McVey-Pacheco v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 ALICIA M.-P., 9 Plaintiff, Case No. C20-6073-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Supplemental Security Income 15 (“SSI”). Plaintiff contends the administrative law judge (“ALJ”) erred in assessing her testimony 16 and the lay testimony, certain medical opinions, and her residual functional capacity (“RFC”). 17 (Dkt. # 20 at 1.) Plaintiff also argues that evidence submitted for the first time to the Appeals 18 Council requires remand. As discussed below, the Court AFFIRMS the Commissioner’s final 19 decision and DISMISSES the case with prejudice. 20 II. BACKGROUND 21 Plaintiff was born in 1969, has a GED, and has worked as a court administrative assistant 22 and barista. AR at 259, 272. Plaintiff was last gainfully employed in 2007. Id. at 259. 23 1 In June 2018, Plaintiff applied for SSI and Disability Insurance Benefits (“DIB”), with an 2 amended alleged onset date of June 15, 2018.1 AR at 23, 45, 216-29. Plaintiff’s applications 3 were denied initially and on reconsideration, and Plaintiff requested a hearing. Id. at 145-51, 4 156-63. After the ALJ conducted a hearing in November 2019, the ALJ issued a decision finding 5 Plaintiff not disabled. Id. at 40-68. 6 Plaintiff submitted additional evidence along with her request for Appeals Council 7 review. AR at 8-14, 437-46. The Appeals Council denied Plaintiff’s request for review, and the 8 ALJ’s decision is therefore the Commissioner’s final decision. Id. at 1-7. Plaintiff appealed the 9 final decision of the Commissioner to this Court. (Dkt. # 4.) 10 III. LEGAL STANDARDS 11 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 12 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 13 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 14 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 15 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 16 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 17 alters the outcome of the case.” Id. 18 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 20 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 21 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 22 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 23 1 By amending her alleged onset date, Plaintiff dismissed her claim for DIB and the ALJ’s decision only addresses Plaintiff’s SSI application. See AR at 23, 45. 1 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 2 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 3 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 4 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 5 IV. DISCUSSION 6 A. The ALJ Did Not Harmfully Err in Assessing Plaintiff’s Testimony 7 The ALJ summarized Plaintiff’s allegations and explained that he discounted them 8 because: (1) Plaintiff’s treatment record contained many normal and/or unremarkable physical 9 findings, (2) Plaintiff reported improvement in her physical symptoms with conservative 10 treatment, (3) Plaintiff’s mental symptoms were controlled with medication, and (4) Plaintiff’s 11 activities were inconsistent with her reported limitations. AR at 29-31. In the Ninth Circuit, in 12 the absence of evidence of malingering, an ALJ’s reasons to discount a claimant’s testimony 13 must be clear and convincing. See Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 14 Plaintiff mounts several challenges to the ALJ’s reasoning. First, Plaintiff argues that the 15 ALJ’s references to certain normal findings, such as normal gait, do not constitute an 16 inconsistency with her testimony because fibromyalgia is not an orthopedic condition. (Dkt. # 20 17 at 12.) But the ALJ did not suggest fibromyalgia was an orthopedic condition: the ALJ 18 contrasted Plaintiff’s normal gait with her reports of an inability to walk even a block at a 19 reasonable pace on rough or uneven surfaces (AR at 30), as well as her report that she could only 20 walk 200 feet at a time (id. at 29). Plaintiff reported that her fibromyalgia pain limited her ability 21 to walk, among other activities, and thus the ALJ reasonably considered the evidence of 22 Plaintiff’s ability to walk and perform other activities despite her limitations. 