Opinion
No. CV-17-00160-PHX-JAT
01-16-2018
James Bolin, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Pending before the Court is Plaintiff appeal of the denial of his application for social security disability benefits. Plaintiff alleges three claims of error on appeal: 1) the Administrative Law Judge (ALJ) did not give adequate reasons to discredit Plaintiff's symptom testimony; 2) the ALJ did not give adequate reasons discredit certain doctors' testimony; and 3) the ALJ did not properly consider Plaintiff's sleep apnea.
I. LEGAL STANDARD
The ALJ's decision to deny benefits will be overturned "only if it is not supported by substantial evidence or is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). "Substantial evidence" means more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).
"The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ." Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether there is substantial evidence to support a decision, the Court considers the record as a whole, weighing both the evidence that supports the ALJ's conclusions and the evidence that detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720. "Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence." Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because "[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).
The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the ALJ's decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); see also 42 U.S.C. § 405(g) (2012). On the other hand, the Court "may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation and citation omitted).
Finally, the Court is not charged with reviewing the evidence and making its own judgment as to whether Plaintiff is or is not disabled. Rather, the Court's inquiry is constrained to the reasons asserted by the ALJ and the evidence relied on in support of those reasons. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).
II. DISCUSSION
A. PLAINTIFF'S SYMPTOM TESTIMONY
"Unless an ALJ makes a finding of malingering based on affirmative evidence thereof," the ALJ may only find the claimant not credible by making specific findings supported by the record that provide clear and convincing reasons to explain her credibility evaluation. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (citing Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996)). In this case, both parties agree that the ALJ made no finding of malingering; and, therefore, was required to give clear and convincing reasons to reject the claimant's testimony about the severity of his symptoms. (Doc. 14 at 8; Doc. 13 at 11-12).
Defendant notes its disagreement with the Ninth Circuit's law on this point. (Doc. 14 at n.4).
In rendering a credibility determination, the ALJ may consider several factors, including: "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284). If the ALJ relies on these factors and his reliance is supported by substantial evidence, the Court "may not engage in second-guessing." Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002)).
In his briefing, Plaintiff does not dispute that the ALJ has a citation to medical evidence of record for each finding. Instead, Plaintiff argues that there is other evidence of record that the ALJ should have considered to reach a different finding.
For example, the ALJ noted that Plaintiff received relief from his pain with medication. (Doc. 10-3 at 26). Plaintiff argues that while this is true, Plaintiff's five year history of using strong pain medication should not be discounted by Plaintiff's improvement with pain medication. (Doc. 13 at 13). Conversely, Defendant notes that the ALJ's finding is consistent with Plaintiff's own testimony ("The pain never goes away other than, you know, when I take the medication to block it"). (Doc. 14 at 11) (citing Transcript at 51) Further, Defendant notes that under Ninth Circuit law, impairments that can be controlled with medication are not disabling. (Doc. 14 at 12) (citing Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)). Therefore, the Court finds improvement with medication is a clear and convincing reason to discredit Plaintiff's pain testimony.
The page number reflects the numbering in this Court's docket, not the numbering in the ALJ's decision.
By way of further example, Plaintiff argues that while the ALJ correctly recounted the breadth and difficulty of Plaintiff's daily activities, the ALJ failed to include certain limitations on those activities. (Doc. 13 at 14). The ALJ noted that Plaintiff's doctor recommended he exercise 40 to 60 minutes per day (Doc. 10-3 at 26) and that Plaintiff hikes and walks for exercise (Id.). Further, the ALJ noted that Plaintiff takes care of all of his own personal grooming (including dressing, bathing, hair care, shaving, eating and using the restroom) with no reminders. (Doc. 10-3 at 22). The ALJ also noted that Plaintiff cleans, does the dishes, prepares simple means, drives a car, shops in stores for meals, clothes and household supplies, watches television, and takes his medication without reminders. (Doc. 10-3 at 22). Further, Plaintiff has no limitations in social functioning including getting along with others. (Doc. 10-3 at 22). Plaintiff claims the ALJ failed to note that Plaintiff can only do yard work for one hour and needs the help of a friend. (Doc. 13 at 14).
