Sanders v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kerina Denise Sanders, No. CV-18-0266-TUC-LCK 10 Plaintiff, ORDER 11 v. 12 Andrew Saul, 13 Defendant. 14 Plaintiff Kerina Sanders filed this action pursuant to 42 U.S.C. § 405(g) seeking 15 judicial review of a final decision by the Commissioner of Social Security (Commissioner). 16 (Doc. 1.) Before the Court are Sanders’s Opening Brief, Defendant’s Responsive Brief, 17 and Sanders’s Reply. (Docs. 16, 17, 20.) The parties have consented to Magistrate Judge 18 jurisdiction. (Doc. 13.) Based on the pleadings and the administrative record, the Court 19 affirms the Commissioner’s decision. 20 PROCEDURAL HISTORY 21 Sanders filed an application for Disability Insurance Benefits (DIB) and 22 Supplemental Security Income (SSI) in August 2014. (Administrative Record (AR) 213, 23 216.) She alleged disability from June 4, 2014. (AR 213.) Sanders’s application was denied 24 upon initial review (AR 89-110) and on reconsideration (AR 111-38). A hearing was held 25 on January 9, 2017. (AR 58-88.) Subsequently, the ALJ found that Sanders was not 26 disabled. (AR 33-45.) The Appeals Council denied Sanders’s request for review. (AR 1.) 27 28 1 FACTUAL HISTORY 2 Sanders was born in 1961 and was 52 years of age at the alleged onset date of her 3 disability. (AR 213.) The ALJ found that Sanders had severe impairments of left hip 4 degenerative joint disease, fibromyalgia, hepatitis C infection, and mild obesity. (AR 36.) 5 The ALJ determined Sanders had the Residual Functional Capacity (RFC) to perform 6 sedentary work with frequent stooping, crouching, and balancing, but only occasional 7 crawling or climbing ladders/ropes/scaffolds. (AR 39.) The ALJ concluded at Step Four, 8 based on the testimony of a vocational expert, that Sanders could perform her past relevant 9 work as a telemarketer. (AR 44.) 10 STANDARD OF REVIEW 11 The Commissioner employs a five-step sequential process to evaluate SSI and DIB 12 claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460- 13 462 (1983). To establish disability the claimant bears the burden of showing she (1) is not 14 working; (2) has a severe physical or mental impairment; (3) the impairment meets or 15 equals the requirements of a listed impairment; and (4) claimant’s RFC precludes her from 16 performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the 17 burden shifts to the Commissioner to show that the claimant has the RFC to perform other 18 work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 19 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant 20 “disabled” or “not disabled” at any point in the five-step process, he does not proceed to 21 the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 22 “The ALJ is responsible for determining credibility, resolving conflicts in medical 23 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 24 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 25 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 26 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a 27 preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 28 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 1 deny benefits only “when the ALJ’s findings are based on legal error or are not supported 2 by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 3 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve 4 conflicts in the evidence, and if the evidence can support either outcome, the court may not 5 substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson 6 v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 7 1190, 1198 (9th Cir. 2004). The Commissioner’s decision, however, “cannot be affirmed 8 simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 9 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 10 1989)). Reviewing courts must consider the evidence that supports as well as detracts from 11 the Commissioner’s conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). 12 DISCUSSION 13 Sanders argues the ALJ committed two errors: (1) he failed to account for 14 limitations arising from Sanders’s hand impairments; and (2) he failed to provide clear and 15 convincing reasons for rejecting her symptom testimony. 