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Jackson v. Berryhill

United States District Court, D. Arizona

April 18, 2018

STORMI R. JACKSON, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE.

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Stormi R. Jackson has timely filed her opening brief, [1] to which defendant, Nancy A. Berryhill, the Deputy Commissioner of Social Security for Operations, has responded.[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On June 18, 2010, plaintiff filed an application for disability benefits under Title II of the Social Security Act. Plaintiff alleges that she became disabled on February 16, 2010. Plaintiff alleges that she is disabled because of chronic pain, back pain, arthritis, depression, anxiety, insomnia, ADD, sciatica, degenerative disc disease, irritable bowel syndrome, bladder incontinence, spinal-foraminal stenosis, disc bulging with annular tears, gastritis, flank and abdominal pain, numbness/weakness in both hands, numbness in feet, memory loss, and dizzy spells. Plaintiff's claim was denied initially and on reconsideration. Plaintiff requested an administrative hearing, which was held on December 1, 2011. On December 20, 2011, the ALJ denied plaintiff's claim. Plaintiff sought review by the Appeals Council. On July 2, 2013, the Appeals Council sent plaintiff's claim back to the ALJ to reconsider plaintiff's RFC. Upon remand from the Appeals Council, the ALJ held an administrative hearing on February 25, 2014. A supplemental hearing was held on August 6, 2014. On October 8, 2014, the ALJ again denied plaintiff's claim. Plaintiff sought review by the Appeals Council. On May 1, 2015, the Appeals Council remanded plaintiff's claim to a different ALJ to once again reconsider plaintiff's RFC. After an administrative hearing on January 20, 2016, the ALJ again denied plaintiff's claim. On June 27, 2017, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's March 1, 2016 decision the final decision of defendant. On August 20, 2017, plaintiff commenced this action in which she asks the court to find that she is entitled to disability benefits.

         General Background

         Plaintiff was born on May 5, 1973. Plaintiff was 44 years old at the time of the January 20, 2016 hearing. Plaintiff has a GED. Plaintiff lives with her mother. She has three children, all of whom are now adults. Plaintiff's past relevant work includes work as a medical assistant and a receptionist.

         The ALJ's March 1, 2016 Decision

         The ALJ first determined that plaintiff “last met the insured status requirements of the Social Security Act on September 30, 2015.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff had “not engage[d] in substantial gainful activity during the period from her alleged onset date of February 16, 2010 through her date last insured of September 30, 2015. . . .”[5]

         At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the following severe impairments: status post lumbar fusion; sacroilitis; lumbago; degenerative changes of the cervical spine; unspecified myalgia/myositis; history of attention deficit disorder; major depressive disorder; generalized anxiety disorder; and somatoform disorder. . . .”[6]

         At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. . . .”[7]The ALJ considered Listing 1.04 (disorders of the spine), Listing 12.02 (neurocognitive disorders), Listing 12.04 (depressive, bipolar and related disorders), Listing 12.06 (anxiety and obsessive-compulsive disorders), and Listing 12.07 (somatic symptom and related disorders).[8] The ALJ considered the “paragraph B” criteria and found that plaintiff had mild limitation of activities of daily living, moderate limitations in social functioning; moderate difficulties with regard to concentration, persistence, or pace; and no episodes of decompensation.[9] The ALJ also found that the “paragraph C” criteria for Listings 12.02, 12.04, and 12.06 had not been met.[10] As part of his step three findings, the ALJ found that “fibromyalgia is not a medically determinable impairment” in this case “because neither of the two sets of criteria for diagnosing fibromyalgia described in sections II.A and II.B of SSR 12-2p is met.”[11]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found

that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(c). Specifically, the claimant can lift and carry 20 pounds, occasionally and ten pounds, frequently; stand or walk for six hours out of an eight-hour workday; sit for six hours out of an eight-hour workday; occasionally climb stairs and ramps, but never climb ladders, ropes or scaffolds; occasionally stoop, kneel, crouch, and crawl; and occasionally reach overhead bilaterally. The claimant should avoid even moderate exposure to extreme cold, unprotected heights, and moving and dangerous machinery. The claimant is able to understand, remember and carryout simple instructions and non-detailed tasks. The claimant is precluded from work in a setting that includes constant/regular contact with the general public or more than infrequent handling of customer complaints.[12]

