Kolb v. Commissioner of Social Security Administration ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Colleen D. Kolb, No. CV-20-01538-SMB 10 Plaintiff, ORDER 11 v. 12 Andrew Saul, Commissioner of Social Security, 13 Defendant. 14 15 At issue is the denial of Plaintiff Colleen D. Kolb’s Application for Social Security 16 Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) 17 under the Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an 18 Opening Brief, (Doc. 16), seeking judicial review of that denial. Defendant SSA filed an 19 Answering Brief, (Doc. 17), to which Plaintiff replied. (Doc. 18.) The Court has reviewed 20 the parties’ briefs, the Administrative Record, (Doc. 15), and the Administrative Law 21 Judge’s (“ALJ’s”) decision, (Doc. 15-3 at 15–37), and affirms the ALJ’s decision for the 22 reasons addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in October of 2016, alleging a 25 disability beginning in November of 2015. (Doc. 16.) Plaintiff’s claim was initially denied 26 in October of 2019. (Id.) A hearing was held before ALJ Patricia Bucci on August 7, 27 2019. (Doc. 15-3 at 38.) After considering the medical evidence and opinions, the ALJ 28 determined that Plaintiff suffered from severe impairments including seizure disorder, 1 headaches, pseudotumor cerebri, degenerative disc disease of the cervical spine with 2 stenosis and disc arthroplasty, status post gastric bypass surgery, and fibromyalgia. (Id. at 3 20–21.) However, the ALJ concluded that, despite these impairments, Plaintiff had the 4 residual functional capacity (“RFC”) to perform past relevant work as an office manager 5 and secretary. (Id. at 28.) Consequently, Plaintiff’s Application was denied by the ALJ on 6 October 4, 2019. (Id. at 15–37.) Thereafter, the Appeals Council denied Plaintiff’s 7 Request for Review of the ALJ’s decision—making it the final decision of the SSA 8 Commissioner (the “Commissioner”)—and this appeal followed. (Id. at 2–7.) 9 II. LEGAL STANDARDS 10 An ALJ’s factual findings “shall be conclusive if supported by substantial 11 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 12 the Commissioner’s disability determination only if it is not supported by substantial 13 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 14 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 15 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 16 evidence is susceptible to more than one rational interpretation, one of which supports the 17 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 18 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, the district court 19 reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 20 236 F.3d 503, 517 n.13 (9th Cir. 2001). 21 III. DISCUSSION 22 Plaintiff argues that the ALJ did not provide legally adequate reasons for 23 discounting Plaintiff’s symptom testimony and in weighing the medical opinion evidence. 24 (Doc. 16 at 17–18.) The Commissioner argues that the ALJ’s opinion is supported by the 25 record as a whole and free of harmful error. (See generally Doc. 17.) The Court has 26 reviewed the medical and administrative records and agrees with the Commissioner for the 27 following reasons. 28 A. Plaintiff’s Symptom Testimony and Lay Witness Testimony 1 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 2 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 3 ALJ evaluates whether the claimant has presented objective medical evidence of an 4 impairment that “could reasonably be expected to produce the pain or symptoms alleged.” 5 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 6 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)) (internal quotation marks omitted). Second, 7 absent evidence of malingering, an ALJ may only discount a claimant’s allegations for 8 reasons that are “specific, clear and convincing” and supported by substantial evidence. 9 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 10 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 11 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 12 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 13 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 14 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 15 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 16 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 17 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 18 instance, the ALJ may consider “whether the claimant engages in daily activities 19 inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter, 504 F.3d at 1040). 20 Plaintiff argues the ALJ improperly rejected her testimony regarding the degree and 21 severity of her symptoms. (Doc. 16 at 13.) Additionally, Plaintiff argues the ALJ failed 22 to support the rejection of Plaintiff’s testimony with specific, clear, and convincing reasons 23 for doing so. (Id.) Both arguments fail to persuade the Court. 24 Here, although the ALJ first found the Plaintiff had numerous severe impairments, 25 (Doc. 15-3 at 20–21), the ALJ also found that Plaintiff had the RFC “to perform sedentary 26 work as defined in 20 CFR 404.1567(a)” with the exception of certain activities, such as 27 climbing ladders. (Id. at 21.) The ALJ also found that the Plaintiff’s statements regarding 28 the intensity, persistence, and limiting effects of her symptoms were not entirely consistent 1 with the medical record and Plaintiff’s statements regarding activities of daily living. (Id. 2 at 22–23.) 3 “Although the Court agrees that Plaintiff is not required to provide medical evidence 4 of the severity of her symptoms, objective medical evidence is a useful tool for an ALJ to 5 assess Plaintiff’s credibility regarding the intensity and persistence of [her] symptoms.” 6 McPherson v. Comm’r of Soc. Sec. Admin., No. CV-21-08202-PCT-JAT, 2021 WK 7 3709845, at *7 (D. Ariz. August 20, 2021) (internal citation omitted). Plaintiff does not 8 need to fully substantiate her symptom testimony with objective medical evidence, and the 9 Court declines to read the ALJ’s “not entirely consistent” statement, (Doc. 15-3 at 22), as 10 requiring as much. See McPherson, 2021 WL 3709845, at *7; see also Rollins v. 11 Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be 12 rejected on the sole ground that it is not fully corroborated by objective medical evidence, 13 the medical evidence is still a relevant factor in determining the severity of the claimant's 14 pain and its disabling effects.”). 15 Here, the Court finds that the ALJ’s rejection of the Plaintiff’s testimony was 16 supported by specific, clear, and convincing evidence. The ALJ found that Plaintiff’s 17 symptom testimony was contradicted by (1) objective medical evidence; (2) Plaintiff’s 18 course of treatment; and (3) Plaintiff’s activities of daily living. (Doc. 15-3 at 22–23.) For 19 example, the ALJ explains the persuasiveness of Plaintiff’s testimony regarding her 20 symptoms is diminished because the severity and limitations of the symptoms “is greater 21 than expected in light of the objective medical evidence.” (Doc. 15-3 at 22.) The ALJ 22 goes on to explain how various objective medical evidence indicated normal strength and 23 tone in extremities, full strength, and full range of motion. (Id. at 23–26). Also, as noted 24 by the ALJ, Plaintiff admitted the pain medication improved her condition and reduce her 25 symptoms. (Id. at 47–48.) Finally, although the Plaintiff complained of significant impact 26 on daily living activities, (Doc. 16 at 3), she reported independence in light housework and 27 self-care activities, such as responding to emails, caring for her pets, personal hygiene, and 28 meal preparation. (Doc. 15-3 at 22–23; 41–49.) Therefore, the Court finds the ALJ 1 provided specific, clear, and convincing reasons for the rejection of the Plaintiff’s symptom 2 testimony. The Courts further finds the ALJ did not improperly reject the Plaintiff’s 3 symptom testimony. 4 Next, Plaintiff argues that the ALJ improperly rejected the testimony of the lay 5 witness—Plaintiff’s former employer—and erred in not discussing the lay witness 6 testimony and proffering reasons germane for rejecting the testimony. (Doc. 16 at 15–16; 7 Doc. 18 at 8–9.) The Commissioner responds that the ALJ’s failure to discuss the lay 8 witness’s testimony was harmless error because the check-box style questionnaire mirrored 9 Plaintiff’s own allegations. (Doc. 17 at 13–14.) The Court agrees with the Commissioner. 10 The testimony of friends and family who observe the claimant’s symptoms and daily 11 activities is routinely treated as competent evidence. Sprague v. Bowen, 812 F.2d 1226, 12 1232 (9th Cir. 1987). Indeed, if an ALJ wishes to discount the testimony of a lay witness, 13 “he must give reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 14 919 (9th Cir. 1993); see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). 15 However, if an ALJ fails to give reasons germane for the discounting of a lay witness’s 16 testimony, it is merely harmless error so long as the testimony does “not describe any 17 limitations beyond those [the claimant] described.” Molina, 674 F.3d 1104, 1122; see also 18 Ukolov v. Barnhart, 420 F.3d 1002, 1006 n.6 (9th Cir. 2005) (“Because the testimony of 19 the lay witnesses encompasses only symptoms, any failure of the ALJ to adequately 20 address that testimony does not affect the outcome of [the] case.”). Consequently, “where 21 the ALJ improperly rejects lay witness testimony but properly rejects a claimant’s 22 symptom testimony for reasons equally applicable to the lay witness testimony, the error 23 is harmless.” Johnson v. Comm’r of Soc. Sec., No. CV-19-04887-PHX-DLR, 2020 WL 24 4696666, at *4 (D. Ariz. Aug. 13, 2020). 25 Although the ALJ failed to provide reasoning for rejecting the lay witness 26 testimony, that failure is harmless error because the testimony offered nothing beyond what 27 Plaintiff alleged. See Molina, 674 F.3d at 1122. Accordingly, the ALJ’s error was 28 harmless. 1 B. Evaluation of Medical Testimony 2 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 3 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 4 Cir. 2008). Those who have treated a claimant are treating physicians; those who examined 5 but did not treat the claimant are examining physicians; and those who neither examined, 6 nor treated the claimant are non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 7 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating 8 source than to the opinion of doctors who did not treat the claimant.” Id. This is so because 9 treating physicians have the advantage of in-person interaction and typically a longer 10 history of treatment than a claimant’s other doctors, and their “subjective 11 judgments . . . . are important, and properly play a part in their medical evaluations.” 12 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 13 An ALJ “may only reject a treating or examining physician’s uncontradicted 14 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 15 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830–31). “Where 16 such an opinion is contradicted, however, it may be rejected for specific and legitimate 17 reasons that are supported by substantial evidence in the record.” Id. An ALJ meets this 18 standard by “setting out a detailed and thorough summary of the facts and conflicting 19 medical evidence, stating his interpretation thereof, and making findings.” Magallanes v. 20 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 21 Here, Plaintiff argues the ALJ improperly rejected Dr. Knievel’s, Dr. Gordon’s, PT 22 Morgan’s, and Dr. Aranas’ opinions without clear and convincing reasons for doing so. 23 (Doc. 16 at 12–13.) The Commissioner argues that the ALJ’s responsibility is to resolve 24 conflicts in the medical record, and here, the ALJ made specific findings—supported by 25 substantial evidence—to resolve the conflicts. (Doc. 17 at 4–5.) The Court agrees with 26 the Commissioner. 27 First, the Ninth Circuit has held “that [an] ALJ may permissibly reject check-off 28 reports that do not contain any explanation of the bases of their conclusions.” Molina, 674 1 F.3d at 1111 (quoting Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.1996)); see also Ford v. 2 Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (“The ALJ need not accept the opinion of any 3 physician, including a treating physician, if that opinion is brief, conclusory, and 4 inadequately supported by clinical findings.” (quoting Thomas, 278 F.3d at 957)). Here, 5 the medical opinions are the kind of check-off reports that contain little more than brief, 6 conclusory opinions without adequate clinical findings. 7 The ALJ found the opinions of Dr. Knievel, Dr. Aranas, and PT Morgan to be 8 inconsistent with the record as well as being “check-list style forms” with minimal 9 explanations for the conclusions. (Doc. 15-3 at 26–27.) Dr. Knievel’s opinion was a literal 10 check-off report with occasional written statements regarding medication and brief 11 descriptions of symptoms. (Doc. 15-8 at 83–86.) Plaintiff additionally proffers her 12 medical records, (Doc. 15-9 at 129–173), as “ample explanation” for Dr. Knievel’s opinion, 13 yet these records fail to add substance or clarification to Dr. Knievel’s scant report. Dr. 14 Aranas’ opinion likewise is merely a literal check-off report in the form of a two-question 15 “Development Questionnaire.” (Doc. 15-10 at 25.) Dr. Aranas’ second opinion—a 16 “Headache Questionnaire”—is a three-question check-off report. (Doc. 15-22 at 91.) 17 Although PT Morgan’s “Cervical Spine RFC Questionnaire” likewise is a check-off report, 18 it had the occasional brief comment section to describe symptoms. (Doc. 15-10 at 14–24.) 19 Regarding Dr. Gordon’s opinion, the ALJ offered clear and convincing reasons for 20 assigning “some weight” to some—but not all—of Dr. Gordon’s opinion. (Doc. 15-3 at 21 27.) The ALJ assigned “some weight” because Plaintiff’s treatment history supports some 22 of Dr. Gordon’s opinions. (Doc. 15-3 at 26–27.) Unlike the other opinions, Dr. Gordon’s 23 opinion offered in depth notes regarding Plaintiff’s condition as well as evidence to support 24 some of his conclusions. (Doc. 15-10 at 2–12.) For example, the ALJ reasoned that “the 25 environmental limitations assessed by Dr. Gordon are supported by the claimant’s history 26 of treatment for headaches and seizures” and thus deserve “some weight.” (Id. at 27.) 27 However, the ALJ assigned “little weight” to other parts of Dr. Gordon’s opinion. (Doc. 28 15-3 at 26–27.) For example, the ALJ found that “[a]lthough Dr. Gordon found the patient 1 had fibromyalgia with tender points, medical records showed no treatment or diagnosis of 2 this condition by a rheumatologist” and therefore gave “little weight” to this opinion. (Id. 3 at 26.) 4 Second, the ALJ provided clear and convincing reasons, supported by the record as 5 a whole, for rejecting—or assigning little weight to—the various medical testimonies. See 6 Carmickle, 533 F.3d at 1164. In her opinion, the ALJ provided that the various medical 7 opinions often conflicted with pain management treatment records. (Doc. 15-3 at 26–27.) 8 For example, regarding PT Morgan’s opinion, the ALJ stated that the opinion “is 9 inconsistent with pain management treatment records, which showed the [Plaintiff] 10 generally had normal neck examination [Doc. 15-3 at 17].” (Id. at 27.) 11 Therefore, the ALJ properly rejected Dr. Knievel’s, Dr. Gordon’s, PT Morgan’s, 12 and Dr. Aranas’ opinions. 13 C. Vocational Expert Testimony 14 A vocational expert’s testimony cannot be relied upon if the hypothetical is not 15 supported by the record and the claimant’s limitations. Embrey v. Bowen, 849 F.2d 418, 16 423 (9th Cir. 1988). An ALJ may disregard a claimant’s subjective excess pain testimony 17 if it is not supported by objective medical evidence. Id. However, “[u]nless the record 18 indicates that the ALJ had specific and legitimate reasons for disbelieving a claimant's 19 testimony as to subjective limitations such as pain, those limitations must be included in 20 the hypothetical in order for the vocational expert's testimony to have any evidentiary 21 value.” Id. 22 Plaintiff argues that the vocational expert’s testimony has no evidentiary value— 23 because the ALJ omitted various medical and other evidence of the record related to 24 Plaintiff’s limitations—and thus the ALJ’s decision is not based on substantial evidence. 25 (Doc. 16 at 16–17.) The Commissioner responds that because the ALJ based her decision 26 on her evaluation of the medical and other various evidence on the record, the ALJ’s use 27 of the vocational expert testimony was proper. (Doc. 17 at 14–15.) Again, the Court agrees 28 with the Commissioner. 1 Here, the medical record supported the hypothetical posed to the vocational expert. 2|| The “omitted limitations ...were only those that the ALJ found not to exist ... [T]he ALJ 3 || did not err in omitting the other limitations that [the plaintiff] had claimed, but had failed to prove.” Rollins, 261 F.3d at 857. As previously stated, the ALJ properly disregarded 5 || Plaintiffs testimony because it was contradicted by (1) objective medical evidence; (2) 6|| Plaintiff's course of treatment; and (3) Plaintiff's activities of daily living. (Doc. 15-3 at 7 || 22-23.) Because the ALJ properly rejected the various medical opinions and Plaintiff’ s 8 || testimony—including severity and limitation testimony—by offering specific and 9|| legitimate reasons for disbelieving it, the ALJ properly relied on the testimony of the 10 || vocational expert as substantial evidence. See Embrey, 849 F.2d at 423. 11 IV. CONCLUSION 12 Having found no error, 13 IT IS ORDERED affirming the October 24, 2019 decision of the ALJ, as upheld by the Appeals Council. 15 IT IS FURTHER ORDERED directing the Clerk to enter final judgment 16 || consistent with this Order and close this case. 17 Dated this 15th day of June, 2022. 18 □□ 19 _ = fonorable Susan M. Brovich 1 United States District Judge 22 23 24 25 26 27 28 -9-