16 Hand Impairments 17 Sanders argues the ALJ erred in not finding her hand impairments severe at Step 18 Two and including manipulative limitations in the RFC. At Step Two, the ALJ found that 19 Sanders’s left hand condition was non-severe. (AR 36.) The ALJ noted Sanders’s history 20 of left hand surgery and 4/5 left upper extremity strength in August 2014, but he found that 21 “the evidence d[id] not demonstrate ongoing restrictions due to this condition.” (Id.) The 22 ALJ stated that he had considered Sanders’s reports of bodily pain related to the severe 23 impairment of fibromyalgia. (Id.) 24 A finding of disability requires an “inability to do any substantial gainful activity 25 by reason of any medically determinable physical or mental impairment.” 20 C.F.R. 26 §§ 404.1505, 416.905. A physical or mental impairment must last or be expected to last for 27 12 or more months and must be “established by medical evidence consisting of signs, 28 symptoms, and laboratory findings, not only by your statement of symptoms.” 20 C.F.R. 1 §§ 404.1508, 404.1509, 416.907, 416.909. An impairment is “not severe if it does not 2 significantly limit your physical or mental ability to do basic work activities.” 20 C.F.R. 3 §§ 404.1521, 416.921. 4 To support her severe-impairment argument, Sanders cites a November 2014 record 5 that also documented 4/5 left upper extremity strength (AR 341), and an August 2015 6 record documenting her report of left arm pain (AR 452). She argues the evidence, in total, 7 establishes handling limitations resulting from the prior surgery or bodily pain from 8 fibromyalgia. 9 Although Sanders reported to doctors that she had hand surgery in the late 1970s, 10 she never sought treatment specific to hand pain or limitations. Limited records indicate a 11 slight reduction in left arm strength and left arm pain but nothing specific to her hand. 12 Further, no record evidence or medical opinion documents any handling limitations. 13 Sanders had engaged in sedentary work for more than 30 years after her hand surgery and 14 there is no evidence of a change in symptoms, other than fibromyalgia pain which the ALJ 15 considered. Sanders points to no evidence of record that her hand impairment significantly 16 limited her ability to do basic work activities for 12 or more months. Further, the ALJ 17 acknowledged Sanders’s reports of pain and considered them when formulating the RFC. 18 Sanders failed to establish any other limitation that should have been included in the RFC 19 finding. In relation to Sanders’s hand impairment, she has not shown that the ALJ erred at 20 Step Two or in formulating the RFC. 21 Sanders’s Symptom Testimony 22 Sanders argues the ALJ failed to provide clear and convincing reasons to reject her 23 symptom testimony. In general, “questions of credibility and resolution of conflicts in the 24 testimony are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 25 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, 26 “[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] 27 cannot affirm such a determination unless it is supported by specific findings and 28 reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. 1 Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing 2 court the ALJ did not arbitrarily reject a claimant’s subjective testimony); SSR 96-7p. “To 3 determine whether a claimant’s testimony regarding subjective pain or symptoms is 4 credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 5 1028, 1035-36 (9th Cir. 2007). 6 Initially, “the ALJ must determine whether the claimant has presented objective 7 medical evidence of an underlying impairment ‘which could reasonably be expected to 8 produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell, 947 F.2d at 9 344). The ALJ found Sanders had satisfied part one of the test by proving an impairment 10 that could produce the symptoms alleged. (AR 41.) Next, “unless an ALJ makes a finding 11 of malingering based on affirmative evidence thereof, he or she may only find an applicant 12 not credible by making specific findings as to credibility and stating clear and convincing 13 reasons for each.” Robbins, 466 F.3d at 883; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th 14 Cir. 2003) (holding an ALJ can reject claimant testimony if he finds evidence of 15 malingering). Defendant argues there is sufficient evidence of malingering to preclude the 16 need to find other clear and convincing reasons to discount Sanders’s testimony. The ALJ 17 noted a primary care doctor documented that Sanders “[did] not seem to experience pain 18 when distracted.” (AR 41 (citing AR 354).) Although the ALJ mentioned this twice in his 19 opinion, he did not make an affirmative finding of malingering. Therefore, to support his 20 rejection of Sanders’s assertions regarding the severity of her symptoms, the ALJ had to 21 provide clear and convincing, specific reasons. See Robbins, 466 F.3d at 883. 