Glenn v. Comm'r of Soc. Sec. Admin.

Full title: Lavina Maria Glenn, Plaintiff, v. Commissioner of Social Security…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Mar 31, 2017

No. CV-15-2087-PHX-DKD (D. Ariz. Mar. 31, 2017)

Opinion

No. CV-15-2087-PHX-DKD

03-31-2017

Lavina Maria Glenn, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

David K. Duncan United States Magistrate Judge

ORDER

Plaintiff Lavina Maria Glenn appeals the Administrative Law Judge's (ALJ) ruling denying her claim for benefits. On appeal, Glenn argues that the ALJ improperly discounted her symptom testimony. This Court has jurisdiction pursuant to 42 U.S.C § 405(g) and, with the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C § 636(c). The Court affirms the ALJ's decision because it was supported by substantial evidence, was free of legal error, and contained clear and convincing reasons for discounting Glenn's subjective symptom testimony.

BACKGROUND

Glenn's alleged onset date of disability was August 8, 2008, when she was 36 years old. (Tr. 31, 38) She graduated from twelfth grade. (Tr. 50, 264) She was employed for the ten years before her alleged onset date. (Tr. 240) Medical Evidence: Treatment.

From August 2008 to February 2012, Glenn was treated at a family medicine practice run by A. Dean Jiffrey, M.D., where she was repeatedly diagnosed with depressive disorder. (Tr. 334-342) From April 2011 to January 2012, Glenn was treated by a primary care physician, Ochuko G. Diamreyan, M.D., who diagnosed Glenn with a mood disorder and noted a GAF of 50. (Tr. 327-333) On four of Glenn's seven visits, Dr. Diamreyan noted that Glenn had not been compliant with her psychotropic medication. (Tr. 328-333).

In February 2012, Glenn was admitted to St. Bernardine Medical Center due to abdominal pain and suicidal ideations. (Tr. 370) Glenn was discharged the same day with a diagnosis of depression. (Tr. 374)

From March 2012 to December 2013, Glenn received counseling and medication from the San Bernardino County Department of Behavioral Health where Marcia Hudson, M.D., diagnosed Glenn with, among other things, major depressive disorder, recurrent, severe with psychosis; panic disorder with agoraphobia; alcohol dependence; cannabis dependence; early dementia; and a GAF of 45. (Tr. 482-511) Medical Evidence: Case Evaluations.

In October 2008, Sandra M. Eriks, M.D., performed an internal medicine evaluation of Glenn at the request of the state agency. Dr. Eriks found that Glenn had no physical limitations. (Tr. 301-18)

Also in October 2008, Douglas Larson, Ph.D., performed a comprehensive psychiatric evaluation of Glenn at the request of the state agency. (Tr. 319-326) Dr. Larson diagnosed Glenn with mood disorder not otherwise specified and a GAF of 50. (Tr. 323-324) He also noted that Glenn's continued use of drugs and alcohol would be detrimental to her memory. (Tr. 324) Dr. Larson found that Glenn could handle simple one or two step job instructions and could sometimes carry out detailed and complex instruction. (Id.) He further found that she was mildly impaired in her ability to associate with day-to-day work activity, maintain regular workplace attendance, perform work activities on a consistent basis, and perform work activities without special or additional supervision. (Id.) Finally, he found that she was moderately impaired in her ability to maintain concentration, attention, persistence and pace and that she was moderately impaired in her ability to accept instructions from supervisors. (Id.)

In July 2012, Linda Smith, M.D., performed a second complete psychiatric evaluation for the Department of Social Services. (Tr. 468-475) Dr. Smith noted that Glenn was not credible and did not give much effort. (Id.) Dr. Smith found that Glenn had no impairments. (Tr. 473-74)

Both initially in August 2012 and again on reconsideration in April 2013, Glenn's medical records were reviewed. (Tr. 81-92, 94-105, 107-119, 122-134) At both times, Glenn was found to have mild restriction in activities of daily living; moderate difficulties in maintaining social functioning and in maintaining concentration, persistence, and pace; and no episodes of decompensation. (Tr. 88, 101, 115, 130) Thus, both reviews concluded that Glenn could perform work activities. (Tr. 88-91, 102-104, 117-18, 132-33)

Employment

Glenn's employment records show low annual earnings. (Tr. 239-240). Specifically, Glenn earned less than $10,000/year from 1989 to 1998 and from 2002 to 2004. (Id.) On the other years, she earned less than $17,000.¹ (Id.) Between September 2001 and April 2006, Glenn worked as a medical billing clerk at a doctor's office. (Tr. 254). From August 2006 to February 2007, Glenn worked as an accounts payable clerk at a wholesale wood supplier. (Id.)

