Opinion
CV-22-00168-PHX-MTL
10-14-2022
Sherri Kunselman, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
Michael T. Liburdi United Slates District Judge.
At issue is the Social Security Administration's denial of Plaintiff Sherri Kunselman's applications for Social Security Disability Insurance benefits and Supplemental Security Income benefits. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial. The Court now addresses Plaintiff's Opening Brief (Doc. 15, “Pl. Br.”), Defendant Social Security Administration Commissioner's Answering Brief (Doc. 16, “Def. Br.”), and Plaintiff's Reply Brief (Doc. 17, “Reply”). The Court has reviewed the briefs and the Administrative Record (Doc. 12, “R.”), and now affirms the Administrative Law Judge's (“ALJ”) decision.
I. BACKGROUND
Kunselman filed applications for Title II and Title XVI benefits on December 7, 2018, alleging disability beginning February 27, 2017. (Doc. 12-3, R. at 25.) Kunselman's claims were denied initially on April 19, 2019 (R. at 89-90), and subsequently denied upon reconsideration on July 23, 2019. (R. at 147-48.) On November 5, 2020, Kunselman appeared before the ALJ for a hearing on her claim. (R. at 42.) The ALJ denied her claims on January 13, 2021. (R. at 35-36.) Kunselman appealed this denial, but subsequently the Appeals Counsel denied the appeal on December 2, 2021, making the ALJ's decision the Commissioner's final decision. (R. at 1.) Kunselman now seeks judicial review of the Commissioner's decision under 42 U.S.C. § 405(g). (Doc. 1.)
The Court has reviewed the medical evidence and will discuss the pertinent evidence in addressing the issues the parties raised. Upon considering the medical evidence and opinions, the ALJ evaluated Kunselman's disability based on the following severe impairments: bipolar I disorder, major depressive disorder with psychotic features, and generalized anxiety disorder. (R. at 27.)
Ultimately, the ALJ evaluated the medical evidence and testimony and concluded that Kunselman was not disabled from the alleged disability onset date through the date of the ALJ's most recent decision. (R. at 35.) The ALJ found that Kunselman's impairments did not meet or equal the severity of any listed impairments of 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 28-30.) Next, the ALJ calculated Kunselman's residual functional capacity (“RFC”). The ALJ found that Kunselman has the RFC to “perform a full range of work at all exertional levels, but with certain nonexertional limitations.” (R. at 31.) The ALJ listed the following nonexertional limitations:
Residual functional capacity is the most a claimant can still do in a work setting despite his or her limitations. 20 C.F.R. § 404.1545(a)(1).
[A]ssigned work must be limited to simple, unskilled tasks with a Specific Vocational Preparation (SVP) of 1 or 2 and Reasoning Level of 1 or 2. In addition, assigned tasks must be learned in 30 days or less or by a brief demonstration. The tasks as assigned must have minimal change in the tasks as assigned and the assigned tasks must be performed primarily independently, not in tandem or as a member of a team or crew. The assigned tasks must require no more than occasional brief intermittent work related contact with coworkers, supervisors, and the public. Finally, the assigned tasks must be performed in a work environment with minimal change and the assigned tasks must require no more than the minimal level of decision making required to perform the simple tasks as assigned.(Id.) Accordingly, the ALJ found that “[considering 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.” (R. at 34.)
II. LEGAL STANDARD
In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine whether substantial evidence supports a decision, the Court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).
To determine whether a claimant is disabled, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether 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, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where the ALJ determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id.
III. ANALYSIS
In Kunselman's challenge of the ALJ's decision, she raises two arguments. First, Kunselman argues that the ALJ erred by rejecting a state agency examining psychologist's opinion. (Pl. Br. at 10-19.) Second, Kunselman contends that the ALJ erred in rejecting her symptom testimony. (Id. at 19-25.) For the following reasons, the Court overrules Kunselman's objections and affirms the ALJ's decision.
