Leon 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 Gilbert Leon, No. CV-19-05881-PHX-MHB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Gilbert Leon’s Applications for Disability 17 Insurance Benefits and Supplemental Security Income by the Social Security 18 Administration. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 19 of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 14, “Pl. Br.”), 20 Defendant Social Security Administration Commissioner’s Response Brief (Doc. 17, “Def. 21 Br.”), and Plaintiff’s Reply Brief (Doc. 21, “Reply”). The Court has reviewed the briefs 22 and Administrative Record (Doc. 12, “R.”) and now vacates the decision of the 23 Administrative Law Judge (“ALJ”) and remands this matter for further administrative 24 proceedings. 25 I. BACKGROUND 26 Plaintiff filed Applications for Disability Insurance Benefits and Supplemental 27 Security Income on May 11, 2015, alleging a disability onset date of March 3, 2013. (R. at 28 41.) His claims were denied initially on October 15, 2016, and upon reconsideration on 1 June 15, 2017. (R. at 41.) Plaintiff appeared before the ALJ for a hearing regarding his 2 claim on March 22, 2018, which the ALJ denied on September 14, 2018. (R. at 41, 53.) On 3 October 29, 2019, the Appeals Council denied Plaintiff’s Request for Review and adopted 4 the ALJ’s decision as the agency’s final decision. (R. at 1.) 5 The Court has reviewed the medical evidence in its entirety and will discuss the 6 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 7 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 8 following severe impairments: obesity, diabetes, hypertension, lumbar facet syndrome, 9 degenerative disc disease, lumbar spondylosis, osteoarthritis of the left knee, status post 10 left knee arthroscopy, obstructive sleep apnea, carpal tunnel syndrome, and left plantar 11 fasciitis. (R. at 44.) 12 Ultimately, the ALJ evaluated the medical evidence and testimony, and concluded 13 that Plaintiff was not disabled from the alleged disability onset date through the date of the 14 decision. (R. at 54.) As part of this finding, the ALJ determined that Plaintiff “does not 15 have an impairment or combination of impairments that meets or medically equals the 16 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. 17 at 46.) The ALJ found that Plaintiff had the following residual functional capacity (“RFC”): 18 [Plaintiff] has the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except [Plaintiff] is capable of occasionally 19 stooping, kneeling, crouching, and crawling, but can never climb ladders, ropes, or scaffolds. He can frequently handle, finger, and climb ramps or 20 stairs. [Plaintiff] should avoid concentrated exposure to extreme heat and all exposure to hazards such as moving machinery or unprotected heights. He 21 also requires the option to use a cane for ambulation. 22 (R. at 47.) Accordingly, the ALJ found that Plaintiff can perform jobs that exist in 23 significant numbers in the national economy. (R. at 53.) 24 II. LEGAL STANDARD 25 In determining whether to reverse an ALJ’s decision, the district court reviews only 26 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 27 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 28 determination only if it is not supported by substantial evidence or is based on legal error. 1 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 2 that a reasonable person might accept as adequate to support a conclusion considering the 3 record as a whole. Id. To determine whether substantial evidence supports a decision, the 4 Court must consider the record as a whole and may not affirm simply by isolating a 5 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 6 susceptible to more than one rational interpretation, one of which supports the ALJ’s 7 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 8 (9th Cir. 2002) (citations omitted). 9 To determine whether a claimant is disabled for purposes of the Act, the ALJ 10 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 11 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 12 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 13 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 14 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 15 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 16 step three, the ALJ considers whether the claimant’s impairment or combination of 17 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 18 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 19 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 20 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 21 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 22 determines whether the claimant can perform any other work in the national economy 23 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 24 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 25 III. ANALYSIS 26 Plaintiff raises two issues for the Court’s consideration. First, Plaintiff argues that 27 ALJ erred in her evaluation of the medical opinion evidence. (Pl. Br. at 13–19.) Second, 28 1 Plaintiff argues the ALJ erred in her consideration of his symptom testimony. (Pl. Br. at 2 19–25.) 