Opinion
CV-20-00215-TUC-JAS (BGM)
09-10-2021
Victoria Marie Chiaminto, Plaintiff, v. Kilolo Kijakazi, [1]Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Currently pending before the Court is Plaintiff Victoria Chiaminto's Opening Brief (Doc. 25). Defendant filed her Answering Brief (“Response”) (Doc. 27), and Plaintiff filed her Reply Brief (“Reply”) (Doc. 29). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). Compl. (Doc. 1).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court deny Plaintiff's Opening Brief (Doc. 25).
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
A. Procedural History
On March 29, 2017, Plaintiff protectively filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of September 1, 2015 due to gastric paresis with eighty (80) pound weight loss and feeding tube, daily headaches, severe and chronic abdominal pain, sleep impairments, fatigue, and diabetes mellitus- Type 2. See Administrative Record (“AR”) at 19, 21, 34-36, 47, 49-50, 143, 170, 181, 205, 208, 213. The Social Security Administration (“SSA”) denied this application on November 17, 2016. Id. at 16, 82-95, 126-33. On June 29, 2017, Plaintiff filed a request for reconsideration, and on October 24, 2017, SSA denied Plaintiff's application upon reconsideration. Id. at 19, 34-46, 47-63, 70-78. On December 5, 2017, Plaintiff filed her request for hearing. Id. at 19, 79-81. On April 2, 2019, a hearing was held before Administrative Law Judge (“ALJ”) Charles Davis. Id. at 19, 7331-53. On April 22, 2019, the ALJ issued an unfavorable decision. AR at 16-28. On June 19, 2019, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on February 6, 2020, review was denied. Id. at 7-11, 230-31. On May 20, 2020, Plaintiff filed this cause of action. Compl. (Doc. 1).
B. Factual History
Plaintiff was thirty-three (33) years old at the time of the alleged onset of her disability and thirty-six (36) years old at the time of the administrative hearing. AR at 19, 27, 34-36, 47-50, 125, 142-43, 170, 194, 205. Plaintiff is a high school graduate. Id. at 27, 34, 47, 182. Prior to her alleged disability, Plaintiff worked as a customer service representative and in food service. Id. at 172-79, 7338-39.
1. Plaintiff's Testimony
a. Administrative Hearing
At the administrative hearing, Plaintiff testified that she sees her primary care physician, Matthew Gilkey, N.P., regularly, estimating one (1) to three (3) months between visits. AR at 7333-34. Plaintiff approximated that her last hospitalization occurred six (6) to seven (7) months prior to the hearing. Id. at 7334. Plaintiff testified that she was hospitalized because her jejunostomy tube (“J-tube”) needed to be changed out. Id. at 7335. Plaintiff further testified that she hasn't required a J-tube change since her last hospitalization, but prior to that she had several instances that required intervention. Id. at 7335-36. Plaintiff testified that she is unable to work because she is “constantly throwing up, [has] nausea, vomiting, headaches, dizziness, [and] [her] sugar drop[s] too low.” Id. at 7337. Plaintiff also mentioned frequent pain. AR at 7337.
Plaintiff testified that she currently works at Subway, making sandwiches, for between six (6) to twelve (12) or fifteen (15) hours per week. Id. at 7339, 7343. Plaintiff reported that her schedule varies, but a shift usually lasts between three (3) and six (6) hours. Id. at 7343. Plaintiff confirmed that she had worked at Baggins prior to Subway. Id. at 7339. Plaintiff further testified that she lives in a house wither her father, sister, brother, and her children. Id. at 7341. Plaintiff testified that either she or her father get her children to school. AR at 7343. Plaintiff further testified that while her kids are at school, she tries to clean up a little and take care of her stomach, diabetes, feeding machine, and tubes. Id. Plaintiff denied participating in any volunteer work or other activities but indicated that she does try to go to functions at her children's schools. Id. at 7643-44.
Plaintiff reported her medications cause her dizziness and tiredness. Id. at 7344. Plaintiff specified that the Promethazine, Benadryl, and Dilaudid cause side effects. Id. at 7345. Plaintiff testified that she had been taking pain medication since 2015 for her abdomen but had not been to a pain management clinic in several years. AR at 7345-46. Plaintiff further testified that some days she can be on her feet for a few hours, but on other days, she cannot stand at all and calls out from work. Id. at 7346-47. Plaintiff estimated that she calls out or leaves early a few times a week but noted that her boss accommodates her absences. Id. at 7348-49. Plaintiff also testified that the most she has had to lift and carry for her job at Subway is approximately fifty (50) pounds. Id. at 7347. Plaintiff further testified that she is unable to work more hours at Subway because there are too many other employees and her boss does not need her. Id. at 7348. Plaintiff noted that she would be unable to work forty (40) hours per week, even if the hours were available. AR at 7348. Plaintiff testified that her work prior to Subway were desk jobs. Id. at 7347-48.
Plaintiff testified that when she takes pain medication, it takes approximately an hour for her pain to subside, and the pain returns between four (4) and six (6) hours later. Id. at 7349. Plaintiff further testified that nothing has really changed with her condition, but she is trying to be more careful to avoid hospitalization. Id. at 7349-50. Plaintiff noted that her doctor has not recommended removal of her J-tube. Id.
b. Administrative Forms
i. Exertional Daily Activities Questionnaire
On May 10, 2017, Plaintiff completed an Exertional Daily Activities Questionnaire. AR at 190-92. Plaintiff reported that she lived in a house with family. Id. at 190. Plaintiff described her average day to include taking her son to school, attempting light yardwork and housework, and trying to run errands. Id. Plaintiff reported that she is very limited and finds these activities difficult. Id. at 190-91. Plaintiff described her symptoms as chronic pain, chronic nausea, and insomnia, which limit her ability to perform normal daily tasks. Id. Plaintiff noted that walking causes her feeding tube to move which is painful. AR at 190. Plaintiff stated that her father does the grocery shopping, but that she does laundry and “light picking up.” Id. at 191. Plaintiff reported that she can drive a car but only a few miles at a time. Id. Plaintiff denied participating in any activities outside of her home. Id.
Plaintiff further reported sleeping for two (2) to three (3) hours per night and requiring a daily nap of approximately one (1) hour each day. Id. Plaintiff listed her daily medications to include Dilaudid for pain, and Promethazine and Raglan for nausea. AR at 192. Plaintiff also indicated that she wears glasses. Id.
ii. Work History Report
On April 6, 2017, Plaintiff completed a Work History Report. AR at 172-79. Plaintiff listed her prior work to include call center customer service representative and food service in the fast-food industry. Id. at 172. Plaintiff described the customer service representative position as parttime-approximately four (4) hours per day, five (5) days per week. Id. at 173. Plaintiff did not provide any further details about this position. Id. Plaintiff described the food service position as fulltime. Id. at 174. Again, Plaintiff did not provide any further details regarding this position. AR at 174.
2. Plaintiff's Medical Records
The Court has reviewed the entirety of Plaintiff's medical records; however, the parties do not dispute the ALJ's summary of the medical evidence. As such, the Court finds it appropriate to only provide a brief overview.
It is undisputed that Plaintiff was seen regularly at the emergency department for alleged issues regarding her gastroparesis and/or J-tube. See AR at 23-25; Pl.'s Opening Br. at 3; see also, e.g., AR at 292 (noting ten-plus tube changes in the two prior years), 907 (noting ten emergency department visits and five admissions in 2015). Treatment providers, however, consistently noted drug-seeking behavior in Plaintiff's chart. See, e.g., AR at 329-30, 608, 797, 926, 1241, 1525, 1582, 2063, 2119, 2121, 2130, 4201, 4892, 4917. Plaintiff's records also indicate a history of going to the emergency department complaining of nausea and vomiting and seeking intravenous medication, but Plaintiff would not vomit while at the hospital and would leave against medical advice if she was not given intravenous pain medication. See, e.g., AR at 302, 314, 636, 2130, 2801, 3122, 3537, 3571, 4201, 4389, 4832, 4899, 5116, 5254, 6770. Plaintiff also became abusive toward staff when she did not receive her requested treatment. See, e.g., AR at 1491, 1509, 1515, 1814, 5192-93, 7171, 7183. Similarly, treatment records indicate that Plaintiff tampered with her G- and/or J-tube necessitating further care. See, e.g., 608, 1802, 1805, 3057, 5465, 6770, 6983. Additionally, treatment providers documented Plaintiff's history of non-compliance. See, e.g., AR at 1182, 1596, 1599, 4927. Plaintiff's records also indicate generally unremarkable physical examinations. See, e.g., AR 294-95, 313, 346-47, 370-71, 377, 387, 541, 566-67, 585-86, 592, 612, 1810, 1832, 4920-21, 5901. Similarly, Plaintiff's mental status examinations were broadly normal. See, e.g., AR 233, 239, 242, 244-45, 247-48, 278, 313, 318, 324, 342, 346, 377, 541, 566-67, 585-86, 605, 1832, 6392.
3. Vocational Expert Joel Greenberg's Testimony
Mr. Greenberg testified as a vocational expert at the administrative hearing. AR at 19, 7350-52. Mr. Greenberg described Plaintiff's past relevant work as a sandwich maker, Dictionary of Occupational Titles (“DOT”) number 317.664-010, as having a Specific Vocational Preparation (“SVP”) of 2, and exertional level of medium. Id. at 7350. Mr. Greenberg further described the job of security guard, DOT number 372.667-034, as having an SVP of 3, and light exertional level. Id. Mr. Greenberg also described the job of customer service representative, DOT number 241.367-014, as having an SVP of 5, and exertional level of sedentary. Id. at 7350-51. Finally, Mr. Greenberg described the job of fast-food worker, DOT number 311.472-010, as having an SVP of 2, and light exertional level. Id. at 7351.
The ALJ asked Mr. Greenberg to consider a hypothetical individual of Plaintiff's age, education, and work history; who retained a residual functional capacity to perform a range of work up to the light exertional level; who cannot climb ladders, ropes, or scaffolds; who could frequently balance; and who could occasionally be exposed to workplace hazards such as mechanical machinery or heights. AR at 7351. Mr. Greenberg opined that such an individual would be able to perform Plaintiff's past work of customer service representative, security guard, and fast-food worker. Id. at 7351-52. Mr. Greenberg further opined that such an individual would be able to be absent six (6) to twelve (12) times during the first year of employment; however, leaving early would not be tolerated and render such a person unemployable. Id. at 7352. . . . . . .
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step One asks is the claimant “doing substantial gainful activity[?]” 20 C.F.R. § 404.1520(a)(4)(i). If yes, the claimant is not disabled. Step Two considers if the claimant has a “severe medically determinable physical or mental impairment[.]” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Step Three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. 20 C.F.R. § 404.1520(a)(4)(iii). If not, the claimant is not disabled. Step Four considers the claimant's residual functional capacity and past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If claimant can still do past relevant work, then he or she is not disabled. Step Five assesses the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If it is determined that the claimant can make an adjustment to other work, then he or she is not disabled. Id.
In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of March 29, 2017. AR at 21. At step two of the sequential evaluation, the ALJ found that “the claimant has the following severe impairments: diabetic and opioid gastroparesis (20 CFR 416.920(c)).” Id. At step three, the ALJ further found that “[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).” Id. at 20. Prior to step four and “[a]fter careful consideration of the entire record, ” the ALJ determined that “the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except she cannot climb ladders, ropes, or scaffolds[;] [s]he can frequently balance[;] and occasionally work around hazardous moving machinery or other workplace hazards.” Id. at 23. At step four, the ALJ found that “[t]he claimant is capable of performing past relevant work as a fast food worker.” Id. at 26. At step five, the ALJ found that after “[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969, and 416.969a).” AR at 27. Accordingly, the ALJ determined that Plaintiff was not disabled. Id. at 28.
B. Non-Compliance and Narcotic Dependence
Plaintiff asserts that the ALJ erred by failing “to follow the methods outlined in [Social Security Ruling (“SSR”)] 18-3p and SSR 13-2p to determine whether [her] failure to follow prescribed treatment and narcotic dependence were material factors in this case.” See Opening Br. (Doc. 25) at 6-10. Contrary to Plaintiff's argument, the cited regulations did not require the ALJ to perform further analysis.
1. SSR 18-3p-Failure to Follow Prescribed Treatment
SSR 18-3p “provide[s] guidance on how [SSA] appl[ies] our failure to follow prescribed treatment policy in disability and blindness claims under titles II and XVI of the Social Security Act (Act).” SSR 18-3p, 2018 WL 4945641, *1 (Oct. 2, 2018).“SSRs do not carry the ‘force of law,' but they are binding on ALJs nonetheless.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (citations omitted). They “reflect the official interpretation of the [SSA] and are entitled to ‘some deference' as long as they are consistent with the Social Security Act and regulations.” Id. (alterations in original) (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006)). SSR 18-3p provides, in relevant part:
SSR 18-3p superseded SSR 82-59 and applies on or after October 29, 2018. See Elizabeth P. v. Comm'r of Soc. Sec., 2020 WL 3051249, at *2 n.3 (D. Ore. June 8, 2020). In this case, the ALJ issued his decision on April 22, 2019. AR at 16-28.
We will determine whether an individual has failed to follow prescribed treatment only if all three of the following conditions exist:
1. The individual would otherwise be entitled to benefits based on disability or eligible for blindness benefits under titles II or XVI of the Act;
2. We have evidence that an individual's own medical source(s) prescribed treatment for the medically determinable impairment(s) upon which the disability finding is based; and
3. We have evidence that the individual did not follow the prescribed treatment. If all three conditions exist, we will determine whether the individual failed to follow prescribed treatment, as explained below.
SSR 18-3p, Subpt. B, 2018 WL 4945641, at *2-3 (emphasis added). “The procedures that SSR 82-59 mandates . . . only apply to claimants who would otherwise be disabled within the meaning of the Act.” Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995). The Ninth Circuit Court of Appeals has reiterated this rule, confirming that SSR 18-3p's predecessor, and by extension SSR 18-3p, is inapplicable where the ALJ determined that a Petitioner was not disabled, and that individual's failure to seek treatment was merely a factor in the ALJ's credibility determination. Molina v. Astrue, 6 74 F.3d 1104, 1114 n.6 (9th Cir. 2012), superseded by regulation on other grounds.
2. SSR 13-2p-Drug Addiction and Alcoholism (DAA)
The purpose of SSR 13-2p is to “explain[] [SSA's] policies for how [it] considers] whether ‘drug addiction and alcoholism' (DAA) is a contributing factor material to [the] determination of disability in disability claims and continuing disability reviews.” SSR 13-2p, 2013 WL 621536, at *1 (Feb. 20, 2013). The DAA evaluation process includes six (6) steps, but SSA “do[es] not require [their] adjudicators to follow them in the order [it] provide[s].” Id. at *5. The second step asks “[i]s the claimant disabled considering all of his or her impairments, including DAA?” Id. at *6. If the claimant is not disabled, then there is no need to determine DAA materiality and the claim is denied. Id
3. Finding of No Disability
Plaintiff asserts that “the only reason the ALJ did not find that Ms. Chiaminto was unable to maintain full-time employment was that he believed that Ms. Chiaminto's numerous hospitalizations and other medical appointments stemmed from her own noncompliance and/or narcotic use.” Pl.'s Opening Br. (Doc. 25) at 9. This contention is without merit. The ALJ unequivocally stated that “[i]n spite of non-compliance, and narcotic dependence, the claimant's gastroparesis is not so severe that it has prevented her from engaging in work activity, or from engaging in work activity in the future[.]” AR at 24. While the ALJ did discuss Plaintiff's ongoing issues of non-compliance and drug-seeking, he did so in the context of evaluating Plaintiffs symptom testimony, not “in the context of a failure to follow treatment prescribed by a treating source, which can be expected to restore her ability to work.” Elizabeth P. v. Comm'r of Soc. Sec, 2020 WL 3051249, at *4 (D. Ore. June 8, 2020). Plaintiff argues that the ALJ is prohibited from doing a credibility analysis. Reply (Doc. 29) at 2. While it is true that an ALJ “will not assess an individual's overall character or truthfulness in the manner used during an adversarial court litigation[, ]” SSR 16-3p, he is allowed to consider whether a “claimant's statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Mitchell v. Saul, 2021 WL 3032667, at *8 (D. Nev. July 16, 2021) (alteration in original). “[T]he ALJ is not ‘required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'” Molina v. Astrue, 6 74 F.3d 1104, 1112 (9th Cir. 2012), superseded by regulation on other grounds (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Here, the ALJ provided a rational interpretation of the objective medical evidence and notes of treatment providers, which were inconsistent with Plaintiffs subjective complaints. See Mitchell, 2021 WL 3032667, at *8. Moreover, Plaintiffs reliance on Ibarra is misplaced. As an initial matter, in Ibarra the parties agreed that the ALJ erred, but disagreed as to the appropriate remedy. Ibarra v. Comm'r Soc. Sec. Admin., 92 F.Supp.2d 1084, 1086 (D. Ore. Apr. 3, 2000). The Ibarra court observed that the ALJ's comments “and his ultimate finding that claimant is not disabled rest, in significant part, on his expressed perception that her failure to follow a prescribed treatment caused her condition to be worse that it might otherwise be.” Id. at 1087. In the instant case, the ALJ did not find Plaintiff's condition sufficiently severe to prevent her from working even with non-compliance and narcotic dependence. AR at 24. His findings were based, inter alia, on objective medical evidence, clinical observations of Plaintiff, her propensity to leave against medical advice, evidence of Plaintiff eating food that are likely to cause abdominal pain, and examination evidence showing no physical or psychological limitations. AR 26. While Plaintiff may disagree with these findings, the ALJ did not err. Plaintiff also argues that her absenteeism would render her unemployable in the competitive job market. Reply (Doc. 29) at 3. In this case, Plaintiffs absenteeism is not a symptom of her disability but rather a side effect of her behavior. Because the ALJ properly determined Plaintiff to be not disabled, he was not required to proceed further pursuant to SSRs 18-3p and 13-2p.
The Court also notes that Ibarra is a district court decision that is not binding authority on this case.
IV. CONCLUSION
Based on the foregoing, the Court finds the ALJ did not err, and his decision should be affirmed.
V. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order DENYING Plaintiffs Opening Brief (Doc. 25) and AFFIRMING the Commissioner's decision.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-20-0215-TUC-JAS
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.