23 1 Plaintiff also contends that the ALJ erred in discounting her allegations based on her 2 conservative treatment, because there is no cure for fibromyalgia. (Dkt. # 20 at 12.) But the ALJ 3 emphasized Plaintiff’s improvement with conservative treatment, namely her trigger point 4 injections and physical therapy. See AR at 30. The ALJ did not discount Plaintiff’s allegations 5 because she received conservative treatment, but because she improved with conservative 6 treatment, which is a valid reason to discount a claimant’s testimony. See, e.g., Tommasetti v. 7 Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (“The record reflects that Tommasetti responded 8 favorably to conservative treatment including physical therapy and the use of anti-inflammatory 9 medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset. Such a 10 response to conservative treatment undermines Tommasetti’s reports regarding the disabling 11 nature of his pain.”). 12 Plaintiff goes on to contend that the ALJ failed to account for the limiting effects of her 13 pain: “Nowhere in the decision does the ALJ mention the limiting effects of pain despite years of 14 medical records where significant pain is reported and treated with narcotic (Oxycodone) pain 15 medications.” (Dkt. # 20 at 13.) Plaintiff is mistaken: the ALJ’s decision repeatedly references 16 Plaintiff’s pain allegations and explains why he found those allegations to be inconsistent with 17 other evidence in the record. See, e.g., AR at 30 (discussing Plaintiff’s report of at least 50% 18 improvement in pain after trigger injections, improvement in pain with medication and 19 therapeutic stretches, 70% pain relief with current medication regimen, improvement in pain 20 with physical therapy). Although Plaintiff posits that her repeated injections indicate that the 21 relief is not long-lasting (dkt. # 20 at 13), the ALJ noted that Plaintiff’s provider advised her to 22 receive them regularly in order to maximize her relief. AR at 30 (referencing, e.g., id. at 829, 23 833, 837, 841, 844). That treatment must be applied regularly in order to be effective does not 1 mean that the treatment is ineffective, and Plaintiff has not shown that the ALJ’s interpretation of 2 Plaintiff’s injection regimen is unreasonable. 3 Furthermore, the ALJ is not required to credit a claimant’s pain allegations, Molina, 674 4 F.3d at 1112, and Plaintiff has not shown that the ALJ’s reasons to discount her pain allegations 5 are insufficient. Plaintiff questions the ALJ’s reference to her “heavy” tobacco use (AR at 29), 6 but the treatment notes reference her use in connection with medical advice to stop smoking. See, 7 e.g., id. at 718-19. Plaintiff testified at the hearing that she had recently reduced her smoking and 8 planned to stop entirely. Id. at 61-62. The ALJ did not state that Plaintiff’s smoking habits 9 undermined her allegations, and Plaintiff has not shown that the ALJ erred in referencing her 10 smoking habits as documented in the treatment record in his summary of the evidence. 11 Lastly, Plaintiff challenges the ALJ’s reliance on her activities as a basis for discounting 12 her allegations. (Dkt. # 20 at 14-16.) An ALJ may rely on activities as a basis for discounting a 13 claimant’s allegations if the claimant’s activities contradict her allegations. See Orn v. Astrue, 14 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff contends that the ALJ erred in citing activities that 15 either were performed before the amended alleged onset date or do not prove that she can work 16 full-time. To the extent that the ALJ referenced pre-onset activities (AR at 30 (citing id. at 703, 17 719)), those citations do not support the ALJ’s conclusion. But the fact that other activities do 18 not prove Plaintiff can work full-time does not show error in the ALJ’s decision, because an ALJ 19 may properly rely upon a claimant’s activities that either contradict a claimant’s testimony or 20 demonstrate the existence of transferable work skills. See Orn, 495 F.3d at 639. To the extent 21 that Plaintiff also argues that some of the activities, when considered in context, do not 22 meaningfully contradict her allegations (dkt. # 20 at 14-16), even if the ALJ did err in this 23 section, any error is harmless in light of the ALJ’s other valid reasons to discount Plaintiff’s 1 allegations. See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2 2008). 3 Because Plaintiff has not established harmful legal error in the ALJ’s assessment of her 4 testimony, the Court affirms this portion of the ALJ’s decision. 