Cooper v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Denise J. Cooper, No. CV-19-00725-PHX-SPL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Denise J. Cooper’s Application for Disability 17 Insurance Benefits by the Social Security Administration under the Social Security Act 18 (“the Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of that denial, and 19 the Court now addresses Plaintiff’s Opening Brief (Doc. 15, Pl. Br.), Defendant 20 Commissioner of Social Security Administration’s Opposition (Doc. 16, Def. Br.), and 21 Plaintiff’s Reply (Doc. 19, Reply). The Court has reviewed the briefs and the 22 Administrative Record (Doc. 11, R.) and now affirms the Administrative Law Judge’s 23 (“ALJ”) decision (R. at 12–38). 24 I. BACKGROUND 25 Plaintiff filed her Application on April 4, 2015, for a period of disability beginning 26 on February 28, 2013. (R. at 15.) Plaintiff’s claim was denied initially on October 1, 2015, 27 and upon reconsideration on February 22, 2016. (R. at 15.) Plaintiff then testified at a 28 hearing held before the ALJ on December 12, 2017. (R. at 15.) On January 9, 2018, the 1 ALJ denied Plaintiff’s Application. (R. at 12–38.) This decision became final on December 2 10, 2018, when the Appeals Council denied Plaintiff’s request for review. (R. at 1–6.) 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: lumbar degenerative disc disease, hypothyroidism, diabetes with peripheral 8 neuropathy, and obesity. (R. at 19.) 9 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 10 Plaintiff is not disabled. (R. at 12–38.) 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 25.) 13 The ALJ also determined that Plaintiff has the residual functional capacity (“RFC”) to 14 perform medium work as defined in 20 C.F.R. § 404.1567(c) with some limitations, 15 including never climbing ladders, ropes, or scaffolding; avoiding occasional exposure to 16 fumes, odors, dusts, and gases; and avoiding all exposure to moving and dangerous 17 machinery and unprotected heights. (R. at 26.) After calculating Plaintiff’s RFC, the ALJ 18 determined that Plaintiff can perform her past relevant work as a pharmacy technician and 19 complaint resolver. (R. at 30.) 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 the determination is not supported by substantial evidence or is based 25 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 26 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 27 person might accept as adequate to support a conclusion considering the record as a 28 whole. Id. To determine whether substantial evidence supports a decision, the court must 1 consider the record as a whole and may not affirm simply by isolating a “specific quantum 2 of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than 3 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 4 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 5 omitted). 6 To determine whether a claimant is disabled for purposes of the Act, the ALJ 7 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 8 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 9 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 10 the claimant is presently engaging in substantial gainful activity. 11 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. 12 At step two, the ALJ determines whether the claimant has a “severe” medically 13 determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the 14 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 15 the claimant’s impairment or combination of impairments meets or medically equals an 16 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 17 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 18 Id. If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 19 RFC and determines whether the claimant is still capable of performing past relevant work. 20 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. 21 If not, the ALJ proceeds to the fifth and final step, where he determines whether the 22 claimant can perform any other work in the national economy based on the claimant’s RFC, 23 age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is 24 not disabled. Id. If not, the claimant is disabled. Id. 25 III. ANALYSIS 26 Plaintiff raises two arguments for the Court’s consideration: (1) the ALJ improperly 27 rejected Plaintiff’s symptom testimony; and (2) the ALJ improperly rejected Plaintiff’s 28 treating nurse practitioner’s opinions. The Court disagrees with both arguments. 1 A. The ALJ did not err by rejecting Plaintiff’s symptom testimony because he gave clear and convincing reasons supported by substantial evidence. 2 3 Plaintiff testified that her impairments caused constant pain in her back, down her 4 right leg, and in both feet. (R. at 63–64.) She testified that she must lie down for at least 5 one hour every day. (R. at 64.) She also estimated that she can lift one gallon of milk, stand 6 and walk for five to 15 minutes at a time, and sit for 15 minutes at a time. (R. at 19.) 7 The ALJ discounted Plaintiff’s testimony for three reasons. First, the ALJ 8 determined that Plaintiff was noncompliant with treatment recommendations. (R. at 28.) 9 Second, the ALJ found that Plaintiff’s alleged limitations were inconsistent with the 10 objective medical evidence. (R. at 27–28.) Lastly, the ALJ found that Plaintiff did not 11 believe she was disabled because she was willing to amend her alleged onset date to one 12 the ALJ would accept. (R. at 28.) The Court finds that the first two of these reasons are 13 sufficient. 