Handy v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joy Handy, No. CV-19-04545-PHX-JZB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the Commissioner of Social Security Administration’s (“Commissioner” 16 or “SSA”) denial of Plaintiff’s application for Title XVI Disability Insurance Benefits 17 under the Social Security Act (“Act”). Plaintiff filed a Complaint seeking judicial review 18 of the decision (Doc. 1), and the Court now considers Plaintiff’s Opening Brief (Doc. 13, 19 “Pl. Br.”), the Commissioner’s Response (Doc. 14, “Def. Br.”), Plaintiff’s Reply (Doc. 15, 20 “Reply”), and the Administrative Record (Doc. 12, “R.”). For the following reasons, the 21 Court will affirm the decision. 22 I. BACKGROUND 23 Plaintiff filed her application on May 6, 2015, alleging disability beginning July 15, 24 2011. (R. at 18.) The application was denied at the initial and reconsideration levels, and a 25 hearing before an administrative law judge (“ALJ”) was held on October 23, 2017. (Id.) 26 The ALJ issued a decision finding Plaintiff not disabled. (Id. at 18–32.) The Appeals 27 Council upheld the decision and thus it became final. (Id. at 1–3.) 28 Therein, the ALJ found Plaintiff had severe impairments of degenerative disc 1 disease, peripheral neuropathy, myofascial pain syndrome, chronic pain syndrome, carpal 2 tunnel syndrome, obesity, venous insufficiency, migraines, and occipital neuralgia. (Id. at 3 20.) Despite these impairments, the ALJ found 4 [Plaintiff] has the residual functional capacity [“RFC”] to perform light work 5 as defined in 20 CFR 416.97(b) except occasional climbing of ramps and 6 stairs; no climbing ladders, ropes, or scaffolds; frequent balancing; occasional stooping, kneeling, crouching, and crawling; and frequent 7 handling and fingering. She should avoid concentrated exposure to extreme 8 cold, extreme heat, wetness, humidity, and vibration. She is limited to moderate noise and no hazards. 9 10 (Id. at 25.) Based on this RFC and testimony from a vocational expert (“VE”), the ALJ 11 found Plaintiff was capable of performing past relevant work as a Waitress and Restaurant 12 Cashier and was therefore not “disabled.” (Id. at 31.) 13 II. LEGAL STANDARD 14 The Court may affirm, modify, or reverse the decision of the Commissioner, with 15 or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). In reviewing the 16 decision, the Court only reviews issues raised by the party challenging the decision. See 17 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); Kim v. 18 Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (“[The Court] will not ordinarily consider matters 19 on appeal that are not specifically and distinctly argued in appellant’s opening brief.”). The 20 Court may set aside the decision only when it is not supported by “substantial evidence” 21 or is based on legal error. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 22 “Substantial evidence means more than a mere scintilla, but less than a preponderance. It 23 means such relevant evidence as a reasonable mind might accept as adequate to support a 24 conclusion.” Id. “Where evidence is susceptible to more than one rational interpretation, 25 the ALJ’s decision should be upheld.” Id. at 674–75. “Yet [the Court] must consider the 26 entire record as a whole, weighing both the evidence that supports and the evidence that 27 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a 28 specific quantum of supporting evidence.” Id. at 675. The Court reviews “only the reasons 1 provided by the ALJ in the disability determination and may not affirm the ALJ on a ground 2 upon which [the ALJ] did not rely.” Id. The Court “may not reverse an ALJ’s decision on 3 account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 4 An error is harmless if it is “inconsequential to the ultimate nondisability determination,” 5 id. at 1122, or “‘if the [ALJ’s] path may reasonably be discerned,’ even if the [ALJ] 6 ‘explains [his or her] decision with less than ideal clarity,’” Treichler v. Comm’r of Soc. 7 Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Alaska Dep’t of Envtl. Conserv. v. EPA, 8 540 U.S. 461, 497 (U.S. 2004)). 9 In determining whether a claimant is “disabled,” the ALJ employs a five-step 10 sequential evaluation. 