3 A. Medical Opinion Evidence 4 Plaintiff contends that the ALJ erred by improperly weighing the medical opinion 5 evidence. Specifically, Plaintiff argues that the ALJ erred in rejecting the assessment of 6 Plaintiff’s treating rheumatologist, Dr. Sheetal Chhaya, and by not clarifying the weight 7 she afforded to the state agency reviewing physicians. 8 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 9 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 10 Cir. 2008). Those who have treated a claimant are treating physicians, those who examined 11 but did not treat the claimant are examining physicians, and those who neither examined 12 nor treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 13 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating 14 source than to the opinion of doctors who did not treat the claimant.” Id. This is so because 15 treating physicians have the advantage of in-person interaction and typically a longer 16 history of treatment than a claimant’s other doctors, and their “subjective judgments . . . 17 are important, and properly play a part in their medical evaluations.” Embrey v. Bowen, 18 849 F.2d 418, 422 (9th Cir. 1988). 19 An ALJ “may only reject a treating or examining physician’s uncontradicted 20 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 21 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830–31). “Where such 22 an opinion is contradicted, however, it may be rejected for specific and legitimate reasons 23 that are supported by substantial evidence in the record.” Id. An ALJ meets this standard 24 by “setting out a detailed and thorough summary of the facts and conflicting medical 25 evidence, stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 26 881 F.2d 747, 751 (9th Cir. 1989). 27 Here, the ALJ gave minimal weight to Dr. Chhaya’s opinion stating, in pertinent 28 part: 1 Minimal weight is assigned as Dr. Chhaya stated the claimant had uncontrolled diabetes, but this is not corroborated in the treatment records, 2 which raises the question whether additional information provided is 3 similarly unreliable. In addition, on November 29, 2017, she stated the earliest date the limitations applied was November 29, 2017 (Exhibit 21F.) 4 There is no reason to believe the reported restrictions would persist for any 5 12 month time period. In a fibromyalgia questionnaire, this doctor opined the claimant was limited to sitting for 15 minutes at a time, but the claimant 6 reported during treatment that sitting improved his symptoms (Exhibit 17F 7 and 1F/31). 8 (R. at 50-51.) 9 Plaintiff first argues that although Dr. Chhaya’s 2016 and 2017 assessments detailed 10 a list of impairments (including fibromyalgia, psoriasis, psoriatic arthritis, osteoarthritis) 11 and symptoms (including chronic pain, nonrestorative sleep, morning stiffness, subjective 12 swelling, fatigue, numbness and tingling/paresthesia), and listed numerous limitations as a 13 result of these impairments, the ALJ failed to provide any basis to discount Dr. Chhaya’s 14 opinion set forth in these assessments. The Court agrees. 15 While the ALJ’s reasoning is unclear, it appears that the ALJ relies on an alleged 16 inconsistency between Plaintiff’s medical records and Dr. Chhaya’s notation of 17 “uncontrolled diabetes,” in order to discount Dr. Chhaya’s 2016 and 2017 assessments. 18 The Court fails to draw the connection where neither Dr. Chhaya’s 2016 nor 2017 19 assessment lists diabetes as an impairment related to the assessed limitations. 20 Moreover, the record before the Court provides ample evidence demonstrating that 21 Plaintiff’s diabetes had been uncontrolled at various times during the relevant period. (R. 22 at 379, 878, 927, 950, 970, 1160, 1164, 1169, 1127, 1132, 1137, 1148–49, 1156, 1247). 23 Not only does the ALJ fail to mention any of these records, but she fails to cite to any 24 exhibit in support of her finding of an alleged inconsistency in the record. This is clearly 25 not sufficient. As such, the Court finds that the ALJ failed to provide a specific and 26 legitimate reason. 