14 While credibility is the province of the ALJ, an adverse credibility determination 15 requires the ALJ to provide “specific, clear and convincing reasons for rejecting the 16 claimant’s testimony regarding the severity of the claimant’s symptoms.” Treichler v. 17 Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Smolen v. Chater, 80 18 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ may properly consider that the claimant’s 19 medical record does not contain evidence to support certain symptom testimony, but that 20 cannot form the sole basis for discounting the testimony. Burch v. Barnhart, 400 F.3d 676, 21 681 (9th Cir. 2005). The ALJ may also properly consider inconsistencies in the claimant’s 22 testimony regarding her daily activities, treatment, and symptoms. Id. 23 The ALJ’s first reason for rejecting Plaintiff’s symptom testimony—that she was 24 noncompliant with treatment recommendations—is clear and convincing and supported by 25 substantial evidence. When considering a claimant’s credibility, “the ALJ may properly 26 rely on unexplained or inadequately explained failure to seek treatment or to follow a 27 prescribed course of treatment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). To 28 determine whether the claimant adequately explained her decision to disregard a treatment 1 recommendation, the ALJ may consider whether she could afford the treatment, whether 2 she was advised against the treatment, and whether she experienced any adverse side 3 effects resulting from the treatment. SSR 16-3p. 4 Here, the ALJ correctly determined that Plaintiff’s request to terminate physical 5 therapy in 2017 after only six appointments was incongruent with her testimony regarding 6 her pain and resulting limitations. (R. at 28.) According to treatment records, Plaintiff 7 refused to do recommended exercises at home because “she does not have to” despite 8 acknowledging some pain relief and repeatedly hearing from her doctors that exercise 9 would help. (R. at 28, 1428–40.) 10 Plaintiff argues that she adequately explained why she stopped physical therapy, but 11 the Court is not persuaded. She urges that her fear of movement resulting from years of 12 chronic pain, as noted by her physical therapist, was a valid reason for not continuing to 13 engage in physical therapy. (Pl. Br. at 15.) However, Plaintiff’s physical therapist informed 14 her that she should expect some discomfort in seeking to overcome her chronic pain. (R. 15 at 1435.) Additionally, on multiple occasions Plaintiff successfully completed exercises 16 and acknowledged relief. (R. at 1428–40.) Her rationale for terminating physical therapy 17 after only six appointments is not clear from either the record or Plaintiff’s Opening Brief. 18 Plaintiff also argues that the ALJ erred by not making a specific finding that physical 19 therapy would lead to greater function. (Pl. Br. at 15.) However, Plaintiff misstates the law. 20 The regulations state that the ALJ may find a claimant’s testimony discreditable if she 21 “fails to follow prescribed treatment that might improve symptoms.” SSR 16-3p (emphasis 22 added). Here, Plaintiff’s physicians recommended and prescribed physical therapy and 23 exercise to help treat Plaintiff’s pain, i.e. they believed it might improve her symptoms. (R. 24 at 818, 878.) Therefore, the ALJ properly considered Plaintiff’s decision to terminate 25 physical therapy after only six appointments. 26 The ALJ’s second reason for discrediting Plaintiff’s symptom testimony—that her 27 alleged limitations were inconsistent with the objective medical evidence—is supported by 28 substantial evidence. The ALJ cannot rely solely on a lack of objective evidentiary support 1 to reject the claimant’s testimony but may consider it when weighing credibility. Burch, 2 400 F.3d at 680. Here, the ALJ thoroughly evaluated Plaintiff’s medical records. (R. at 19– 3 21, 27.) He first noted that there was limited diagnostic imaging to support Plaintiff’s 4 alleged pain and limitations. (R. at 27.) Notably, Plaintiff acknowledged this during the 5 hearing. (R. at 43.) The ALJ also noted that two surgeons, Drs. Lyle Young and Christopher 6 Yeung, advised against surgery after conducting physical examinations and reviewing 7 imaging. (R. at 20.) Many of Plaintiff’s physical examinations were “largely normal” with 8 respect to strength, gait, and motor function. (R. at 27.) Additionally, Defendant points to 9 observations by physicians that Plaintiff was “generally healthy . . . alert and pleasant, with 10 a normal affect.” (Def. Br. at 8.) After reviewing the record, the Court finds that substantial 11 evidence supports the ALJ’s determination that Plaintiff’s testimony is not supported by 12 objective evidence. Though the evidence may support an interpretation more favorable to 13 Plaintiff, the ALJ’s interpretation was rational, and the Court upholds the decision where 14 the evidence is subject to more than one rational interpretation. See Burch, 400 F.3d at 15 680–81. 16 Plaintiff urges that the ALJ’s findings regarding the medical records were too 17 general because he failed to connect specific records to specific portions of Plaintiff’s 18 testimony (Pl. Br. at 14–15), but the Court disagrees. The ALJ was not required 19 systematically discuss or cite to the medical evidence and symptom testimony. Instead, 20 where the ALJ has summarized and interpreted the pertinent facts and conflicting evidence, 21 the Court is permitted to draw reasonable inferences concerning the ALJ’s findings. 22 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). Here, the ALJ considered 23 Plaintiff’s testimony and determined, generally and with reference to specific records, that 24 the medical evidence reflected that Plaintiff was not as limited as alleged. The Court finds 25 that this was a specific reason to reject Plaintiff’s testimony. 26 The ALJ’s final reason for rejecting Plaintiff’s testimony—that she was willing to 27 amend her onset date—is not clear and convincing or supported by substantial evidence. 28 The ALJ did not explain why Plaintiff’s willingness to amend her onset date is probative 1 of her credibility. Moreover, the Court is not persuaded by Defendant’s argument that 2 Plaintiff offered to amend her onset date because she does not believe she was disabled. 3 (Def. Br. at 10.) Nevertheless, because the ALJ offered other specific, clear, and convincing 4 reasons for rejecting Plaintiff’s testimony that are supported by substantial evidence, the 5 ALJ’s errant rationale regarding Plaintiff’s willingness to amend her alleged onset date was 6 harmless. See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). 7 B. The ALJ did not err by rejecting the opinion of Plaintiff’s treating nurse practitioner. 8 9 Plaintiff also argues that the ALJ erred by giving little weight to the opinion of her 10 nurse practitioner, Sara Edmund. (Pl. Br. at 17–25.) Ms. Edmund completed medical 11 assessments in November 2015 and February 2016 in which she opined that Plaintiff can 12 sit, stand, and walk for fewer than two hours in an eight-hour workday; can lift and carry 13 fewer than ten pounds in an eight-hour workday; and must alternate between sitting, 14 standing, and walking every one to 20 minutes. (R. at 1416.) Ms. Edmund also opined that 15 Plaintiff would miss six or more days per month and be off task more than 21 percent of 16 each workday due to her impairments. (R. at 1417.) 17 The ALJ rejected Ms. Edmund’s assessments for three reasons. First, the ALJ found 18 that Ms. Edmund’s opinions were unsupported by medical records, including her own. (R. 19 at 29.) Next, the ALJ found that Ms. Edmund did not adequately explain her opinions. (R. 20 at 29.) Finally, the ALJ noted that Ms. Edmund was not Plaintiff’s primary provider for 21 pain management. (R. at 29.) The Court finds that these reasons were sufficient. 22 At the time Plaintiff filed her claim, nurse practitioners fell under the definition of 23 “other sources.” 20 C.F.R. § 404.1513(a). Although an ALJ must provide specific and 24 legitimate reasons for rejecting the opinion of a “medically acceptable treating source,” the 25 ALJ may discount the opinion of an “other source” by providing “reasons germane to each 26 witness” that are supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1111 27 (9th Cir. 2012). Regardless of the source, in evaluating an opinion the ALJ may consider 28 the length of the treatment relationship, the extent to which the opinion is supported and 1 explained, the consistency of the opinion with the record as a whole, and whether the source 2 has specialized knowledge. 20 C.F.R. § 404.1527(f)(1).1 3 Here, the ALJ’s reasons for rejecting Ms. Edmund’s opinion were proper 4 considerations under the regulations and germane to Ms. Edmund. Additionally, they were 5 supported by substantial evidence. Plaintiff argues that the ALJ’s rationale was improper 6 because he “was not in a position, as an administrative adjudicator, to determine whether 7 NP Edmund’s assessed limitations . . . were ‘extreme’ in light of the medical evidence.” 8 (Pl. Br. at 19.) However, the regulations permit the ALJ to evaluate the evidence of record, 9 including medical opinions. See 20 C.F.R. § 404.1529; Andrews v. Shalala, 53 F.3d 1035, 10 1039–40 (9th Cir. 1995) (“The ALJ is responsible for determining credibility, resolving 11 conflicts in medical testimony, and for resolving ambiguities.”). Therefore, the ALJ 12 properly considered whether Ms. Edmund’s opinions were supported by the record. 13 Plaintiff also argues that the ALJ’s findings were too general because he did not 14 explain which medical evidence contradicted Ms. Edmund’s opinions. (Pl. Br. at 20.) 15 However, as previously discussed, where a reasonable inference may be drawn that the 16 ALJ relied on evidence he cited to in a different section, the Court is permitted to draw it. 17 See Magallanes, 881 F.2d at 755. The ALJ previously analyzed the objective medical 18 evidence and determined that it is largely inconsistent with Plaintiff experiencing severe 19 functional limitations. Therefore, the ALJ properly rejected Ms. Edmund’s opinion based 20 on a lack of support from the record. 21 In sum, the Court finds that the ALJ gave germane reasons supported by substantial 22 evidence for rejecting Ms. Edmund’s opinions and therefore did not err. 23 /// 24 /// 25 /// 26 /// 27 28 1 This section has since been amended, but still applies to all claims filed before March 27, 2017. 20 C.F.R. § 404.1527. 1 IT IS THEREFORE ORDERED affirming the January 9, 2018 decision of the 2|| ALJ. (R. at 12-38.) 3 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 5 Dated this 16th day of March, 2020. 6 7 8 LC GS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-