20 C.F.R. § 416.920(a)(4). In brief, the ALJ determines whether 11 the claimant: (1) is “doing substantial gainful activity”; (2) has a “severe” medically 12 determinable impairment or combination of impairments that has lasted more than 12 13 months; (3) has an impairment that “meets or equals” an impairment listed in appendix 1 14 of subpart P of 20 C.F.R. § 404; (4) can perform “past relevant work” based on his or her 15 RFC; and (5) “can make an adjustment to other work” based on his or her RFC, age, 16 education, and work experience. Id. The claimant bears the burden of proof at steps one 17 through four until it shifts to the ALJ at step five. Molina, 674 F.3d at 1110. 18 III. ANALYSIS 19 A. The ALJ Did Not Abuse Her Discretion In Declining To Reopen Plaintiff’s 20 Prior Application For Benefits. 21 Plaintiff’s first assignment of error is that the ALJ failed to provide “supporting 22 rationale” for her decision to not reopen Plaintiff’s prior application in violation of 23 Plaintiff’s due process rights and HALLEX I-2-9-10(A).1 (Pl. Br. at 14–15.) 24 The Commissioner’s regulations provide that: 25 26 A determination, revised determination, decision, or revision decision may 27 28 1 HALLEX refers to the Commissioner’s Hearings Appeals and Litigation Law Manual. (See Def. Br. at 7.) 1 be reopened– 2 (a) Within 12 months of the date of the notice of the initial determination, for 3 any reason; 4 (b) Within two years of the date of the notice of the initial determination if 5 we find good cause, as defined in § 416.1489, to reopen the case; or 6 (c) At any time if it was obtained by fraud or similar fault. 7 8 20 C.F.R. § 416.1488. “Because the SSA’s decision whether, for good cause shown, to 9 . . . reopen an earlier application is strictly discretionary, it is not final and thus not generally 10 reviewable by a district court.” Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) 11 (citations omitted). “An exception to this rule exists for ‘any colorable constitutional claim 12 of due process violation that implicates a due process right either to a meaningful 13 opportunity to be heard or to seek reconsideration of an adverse benefits determination.’” 14 Id. (citations omitted); see Califano v. Sanders, 430 U.S. 99, 107–09 (1977) (holding that 15 SSA’s refusal to reopen prior application is not reviewable absent constitutional challenge). 16 Any challenge to the Commissioner’s decision based on noncompliance with HALLEX is 17 not reviewable because “HALLEX does not have the force and effect of law” and is 18 therefore “not binding on the Commissioner.” Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 19 2000). 20 Here, Plaintiff filed a prior application on June 4, 2014, which was denied at the 21 initial level on September 18, 2014. (R. at 74.) Plaintiff did not appeal the denial. At the 22 hearing, she requested that this prior application be reopened. (Id. at 43.) She noted that 23 the present “application was filed within 12 months of the prior application.” (Id.) Plaintiff 24 maintained that the prior application could therefore be reopened for “any reason.” (Id. at 25 44.) Her “reason” was that she was not represented at the time of the prior application’s 26 pendency and denial. (Id. at 44–45.) The ALJ denied Plaintiff’s request, finding that “the 27 record, as discussed within this decision, does not establish a reason for revising the prior 28 determination.” (Id. at 18.) 1 The Court finds no abuse of discretion. First, Plaintiff’s citation to provisions of 2 HALLEX in support of her allegation are inapposite because the Court does not review 3 allegations of noncompliance with HALLEX. Second, Plaintiff fails to show any 4 “colorable” due process violation. At the hearing, Plaintiff apparently misread the pertinent 5 regulation which states that a prior determination (application) may be reopened “for any 6 reason” within “12 months of the date of the notice of the initial determination.” 20 C.F.R. 7 § 416.1488(a) (emphasis added). It also may be reopened “[w]ithin two years of the date 8 of the notice of the initial determination” for “good cause.” Id. § 416.1488(b). In either 9 case, the date of filing is irrelevant. Here, the key date–the date of the initial determination 10 for the prior application–is September 18, 2014. (R. at 74.) Plaintiff requested to reopen it 11 on October 23, 2017–over three years later. (Id. at 18.) Given this three-year difference, 12 the only basis for the ALJ to reopen the prior application was for evidence of “fraud or 13 similar fault.” Id. § 416.1488(c). Plaintiff makes no allegation or showing of such, either 14 at the hearing or in her briefs here. Therefore, the Court finds no abuse of discretion in the 15 ALJ’s refusal to reopen the prior application. 