         The ALJ found plaintiff's pain and symptom statements less than credible because they were inconsistent with her activities of daily living, because they were inconsistent with the objective medical evidence, because she received unemployment benefits during the relevant time, because her back condition was “generally stable through 2013[, ]” because the treatment for her back pain was “generally conservative and non-aggressive through August of 2014[, ]” and because plaintiff's back pain improved with treatment.[13]

         The ALJ gave significant weight[14] to the opinions of Dr. Dickstein and Dr. Dodson.[15]The ALJ gave little weight to Dr. Vogt's opinions.[16] The ALJ gave little weight to PA Smith's opinion.[17] The ALJ rejected[18] the opinions of Dr. Thompson.[19] The ALJ gave significant weight to Dr. Dalton's opinion.[20] The ALJ also gave significant weight[21] to the opinions of Dr. Penner[22] and Dr. Garland.[23] The ALJ gave little weight to the opinions of Dr. Huddleston and Dr. Novie.[24] The ALJ considered the lay testimony of Kayli Carrillo, Joy Judd, Gary Enmon, and Steven Lemley but did not give significant weight to any of this testimony.[25]

         At step four, the ALJ found that “[t]hrough the date last insured, the claimant was unable to perform any past relevant work. . . .”[26]

         At step five, the ALJ found that “[t]hrough the date[] last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed. . . .”[27] These jobs included housekeeping cleaner, merchandise marker, and routing clerk.[28]

         Thus, the ALJ concluded that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from February 16, 2010, the alleged onset date, through September 30, 2015, the date last insured. . . .”[29]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred in rejecting Dr. Vogt's opinion. Dr. Vogt was one of plaintiff's primary care physicians. On January 14, 2014, Dr. Vogt opined that plaintiff could sit for 2 hours, stand for 2 hours, and walk for 2 hours; could frequently lift/carry up to 5 pounds; could use her upper extremities for simple grasping but no pushing/pulling; could not use her feet for repetitive movements; could occasionally bend; could not squat, crawl, climb or reach; could not be around unprotected heights and moving machinery; could not be exposed to marked changes in temperature, humidity, dust, fumes, or gases; and could not drive automotive equipment.[30] Dr. Vogt also opined that plaintiff had severe pain and fatigue which would likely cause interruption of her daily or work routine resulting in her being off task more than 50% of the time.[31]

         Dr. Vogt was a treating physician. “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “[I]f the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Vogt's opinion was contradicted by the opinions of Dr. Dickstein and Dr. Dodson. Thus, the ALJ was required to give specific and legitimate reasons for rejecting his opinion.

         The ALJ rejected Dr. Vogt's opinion because it was “brief, conclusory, and inadequately supported by clinical findings[;]” because it was “inconsistent with the objective medical evidence as a whole[;]” and because it was “inconsistent with the claimant's admitted activities of daily living. . . .”[32] Plaintiff argues that these were not legitimate reasons. As for Dr. Vogt's opinion being brief and conclusory, this was apparently based on the fact that Dr. Vogt used a check-the-box form to express his opinion. This was not a legitimate reason. As the Ninth Circuit has observed, “there is no authority that a ‘check-the-box' form is any less reliable than any other type of form; indeed, agency physicians routinely use these types of forms to assess the intensity, persistence, or limiting effects of impairments.” Trevizo v. Berryhill, 871 F.3d 664, 677-78 n.4 (9th Cir. 2017).