1 Glenn testified that she had not earned the amounts listed in the record for 2007, 2010, 2011, 2012, and alluded to a fraudulent accountant. (Tr. 72-74, 240).

At her hearing, Glenn testified that she had worked in 2013 but she had an altercation with a coworker during her first week on the job and was subsequently terminated. (Tr. 50) Afterwards, Glenn was notified by her work placement service that they could not help her get another job because of their fear that she would repeat this behavior. (Id.) Glenn testified to drinking alcohol and smoking marijuana at that time. (Tr. 55)

Administrative Proceedings

At the February 2014 hearing, Glenn testified that she had poor memory, panic attacks, anxiety, suicidal thoughts, and auditory hallucinations. (Tr. 48-65) Glenn also admitted to forgetting to take her medication because the instructions confused her. (Tr. 60-61)

Glenn's fiancé, Joseph Edwards, also testified at the hearing. At the time of the hearing, Edwards and Glenn had been engaged for five months and had known each other for seven years. (Tr. 65) Edwards testified that Glenn was incapable of functioning socially and that he feared she would hurt herself if she returned to the workforce. (Tr. 68-69) Edwards testified that Glenn had told him that she hears voices and has visual hallucinations. (Tr. 68) Edwards also stated that Glenn sometimes forgot to turn off appliances. (Tr. 66)

Kristan Cicero, a vocational expert, testified. (Tr. 74- 77) The ALJ asked Cicero about a hypothetical person who could understand, remember and carry out simple job instructions but could not perform work that requires directing others as to thought or planning; who could maintain attention and concentration to perform simple, routine, repetitive tasks in a work environment free of fast-paced production requirements; who could have occasional interaction with coworkers and supervisors and no direct interaction with the general public; and who could have occasional changes to the work setting and occasional work-related decision making. (Tr. 75) Cicero testified that those limitations would rule out Glenn's past work but that occupations as a dryer attendant, laundry laborer, or a cleaner would be available. (Tr. 76). However, Cicero testified that these limitations plus missing one day a week from work would mean that these jobs would not be available. (Tr. 76)

ALJ's Decision

After the hearing, the ALJ conducted the five-step sequential evaluation process to determine if Glenn was disabled. The ALJ determined that Glenn had not engaged in substantial gainful activity since her alleged onset date of August 8, 2008, and found that she had the following severe impairments: major depressive disorder with psychosis, panic disorder with agoraphobia, mood disorder, and schizoaffective disorder. (Tr. 31) However, the ALJ determined that the severity of Glenn's impairments did not meet or medically equal any listed impairment. (Tr. 32) Specifically, the ALJ found that Glenn was mildly restricted in activities of daily living, moderately restricted in socially functioning and with regard to concentration, persistence or pace. (Tr. 33) Finally, the ALJ found that Glenn had no episodes of extended duration decompensation. (Tr. 33)

Accordingly, the ALJ found that Glenn had the residual functional capacity ("RFC") to perform a full range of work subject to the following nonexertional limitations: she could understand, remember and carry out simple job instructions but would not be able to perform work that would require directing others, abstract thought, or planning; she could maintain attention and concentration to perform simple, routine, and repetitive tasks in a work environment free of fast-paced production requirements; she could have occasional interaction with coworkers and supervisors and no direct interaction with the general public; and she could work in an environment with occasional changes to the work setting and occasional work-related decision making. (Tr. 34)

To justify this RFC, ALJ found that Glenn's medical impairments could reasonably be expected to cause her symptoms. (Tr. 35) However, the ALJ found that allegations by Glenn and her fiancé were not fully credible and supported this conclusion by citing several portions of the record. (Id.) First, Glenn had not been compliant with her medication and also noted that she had a poor work history "which raise[d] the question as to whether [Glenn's] current unemployment is the result of her alleged impairments or other unrelated matters." (Id.) The ALJ also noted that Glenn had exhibited poor effort and did not appear truthful during a consultative exam with Dr. Smith. (Id.) Finally, the ALJ noted that the objective findings regarding Glenn's symptoms such as crying spells, a depressed mood, anxiety, and impaired memory, were less severe than the symptoms described in Glenn's testimony. (Id.)

The ALJ also considered all of the medical opinions in the record. The ALJ gave significant weight to the assessments made by state agency consultants and to the opinion of psychological consultative examiner, Dr. Larson. (Tr. 36) By contrast, the ALJ gave no weight to the opinion of psychiatric consultative examiner Dr. Smith. (Id.) Although the ALJ noted Dr. Smith's assessment that Glenn's lack of credibility during the exam, the ALJ gave no weight to the opinion because, unlike Dr. Smith, the ALJ found that Glenn had medically determinable mental impairments. (Id.) The ALJ gave significant weight to the opinions of internal medicine consultative examiner Dr. Eriks regarding Glenn's physical impairments. (Id.)

After reviewing the evidence supporting the RFC, the ALJ found that Glenn could not perform any past relevant work but concluded that Glenn was capable of making a successful adjustment to representative occupations which exists in significant numbers in the national economy. (Tr. 37-38) The ALJ thereby concluded that Glenn was not disabled as defined by the Social Security Act. (Tr. 39)

STANDARD OF REVIEW

This court must affirm the ALJ's findings if they are supported by substantial evidence and are free from reversible error. Marcia v. Sullivan, 900 F.2d 172, 174 (9^th Cir. 1990). Substantial evidence is more than a mere scintilla, but less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In determining whether substantial evidence supports the ALJ's decision, the court considers the record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9^th Cir. 1988). The ALJ is responsible for resolving conflicts, ambiguity, and determining credibility. Andrews v. Shalala, 53 F.3d 1035, 1039 (9^th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9^th Cir. 1989). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9^th Cir. 1990).

Thus, the Court must affirm the ALJ's decision where the evidence considered in its entirety substantially supports it and the decision is free from reversible error. 42 U.S.C. § 405(g); Hammock v. Bowen, 879 F.2d 498, 501 (9^th Cir. 1989). The Court must do more than merely rubber stamp the ALJ's decision. Winans v. Bowen, 853 F.2d 643, 645 (9^th Cir. 1988). However, where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Magallanes, 881 F.2d at 750.

DISCUSSION

An ALJ must engage in a two-step analysis in evaluating the credibility of a claimant's testimony regarding alleged symptoms. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). First, the ALJ must determine whether there is objective medical evidence of an underlying impairment that could reasonably be expected to produce the alleged symptoms. Id. at 1281. Second, when there is no affirmative evidence suggesting malingering, the ALJ must also set forth "specific, clear and convincing reasons" before it can reject a claimant's testimony about the severity of symptoms. Id. at 1283-84. See Dodrill v. Shalala, 12 F.3d 915, 918 (9^th Cir. 1993). The clear and convincing standard is the most heightened standard in Social Security Law. Moore v. Soc. Sec. Admin., 278 F.3d 920 (9^th Cir. 2002). Once an underlying impairment is verified, an ALJ cannot use a lack of full and objective medical corroboration to reject a claimant's subjective symptoms. Cotton v. Bowen, 799 F.2d 1403, 1407 (9^th Cir. 1986), superseded by statute on other grounds as stated in Bunnell v. Sullivan, 912 F.2d 1149 (9^th Cir.1990). To support a finding that the symptoms are not credible, the ALJ must offer specific findings properly supported by the record in sufficient detail to allow a reviewing court to review the findings for permissible grounds and freedom from arbitrariness. (Id.) Moreover, the mere fact that Glenn engages in some daily activities does not in any way detract from the credibility as to her overall disability, as a claimant does not need to be "utterly incapacitated" in order to be disabled. Vertigan v. Halter, 260 F.3d 1044, 1050 (9^th Cir. 2001). Such activities of daily living can only be used to reject a claimant's testimony if those activities actually show that a claimant can work or they are inconsistent with a claimant's testimony regarding what he or she can do. (Id.) Here, the ALJ did not find evidence that Glenn was malingering. Instead, the ALJ found that Glenn's impairments could reasonably be expected to cause her alleged symptoms but her statements about the intensity, persistence, and limiting effects of her symptoms were not credible to the extent they were inconsistent with the residual functional capacity assessment. (Tr. 22) The ALJ supported this finding with specific, clear and convincing reasons and noted conflicts between her testimony and her conduct. Light v. Social Sec. Admin., 119 F.3d 789, 792-93 (9^th Cir. 1997); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9^th Cir. 1990).

On appeal, Glenn argues that the ALJ failed to articulate clear and convincing reasons for discounting Glenn's subjective symptom testimony when referring to her medication compliance, work history, and effort at Dr. Smith's consultative exam. (Doc. 24) As described below, the Court upholds the ALJ's conclusion.

Non-compliance with Medication

Glenn argues that her inability to strictly adhere to her medication regimen is a symptom of her impairments and, therefore, was not an appropriate basis for discounting the credibility of her testimony. (Doc. 24 at 9-10) The Court agrees that it is improper for an ALJ to discount credibility of subjective testimony where the claimant has adequately explained their non-compliance with medical treatment as being the result of their mental impairment. Molina v. Astrue, 674 F.3d 1104, 1113 (9^th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9^th Cir. 2008). However, Glenn has not adequately linked her medication non-compliance with her mental impairments and so the Court cannot say the ALJ erred. As noted above, the ALJ found that Glenn had major depressive disorder with psychosis, panic disorder with agoraphobia, mood disorder, and schizoaffective disorder. Glenn has not explained which of these four impairments is related to her medication non-compliance, she did not point to any portion of the record that details how these impairments caused the non-compliance, and she did not argue that the ALJ should have found that she suffered from an additional severe impairment that could explain her medication non-compliance. Instead, Glenn testified that she forgot to take her medication because the medications were constantly changing and their respective ingestion timing confused her. (Tr. 60-61) Accordingly, there was no error.

Poor Work History

Glenn argues that the ALJ did not provide sufficient support to link her poor work history with the adverse credibility finding. (Doc. 24 at 10-11) Specifically, the ALJ stated that her poor work history "raises the question as to whether the claimant's current unemployment is the result of her alleged impairments or other unrelated matters." (Tr. 35) There is no additional discussion of Glenn's work history in the ALJ decision.

The Ninth Circuit has upheld an ALJ's use of a claimant's "spotty" work history to support discounting a claimant's testimony where a claimant had "years of unemployment between jobs" before claiming disability. Thomas v. Barnhart, 278 F.3d 947, 959 (9^th Cir. 2002). However, neither party has cited to any binding precedent, and the Court cannot find any, discussing the use of work history where, like here, it appears that the claimant worked consistently for the 10 years before the alleged onset date with low earnings every year.²

2 Between 1998 and 2008, Glenn maximum annual earnings were $16,883. (Tr. 240) The ALJ did not consider any of the Glenn's reported earnings from after her alleged onset date because Glenn testified that they were fraudulent. (Tr. 31) --------

Here, the ALJ's decision mentioned Glenn's work history in passing and did not use it as a significant basis for the decision. (Tr. 35) This does not appear to meet a clear and convincing standard but the Court cannot find that Glenn suffered any harm. The one sentence reference in passing to Glenn's work history was not an integral part of the ALJ's decision and, therefore, amounts to harmless error. Molina, 674 F.3d at 1115.

Poor Effort at Consultative Exam

Finally, Glenn argues that the ALJ improperly adopted and relied on Dr. Smith's assessment of Glenn's credibility despite assigning no weight to the rest of her report. (Doc. 24 at 11). Generally, an ALJ must cite the record as a whole and may not cite isolated pieces of evidence as support for a conclusion. Sousa v. Callahan, 143 F.3d 1240, 1243 (9^th Cir. 1998). Here, Glenn's poor effort at her consultative exam was a clear and convincing reason for discounting the credibility of her testimony. Moreover, the ALJ's decision to assign no weight to Dr. Smith's report was actually favorable to Glenn because, in so doing, the ALJ recognized that Glenn did have a medically determinable mental impairment. See Chapo v. Astrue, 682 F.3d 1285, 1288 (10^th Cir. 2012).

IT IS ORDERED that the decision of the ALJ and the Commissioner of Social Security is affirmed.

IT IS FURTHER ORDERED that the Clerk of the Court will enter judgment accordingly. The judgment will serve as the mandate of the Court.

Dated this 31^st day of March, 2017.

/s/_________

David K. Duncan

United States Magistrate Judge