Velazquez 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 Theresa Ann Velazquez, No. CV-20-01015-PHX-SPL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Theresa Ann Velazquez’s Application for 17 Disability Insurance Benefits by the Social Security Administration (“SSA”) under the 18 Social Security Act. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial 19 review of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 16, “Pl. 20 Br.”) Defendant SSA Commissioner’s Response Brief (Doc. 19, “Def. Br.”), and Plaintiff’s 21 Reply Brief (Doc. 23, “Reply”). The Court has reviewed the briefs and Administrative 22 Record (Doc. 13, “R.”) and now affirms the Administrative Law Judge’s decision (R. at 23 13–27) as upheld by the Appeals Council (R. at 1–3). 24 I. BACKGROUND 25 Plaintiff filed an Application for Disability Insurance benefits on July 13, 2016, for 26 a period of disability beginning on July 1, 2016. (R. at 13.) Her claim was denied initially 27 on September 29, 2016, and upon reconsideration on February 6, 2017. (R. at 13.) Plaintiff 28 appeared before the ALJ for a hearing regarding her claim on January 17, 2019, which the 1 ALJ denied on April 2, 2019. (R. at 13, 27.) On March 26, 2020, the Appeals Council 2 denied Plaintiff’s Request for Review and adopted the ALJ’s decision as the agency’s final 3 decision. (R. at 1–3.) 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 6 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 7 following severe impairments: cervical and lumbar spondylosis and bilateral shoulder mild 8 degenerative joint disease. (R. at 15.) 9 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 10 that Plaintiff was not disabled from the alleged disability onset-date through the date of the 11 decision. (R. at 27.) The ALJ found that Plaintiff “does not have an impairment or 12 combination of impairments that meets or medically equals the severity of one of the listed 13 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 21.) Next, the ALJ 14 calculated Plaintiff’s residual functional capacity (“RFC”): 15 [Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except [Plaintiff] can lift and carry 20 16 pounds occasionally, 10 pounds frequently; stand and walk for 6 hours in an 8-hour day, and sit for 6 hours in an 8-hour day; 17 occasionally climb ramps and stairs, never climb ladders or scaffolds, and occasionally balance, stoop, kneel, crouch, and 18 crawl; occasionally reach overhead with both upper extremities; and must avoid concentrated exposure to extreme 19 temperatures, wetness, humidity, loud noise, vibration, fumes, odors, dusts, gases, and hazards. 20 21 (R. at 21–22.) Accordingly, the ALJ found that Plaintiff can perform past relevant work as 22 a teacher aide and a housekeeping cleaner. (R. at 26.) 23 II. LEGAL STANDARD 24 In determining whether to reverse an ALJ’s decision, the district court reviews only 25 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 26 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 27 determination only if it is not supported by substantial evidence or is based on legal error. 28 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 1 that a reasonable person might accept as adequate to support a conclusion considering the 2 record as a whole. Id. To determine whether substantial evidence supports a decision, the 3 Court must consider the record as a whole and may not affirm simply by isolating a 4 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 5 susceptible to more than one rational interpretation, one of which supports the ALJ’s 6 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 7 (9th Cir. 2002) (citations omitted). 8 To determine whether a claimant is disabled for purposes of the Act, the ALJ 9 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 10 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 12 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 13 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 14 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 15 step three, the ALJ considers whether the claimant’s impairment or combination of 16 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 17 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 18 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 19 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 20 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 21 determines whether the claimant can perform any other work in the national economy 22 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 23 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 24 III. ANAYSIS 25 Plaintiff raises two issues before the Court. First, Plaintiff argues the ALJ erred in 26 rejecting her symptom testimony. (Pl. Br. at 12–18.) Second, Plaintiff argues the ALJ erred 27 in assigning little weight to the opinion of treating physician, Dr. John M. Belden. (Pl. Br. 28 at 18–23.) 1 The Court finds that the ALJ provided specific, clear, and convincing reasons 2 supported by substantial evidence in rejecting Plaintiff’s symptom testimony. Specifically, 3 the ALJ found the medical evidence and Plaintiff’s activities of daily living (“ADLs”) 4 conflicted with Plaintiff’s symptom testimony. Second, the ALJ provided specific and 5 legitimate reasons for assigning little weight to Dr. Belden’s medical opinion because the 6 medical opinion conflicted with the other medical evidence in the record, and it conflicted 7 with Plaintiff’s ADLs. For the following reasons, the Court affirms. 