Burton v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 SHELLI B., 8 Plaintiff, CASE NO. C21-5217-BAT 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S DECISION AND COMMISSIONER OF SOCIAL SECURITY, DISMISSING THE CASE WITH 11 PREJUDICE Defendant. 12 13 Plaintiff appeals the denial of her applications for Supplemental Security Income (“SSI”) 14 and Social Security Disability Insurance (“SSDI”) benefits for the period from August 1, 2007 to 15 May 31, 2015, at which time plaintiff was found to be disabled. She contends the ALJ erred by 16 (1) giving no reasons for rejecting plaintiff’s testimony; (2) failing to provide specific and 17 legitimate reasons for rejecting the opinion of treating podiatrist Dr. Bruce Brewer, D.P.M.; and 18 (3) failing to rate the correct functional areas in assessing plaintiff’s mental impairment at step 19 three. Dkt. 10. The Court AFFIRMS the Commissioner’s final decision and DISMISSES the 20 case with prejudice. 21 BACKGROUND 22 The decision at issue is the fourth ALJ decision stemming from plaintiff’s March 2009 23 applications for benefits. See Tr. 68–71. In March 2011, ALJ Verrell Dethloff found plaintiff was 1 not disabled. Tr. 14–36. The federal appeal was, however, remanded by stipulation of the parties. 2 Tr. 776–79. In June 2016, ALJ Laura Valente found plaintiff was disabled beginning June 1, 3 2015, but was not disabled prior to that date. Tr. 576–93. As a result, plaintiff was eligible for 4 SSI benefits but not for SSDI benefits because she was found to be not disabled as of her date 5 last insured of March 31, 2011. Tr. 592. Subsequently, this Court remanded for further 6 proceedings because, for the period before June 1, 2015, the ALJ had not properly considered the 7 opinions of state agency medical consultants Drs. Hurley and Platter, Tr. 2531–33; did not 8 properly consider the evidence concerning plaintiff’s ability to stand and walk, Tr. 2535–39; and 9 for further consideration of plaintiff’s hand/arm impairments, Tr. 2539–41. In July 2018, ALJ 10 Valente again found plaintiff to be not disabled from August 1, 2007 through May 31, 2015. Tr. 11 2414–27. In April 2019, the federal appeal was again remanded by stipulation of the parties. Tr. 12 2816–19. 13 On remand, ALJ Glenn Meyers held a new hearing and issued the November 2020 14 decision at issue here. Tr. 2739–49. At step two, ALJ Meyers determined that plaintiff had the 15 severe impairments of trochanteric bursitis; fibromyalgia, bilateral carpal tunnel syndrome; 16 Achilles tendonitis, status post multiple surgeries; obesity; depressive disorder; anxiety disorder; 17 and panic disorder. Tr. 2743. At step three, the ALJ found that plaintiff’s impairments did not 18 meet or medically equal the severity of a listed impairment. Id. The ALJ assessed a residual 19 functional capacity (“RFC”) during the relevant period of sedentary work with additional 20 physical, postural, and mental limitations. Tr. 2744. The ALJ determined at step four that the 21 RFC precluded plaintiff from returning to past relevant work but determined at step five that 22 plaintiff could perform jobs that exist in significant numbers in the national economy. Tr. 2747– 23 48. The ALJ therefore found that plaintiff was not disabled from August 1, 2007 through May 1 31, 2015. Tr. 2749. ALJ Meyers’s November 2020 decision is the Commissioner’s final 2 decision. 3 DISCUSSION 4 The Court will reverse the ALJ’s decision only if it was not supported by substantial 5 evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. 6 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account 7 of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one 8 rational interpretation, the Court must uphold the Commissioner’s interpretation. Thomas v. 9 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 10 Although plaintiff offers an alternative interpretation of the evidence, she has not 11 demonstrated that the ALJ’s decision was unreasonable, unsupported by substantial evidence, or 12 the result of harmful legal error. 13 1. Plaintiff’s Testimony 14 Plaintiff contends that the ALJ harmfully erred by providing “no reasons” for discounting 15 plaintiff’s testimony about her functional limitations. Dkt. 10, at 5–9. This is an incorrect 16 characterization of the decision because ALJ Meyers expressly adopted ALJ Valente’s July 2018 17 reasons for discounting plaintiff’s testimony. See Tr. 2747. 18 ALJ Meyers discounted plaintiff’s testimony as inconsistent “with the medical evidence 19 and other evidence in the record from August 1, 2007 through May 30, 2015 for the reasons 20 explained in this decision and the previous decision at Exhibit 28A [ALJ Valente’s 2018 21 decision]; all parts of which have been adopted by me, absent those the United States District 22 Court [] deemed erroneous at Exhibit 30A [the 2019 stipulated remand] and have been discussed 23 1 and altered herein.” 1 Tr. 2747. ALJ Valente, in turn, discounted plaintiff’s testimony regarding 2 her functional limitations as inconsistent with the medical evidence, plaintiff’s statements, and 3 plaintiff’s daily activities. Tr. 2795–2800. 4 Plaintiff argues that ALJ Meyers’s decision nonetheless failed to explain why he rejected 5 plaintiff’s testimony that she had (1) significant problems using her upper extremities; 6 (2) significant symptoms of depression which would have limited her ability to attend work; and 7 (3) limitations in sitting and the need to lie down during the day due to pain. Dkt. 10, at 5–8; Dkt. 8 12, at 4. That contention is unpersuasive because ALJ Meyers adopted ALJ Valente’s evaluation 9 of these issues; ALJ Valente cited clear and convincing reasons for discounting plaintiff’s 10 testimony; and plaintiff is unable to demonstrate how that reasoning was unsupported by 11 substantial evidence, legally erroneous, or unreasonable. See Smolen v. Chater, 80 F.3d 1273, 12 1281 (9th Cir. 1996). 13 First, ALJ Valente demonstrated that plaintiff’s testimony about her upper-extremity 14 limitations was inconsistent with the medical evidence, her own statements, and her daily 15 activities. ALJ Valente noted that although plaintiff testified that her bilateral hand problems 16 began in 2005, there was no confirming medical evidence of this until February 2010; although 17 plaintiff claimed no improvement in her hand condition, the medical records show periods with 18 few complaints of hand/wrist pain and improvement after undergoing carpal tunnel release; and 19 there were numerous findings indicating normal strength, sensation, and range of motion in the 20 hands. Tr. 2796–97; see Tr. 347–53, 397–98, 443, 459–71, 483, 1273, 1186–87, 1217–18, 1232, 21 1249, 1471–72, 1770–71, 1823–24. ALJ Valente cited plaintiff’s inconsistent statements about 22 1 The 2019 stipulated remand did not direct the ALJ to reexamine plaintiff’s testimony. Rather, 23 the order directed the ALJ to consider whether plaintiff’s trochanteric bursitis was a severe impairment and to reevaluate the opinion evidence. Tr. 2816–17. 1 her capabilities, such as reporting that she stopped work in 2007 due to her impairments, later 2 testifying that she stopped work because it was a temporary job, then testifying that she was fired 3 due to symptoms related to irritable bowel syndrome, and later saying that she was fired because 4 she was sick while recovering from drug addiction; testifying that between 2007 and 2015 she 5 had difficulty using her hands while also implying that her problems with writing were more 6 recent; and testifying both to difficulty in lifting a laundry basket and folding things due to pain 7 and to taking care of her household, doing the laundry, cooking and meal preparation, and 8 driving her husband to his welding coursework. Tr. 2797–98; see Tr. 172–95, 549, 1707, 1788, 9 2448–81. ALJ Valente referred to daily activities that contradicted her claims of debilitating 10 upper-extremity limitations, such as managing the household (including shopping, cooking, meal 11 preparation, and laundry), driving regularly, and attending college full-time for much of the 12 relevant period. Tr. 2798–99; see Tr. 350, 549, 1128, 1145, 1154, 1162, 1167, 1214, 1240, 1272– 13 73, 1480, 1707. Moreover, though plaintiff indicated that her carpal tunnel syndrome was 14 aggravated beginning in January 2012 due to increased typing at school, she continued in school 15 full-time and did not report significant problems with school due to hand or upper extremity pain 16 apart from engaging in yoga for a physical education class. Tr. 2799; see Tr. 1121, 1128, 1145, 17 1154, 1162, 1167, 1214, 1240, 1272–73. 18 Second, ALJ Valente adopted her earlier 2016 reasoning, which had not been undermined 19 during the remands, regarding plaintiff’s mental limitations. Tr. 2794–95. ALJ Valente 20 discounted plaintiff’s claim of debilitating mental limitations by noting the inconsistency with 21 her own testimony, presentation to treating providers, reports of functioning with prescribed 22 medications, activities of daily living, and the objective medical record prior to June 1, 2015. Tr. 23 582–84. For example, plaintiff has generally presented to treating providers as friendly and 1 cooperative with normal thought processes; mental status findings have been within normal 2 limits; and the record shows that plaintiff’s symptoms improve when she is compliant with 3 recommended treatment, such as not abusing methamphetamines or substituting marijuana for 4 medication. Tr. 582–83; see Tr. 322, 402, 405, 407–09, 411, 422, 539–42. ALJ Valente gave 5 significant weight to the opinion of treating psychiatrist Dr. Karin Barkin, M.D., who observed 6 “very mild residual symptoms of depression,” and to consultive psychiatric examiner Dr. James 7 O. Raney, M.D., who opined that plaintiff had a GAF score of 60, which indicated moderate 8 symptoms or a moderate impairment in social or occupational functioning. Tr. 583–85; see Tr. 9 325, 400–13. Moreover, ALJ Valente noted that plaintiff’s own report of activities—including 10 regular social outings, household management, and long-distance travel—belied her testimony of 11 debilitating mental limitations. Tr. 583, 585; see, e.g., Tr. 429–31, 436, 491, 549. 12 Third, ALJ Valente discounted plaintiff’s testimony about lower-extremity limitations 13 regarding sitting and the need to lie down due to pain based on the inconsistency of her 14 allegations with the medical record, her own statements, and her daily activities. For example, 15 contrary to plaintiff’s complaints of disabling lower-extremity pain, problems of walking and 16 standing, and lack of improvement after surgery: 17 • Plaintiff reported improvement after foot surgery, Tr. 449–52, 534–38, 1612; 18 • Consultative examiner Dr. Mark Heilbrunn, M.D., observed plaintiff’s ability to 19 complete all ranges of motion and to mount/dismount the examination table; 20 adequate balance on either leg and the ability to crouch, kneel, and crawl; normal 21 station and gait, normal hand coordination bilaterally, and negative Romberg; 22 normal strength without atrophy, normal deep tendon reflexes, and intact 23 sensation throughout her upper and lower extremities bilaterally, Tr. 347–53; and 1 • Overall, plaintiff presented to medical providers regularly in no acute distress; had 2 a normal gait, heel walking, to walking, muscle tone, and strength; showed no 3 muscle atrophy; and had little or no deficit in range of motion; and neurological 4 finders were normal or non-focal, see, e.g., Tr. 397–99, 469, 479, 1154, 1156, 5 1161–62, 1169, 1179, 1184, 1186–87, 1203, 1236, 1241, 1250, 1272, 1499, 1770– 6 74. 7 Tr. 2795–96. Even while plaintiff complained of severe pain that left her bedridden, she 8 presented repeatedly in no acute distress and with a normal range of motion, normal gait, and 9 normal muscle strength. Tr. 2421; see Tr. 1186–87, 1495–96, 1773–74. Although plaintiff stated 10 that she had to use a cane beginning in 2010, she presented with a cane only once during the 11 relevant period; and while she testified to needing to use a walker with a seat in order to cook, no 12 such device was recommended or prescribed and she never presented at an appointment with a 13 walker or reported having to use such a device. Tr. 2421; see Tr. 1210, 1212, 1226–36. 14 Moreover, that plaintiff was bedridden with pain was contradicted by plaintiff’s management of 15 the household, cooking and preparing meals, doing laundry, driving, shopping, attending college 16 full-time with a 3.88 GPA, and walking around campus with a backpack. Tr. 2423–24; see Tr. 17 348, 549, 1128, 1145, 1154, 1160–62, 1167, 1214, 1240, 1272–73, 1480, 1707. 18 Plaintiff contends that ALJ Meyers failed to state clear and convincing reasons for 19 discounting plaintiff’s testimony by adopting ALJ Valente’s detailed evaluation of plaintiff’s 20 symptom testimony because ALJ Meyers and ALJ Valente made different findings; ALJ Meyers 21 did not indicate whether he considered any testimony other than from the most recent hearing 22 specifically mentioned in the 2020 decision; and ALJ Meyers failed to expand his findings in 23 light of the entire record or to provide any independent assessment of plaintiff’s testimony. Dkt. 1 12, at 3–4. These contentions are unpersuasive. First, while it is clear that ALJ Meyers 2 determined that ALJ Valente made different findings regarding plaintiff’s RFC, ALJ Meyers 3 found that plaintiff was more limited than did ALJ Valente. Thus, that ALJ Meyers discounted 4 plaintiff’s testimony less than did ALJ Valente does not mean that ALJ Valente’s reasons for 5 discounting plaintiff’s testimony were invalid. Second, ALJ Valente considered testimony that 6 predates the testimony cited expressly by ALJ Meyers in the 2020 decision such that, by 7 incorporating ALJ Valente’s opinion, ALJ Meyers considered all the testimony that ALJ Valente 8 herself considered. Third, the Court declines to presume that by adopting ALJ Valente’s 9 examination of plaintiff’s testimony that ALJ Meyers failed to determine independently whether 10 the stated reasons were supported by the record. That ALJ Meyers found plaintiff to have greater 11 limitations than earlier assessed demonstrates that he independently reviewed the record and 12 came to different conclusions about plaintiff’s functional limitations. 13 The Court finds that plaintiff has not demonstrated that ALJ Meyers’s decision to 14 discount plaintiff’s testimony was unreasonable, unsupported by substantial evidence, or the 15 result of harmful legal error. 16 2. Dr. Brewer’s Treating Opinion 17 Plaintiff argues that ALJ Meyers failed to give specific and legitimate reasons for 18 discounting the May 2016 opinion of treating podiatrist Dr. Bruce Brewer, D.P.M. See Trevizo v. 19 Berryhill, 871 F.3d 664, 682 (9th Cir. 2017). The Court disagrees. 20 In May 2016, treating podiatrist Dr. Brewer filled out a two-page, checkbox form in 21 which he opined that plaintiff could sit for no longer than two hours, needed to shift at will from 22 sitting and standing/walking, should have complete freedom to rest throughout the day, and 23 would need to be absent from work more than four times per month. Tr. 2409. Dr. Brewer’s only 1 written comments were that plaintiff suffered from “chronic pain.” Tr. 2410. Dr. Brewer also 2 checked a box stating that patient was limited to this extent prior to March 31, 2011. Id. The ALJ 3 gave little weight to Dr. Brewer’s opinion because it contained minimal discussion and rationale 4 for the proposed functional limitations; there was no basis regarding absenteeism and off-task 5 time; the only medical condition mentioned was “chronic pain”; as a podiatrist, Dr. Brewer was 6 only qualified to address foot issues; and the treatment notes did not reflect the level of limitation 7 opined, particularly the severe limitations noted in standing, walking, and sitting. Tr. 2746. Put 8 more simply, ALJ Meyers found Dr. Brewer’s May 2016 opinion to be conclusory and 9 inadequately supported by clinical findings. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 10 2002) (“The ALJ need not accept the opinion of any physician, including a treating physician, if 11 that opinion is brief, conclusory, and inadequately supported by clinical findings.”). This was a 12 specific and legitimate reason supported by record evidence for discounting Dr. Brewer’s 13 opinion and is consistent with the scope of the Court’s original remand of ALJ Valente’s 2016 14 decision. 15 In 2017, the Court directed the ALJ to “reconsider other evidence of record associated 16 with Achilles tendonitis, including the opinions of Dr. Brewer and medical records subsequent to 17 the report of mild improvement and continuing through the date on which the ALJ [Valente] 18 found plaintiff limited to sedentary work [on June 1, 2015].” Tr. 2539. The cited report of mild 19 improvement was offered by Dr. Brewer on June 16, 2010, when Dr. Brewer also observed that 20 plaintiff was in no acute distress with decreased swelling and only mild tenderness, and 21 concluded that plaintiff’s “Achilles tendon [was] intact with good strength.” Tr. 486. 22 Subsequently, in October 2010, Dr. Brewer noted a significant decrease in the swelling of the 23 Achilles tendon with decreased tenderness, a range of motion in the ankle joint within normal 1 limits, and “[s]atsifactory improvement.” Tr. 449. In December 2010, Dr. Brewer noted that the 2 surgery had helped in a mild fashion on the left ankle but that the ankle pain had returned 3 bilaterally and appeared worse than before. Tr. 444. Nonetheless, Dr. Brewer noted decreased 4 swelling, no change in gait pattern, and planned to have plaintiff use orthotics for a few months 5 and follow up as needed. Id. 6 ALJ Meyers expressly reconsidered Dr. Brewer’s 2016 checkbox opinion in light of the 7 medical evidence from the relevant period, including Dr. Heilbrunn’s opinion, and determined 8 that plaintiff had a more limited RFC than did ALJ Valente. Tr. 2746–47 (citing Tr. 1092–1365 9 (medical records)). While ALJ Valente had assessed an RFC of light work with occasional 10 stooping and climbing, Tr. 2418, ALJ Meyers assessed an RFC of sedentary work that included 11 the need for the use of a cane for walking in the workplace and Dr. Brewer’s limitation to 12 needing the ability to elevate her feet 12 inches while seated, Tr. 2744. That is, ALJ Meyers 13 reconsidered the evidence of record concerning Achilles tendonitis that post-dated Dr. Brewer’s 14 2010 treatment notes, determined that plaintiff was more restricted than previously determined, 15 and otherwise adopted the review of the evidence regarding lower extremity limitations set forth 16 by ALJ Valente. Tr. 2747; see Tr. 2420–21. 17 The Court finds that plaintiff has not demonstrated that ALJ Meyers’s decision to 18 discount the May 2016 opinion of Dr. Brewer was unreasonable, unsupported by substantial 19 evidence, or the result of harmful legal error. 20 3. Assessment of Functional Areas at Step Three 21 Plaintiff correctly notes that the ALJ relied on outdated criteria when evaluating at step 22 23 1 three whether plaintiff satisfied the B criteria for the mental disorders in Listing 12.00.2 Dkt. 10, 2 at 15–17. The Court finds, however, that the ALJ’s error was harmless. 3 Plaintiff has not demonstrated how the ALJ’s incorrect citation to old paragraph B 4 criteria makes a difference in her case and offers no persuasive evidence to show that her 5 impairments satisfy any of the listed impairments in 12.00. ALJ Meyers cited evidence showing 6 that plaintiff’s mental impairments were not per se disabling under the listings. Tr. 2743–44. 7 Moreover, while ALJ Meyers determined that plaintiff suffered from severe mental impairments 8 and accounted for them in the RFC assessment, plaintiff fails to indicate how the ALJ 9 misevaluated the medical evidence in a manner that would suggest that those impairments met or 10 equaled a listed impairment at step three. 11 CONCLUSION 12 For the foregoing reasons, the Commissioner’s decision is AFFIRMED and this case is 13 DISMISSED with prejudice. 14 DATED this 24th day of September, 2021. 15 A 16 BRIAN A. TSUCHIDA United States Magistrate Judge 17 18 19 20 2 To determine whether a claimant meets the B criteria for mental disorders, the ALJ rates the 21 degree of severity of a claimant’s limitation in four broad functional areas: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, 22 or pace; and (4) adapting or managing oneself. 20 C.F.$. Pt. 404, Subpt. P, App. 1, 12.00(A)(2)(b) (effective at the time of ALJ Meyers’ November 2020 decision). Here the ALJ 23 found that plaintiff’s mental impairments did not satisfy one of the listings under 12.00, but in doing so, he cited outdated B criteria that no longer applied to plaintiff’s claim. Tr. 2743–44.