Defendant notes that under Ninth Circuit law daily activities can be grounds for discrediting a claimant's testimony that he has a totally disabling impairment to the extent such activities are inconsistent with such testimony. (Doc. 14 at 11) (citing Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)). Further, Defendant argues that the inconsistency between Plaintiff's testimony that he is in severe pain after standing for 30 minutes versus the fact that Plaintiff lost significant weight from hiking is a clear and convincing reason why Plaintiff's daily activities discredit Plaintiff's symptom testimony (before even considering Plaintiff's many other activities). (Doc. 14 at 11).
The Court finds that these two findings by the ALJ (which are not all of the ALJ's findings) are clear and convincing reasons to discredit Plaintiff's testimony that he is totally disabled. While Plaintiff asks this Court to re-weigh the evidence, "If the ALJ's credibility finding is supported by substantial evidence in the record, [the Court] may not engage in second guessing. See Thomas, 278 F.3d at 959. Accordingly, the Court will not reverse the ALJ on this claim of error.
The ALJ also found that the medical evidence of record undermined and was inconsistent with the severity of the symptoms Plaintiff claims. (Doc. 10-3 at 27). The ALJ further found that Plaintiff's work history was inconsistent with his claims that he was unable to work due to his claimed disability. (Doc. 10-3 at 25). These are also clear and convincing reasons (supported by substantial evidence of record in this case) under Ninth Circuit law to discredit the severity of Plaintiff's symptom testimony. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."); Thomas, 278 F.3d at 959 ("In addition to finding no objective medical evidence to support Ms. Thomas' descriptions of her pain and limitations, the ALJ found that Ms. Thomas had an 'extremely poor work history' and 'has shown little propensity to work in her lifetime,' which negatively affected her credibility regarding her inability to work. Ms. Thomas' work history was spotty, at best, with years of unemployment between jobs, even before she claimed disability in June of 1993.").
B. DOCTORS' OPINIONS
The parties agree that on this record the ALJ must give specific and legitimate reasons supported by substantial evidence of record to not credit the opinions of Drs. Foxx and Goldberg. (Doc. 15 at 5; Doc. 14 at 16); see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). "If evidence exists to support more than one rational interpretation, [the Court] must defer to the [ALJ's] decision." Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
This test applies because these doctors' findings are inconsistent with Dr. Roberts' findings, and therefore are contradicted by other medical evidence of record. (Doc. 10-3 at 28); Connett, 340 F.3d at 874. --------
1. Dr. Foxx
Here, Plaintiff argues the ALJ erred in not fully crediting the opinion of Dr. Foxx. The ALJ did not fully credit Dr. Foxx's opinion for several reasons, including: 1) Dr. Foxx's November 2013 notes are internally inconsistent because at the same time Plaintiff was having a period of successful treatment (by radiofrequency neuroablation procedures), Dr. Foxx concluded Plaintiff's pain was persistent, severe and disabling; 2) Dr. Foxx does not have supporting rationale for her diagnosis; 3) Dr. Foxx's notes later found Plaintiff's pain to be the result of life stressors not spinal impairments; 4) the Dr. inconsistently found Plaintiff disabled, but noted he needed to prepare for a "new work-life"; 5) Dr. Foxx's clinic notes showed "mild" rather than severe findings; and 6) Dr. Foxx's objective clinical findings strongly suggested Plaintiff would improve with physical therapy. (Doc. 10-3 at 27-28).
The Ninth Circuit recognizes internally inconsistent findings, findings without explanations or rationales, and findings that are inconsistent with the objective medical record as specific and legitimate reasons to not credit a treating physician. See Thomas, 278 F.3d at 957; Tommasetti, 533 F.3d at 1041. The ALJ offered reasons that fit within each of the categories for not crediting Dr. Foxx's opinion
Plaintiff claims error on appeal arguing that the ALJ mischaracterized his radiofrequency neuroablation procedures as successful when he only had relief from pain for 2-3 days. (Doc. 13 t 16). However, what the ALJ actually found was that it was inconsistent for Dr. Foxx to, at the same time, find Plaintiff was pain free for 2 to 3 days but during those same days have persistent, severe and disabling pain. (Doc. 10-3 at 27 (citing Exhibit 4F, pg. 1)). Thus, this Court finds no error based on this statement by the ALJ.
