Opinion
6:17-cv-1908-JR
02-05-2019
DIAHN T., Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.
FINDINGS & RECOMMENDATION :
Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits (DIB) and supplemental security income (SSI). Plaintiff asserts disability beginning August 31, 2009, due to back pain. Tr. 215, 99. After hearings held on January 24, 2013 and May 14, 2013, an Administrative Law Judge (ALJ) determined plaintiff was not disabled. Plaintiff appealed the decision to the District Court resulting in a remand to the Social Security Administration to reassess a variety of issues.
After a hearing held on May 4, 2017, another ALJ determined plaintiff was not disabled. Plaintiff argues the ALJ erred by: (1) improperly rejecting her symptom testimony; (2) improperly rejecting the opinion of a treating physician; and (3) improperly rejecting the opinion of an examining psychologist. For the reasons stated below, the Commissioner's decision should be affirmed and this case should be dismissed. A. Plaintiff's Credibility
Plaintiff asserts the ALJ failed to provide clear and convincing reasons to reject plaintiff's subjective symptom testimony.
The ALJ found plaintiff has the following severe impairments: degenerative disc disease status post-fusion and laminectomy at L4-L5 and L5-S1; and a history of kidney disease with one kidney. Tr. 471.
On February 16, 2011, plaintiff reported she could not sit or stand for prolonged periods and her ability to lift was limited due to degenerative back issues. Tr. 258. She further reported that her pain worsens throughout the day so that she is unable to work full-time. Id. Plaintiff reported the following daily activities: upon awakening she takes pain medications and waits for them to work "so she can move;" showers and dresses; eats breakfast; feeds the animals; cleans the house; does laundry; lies down around 12:00 p.m.; goes for a walk or stretches; watches television or naps if needed; prepares dinner for her fiancé; watches television; does a few more chores around the house; and goes to bed. Tr. 259.
At the hearing held on May 4, 2017, plaintiff testified she limits herself to about 30 minutes when doing activities such as cleaning the house. Tr. 504. She further testified she no longer attends church due to the 30 minute-drive which is "too far for her to go." Id.
Plaintiff's last date insured for purposes of DIB was December 31, 2014.
Plaintiff had back surgeries in 2001 and 2003, and continued to work until 2009 as a school secretary in Washington. Tr. 507-08. At the hearing held on May 14, 2013, plaintiff testified that while her pain progressively worsened after her surgeries, she left her job in 2009 because her boyfriend got a job in Oregon and she moved as well with the intention of getting a job there. Tr. 42-43. Morever, plaintiff testified she cashed out her retirement and therefore was not financially required to work the year following her move. Tr. 43.
Plaintiff's testimony is confusing as to the dates of her surgeries. The record indicates the surgeries occurred on November 27, 2002, and September 25, 2003. Tr. 442.
At the time of the May 2013 hearing, plaintiff asserted the inability to concentrate due to pain. She stated her pain had worsened because she is on less pain medication due to her preference to take lower levels of medication. Tr. 48. Plaintiff further testified she was unable to stand or shop by herself, has difficulty driving, and after 2:00 or 3:00 p.m., she has to lie down. Id. Plaintiff acknowledged she is not taking enough pain medication by her own choice. Tr. 49. However, she did also state her preferred medication is too expensive, but was effective in controlling her pain. Id.
Plaintiff testified she is able to stand for 10 or 15 minutes; walk very slowly and only on an even surface for about an eighth of a mile; sit for about ten minutes; and lift no more than 25 pounds. Tr. 50-51.
The ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms inconsistent with the medical evidence and other evidence in the record. Tr. 479. Specifically, the ALJ found plaintiff's cessation of work at her alleged onset date in 2009 was unconnected to her allegations of disability. Tr. 479-80. The ALJ also noted plaintiff has been using pain medication such as MS-Contin at least since 2004, five years before her alleged onset with no medical changes to explain her decision to stop work. Tr. 480. Discontinuing employment at the alleged onset date for reasons other than a disabling impairment provides a clear and convincing reason for discounting disabling symptom testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (leaving job due to layoff rather than injury is a clear and convincing reason to reject disabling pain testimony). Here, not only did plaintiff testify she left her job to relocate to Oregon, with the intention of resuming work, she told her medical providers in February 2011 she "was working in an elementary school [and] since moving to Roseburg has been unable to find employment." Tr. 329.
