Shaughnessy 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 Sean Shaughnessy, No. CV-20-00977-PHX-GMS 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Sean A. Shaughnessy’s Application for Disability 17 Insurance Benefits by the Social Security Administration (“SSA”). The Court has reviewed 18 the briefs and Administrative Record (Doc. 12, “R.”) and now affirms the Administrative 19 Law Judge’s decision (R. at 30–45). 20 I. BACKGROUND 21 Plaintiff filed an Application for Disability Insurance benefits on August 9, 2016, 22 for a period of disability beginning on March 31, 2015. (R. at 30.) His claim was denied 23 initially on September 8, 2016, and upon reconsideration on November 30, 2016. (R. at 24 11.) Plaintiff appeared before the ALJ for a hearing regarding his claim on October 24, 25 2018, which the ALJ denied on January 25, 2019. (R. at 30, 45.) On March 23, 2020, the 26 Appeals Council denied Plaintiff’s Request for Review and adopted the ALJ’s decision as 27 the agency’s final decision. (R. at 1–4.) 28 The Court has reviewed the medical evidence in its entirety and will discuss the 1 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 2 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 3 following severe impairments: history of sinus infections, history of Meniere’s disease, 4 sensorineural hearing loss, obstructive sleep apnea, diabetes mellitus, carpal tunnel 5 syndrome, status post carpal tunnel release, right minuscular tear and status post repair and 6 cervical degenerative disc disease. (R. at 33.) 7 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 8 that Plaintiff was not disabled from the alleged disability onset-date through the date of the 9 decision. (R. at 44.) The ALJ found that Plaintiff “does not have an impairment or 10 combination of impairments that meets or medically equals the severity of one of the listed 11 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 33.) Next, the ALJ 12 calculated Plaintiff’s residual functional capacity (“RFC”): 13 [Plaintiff] has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) except that [Plaintiff] can never climb 14 ladders, ropes or scaffolds, he can frequently balance, stoop, kneel, crouch and crawl. Further, [Plaintiff] should avoid 15 concentrated exposure to noise, he should [] not [be] exposed to loud noise, and hazards such as moving machinery and 16 unprotected heights. Additionally, [Plaintiff] can frequently handle and finger. 17 18 (R. at 35.) Accordingly, the ALJ found that Plaintiff can perform his past relevant work as 19 a manager, sales. (R. at 43–44.) 20 II. LEGAL STANDARD 21 In determining whether to reverse an ALJ’s decision, the district court reviews only 22 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 23 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 24 determination only if it is not supported by substantial evidence or is based on legal error. 25 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 26 that a reasonable person might accept as adequate to support a conclusion considering the 27 record as a whole. Id. To determine whether substantial evidence supports a decision, the 28 Court must consider the record as a whole and may not affirm simply by isolating a 1 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 2 susceptible to more than one rational interpretation, one of which supports the ALJ’s 3 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 4 (9th Cir. 2002) (citations omitted). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 7 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 8 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 9 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 10 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 11 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 12 step three, the ALJ considers whether the claimant’s impairment or combination of 13 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 14 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 15 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 16 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 17 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 18 determines whether the claimant can perform any other work in the national economy 19 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 20 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 21 III. ANAYSIS 22 Plaintiff raises three issues for the Court’s consideration. First, Plaintiff argues the 23 ALJ erred in rejecting Plaintiff’s symptom testimony. (Pl. Br. at 10–13.) Second, Plaintiff 24 argues the ALJ erred in assigning partial weight to the opinions of treating physician, Dr. 25 Frank Oppong-Takyi. (Pl. Br. at 8–10.) Finally, Plaintiff argues the ALJ erred in presenting 26 hypotheticals to the vocational expert (“VE”) because the ALJ did not include Dr. Oppong- 27 Takyi’s assessed limitations in the hypotheticals. (Pl. Br. at 13–14.) 28 1 The Court finds the ALJ made sufficient findings in rejecting Plaintiff’s symptom 2 testimony. Second, the Court finds the ALJ provided specific and legitimate reasons 3 supported by substantial evidence in assigning partial weight to Dr. Oppong-Takyi’s 4 opinions, and by specifically assigning minimal weight to his assessed limitations. Last, 5 the ALJ did not err in excluding Dr. Oppong-Takyi’s assessed limitations in the 6 hypotheticals presented to the VE because the ALJ properly assigned minimal weight to 7 those assessed limitations. 8 A. The ALJ Appropriately Limited Its Acceptance of Plaintiff’s Symptom Testimony. 9 10 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 the alleged symptoms; however, [Plaintiff’s] statements 26 concerning the alleged intensity, persistence and limiting effects of these symptoms are not 27 entirely consistent with the medical evidence and other evidence in the record for the 28 reasons explained throughout this decision.” (R. at 36.) 1 Specifically, the ALJ discounted claimant’s assertions that he was unable to work 2 in the Spring 2015 because he was laid off in the spring of 2015 and represented thereafter 3 that he was capable of working in connection with obtaining unemployment benefits. (R. 4 at 35, 37.) The ALJ further found that “the substantial evidence of record does not reveal 5 moderate worsening of the claimant’s symptoms related to the Meniere’s disease until 6 January of 2016.” (R. at 36–37.) The ALJ supports this with a summary of the non- 7 treatment of Claimant’s condition between 2011–2014, followed by a treatment in 2014 8 that did reveal symptoms but not harsh ones, (R. at 37), and then the conclusion based on 9 the medical summary of the next treatment in 2016, in which the doctor noted that the 10 condition was improved by his medication regime, (R. at 39). Based on this summary, the 11 ALJ concludes that “the record as a whole shows very minimal evidence of treatment until 12 January of 2016.” (R. at 43.) This is an acceptable basis on which to limit the acceptance 13 of symptom testimony. Fair v. Bowen, 885 F.2d 598, 603 (9th Cir. 1999). Further, the ALJ 14 cites to medical documentation from 2018 that indicated that the claimant was still driving, 15 when the claimant indicated he had not driven since 2016 and pointed to still further 16 evidence that Plaintiff’s symptoms from carpal tunnel and knee ailments improved after 17 surgery and treatment. (R. at 43.) 18 It is true that not all of the ALJ’s observations were helpful or relevant. But the ALJ 19 has made sufficient specific findings with respect to sufficient conditions to provide 20 substantial evidence to support her determinations to discount the extent of those asserted 21 symptoms and conditions. 22 B. The ALJ provided specific and legitimate reasons for assigning partial weight to Dr. Oppong-Takyi’s opinions. 23 24 Plaintiff argues the ALJ erred in assigning partial weight to the opinions of Dr. 25 Oppong-Takyi. (Pl. Br. at 8–10.) While “[t]he ALJ must consider all medical opinion 26 evidence,” there is a hierarchy among the sources of medical opinions. Tommasetti v. 27 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Those who have treated a claimant are treating 28 physicians, those who examined but did not treat the claimant are examining physicians, 1 and those who neither examined nor treated the claimant are nonexamining physicians. 2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should 3 be given to the opinion of a treating source than to the opinion of doctors who did not treat 4 the claimant.” Id. This is so because treating physicians have the advantage of in-person 5 interaction and typically a longer history of treatment than a claimant’s other doctors, and 6 their “subjective judgments . . . are important, and properly play a part in their medical 7 evaluations.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 8 An ALJ “may only reject a treating or examining physician’s uncontradicted 9 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 10 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830–31). “Where such 11 an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 12 that are supported by substantial evidence in the record.” Id. An ALJ meets this standard 13 by “setting out a detailed and thorough summary of the facts and conflicting medical 14 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 15 881 F.2d 747, 751 (9th Cir. 1989). 