         The second reason the ALJ gave was that Dr. Vogt's opinion was not supported by clinical findings. Although each of Dr. Vogt's physical exams of plaintiff was unremarkable, [33] there are other clinical findings in the record that support his opinion. Dr. Narwani managed plaintiff's pain, and his treatment notes, which are extensive, show that he regularly found that plaintiff had pain throughout her spine with limited range of motion, spasms, positive straight leg raising tests, and palpable trigger points throughout her spine.[34]

         The second reason given by the ALJ for rejecting Dr. Vogt's opinion was not legitimate.

         The third reason given by the ALJ was that Dr. Vogt's opinion was inconsistent with the objective medical evidence as a whole, “which shows that the claimant's pain was adequately controlled with pain management.”[35] This was not a legitimate reason as evidenced by Dr. Narwani's October 31, 2013 summary, in which he stated that

[o]ver the course of the last three years, [plaintiff] has had multiple interventional therapies including injection therapy such as lumbar epidural steroid injections, lumbar radio-frequency rhizotomies, thoracic epidural steroid injections, and lumbar facet joint injections. Although she did receive some short-term symptomatic relief with these procedures, unfortunately the relief is not long lasting. She continues to require opiate pain medications on a regular basis to remain somewhat functional, and to continue with her activities of daily living for which she still needs help from her family. Also, I have tried several different types of medications, which she has either failed due to side-effects, ineffectiveness, or not insurance-covered.[36]

         The fourth reason given by the ALJ was that Dr. Vogt's opinion was inconsistent with plaintiff's reported daily activities. In rejecting a treating physician's opinion, the ALJ is required to “set[] out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'” Trevizo, 871 F.3d at 675 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ's only discussion of plaintiff's daily activities was at step three. There, the ALJ noted that “[e]xamination notes indicated that the claimant was independent in . . . her personal hygiene tasks[, ]” that “claimant was able to do light housekeeping and clean up after herself[, ]” and that “the claimant was able to maintain her medical appointments with pain management and physical therapy on a consistent basis.”[37] Although this is hardly a detailed and thorough summary of the facts, it is also not inconsistent with Dr. Vogt's opinion. The ALJ described limited daily activities, activities that a person with the limitations opined by Dr. Vogt could reasonably do. The fourth reason given by the ALJ for rejecting Dr. Vogt's opinion was not legitimate.

         In sum, the ALJ erred in giving Dr. Vogt's opinion little weight. None of the reasons the ALJ gave for rejecting Dr. Vogt's opinion were legitimate.

         Plaintiff next argues that the ALJ erred as to PA Smith's opinion. On November 28, 2011, PA Smith opined that plaintiff could sit for 2 hours; could stand for 2 hours; could walk for 2 hours; could frequently lift/carry up to 5 pounds; had no limits as to simple grasping but could not push/pull or do fine manipulation; could not use her feet for repetitive movements; could occasionally bend; could not squat, crawl, climb, or reach; could not be around unprotected heights and moving machinery; could not be exposed to marked changes in temperature, humidity, dust, fumes, and gases; and could not drive automotive equipment.[38] PA Smith also opined that plaintiff had severe fatigue that would “likely cause interruption of daily or work routine resulting in being off task more than 50% of the time.”[39]

         “For claims filed before March 27, 2017, physician assistants are not entitled to the same deference as acceptable medical sources.” Sesco v. Comm'r of Social Security Admin., No. CIV-16-03391-PHX-MHB, 2018 WL 1324824, at *2 (D. Ariz. March 15, 2018) (citing 20 C.F.R. § 404.1527(f)). Physician assistants are considered “other sources” and “[t]he ALJ may discount testimony from . . . other sources if the ALJ gives germane reasons as to each source.” Id.

         The ALJ rejected PA Smith's opinion for the same reasons the ALJ rejected Dr. Vogt's opinion.[40] As discussed above, none of the reasons the ALJ gave for rejecting Dr. Vogt's opinion were legitimate. Thus, the ALJ also erred to PA Smith's opinion.