16 B. The ALJ Properly Discounted Plaintiff’s Subjective Allegations Of 17 Disabling Symptoms And Limitations. 18 Plaintiff’s second assignment of error is that the ALJ improperly discounted her 19 pain and symptom testimony. (Pl. Br. at 15–17.) 20 Absent evidence of malingering, an ALJ may only discount a claimant’s statements 21 for reasons that are “specific, clear and convincing” and supported by substantial evidence. 22 Molina, 674 F.3d at 1112. General findings are not sufficient. Holohan v. Massanari, 246 23 F.3d 1195, 1208 (9th Cir. 2001). Rather, “the ALJ must specifically identify the testimony 24 she or he finds not to be credible and must explain what evidence undermines the 25 testimony.” Id. “Although the ALJ’s analysis need not be extensive, the ALJ must provide 26 some reasoning in order for [the Court] to meaningfully determine whether the ALJ’s 27 conclusions were supported by substantial evidence.” Treichler, 775 F.3d at 1099. 28 “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 1 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 2 instance, the ALJ may consider “‘whether the claimant engages in daily activities 3 inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 4 1028, 1040 (9th Cir. 2007)). “Even where those activities suggest some difficulty 5 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 6 that they contradict claims of a totally debilitating impairment,” Id. at 1113, or where they 7 suggest that “later claims about the severity of [the] limitations were exaggerated,” 8 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). Additionally, the ALJ may consider 9 “whether the claimant takes medication or undergoes other treatment for the symptoms.” 10 Lingenfelter, 504 F.3d at 1040. “Impairments that can be controlled effectively with 11 medication are not disabling.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 12 (9th Cir. 2006). Lastly, “[a]lthough [a] lack of medical evidence cannot form the sole basis 13 for discounting pain testimony, it is a factor that the ALJ can consider in [her] credibility 14 analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 15 Here, the ALJ found that Plaintiff’s statements were not “entirely consistent with 16 the medical evidence and other evidence.” (R. at 26.) Specifically, the ALJ found a lack of 17 clinical evidence to support the degree of impairment alleged, effectiveness of medication 18 and injection treatments in relieving symptoms, and inconsistencies between Plaintiff’s 19 allegations and reported activity levels and between her statements. (Id. at 29–30.) 20 First, Plaintiff’s alleges that the ALJ erred in considering her daily activities. (Pl. 21 Br. at 15.) With respect to Plaintiff’s activities, the ALJ found: 22 Even where the claimant has described daily activities that are fairly limited, 23 two factors weigh against considering these allegations to be strong evidence 24 in favor of finding the claimant disabled. First, allegedly limited daily activities cannot be objectively verified with any reasonable degree of 25 certainty. Secondly, even if the claimant’s daily activities are truly as limited 26 as alleged, it is difficult to attribute that degree of limitation to the claimant’s medical condition, as opposed to other reasons, in the view of the relatively 27 weak medical evidence and other factors discussed in this decision. Overall, 28 the claimants reported limited daily activities are considered to be outweighed by the other factors discussed in this decision. 1 2 (R. at 30.) Plaintiff maintains that the fact that her limited daily activities cannot be 3 “objectively verified” is not a specific reason to reject her testimony. (Pl. Br. at 15.) 4 Plaintiff is not entirely correct. While a lack of corroborative objective evidence is 5 insufficient on its own to discount a claimant’s allegations, it nonetheless remains a factor 6 in the credibility analysis–which Plaintiff concedes. (Id.) Thus, so long as the ALJ did not 7 rely solely on a lack of objective medical evidence to support the degree of limitation 8 alleged–which she did not–this reason was not relied on in error. 9 Additionally, Plaintiff alleges that the ALJ erred by failing to explain how her daily 10 activities are transferable to the work setting. (Id. at 17.) However, the ALJ is not required 11 to show that a claimant’s activities are transferable to the work setting in order to discount 12 her testimony on their account. Rather, an ALJ may consider whether a claimant engages 13 in daily activities that are simply inconsistent with her allegations or that suggest that they 14 are exaggerated, irrespective of whether the activities are transferable to a work setting. 15 Molina, 674 F.3d at 1112; Valentine, 574 F.3d at 694. Here, the ALJ did just that. For 16 instance, the ALJ noted that records mentioned Plaintiff “‘[going] everywhere on a bike’ 17 in mid-2014,” which Plaintiff does not dispute. (R. at 29 (citing R. at 315).) Plaintiff does, 18 however, dispute the ALJ’s reliance on an inconsistency between statements she made 19 regarding her walking ability. (Pl. Br. at 17.) As noted by the ALJ, Plaintiff stated in her 20 application that she was unable to walk more than 10-15 feet without stopping to rest. (R. 21 at 26 (citing R. at 222).) However, as further noted by the ALJ, Plaintiff told a physical 22 therapist that she “is unable to walk 200 feet without [her] walker” and has difficulty 23 walking 400 yards even with her walker.2 (Id. at 858, 29.) The mere inconsistency between 24 these statements, irrespective of the truth of the matter asserted, was a valid reason to 25 2 The ALJ found that there was “no evidence to support the functional need of a walker.” 26 (Id. at 29.) Moreover, Plaintiff did not indicate her walker was prescribed in her application. (Id. at 223.) See generally SSR 96-9p (explaining that for an ALJ to “find that 27 a hand-held assistive device is medically required, there must be medical documentation 28 establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed”). 1 discount Plaintiff’s allegations. See Molina, 674 F.3d at 1112. 2 Next, Plaintiff alleges that the ALJ’s characterization of the medical evidence as 3 “weak” and citation to “other factors,” as detailed supra, were “vague” and not specific 4 reasons to reject her testimony. (Pl. Br. at 15.) Indeed, the ALJ’s statement, when read in 5 isolation, is arguably vague. However, when read in context of the entire decision, it is not 6 as the ALJ provided a thorough discussion and analysis of the pertinent medical evidence 7 earlier in the decision. (See R. at 26–29.) Relatedly, Plaintiff alleges that the ALJ “failed 8 to identify which testimony she deemed incredible as a result of normal muscle tone and 9 strength.” (Pl. Br. at 16.) Plaintiff maintains that “normal muscle tone and strength is 10 entirely unrelated to headaches, migraines, stiffness, leg cramps, general pain, swelling, 11 drowsiness, and a cloudy mind and, thus, couldn’t provide a basis for the ALJ to discount 12 [her] testimony concerning those impairments.” (Id.) Indeed, while these findings may not 13 be relevant to every alleged impairment, they are relevant to Plaintiff’s assertion that she 14 is unable to lift more than 5-10 pounds, as noted by the ALJ. (Id. at 26 (citing id. at 222).) 15 The Court is able to reasonably discern the ALJ’s path because the decision contains a 16 thorough discussion of the pertinent testimony and evidence. (See R. at 26–30.) The Court 17 does not find harmful error merely because the ALJ did not meticulously and proximately 18 link such conflicting testimony and evidence. See Alaska Dep’t of Envtl. Conserv., 540 19 U.S. at 497; Treichler, 775 F.3d at 1099. 20 Plaintiff next disputes the ALJ’s interpretation of certain medical evidence. First, 21 Plaintiff disputes the ALJ’s reliance on “a 2016 antinuclear antibody comprehensive panel 22 report” to discredit her complaints related to “chronic myofascial pain, peripheral 23 neuropathy and pain medications.” (Pl. Br. at 16 (citing R. at 26).) The error, according to 24 Plaintiff, is that the “ALJ provides no information of how the testing is related to these 25 conditions.” (Id.) The Court agrees. The record indicates that this panel was ordered by 26 Plaintiff’s neurologist who diagnosed Plaintiff with cervicogenic migraines (“likely 27 occipital neuralgia”) and carpal tunnel syndrome in her right arm. (R. at 1588, 1591–93.) 28 However, the record contains only the raw data from the panel and contains no physician’s 1 interpretation of the data. (Id. at 1595–98.) The ALJ’s lay interpretation that the findings 2 from the panel somehow diminished Plaintiff’s allegations regarding the aforementioned 3 conditions is not evidence. Absent a medical interpretation of the data and explanation of 4 its clinical significance in the record, the ALJ was not entitled to rely on it to discount 5 Plaintiff’s allegations. 6 Second, Plaintiff disputes the ALJ’s reliance on “normal exam findings during an 7 emergency room visit for uncontrolled headaches.” (Pl. Br. at 16.) As an initial matter, the 8 ALJ discusses multiple visits to the emergency room for headaches so it is not clear which 9 one Plaintiff is referring to.3 (R. at 28–29 (citing records).) The ALJ noted that while 10 Plaintiff “went to the emergency room at times with increased symptoms,” she “was treated 11 routinely with medication.” (Id. at 28–29 (citing records).) She further noted that at these 12 visits Plaintiff “exhibited full neck range of motion, normal back range of motion, normal 13 strength, normal gait, and normal coordination.” (Id. at 29.) The ALJ notes one visit in 14 particular where Plaintiff presented with a headache that “reportedly had lasted a week or 15 more” but admitted to taking nothing to relieve it. (Id. at 28 (citing id. at 298–304).) The 16 Court finds no error. 17 Third, Plaintiff disputes the ALJ’s reliance on “normal exam findings during . . . an 18 October 20, 2014 appointment where her pain was so severe that she was scheduled for 19 bilateral trigger point injections into the superior trapezius muscles and occipitalis 20 muscles.” (Pl. Br. at 16 (citing R. at 400).) In citing to records from this appointment, the 21 ALJ found that Plaintiff had “adequate pain relief” from her medication regimen. (R. at 28 22 (citing R. at 400–01 [duplicates at 589–90]).) As noted by Plaintiff, she was, in fact, 23 scheduled for bilateral trigger point injections at this appointment. (Id. at 400, 589.) After 24 receiving the injections, Plaintiff reported “effective but transient relief.” (Id. at 396, 581.) 25 However, in considering the record as a whole, Plaintiff frequently reported that her pain 26 was well-controlled with medication, which included Percocet. (Id. at 593, 589, 541, 553, 27 3 In fact, the record contains numerous visits to the emergency department for complaints 28 of headaches, including some not discussed by the ALJ. (See R. at 298, 479, 486, 618, 724, 729, 735, 742, 748, 754, 760.) 549, 1191, 1161, 1157.) The ALJ noted that Plaintiff “was pleased with her overall function 2|| and quality of life.” (Ud. at 27 (citing id. at 1064).) Additionally, the ALJ noted that while || Plaintiff underwent “routine and conservative” treatment, she also underwent “therapeutic 4|| injections, which would normally weigh somewhat in [her] favor.” (/d. at 29.) However, || the ALJ found that these injections were “generally successful” in controlling □□□□□□□□□□□ 6 || symptoms. (/d.) Indeed, Plaintiff reported relief from injection therapy. Ud. at 1087, 573, 561.) Thus, the ALJ did not err in discounting Plaintiff's pain testimony on account that 8 || she experienced relief of her symptoms through use of medication and injection treatment. 9 Lastly, Plaintiff disputes the ALJ’s reliance on the fact that she only had one 10 || recommendation for surgery. (Pl. Br. at 17.) The Court agrees with Plaintiff that “[i]t is 11 |} unclear why a person would need more than one recommendation for surgery or how that || detracts from the severity of [her] pain.” Ud.) While an ALJ may consider if a claimant 13 || undergoes treatment, the Court is unaware of any authority that says that the fact that a claimant only has one recommendation for surgery is a clear and convincing reason for 15 || discounting the claimant’s allegations. 16 In conclusion, the Court finds that Plaintiff's allegations were properly discounted 17 || because the ALJ proffered specific, clear, and convincing reasons supported by substantial 18 || evidence for doing so. Any error by the ALJ in relying on reasons the Court found not to be valid is harmless. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 20 |} 2009). 21 IT IS THEREFORE ORDERED that the decision of the Commissioner of Social 22|| Security is affirmed. 23 IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly 24 || and terminate this case. 25 Dated this 24th day of September, 2020. 26 a7 ol Soy □ 28 United States Magistrate Judge -10- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28