Because the Court affirms the ALJ's decision, discussion of Plaintiff's “credit-as-true” arguments is unnecessary. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1100-01 (9th Cir. 2014) (explaining that the first step in determining whether the credit-as-true rule applies is whether the ALJ “failed to provide legally sufficient reasons for rejecting evidence”).
A. Medical Opinion Evidence
Kunselman first argues that the Court should remand the case because the ALJ improperly found that Dr. Jarmon's, a state agency examining psychologist, opinions were “less persuasive.” (Id. at 12.) Kunselman asserts that the ALJ did not support her finding with substantial evidence. (Id.) In response, the Commissioner argues that the ALJ relied on substantial evidence by properly explaining the factors of supportability and consistency when determining the persuasiveness of Dr. Jarmon's opinions. (Def. Br. at 4.)
In 2017, the Social Security Administration amended the regulations for evaluating medical opinion evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5844 (Jan. 18, 2017). For claims filed on or after March 27, 2017, the revised rules apply. Id. Here, Kunselman filed her claim on December 7, 2018. (R. at 25.) The Ninth Circuit recently addressed the effect of the new regulations on prior case law. See Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022).
Under the revised rules, all evidence an ALJ receives is considered, but the rules create specific articulation requirements regarding how medical opinions and prior administrative medical findings are considered. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The 2017 regulations provide that “[ALJs] will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion.” Id. § 404.1520c(a). Instead, the ALJ determines the persuasiveness of the piece of evidence's findings based on factors outlined in the regulations. Id. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The most important factors an ALJ must “consider when [evaluating] the persuasiveness of medical opinions . . . are supportability . . . and consistency.” Id. § 404.1520c(a). Other factors, which an ALJ “may, but [is] not required to[ ] explain” when evaluating the persuasiveness of a medical opinion, are the medical source's “relationship with the claimant,” “specialization,” “familiarity with the other evidence in the claim,” and “understanding of our disability program's policies and evidentiary requirements.” Id. § 404.1520c(b)(2), (c).
In Woods, the Ninth Circuit held that these revised regulations clearly intended to abrogate its precedent requiring ALJs to provide “specific and legitimate reasons” for rejecting a treating or examining doctor's opinion. See Woods, 32 F.4th at 792. Nevertheless, “[e]ven 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.” Id. This means that an ALJ “must ‘articulate . . . how persuasive' it finds ‘all of the medical opinions' from each doctor or other source, and ‘explain how it considered the supportability and consistency factors' in reaching these findings.” Id. (citing 20 C.F.R. § 404.1520c(b), (b)(2)) (internal citation omitted) (alteration in original). Supportability is defined as how “relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical findings.” 20 C.F.R. § 404.1520c(c)(1). Consistency means “the extent to which a medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.'” Woods, 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). The ALJ should also treat opinions as more persuasive if they are more consistent with “other medical sources and nonmedical sources in the claim.” 240 C.F.R. § 404.1520c(c)(2).
Dr. Jarmon opined that Kunselman's “ability to maintain attention and concentration is compromised by her hallucinations and delusional thinking.” That made it “difficult for her to maintain regular attendance in the work setting.” (R. at 631.) The ALJ's treatment of this opinion adequately addressed the “supportability and consistency” factors as explained in Woods. 32 F.4th at 792 (citing 20 C.F.R. § 404.1520c(b), (b)(2)). As to the supportability factor, the ALJ reasoned that Dr. Jarmon based his opinion on Kunselman's self-report that her Electroconvulsive Therapy (“ECT”) was only “mildly helpful.” (R. at 33.) The ALJ further reasoned that this self-report could provide support to Dr. Jarmon's opinions but ultimately found them less persuasive because he heavily relied on Kunselman self-reporting the effectiveness of ECT treatments. (Id.); see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
As to the consistency factor, the ALJ found that Dr. Jarmon's opinion was inconsistent with the totality of evidence in the record. (R. at 30-33.) The ALJ explained that Kunselman reported to Dr. Jarmon that the ECT was only “mildly helpful” in April 2019. (R. at 629.) But two months prior, she told Dr. Khan, another state medical consultant, that ECT was helpful and improved her mood and decreased suicidal thoughts. (R. at 415.) Additionally, the ALJ noted that March 2019 records from Partners in Recovery, a substance abused treatment program, indicated that she was doing “extremely well.” (R. at 32, 643.) And in May and July 2019, medical providers noted Kunselman's bipolar I diagnosis as “in partial remission.” (R. at 33, 681.)
The ALJ reasoned that the records of two other state medical consultants, Dr. Titus and Dr. Gonzalez, showed that Dr. Jarmon's opinions were inconsistent. (R. at 33.) In those reports and as the ALJ noted, Dr. Titus found that Kunselman's self-report to Dr. Jarmon may have overestimated the severity of her symptoms. (R. at 100.) Dr. Titus observed that from January 2019 to March 2019 Kunselman had good memory, judgment, and concentration. (R. at 99.) Dr. Titus also emphasized that while Kunselman reported struggling with psychological difficulties for over twenty years, she was able to maintain work in medical transcription, despite the alleged difficulties. (R. at 100.) Dr. Gonzalez noted that Kunselman could work with others, communicate effectively, and work as an unskilled worker. (R. at 142-143.) In May 2019, Stacey Gregory, a nurse practitioner, noted Kunselman's bipolar disorder was in partial remission and that she was fully alert, had normal speech, logical thought processes, no audiovisual hallucinations, and reports that her medication was working well. (R. at 32, 139.) The ALJ noted that Dr. Titus, Dr. Gonzalez, Dr. Khan, and Ms. Gregory's records were consistent in finding that Kunselman was capable of completing simple and unskilled tasks. (R. at 33.) In considering the medical records as a whole, the ALJ determined Dr. Jarmon's opinion was less persuasive than Dr. Titus and Dr. Gonzalez's opinions. (Id.)
ALJs no longer need to provide “specific and legitimate” reasons for discounting treating medical opinions. See Woods, 32 F.4th at 792. Nonetheless, they are still required to provide an explanation supported by substantial evidence. Id. Here, the ALJ's explanations met this standard. As detailed above, the ALJ pointed to specific evidence in the record tending to contradict Dr. Jarmon's opinions. Furthermore, the ALJ sufficiently explained why these opinions were unsupported by the objective medical evidence in the record. As a result, the ALJ did not err in finding Dr. Jarmon's opinions unpersuasive.
B. Symptom Testimony
Kunselman next contends that the ALJ erred by rejected her symptom testimony without providing clear and convincing reasons for doing so. (Pl. Br. at 19.) The Commissioner responds that the ALJ properly evaluated Kunselman's subjective symptom testimony and found that “(1) the objective medical evidence did not support the extent of her allegations; and (2) Plaintiff's treatment was effective at reducing her symptoms.” (Def. Br. at 12-13.)
An ALJ employs a two-step process in evaluating a claimant's symptom testimony. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Initially, “the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the . . . symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). Then, provided there is no evidence of malingering, the ALJ must evaluate the claimant's statements in context of (1) the objective medical evidence and (2) other evidence in the record. See 20 C.F.R. § 404.1529(c)(2)-(3). At this step, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at 1014-15 (internal quotation marks omitted) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). This requirement prevents an ALJ from “arbitrarily discrediting]” the claimant's subjective symptom testimony. Thomas, 278 F.3d at 958. Despite the “clear and convincing standard [being] the most demanding required in Social Security cases,” Garrison, 759 F.3d at 1015 (internal quotation marks and citation omitted), the ALJ need not “believe every allegation of disabling pain.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Instead, when assessing the claimant's credibility, the ALJ may consider “inconsistencies either in claimant's testimony or between his testimony and his conduct, claimant's daily activities, claimant's work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which claimant complains.” Thomas, 278 F.3d at 958-59 (internal quotation marks and citation omitted). Should a district court find that the ALJ's specific, clear and convincing reasons are supported by substantial evidence, the court must not second-guess the ALJ's judgment, and should affirm the ALJ's decision. See Fair, 885 F.2d at 604.
Here, the ALJ found no evidence of malingering and that Kunselman's “medically determinable impairments might reasonably be expected to cause the alleged symptoms.” (R. at 31.) Thus, step one of the analysis is satisfied. The relevant inquiry is now whether the ALJ based her rejection of Kunselman's symptoms testimony on specific, clear and convincing reasons supported by substantial evidence. In discounting Kunselman's symptom testimony, the ALJ properly relied on the objective medical evidence in the record. The ALJ stated that “after careful consideration of the evidence,” Kunselman's testimony “concerning the intensity, persistence and timing limiting effects of these symptoms [was] not entirely consistent with the medical evidence . . . in the record.” (Id.)
Contrary to Kunselman's assertions that the ALJ failed to connect the record to the symptom testimony to find Kunselman lacked credibility (Pl. Br. at 21), the ALJ expressly stated Kunselman's asserted symptoms and proceeded to highlight record evidence that contradicted the claimed impact and severity of the symptoms. (R. at 31-32.) Specifically, the ALJ stated:
The claimant alleged disability due to anxiety, paranoia, depression, Grave's disease, and schizophrenia. The claimant reported these conditions affect the ability to remember, complete tasks, and concentrate. The claimant reported memory loss and difficulty concentrating, staying on task, and completing tasks. The claimant reports being constantly paranoid, anxious, and unable to concentrate. She also reports she suffer[s] from depression.(Id. at 31 (internal citations omitted).) The ALJ then listed specific examples from the record that contradict the symptom testimony. The ALJ acknowledged Kunselman's June 2017 and November 2018 suicide attempts but noted her condition improved after therapy and taking prescribed medications. (R. at 31.) The ALJ considered that during Kunselman's treatment at Partners in Recovery in March 2018, a mental status examination revealed that she was “fully orientated with fair concentration, normal motor activity and speech, intact memory, appropriate affect, and logical and appropriate thought process and content.” (Id.) Similarly, after the suicide attempt in November 2018, another mental status examination revealed that Kunselman “was fully orientated with normal alertness, and speech quality, logical thought processes and associations, euthymic mood and appropriate effects, and fair insight and judgment.” (Id.) Further, the ALJ emphasized that in February 2019, Kunselman reported that ECT treatments helped her feel better, improved her mood, and decreased suicidal thoughts and mood fluctuations. (Id.) The ALJ also noted that a month later Kunselman reported that she was “doing extremely well.” (R. at 32.) The ALJ highlighted that Ms. Gregory with Partners in Recovery indicated that in May 2019, Kunselman's medications were working, her bipolar disorder was in partial remission, that she said she liked keeping busy, and that a mental status examination revealed she “was fully oriented, the level of alertness was normal, stream of thought was unremarkable, and insight and judgment were good.” (Id.) Additionally, a progress note from Partners in Recovery in June 2019, stated that Kunselman enjoyed group clinics and had positive social interactions with her peers. (Id.) Ms. Gregory treated Kunselman in September 2019 and found she was still doing “ok” and that she denied feeling severe depression, suicidal ideation, and psychosis. (Id.) Each of these examples reflect inconsistencies in Kunselman's symptom testimony. The ALJ relied on substantial evidence in the record to conclude that she could complete simple and unskilled work.
The Court finds that the ALJ did not err in discounting Kunselman's symptom testimony because the ALJ's explanations provided, specific, clear and convincing reasons supported by substantial evidence to reject Kunselman's symptom testimony. The ALJ properly analyzed Kunselman's testimony in the context of objective medical evidence and provided specific examples of results tending to contradict her symptom testimony. See Garrison, 759 F.3d at 1018 (holding that an ALJ “must rely on examples to show why they do not believe that a claimant is credible”).
IV. CONCLUSION
Accordingly, IT IS ORDERED affirming the January 13, 2021 decision of the Administrative Law Judge (R. at 35-36), as upheld by the Appeals Council on December 2, 2021 (R. at 1).
IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case.