5 B. The ALJ Did Not Err in Assessing the Medical Opinion Evidence 6 Plaintiff argues that the ALJ erred in crediting the State agency consultant opinions, 7 which rejected all of the medical opinions reviewed, and in assessing a consultative examiner’s 8 opinion. (Dkt. # 20 at 8-11.) The Court will consider each disputed opinion in turn. 9 1. Legal Standards 10 The regulations effective March 27, 2017, 20 C.F.R. §§ 404.1520c(c), 416.920c(c), 11 require the ALJ to articulate how persuasive the ALJ finds medical opinions and to explain how 12 the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a)-(b), 13 416.920c(a)-(b). The regulations require an ALJ to specifically account for the legitimate factors 14 of supportability and consistency in addressing the persuasiveness of a medical opinion. Thus, 15 the regulations require the ALJ to provide specific and legitimate reasons to reject a doctor’s 16 opinions. See, e.g., Kathleen G. v. Comm’r of Social Sec., No. C20-461-RSM, 2020 WL 17 6581012, at *3 (W.D. Wash. Nov. 10, 2020) (finding that the new regulations do not clearly 18 supersede the “specific and legitimate” standard because the “specific and legitimate” standard 19 refers not to how an ALJ should weigh or evaluate opinions, but rather the standard by which the 20 Court evaluates whether the ALJ has reasonably articulated his or her consideration of the 21 evidence). 22 Further, the Court must continue to consider whether the ALJ’s analysis is supported by 23 substantial evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 1 Fed. Reg. 5852 (January 18, 2017) (“Courts reviewing claims under our current rules have 2 focused more on whether we sufficiently articulated the weight we gave treating source opinions, 3 rather than on whether substantial evidence supports our final decision … [T]hese courts, in 4 reviewing final agency decisions, are reweighing evidence instead of applying the substantial 5 evidence standard of review, which is intended to be highly deferential standard to us.”). 6 2. The ALJ Did Not Err in Assessing the State Agency Opinions 7 Plaintiff argues that the State agency opinions did not adequately explain why the 8 consultants failed to credit various opinions. (Dkt. # 20 at 9.) Plaintiff suggests that the ALJ’s 9 reliance on the State agency opinion thus fails to “build an accurate and logical bridge from the 10 evidence to his or her conclusions.” (Id.) But Plaintiff has not shown that the ALJ failed to link 11 the evidence to his conclusions because she fails to address the ALJ’s reasons for finding the 12 State agency opinions persuasive: the ALJ pointed to specific evidence that corroborated the 13 State agency opinions, namely Plaintiff’s treatment record and demonstrated functioning. AR at 14 31. Plaintiff has failed to show that the ALJ unreasonably found the State agency opinions to be 15 consistent with the record, and thus has not established error in the ALJ’s assessment of these 16 opinions. 17 3. The ALJ Did Not Err in Assessing the Opinion of Robert Sise, M.D. 18 Dr. Sise performed a psychiatric examination of Plaintiff in September 2018 and wrote a 19 narrative report describing her symptoms and describing her functional abilities as either “fair,” 20 “somewhat fair” or “somewhat limited.” AR at 808-11. The ALJ found Dr. Sise’s opinion to be 21 consistent with his examination and other psychiatric examinations, as well as with Plaintiff’s 22 lack of mental health treatment. Id. at 31-32. The ALJ noted that Dr. Sise used vague, undefined 23 words to describe the degree of Plaintiff’s limitation, but “[t]o the extent [his] opinion does not 1 indicate more than mild limitation in mental functioning, [the ALJ] f[oun]d this opinion to be 2 persuasive.” Id. at 32. 3 Plaintiff first argues that consultative examinations play an important role in the disability 4 adjudication process. (Dkt. # 20 at 10-11.) That may be true but does not indicate that the ALJ 5 erred in finding that Dr. Sise used vague, undefined words to describe Plaintiff’s limitations. 6 Plaintiff goes on to argue that the ALJ should have recontacted Dr. Sise if his terminology was 7 inadequate, and that the ALJ was nonetheless able to interpret Dr. Sise’s opinion despite its 8 shortcomings. (Id. at 11.) This argument is not persuasive: the ALJ did not find Dr. Sise’s 9 opinion to be inadequate and therefore was not required to recontact him for clarification, and 10 Plaintiff has not shown that the ALJ was unreasonable in finding that his terminology was vague 11 or in discounting it, to some extent, on this basis. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 12 2020) (“Here, the ALJ found that Dr. Zipperman’s descriptions of Ford’s ability to perform in 13 the workplace as ‘limited’ or ‘fair’ were not useful because they failed to specify Ford’s 14 functional limits. Therefore, the ALJ could reasonably conclude these characterizations were 15 inadequate for determining RFC.”). 16 Because Plaintiff has not shown that the ALJ erred in assessing Dr. Sise’s opinion, the 17 Court affirms this portion of the ALJ’s decision. 18 4. The ALJ Did Not Err in Assessing the Opinion of Beth Liu, M.D. 19 Plaintiff also argues that the ALJ erred in rejecting the opinion of Dr. Liu, who performed 20 a consultative examination of Plaintiff in September 2018 and wrote a narrative report describing 21 Plaintiff’s physical limitations. AR at 802-06. The ALJ noted that Dr. Liu referenced Plaintiff’s 22 “account of her limitations” as part of the basis for her opinion, yet the ALJ discounted 23 Plaintiff’s self-reporting, for reasons discussed infra. Id. at 32. The ALJ also found that Dr. Liu’s 1 opinion that Plaintiff was limited to four hours of sitting per day (50-60 minutes at a time) was 2 inconsistent with treatment notes showing improvement with treatment, and that Dr. Liu’s 3 normal findings as to Plaintiff’s ability to grip, grasp, and manipulate contradicted her opinion 4 that Plaintiff was limited to frequent use of her hands. Id. Lastly, the ALJ found that the 5 restrictions listed by Dr. Liu were inconsistent with Plaintiff’s activities. Id. 6 Plaintiff indicates that the ALJ discounted Dr. Liu’s opinion on the grounds that: “The 7 opinion relies heavily on the subjective report of symptoms and limitations provided by the 8 individual and the totality of the evidence does not support the opinion.” (Dkt. # 27 at 9.) But, as 9 indicated above, the ALJ did not provide this rationale for discounting Dr. Liu’s opinion: the 10 ALJ provided three specific reasons that are neither, as Plaintiff claims (id.), vague nor fail to 11 acknowledge that Dr. Liu examined Plaintiff herself. Plaintiff has not shown that any of the 12 ALJ’s stated reasons for discounting Dr. Liu’s opinion are erroneous, and the Court therefore 13 affirms this portion of the ALJ’s decision. 14 C. The ALJ Did Not Err in Assessing the Lay Evidence 15 The ALJ summarized statements provided by Plaintiff’s mother and hairstylist (AR at 16 287, 289-99, 410), and explained that he found these statements to be less persuasive than the 17 opinions of the State agency consultants and a consultative psychological examiner, which were 18 more consistent with the record overall. Id. at 32. An ALJ’s reasons to discount a lay statement 19 must be germane. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to 20 discount the testimony of the lay witnesses, he must give reasons that are germane to each 21 witness.”). 22 Plaintiff argues that the ALJ erred in discounting lay statements in favor of medical 23 opinions when the lay statements corroborated the medical opinions via direct observation. (Dkt. 1 # 20 at 16-17.) Although Plaintiff contends that the lay statements are consistent with the 2 medical opinion evidence (id. at 17), that is not entirely true: as noted by the ALJ, the State 3 agency consultants and the consultative psychological examiner opined that Plaintiff’s 4 limitations were not disabling (AR at 31-32), whereas the lay witnesses described disabling 5 sitting, standing, and memory limitations. See id. at 287, 289-99, 410. The ALJ did not err in 6 finding the lay statements to be inconsistent with the credited medical opinions, or in discounting 7 the lay statements on this basis. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“One 8 reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence.”). 9 Accordingly, the Court affirms this portion of the ALJ’s decision. 10 D. The ALJ Did Not Err in Assessing Plaintiff’s RFC 11 The ALJ’s RFC assessment describes Plaintiff as capable of performing light work with 12 the following additional limitations, in relevant part: she can stand/walk for up to four hours in 13 an eight-hour workday. She can frequently stoop, and occasionally kneel, crouch, and crawl. AR 14 at 28. 15 Plaintiff argues that the ALJ erred in defining Plaintiff as capable of standing/walking 16 four hours per workday, and yet finding that she was capable of performing light work, because 17 the full range of light work is defined to require approximately six hours of walking per 18 workday. (Dkt. # 20 at 6-7.) But the ALJ did not find that Plaintiff could perform the full range 19 of light work: the vocational expert (“VE”) testified that Plaintiff’s standing/walking limitations 20 did not preclude her from performing the “modified light” jobs identified at step five because 21 those jobs permit a sit/stand option. See AR at 64-66. This testimony constitutes substantial 22 evidence upon which the ALJ was entitled to rely, indicating that Plaintiff could perform some 23 light jobs even with her stand/walk limitation as identified in the ALJ’s RFC assessment. See 1 Terry v. Saul, 998 F.3d 1010, 1013 (9th Cir. 2021). 2 Plaintiff goes on to argue that a person who is limited to performing sedentary work 3 cannot stoop up to two-thirds of a day. (Dkt. # 20 at 7-8.) But the ALJ did not restrict Plaintiff to 4 performing sedentary work: as noted above, the ALJ’s RFC assessment describes a reduced 5 range of light work. See AR at 28. Thus, Plaintiff has not shown that there is any conflict 6 between the ALJ’s restriction to frequent stooping and any other part of the ALJ’s RFC 7 assessment. 8 E. The Appeals Council Evidence Does Not Require Remand 9 At the administrative hearing, the VE identified three light jobs that could be modified to 10 permit a sit/stand option and would therefore be consistent with the ALJ’s RFC assessment. AR 11 at 64-66. The VE explained that his testimony as to the sit/stand option was not addressed in the 12 Dictionary of Occupational Titles (“DOT”) but was based on his professional experience. Id. at 13 66. The VE testified that he eroded the job numbers for one of the jobs by 50% to account for the 14 sit/stand option, but that there were nonetheless more than 600,000 total jobs in the national 15 economy that Plaintiff could perform. Id. at 65. 16 Plaintiff submitted for the first time to the Appeals Council evidence suggesting that the 17 step-five jobs identified by the VE do not exist in significant numbers or are otherwise 18 inconsistent with Plaintiff’s RFC. See AR at 8-11, 437-46. Plaintiff argues that this evidence 19 undermines the ALJ’s decision and therefore requires remand. (Dkt. # 20 at 17-18.) 20 According to the Commissioner, the mere existence of contradictory evidence based on 21 other data not considered by the VE does not suggest that the ALJ erred in relying on the VE’s 22 testimony. (Dkt. # 24 at 16-17.) The Court agrees, as the Ninth Circuit has recently explained 23 that Appeals Council evidence based on data gleaned from other publications does not eviscerate 1 VE testimony based on “unchallenged expertise” and “reference to the [DOT].” See Terry, 998 2 F.3d at 1013 (citing Ford, 950 F.3d at 1159). Here, Plaintiff did not challenge the VE’s expertise 3 at the hearing and presents data based on Department of Labor statistics and/or O*Net 4 publications that the VE did not evidently consult. Under these circumstances, where it appears 5 that the Appeals Council evidence is based on different data than the VE’s testimony, Plaintiff 6 has not shown that the VE’s testimony was unreliable or created a conflict that required 7 resolution by the Commissioner. Cf. Buck v. Berryhill, 869 F.3d 1040, 1051-52 (9th Cir. 2017). 8 Although Plaintiff contends that the VE failed to justify or reference any support for his 9 conclusions (dkt. # 27 at 2), Plaintiff is mistaken: the VE cited both the DOT and his own 10 professional experience as the basis for his testimony (AR at 64-66), and although Plaintiff has 11 presented evidence inconsistent with the VE’s testimony, she has not shown that the ALJ erred in 12 relying on the VE’s testimony at step five. Because the ALJ’s step-five findings are supported by 13 substantial evidence in the form of the VE’s testimony, the Appeals Council evidence 14 notwithstanding, the Court finds no basis to remand in light of the Appeals Council evidence. 15 See Brewes v. Comm’r of Social Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (“[W]hen the 16 Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, 17 that evidence becomes part of the administrative record, which the district court must consider 18 when reviewing the Commissioner's final decision for substantial evidence.”). 19 // 20 // 21 // 22 // 23 // 1 V. CONCLUSION 2 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED, and this 3 case is DISMISSED with prejudice. 4 Dated this 9th day of November, 2021. 5 6 A 7 MICHELLE L. PETERSON United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23