Vargas 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 Maribel Vargas, No. CV-18-04712-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security 13 Administration, 14 Defendant. 15 16 At issue is the denial of Plaintiff Maribel Vargas’s Application for Disability 17 Insurance Benefits by the Social Security Administration (“SSA”) under the Social 18 Security Act. Plaintiff filed a Complaint (Doc. 1) seeking judicial review of that denial, 19 and the Court now addresses Plaintiff’s Opening Brief (Doc. 15, Pl. Br.), Defendant SSA 20 Commissioner’s Opposition (Doc. 18, Def. Br.), and Plaintiff’s Reply (Doc. 19, Reply). 21 The Court has reviewed the briefs and the Administrative Record (Doc. 14, R.) and now 22 reverses the Administrative Law Judge’s (“ALJ”) decision (R. at 8–18) as upheld by the 23 Appeals Council (R. at 1–7). 24 I. BACKGROUND 25 Plaintiff filed her Application on March 2, 2015 for a period of disability beginning 26 on February 12, 2015. (R. at 11.) Her claim was denied initially on April 25, 2015, and 27 upon reconsideration on September 11, 2015. (Id.) Plaintiff then testified at a video hearing 28 held before the ALJ on July 24, 2017. (Id.) On January 12, 2018, the ALJ denied Plaintiff’s 1 Application. (R. at 8–18.) This decision became final on October 18, 2018, when the 2 Appeals Council denied Plaintiff’s request for review. (R. at 1–7.) 3 The Court has reviewed the medical evidence in its entirety and finds it unnecessary 4 to provide a complete summary here. The pertinent medical evidence will be discussed in 5 addressing the issues raised by the parties. In short, upon considering the medical records 6 and opinions, the ALJ evaluated Plaintiff’s disability based on the following severe 7 impairments: degeneration of intervertebral disc of the lumbar region, lumbar spinal 8 stenosis, lumbar radiculopathy, lumbosacral spondylosis, and obesity. (R. at 13.) 9 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 10 that Plaintiff is not disabled. (R. at 18.) The ALJ determined that Plaintiff “does not have 11 an impairment or combination of impairments that meets or medically equals the severity 12 of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 13.) 13 The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform 14 sedentary work with some limitations. (R. at 14.) Specifically, Plaintiff “would be limited 15 to occupations that require no more than occasional postural maneuvers, such as balancing, 16 stooping, kneeling, crouching, crawling and climbing on ramps and stairs.” (Id.) Further, 17 Plaintiff “must avoid occupations that require climbing on ladders, ropes and scaffolds” 18 and “should avoid all exposure to dangerous machinery and unprotected heights.” (Id.) 19 Consequently, the ALJ concluded that Plaintiff “is unable to perform any past relevant 20 work” but can perform some work in the national economy. (R. at 17.) 21 II. LEGAL STANDARD 22 In determining whether to reverse an ALJ’s decision, the district court reviews only 23 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 24 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s disability 25 determination only if the determination is not supported by substantial evidence or is based 26 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 27 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 28 person might accept as adequate to support a conclusion considering the record as a 1 whole. Id. To determine whether substantial evidence supports a decision, the court must 2 consider the record as a whole and may not affirm simply by isolating a “specific quantum 3 of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than 4 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 5 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 6 omitted). 7 To determine whether a claimant is disabled for purposes of the Act, the ALJ 8 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 9 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 10 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 11 the claimant is presently engaging in substantial gainful activity. 12 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. 13 At step two, the ALJ determines whether the claimant has a “severe” medically 14 determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the 15 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 16 the claimant’s impairment or combination of impairments meets or medically equals an 17 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404 and meets the duration 18 requirement. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 19 be disabled. Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the 20 claimant’s RFC and determines whether the claimant is still capable of performing past 21 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the 22 inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where the ALJ 23 determines whether the claimant can perform any other work in the national economy 24 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 25 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 26 Id. 27 III. ANALYSIS 28 Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ erred by 1 rejecting Plaintiff’s symptom testimony without providing clear and convincing reasons 2 supported by substantial evidence; and (2) the ALJ erred in determining Plaintiff’s RFC. 3 (Pl. Br. at 7–18.) 4 A. The ALJ erred by rejecting Plaintiff’s symptom testimony. 5 At the video hearing before the ALJ, Plaintiff testified that her back pain is 6 constantly at a nine or nine and a half out of ten. (R. at 56.) She testified that she cannot 7 stand or sit for long and spends much of her time lying down in bed. (R. at 51.) She testified 8 that she sits upright for only about 20–25 percent of each day and drives approximately 9 twice per day, three times per week. (R. at 51, 53.) She also testified that she uses a cane 10 and walker to help her walk. (R. at 55.) 11 The ALJ discounted Plaintiff’s symptom testimony for two reasons. First, the ALJ 12 found that Plaintiff’s “statements concerning the intensity, persistence and limiting effects 13 of [her] symptoms are not entirely consistent with the medical evidence and other evidence 14 in the record” and that the record contained no opinions by physicians that Plaintiff was 15 precluded from all work activity. (R. at 16.) Second, the ALJ found that Plaintiff’s course 16 of treatment was “conservative.” (Id.) 17 An ALJ performs a two-step analysis to evaluate the credibility of a claimant’s 18 testimony regarding subjective pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 19 (9th Cir. 2014). First, the ALJ evaluates whether the claimant has presented objective 20 medical evidence of an impairment “which could reasonably be expected to produce the 21 pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 22 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal 23 quotation marks omitted)). Second, if the claimant presents such evidence and if there is 24 no evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity 25 of her symptoms only by offering specific, clear and convincing reasons for doing so.” 26 Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 27 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. An ALJ’s 28 “vague allegation” that a claimant’s symptom testimony is inconsistent with the medical 1 record does not meet the clear and convincing standard. Treichler v. Comm’r of Soc. Sec. 2 Admin., 775 F.3d 1090, 1102–03 (9th Cir. 2014). Similarly, an ALJ cannot satisfy the clear 3 and convincing standard based solely upon “a lack of medical evidence to fully corroborate 4 the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 5 The ALJ found that Plaintiff met the first step of the credibility analysis: “the 6 undersigned finds that the claimant’s medically determinable impairments could 7 reasonably be expected to produce the above alleged symptoms.” (R. at 16.) She did not 8 find that Plaintiff was a malingerer. (Id.) Therefore, to reject Plaintiff’s pain testimony, the 9 ALJ was required to offer clear and convincing reasons for doing so and substantial 10 evidence supporting her determination. Id. at 680. Neither of the ALJ’s two reasons for 11 rejecting Plaintiff’s symptom testimony meet this standard. 12 1. Testimony “inconsistent” with medical record 13 The ALJ’s first stated reason for discounting Plaintiff’s testimony was because the 14 testimony was “not entirely consistent” with the medical record. (R. at 16.) A review of the 15 ALJ’s analysis, however, shows that this conclusion was more properly characterized as a 16 lack of medical evidence supporting Plaintiff’s claims, rather than inconsistent evidence. 17 (R. at 15–16.) The lack of medical evidence conclusion is supported by substantial 18 evidence for the reasons discussed below. It does not meet the clear and convincing 19 standard, however, because a lack of medical evidence alone is an insufficient basis for 20 rejecting Plaintiff’s symptom testimony. See Burch, 400 F.3d at 680 (finding that a “lack 21 of medical evidence cannot form the sole basis for discounting pain testimony”). 22 The ALJ found that a January 2016 MRI of Plaintiff’s lumbar spine revealed only 23 mild narrowing, and March 2016 x-rays of Plaintiff’s lumbar spine revealed vertebrae 24 slippage, “but no significant degeneration and no complications with implants nor 25 instrumentation.” (R. at 15–16.) The ALJ also found that Plaintiff’s physical exams on 26 March 3, 2016 and December 15, 2016 revealed “minimal objective findings, including 27 tenderness in the lumbar area, which was noted to be out of proportion to the pressure 28 applied to the area.” (R. at 16.) The ALJ also noted that although Plaintiff began 1 complaining of neck pain and cervical radiculopathy symptoms, a February 2016 MRI of 2 Plaintiff’s cervical spine “revealed only a mild disc bulge” and a same-day physical exam 3 “revealed only minimal findings of paracervical tenderness and muscle rigidity.” (Id.) 4 Finally, the ALJ found that “no physician on file has opined of limitations that would 5 preclude [Plaintiff from] all work activity.” (Id.) 6 Plaintiff argues that the ALJ relied on boilerplate language and made no effort “to 7 connect the discussion of the medical evidence to a finding that any specific part of the 8 symptom testimony lacked credibility.” (Pl. Br. at 9–10.) Plaintiff also argues that the 9 ALJ’s analysis of Plaintiff’s reported symptoms was incorrect because the law does not 10 require a claimant’s medical records to be entirely consistent with the reported severity of 11 symptoms. (Pl. Br. at 9.) Plaintiff’s arguments on this point lack merit. The ALJ provided 12 a detailed review of Plaintiff’s symptom testimony and identified specific examples of 13 medical evidence that do not support Plaintiff’s allegations of pain or limitations. 14 Plaintiff also argues that the absence of formal assessments by Plaintiff’s physicians 15 regarding her limitations was an improper reason for the ALJ to discredit Plaintiff’s 16 symptom testimony because “[t]he absence of evidence is not evidence.” (Pl. Br. at 14.) 17 Though Plaintiff is correct that the ALJ cannot rely solely on a lack of objective medical 18 evidence to discredit Plaintiff’s symptom testimony, it is one factor the ALJ can consider. 19 See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Moreover, the ALJ did not 20 summarily dismiss Plaintiff’s complaints, but instead considered them among the medical 21 evidence of record. Though the evidence may support an interpretation more favorable to 22 Plaintiff, the ALJ’s interpretation was rational, and the Court upholds the decision where 23 the evidence is subject to more than one rational interpretation. Burch, 400 F.3d at 680– 24 81. Therefore, the ALJ’s conclusion that Plaintiff’s testimony is “inconsistent” with (or, 25 more accurately, unsupported by) the medical record is therefore supported by substantial 26 evidence. See Kallenbach v. Berryhill, 766 Fed.Appx. 518, 521 (9th Cir. 2019). Because 27 the proffered justification alone is not a sufficient basis for rejecting Plaintiff’s symptom 28 testimony, however, Burch, 400 F.3d at 680, it was not a clear and convincing justification 1 for doing so. 2 2. Conservative treatment 3 The ALJ’s second reason for rejecting Plaintiff’s symptom testimony—that it was 4 inconsistent with her conservative course of treatment—is a clear and convincing reason 5 for doing so but is not supported by substantial evidence in this case. Evidence of 6 conservative treatment is a valid reason to discredit a claimant’s symptom testimony unless 7 the claimant provides a “good reason” for not seeking alternative treatment. Carmickle v. 8 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).1 9 Plaintiff provides good reasons for pursuing conservative treatment.2 First, Plaintiff 10 testified, and medical records support, that she cannot tolerate pain medications due to the 11 gastric sleeve surgery she underwent in 2013.3 (R. at 51–52.) Plaintiff’s well-recorded 12 intolerance for pain medication is acknowledged by both the Commissioner and the ALJ 13 14 1 The policy behind this rule is that conservative treatment “can undermine allegations of debilitating pain.” Carmickle, 553 F.3d at 1162. When a claimant “complains 15 about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or 16 exaggerated. In the case of a complaint of pain, such failure may be probative of credibility, because a person’s normal reaction is to seek relief from pain, and because modern 17 medicine is often successful in providing some relief.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (internal citation omitted). 18 2 Plaintiff disputes the ALJ’s characterization of Plaintiff’s treatment as 19 conservative. (Pl. Br. at 12–13.) Specifically, Plaintiff points out that “the ALJ herself noted that [Plaintiff] had a spinal fusion, a laminectomy, and bariatric surgery in attempts 20 to relieve her back pain, none of which can reasonably be considered ‘conservative measures.’” (Pl. Br. at 12.) As the Commissioner points out, the ALJ more accurately 21 characterized Plaintiff’s treatment after her surgeries and the filing of her Application as conservative, because this was the “relevant period” in which Plaintiff claimed that she 22 was disabled. (Def. Br. at 14, R. at 15.) This treatment consisted of facet injections, a TENS unit, and a back brace. (Def. Br. at 14, R. at 15–16). Courts in this Circuit have similarly 23 characterized relatively more minor treatments obtained after more extensive procedures including surgeries, but during the claimed disability period, as conservative. See, e.g., 24 Real v. Berryhill, 2018 WL 4907612, at *10 (E.D. Cal. Oct. 9, 2018); Higinio v. Colvin, No. EDCV 12-1820 AJW, 2014 WL 47935, at *5 (C.D. Cal. Jan. 7, 2014). Therefore, the 25 ALJ’s characterization of Plaintiff’s treatment as conservative was proper. 26 3 Relatedly, Plaintiff argues that although she was unable to take narcotics, the fact that her physicians recommended it supports her argument that her treatment was not 27 conservative and that her disability is real. (Pl. Br. at 12.) This argument lacks merit because an ALJ could reasonably find that Plaintiff’s treatment record as a whole was 28 conservative despite the fact that Plaintiff was prescribed narcotics. See Real, 2018 WL 4907612, at *10. 1 (Def. Br. at 14–15, R. at 15) and was an improper basis for discrediting Plaintiff’s symptom 2 testimony. See Carmickle, 533 F.3d at 1162. 3 Plaintiff also testified that pain management was ineffective at treating her 4 symptoms. (R. at 53.) In her decision, the ALJ took issue with the fact that Plaintiff did not 5 see a pain specialist despite being referred to one.4 (R. at 16.) However, medical records 6 indicate that pain management, namely pain medication and epidural injections, was 7 ineffective. For example, Dr. Evangelista’s records indicate that Plaintiff received two 8 epidural injections in her lower back in October 2016 and reportedly did not experience 9 relief. (R. at 556.) Dr. Evangelista also recorded in November and December 2016 that 10 Plaintiff was “being followed” by Dr. Castillo for pain management. (R. at 556, 562.) 11 Finally, the ALJ acknowledged that Plaintiff’s “pain was unrelieved by conservative 12 measures,” which according to the ALJ included epidural shots, medication management, 13 physical therapy, facet injections, a TENS unit, and a back brace. (R. at 15–16.) Since 14 conservative treatment was ineffective at treating Plaintiff’s symptoms, and more 15 aggressive treatment, like surgery, was not recommended,5 it is unclear what types of 16 treatment the ALJ believed Plaintiff should pursue. See Tommasetti v. Astrue, 533 F.3d 17 1035, 1039–40 (9th Cir. 2008) (finding that claimant’s favorable response to conservative 18 treatment undermined his reports about the disabling nature of his pain). 19 In sum, the ALJ erred in discounting Plaintiff’s symptom testimony. Neither of the 20 ALJ’s two justifications for doing so met both requirements of being clear and convincing 21 reasons and also supported by substantial evidence. Discounting Plaintiff’s symptom 22 23 4 The ALJ cited to a medical record from Dr. Shawn F. Hermenau, who concluded 24 in March 2016 that surgery would not “meet [Plaintiff’s] expectations or improve her functional ability” and recommended that Plaintiff see “a pain specialist to improve her 25 visual analog scale score and hopefully improve her overall functional ability.” (R. at 411.) The ALJ also cited to a medical record from Dr. Adelbert Evangelista who noted in January 26 2016 that she referred Plaintiff to Dr. Shanti for pain management. (R. at 526.) 27 5 Plaintiff underwent surgery in 2012 and 2013 which appears from Dr. Christopher Yeung’s records to have provided Plaintiff with some, but not complete, relief. (R. at 323.) 28 In December and March 2016, Dr. Hermenau noted that he believed surgery would not meet Plaintiff’s expectations or improve her pain. (R. at 405, 411.) 1 testimony on these grounds was therefore improper. 2 B. The ALJ erred in determining Plaintiff’s RFC. 3 Plaintiff argues that the ALJ erred in determining Plaintiff’s RFC because she did 4 not articulate a basis for it. (Pl. Br. at 17.) In concluding that Plaintiff could perform 5 sedentary work with some limitations, the ALJ provided a comprehensive assessment of 6 Plaintiff’s medical records but gave little weight to Plaintiff’s symptom testimony and the 7 opinions of state agency medical consultants, Charles Fina, M.D. and Melvin Roberts, 8 M.D. (R. at 14–16.) 9 When calculating a claimant’s RFC, the ALJ must account for all relevant medical 10 evidence and descriptions of claimant’s limitations. 20 C.F.R. § 416.945(a)(3); Laborin v. 11 Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). This Court will affirm an ALJ’s RFC 12 determination where the ALJ has applied the proper legal standard and supported her 13 decision with substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 14 2005). 15 With regard to Plaintiff’s symptom testimony, although the ALJ articulated one 16 valid reason for discounting the testimony, it was insufficient on its own, and the ALJ’s 17 second reason was not supported by substantial evidence. When determining Plaintiff’s 18 RFC, the ALJ explained that Plaintiff’s symptom testimony “ha[s] been found to affect 19 [her] ability to work only to the extent [the testimony] can reasonably be accepted as 20 consistent with the objective medical and other evidence.” (R. at 16.) The ALJ reverted to 21 using boilerplate language and failed to point to precisely what portions of Plaintiff’s 22 testimony she considered in formulating Plaintiff’s RFC. This was error. 23 With regard to the state agency consultants, the ALJ gave their opinions little weight 24 because they “were not privy to all of the medical records” and appeared to have not taken 25 into “consideration all of the limitations the claimant would experience as a result of her 26 impairments.” (Id.) Plaintiff points out that the ALJ rejected the only medical opinion 27 evidence in the record and then provided her own opinion about Plaintiff’s work capacities 28 without explaining how she arrived at her conclusion. (Pl. Br. 16–17.) The Court 1 acknowledges that the ALJ gave “little weight” to the consultants’ opinions rather than 2 outright “rejecting” them. However, because the ALJ did not articulate what other evidence 3 she considered, it is unclear how she arrived at her conclusion that Plaintiff could perform 4 sedentary work with some limitations. 5 C. The credit-as-true rule does not apply. 6 Plaintiff asks that the Court apply the “credit-as-true” rule, which would result in a 7 remand of Plaintiff’s case for payment of benefits rather than for further proceedings. (Pl. 8 Br. at 18.) The credit-as-true rule only applies in cases where three elements are present. 9 Treichler, 775 F.3d at 1099–1102. First, the ALJ must have failed to provide legally 10 sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the record must be 11 fully developed, there must be no outstanding issues that must be resolved before a 12 determination of disability can be made, and the Court must find that further administrative 13 proceedings would not be useful. Id. at 1101. Further proceedings are considered useful 14 when there is conflicting evidence and ambiguities that must be resolved. Id. Third, “if the 15 improperly discredited evidence were credited as true, the ALJ would be required to find 16 the claimant disabled on remand.” Garrison, 759 F.3d at 1020. Even if these requirements 17 are met, “the Court still retains the flexibility to remand for further proceedings when the 18 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 19 within the meaning of the Social Security Act.” Guillen v. Colvin, 2014 WL 4656422, at 20 *10 (C.D. Cal. Sept. 17, 2014) (citing Garrison, 759 F.3d at 995). 21 Here, the ordinary remand rule applies. Although the ALJ improperly rejected 22 Plaintiff’s symptom testimony because of her conservative treatment, the ALJ articulated 23 several aspects of Plaintiff’s testimony and medical record that raise serious doubt as to 24 whether Plaintiff is disabled.6 Therefore, further proceedings are appropriate, in which the 25 ALJ must adequately explain what evidence she considered in discounting Plaintiff’s 26 27 6 In addition to the evidence the ALJ cited, Dr. Hermenau opined that Plaintiff’s pain is not “related to the structure or any abnormalities of the spinal column itself” and 28 physical therapy would help with desensitization and core muscle strengthening. (R. at 411.) ! symptom testimony and formulating Plaintiff's RFC. 2 IT IS THEREFORE ORDERED reversing the January 12, 2018 decision of the 3 Administrative Law Judge (R. at 8-22). 4 IT IS FURTHER ORDERED remanding this matter for further consideration ° consistent with this Order, which will include reassessing the credibility of Plaintiffs 6 symptom testimony and adjusting the residual functional capacity presented to a vocational expert as necessary. 8 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment 9 accordingly and terminate this matter. Dated this 6th day of December, 2019. B Michael T, Liburdi United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ll-