16 On November 16, 2016, Dr. Oppong-Takyi completed a Meniere’s disease RFC 17 questionnaire for Plaintiff. (R. at 42, 432–34.) On the questionnaire, Dr. Oppong-Takyi 18 indicated he had been seeing Plaintiff for his Meniere’s disease for eleven months and that 19 on average Plaintiff experienced five Meniere’s episodes a week, each lasting about five 20 hours. (R. at 42, 432.) Dr. Oppong-Takyi indicated that Plaintiff needed three hours after 21 each Meniere’s attack to rest, and Plaintiff did not always have a warning that an attack 22 was coming on. (R. at 42, 432–33.) During an attack, Dr. Oppong-Takyi indicated that 23 Plaintiff would not be able to do basic work activities, Plaintiff would need to rest for an 24 hour after an attack, and Plaintiff would need to take a break three or four times a day after 25 experiencing an attack. (R. at 42, 434.) Dr. Oppong-Takyi opined that Plaintiff could 26 complete low stress work, and Plaintiff would be absent from work more than four days a 27 month. (R. at 42, 434.) On October 15, 2018, Dr. Oppong-Takyi indicated Plaintiff’s 28 1 limitations continued. (R. at 42, 561.) On October 23, 2018, Dr. Oppong-Takyi opined 2 Plaintiff could not drive any vehicle due to his Meniere’s disease. (R. at 42, 582.) 3 The ALJ gave partial weight to Dr. Oppong-Takyi’s opinions. (R. at 42.) 4 Specifically, the ALJ gave great weight to Dr. Oppong-Takyi’s opinions that Plaintiff has 5 work related limitations, but the ALJ assigned minimal weight to Dr. Oppong-Takyi’s 6 opinions as to the specific limitations assessed. (R. at 42.) First, the ALJ explained that Dr. 7 Oppong-Takyi’s November 16, 2016, opinion was outside his area of expertise and was 8 based on minimal treatment with Plaintiff. (R. at 42–43.) Comparatively, the ALJ points 9 out that Plaintiff’s specialist, Dr. Mary Syms, did not provide an opinion regarding his 10 limitations related to Meniere’s disease. (R. at 42.) The ALJ also pointed out that 11 September 16, 2016, records show that the record as a whole has minimal evidence of 12 treatment until January 2016. (R. at 42.) Further, the ALJ found that Dr. Oppong-Takyi’s 13 October 23, 2018, opinion indicated Plaintiff was unable to drive, while Plaintiff allegedly 14 stopped driving in 2016. (R. at 42.) However, on April 30, 2018, Plaintiff reported to a 15 physician’s assistant (“PA”) that he was driving.1 (R. at 43, 495.) Additionally, Plaintiff 16 reported to Dr. Oppong-Takyi that he had right knee pain when he was driving. (R. at 43, 17 495.) In the same October 2018 examination, Plaintiff was negative for dizziness, 18 headaches, seizures, or weakness and had a normal gait, which the ALJ indicated raises 19 questions about the severity of Plaintiff’s symptoms. (R. at 43, 495, 497.) The ALJ also 20 found that Dr. Oppong-Takyi’s reports were inconsistent with Plaintiff’s reports that he 21 was exercising two times a day. (R. at 43, 531.) 22 Plaintiff argues the ALJ cited to one appointment during which Plaintiff was being 23 treated for knee pain and asserted active symptoms of Meniere’s disease which was not 24 indicative of Plaintiff’s overall condition. (R. at 43; Pl. Br. at 9.) As previously stated, the 25 ALJ described Dr. Oppong-Takyi’s findings at several appointments with Plaintiff, many 26 of which had unremarkable physical examinations contrasting Dr. Oppong-Takyi’s 27 assessed physical limitations. (R. at 400, 435, 492, 495, 498–500, 541.) Additionally, 28 1 Plaintiff points out that the ALJ incorrectly stated that Plaintiff told a treating orthopedist that he was driving when it was a PA. The Court corrects this in the following analysis. 1 Plaintiff was negative for dizziness, headaches, seizures of weakness, and had a normal 2 gait at several appointments. (R. at 43, 495, 497.) As Defendant correctly points out, 3 because Dr. Oppong-Takyi opined Plaintiff would experience Meniere’s disease attacks 4 five times a week totaling twelve hours of time for the attack and recovery after, “it was 5 reasonable for the ALJ to expect these symptoms to be frequently documented in the 6 record.” (R. at 432; Def. Br. at 8–9.) The Court agrees. Dr. Oppong-Takyi opined to 7 extreme limitations regarding Plaintiff’s Meniere’s disease but his examination records do 8 not support his findings. 9 Plaintiff pushes back against the finding the ALJ made that Plaintiff’s complaints 10 of pain while driving and Dr. Oppong-Takyi’s recommendation that Plaintiff not drive 11 were inconsistent. (Pl. Br. at 9; R. at 582.) Plaintiff argues that he indicated to the PA that 12 his knee hurt when he was driving on April 2018, while Dr. Oppong-Takyi did not indicate 13 Plaintiff should not drive until October 2018. (R. at 495, 582; Pl. Br. at 9.) While this is 14 true, the ALJ correctly considered the inconsistencies in Plaintiff’s assertions that he had 15 pain while driving, Plaintiff’s admissions that he continued to drive, and Dr. Oppong- 16 Takyi’s recommendation that Plaintiff not drive. (R. at 495, 582.) Plaintiff indicated he 17 stopped driving in 2016 yet continued to drive to doctor’s appointments from 2016-2018. 18 (R. at 59.) These inconsistencies support the ALJ’s conclusion. 