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Silva v. Commissioner of Social Security Administration

United States District Court, D. Arizona

July 9, 2018

Dolores M Silva, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          David G. Campbell United States District Judge.

         Plaintiff Dolores Silva seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits and supplemental security income under §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because Plaintiff has not shown that the administrative law judge's (“ALJ”) decision is unsupported by substantial evidence or based on reversible legal error, the Court will affirm.

         I. Background.

         Plaintiff is a 60 year old female who previously worked as a housekeeping cleaner. A.R. 52, 209. Plaintiff applied for disability insurance benefits and supplemental security income on November 19, 2013, alleging disability beginning November 2, 2013. A.R. 209-25. On February 24, 2016, Plaintiff testified at a hearing before the ALJ. A.R. 42-54. A vocational expert also testified. Id. On March 24, 2016, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the Social Security Act. A.R. 20-35. This became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review on May 12, 2017. A.R. 1-3.

         II. Legal Standard.

         The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the Court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. (internal citations and quotation marks omitted). As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Id.

         The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the Court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

         III. The ALJ's Five-Step Evaluation Process.

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, the claimant must show that (1) she is not currently working, (2) she has a severe impairment, and (3) this impairment meets or equals a listed impairment or (4) her residual functional capacity (“RFC”) prevents her performance of any past relevant work. If the claimant meets her burden through step three, the Commissioner must find her disabled. If the inquiry proceeds to step four and the claimant shows that she is incapable of performing past relevant work, the Commissioner must show in the fifth step that the claimant is capable of other work suitable for her RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).

         At step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2018, and has not engaged in substantial gainful activity since November 2, 2013. A.R. 23. At step two, the ALJ found that Plaintiff has the following severe impairments: diabetes mellitus, obesity, and degenerative disc disease of the lumbar spine. Id. The ALJ also noted the following medically determinable but non-severe impairments: hypertension, hyperlipidemia, gastroesophageal reflux disease, dizziness, vertigo, diabetic retinopathy, depressive disorder, and anxiety disorder. A.R. 23-26. At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals a listed impairment. A.R. 26. At step four, the ALJ found that Plaintiff has the RFC to perform the full range of light work and is able to perform her past relevant work as a housekeeping cleaner. A.R. 27-34.

         IV. Analysis.

         Plaintiff argues that the ALJ erred by rejecting her symptom testimony, the opinion of her treating physician, Dr. Kenneth Smith, and the opinion of an agency examining physician, Dr. Melanie Alarcio. Doc. 16.

         A. Plaintiff's Symptom Testimony.

         In evaluating a claimant's symptom testimony, the ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the alleged symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). The claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptoms she has alleged, only that it could reasonably have caused some degree of the symptoms. Id. Second, if there is no evidence of malingering, the ALJ may reject the claimant's symptom testimony only by giving specific, clear, and convincing reasons. Id. at 1015. “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Id. (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

         Plaintiff testified that she stopped working in November 2013 because she “was unable to stand the pain on [her] back.” A.R. 46. She testified that she has pain in her back, leg, waist, and neck. A.R. 49. She stated that she takes two medications, which calm the pain “to a certain point, ” and she stopped going to physical therapy because she “was in a lot of pain afterwards.” A.R. 46-47. Her impairments cause dizziness, and she has found no treatment that helps the dizziness. A.R. 47-48. On a typical day she gets up, grooms herself, tries to prepare breakfast and do some chores, and then rests until she can stand up and try to do something again. A.R. 48. She checks her blood-sugar level three times per day, and the level is never steady. Id. She can sit “maybe about half an hour” at a time, stand “[m]aybe 30, 40 minutes” at a time, and lift “probably under ten pounds.” A.R. 49-50. She uses a cane “[a]ll the time” and needs to lie down for about 30 to 40 minutes after she sits or stands for a long time. A.R. 50-51. Plaintiff takes medication for her depression, anxiety, and panic attacks, “feel[s] like doing nothing, ” sometimes sleeps a lot or has trouble sleeping, loses her appetite, and does not “feel the desire to continue living.” A.R. 50-51.

         In function reports from January and June 2014, Plaintiff reported dizziness, fatigue, trouble sleeping, and pain in her arms, hips, and back. A.R. 266-74, 294-302. In January she stated that she prepares “sandwiches, rice, beans, complete meals” on a daily basis with someone's help and it takes about 30 minutes, but in June she reported that she does not prepare her own meals. A.R. 268, 296. Plaintiff also reported in January that someone accompanies her to shop for groceries once or twice per week for about an hour, but in June she reported that she does not shop and leaves the house only for doctors' appointments. A.R. 269-70, 297. She sews, watches TV, and reads, but sewing has become difficult due to arm pain. A.R. 270, 298. She reported that she can walk about one block before needing to rest for about 20 minutes. A.R. 271, 299. She did not describe using a cane in either report. A.R. 272, 300.