8 A. The ALJ did not err in rejecting Plaintiff’s symptom testimony. 9 Plaintiff argues the ALJ erred in rejecting her symptom testimony. (Pl. Br. at 12– 10 18.) An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 11 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 12 evaluates whether the claimant has presented objective medical evidence of an impairment 13 “which could reasonably be expected to produce the pain or symptoms alleged.” 14 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 15 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 16 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 17 about the severity of her symptoms only by offering specific, clear and convincing reasons 18 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 19 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 20 “In evaluating the credibility of pain testimony after a claimant produces objective medical 21 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 22 complaints based solely on a lack of medical evidence to fully corroborate the alleged 23 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 24 Here, the ALJ found “[Plaintiff’s] medically determinable impairments could 25 reasonably be expected to cause some of the alleged symptoms; however, [Plaintiff’s] 26 statements concerning the alleged intensity, persistence, and limiting effects of these 27 symptoms are not entirely consistent with the medical evidence and other evidence in the 28 record for the reasons explained throughout this decision.” (R. at 24.) 1 First, the ALJ found that Plaintiff attempted to minimize her ADLs. (R. at 24.) 2 Second, the ALJ found that Plaintiff generally did not receive the type of medical treatment 3 expected of a disabled individual. (R. at 23.) The Court affirms for the following reasons. 4 In describing Plaintiff’s ADLs, the ALJ explained that Plaintiff reported: “attending 5 to her own personal care and hygiene, cooking, cleaning the kitchen, doing dishes, doing 6 laundry, vacuuming, cleaning the bathrooms, changing bedsheets, driving, running 7 errands, shopping in stores, paying bills, managing her money, going to the library, 8 watching television, reading, visiting family, driving to medical appointments, driving her 9 son to and from school, driving her boyfriend to and from work, taking care of her young 10 son, taking care of her grandson at times, and going to sporting events.”(R. at 24, 52–55, 11 190–98.) The ALJ then found that Plaintiff complained of pain, but she had normal strength 12 in all muscle groups, normal reflexes and sensation in all extremities, and normal gait. (R. 13 at 24, 463, 542–43, 553, 753, 757, 805–06, 834, 947, 996, 1215–16.) The ALJ also found 14 that “[s]ome of the physical and mental abilities and social interactions required in order 15 to perform these activities are the same as those necessary for obtaining and maintaining 16 employment and are inconsistent with the presence of an incapacitating or debilitating 17 condition.” (R. at 24.) The ALJ indicated that Plaintiff’s ability to drive her son to and from 18 school, drive her boyfriend to work, drive to doctors’ appointments, and drive her grandson 19 to outings was inconsistent with Plaintiff’s testimony that she had a limited ability to sit 20 and had loss of strength in her hands and arms. (R. at 24.) The Court agrees. Here, the ALJ 21 has provided specific, clear, and convincing evidence to show that Plaintiff’s ADLs 22 conflict with her symptom testimony. Plaintiff was able to engage in various activities, 23 including driving frequently, and caring for her children and grandchild. 24 Plaintiff also argues the ALJ did not connect the general discussion of Plaintiff’s 25 symptom testimony with the medical evidence. (Pl. Br. at 14.) However, the ALJ does 26 provide evidence from the medical record in rejecting Plaintiff’s symptom testimony. In 27 describing how Plaintiff’s medical records and medical treatment conflicted with her 28 symptom testimony, the ALJ described Plaintiff’s past medical treatment and cited to all 1 the past types of treatment she underwent. (R. at 23, 324–75, 806.) The ALJ noted that the 2 records show Plaintiff was treated for cervical, lumbar spine, and bilateral shoulder 3 condition, but that these treatments have been routine and conservative and limited to pain 4 medication, cervical epidural steroid injections, lumbar medical branch blocks, and lumbar 5 radiofrequency ablation. (R. at 23, 324–75, 806.) The ALJ found it was significant that 6 Plaintiff did not require surgical intervention and that Plaintiff’s pain management doctor 7 advised her to increase her activity level. (R. at 23, 842.) The Court finds the ALJ did 8 discuss the medical record in detail in discussing Plaintiff’s symptom testimony. 9 Additionally, Plaintiff argues that the ALJ erred in finding that Plaintiff did not 10 receive medical treatment that would indicate Plaintiff was disabled and that the ALJ erred 11 by not describing what Plaintiff could have done to show the validity of her reported pain 12 symptoms. (Pl. Br. at 15.) Plaintiff argues that her treatment was not “routine” or 13 “conservative”, as the ALJ described. (R. at 23; Pl. Br. at 15.) Regardless, the record shows 14 that Plaintiff had normal gait, normal sensation, negative straight leg raise, normal strength 15 in muscles, intact coordination, and symmetric deep tendon reflexes, (R. at 463–64, 469– 16 70, 475–76, 488–89, 665, 685, 767, 775, 794, 805–06, 812–13, 819–20, 826–27, 833–34, 17 840–41, 947, 951, 954, 958, 993, 996.) Even if Plaintiff’s treatment would not be 18 considered routine or conservative, the error is harmless because the ALJ has shown that 19 the medical evidence and Plaintiff’s ADLs conflict with her symptom testimony. 20 Tommasetti, 533 F.3d at 1038 (“[T]he court will not reverse an ALJ’s decision for harmless 21 error, which exists when it is clear from the record that the ALJ’s error was inconsequential 22 to the ultimate nondisability determination.”) (internal quotations marks omitted). 23 The Court finds the ALJ did describe evidence in the medical record to support his 24 findings, and in doing so, showed there was specific, clear, and convincing reasons, 25 supported by substantial evidence for the ALJ’s findings that Plaintiff’s symptom 26 testimony was inconsistent with the medical evidence and with Plaintiff’s ADLs. 27 28 1 B. The ALJ did not err in assigning little weight to Dr. Belden’s medical opinion. 2 Plaintiff argues the ALJ erred in assigning little weight to the opinions of Dr. 3 Belden. (Pl. Br. at 18–23.) While “[t]he ALJ must consider all medical opinion evidence,” 4 there is a hierarchy among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 5 1035, 1041 (9th Cir. 2008). Those who have treated a claimant are treating physicians, 6 those who examined but did not treat the claimant are examining physicians, and those who 7 neither examined nor treated the claimant are nonexamining physicians. Lester v. Chater, 8 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the 9 opinion of a treating source than to the opinion of doctors who did not treat the claimant.” 10 Id. This is so because treating physicians have the advantage of in-person interaction and 11 typically a longer history of treatment than a claimant’s other doctors, and their “subjective 12 judgments . . . are important, and properly play a part in their medical evaluations.” Embrey 13 v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 14 An ALJ “may only reject a treating or examining physician’s uncontradicted 15 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 16 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830–31). “Where such 17 an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 18 that are supported by substantial evidence in the record.” Id. An ALJ meets this standard 19 by “setting out a detailed and thorough summary of the facts and conflicting medical 20 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 21 881 F.2d 747, 751 (9th Cir. 1989). 22 The ALJ gave little weight to the opinion of Dr. Belden. (R. at 25, 724, 896–97, 23 1466–67.) On September 11, 2017, Dr. Belden submitted a letter indicating Plaintiff is 24 unable to perform work of any kind due to her medical conditions. (R. at 25, 724.) Dr. 25 Belden opined Plaintiff could not walk for more than a few minutes, could not sit for any 26 length of time, and had mental health disorders limiting her ability to complete and perform 27 tasks. (R. at 25.) Dr. Belden submitted medical assessments from June 21, 2017 and June 28 1 9, 2019 indicating Plaintiff could not work because she had uncontrolled seizures, cervical 2 stenosis, lumbar spondylosis, and chronic hepatitis C. (R. at 25, 896–97, 1466–67.) He also 3 found Plaintiff was limited in carrying and lifting less than 10 pounds, sitting less than two 4 hours, standing and/or walking less than two hours, alternating between sitting, standing, 5 and walking every 1-20 minutes, occasional use of hands, less than occasional bending, 6 reaching, and stooping, she would be off task greater than 21% of the time in an eight-hour 7 workday, and six or more absences per month. (R. at 25, 896–97, 1466–67.) 8 The ALJ gave these opinions little weight for several reasons. (R. at 25.) First, the 9 ALJ found that opinions concern an issue reserved to the Commissioner and that the 10 statements that Plaintiff was unable to work are not entitled controlling weight and are not 11 given special significance. (R. at 25.) Second, the ALJ found these extreme opinions were 12 inconsistent with the objective medical evidence. (R. at 25.) Last, the ALJ found Dr. 13 Belden’s opinions were inconsistent with Plaintiff’s ADLs. (R. at 25.) 14 Plaintiff argues the ALJ erred in finding Dr. Belden’s opinions were inconsistent 15 with the medical evidence because there was evidence to show Dr. Belden’s assessed 16 limitations were supported. (Pl. Br. at 19–20.) The Court agrees with the ALJ and finds 17 there was specific and legitimate evidence in the record to support the ALJ’s finding. The 18 ALJ explained that Dr. Belden’s opined-to limitations of lifting and carrying less than 10 19 pounds, sitting less than two hours, and standing and/or walking less than two hours are 20 inconsistent with Plaintiff’s physical examinations showing normal gait, normal strength, 21 normal sensation, and normal reflexes. (R. at 25, 463–64, 469–70, 488–89, 665, 685, 767, 22 775, 805–06, 812–13, 819–20, 826–27, 833–34, 840–41, 947, 951, 954, 958, 993, 996.) 