19 Plaintiff also points out that the ALJ found that Plaintiff’s ability to exercise twice 20 a day was not consistent with Plaintiff’s own testimony and Dr. Oppong-Takyi’s assessed 21 limitations. (Pl. Br. at 10; R. at 531.) Dr. Oppong-Takyi wrote a clarifying note after the 22 hearing indicating that Plaintiff does not currently exercise because of his Meniere’s 23 disease. (R. at 23.) Plaintiff argues that the ALJ’s reason does not provide specific enough 24 information and does not clarify what type of exercise Plaintiff does or for how long. (Pl. 25 Br. at 10.) Further, Plaintiff argues that his ability to walk twice a day for ten to fifteen 26 minutes is still consistent with Dr. Oppong-Takyi’s opinion. (Pl. Br. at 10.) Even if this 27 was error, it was harmless because the ALJ provided other reasons to support the decision 28 to give partial weight to Dr. Oppong-Takyi’s opinions. Tommasetti, 533 F.3d at 1038 1 (“[T]he court will not reverse an ALJ’s decision for harmless error, which exists when it is 2 clear from the record that the ALJ’s error was inconsequential to the ultimate nondisability 3 determination.”) (internal quotations marks omitted). The ALJ provided specific and 4 legitimate reasons supported by substantial evidence in assigning partial weight to Dr. 5 Oppong-Takyi’s opinions and specifically assigning minimal weight to Dr. Oppong- 6 Takyi’s assessed limitations. 7 C. The ALJ did not err in excluding Dr. Oppong-Takyi’s assessed 8 limitations in the hypothetical presented to the VE. 9 Plaintiff argues the ALJ omitted Dr. Oppong-Takyi’s assessed limitations in posing 10 a hypothetical to the VE and that this was error. (Pl. Br. at 13–14.) Hypothetical questions 11 posed to a vocational expert must contain all a claimant’s limitations that are supported by 12 substantial evidence. Magallanes, 881 F.2d at 756. Moreover, an ALJ must include only 13 those limitations that are supported by substantial evidence. Robbins v. Soc. Sec. Admin., 14 466 F.3d 880, 886 (9th Cir. 2006). The testimony of a vocational expert “is valuable only 15 to the extent that it is supported by medical evidence.” Magallanes, 881 F.2d at 756 16 (quoting Sample v. Schweiker, 694 F.2d 639, 644 (9th Cir. 1982)). 17 Plaintiff argues what happened here is similar to Embrey v. Bowen, 849 F.2d 418, 18 423 (9th Cir. 1988), where the Ninth Circuit held that hypothetical questions posed to a VE 19 must set out a claimant’s limitations and restrictions. Plaintiff argues that based on Embrey, 20 incomplete hypotheticals or hypotheticals that lack support have no evidentiary value. Id. 21 Plaintiff asserts this happened here when the ALJ did not include Dr. Oppong-Takyi’s 22 assessed limitations in the hypothetical presented to the VE. (Pl. Br. at 14–15.) Thus, 23 Plaintiff contends the ALJ’s decision is “based on evidence which has no evidentiary value, 24 and so that decision is not based on substantial evidence.” (Pl. Br. at 15.) 25 Defendant argues Plaintiff’s reliance on Embrey is misplaced and that the ALJ does 26 not need to rely on the assessed limitations of medical experts whose opinions were 27 properly discounted in presenting hypotheticals to the VE. (Def. Br. at 14–15.) See Stubbs- 28 Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008). The Court agrees. 1 Here, the Court determined the ALJ provided specific and legitimate reasons 2 || supported by substantial evidence in giving partial weight to Dr. Oppong-Takyi’s opinion. 3|| Specifically, the ALJ provided substantial evidence in assigning minimal weight to Dr. 4|| Oppong-Takyi’s assessed limitations, as previously discussed. An ALJ is not required to 5 || present unsupported assessed limitations in the hypotheticals presented to the VE, and the || ALJ did not err in refusing to do so here. See Greger v. Barnhart, 464 F.3d 968, 973 (9th 7\| Cir. 2006) (An ALJ “is free to accept or reject restrictions in a hypothetical question that 8 || are not supported by substantial evidence.” (quoting Ostenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).)); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) || (“Because the ALJ included all of the limitations that he found to exist, and because his 11 || findings were supported by substantial evidence, the ALJ did not err in omitting the other 12 || limitations that [the claimant] had claimed, but had failed to prove.”). The Court finds the 13 || ALJ did not err in excluding Dr. Oppong-Takyi’s assessed limitations because they were not supported by substantial evidence. 15 IT IS THEREFORE ORDERED affirming the January 25, 2019 decision of the 16|} Administrative Law Judge, as upheld by the Appeals Council on March 23, 2020. (R. at 17} 30, 45, 1-4.) 18 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly and terminate this matter. 20 Dated this 13th day of July, 2021. 21 A Whacrsay Sooo) Whicren 73 Chief United states District Judge 24 25 26 27 28 -10-