         The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely credible. A.R. 28. She provided the following reasons: (1) the medical evidence does not “fully support” Plaintiff's allegations, (2) certain medical evidence is inconsistent with Plaintiff's allegations, (3) Plaintiff's own inconsistent statements cast doubt on her credibility, (4) Plaintiff received “conservative and routine” treatment, (5) Plaintiff “exerted possible poor effort” at the consultative examination, and (6) Plaintiff failed to attend physical therapy to improve her condition. A.R. 28-30. The ALJ did not find that Plaintiff was malingering.

         Plaintiff argues that the ALJ's reasons do not satisfy the clear-and-convincing standard because each reason is either legally insufficient, overly general, or based on speculation. Doc. 16 at 20-23.

         1. The ALJ's First and Second Reasons.

         The Ninth Circuit has made clear that if “the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Garrison v. Colvin, 759 F.3d 995, 1014 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (a claimant need not produce “objective medical evidence of the pain or fatigue itself, or the severity thereof”)). But an ALJ may rely on contradictory medical evidence to discredit symptom testimony, so long as she “make[s] specific findings justifying [her] decision.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). “‘General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.'” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).

         The ALJ's statement that the medical evidence does not “fully support” the alleged severity of Plaintiff's symptoms is not a clear and convincing reason to discredit Plaintiff's testimony. Burnell, 947 F.2d at 345. Plaintiff asserts that the ALJ made this statement and “then just launched into a discussion of the medical evidence, but with no tie-in between any specific evidence and any particular symptom.” Doc. 16 at 22. The Court does not entirely agree with this characterization.

         With regard to Plaintiff's testimony concerning her back pain, the ALJ cited lumbosacral x-rays from February 2011 showing only “mild” degenerative changes in the lumbar spine (citing A.R. 367, 569), a March 2011 CT scan of the lumbar spine showing no canal stenosis (citing A.R. 369), a February 2011 bone density study showing no abnormalities (A.R. 569), a doctor's note in February 2011 that Plaintiff's joints “revealed mild compression tenderness about the MCP, PIP, and wrists” (citing A.R. 569), and a February 2015 MRI showing “mild left paracentral L4-5 disc protrusion slightly effacing the L5 nerve root on the left, right lateral L5-S1 disc protrusion with some foraminal stenosis, and prominent facet arthropathy at ¶ 5-S1” (citing A.R. 730). A.R. 28. The ALJ concluded that although Plaintiff “is likely to have some pain and restrictions, there is no evidence of any severe stenosis, nerve root impingement, or other significant findings or foraminal narrowing to cause the pain and restrictions alleged.” A.R. 28. But this is the type of showing that a claimant is not required to make. As noted above, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptoms she has alleged, only that it could reasonably have caused some degree of the symptoms. See Garrison, 759 F.3d at 1014. The evidence cited by the ALJ does not appear to contradict any of Plaintiff's testimony, particularly where most of the records predate Plaintiff's alleged disability onset date. More importantly, the ALJ's discussion fails to provide the type of specific explanation necessary to support such a finding. See Brown-Hunter, 806 F.3d at 493. This is not a clear and convincing reason to reject Plaintiff's testimony regarding her back pain.

         The ALJ discredited Plaintiff's “allegations of complete prostration” based on “multiple clinical examinations” showing no “neurological deficits, weakness, or other manifestations, which would be supportive of” the allegations. A.R. 29 (citing A.R. 535, 629, 647, 685). But the ALJ had already determined that Plaintiff's medically determinable impairments could reasonably produce this symptom. Plaintiff therefore was not required to substantiate the severity of the symptom with medical evidence. See Garrison, 759 F.3d at 1014. Review of Plaintiff's testimony and the records cited by the ALJ does not reveal any obvious contradictions, and the ALJ's opinion fails to identify any. The opinion simply lists medical evidence that is “supportive” of the RFC determination without specifically identifying any inconsistency between something Plaintiff asserted and something in the records. A.R. 29. This is not a clear and convincing reason to reject Plaintiff's testimony regarding fatigue and weakness.

         With respect to Plaintiff's dizziness, the ALJ concluded that it was “not substantially supported by the record[, ]” and the record “did not include substantive information regarding [her] dizziness outside of [her] subjective complaints.” A.R. 29. The ALJ cited a March 2013 duplex scan showing “no evidence of carotid stenosis or occlusion[, ] and vertebral flow was antegrade.” A.R. 29. The ALJ did not explain why this finding - from months before Plaintiff's disability onset date -contradicts Plaintiff's claim of dizziness.

