Opinion
CV-22-00387-TUC-JCH (LCK)
12-18-2023
Joni Diane Stringer, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Plaintiff Joni Stringer brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 20, 24, 25.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the Districl Court, after its independent review, affirm the Commissioner.
FACTUAL AND PROCEDURAL HISTORY
Stringer filed an application for Disability Insurance Benefits (DIB) in February 2019 alleging disability from June 1, 2017. (Administrative Record (AR) 316.) Stringei was born in June 1960 and was almost 57 years of age at the alleged onset date of her disability. (Id.) Stringer's application was denied upon initial review (AR 105-17) and on reconsideration (AR 118-131). A telephonic hearing was held on August 4, 2020 (AR 75104), after which the ALJ found Stringer not disabled because she could perform pasl relevant work (AR 135-47). The Appeals Council vacated the ALJ's decision and remanded for the ALJ to re-evaluate how the claimant's restriction from exposure to chemicals, odors, dusts, fumes, and gases impacted her ability to perform her past work and/or other work. (AR 154-55.) The ALJ conducted a second telephonic hearing on June 2, 2021. (AR 4472.) The ALJ again found Stringer was not disabled because she could perform her past relevant work. (AR 23-35.) The Appeals Council denied Stringer's request for review of that decision. (AR 1.)
The ALJ found Stringer had severe impairments of COPD, asthma, obesity, adjustment disorder with depressed mood and insomnia, and major depressive disorder. (AR 26.) The ALJ determined Stringer had the Residual Functional Capacity (RFC) to perform medium work, but she was limited to never climbing ladders/ropes/stairs; occasionally climbing ramps/stairs, balancing, stooping, kneeling, crouching, crawling, and interacting with coworkers and the public; avoiding concentrated exposure to chemicals, odors, dusts, fumes, and gases; and performing simple, routine tasks and making simple work-related decisions. (AR 29.) The ALJ concluded at Step Four, based on the testimony of a vocational expert, that Stringer could perform her past relevant work as a laundry attendant. (AR 34.)
On a written form, Stringer stated that she had six years of past relevant experience as a hotel waitress. (AR 365, 436.) At a hearing, she described working as a "houseman" at the hotel, who took care of the linen, clearedcarts, and worked in common areas. (AR 87.) The ALJ and vocation expert treated her prior relevant work as that of a laundry room attendant; however, Stringer testified, "I didn't work laundry." (AR 62, 99.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; and (2) has a severe physical or mental impairment; and (3) the impairment meets or equals the requirements of a listed impairment or (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). A court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Auklandv. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “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, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Stringer argues the ALJ committed two errors, she: (1) improperly rejected opinion evidence by Dr. Hauser; and (2) failed to provide clear and convincing reasons for rejecting Stringer's symptom testimony.
Opinion of Dr. Hauser
The regulations governing cases filed after March 27, 2017, such as this one, provide that an ALJ will consider all medical opinions and, at a minimum, articulate how the ALJ evaluated the opinions' supportability and consistency. 20 C.F.R. § 404.1520c(a) & (b). "Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). The ALJ "must explain his reasoning and specifically address how he considered the supportability and consistency of the opinion, and his reasoning must be free from legal error and supported by substantial evidence." Machelle H. v. Kijakazi, No. 1:20-CV-00357-CWD, 2021 WL 4342313, at *7 (D. Idaho Sept. 22, 2021).
In September 2020, Dr. Peter Hauser (board certified in psychiatry and neurology) completed a Treating Source Statement - Psychological Conditions. (AR 728-32.) He noted that he had been treating Stringer since March 2018, but she first was treated for depression and hypothyroidism in 2005. (AR 728.) He diagnosed her with major depressive disorder and adjustment disorder with depressed mood. (Id.) He also noted relevant diagnoses of hypothyroidism and possible military sexual trauma. (Id.) He found her prognosis to be guarded, noting that her symptoms had been only partially responsive to antidepressants. (Id.) Dr. Hauser identified the following symptoms: pervasive loss of interest in almost all activities; amotivation; appetite and weight fluctuations; sleep disturbance; psychomotor agitation/retardation; decreased energy and tiredness; feelings of guilt or worthlessness; difficulty concentrating/thinking; cognitive impairment; and "a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate." (AR 729.)
Dr. Hauser concluded Stringer had moderate limitations in understanding, remembering, or applying information, such as following medication instructions. (AR 730). He found marked limitations in her ability to interact with others, exemplified by her social isolation and withdrawal. (Id.) He found marked limitations in her ability to concentrate, persist, or maintain pace, as demonstrated by her challenges in following medication instructions and completing medical follow-up. (Id.) And he found marked limitations in her ability to adapt or manage herself, exemplified by her challenges with activities of daily living, such as shopping and cleaning. (AR 731.) He found she had no limitations in remembering locations and work-like procedures; and mild limitations in understanding and memory generally, and understanding carrying out short and simple instructions or detailed but uninvolved instructions. (AR 731.) He concluded that Stringer was unable to maintain regular attendance and punctuality, and required enhanced supervision. (AR 731.) Dr. Hauser determined Stringer was sometimes but not consistently able to work appropriately with the public, co-workers, and supervisors, and to respond appropriately to changes in work setting. (AR 732.) He noted that Stringer experienced frequent crises that interrupted her routine, including the taking of her medications and attending medical appointments. (AR 732.) He concluded Stringer's symptoms would interfere with the attention and concentration necessary for even simple tasks more than 25% of the time, and she would miss four or more days per month due to her impairments. (Id.)
The ALJ found Dr. Hauser's opinion partially persuasive "based on its consistency with the greater record in terms of the claimant's severe mental impairments. However, the medical evidence as a whole supports no more than moderate limitations in any of the four broad domains of mental functioning." (AR 33.) The ALJ found there was not sufficient evidence to support the doctor's finding of marked limitations because Stringer's symptoms improved when she was medication compliant and "the assertion that she is unable to understand or follow her medication schedules is unsupported by the overall record and rather unreasonable." (Id.) The ALJ determined that she was not prevented from taking her medications by any gross limitations in memory, insight, or judgment. (Id.) Further, she noted that Stringer reported stopping medications due to negative side effects (weight gain, tiredness, etc.), which signals cognizance over her decision to take medication. (Id.) She also found that Stringer's expressed interest in returning to work undermined Dr. Hauser's finding that she lacked motivation for daily activities, taking medication, and returning to work.
Stringer acknowledges that the ALJ provided reasons for finding Dr. Hauser's opinion inconsistent with other record evidence, specifically improvement with medication and an expressed interest in returning to work. She argues, however, that the ALJ failed to discuss the opinion's supportability. "Supportability concerns how 'a medical source supports a medical opinion' with relevant evidence." Kitchen v. Kijakazi, 82 F.4th 732, 740 (9th Cir. 2023); Woods, 32 F.4th at 791-92 ("Supportability means the extent to which a medical source supports the medical opinion by explaining the 'relevant . . . objective medical evidence.'") (citing 20 C.F.R. § 404.1520c(c)(1)).
Without mentioning the term supportability, the ALJ discussed what she found to be a lack of supporting evidence for Dr. Hauser's opinion. The ALJ determined that the record did not support a finding that Stringer could not understand or follow her medication schedule, which the doctor relied upon in opining on Stringer's limitations. In turn, the ALJ found Stringer's limitations were not of the severity found by Dr. Hauser when she followed her medication regimen. The ALJ found no evidence that Stringer's memory, insight, or judgment were grossly limited, such that she could not comply with her prescriptions. (AR 33.) In discussing Stringer's memory, the ALJ cited testing conducted by Dr. Hauser. (AR 30 (citing 2F/39 (AR 532)).) Stringer's insight and judgment are documented solely in a record from Dr. Hauser. (AR 532.) Further, the ALJ noted that Stringer's interest in returning to work undermined Dr. Hauser's finding that Stringer was not motivated for daily activities, taking medication, or working. (AR 33.)
The record documentation about Stringer's interest in returning to work, and working for a period of time, comes from Dr. Hauser's notes. (AR 33 (citing AR 503-04, 506-08, 670).) Although the ALJ did not use the word "supportability," the basis for her rejection of Dr. Hauser's opinion relied upon references to the doctor's own records/findings with an explanation as to how they failed to support his opinion. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (noting an ALJ is not required to use specific words and a reviewing court may draw reasonable inferences from the ALJ's decision); Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a)("when an agency 'explains its decision with less than ideal clarity,' we must uphold it 'if the agency's path may reasonably be discerned.'"). Further, there is substantial evidence to support the ALJ's conclusions regarding supportability and consistency.
Plaintiff argues any error with respect to the ALJ's treatment of Dr. Hauser's opinion was not harmless because if his opinion was accepted, Plaintiff would be found disabled. An error is harmless if it is “inconsequential to the ultimate nondisability determination.” Molina, 674 F.3d at 1121. Although an ALJ is directed to discuss supportability and consistency, an ALJ's finding that a medical opinion fails on either analysis provides a sufficient basis to reject it. See Woods, 32 F.4th at 792-93 & n.4 (finding adequate the ALJ's rejection of a medical opinion solely for inconsistency). Based on Woods, some courts have found that when an ALJ supports a finding on either supportability or consistency with substantial evidence, the error in failing to discuss the other factor is harmless. Thompson v. Comm'r of Soc. Sec. Admin., No. CV-21-08076-PHX-SPL, 2022 WL 3098039, at *6 (D. Ariz. Aug. 4, 2022) (finding that "[b]ecause the ALJ provided substantial evidence for his findings on consistency, there is no harmful error," even though ALJ's finding on supportability was not supported by substantial evidence); Joseph F. v. Kijakazi, No. ED CV 22-00050-DFM, 2022 WL 17903079, at *7 (C.D. Cal. Oct. 11, 2022) (collecting cases), appeal dismissed sub nom. Fields v. Kijakazi, No. 22-56187, 2023 WL 2572464 (9th Cir. Jan. 26, 2023). This Court follows that rationale and finds that, even if the ALJ erred in failing to adequately discuss supportability, that error is harmless in light of the ALJ's unchallenged consistency analysis.
Symptom Testimony
Stringer alleges the ALJ failed to provide clear and convincing reasons for rejecting her symptom testimony. In general, "questions of credibility and resolution of conflicts in profusely, lose her train of thought, and forget words. (AR 91.) She reported using a nebulizer daily, which sometimes caused her to shake. (AR 92.) Her anxiety was triggered by exposure to violence and injustice. (Id.) She testified to having trouble sleeping and that she would shut down. (Id.) For the last two years, she noted an inability to be productive. (Id.)
Stringer testified that, in the morning, she fed her dogs, drank some water, and returned to bed. (AR 92.) She tried to bathe her dogs in the afternoon. (AR 92, 94.) If it was not too hot, she would spend some time outside or working in her yard. (AR 93, 94.) She reported trouble concentrating and doing tasks. (AR 94.) She indicated she had weeks when she did not feel like getting up for the day. (Id.) She showered only twice a month. (Id.) She did her own dishes and laundry, but she would put them off and had trouble getting them done. (AR 94-95.) In preparing to go food shopping, she would get nervous and sweaty; she would take a friend with her to shop. (AR 95.) She had one friend that she saw once or twice a month and spoke to on the phone several times a week. (AR 95-96.) She attended church two or three times a month with her friend prior to the pandemic, but would keep to herself. (AR 96-97.) Stringer testified that she could probably stand for an hour, but the only time she did so was when shopping. (AR 98.) She stated she could lift and carry about 30 pounds. (AR 98.)
At the June 2021 hearing, Stringer testified that everything had gotten worse over the prior three months. (AR 49.) She reported an inability to walk around the store and, some days, her osteoarthritis caused such knee pain she could not walk down the stairs to get to her refrigerator. (AR 49, 52.) She stated that her mental state had deteriorated, she would shut down and did not go out at all. (Id.) Stringer testified that she had no joy other than her dogs. (AR 49-50.) She reported frequent use of a nebulizer. (AR 50.) She stated that she could work for 15-30 minutes before needing a break and a nebulizer. (Id.) She indicated that she wanted to volunteer at the senior center but did not have the stamina to do it. (AR 50-51.) She testified that she could lift 8 to 10 pounds. (AR 51.) She described a bad day as one where she couldn't breathe past her chest, where she had to stay still and monitor whether she needed to go the emergency room. (AR 51.) Any day she needed to exert herself to clean or do laundry would turn into a "bad" day. (AR 52.) She used a cane in the yard and to go shopping. (AR 53.) When she was feeling depressed, she could not be around others, or her anxiety caused profuse sweating. She indicated she had no social life. (Id.) She reported that she could not clean the house because the cleaning agents made her sick and her house was infested with rodents. (AR 55, 57.) She stated the mice exacerbated her asthma and COPD. (AR 58.) She indicated she had not seen a doctor in over a year, with the exception of gallbladder surgery, because she could not get an inperson appointment, they weren't taking her calls, and they miscommunicated during phone appointments. (AR 53, 58, 60-61.) She had tele-health appointments with her therapist every three months. (AR 61.)
The ALJ stated that Plaintiff's statements about the effect of her symptoms "were not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (AR 30.) The ALJ found that Stringer had sought work, and her belief that she could perform some work was inconsistent with her disability claim. (Id.) The ALJ cited Stringer's hearing testimony that she had been looking for waitressing work since her alleged onset date; in September 2018, she reported looking for work; in October 2018, she worked part-time as a bartender; in December 2019, she was delivering meals to the elderly as a volunteer; and, in March 2020, she interviewed for part-time work. (Id.) When evaluating symptom testimony, an ALJ may consider a claimant's work activity during the relevant period. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (upholding an ALJ's discounting of the claimant's symptom testimony based, in part, on her two years of work as a caregiver and her subsequent seeking of other work); Soto-Hopkins v. Colvin, No. CV 15-541-TUC-LAB, 2016 WL 4771377, at *8 (D. Ariz. Sept. 14, 2016) (finding that working and seeking work were clear and convincing reason to reject a claimant's testimony of disabling symptoms); cf. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (considering claimant's testimony that he worked occasional shifts in rejecting a medical opinion). In addition to the record citations for Stringer seeking work, in March and September 2019, Dr. Hauser referred Stringer to a social worker for vocational assistance. (AR 508, 534.) Overall, there is substantial evidence to support this rationale by the ALJ.
The ALJ also noted that Stringer left a part-time job to care for her parents, not due to a disabling condition. (AR 30.) When a claimant stops working for reasons other than her impairments, an ALJ may rely upon that as a reason to discount her symptom testimony. See Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992) (relying on several factors to reject symptom testimony, including that claimant's loss of prior jobs was not due to pain); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001), as amended (Nov. 9, 2001) (rejecting symptom testimony, in part, because he was laid off not injured); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (relying on claimant's testimony that he did not stop working due to diabetes to discount his claim that diabetes was a disabling condition); Carie L. v. Saul, No. 4:20-CV-5058-EFS, 2021 WL 9748005, at *6 (E.D. Wash. Apr. 13, 2021) (relying on fact that claimant left her job to care for parents, not due to an impairment, and continued to seek work).
The ALJ referred to Plaintiff's job ending in 2018; however, the record indicates she left her part-time job to care for her parents in June 2017. (AR 528.)
The ALJ's findings about why Plaintiff ceased working and the fact that she continued to look for work, were clear and convincing reasons for the ALJ to discount her testimony that she was unable to work, and are supported by substantial evidence. An ALJ may not discount a claimant's symptom testimony solely because a claimant's symptoms are not substantiated by the medical evidence; however, the medical evidence is a relevant consideration in evaluating the claimant's symptoms. SSR 16-3p; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). The ALJ recounted the objective medical evidence from the record and relied on it in rejecting Stringer's symptom testimony. (AR 30-32.) Stringer does not dispute the ALJ's reliance on the objective medical evidence as one clear and convincing reason to discount her symptom testimony. She argues only that it cannot be the sole reason to reject her testimony and, in this case, it was not the only basis provided by the ALJ.
Stringer did not discuss the ALJ's reliance on her pursuit of employment; instead, she focused primarily on an argument that the ALJ failed to account for her symptom testimony that she is unable to handle interactions with others. And that the ALJ failed to provide a clear and convincing reason for rejecting this specific testimony. The ALJ found that Stringer did not leave work due to her inability to be around others (or any other impairment or symptom), and that she obtained work bartending and continued to seek work as a waitress, both of which require interactions with others. Therefore, the ALJ did provide a clear and convincing reason for discounting this specific symptom testimony. The ALJ provided clear and convincing reasons supported by substantial evidence to reject Stringer's symptom testimony. Therefore, she did not err as argued by Stringer in Claim 2.
RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). The Court concludes the ALJ did not err as to the claims raised by Stringer. Therefore, the Magistrate Judge recommends that the District Court deny Plaintiff's appeal.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. In light of the upcoming holiday, any objections are due on or before January 8, 2024. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-387-TUC-JCH.
Dated this 18th day of December, 2023.