22 In November 2014, Sanders completed an Exertional Daily Activities Questionnaire 23 in which she stated that bending over caused pain; her longest walk was 7 minutes to the 24 mailbox and back (AR 257); she cooked and did laundry and light chores, needing to rest 25 at least once per hour due to fatigue and pain; she was limited to lifting and carrying 5 26 pounds with either hand and did so infrequently (AR 257, 258); she grocery shopped once 27 per week with help from her children; she could sleep 3 hours in a row, for a total of 5-6 28 hours at night and a 1-2 hour afternoon nap (AR 258); she experienced chronic pain at all 1 times, with medication reducing it from 10 to a 7; her legs, torso, and arms ached 2 constantly; she often felt weak and tired (AR 257, 259); and she was taking diclofenac, 3 Lyrica, and Endocet (AR 260). In April 2015, Sanders completed a second Exertional Daily 4 Activities Questionnaire in which she stated that, when she was up to it, she did her 5 personal hygiene, dinner dishes, one load of laundry, cooking, or other chores, but had help 6 as necessary (AR 269, 270); due to pain she could not sit for long without putting up her 7 legs, her upper body ached when sitting still, her left arm was low functioning and her right 8 arm and left knee often ached (AR 269, 271); she could not concentrate for long due to 9 pain; her maximum walking was 100 yards for 10 minutes (AR 269); she avoided lifting 10 and could not do more than 5 pounds; she grocery shopped with help once a month; she 11 slept 1-2 hours undisturbed for a total of 5 hours a night; she rested many times a day and 12 sometimes took a 1-2 hour nap; and she was taking Lyrica, and acetaminophen and 13 Oxycodone for pain (AR 270). 14 At the hearing, Sanders testified that she slowly dressed herself most days but it 15 could be a struggle, and she tried to shower every other day but sometimes it was too much 16 to handle (AR 65-66, 67); most days she would cook, but she was not able to do so every 17 day due to pain or exhaustion (AR 66); she stated toileting could be difficult due to pain; 18 she did simple household chores such as one load of laundry but did not mop or vacuum 19 (AR 66, 67); she enjoyed sitting and sewing on a pillow if up to it; she went to Mass and 20 on occasional visits to her childrens’ homes; she shopped once per month after taking a 21 high dose of Tylenol, and her children did the lifting (AR 68); she slept at most 5 hours 22 and it was interrupted due to pain (AR 67-68); she could not perform telemarketing because 23 she was unable to sit all day (AR 73); with sitting, her hip pain radiated into her back and 24 down her leg, and the fibromyalgia caused radiating aching pain (AR 73-74); the pain had 25 gotten worse since 2014 and radiated into the groin area and her right knee had begun to 26 ache (AR 76); she could sit for 20 minutes, stand 15 minutes, and walk four blocks; she 27 tried to walk and exercise her legs but would stop before it caused pain; she could carry 28 1 only two pounds (AR 78); picking things up was difficult and often she used a pincher (AR 2 78-79); and she avoided stairs (AR 79). 3 The ALJ found that Sanders’s testimony about the effect of her symptoms was “not 4 generally consistent with the medical evidence and other evidence in the record”; therefore, 5 he included her symptom testimony in his functional assessment only as consistent with 6 other evidence. (AR 41.) The ALJ cited a variety of different ways in which record 7 evidence was not consistent with Sanders’s testimony that her symptoms precluded her 8 from doing even sedentary work. First, the ALJ relied upon Dr. Rayman’s finding that 9 Sanders did not seem to experience pain when distracted. (AR 355.) The doctor noted that 10 Sanders signaled tenderness to palpation of her back but evidenced lack of pain when 11 distracted. The ALJ was entitled to rely upon that finding. This was a specific, valid reason 12 to find Sanders’s pain testimony not fully credible. See Batson v. Comm’r of Soc. Sec. 13 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (finding ALJ properly relied on doctor that 14 found pain symptoms inconsistent with examination findings); Hamilton v. Comm’r of Soc. 15 Sec. Admin., 368 F. App’x 724, 726 (9th Cir. 2010) (finding ALJ properly relied on doctor 16 notes of claimant’s exaggerated pain response in evaluating claimant testimony). 17 Second, the ALJ discounted Sanders’s symptom testimony regarding her 18 fibromyalgia because she obtained some medication relief and her hepatitis C because it 19 improved with medication. The ALJ found these impairments were reflected in a sedentary 20 exertion level but noted that Sanders was not currently taking any prescription medications 21 for these conditions, indicating providers or Sanders did not find them necessary. (AR 42.) 22 Sanders does not dispute the ALJ’s finding that her hepatitis C improved with medication, 23 which is supported by the records showing that she was cured of the virus. (AR 490.) 24 Sanders also reported, after hepatitis C treatment, that she had more energy and less fatigue. 25 (AR 485.) 26 The ALJ also relied on Sanders’s fibromyalgia improving with medication and the 27 fact that she was not taking any prescription medication at the time of the hearing. Sanders 28 argues this was not a valid reason to discount her testimony because the record shows most 1 medications did not work for her or had intolerable side effects. In October and November 2 2014, Sanders reported Lyrica reduced her symptoms and she was tolerating the 3 medication. (AR 339, 358.) She discontinued Lyrica in February 2015, because it was not 4 helping. (AR 442.) However, she requested to restart it in April of that year and, in June, 5 reported it was helping. (AR 444, 446, 449.) Records don’t reveal why or when she stopped 6 taking it. At the January 2017 hearing, Sanders stated she was taking only GERD 7 medication because anti-inflammatory medications exacerbated the GERD and caused skin 8 peeling. (AR 75.) While intolerable side effects are a legitimate reason to decline 9 prescription medication, see SSR 96-3p, there is no evidence that Lyrica caused Sanders 10 unacceptable side effects. Additionally, Sanders had been prescribed other medications 11 over time that she reported as helping without side effects: diclofenac cream helped her 12 knee pain (AR 457), hydroxyzine helped her sleep (AR 457), and she had used a lidocaine 13 patch for pain without complaint (AR 456, 461, 464). Yet, at the time of the hearing, she 14 told the ALJ that her only prescription medication was for GERD. Sanders choice not to 15 use available prescription medications, without explanation, was a specific, valid reason to 16 find her symptom testimony not fully credible. See Parra, 481 F.3d at 751 (finding 17 treatment solely with over-the-counter pain medication grounds to discount claimant’s 18 testimony); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (relying on the claimant’s 19 absence of prescription medication use). 20 Third, in discussing Sanders’s symptom testimony, the ALJ noted that Sanders 21 declined physical therapy. (AR 42, 44.) An ALJ may discredit a claimant’s testimony for 22 an “‘unexplained or inadequately explained failure to seek treatment or to follow a 23 prescribed course of treatment,’” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) 24 (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)); Burch v. Barnhart, 25 400 F.3d 676, 681 (9th Cir. 2005) (finding failure to follow-through on recommended 26 treatment a valid reason to discount claimant’s pain testimony); SSR 16-3p (approving 27 discounting a claimant’s symptom testimony if she “fails to follow prescribed treatment 28 that might improve symptoms). Sanders’s primary care doctor recommended physical 1 therapy multiple times and she declined, stating she had tried it and found it not helpful. 2 (AR 350 (not interested in PT referral because prior round not beneficial), 449 (did “a lot” 3 of PT in the past but provided no documentation; refuses to do again), 464 (declining PT 4 “until she gets oral pain medications”).) The record contains documentation of Sanders 5 receiving physical therapy after a car accident in early 2013 (for neck, back, and right arm 6 pain) and finding the treatment beneficial. (AR 511-16.) Sanders refused recommended 7 treatment on the basis that she had tried it previously and it did not help. The only evidence 8 of prior physical therapy was not for fibromyalgia or hip pain, and she reported to her 9 therapist that she improved from the treatment. Despite acknowledging Defendant’s 10 argument on this point, Sanders did not dispute the ALJ’s finding regarding physical 11 therapy. (See Doc. 20 at 4-5.) Because Sanders refused treatment without a well-founded 12 reason, that was a valid reason for the ALJ to discount her symptom testimony. 13 Finally, there is substantial evidence to support the ALJ’s finding that the objective 14 medical evidence was unremarkable. The ALJ recognized that an MRI revealed 15 osteoarthritis in Sanders’s hips, mild to moderate on the right and moderate on the left, 16 with mild right bursitis. (AR 41.) Additionally, the ALJ ultimately acknowledged that 17 exams revealed that Sanders had an antalgic gait (AR 44), although earlier in his opinion 18 he noted “reports of steady ambulation without assistance and normal gait.” (AR 41). There 19 are limited records that reflect a normal gait but, on balance, the record demonstrates that 20 Sanders’s gait was slow or antalgic most of the time, and she walked with a cane at times. 21 (AR 321, 341, 346, 393, 398, 443, 446, 455, 464.) However, Sanders’s slump test was 22 negative (AR 321); at most appointments, Sanders was not in acute distress (AR 321, 340, 23 358, 397, 443, 450, 455, 460, 477, 488, 494); her leg strength and reflexes were normal 24 (AR 321, 341, 393, 397); she had normal muscle tone (352, 359, 443, 450); and she was 25 neurologically intact (AR 346, 393, 397). There are objective findings that support 26 Sanders’s position1 but “the key question is not whether there is substantial evidence that 27 1 Sanders typically (but not always) exhibited limited or painful range of motion in 28 her left hip or both hips. (AR 345, 393, 397, 466, 470, 472.) However, the ALJ limited her to sedentary work which would require only limited hip movement. 1 could support a finding of disability, but whether there is substantial evidence to support 2 the Commissioner’s actual finding that claimant is not disabled.” Jamerson v. Chater, 112 3 F.3d 1064, 1067 (9th Cir. 1997). There is substantial record evidence to support the ALJ’s 4 finding that, with limited exceptions accommodated by the ALJ with a sedentary exertion 5 level (AR 41), the objective medical evidence was unremarkable. See Valentine v. Comm’r 6 Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (defining substantial evidence as 7 “such relevant evidence as a reasonable mind might accept as adequate to support a 8 conclusion.”); Burch, 400 F.3d at 680–81 (9th Cir. 2005) (quoting Magallanes, 881 F.2d 9 at 750) (“[w]e must uphold the ALJ's decision where the evidence is susceptible to more 10 than one rational interpretation.”); Batson, 359 F.3d at 1196 (“When evidence reasonably 11 supports either confirming or reversing the ALJ’s decision, we may not substitute our 12 judgment for that of the ALJ.”). 13 The Court identified four valid grounds cited by the ALJ to find Sanders’s symptom 14 testimony not fully credible. The Court finds they are supported by substantial evidence 15 and satisfy the clear and convincing standard. Because these reasons are enough to affirm 16 the ALJ’s finding, the Court does not reach the remaining grounds upon which the ALJ 17 relied. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) 18 (upholding ALJ credibility finding based on multiple valid reasons even though other 19 reasons were legally erroneous). 20 CONCLUSION 21 A federal court may affirm, modify, reverse, or remand a social security case. 42 22 U.S.C. ' 405(g). The Court concludes the ALJ did not err as to the two claims raised by 23 Sanders. Therefore, Sanders is not entitled to relief and her appeal is denied. 24 Accordingly, 25 26 27 28 1 IT IS ORDERED that Plaintiffs case is DISMISSED and the Clerk of Court shall 2| enter judgment. 3 Dated this 8th day of July, 2019. 4 5 □ Liane 0. Pip onorable Lynnette C. Kimrins 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll-