step three: These impairments do not meet or equal the requirements of a listed
impairment. 2

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Residual Functional Capacity (RFC): Plaintiff can perform sedentary work, lifting 10
pounds occasionally and less than 10 pounds frequently. She can stand and/or walk for
two hours and sit for six hours in an eight-hour workday. She can occasionally climb
ramps and stairs, and never climb ladders, ropes, or scaffolds. She can occasionally
stoop, crouch, and kneel, and never crawl. She must avoid concentrated exposure to
extreme cold, vibration, pulmonary irritants, and hazards. She can perform unskilled and
semi-skilled work, consistent with a specific vocational preparation (SVP) level up to 4.
She can tolerate occasional contact with coworkers and the public.

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Step four: Plaintiff cannot perform past relevant work.

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Step five: As there are jobs that exist in significant numbers in the national economy that
plaintiff can perform, plaintiff is not disabled.

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AR 22-32. The Appeals Council denied plaintiff’s request for review, making the ALJ’s
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decision the Commissioner’s final decision. AR 1. 3
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DISCUSSION
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This Court may set aside the Commissioner’s denial of social security benefits only if the
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ALJ’s decision is based on legal error or not supported by substantial evidence in the record as a
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20 C.F.R. § 404.1520.
20 C.F.R. Part 404, Subpart P. Appendix 1.
23 3 The rest of the procedural history is not relevant to the outcome of the case and is thus omitted.
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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of an ALJ’s findings must
2 be supported by substantial evidence. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998).
3 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant
4 evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v.
5 Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
6 The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and
7 resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
8 Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh
9 the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278
10 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one interpretation,
11 the Commissioner’s interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676,
12 680-81 (9th Cir. 2005).
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Plaintiff’s Symptom Testimony

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Plaintiff testified that she has back pain, hip pain, right leg numbness, and sharp pains in

15 her lower abdomen. AR 44, 48. She can only do something for about 15-20 minutes and then
16 needs to lie down. AR 45-46. She can sit for 15-20 minutes before her leg starts to go numb,
17 and after another 30 minutes the pain is too great to continue sitting. AR 47. About five to eight
18 days per month, she has severe pain and depression and barely leaves her bedroom. AR 49. On
19 other days, she can do some household chores but “tend[s] to leave things undone.” AR 51.
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Where, as here, an ALJ determines a claimant has presented objective medical evidence

21 establishing underlying impairments that could cause the symptoms alleged, and there is no
22 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to
23 symptom severity by providing “specific, clear, and convincing” reasons. Trevizo, 871 F.3d at
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 678. The ALJ discounted plaintiff’s testimony because she sought little treatment and her
2 treatment consisted of “mostly routine and conservative care for [her] conditions.” AR 28. The
3 ALJ also discounted plaintiff’s testimony based on her activity level and a lack of objective
4 evidence supporting her allegations. AR 28.
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An “unexplained or inadequately explained failure” to seek treatment or follow

Limited Treatment

7 prescribed treatment can be a valid reason to discount a claimant’s testimony, but an ALJ must
8 consider a claimant’s proffered reasons. Trevizo, 871 F.3d at 679-80. The ALJ cited a lack of
9 treatment records between summer 2015 and summer 2016. AR 28. The parties agree that
10 plaintiff had an approximately 7-month gap in treatment between October 2015 and May 2016.
11 AR 533; Dkt. 9 at 12, Dkt. 12 at 6. Plaintiff lists several treatment records between February
12 2014 and May 2016 and asserts that the ALJ’s conclusion was “not reasonable.” Dkt. 13 at 6.
13 Plaintiff’s interpretation is that her treatment records, generally showing one to three months
14 between visits, are consistent with her alleged symptoms. However, the ALJ’s interpretation that
15 the infrequency of treatment belied her allegations is reasonable. The Court must uphold the
16 ALJ’s rational interpretation. See Burch, 400 F.3d at 680-81.
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The ALJ also discounted plaintiff’s testimony because she did not seek more than

18 conservative care. AR 28. Plaintiff argues that her doctor recommended that she receive
19 “injections” for back pain, and injections are not conservative treatment. Dkt. 9 at 13 (citing
20 Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017)). Plaintiff’s neurosurgeon discussed
21 steroid injections as early as March 2014. AR 453. Plaintiff’s alleged onset date is July 2014.
22 AR 20. She received anesthetic injections in May 2015. AR 488. Plaintiff testified at the July
23 2016 hearing that she had not received any injections yet. AR 45. It is unclear whether she was
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 distinguishing between anesthetic and steroid injections. Regardless, at most plaintiff received
2 one anesthetic injection in the two years between her alleged onset date and the hearing.
3 Plaintiff argues that her insurance company determined whether she could receive injections.
4 Dkt. 13 at 6. But plaintiff points to no evidence that her insurance company delayed by two
5 years. Although other interpretations are possible, the record as it stands provides substantial
6 evidence to support the ALJ’s conclusion that plaintiff did not seek more than conservative care.
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The Court concludes that the failure to seek more than limited and conservative treatment

8 provided a clear and convincing reason to discount plaintiff’s testimony.
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Lack of Objective Evidence

“Although lack of medical evidence cannot form the sole basis for discounting pain

11 testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at
12 681. The ALJ cited treatment records stating that X-rays from April 2015 showed only “minor
13 degenerative disease” and “otherwise unremarkable” results to support his conclusion that
14 “imaging studies [were] not particularly alarming….” AR 28 (citing AR 487). Plaintiff does not
15 address the X-ray findings, but argues that the ALJ’s conclusion improperly substituted his own
16 medical judgment for her doctor’s judgment, because her doctor stated that a February 2014 MRI
17 showed “concerns” in the lower lumbar region. Dkt. 9 at 12 (quoting AR 516). Plaintiff
18 mischaracterizes the ALJ’s statement, because the ALJ cited a doctor’s interpretation of the X19 rays, not his own interpretation. Moreover, mere “concerns” support, rather than undermine, the
20 ALJ’s conclusion.
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Plaintiff also contests the ALJ’s conclusion that the objective medical evidence does not

22 support her symptom testimony by citing treatment records documenting symptoms such as back
23 tenderness and/or decreased range of motion. Dkt. 9 at 12 (citing AR 423, 428, 461-65, 480,
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 487, 493-94). Other treatment notes in the same time period, however, document normal
2 findings and include notations such as “no tenderness” (AR 427) or ability to “ambulate without
3 significant pain concerns” (AR 432, 446). See also AR 484 (“minimal discomfort”). Looking at
4 the record as a whole, the Court concludes that substantial evidence supports the ALJ’s
5 assessment that the alleged severity of plaintiff’s symptoms “is not entirely supported by the
6 objective record….” AR 28.
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3.

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Daily activities can be a clear and convincing reason to discount a claimant’s testimony if

Plaintiff’s Activities

9 they meet the threshold for transferable work skills or contradict her testimony. Orn v. Astrue,
10 495 F.3d 625, 639 (9th Cir. 2007). The ALJ cited plaintiff’s “work activity” that continued for
11 approximately four or five months after her alleged onset date. AR 29. The ALJ also cited
12 plaintiff’s care for her husband, who is disabled, and “increased responsibility at home” in late
13 2015. AR 29.
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Defendant argues that plaintiff failed to challenge the ALJ’s reason in her opening brief

15 and has thus waived the argument. Dkt. 12 at 7. Plaintiff argues in her reply brief that, because
16 she challenged the ALJ’s overall assessment of her testimony in her opening brief, in her reply
17 brief she is entitled to raise a specific new ground for her challenge. Dkt. 13 at 7. The Court
18 need not resolve this issue because, even if the Court both agreed that plaintiff did not waive the
19 argument and agreed that the ALJ erred, the error would be harmless. The ALJ provided at least
20 one clear and convincing reason to discount plaintiff’s testimony, namely the failure to seek
21 more than limited and conservative treatment, and further supported his assessment by citing a
22 lack of objective medical evidence. Even if the ALJ provided additional reasons that were
23 erroneous, the ALJ did not err by discounting plaintiff’s testimony. See Carmickle v. Comm’r,
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (erroneous reasons were harmless error
2 where remaining valid reasons were not “relatively minor”).
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Ryan Christopher Johnson, D.O.

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A treating physician’s opinions are entitled to greater weight than the opinions of an

5 examining or nonexamining physician. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
6 An ALJ may only reject the uncontradicted opinion of a treating doctor by giving “clear and
7 convincing” reasons. Revels, 874 F.3d at 654. Even if a treating doctor’s opinion is contradicted
8 by another doctor’s opinion, an ALJ may only reject it by providing “specific and legitimate”
9 reasons. Id. The ALJ can meet this standard by providing “a detailed and thorough summary of
10 the facts and conflicting clinical evidence, stating his interpretation thereof, and making
11 findings.” Id. (citation omitted).
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Dr. Johnson’s opinions are in the form of answers to a questionnaire created by plaintiff’s

13 attorney. AR 500-501. He agreed with a diagnosis of chronic lumbar pain with radiculopathy,
14 and that plaintiff’s condition and MRI findings were consistent with her self-reports of severe
15 pain and lying down most of the day two days per week. AR 500. Dr. Johnson opined that
16 plaintiff could stand/walk less than two hours per workday, writing that she “can stand for ~5
17 minutes before needing to sit due to pain concern.” AR 501. He opined that she could sit less
18 than two hours, writing that she “can sit for about 20-30 minutes and then has to lay down due to
19 pain.” Id. Dr. Johnson opined that plaintiff needed to recline 6-8 hours per workday and would
20 need 30-60 minute breaks in addition to normal breaks. Id. He agreed that if she had attempted
21 sedentary full time work since December 2014, her medical impairments would have resulting in
22 missing three or more days of work per month. Id.
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The ALJ gave Dr. Johnson’s opinions “limited weight” because they were unsupported
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 by the “limited medical records” and his own findings, and inconsistent with plaintiff’s activities.
2 AR 30.
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An ALJ may reject an opinion that is “brief, conclusory, and inadequately supported by

Medical Evidence

5 clinical findings.” Thomas, 278 F.3d at 957. And a “physician’s opinions can be discredited
6 based on contradictions between the opinion and the physician’s own notes.” Buck v. Berryhill,
7 869 F.3d 1040, 1050 (9th Cir. 2017). The ALJ permissibly concluded that Dr. Johnson’s
8 opinions were brief and conclusory, and that his treatment records did not adequately support
9 such extreme limitations. Plaintiff cites the same records discussed above showing symptoms
10 such as tenderness and decreased range of motion. See Dkt. 9 at 5-8. Again, plaintiff’s
11 interpretation of the records may be rational. However, the ALJ’s interpretation, that Dr.
12 Johnson’s extreme sitting and standing limitations were unsupported by such mild findings, is
13 rational as well. The Court must affirm the ALJ’s rational interpretation. Burch, 400 F.3d at
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2.

Plaintiff’s Activities

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An ALJ may reject opined limitations that conflict with a claimant’s daily activities.

17 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Rollins v. Massanari, 261 F.3d 853, 856
18 (9th Cir. 2001). The ALJ cited plaintiff’s work serving as a caregiver for her mother, caring for
19 her disabled husband, and “responsibility at home….” AR 29. The first two do not suffice
20 because plaintiff testified her work ended due to her high levels of absenteeism (AR 43), and the
21 ALJ identified no evidence showing any specific tasks plaintiff performed in caring for her
22 husband (who had a “mental” disability, see AR 42). See Trevizo, 871 F.3d at 676 (ALJ erred by
23 discounting doctor’s opinion based on plaintiff’s activities where “the record provides no details
ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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1 as to what [claimant’s] regular childcare activities involved”). Plaintiff’s household activities,
2 however, provide substantial evidence undermining Dr. Johnson’s opinions. Plaintiff reported in
3 March 2015 that she does the grocery shopping, cooks, runs errands, and sometimes works in the
4 yard, cleans, and washes dishes and laundry. AR 436. In October 2015 plaintiff reported even
5 further “increased responsibility issues at home.” AR 531. The ALJ reasonably concluded that
6 it would be difficult to accomplish these activities if standing were limited to five minutes and
7 sitting were limited to 30 minutes at a time, as Dr. Johnson opined. Plaintiff cites her testimony
8 that she was only able to assist with household chores a “little bit” but tended to leave things
9 undone. AR 51. However, the ALJ permissibly discounted her testimony, as discussed above.
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The Court concludes the ALJ did not err by discounting Dr. Johnson’s opinions.
CONCLUSION

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For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this

13 case is DISMISSED with prejudice.
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DATED this 5th day of October, 2018.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER AFFIRMING THE
COMMISSIONER’S FINAL DECISION AND
DISMISSING THE CASE WITH PREJUDICE
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