The ALJ noted the record lacks evidence of deterioration in the claimant's condition since she last worked and that her daily activities strongly suggest a continued ability to perform her last relevant work. Tr. 476. On February 13, 2013, plaintiff told Dr. Andrea Marshall she is independent with her activities of daily living, and she can shop, drive, build birdhouses, and garden. Tr. 443. On May 8, 2012, plaintiff told Dr. Darryl George she was gardening and working on her property. Tr. 367. On August 29, 2012, she told Dr. George she was feeling good and had a busy month helping her mother in Washington, fishing on the family boat including catching the "biggest salmon," and camping in a tent. Tr. 360. On September 27, 2012, she reported to Dr. George she was working on a bible study computer program, had fun fishing, and wanted to earn income by doing crafts in her garage. Tr. 359.
The ALJ next noted that despite plaintiff's testimony that her pain and anxiety worsened since 2014, the record actually indicates increased improvement. Tr. 477. On April 1, 2015, plaintiff reported to Dr. George she engaged in home care for her father including lifting him. Tr. 898. On September 23, 2015, plaintiff told Dr. George she spent 10 days in Tacoma, Washington helping her mother with her late father's things. Tr. 923. On November 19, 2015, she reported taking a class lasting two and a half hours. Tr. 921. As of January 14, 2016, plaintiff reported visiting her mother in Tacoma three times in the last two months with her pain under control. Tr. 920. In addition, on March 16, 2016, plaintiff reported volunteer work of one and half hours at a thrift store including sorting goods weighing up to 15 pounds. Tr. 919. On May 11, 2016, plaintiff told Dr. George she made two trips out of state in the last month, was continuing to volunteer at the thrift store for an hour or more twice a week, and joined a veterans' auxiliary group to help establish a Vietnam memorial wall. Tr. 918. On December 15, 2016, she reported she had been spending time with her mother out of state helping with her household chores, cooking, and medical appointments. Those chores included climbing up on her mother's roof for one and half hours to spray for moss. Tr. 914. The ALJ also noted that the drive to her mother's house took over five hours one-way with breaks. Tr. 477.
The ALJ reasonablely found these activities were inconsistent with plaintiff's stated limitations. Such inconsistencies also provide a clear and convincing reason to reject plaintiff's symptom testimony. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ appropriately pointed to the contradictions between plaintiff's reported activities and his asserted limitations in discounting his testimony). Accordingly, the ALJ did not err in discrediting plaintiff's testimony. B. Treating Physician
Plaintiff asserts the ALJ failed to provide a sufficient basis to reject the opinion of Dr. George. On January 9, 2013, Dr. George opined plaintiff can sit for 30 minutes at a time for total of four hours a day; stand for 20 minutes at a time for less than 2 hours a day; walk about 2 blocks at a time for less than two hours a day; rarely lift 20 pounds; occasionally lift up to 10 pounds; never climb ladders; occasionally twist, stoop, crouch, and climb stairs; and requires the ability to shift positions at will. Tr. 388-89. Dr. George also opined plaintiff needs to take unscheduled breaks two to three times a day for 15 minutes at a time, will be off task 20 percent of the time, and would likely be absent from work more than four says a month. Tr. 389-90. The ALJ gave Dr. George's opinion only partial weight and discounted
Dr. George also opined plaintiff must walk around every 30 minutes for 5 minutes at a time during an eight-hour workday. Tr. 389.
any indication ... that the claimant could not stand, walk, or sit, for a full workday; that on account of unscheduled breaks, she would be unable to sustain work over the course of two hour periods, or would otherwise be off task 20% of the time; or that she would be absent from work several times a month.Tr. 474.
The ALJ noted Dr. George's opinion is not consistent with the subsequent record that indicates a significant amount of routine activity consistent with an ability to sustain sedentary work. Tr. 474. As noted above, plaintiff engaged in shopping, building birdhouses, gardening, boating and fishing, camping, working on a bible study program, performing home care for her father (including lifting him), numerous out of state visits including a five hour drive, taking a two and half hour class, volunteering at a thrift store (including sorting goods weighing up to 15 pounds) and at the veterans' auxiliary, and climbing up on a house roof to spray moss for one and a half hours. The ALJ reasonably concluded these activities suggest a capability greater than Dr. George's opinion supports. Indeed, many of these activities appear in plaintiff's reports to Dr. George. Accordingly, the ALJ provided a sufficient justification to discount Dr. George's opinion. See Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir. 1989) (holding that when a doctor's opinion is inconsistent with his own exam notes, it is a clear and convincing reason for an ALJ to reject his opinion); Johnson v. Colvin, 671 F. App'x 519, 520 (9th Cir. 2016) (ALJ's citation to contradiction between admitted daily activities and doctor's opinion is a clear and convincing reason to reject the opinion). C. Examining Psychologist
Dr. George's opinion is contradicted by Dr. Marshall who opined plaintiff was capable of lifting and carrying up to 50 pounds, could walk for six hours per day, and had no limitations in sitting. Tr. 446. Accordingly, the ALJ need only provide specific and legitimate reasoning supported by substantial evidence in the record to discount the opinion of Dr. George. See Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir.2002) (To reject the opinion of a treating physician "in favor of a conflicting opinion of an examining physician[,]" an ALJ still must "make[ ] findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record."). --------
Plaintiff argues the ALJ failed to provide a legally sufficient basis supported by substantial evidence to reject the opinion of Dr. Judith Eckstein.
Dr. Eckstein evaluated plaintiff on March 16, 2017, and diagnosed plaintiff with moderate dysthymia and generalized anxiety disorder with panic attacks. Tr. 716-723. Dr. Eckstein opined plaintiff's limitations precluded her: (1) ability to understand and remember very short and simple instructions 10 percent of the time; (2) ability to understand and remember detailed instructions 15 percent or more of the time; (3) ability to carry out very short and simple instructions 10 percent of the time; (4) ability to carry out detailed instructions 15 percent or more of the time; (5) ability to maintain concentration for extended periods of two hours 15 percent or more of the time; (6) ability to perform activities with a schedule, maintain regular attendance, and be punctual within customary tolerances 15 percent or more of the time; (7) ability to sustain an ordinary routine 10 percent of the time; (8) ability to make simple work-related decisions 5 percent of time; (9) ability to complete a normal workday and workweek without interruption and perform at a consistent pace without an unreasonable number and length of breaks 15 percent or more of the time; (10) ability to interact appropriately with the general public 10 percent of the time; (11) ability to ask simple questions and request assistance 5 percent of the time; (12) ability to accept instructions and respond appropriately to criticism 10 percent of the time; (13) ability to get along with co-workers without distracting them 10 percent of the time; (14) ability to respond appropriately to change in the work setting 5 percent of the time; (15) ability to travel in unfamiliar places or to use public transportation 10 percent of the time; and (16) ability to set realistic goals or make plans 10 percent of the time. Tr. 724-726. Dr. Eckstein stated that based on plaintiff's self-report as well as supporting documents, she believes these limitations existed as of August 31, 2009. Tr. 723.
The ALJ discounted Dr. Eckstein's opinion based on plaintiff's daily activities. Tr. 479. The ALJ noted that the examination indicates plaintiff may have unwittingly understated her abilities. As noted above, plaintiff engaged in extensive activities contrary to the extreme limitations assessed by Dr. Eckstein. Moreover, plaintiff's description of her daily activities during the examination is at odds with her reported activities. For instance, the record shows plaintiff is able to independently manage her personal care (Tr. 260), but she reported to Dr. Eckstein she often doesn't shower for a day or two because she needs help. Tr. 719. As noted above, plaintiff reported an ability to cook, clean, shop, garden, work on the property, etc., but reported to Dr. Eckstein that the shopping and cooking is done by her husband as she is able to accomplish "only two short tasks a day." Tr. 719.
The Ninth Circuit has noted:
Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient's self-report, as well as on the clinician's observations of the patient. But such is the nature of psychiatry. See Poulin, 817 F.2d at 873 ("[U]nlike a broken arm, a mind cannot be x-rayed.").Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness.Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). However, the inaccurate self-reports to Dr. Eckstein, inadvertent or otherwise, are demonstrably at odds with the record as whole and significantly colored Dr. Eckstein's opinion. The ALJ appropriately provided a clear and convincing reason for discounting the opinion based on plaintiff's daily activities as supported by the record. See Johnson, 671 F. App'x at 520.
CONCLUSION
Pursuant to Sentence 4 of 42 U.S.C. § 405(g), the decision of the Commissioner should be affirmed and judgment should be prepared dismissing this case.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.
DATED this 5th day of February 2019.
/s/_________
JOLIE A. RUSSO
United States Magistrate Judge