(SS) Brown v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANITA BROWN, Case No. 1:21-cv-00214-EPG 10 Plaintiff, 11 v. FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 12 COMMISSIONER OF SOCIAL SECURITY COMPLAINT SECURITY, 13 (ECF No. 17, 20) Defendant. 14 15 16 This matter is before the Court on Plaintiff Anita Brown’s (“Plaintiff”) complaint for 17 judicial review of an unfavorable decision by the Commissioner of the Social Security 18 Administration. The parties have consented to entry of final judgment by a United States 19 Magistrate Judge pursuant to 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the 20 Ninth Circuit. (ECF Nos. 8, 10, 11.) 21 The matter was taken under submission on the parties’ briefs without a hearing. Having 22 reviewed the record, the administrative transcript, the parties’ briefs, and the applicable law, the 23 Court finds as follows. 24 I. DISCUSSION 25 Plaintiff makes the following arguments: 26 1. Substantial evidence does not support the ALJ’s rejection of the only treating 27 physician’s well-supported Medical Source Statements (MSS); 28 /// 1 2. The ALJ harmfully erred by failing to provide “clear and convincing” reasons for 2 rejecting Ms. Brown’s symptomology evidence; and 3 3. The ALJ harmfully erred by failing to find Ms. Brown’s depression a “severe” 4 impairment and account for limitations in later steps of the RFC. (ECF No. 17.) 5 A. Medical Opinions 6 1. Legal Standards 7 This claim is governed by the agency’s “new” regulations concerning how ALJs must 8 evaluate medical opinions for claims filed on or after March 27, 2017.1 20 C.F.R. §§ 404.1520c, 9 416.920c. The regulations set “supportability” and “consistency” as “the most important factors” 10 when determining the opinions’ persuasiveness. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 11 And although the regulations eliminate the “physician hierarchy,” deference to specific medical 12 opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate how [he or 13 she] considered the medical opinions” and “how persuasive [he or she] find[s] all of the medical 14 opinions.” 20 C.F.R. §§ 404.1520c(a)-(b); 416.920c(a)-(b). 15 Recently, the Ninth Circuit has issued the following guidance regarding treatment of 16 physicians’ opinions after implementation of the revised regulations: 17 The revised social security regulations are clearly irreconcilable with our caselaw according special deference to the opinions of treating and examining physicians 18 on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) 19 (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . ., including those from your medical 20 sources.”). Our requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor’s opinion, which stems from the 21 special weight given to such opinions, see Murray, 722 F.2d at 501–02, is likewise incompatible with the revised regulations. Insisting that ALJs provide a more 22 robust explanation when discrediting evidence from certain sources necessarily 23 favors the evidence from those sources—contrary to the revised regulations. Woods v. Kijakazi, No. 21-35458, 2022 WL 1195334, at *6 (9th Cir. Apr. 22, 2022). 24 Accordingly, under the new regulations, “the decision to discredit any medical opinion, must 25 simply be supported by substantial evidence.” Id. at *1. “Substantial evidence means more than a 26 scintilla but less than a preponderance.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 27 28 1 Plaintiff protectively filed a Title II application for disability insurance benefits on January 16, 2019. 1 It is “relevant evidence which, considering the record as a whole, a reasonable person might 2 accept as adequate to support a conclusion.” Id. 3 In conjunction with this requirement, “[t]he agency must ‘articulate . . . . how persuasive’ 4 it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), and ‘explain how [it] considered the supportability and consistency factors’ in reaching these 5 findings, id. § 404.1520c(b)(2).” Woods, 2022 WL 1195334, at *6. 6 Supportability means the extent to which a medical source supports the medical 7 opinion by explaining the “relevant . . . objective medical evidence.” Id. 8 § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical 9 sources in the claim.” Id. § 404.1520c(c)(2). 10 Id. As the Ninth Circuit also noted, “[t]he revised regulations recognize that a medical 11 source’s relationship with the claimant is still relevant when assessing the persuasiveness of the 12 source’s opinion. See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and 13 purpose of the treatment relationship, the frequency of examinations, the kinds and extent of 14 examinations that the medical source has performed or ordered from specialists, and whether the 15 medical source has examined the claimant or merely reviewed the claimant’s records. Id. § 16 404.1520c(c)(3)(i)–(v). However, the ALJ no longer needs to make specific findings regarding 17 these relationship factors.” Woods, 2022 WL 1195334, at *6 (citing § 404.1520c(b)(2)). “A 18 discussion of relationship factors may be appropriate when ‘two or more medical opinions . . . 19 about the same issue are . . . equally well-supported . . . and consistent with the record . . . but are 20 not exactly the same.’ Id. § 404.1520c(b)(3). In that case, the ALJ ‘will articulate how [the 21 agency] considered the other most persuasive factors.’” Id. 22 With these legal standards in mind, the Court reviews the ALJ’s weight given to Dr. 23 Sanchez’s opinions. 24 2. Dr. Sanchez’s Opinions 25 The ALJ stated as follows regarding Dr. Sanchez’s opinions: 26 The undersigned has considered that there are multiple opinions submitted by Irene Sanchez, MD limiting the claimant to lifting up to five pounds (Exhibits 1F; 27 15F/2). These opinion are not persuasive and inconsistent with the overall evidence. For example, Dr. Sanchez found no push/pull/ over five pounds through 28 1 October 2018 despite the claimant’s gait improvement in January 2018. Moreover, the opinions are prior to the amended alleged onset date of disability. Finally, the 2 objective evidence will not support the level of limitations. 3 (A.R. 25). Moreover, the ALJ discussed the other, conflicting, medical opinions as follows: 4 As for medical opinions, Dr. Wagner authored an opinion that the claimant could lift and carry 50 pounds occasionally and 25 pounds frequently; she could 5 frequently climb, stoop and crouch; stand and or walk up to six hours with normal breaks; the ability to sit is unlimited with normal breaks and no assistive device 6 was used (Exhibit 3F/5-6). 7 Dr. Wagner’s opinion is most persuasive as the medical record as a whole 8 including the MRI and her activities of daily living supports the opinion. However, 9 giving the claimant the benefit of doubt the undersigned reduces the exertional level to light and the postural limitations to occasional. 10 11 The State agency consultants B. Vaghaiwalla, MD (May 2019) and M. Amado, MD (November 2019) opined that the claimant has no severe physical impairment 12 (Exhibits 1A/8; 3A/8). The undersigned finds their opinions less persuasive since there is some objective evidence in the medical records and the MRI that 13 document some level of degenerative disc disease of the lumbar spine. However, the degree of pain is not supported by the record as a whole including the nerve 14 conduction studies. 15 (A.R. 25). 16 Thus, the ALJ did address Dr. Sanchez’s opinion along with the other medical opinions. 17 She stated how persuasive she found each opinion. That said, the reasons given for Dr. Sanchez 18 are very brief and lack citations to the record. The ALJ refers to gait improvement in January 19 2018 without citing to a record or explaining how gait improvement relates to the opinions at 20 issue, which concern lifting strength. Additionally, the Commissioner concedes that the second 21 reason given by the ALJ—that the opinions are prior to the amended alleged onset date of disability—was incorrect. 22 The ALJ also stated that “the objective evidence will not support the level of limitations.” 23 (A.R. 25). The ALJ similarly compares the opinions to the objective medical evidence in the MRI 24 and nerve conduction studies in her discussion of the opinions of Dr. Wagner, Dr. Vaghaiwalla, 25 and M. Amado’s opinions. To evaluate whether this statement is sufficient, the Court also looks 26 to the discussion of objective medical evidence preceding the discussion of medical opinions, 27 including: 28 1 Despite her reports of disabling back pain and limitations, the x-ray of the coccyx and sacrum was negative for any significant abnormality. The x-ray of the thoracic 2 spine and the MRI of the thoracic spine were both normal. The claimant underwent a MRI of the lumbar spine based on complaints of low back pain 3 radiating into the bilateral extremities with weakness. However, the MRI showed 4 only mild impingement of the descending left SI nerve root at L5-51 on the basis of a disc protrusion and annular tear; broad-based left disc bulge with a left-sided 5 foraminal tear at L4-L5; mild bilateral facet joint fluid and multi-level mild degenerative disc changes (Exhibits 11F/1, 3; 13F/2). Further, the claimant’s 6 allegations of pain and numbness in her right lower extremity are not supported by 7 the electromyography (EMG) and the nerve conduction studies that were negative (Exhibit 11F/61). The claimant underwent a neurological exam that revealed 8 normal lower extremities without atrophy and with normal muscle strength and tone. Sensation was intact. The vascular exam was normal with normal pulses. 9 Straight leg raising was normal. There was no sciatica or low back pain associated with straight leg raising. Although this examination was three years prior to the 10 amended alleged onset date there is no evidence to suggest that, the claimant’s 11 condition has worsened (Exhibit 11F/3). 12 There is also evidence of improvement as the claimant admitted that using 13 naproxen and Soma helped to reduce spasm allowing for rest and improved ability to perform daily activities. Although the claimant has alleged a history of 14 headaches and dizziness, the MRI of the brain was negative. 15 More recent pain management records in June 2020 document the claimant’s 16 subjective reports of increased pain level and limitations including the need to elevate her legs and limited rotation but there are no objective findings to support 17 the increase in pain and limitations. For example, a MRI was ordered but was not in the medical record. Moreover, despite her alleged weakness and feeling of pins 18 and needles in her bilateral lower extremities no further EMG or nerve conduction 19 studies were ordered. (A.R. 24-25). The ALJ’s summary of the objective evidence is supported by the record, including 20 negative EMG and nerve conduction studies and mild findings in the MRI. 21 After review, the Court declines to remand to the ALJ on this basis. The Court agrees that 22 the reasons given for rejecting Dr. Sanchez’s opinion are brief and partially in error. The Court 23 also appreciates that the ALJ’s comparison of the opinions with the objective evidence such as the 24 MRI is not well explained. However, the ALJ did compare competing medical opinions with the 25 objective evidence as required by the new regulations and did articulate some reasoning based on 26 that medical evidence. Given the multiple medical opinions supporting the RFC, or giving even 27 fewer restrictions than the RFC, as well as many normal physical test results, the ALJ’s 28 1 conclusion is also supported by substantial evidence. 2 B. Subjective Symptom Testimony 3 1. Legal Standards 4 The Ninth Circuit has provided the following guidance regarding assessing a claimant’s credibility: 5 6 To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ 7 must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain 8 or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she 9 has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony ... 10 simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged. 11 Second, if the claimant meets this first test, and there is no evidence of 12 malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so[.] 13 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 14 omitted). In weighing a claimant’s credibility, an ALJ may consider, among other things, the 15 claimant’s reputation for truthfulness, inconsistencies either in the claimant’s testimony or 16 between her testimony and her conduct, the claimant’s daily activities, her work record, and 17 testimony from physicians and third parties concerning the nature, severity, and effect of the 18 claimant’s symptoms. Thomas v. Barnhart, 279 F.3d 947, 958-59 (9th Cir. 2002) (citation 19 omitted). 20 2. Analysis 21 Given that there is objective medical evidence of an underlying impairment, the Court 22 examines whether the ALJ rejected Plaintiff's subjective symptom allegations by offering 23 specific, clear, and convincing reasons. 24 The ALJ stated the conclusion that “[a]fter careful consideration of the evidence, the 25 undersigned finds that the claimant’s medically determinable impairments could reasonably be 26 expected to cause the alleged symptoms; however, the claimant’s statements concerning the 27 intensity, persistence and limiting effects of these symptoms are not entirely consistent with the 28 medical evidence and other evidence in the record for the reasons explained in this decision.” 1 She then proceeded to summarize the record. (A.R. 22). There is no other direct discussion of 2 Plaintiff’s subjective symptom testimony. 3 The Court finds that the ALJ failed to provide legally sufficient reasons to discount 4 Plaintiff’s subjective symptom testimony. The Court appreciates that the ALJ’s discussion of the 5 record at times included statements that could support the ALJ’s conclusion regarding the 6 symptom testimony, such as how Plaintiff had previously stated that she “retired” from her job, 7 and that she had various normal tests and observations at various points in time. However, the 8 ALJ does not state what testimony is called into question and how medical evidence compares to 9 that testimony, or analyze the testimony in any way. Given the legal standards set forth above, 10 the Court cannot find that the ALJ’s boilerplate statement followed by discussion of all medical 11 evidence, without any further explanation, meets that standard. This error is especially apparent because the ALJ concluded that the Plaintiff could 12 perform her past relevant work despite Plaintiff’s testimony that she stopped working that 13 particular job after 27 years on the job because of her disabilities. In order to make such a 14 conclusion, the ALJ had to completely discount Plaintiff’s testimony about her ability to do that 15 particular job. The ALJ’s reasoning was not sufficient to support the ALJ’s finding that Plaintiff 16 could return to the job she says she previously left due to disability. Brown-Hunter v. Colvin, 806 17 F.3d 487, 489 (9th Cir. 2015) (“We hold that an ALJ does not provide specific, clear, and 18 convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in 19 support of his or her residual functional capacity determination. To ensure that our review of the 20 ALJ's credibility determination is meaningful, and that the claimant's testimony is not rejected 21 arbitrarily, we require the ALJ to specify which testimony she finds not credible, and then provide 22 clear and convincing reasons, supported by evidence in the record, to support that credibility 23 determination.”); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (“General findings are 24 insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 25 undermines the claimant's complaints.”). 26 Finally, the ALJ did not address Plaintiff’s testimony regarding her need to urinate 27 frequently. (A.R. 54-55 (“I have to urinate constantly, like every, I’d say 20 or 30 minutes a 28 day.”). 1 Accordingly, the ALJ erred in discrediting Plaintiff’s subjective symptom testimony 2 without providing legally sufficient reasons to do so. 3 C. Depression as Severe Impairment 4 Finally, Plaintiff argues that there was sufficient evidence to conclude that Plaintiff’s 5 depression was a severe impairment at step two of the sequential evaluation. 6 The Ninth Circuit has described step two, and the review of the ALJ’s decision at that 7 step, as follows: 8 An impairment or combination of impairments may be found “not severe only if the evidence establishes a slight abnormality that has no more than a minimal 9 effect on an individual's ability to work.” Smolen, 80 F.3d at 1290 (internal quotation marks omitted) (emphasis added); *687 see Yuckert v. Bowen, 841 F.2d 10 303, 306 (9th Cir.1988). The Commissioner has stated that “[i]f an adjudicator is unable to determine clearly the effect of an impairment or combination of 11 impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.” S.S.R. No. 85–28 12 (1985). Step two, then, is “a de minimis screening device [used] to dispose of groundless claims,” Smolen, 80 F.3d at 1290, and an ALJ may find that a claimant 13 lacks a medically severe impairment or combination of impairments only when his conclusion is “clearly established by medical evidence.” S.S.R. 85–28. Thus, 14 applying our normal standard of review to the requirements of step two, we must determine whether the ALJ had substantial evidence to find that the medical 15 evidence clearly established that Webb did not have a medically severe impairment or combination of impairments. See also Yuckert, 841 F.2d at 306 16 (“Despite the deference usually accorded to the Secretary's application of regulations, numerous appellate courts have imposed a narrow construction upon 17 the severity regulation applied here.”). 18 Webb v. Barnhart, 433 F.3d 683, 686–687 (9th Cir. 2005). 19 The ALJ provided the following reasons for finding that Plaintiff’s depression was not 20 severe at step two: 21 However, overall, the record does not reflect ongoing significant symptoms or limitations due to anxiety, depression or other mental health impairments. The 22 record does not reflect psychiatric hospitalization or even consistent treatment with a psychiatrist or psychologist. For example, in November 2019, when she saw 23 Donald Yutzler, Ph.D., the claimant alleged depression, crying spells, and grieving her daughter’s death, but she failed to appear to the next scheduled appointment. 24 Moreover, Dr. Yutzler noted that she was not in crisis (Exhibit 17F/4, 9). There are no other mental health treatment records. 25 Furthermore, a finding of no limitation with understanding, remembering, or applying information is supported by the record reflecting that the claimant 26 completed 12th grade in 1980 (Exhibits 3E/3; 2F/2). As well, there is no indication in the record of special education or a learning disability. 27 Regarding interacting with others, the record consistently reflects that the claimant 28 1 has mild limitations as she presents fully oriented, cooperative, with normal thought content and with clear speech and appropriate eye contact (Exhibits 2F/3; 2 17F/5). During another medical appointment, the claimant was awake, alert, and oriented times three. Her affect was appropriate (Exhibit 1F/3). 3 As well, the record does not support a finding of more than mild limitation in 4 adapting or managing oneself. The consultative internal medicine examiner noted that the claimant takes care of her 12-year-old grandson. She cooks, cleans, drives, 5 shops and performs her own activities of daily living. The claimant walks for exercise (Exhibit 3F/2). The consultative examiner Megan Hamill Psy.D., found 6 that the claimant has mild impairment in her ability to deal with the usual stressors encountered in the workplace (Exhibit 2F/5) 7 As for concentrating, persisting, or maintaining pace, the undersigned finds that 8 the claimant has no greater than a mild limitation. The consultative internal medicine examiner noted that the claimant drove herself to the appointment, which 9 is supported by the records that document the ability to drive, which demonstrates concentration, persistence, and pace and an ability to tolerate the stress inherent in 10 the operation of a motor vehicle. As well, as noted above, the claimant reports to shopping, meal preparation, walking for exercise and performing her own daily 11 living needs, which are all activities that also require concentration, persistence and pace (Exhibit 2F/3- 4). 12 Because the claimant’s medically determinable mental impairment causes no more 13 than “mild” limitation in any of the functional areas and the evidence does not otherwise indicate that there is more than a minimal limitation in the claimant’s 14 ability to do basic work activities, it is nonsevere (20 CFR 404.1520a(d)(1)). 15 (A.R. 20). 16 The Court concludes that these are legally sufficient reasons for the ALJ’s finding that 17 Plaintiff’s depression was not severe. Plaintiff concedes that she received almost no mental health treatment, but claims that this was due to COVID-19 restrictions. However, those 18 restrictions do not account for the lack of any mental health treatment before November 2019, the 19 missed appointment in January 2019, and the failure to participate in any remote counseling after 20 that time. During the hearing, Plaintiff stated that she has not attempted to make a phone or video 21 consultation with any counselors, and that she was put on hold without any response the time she 22 had called the office. (A.R. 50). Plaintiff’s lack of diligence in obtaining any mental health 23 treatment supports the ALJ”s conclusion. Moreover, the consultative examiner’s opinion also 24 supports the ALJ’s finding on this issue. 25 D. Remedy 26 Given the Court’s finding that the ALJ failed to provide legally sufficient reasons to 27 discount Plaintiff’s subjective symptom testimony, the Court has the discretion to remand or 28 reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may 2 be remanded under the “credit-as-true” rule for an award of benefits where: (1) the record has been fully developed and further administrative proceedings 4 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 5 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 6 would be required to find the claimant disabled on remand. 7 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 8 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 9 | the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 10 | the meaning of the Social Security Act.” Jd. at 1021. 11 The Court will remand for further consideration consistent with this opinion. The Court 12 | has upheld the ALJ’s decision regarding the lack of severity of Plaintiff's depression at step two 13 | and the weight given to Dr. Sanchez, but is reversing to the extent the ALJ discounted certain of 14 | Plaintiffs physical limitations. The ALJ’s conclusion that Plaintiff can return to her prior work, 15 | notwithstanding her testimony that she left that job due to disability, will be reversed. However, 16 | the Court cannot conclude on this record that Plaintiffs physical limitations are disabling in light 7 of all the evidence. On remand, the ALJ shall reconsider the RFC in light of Plaintiff's testimony 18 about her physical impairments and proceed accordingly through the sequential evaluation. 19 I. CONCLUSION AND ORDER 20 Accordingly, the decision of the Commissioner of the Social Security Administration is > REVERSED and REMANDED for further administrative proceedings consistent with this 0 decision. The Clerk is directed to enter judgment in favor of Plaintiff and against Defendant. 23 | IT IS SO ORDERED. 24 yg | Dated: _July 27, 2022 [see hey — UNITED STATES MAGISTRATE JUDGE 26 27 28 10