27 The Court finds the ALJ’s second reason for discounting Dr. Chhaya’s opinion 28 similarly insufficient. Without citing to any examples or identifying any exhibits, the ALJ 1 states “[t]here is no reason to believe the reported restrictions [set forth in Dr. Chhaya’s 2 2017 assessment] would persist for any 12 month time period.” This unsupported and 3 conclusory statement is directly contradicted by Dr. Chhaya’s own confirmation in the 4 same 2017 assessment stating that Plaintiff’s “impairment lasted or can they be expected 5 to last at least 12 months.” Furthermore, the ALJ completely fails to take into consideration 6 Dr. Chhaya’s 2016 assessment, which according to the vocational expert, provided 7 limitations that would preclude work. Thus, the Court finds that the ALJ’s reasoning is not 8 specific and legitimate. 9 In her final reason for rejecting Dr. Chhaya’s opinion, the ALJ states that Dr. 10 Chhaya’s statement that Plaintiff was limited to sitting for 15 minutes at a time is 11 inconsistent with the treatment records. (R. at 51.) The Court finds that this is a specific 12 and legitimate reason supported by substantial evidence in the record. First, Plaintiff 13 testified at his hearing that he can sit for 45 minutes to an hour. (R. at 79.) He also stated 14 that sitting down is the most comfortable position for him, (R. at 83, 364–65, 367, 473, 15 479, 484, 528), and reported that sitting did not worsen his pain (R. at 721, 747, 981, 1274, 16 1281). Accordingly, the ALJ properly concluded that Dr. Chhaya’s finding that Plaintiff 17 could only sit for 15 minutes at a time was inconsistent with the record. 18 In summary, having considered the factors addressed by the ALJ to discount the 19 opinion and assessments of Dr. Chhaya, the Court concludes that the ALJ failed to support 20 her determination with specific and legitimate reasons supported by substantial evidence 21 in the record and, therefore, the Court finds error. Notably, however, the Court finds the 22 inconsistency regarding Plaintiff’s ability to sit for longer than 15 minutes at a time 23 significant as it appears that the vocational expert based his finding that Plaintiff would be 24 precluded from all work activity, in part, on the fact that Plaintiff required a sit/stand option. 25 Plaintiff, lastly, argues that the ALJ provided inconsistent statements regarding the 26 weight assigned to the opinions of the state agency reviewing physicians. (R. at 51; Pl. Br. 27 at 18.) The Court agrees. First, the ALJ afforded significant weight, but then stated that she 28 was unable to afford great weight to the doctors’ opinions because evidence suggested that 1 Plaintiff’s impairments were slightly more limiting than what the two doctors concluded. 2 (R. at 51.) These two statements are conflicting. As such, it is unclear what significance 3 the ALJ attaches to the state agency reviewers’ opinions. 4 B. Plaintiff’s Subjective Complaints 5 Plaintiff contends that the ALJ erred in rejecting his subjective complaints in the 6 absence of clear and convincing reasons for doing so. (Pl. Br. at 22–26.) 7 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 8 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 9 evaluates whether the claimant has presented objective medical evidence of an impairment 10 “which could reasonably be expected to produce the pain or symptoms alleged.” 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 12 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 13 Second, absent evidence of malingering, an ALJ may only discount a claimant’s allegations 14 for reasons that are “specific, clear and convincing” and supported by substantial evidence. 15 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 16 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 17 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 18 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the ALJ’s 19 analysis need not be extensive, the ALJ must provide some reasoning in order for [the 20 Court] to meaningfully determine whether the ALJ’s conclusions were supported by 21 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 22 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 23 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 24 instance, the ALJ may consider “‘whether the claimant engages in daily activities 25 inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter, 504 F.3d at 1040). 26 “Even where those activities suggest some difficulty functioning, they may be grounds for 27 discrediting the claimant’s testimony to the extent that they contradict claims of a totally 28 debilitating impairment,” id. at 1113, or where they suggest that “later claims about the 1 severity of [the] limitations were exaggerated,” Valentine v. Astrue, 574 F.3d 685, 694 (9th 2 Cir. 2009). Additionally, the ALJ may consider “whether the claimant takes medication or 3 undergoes other treatment for the symptoms.” Lingenfelter, 504 F.3d at 1040; see 20 4 C.F.R. § 404.1529(c)(3). “Impairments that can be controlled effectively with medication 5 are not disabling.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 6 2006). Finally, “[a]lthough [a] lack of medical evidence cannot form the sole basis for 7 discounting pain [or symptom] testimony, it is a factor that the ALJ can consider in his 8 credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 9 Here, the ALJ found “that [Plaintiff’s] medically determinable impairments could 10 reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements 11 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 12 consistent with the medical evidence and other evidence in the record for the reasons 13 explained in this decision.” (R. at 47.) 14 Plaintiff argues that the ALJ used impermissible boilerplate language and did not 15 explain how the medical record was inconsistent with his symptom testimony. (R. at 48; 16 Pl. Br. at 21.) However, the ALJ explained that Plaintiff’s treatment notes confirmed his 17 history of low back pain (R. at 48, 337–69, 1054–60), and provided details of the results 18 of Plaintiff’s August 2014 x-ray, which showed mild to moderate disc space narrowing, 19 mild spondylosis, and some facet degenerative joint disease (R. at 492–93), and Plaintiff’s 20 October 2014 MRI, which showed disc bulges, disc protrusions, bilateral facet arthrosis, 21 and bilateral foraminal narrowing (R. at 490–91). The ALJ went on to explain that because 22 of these results, Plaintiff was diagnosed with lumbar facet arthropathy syndrome, lumbar 23 degenerative disc disease, and lumbar spondylosis without myelopathy. (R. at 48.) The 24 ALJ noted that Plaintiff alleviated his pain with heat, physical therapy, and medication up 25 until this point. (R. at 48.) The ALJ also noted that Plaintiff’s pain “improved 26 tremendously” after receiving medical branch blocks, and that his gait was non-antalgic 27 and “he was able to walk without an assistive device, his lumbar range of motion was 28 grossly within normal limits, and his strength was five bilaterally in his lower extremities.” 1 (R. 48, 337–69.) Finally, the ALJ noted that over the years Plaintiff went to several spine 2 surgeons who all only recommended conservative care. (R. at 48, 472–97.) The ALJ opined 3 that Plaintiff’s conservative treatment and his response to the treatment indicated that 4 Plaintiff’s symptoms were not as severe as he alleged. (R. at 48.) An ALJ may properly 5 discount a claimant’s symptom testimony based on its inconsistency with a claimant’s 6 improvement with treatment. 20 C.F.R. § 404.1429(c)(3)(iv); see Tommasetti, 533 F.3d at 7 1040. The Court finds that the ALJ provided a clear and convincing reason supported by 8 substantial evidence in the record. 9 Similarly, the ALJ noted that Plaintiff was advised by medical providers to use wrist 10 splints for his carpal tunnel syndrome, diabetic shoes for his plantar fasciitis, and was 11 placed on a CPAP machine for his obstructive sleep apnea. (R. 48, 394, 885–86, 901–05.) 12 The ALJ found that while these impairments resulted in work-related restrictions, the 13 record failed to support a finding that Plaintiff was as limited as he alleged. (R. at 48.) 14 Additionally, the ALJ explained that when Plaintiff is on medication for his hypertension, 15 he has no problems. (R. at 48, 976–1024, 1106–13.) The ALJ also noted that Plaintiff was 16 diagnosed with diabetes in 2014 and he reported that his condition was under control in 17 March 2015. (R. at 48, 412.) The ALJ documented this medical evidence to demonstrate 18 that Plaintiff’s “obstructive sleep apnea, hypertension, and diabetes are all being managed 19 medically and should be amenable to proper control by adherence to recommended medical 20 management and medication compliance.” (R. at 49.) 21 As to Plaintiff’s knee pain, the ALJ identified that in December 2015, an x-ray 22 revealed moderate osteoarthritis and a meniscus tear of the medial side of the left knee and 23 Plaintiff was referred for cortisone injections, braces, and physical therapy. (R. at 525–44.) 24 Plaintiff’s knee condition initially failed to respond to conservative treatment, and in April 25 2016, Plaintiff had a left knee arthroscopy. (R. at 718–52.) Plaintiff continued to report 26 pain. However, in May 2016, Plaintiff demonstrated no significant joint swelling, no 27 tenderness, no palpation, and his range of motion was within functional limits. (R. at 370– 28 410, 670–91, 718–52, 976–1024, 1106–13.) The ALJ noted that Plaintiff’s knee has 1 continued to improve since the surgery. (R. at 49, 718–52.) 