         Plaintiff next argues that the ALJ erred as to the opinions of Drs. Dalton and Penner. The ALJ gave significant weight to the opinions of Dr. Dalton and Dr. Penner.[41] Dr. Dalton, who was an examining source, opined that plaintiff was “likely to have mild to moderate difficulties sustaining concentration, performing activities within a schedule and completing a normal workday at a consistent pace.”[42] Dr. Penner, a non-examining source, opined that plaintiff was moderately limited in her ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace without an unreasonable number and length of rest periods.[43]

         Plaintiff argues that the ALJ's RFC failed to include any limitations related to sustaining concentration, performing activities within a schedule, performing at a consistent pace, or completing a normal workweek or workday. All the ALJ included in his RFC was that plaintiff “is able to understand, remember, and carryout simple instructions and non-detailed tasks.”[44] Plaintiff argues that this limitation does not address the limitations as to concentration and pace found by Dr. Dalton and Dr. Penner. Because the ALJ accepted that she had moderate difficulties with maintaining concentration, persistence, or pace, plaintiff argues that the ALJ had to include such limitations in her RFC. Plaintiff argues that limiting her to simple work or simple tasks was not sufficient.

         The ALJ did not err as to the opinions of Drs. Dalton and Penner. This case is analogous to Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). In Stubbs- Danielson, Dr. McCollum, an examining source, had found that Stubbs-Danielson had “good persistence, but a slow pace in thought and action” and he “observed that Stubbs-Danielson could follow three-step instructions.” Id. at 1171. Dr. Eather, a non-examining source, noted Dr. McCollum's observation about Stubbs-Danielson's slow pace and opined that she “could perform simple work without public contact.” Id. The “ALJ determined that Stubbs-Danielson ‘retain[ed] the residual functional capacity to perform simple, routine, repetitive sedentary work, requiring no interaction with the public.'” Id. “Stubbs-Danielson argue[d that] the RFC finding d[id] not capture the deficiency in pace and other mental limitations identified by” Dr. McCollum and Dr. Eather. Id. at 1173. The court rejected this argument. Id. The court explained that while Dr. McCollum had found that Stubbs-Danielson had moderate limitations in terms of pace, he

did not assess whether Stubbs-Danielson could perform unskilled work on a sustained basis. Dr. Eather's report did. Dr. Eather's report, which also identified “a slow pace, both in thinking & actions” and several moderate limitations in other mental areas, ultimately concluded Stubbs-Danielson retained the ability to “carry out simple tasks as evidenced by her ability to do housework, shopping, work on hobbies, cooking and reading.”

Id. The court concluded that “[t]he ALJ translated Stubbs-Danielson's condition, including the pace and mental limitations, into the only concrete restrictions available to him-Dr. Eather's recommended restriction to ‘simple tasks.'” Id. at 1174.

         Similarly here, Dr. Dalton found that plaintiff had moderate limitations as to concentration and pace. But, Dr. Dalton did not translate these limitations into concrete work restrictions. Dr. Penner, who relied on Dr. Dalton's examination of plaintiff, [45] also found that plaintiff was moderately limited as to concentration and pace but ultimately concluded that plaintiff was “able to meet the basic mental demands of unskilled work in a low social context. . . .”[46] The ALJ translated plaintiff's limitations as to concentration and pace into the only concrete limitations available to him, Dr. Penner's recommended restriction to unskilled work in a low social context.

         Plaintiff next argues that the ALJ erred as to the lay testimony of Gary Enmon, Kayli Carrillo, Steven Lemley, and Jory Judd. On July 14, 2010, Gary Enmon, plaintiff's friend, reported that plaintiff needed assistance dressing, doing her hair, and using the toilet, [47] that sometimes she needed reminders to shower and wash up, [48]and that she could make simple meals and do some laundry, cleaning, and yard work.[49] Enmon reported that plaintiff has problems getting along with people because she lacks patience “and gets frustrated with anxiety attacks.”[50] Enmon reported that any physical activity plaintiff does is “short-lived, ”[51]that she has trouble finishing what she starts, needs help with written instructions, and tends to forget spoken instructions.[52] On June 12, 2010, Enmon reported that plaintiff's “back cause[s] her pain all the time[.] She can not move for hours at a time daily. She has neck pain on a daily basis. She has loss of strength in hands and arm numbness regularly. Pain[] shoots from her buttocks to her leg daily[.]”[53] On March 25, 2012, Enmon wrote that plaintiff

came to stay with me and my mother in Alaska due to her medical conditions. . . . While she was here she was sleeping 14 hours plus per day. My mother would cook her meals daily as it is very painful for her to do herself. When I would come home from work I would help her shower for this is also very difficult for her. . . . I witnessed her in much pain day and night. Her medications don't even help her. I would have to force her to get up and go outside and get some fresh air with minimal exercise[.[54]

         On September 1, 2013, Kayli Carrillo, plaintiff's oldest child, wrote that

[t]here are many times I need to bring my mom down to stay with me and my family when there is no one else around that can help her because she cannot take care of herself or her own needs. She is not able to stand long enough to cook a meal, shop for food, bathing is difficult. There are many days she cannot even get out of bed or turn over without assistance. I'll try to get her out to get fresh air and some exercise. When she does get out it usually ends up making [our] trip or activity . . . short for my mother can only be out for a very short period of time before she is in tears from her pain. . . .[55]

         On November 12, 2013, Steven Lemley, plaintiff's friend, wrote:

Ever since I have known [plaintiff] she has had trouble with her back. . . . She is in great pain all the time which is continuing to get worse over all the years I have known her. Stormi was finally diagnosed with fibromyalgia a few years [ago]. When she has fl[ares] of this, which is often[, ] it increases her chronic pain severely. . . . Stormi can't enjoy life for [she] is hardly able to leave the house, enjoy her children and grandbaby. She has lost many friends and seems to be in a depressed state most of the time. She is in need of assistance with daily chores, and personal hygiene. . . .[56]

         On December 30, 2015, Joy Judd, plaintiff's aunt, wrote that in

[t]he past 7-8 years I saw an extreme personality change. [Plaintiff] has always been a happy, willing, hard working woman who has been “there” for everyone and all of a sudden, her sunny disposition and logical look on life changed. She can barely walk from one place to the next without extreme pain and a lot of anger in her tone of voice. The personality changes from constant pain, the lack of mobility and inability to do anything without resting a lot has taken its toll on her and everyone else. I see her trying to do things but the tears and pain in her face really hurt to watch.[57]

         The ALJ considered this testimony but declined to give any of it significant weight.[58]

         “‘[I]n order to discount competent lay witness testimony, the ALJ must give reasons that are germane to each witness.'” Rounds v. Comm'r Social Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)).

         First, the ALJ discounted the lay testimony because these individuals “are not medically trained to make exacting observations as to dates, frequencies, types and degrees of medical signs and symptoms, or of the frequency or intensity of unusual moods or mannerisms[.]”[59] Defendant concedes that this was not a proper reason.[60]

         Second, the ALJ discounted the lay testimony because of the witnesses' “personal relationships as . . . family and friends” of plaintiff.[61] But, an ALJ may not reject lay testimony merely because the witness has a personal relationship with the claimant. Valentine v. Comm'r Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).

         Third, the ALJ did not give significant weight to this testimony because it was “not consistent with the preponderance of the opinions and observations of the medical doctors in this case.”[62] But, an ALJ cannot “discredit . . . lay testimony” because it is “not supported by medical evidence in the record.” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). “The fact that lay testimony . . . may offer a different perspective than medical records alone is precisely why such evidence is valuable at a hearing.” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).

         In sum, the ALJ erred as to the lay testimony. None of the reasons the ALJ gave for rejecting this testimony were proper.

         Finally, plaintiff argues that the ALJ erred in finding her pain and ...


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