         The ALJ also cited a number of records which she viewed as inconsistent with Plaintiff's reports of dizziness. A.R. 29 (citing A.R. 547, 549, 621, 634, 640, 646, 653). Two of these records are notes from July 2014 visits with Dr. Jasjeet Kaur, each containing the following statement: “Denies, . . . orthostatic dizziness.” A.R. 547, 549. The remaining records, issued between June 2015 and December 2015, come from visits with Dr. Smith and state that Plaintiff was “negative” for dizziness (A.R. 621, 634, 640, 646, 653), although Dr. Smith's treatment notes from other visits during 2013, 2014, and 2015 state that Plaintiff was “positive” for dizziness. (A.R. 425, 433, 438, 461, 466, 628, 678, 684, 690, 701, 707, 718, 724). The Court finds that although there is conflicting evidence regarding Plaintiff's dizziness, the ALJ gave sufficient reasons for discrediting this symptom because the ALJ “identif[ied] what testimony [was] not credible and what evidence undermines” the testimony. Brown-Hunter, 806 F.3d at 493. The fact that Plaintiff denied dizziness at multiple appointments during the relevant period is a sufficiently clear and convincing reason to discredit Plaintiff's testimony that she gets dizzy every time she moves her head.

         The ALJ's decision next states that “the record shows that [Plaintiff] had no significant limitations from” her diabetes. A.R. 29. In support, the decision cites 121 pages of Dr. Smith's treatment notes as evidence that “[a]t many points in the record [Plaintiff's] diabetes was note[d] as being stable[.]” Id. (citing 619-739). The decision also notes that Plaintiff was not always compliant with her medications and treatment, and was “noted as needing further attention to her diabetic control.” Id. (citing A.R. 534, 570). And Plaintiff “denied neuropathy and foot complications” - common symptoms of diabetes - at a December 2015 appointment with Dr. Kaur. Id. (citing A.R. 740). The ALJ acknowledged that Plaintiff's obesity “likely exacerbates her pain, ” but found that “there is no evidence it is of the severity so as to preclude work.” A.R. 30. Although this discussion identifies specific medical evidence in the record, it provides no link between the evidence and Plaintiff's testimony. It is unclear which testimony the ALJ believed was inconsistent with these records. This is not a clear and convincing reason.

         The ALJ rejected Plaintiff's testimony that she needed a cane because “there is not consistent evidence showing” the cane is necessary. A.R. 30. The decision notes that Plaintiff did not report cane use in her function reports, Plaintiff “was observed to have normal gait without the use of any assistive device” at a psychological evaluation two months before she requested the cane, and treatment records consistently state that Plaintiff had normal gait. Id. (citing A.R. 300, 494, 535, 580-84, 711, 714, 385-451, 529-53, 619-739). Plaintiff argues that normal gait is not inconsistent with the need for a cane because “a cane could reasonably be used for other reasons, such as weakness in the legs, or lack of feeling in the feet.” Doc. 16 at 22. But Plaintiff does not cite support in the record for this proposition, and Plaintiff failed to explain this at the hearing. The ALJ identified a specific inconsistency between Plaintiff's testimony and evidence in the record. The ALJ did not err in rejecting this testimony.

         In sum, the Court finds that the ALJ's first and second reasons are insufficient to the extent they simply summarize medical evidence or require Plaintiff to substantiate the severity of her symptoms. But the ALJ adequately identified two clear inconsistencies between Plaintiff's testimony and medical evidence regarding dizziness and cane use. This is a clear and convincing reason.

         2. The ALJ's Third Reason.

         The ALJ found that “the information provided by [Plaintiff] generally may not be entirely reliable” because of two inconsistencies in her statements. A.R. 30. First, Plaintiff stated at the hearing that she does not babysit, but at a July 2014 examination with agency psychologist Jose Abreu, she stated: “I take care of my little grandchild as much as I can[.]” A.R. 46, 499. Second, notes from a February 2015 visit with Dr. Smith indicate that Plaintiff was planning on “leaving the country, ” but Plaintiff testified at the hearing that she can only sit for about half an hour at a time. A.R. 49, 682. The ALJ reasoned that these statements are inconsistent because “any international travel would require extended sitting.” A.R. 30.

         With respect to babysitting, Plaintiff argues that the inconsistency is attributable to the two years that separate the statements. Doc. 16 at 22. With respect to international travel, Plaintiff argues that there “is no evidence as to what travel actually occurred, or, if so, what accommodations were used[.]” Id. at 22-23. Plaintiff also argues more generally that ALJ credibility determinations should not “delve into wide-ranging scrutiny of the claimant's character and apparent truthfulness.” Id. at 21 (quoting Trevizo v. Berryhill, 871 F.3d 664, 679 n.5 (9th Cir. 2017)). The Court agrees. The fact that Plaintiff reported trying to take care of her grandchild over two years before the hearing does not necessarily contradict Plaintiff's statement at the hearing that she does not babysit. And an indication that Plaintiff was leaving the country, without any information as to whether she in fact left the ...


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