2 The Court, thus, finds that the ALJ provided a thorough analysis of Plaintiff’s 3 medical conditions and explained how these conditions are being managed. The Court finds 4 the ALJ provided a clear and convincing reason supported by substantial evidence in the 5 record. 6 Next, the ALJ found that Plaintiff’s activities of daily living did not corroborate the 7 level of severity that Plaintiff alleges. (R. at 49.) The ALJ explained that Plaintiff prepares 8 his own meals, drives himself places (about two times a week) (R. at 69), shops for 9 groceries, performs household chores, does laundry, loads and unloads the dishwasher, 10 bikes, attends doctor’s appointment, and manages his own finances (R. at 50, 261–67). The 11 ALJ noted that Plaintiff was well nourished, well developed, friendly, engaging, 12 cooperative, quiet, lucid, alert, oriented, awake, pleasant, and in no acute distress. (R. at 13 50, 262–65, 427, 434, 439, 498–503, 506, 512, 515, 517, 519, 521, 523, 676–77, 680, 687, 14 690, 767–876, 1025–27.) The ALJ also noted that Plaintiff adopted his minor grandson. 15 (R. at 50.) The ALJ reasoned that Plaintiff’s adoption indicates that he retains the ability to 16 care for himself and that he can also care for other people. (R. at 50.) 17 The Court finds that on this point, the ALJ has failed to provide a clear and 18 convincing reason. Rather than explaining how Plaintiff’s activities detract from Plaintiff’s 19 testimony, and providing an analysis of why Plaintiff’s activities were inconsistent with 20 the limitations asserted by Plaintiff, the ALJ simply provides a listing of activities and 21 implies that said activities are performed consistently and regularly over an eight hour day. 22 The Court finds that this type of analysis is insufficient. See Vertigan v. Halter, 260 F.3d 23 1044, 1049-50 (9th Cir. 2001) (citing Fair, 885 F.2d at 603). Further, as to the adoption of 24 his grandson, the ALJ did not inquire as to what Plaintiff did to help when it came to his 25 grandson. Without any additional information, the fact that Plaintiff cares for a minor child 26 “does not constitute an adequately specific conflict with [his] reported limitations.” Trevizo 27 v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). 28 1 In summary, the Court finds that although the ALJ’s reliance on Plaintiff’s daily 2 activities to detract from Plaintiff’s credibility is not sufficient, the ALJ has identified other 3 factors that provide sufficient reasons to discount Plaintiff’s credibility. Thus, the Court 4 concludes that the ALJ has supported her decision to discredit Plaintiff’s credibility with 5 specific, clear and convincing reasons and, therefore, the Court finds no error. 6 IV. CONCLUSION 7 The Court may remand for further administrative proceedings, as is the “ordinary 8 remand rule,” or it may remand for calculation and award of benefits under the “credit-as- 9 true” rule. Treichler, 775 F.3d at 1099–1100. However, the latter is “a rare and prophylactic 10 exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 11 1044 (9th Cir. 2017). For the Court to remand for award of benefits, three conditions must 12 be satisfied: “(1) the record has been fully developed and further administrative 13 proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally 14 sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; 15 and (3) if the improperly discredited evidence were credited as true, the ALJ would be 16 required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. However, 17 even where each condition is satisfied, the Court may still remand for further administrative 18 proceedings if “an evaluation of the record as a whole creates serious doubt that a claimant 19 is, in fact, disabled.” Id. at 1021. 20 Here, the Court finds a remand for further administrative proceedings is most 21 appropriate here given the conflicts in opinion evidence and symptom testimony, and the 22 fact that the Court finds doubt as to whether Plaintiff is actually disabled as alleged. 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 IT IS THEREFORE ORDERED that the final decision of the Commissioner is □□ vacated and this case is remanded for further administrative proceedings; 3 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment accordingly and terminate this case. 5 Dated this 21st day of December, 2020. 6 7 8 ( 2 ’ Honorable Michelle H. Burns 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-