23 Additionally, in March 2016, a cervical MRI showed mild to moderate abnormalities and 24 only mild spinal narrowing. (R. at 368–69.) MRIs taken later showed no significant canal 25 stenosis, no cord compression, and no abnormal cord signal. (R. at 1052–53, 1391–92.) 26 Lumbar x-rays and MRIs showed no spinal stenosis or neural foraminal narrowing. (R. at 27 536–37, 854.) In December 2016, an x-ray showed Plaintiff’s right clavicle had mild 28 acromioclavicular joint degeneration. (R. at 606.) In July 2016, electrodiagnostic studies 1 showed no evidence of cervical radiculopathy, brachial plexopathy, or peripheral 2 neuropathy in Plaintiff’s upper extremities. (R. at 359.) Additional electrodiagnostic 3 studies showed no evidence of lumbar radiculopathy, lumbosacral plexopathy, or 4 peripheral neuropathy in Plaintiff’s lower extremities. (R. at 481, 973.) The ALJ provided 5 specific and legitimate reasons for giving little weight to Dr. Belden’s opinion by 6 describing how it was contradicted by the other medical evidence in the record. 7 Plaintiff also argues the ALJ erred in finding Dr. Belden’s opinions were 8 inconsistent with Plaintiff’s ADLs. (Pl. Br. at 20–21.) The ALJ explained that Dr. Belden 9 indicated Plaintiff was not able to sit for any length of time, but, as previously described 10 by the ALJ, that was inconsistent with Plaintiff’s testimony that she does a significant 11 amount of driving—she drives her son to and from school, she drives her boyfriend to and 12 from work, she drives to medical appointments, she drives to visit her daughter, she drives 13 her grandson to outings, and she drives to run errands. (R. at 25.) Additionally, the ALJ 14 found Plaintiff’s ability to perform such a wide range of tasks was inconsistent with the 15 severe limitations assessed by Dr. Belden. (R. at 25.) Plaintiff argues that ALJ’s finding 16 mischaracterizes the evidence and explains that her son’s school was only a mile and a half 17 from their home and that she only drove her boyfriend to work for a few weeks when his 18 truck was broken. (R. at 25, 52; Pl. Br. at 20–21.) Plaintiff also argues the ALJ 19 mischaracterizes her ability to care for her five-year-old grandson. (Pl. Br. at 21.) Plaintiff 20 explains that she would take her grandson to the movies or to the library “once in a while.” 21 (R. at 25, 54; Pl. Br. at 21.) But Plaintiff also indicated that she provided childcare to her 22 grandson when her son was working and that she spent a lot of time with her children and 23 grandchild. (R. at 628, 1517.) As previously described, the ALJ found that Plaintiff engages 24 in various ADLs that not only conflict with her symptom testimony, but also with Dr. 25 Belden’s opinions that Plaintiff would not be able to work. The ALJ provided specific and 26 legitimate reasons supported by substantial evidence in describing how Plaintiff’s ADLs 27 conflicted with Dr. Belden’s opinion. The Court agrees with the ALJ’s finding. 28 1 Last, Plaintiff argues that the ALJ erred in assigning great weight to the opinions of 2 the state agency consultants, Dr. Charles Combs, Dr. Robert Mitgang, and Dr. Jose 3 Gonzalez-Mendez. (Pl. Br. at 22–23; R. at 24.) The ALJ explained that these doctors opined 4 that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand 5 and/or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour 6 workday, occasionally climb ramps and stairs; never climb ladders, ropes, or scaffolds; 7 occasionally balance, stoop, kneel, crouch, and crawl; occasionally reach overhead with 8 the bilateral upper extremities; and avoid concentrated exposure to extreme cold, extreme 9 heat, wetness, humidity, loud noise, vibration, fumes, odors, dusts, gases, and hazards. (R. 10 at 24, 76–79, 91–92, 721.) The ALJ found that the state agency consultants based their 11 opinions on the medical records and that the opinions were supported by evidence in the 12 record including that Plaintiff had normal gait, unrestricted movement of the arms and legs, 13 normal strength, normal sensation, and normal reflexes. (R. at 24–25, 463–64, 469–70, 14 475–76, 488–89, 665, 685, 767, 775, 794, 805–06, 812–13, 819–20, 826–27, 833–34, 840– 15 41, 947, 951, 954, 958, 993, 996.) The ALJ provided specific and legitimate reasons for 16 giving great weight to the state agency consultant’s opinions by describing how their 17 opinions aligned with the medical evidence in the record. 18 IV. CONCLUSION 19 Substantial evidence supports the ALJ’s nondisability determination. The ALJ 20 provided specific, clear, and convincing reasons supported by substantial evidence for 21 rejecting Plaintiff’s symptom testimony and provided specific and legitimate reasons 22 supported by substantial evidence in considering the medical opinion of Dr. Belden. 23 IT IS THEREFORE ORDERED affirming the April 2, 2019 decision of the 24 Administrative Law Judge (R. at 13–27), as upheld by the Appeals Council on March 26, 25 2020 (R. at 1–3). 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 2 || consistent with this Order and close this case. 3 Dated this 14th day of May, 2021. 4 6 United States District ladge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll-