Johnson 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 Michael Ross Johnson, No. CV-19-01273-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Michael Ross Johnson’s (“Plaintiff”) appeal from the 16 Social Security Commissioner’s (“Commissioner”) denial of his application for a period 17 of disability, disability insurance benefits, and Supplemental Security Income (“SSI”) 18 under Title II of the Social Security Act, 42 U.S.C. §§ 401–434. (Doc. 1). The Court now 19 rules on the appeal. 20 I. BACKGROUND 21 Plaintiff filed an application for disability insurance benefits on January 26, 2016. 22 (Doc. 11-11 at 21–22 (Ex. 1A at 1–2)). Plaintiff’s application was denied at the initial 23 stage, upon reconsideration, and by the ALJ after a hearing. (Id. at 45, 54 (Ex. 5A at 4, 24 13)). However, Plaintiff prevailed on review before the Appeals Council, and the Appeals 25 Council vacated the ALJ’s decision and remanded. (Id. at 61–62 (Ex. 6A at 2–3)). On 26 remand, the ALJ again denied the claim, and the Appeals Council affirmed on review. 27 (Doc. 11-5 at 34–44 (ALJ’s decision); Doc. 1)). Plaintiff then sought review in this Court. 28 (Doc. 1). 1 a. The Disability Determination 2 A claimant seeking social security benefits must show he “is under a disability.” 3 42 U.S.C. § 423(a)(1)(E). If the claimant shows he suffers from a medically determinable 4 physical or mental impairment that prevents him from engaging in “substantial gainful 5 activity,” the claimant is disabled. Id. § 423(d)(1)–(2). An Administrative Law Judge 6 (“ALJ”) goes through a five-step process to determine whether the claimant is disabled. 7 20 C.F.R. § 404.1520(a)(1). If the ALJ determines that the claimant is not disabled at any 8 step, the analysis ends. Id. § 404.1520(a)(4). The claimant has the burden of proving 9 disability through steps one to four, and the burden shifts to the Commissioner at step 10 five. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 11 At step one, the ALJ must determine whether the claimant is “doing substantial 12 gainful activity.” § 404.1520(a)(4)(i). If not, the ALJ must proceed to step two and 13 determine if the claimant has a physical or mental impairment or a combination of 14 impairments that are “severe.” Id. § 404.1520(a)(4)(ii). If the ALJ finds severe 15 impairment, the ALJ must proceed to step three to analyze whether the claimant’s 16 impairment or combination of impairments meets or medically equals an impairment 17 listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, 18 the claimant is disabled. Id. If not, the ALJ must then assess the claimant’s “residual 19 functional capacity” (“RFC”) before proceeding to step four. Id. § 404.1520(a)(4). The 20 RFC represents the most a claimant “can still do despite [his] limitations.” Id. 21 § 404.1545(a)(1). At step four, the ALJ determines whether the claimant can still do “past 22 relevant work” given the claimant’s RFC. Id. § 404.1520(a)(4)(iv). If not, the ALJ 23 proceeds to the fifth and final step where the ALJ evaluates whether the claimant “can 24 make an adjustment to other work” in light of the claimant’s RFC, age, education, and 25 work experience. Id. § 404.1520(a)(4)(v). 26 b. The ALJ’s Decision 27 Here, the ALJ denied Plaintiff’s claim for disability benefits because the ALJ 28 concluded that Plaintiff could do past relevant work. (Doc. 11-5 at 43–44). The ALJ 1 found that Plaintiff did not engage in substantial gainful activity during the asserted 2 period of disability. (Id. at 36). At step two, the ALJ found that Plaintiff “has the 3 following severe impairments: rheumatoid arthritis, immune deficiencies, atrial 4 fibrillation, mood disorder, and post-traumatic stress disorder (PTSD).” (Id.) The ALJ 5 found that Plaintiff’s intermittent migraines are not a severe impairment. (Id.). 6 At step three, the ALJ concluded that Plaintiff’s severe impairments, considered 7 singularly or in combination, “do[] not meet[] or medically equal[] the severity of one of 8 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Id.). In performing 9 the RFC analysis, the ALJ considered the opinions of various medical providers that had 10 reviewed Plaintiff’s conditions. (Id. at 38, 40–43). After reviewing all the evidence in the 11 record—including Plaintiff’s testimony, the objective medical evidence, and the opinions 12 of the medical providers—the ALJ concluded that Plaintiff had only mild limitations. 13 (See id. at 38). Given this finding, at step four, the ALJ determined that Plaintiff could 14 perform past relevant work as a claims processor. (Id. at 43). Thus, the ALJ determined 15 that Plaintiff was not entitled to disability benefits. (Id. at 44). 16 II. LEGAL STANDARD 17 An ALJ’s decision to deny a disability benefits claim may be reversed only when 18 the decision “is based on legal error or is not supported by substantial evidence.” Ryan v. 19 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). “Substantial 20 evidence is more than a mere scintilla but less than a preponderance.” Id. (citation 21 omitted). “The inquiry here is whether the record, read as a whole, yields such evidence 22 as would allow a reasonable mind to accept the conclusions reached by the ALJ.” 23 Gallant, 753 F.2d at 1453 (citation omitted). The ALJ, as the trier of fact, “must resolve 24 conflicts in the evidence, and if the evidence can support either outcome, the [C]ourt may 25 not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 26 (9th Cir. 1992). In fact, it is the ALJ’s responsibility to resolve conflicts in medical 27 testimony, determine credibility, and resolve ambiguities. See Andrews v. Shalala, 53 28 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1 1989). In doing so, the ALJ “is entitled to draw inferences logically flowing from the 2 evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). The Court must 3 not reweigh the evidence, but instead, the Court’s limited task is to review the ALJ’s 4 decision to ensure it is free from legal error and supported by substantial evidence. 5 Winans v. Bowen, 853 F.2d 643, 644 (9th Cir. 1987). 6 III. ANALYSIS 7 Plaintiff argues that the ALJ erred because Plaintiff asserts the ALJ improperly 8 weighed an opinion of Plaintiff’s examining psychologist, the ALJ failed to consider 9 Plaintiff’s bilateral tremor in the severe impairment analysis, and the ALJ did not resolve 10 a conflict between the vocational expert’s testimony in the first, vacated, hearing and the 11 vocational expert’s testimony in the second hearing. (Doc. 12). 12 a. Weight of Opinion Evidence 13 Plaintiff first contends that the ALJ’s decision must be reversed and remanded 14 because the ALJ failed to give legally sufficient reasons for giving “partial weight” to 15 Plaintiff’s consultative examining psychologist, Dr. Rabara. (Doc. 12 at 4–7). Plaintiff 16 contends that the ALJ erred because the ALJ did not provide a specific reason for 17 partially discounting Dr. Rabara’s opinion that Plaintiff has “moderate difficulty 18 interacting appropriately with co-workers and supervisors.” (Id. at 6). 19 An ALJ may discount the opinion of an examining psychologist when that opinion 20 is contradicted by the opinion of another doctor and the ALJ provides “specific and 21 legitimate reasons that are supported by substantial evidence” for rejecting the examining 22 psychologist’s opinion.1 See Ryan, 528 F.3d at 1198 (citations omitted). When the ALJ 23 credits a non-examining opinion, that is supported by other evidence in the record, and 24 that opinion contradicts the examining psychologist’s opinion, there is a specific and 25 legitimate reason, supported by substantial evidence, to discount the examining 26 psychologist’s opinion. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 27 1 The agency psychological consultants’ opinions contradicted Dr. Rabara’s opinion, (Doc. 11-5 at 41; Doc. 11-11 at 32–33); therefore, the ALJ only needed specific and 28 legitimate reasons to partially credit Dr. Rabara’s opinion. Garcia v. Colvin, 162 F. Supp. 3d 1096, 1103 (D. Or. 2016) 1 Cir. 1999); Magallanes, 881 F.2d at 752–53. Inconsistency between a claimant’s 2 testimony and the examining psychologist’s opinion is also a specific and legitimate 3 reason for discounting an examining psychologist’s opinion. Morgan, 169 F.3d at 602– 4 03. Indeed, it is the ALJ’s responsibility to determine whether inconsistencies are 5 material and what factors are relevant in evaluating whether to discount the opinion of an 6 examining psychologist. Id. at 603. 7 The ALJ did not err by giving partial weight to Dr. Rabara’s opinions. (Doc. 11-26 8 at 50–58 (Ex. 21F)). The ALJ outlined the inconsistencies between Dr. Rabara’s opinion 9 and the evidence in the record as a whole. (Doc. 11-5 at 39–42). The ALJ cited the fact 10 that Plaintiff not only is engaged in a great deal of social activities but also that his 11 treating providers “repeatedly noted the claimant to be cooperative, pleasant, calm, and or 12 [sic] socially appropriate.” (Id. at 40). Further, both the ALJ and Dr. Rabara himself 13 indicated that Plaintiff was not credible on numerous topics and that Plaintiff overstated 14 his symptoms and impairments.2 (See, e.g., id. at 39–40; Doc. 11-26 at 56–57 (Ex. 21F at 15 7–8)). This perceived incredulity is especially problematic because Dr. Rabara based his 16 opinions “on a single consultation and limited information.” (Doc. 11-26 at 57 (Ex. 21F 17 at 8)). Also, it appears that Dr. Rabara did not review Plaintiff’s medical record, (id. at 50 18 (Ex. 21F at 1)),3 which limits the value of his opinion. See, e.g., McLemore v. Berryhill, 19 727 F. App’x 435, 436 (9th Cir. 2018) (“[T]he opinion of a consulting examiner based on 20 a one-time examination of the claimant with no review of the medical records is of little 21 value.” (citing Reddick v. Chater, 157 F.3d 715, 727 (9th Cir. 1998))); Morgan, 169 F.3d 22 at 602 (noting that an ALJ may discount an examining medical provider’s opinion when 23 2 Specifically, the ALJ found that Plaintiff’s “statements concerning the intensity, persistence[,] and limiting effects of [his] symptoms are not entirely consistent with the 24 medical evidence and other evidence in the record.” (Doc. 11-5 at 39). Thus, the ALJ discredited Plaintiff’s testimony because Plaintiff overexaggerated the extent of his 25 impairments, which is what Dr. Rabara also found. Notably, on appeal, Plaintiff did not challenge the ALJ’s discounting of Plaintiff’s testimony. 26 3 In fact, Dr. Rabara reported that the only record he reviewed was a Compensation and 27 Pension Decision Letter, dated July 28, 2016, from the Department of Veteran Affairs. (Doc. 11-26 at 50 (Ex. 21F at 1)). Dr. Rabara noted, in conclusion, “[r]eviewing any 28 available behavioral health treatment records could provide further insights and diagnostic clarification.” (Id. at 57 (Ex. 21F at 8)). 1 it is “premised to a large extent upon the claimant’s own accounts of his symptoms and 2 limitations” and the claimant’s “complaints have been ‘properly discounted’” (citation 3 omitted)). In short, the inconsistency between the record—including Plaintiff’s own 4 testimony and prior statements—and Dr. Rabara’s opinion was a specific and legitimate 5 reason that was supported by substantial evidence for partially discounting his opinion. 6 The ALJ’s decision to partially discount Dr. Rabara’s opinion is also supported by 7 the ALJ’s decision to partially credit the agency psychological consultants’ opinions. 8 (Doc. 11-5 at 41). Although the ALJ disagreed with the consultants’ finding that 9 Plaintiff’s mental impairments were non-severe, the ALJ concluded that these 10 impairments were not disabling “given the rather unremarkable objective signs” of 11 Plaintiff’s impairments. (Id.). This determination was consistent with the psychological 12 consultants’ opinions. The consultants noted, among other things, that “[o]verall, the 13 evidence supports that [Plaintiff] is able to function well socially” and that “[h]e appears 14 to be able to function well interpersonally, when not in disability-seeking settings.” (Doc. 15 11-11 at 32–33). Likewise, as noted above, the ALJ also found that Plaintiff is able to 16 function socially, just as the psychological consultants did. (Doc 11-5 at 39–40). The 17 ALJ’s reliance on the psychological consultants’ opinions was within the ALJ’s 18 responsibility to review the record and resolve any conflicts. 19 Therefore, the ALJ properly discounted Dr. Rabara’s opinion relating to Plaintiff’s 20 ability to interact with supervisors and coworkers because the objective medical evidence 21 was inconsistent with this opinion and the agency consultants’ opinions contradicted it. It 22 is of no moment that the ALJ did not regurgitate the analysis he outlined earlier in his 23 decision, (Doc. 11-5 at 38–40), in the paragraph in which he discounted Dr. Rabara’s 24 opinion, as Plaintiff seemingly contends. (See Doc. 12 at 6). In reviewing the ALJ’s 25 decision, the Court may “draw inferences” based on the reasoning within the decision as 26 a whole. Magallanes, 881 F.3d at 755. In other words, the Court is not limited to the 27 reasoning that appears after the ALJ “recite[s] the magic words, ‘I reject [Dr. Rabara]’s 28 opinion.’” Id. The ALJ’s analysis, read in toto, and the reasonable inferences from that 1 analysis, provided sufficient specific and legitimate reasons, supported by substantial 2 evidence, for the ALJ’s decision to partially discount Dr. Rabara’s opinion. 3 b. ALJ’s Analysis of Bilateral Tremor 4 Plaintiff argues next that the ALJ’s decision must be reversed and remanded 5 because Plaintiff asserts the ALJ did not “properly assess[] the medical evidence related 6 to Plaintiff’s tremor at step two.”4 (Doc. 12 at 8). This argument fails, because as the 7 Commissioner notes, (Doc. 17 at 10–11), the ALJ considered the Plaintiff’s allegation of 8 tremors within his analysis of Plaintiff’s RFC. (Doc. 11-5 at 40). The ALJ specifically 9 stated, “[d]espite [Plaintiff’s] allegations of manipulative difficulties and limited lifting, 10 muscle strength as well as grip strength were repeatedly noted as normal.” (Id. (citing 11 Doc. 11-19 at 71 (Ex. 7F at 272) (noting grip and pinch on both hands had “[n]ormal 12 strength”); Doc. 11-27 at 89 (Ex. 25F at 37) (stating “[g]rip strength and finger abductor 13 strength of both hands is [sic] normal”))). The ALJ also credited the agency doctors’ 14 opinions on Plaintiff’s physical condition with significant weight. (Id. at 41). Part of the 15 doctors’ opinions included that Plaintiff’s exam only revealed a “‘slight to mild action 16 tremor,’ which does not even warrant medication treatment, per [Plaintiff’s] neurologist 17 (VA Richard Burns, MD 12/14/15).” (Doc. 11-11 at 16 (Ex. 2A at 14); see also id. (Ex. 18 2A at 14) (“[Plaintiff’s] handwriting on the ADL forms shows no evidence of tremor.” 19 (emphasis added))). Finally, the ALJ noted that Plaintiff’s activities include “creating art, 20 computer use, ironing, and dusting,” which all “require significant manipulative 21 functioning.” (Doc. 11-5 at 41). In sum, any error relating to the ALJ’s failure to discuss 22 Plaintiff’s tremor at step two was harmless because the ALJ considered, and rejected, 23 Plaintiff’s allegations and manipulative difficulties based on the record. See Lewis v. 24 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 25 26 4 Plaintiff also appears to suggest that the ALJ did not properly address Plaintiff’s 27 diagnosis of somatic symptom disorder. (Doc. 12 at 8). However, Plaintiff did not develop this argument whatsoever. Therefore, the Court will not evaluate this claim as it 28 is Plaintiff’s burden to show that the ALJ erred. See Eric W. v. Comm’r of Soc. Sec., No. C19-5145 RSM, 2019 WL 5103767, at *2 (W.D. Wash. Oct. 11, 2019). 1 c. Vocational Expert Testimony 2 Plaintiff’s final allegation of error is that the ALJ did not properly analyze 3 Plaintiff’s past relevant work. (Doc. 12 at 10–12). Past relevant work is work that a 4 claimant has “done within the past 15 years, that was substantial gainful activity, and that 5 lasted long enough for [him] to learn to do it.” 20 C.F.R. § 404.1560(b)(1). 6 Plaintiff asserts there was a conflict between the testimony of the vocational expert 7 from his first hearing and the testimony of the vocational expert from his second hearing 8 about his positions as an insurance claims processor and glass claims processor. (Doc. 12 9 at 10–12). As noted above, the Appeals Council vacated the ALJ’s first denial of 10 disability benefits, which necessitated a second hearing, in which the second vocational 11 expert testified. Plaintiff contends that the Court should reverse the ALJ’s decision and 12 remand because the ALJ must reconcile the asserted conflict. (Id. at 12; Doc. 18 at 10– 13 11). 14 Plaintiff had approximately ten months of experience between the two claims 15 processor jobs. (Doc. 12 at 10). The first vocational expert classified these positions as 16 insurance claims processor, DOT 241.267-018.5 (Doc. 11-10 at 109). The second 17 vocational expert testified that Plaintiff was a claims processor, DOT 241.362-010. (Doc. 18 11-5 at 74 (Trans. at 20)).6 The ALJ, in the decision on appeal to this Court, found that 19 Plaintiff “has past relevant work as a claims processor,” consistent with the second 20 vocational expert’s testimony. (Doc. 11-5 at 43). 21 The relevant distinction between the testimony of the two vocational experts is 22 that an insurance claims processor and a claims processor have different scores for the 23 amount of experience required to learn the position, and thus, allow the position to be 24 deemed past relevant work. This score is called a specific vocational preparation rating 25 (“SVP”). The DOT defines SVP as “the amount of lapsed time required by a typical 26 5 The DOT, the Dictionary of Occupational Titles, is the primary guide that the Social Security Administration uses to classify past relevant work in adjudicating claims. 27 Johnson v. Shalala, 60 F.3d 1428, 1434 n.6 (9th Cir. 1995). 28 6 The Court notes that the DOT actually refers to DOT 241.362-010 as “claims clerk I” and DOT 241.267-018 as “claim examiner.” 1 worker to learn the techniques, acquire the information, and develop the facility needed 2 for average performance in a specific job-worker situation.” DOT App. C. An SVP of 1 3 or 2 means unskilled work, 3 or 4 is semi-skilled work, and 5 to 9 includes skilled work. 4 SSR 00-4p, 2019 WL 5103767 (Dec. 4, 2000). 5 The position of claims processor, DOT 241.362-010, SVP 4, requires three to six 6 months of experience to constitute past relevant work. See DOT App. C. However, if 7 Plaintiff is properly classified as an insurance claims processor, DOT 241.267-018, SVP 8 7, as the first vocational expert testified, then he would have needed at least two years of 9 experience for this position to qualify as past relevant work. See DOT App. C. 10 Accordingly, Plaintiff’s challenge simply boils down to whether the ALJ properly 11 relied on the second vocational expert’s testimony. Plaintiff argues that the inconsistency 12 between the testimony from the first and second hearings must be resolved by the ALJ. 13 (Doc. 12 at 12; Doc. 18 at 10–11). But, Plaintiff’s argument is long on explanation of the 14 differences between the two DOT classifications yet short on law. 15 Nowhere does Plaintiff cite to any legal authority that indicates that the ALJ erred 16 in basing his decision on the second vocational expert’s testimony without resolving the 17 contradiction Plaintiff alleges. As noted above, the second vocational expert testified 18 during the second hearing that was conducted after the ALJ’s first decision was vacated 19 by the Appeals Council. (Doc. 11-11 at 61–62 (Ex. 6A at 2–3)). When a decision is 20 vacated, it is “officially gone” and “void,” and thus, “ha[s] no legal effect whatever.” 21 United States v. Sigma Int’l, Inc., 300 F.3d 1278, 1280 (11th Cir. 2002); see Vacate, 22 Black’s Law Dictionary (11th ed. 2019) (defining vacate as “to nullify or cancel; make 23 void; invalidate”). As such, it would be anomalous that an ALJ would be required to 24 resolve inconsistency between the first hearing that was voided and the new hearing, 25 which occurred because the first hearing and decision was voided. Moreover, there is no 26 requirement that an ALJ resolve inconsistent testimony from two different hearings. See 27 Curtis v. Colvin, No. 3:15-CV-00225-L-BH, 2016 WL 1056682, at *18 (N.D. Tex. Feb. 28 26, 2016), report and recommendation adopted, No. 3:15-CV-225-L, 2016 WL 1047105 2|| (N.D. Tex. Mar. 15, 2016). 3 At any rate, even if Plaintiff is correct that inconsistency between the two hearings is a ground for reversal, here, Plaintiff has failed to show a genuine inconsistency. As the 5 || Commissioner points out, Plaintiff did not provide the entire context of the vocational 6|| expert’s testimony regarding Plaintiff's claims processor jobs from the first hearing. 7\| (Doc. 17 at 15). Although Plaintiff correctly notes that the first vocational expert 8 || classified Plaintiff's claims processor positions as DOT 241.267-018, an SVP level 7, the 9|| first vocational expert also testified that due to Plaintiff's lack of prior experience in this field, Plaintiff's claims processor positions correspond to “an SVP 3 or 4, possibly.” 11 || (Doc. 11-10 at 109). Therefore, the vocational expert actually rated Plaintiff's claim 12|| processor positions at an SVP 3 or 4.’ A rating of SVP 3 or 4 is consistent with the 13 || second vocational expert’s testimony in the second hearing, where he identified Plaintiff's claim processor jobs as DOT 241.362-010, SVP 4, which requires three to six 15 || months of experience. Plaintiff's ten months of experience in the claim processor positions is sufficient, and thus, Plaintiffs two claims processor positions constitute past 17 || relevant work. Consequently, the ALJ did not err, even under Plaintiffs theory. 18] IV. CONCLUSION 19 Based on the foregoing, 20 IT IS ORDERED that the decision of the Commissioner is AFFIRMED. The Clerk of Court shall enter judgment accordingly.® 22 Dated this 18th day of December, 2019. 23 24 C ) ¢ / / ' L 25 James A. Teilborg 26 Senior United States District Judge 27 28 7 An SVP 3 requires 1 to 3 months experience. DOT App. C. 8 To the extent mandate is required, the judgment shall serve as the mandate. -10-