Leza v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Olga Leza, No. CV-20-01066-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Olga Leza’s appeal from the Commissioner of 16 the Social Security Administration’s (SSA) denial of social security disability benefits. The 17 appeal is fully briefed (Doc. 14, Doc. 15, Doc. 18), and the Court now rules. 18 I. BACKGROUND 19 a. Factual Overview 20 Plaintiff was 59 years old at the time of her hearing. (AR 42). She has a high school 21 education and past relevant work experience as a bank teller. (AR 188). Plaintiff filed her 22 social security disability claim on April 20, 2016, alleging disabilities beginning on 23 November 7, 2014, including hypertension (high blood pressure), difficulty standing and 24 walking, and severe exhaustion. (AR 14, 17, 186). An ALJ denied Plaintiff’s claim on 25 February 8, 2019. (AR 25). The SSA Appeals Counsel denied a request for review of that 26 decision and adopted the ALJ’s decision as the agency’s final decision. (AR 1). 27 b. The SSA’s Five-Step Evaluation Process 28 To qualify for social security benefits, a claimant must show she “is under a 1 disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically 2 determinable physical or mental impairment that prevents her from engaging “in any 3 substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process 4 for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). 5 Each step is potentially dispositive. See id. § 404.1520(a)(4). 6 At the first step, the ALJ determines whether the claimant is “doing substantial 7 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 8 gainful activity is work activity that is both “substantial,” involving “significant physical 9 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 10 At the second step, the ALJ considers the medical severity of the claimant’s 11 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 12 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 13 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 14 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 15 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 16 At the third step, the ALJ determines whether the claimant’s impairment or 17 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 18 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 19 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 20 functional capacity” (RFC). Id. § 404.1520(a)(4). The RFC represents the most a claimant 21 “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the claimant’s 22 RFC, the ALJ will consider the claimant’s “impairment(s), and any related symptoms, such 23 as pain, [that] may cause physical and mental limitations that affect what [the claimant] 24 can do in a work setting.” Id. 25 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 26 perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the 27 claimant’s RFC with the physical and mental demands of the claimant’s past relevant work. 28 Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find 1 that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 2 At the fifth and final step, the ALJ determines whether—considering the claimant’s 3 RFC, age, education, and work experience—she “can make an adjustment to other work.” 4 Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other 5 work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make 6 an adjustment to other work, then the claimant is disabled. Id. 7 c. The ALJ’s Application of the Factors 8 Here, at the first step, the ALJ concluded that Plaintiff had not engaged in substantial 9 gainful activity since the alleged onset date of her disability. (AR 17). 10 At the second step, the ALJ determined that Plaintiff’s hypertension, chronic kidney 11 disease, congestive heart failure, ventricular tachycardia, mild cervical spondylosis, 12 obstructive sleep apnea, irritable bowel syndrome (IBS), and obesity constituted severe 13 impairments under 20 C.F.R. 404.1520(c). (AR 17). 14 At the third step, the ALJ determined that Plaintiff’s impairments did not meet the 15 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 16 (AR 19). After evaluating Plaintiff’s RFC, the ALJ concluded that Plaintiff could perform 17 light work as defined in 20 C.F.R. 404.1567(b) “except [Plaintiff] can lift and carry 20 18 pounds occasionally, 10 pounds frequently, stand and walk for 6 hours in an 8-hour day, 19 and sit for 6 hours in an 8-hour day.” (AR 19). The ALJ also found that Plaintiff can 20 occasionally climb ramps or stairs and frequently balance, stoop, kneel crouch, and crawl. 21 (AR 19). 22 At the fourth step, the ALJ concluded that Plaintiff is able to complete past relevant 23 work as a bank teller and, accordingly, concluded that Plaintiff has not been under a 24 disability since the alleged onset date. (AR 24–25). 25 II. LEGAL STANDARD 26 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 27 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 28 “Substantial evidence means . . . such relevant evidence as a reasonable mind might accept 1 as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 2 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). 3 On review, the Court “must consider the entire record as a whole, weighing both the 4 evidence that supports and the evidence that detracts from the [ALJ’s] conclusion, and may 5 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting 6 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). The ALJ, not this Court, draws 7 inferences, resolves conflicts in medical testimony, and determines credibility. See 8 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 9 1453 (9th Cir. 1984). Thus, the Court must affirm even when “the evidence admits of more 10 than one rational interpretation.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 11 Court “review[s] only the reasons provided by the ALJ in the disability determination and 12 may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 13 1010. 14 III. DISCUSSION 15 Plaintiff argues that the ALJ erred by affording insufficient weight to the opinions 16 of her medical treatment providers and her subjective symptom testimony. (Doc. 14 at 1). 17 The Court addresses each in turn. 18 a. Medical Opinions 19 Plaintiff first argues the ALJ erred by affording “little weight” to the opinions of Dr. 20 Salvatore Gillette, D.O.; Dr. Judith Hunt, M.D.; Dr. J.M. Morgan, M.D.; and Family Nurse 21 Practitioner Lynne Vigil, who treated Plaintiff, and more weight to the opinions of state 22 agency reviewing physicians. (Id. at 13–18). Drs. Gillette, Hunt, and Morgan opined that 23 Plaintiff is limited to performing less than sedentary work due to her medical condition. 24 The weight that a particular opinion is afforded is based on who is giving that 25 opinion. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). “Generally, the opinion 26 of a treating physician must be given more weight than the opinion of an examining 27 physician, and the opinion of an examining physician must be afforded more weight than 28 the opinion of a reviewing physician.” Id.; see 20 C.F.R. 404.1527(c)(1)–(2). But a treating 1 physician’s opinion is not necessarily conclusive. Thomas v. Barnhart, 278 F.3d 947, 956 2 (9th Cir. 2002). If a treating physician’s opinion is contradicted by another physician’s 3 opinion, an ALJ may reject it “by providing specific and legitimate reasons that are 4 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 5 2005) (citation omitted). 6 Here, the ALJ afforded little weight to opinions of Plaintiff’s treatment providers, 7 reasoning as follows: 8 [T]heir assessments are excessively restrictive and quite conclusory, providing very little explanation of the evidence 9 relied on in forming that opinion. Their restrictions are not related to the objective findings in their examinations. 10 Furthermore, the opinions of these providers contrast sharply with their course of treatment, thus rendering them less 11 persuasive. . . . [T]reatment exams show normal findings with no joint or back pain or limitations from pain, no shortness of 12 breath on exam, and no cardiovascular findings to demonstrate restrictions. Although Ms. Vigil and Dr. Gillette offer no 13 function by function limitations,[1] there is no basis to suggest [Plaintiff] could not return to work when their examinations 14 show no restrictions. Dr. Hunt’s and Dr. Morgan’s medical source statements asserting that [Plaintiff] cannot stand and 15 walk more than two hours and is restricted to sitting for 3 or 4 hours is not supported by any medical evidence showing 16 limitations to sitting, standing or walking. Again, the vast majority of the records show normal findings in objective 17 examinations with no restrictions to movement. 18 (AR 23) (citations omitted). Further, the ALJ afforded “little weight” to FNP Vigil and Dr. 19 Gillette’s opinions that Plaintiff’s medical condition prevents her from returning to work 20 because “statements that a claimant is disabled, unable to work, can or cannot perform a 21 past job, meets a listing or the like are not medical opinions but are administrative findings, 22 requiring familiarity with the Regulations and legal standards.” (AR 23–24).2 23 1 Plaintiff argues the ALJ erred by failing to recognize that Dr. Gillette and FNP Vigil did 24 in fact complete a function-by-function analysis. (Doc. 14 at 16). The ALJ, however, cited their function-by-function assessments in a parenthetical citation earlier in the paragraph 25 when summarizing their opinions, and this indicates the ALJ considered the substance of the assessments. (AR 23, 888–90, 1217–19). But even if this does amount to error, the 26 Court finds that any error is harmless in light of the ALJ’s conclusion that “there is no basis to suggest [Plaintiff] could not return to work when their examinations show no 27 restrictions.” (AR 23). See Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). 2 This statement by the ALJ is consistent with 20 C.F.R. § 404.1527(d), which provides 28 that “[a] statement by a medical source that [a claimant is] ‘disabled’ or ‘unable to work’ does not mean that [the SSA] will determine that you are disabled” and that such statements 1 Here, the ALJ provided sufficiently specific and legitimate reasons for discounting 2 the providers’ opinions, and Plaintiff’s arguments to the contrary are unpersuasive. Plaintiff 3 argues that “it was error [for the ALJ to] to discount check-box questionnaires as 4 insufficient to support the treating source assessments.” (Doc 14 at 15). Although an ALJ 5 may not discount an opinion simply because it was provided on a check-the-box form, see 6 Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017), an ALJ “may take into account the 7 quality of the explanation when determining how much weight to give a medical opinion,” 8 Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020), and “may permissibly reject check-off 9 reports that do not contain any explanation of the bases of their conclusions,” id. (quoting 10 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). In his residual functional capacity 11 form, Dr. Gillette does not explain the basis for his opinion and supports his conclusions 12 by stating that “[Plaintiff’s] medical condition causes significant functional limitations as 13 described above.” (AR 863). Similarly, the form completed and signed by Dr. Hunt and 14 FNP Vigil provides that Plaintiff “has had persistent uncontrolled, symptomatic 15 hypertension” (AR 1219) and the form completed by Dr. Morgan provides that Plaintiff 16 had “very difficult to control hypertension [and] some symptoms from the med[ications]” 17 (AR 1145). The ALJ properly considered that these explanations did not justify the 18 limitations provided in the forms. 19 Further, although the record also includes letters from Dr. Gillette and FNP Vigil in 20 which they explain that they believe Plaintiff’s symptoms were caused by uncontrolled 21 hypertension (AR 859–60, 866), the ALJ properly considered the inconsistency between 22 the providers’ opinions and their treatment records. See Tommasetti v. Astrue, 533 F.3d 23 1035, 1041 (9th Cir. 2008) (noting that “incongruity between [a doctor’s opinion] and [his] 24 medical records” is a “specific and legitimate reason for rejecting” the doctor’s opinion). 25 Here, the ALJ noted that FNP Vigil’s examination notes between November 2015 and May 26 “are not medical opinions.” See, e.g., Aaron v. Astrue, No. 1:07CV01303-SMS, 2008 WL 27 4502268, at *7 (E.D. Cal. Oct. 7, 2008) (“It is true that the ultimate issue of disability vel non is reserved to the Commissioner because a determination of whether or not a claimant 28 meets the statutory definition of disability is a legal conclusion reserved to the Commissioner”). 1 2016 provide that Plaintiff had “no shortness of breath” and “[n]o back pain, neck pain, 2 joint pain, muscle pain, decreased range of motion,” and that these records were 3 inconsistent with shortness of breath and physical limitations FNP Vigil described in her 4 opinion (AR 323, 327, 331, 334, 340, 852, 866). 5 Dr. Gillette’s letter stated that he felt Plaintiff’s “symptoms are mostly related to 6 episodes of uncontrolled hypertension” and that she has had intolerances to medications. 7 (AR 854, 859). The ALJ, however, addressed Plaintiff’s medication intolerance and 8 determined that “the medical records state that the elevations in [Plaintiff’s] blood pressure 9 are episodic and able to be resolved, sometimes even without treatment.” (AR 20). The 10 ALJ further noted the providers’ opinions regarding Plaintiff’s limitations were not 11 supported by the objective medical evidence in the record. (AR 23). Batson v. Comm’r of 12 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may discredit treating 13 physicians’ opinions that are . . . unsupported by the record as a whole . . . or by objective 14 medical findings). Specifically, the ALJ noted that Plaintiff’s EKG and x-rays, ultrasounds, 15 and other imaging of her chest and abdomen returned normal results. (AR 20–21, 354, 371, 16 374, 390-91, 395–96). Considering these records, the ALJ concluded that “there is no basis 17 to suggest [Plaintiff] could not return to work when their examinations show no 18 restrictions.” (AR 23). The ALJ did not err by doing so. 19 Conversely, the ALJ afforded “great weight” to consultive examiner Kari Coelho, 20 Psy.D., who diagnosed Plaintiff with unspecified anxiety disorder, but opined that this 21 impairment is nonsevere and results in no more than minimal limitations. (AR 651–53). 22 The ALJ also afforded “great weight” to a reviewing physician because the physician’s 23 “assessment [wa]s generally consistent with [Plaintiff’s] subjective allegations and 24 supported by objective medical and clinical findings, treatment records, and examination 25 results” (AR 22–23, 63–77), which are appropriate criteria for the ALJ to consider. See 26 Zuniga v. Saul, 801 F. App’x 465, 467 (9th Cir. 2019) (affirming where an “ALJ rejected 27 the doctors’ opinions because they were not supported by multiple reviewing physicians or 28 objective medical evidence and relied uncritically on [the claimant’s] self-reporting of the 1 severity of her symptoms and limitations”). 2 b. Subjective Symptom Testimony 3 Next, Plaintiff argues the ALJ erred by discounting Plaintiff’s subjective symptom 4 testimony. (Doc. 14 at 18–24). 5 At her hearing, Plaintiff testified that she stopped working in November 2014 6 following a fall in her home. (AR 45). She testified that she gets headaches daily for two 7 hours at a time and sits or lays down until the headaches go away. (AR 48). She further 8 testified that she has chest and back pain daily and the pain ranges from mild to profound. 9 (AR 49–50). Additionally, Plaintiff testified that she performs limited housework and has 10 trouble lifting and carrying items. (AR 52–56). 11 The Ninth Circuit has established a two-step analysis for an ALJ to determine 12 whether to credit a claimant’s subjective symptom testimony. “First, the ALJ must 13 determine whether the claimant has presented objective medical evidence of an underlying 14 impairment which could reasonably be expected to produce the pain or other symptoms 15 alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison, 759 16 F.3d at 1014–15). If the claimant presents such evidence, the ALJ then evaluates the 17 claimant’s subjective complaints. See id. “In evaluating the credibility of pain testimony 18 after a claimant produces objective medical evidence of an underlying impairment, an ALJ 19 may not reject a claimant’s subjective complaints based solely on a lack of medical 20 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 21 676, 680 (9th Cir. 2005). Instead, an ALJ must provide “specific, clear, and convincing 22 reasons” for doing so. Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 23 At the first step, the ALJ determined that Plaintiff’s “medically determinable 24 impairments could reasonably be expected to cause some of the alleged symptoms.” (AR 25 20). At the second step, however, the ALJ concluded that Plaintiff’s “statements 26 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 27 consistent with the medical evidence and other evidence in the record.” (AR 20). 28 Plaintiff argues the ALJ applied an incorrect legal standard by requiring Plaintiff’s 1 subjective symptom testimony be “entirely consistent” with medical evidence. (Doc. 14 at 2 19). The Court, however, does not read the ALJ’s “not entirely consistent” language as 3 requiring the Plaintiff to fully corroborate her symptom testimony with objective medical 4 evidence; rather, the ALJ’s statement merely notes that the record contains conflicting 5 evidence as to the severity of Plaintiff’s symptoms. And although Plaintiff is not required 6 to provide medical evidence of the severity of her symptoms, see Bunnell v. Sullivan, 947 7 F.2d 341, 345 (9th Cir. 1991) (explaining “an adjudicator may not reject a Plaintiff’s 8 subjective complaints based solely on a lack of objective medical evidence to fully 9 corroborate the alleged severity of pain”), the ALJ may properly consider objective medical 10 evidence to assess Plaintiff’s credibility regarding the intensity and persistence of her 11 symptoms, see Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (pointing to medical 12 evidence as a relevant factor in determining severity of Plaintiff’s pain and disabling 13 effects). 14 Aside from her argument regarding the legal standard, Plaintiff also argues the ALJ 15 erred by failing to “tie-in the characterization of the medical record with any particular 16 symptom testimony.” (Doc. 14 at 19). See Burrell, 775 F.3d at 1138 (noting that courts 17 “may not take a general finding . . . and comb the administrative record to find specific 18 conflicts”). Here, however, the ALJ did more than state that Plaintiff’s testimony was 19 “inconsistent in some unspecified way with her testimony at the hearing.” See id. The ALJ 20 noted that Plaintiff had “no residual symptoms” from her November 2014 fall and her 21 examinations after the event were normal. (AR 20). The ALJ stated that Plaintiff’s 22 “maintenance exams for hypertension, chronic kidney disease, ventricular tachycardia and 23 chronic heart failure appear to show few limitations” and her “lack of more aggressive 24 medical treatment and/or surgical intervention suggests [Plaintiff’s] symptoms and 25 limitations are not as severe as alleged.” (AR 21). The ALJ further found that “[a]lthough 26 [Plaintiff’s] activities of daily living illustrate some functional deficits, they are not to the 27 level of severity related by [Plaintiff].” (AR 22). Specifically, ALJ noted that Plaintiff’s 28 ability to complete household chores and the description of plaintiff as “comfortable[] and || in no acute distress” throughout her medical records indicate that Plaintiff “is more able- || bodied than she alleged.” (AR 22). Accordingly, the ALJ did not commit legal error in || discounting Plaintiff's subjective symptom testimony. 4] IV. CONCLUSION 5 For the foregoing reasons, 6 IT IS ORDERED that the ALJ decision is AFFIRMED. The Clerk of Court shall enter judgment accordingly. 8 Dated this 11th day of May, 2021. 9 10 i C 11 James A. Teilborg 12 Senior United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -10-