Next, Plaintiff argues that the fact that his pain is from life stressors is not a reason to discredit Dr. Foxx's opinion. However, as Defendant notes, courts have held that life stressors are not disabling. See Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010); see also Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999). The Court finds no error in the ALJ noting this finding by Dr. Foxx.
Finally, Plaintiff argues it was error for the ALJ to note that Dr. Foxx counseled Plaintiff on a new work-life because that was just one aspect of Dr. Foxx's notes. The ALJ read Dr. Foxx's notes completely, and found this statement about a new work life balance to be inconsistent with Dr. Foxx's other notes that Plaintiff was disabled. This internal inconsistency in the doctor's notes was one basis for the ALJ to discredit the doctor's opinion. In other words, the ALJ did not rely on this statement, in isolation, to find Plaintiff was not disabled. Thus, the Court finds no error in the ALJ considering this statement as part of Dr. Foxx's overall opinion.
Based on all of the foregoing, the Court finds the ALJ gave specific and legitimate reasons, supported by substantial evidence of record, to not fully credit the opinions of Dr. Foxx.
2. Dr. Goldberg
Plaintiff argues the ALJ did not give specific and legitimate reasons for not crediting the opinion of Dr. Goldberg. Dr. Goldberg opined that Plaintiff could not work due to his back pain and mind altering medications. (Doc. 10-3 at 28). The ALJ did not credit Dr. Goldberg's opinion because: 1) Dr. Goldberg's opinions were not supported by the objective medical evidence; 2) Plaintiff only sought treatment once a quarter suggesting his condition was stable; 3) Dr. Goldberg tapered then ended her prescriptions of narcotic pain medications; and 4) Dr. Goldberg's notes do not describe intensive treatment or surgical interventions. (Doc. 10-3 at 28).
Plaintiff claims the ALJ committed error because the ALJ classified the medical evidence as showing mild stenosis and mild disc bulges, when one test showed moderate to severe disc space narrowing. (Compare Doc. 10-3 at 28 with Doc. 10-9 at 76.) However, when Doc. 10-9 at 76 is read as a whole, it states that there are either no findings, or minimal or mild findings 16 times, and moderate to severe results once. (Doc. 10-9 at 76-77). Thus, the ALJ's overall categorization of mild findings is not inaccurate. Thus, when the ALJ concluded that the objective medical evidence showing mild findings was inconsistent with Dr. Goldberg's conclusion that Plaintiff cannot work, the ALJ did not commit error.
Next, Plaintiff argues that the ALJ erred in concluding that his condition was stable because he only sought treatment from Dr. Goldberg once per quarter. (Doc. 13 at 18). Plaintiff argues that his condition was not stable because he increased his narcotic pain medication, but Plaintiff cites nothing to support this factual assertion. (Id.). On this record, the Court finds the ALJ did not commit error by noting the frequency of Plaintiff's visits to Dr. Goldberg.
Next Plaintiff argues the ALJ committed error by not discussing how his medications made him sedated. (Doc. 13 at 18). However, when Dr. Goldberg referred Plaintiff to Dr. Foxx, Dr. Foxx's notes state "The patient denies any adverse effects from medication including sedation." (Doc. 10-8 at 102). The Court finds the ALJ did not err for not discussing a condition Plaintiff denies exists.
Finally, Plaintiff complains that the ALJ erred in stating his narcotic pain medication ended. (Doc. 13 at 18). However, the ALJ made this statement in the context of discussing Dr. Goldberg's treatment of Plaintiff. (Doc. 10-3 at 28). With respect to Dr. Goldberg, the record supports that when Plaintiff was referred to Dr. Foxx by Dr. Goldberg, Dr. Goldberg tapered then ended her narcotic prescriptions. Specifically, Dr. Foxx's notes state: "THE PATIENT WAS ADVISED THAT THERE CAN NOT BE ANY FURTHER PROVIDERS WRITING FOR ANY NARCOTICS FROM THIS DAY FORWARD. ANY FUTURE VIOLATIONS WILL RESULT IN OUR OFFICE NO LONGER PRESCRIBING ANY NARCOTICS." (Doc. 10-8 at 105 (emphasis in original)). Thus, on this record, the ALJ's statement that Dr. Goldberg ended narcotic prescriptions appears to be true and was, therefore, not error.
Defendant notes that the ALJ may discount a medical opinion that conflicts with objective evidence of record. (Doc. 14 at 19-20 (citing 20 C.F.R. §§404.1527(c)(4), 416.927(c)(4)). Here, the ALJ made such finding based on the objective imaging, Plaintiff's infrequent treatment, and Plaintiff's conservative treatment plan. These are all specific and legitimate reasons supported by substantial evidence of record to not give full weight to the opinion of Dr. Goldberg; therefore, the ALJ did not commit error.
3. Drs. Woodward, Novak, and Kerns
Plaintiff argues it was error for the ALJ to not discuss the opinions of Drs. Woodward, Novak and Kerns. (Doc. 13 at 18). Defendant responds and argues that the ALJ need not discuss a doctor's opinion if it is consistent with, or fully incorporated into, the Plaintiff's residual functional capacity. (Doc. 14 at 21 (citing Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010)). In his reply, Plaintiff does not dispute the fact that these doctors opinions are consistent with the residual function capacity of the Plaintiff as found by the ALJ, nor does Plaintiff cite any cases that are inconsistent with Turner. (Doc. 15 at 8). Therefore, the ALJ did not commit error by not giving specific and legitimate reasons for "not crediting" these doctors' opinions because the ALJ did in fact credit them.
C. SLEEP APNEA
In a heading, the ALJ stated, "The claimant has the following severe impairments...obstructive sleep apnea...." (Doc. 10-3 at 21). However, later in the decision, the ALJ finds that the sleep apnea is not severe. Specifically, the ALJ states:
The record makes some references to sleep apnea, hypothyroidism, restless leg syndrome, and migraine headaches. The record shows that the claimant did not receive regular or intensive treatments for these minor issues. During the hearing, he did not describe significant limitations related to these conditions. Additionally, his treating physicians do not include severe symptoms or limitations related to these issues. [citation omitted]. Polysomnography revealed only mild obstructive sleep apnea. [citation omitted]. The undersigned has reviewed the entire medical record and had not elevated these issues to be included in the severe impairments to be discussed in this decision.(Doc. 10-3 at 23).
Defendant argues that it is clear that the ALJ found Plaintiff's sleep apnea to not be a severe impairment. (Doc. 14 at 5). Defendant goes on to argue that the ALJ's inclusion of sleep apnea in the heading listing the severe impairments is either a scrivener's error or harmless error. (Id.)
Plaintiff argues that to the extent the ALJ concluded that Plaintiff's sleep apnea was not severe, that conclusion was in error. (Doc. 15 at 8). Specifically, Plaintiff argues that he has an extensive record complaining of "insomnia, fatigue, grogginess and sedation." (Id.). First, Plaintiff cites nothing showing that Plaintiff's claimed sleep apnea would result in "sedation." Second, while the Court could imagine how sleep apnea could result in fatigue or grogginess, Plaintiff cites nothing showing any doctor actually made such a diagnosis. Thus, on this record, the Court finds nothing that shows that the ALJ erred in concluding that sleep apnea was not a severe condition for Plaintiff. Further, the Court agrees with Defendant that the ALJ's inclusion of sleep apnea in the heading listing severe impairments was a scrivener's error that does not warrant reversal.
III. CONCLUSION
Based on the foregoing,
IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the Court shall enter judgment accordingly.
Dated this 16th day of January, 2018.
/s/ _________
James A. Teilborg
Senior United States District Judge