Opinion
CV 22-02100 PHX DLR (CDB)
11-06-2023
Suzie Rae Martin, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
TO THE HONORABLE DOUGLAS L. RAYES:
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
This case was referred to the Magistrate Judge for a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for the District of Arizona. The matter is fully briefed and ready for the Court's review.
I. Procedural Background
McCabe filed an application for Title II Social Security disability insurance benefits on August 4, 2020. (ECF No. 14-7 at 3). In her application Martin alleged disability beginning February 10, 2020, due to epilepsy. (ECF No. 14-7 at 6). Martin's claim was denied initially on December 10, 2020, and upon reconsideration on April 12, 2021. (ECF No. 14-4 at 2, 18). Martin requested a hearing before an Administrative Law Judge (“ALJ”), which was conducted September 16, 2021. (ECF No. 14-3 at 34-57). Martin was represented by counsel at the hearing. (Id.). In an order entered December 8, 2021, the ALJ determined Martin was not disabled. (ECF No. 14-3 at 17-28).
Martin sought review of the ALJ's decision by the Social Security Appeals Council. The Appeals Council denied relief on October 13, 2022. (ECF No. 14-3 at 4), making the ALJ's decision the final, appealable decision of the Commissioner.
II. Governing Law
Martin seeks disability benefits pursuant to Title II of the Social Security Act. Disability insurance benefits pursuant to Title II are paid to disabled persons who have contributed to the Social Security program regardless of financial need. 42 U.S.C. §§ 401-425. Disability is defined as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. § 423(d)(1)(a).
To establish eligibility for Social Security benefits based on disability, the claimant must show: (1) they suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (2) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. 20 C.F.R. § 404.1505. If a claimant meets both of these requirements, they are by definition “disabled.” See, e.g., Frost v. Barnhart, 314 F.3d 359, 365 (9th Cir. 2002). To be entitled to disability insurance benefits pursuant to Title II, the claimant must also establish they were either permanently disabled, or subject to a condition which became so severe as to disable them, prior to the date upon which their disability insured status expired, i.e., prior to their “date last insured” for benefits. See, e.g., Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).
Martin's date last insured is March 31, 2025. (ECF No. 14-3 at 21, 23).
A five-step sequential evaluation governs eligibility for disability-based benefits under Title II. See 20 C.F.R. §§ 404.1520; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). First, the claimant must establish they are not gainfully employed at the time of their application. See 20 C.F.R. § 404.1520(a)(4)(i). Next, the claimant must be suffering from a “medically severe” impairment or “combination of impairments.” Id. § 404.1520(a)(4)(ii). The third step is to determine whether any of the claimant's impairments meets or equals one of the “listed” impairments included in Appendix 1 to this section of the Code of Federal Regulations. See id. § 404.1520(a)(4)(iii). If any of the claimant's impairments meets or equals one of the impairments listed in Appendix 1, the claimant is conclusively “disabled.” See id.
The fourth step of the process requires the ALJ to determine whether the claimant, despite their impairments, can perform work similar to work they have performed in the past. This requires the ALJ to make an assessment of the plaintiff's “residual functional capacity” to do work-related tasks on a sustained basis. A claimant whose “residual functional capacity” allows them to perform their “past relevant work,” despite their impairments, is denied benefits. Id. § 404.1520(a)(4)(iv).
The claimant bears the burden of proof throughout the first four steps of the evaluation. See Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Valentine v. Social Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995). If the claimant cannot perform their past relevant work because of their impairments, the Commissioner proceeds to step five. At the fifth step of the evaluation the burden shifts to the Commissioner to demonstrate the claimant can perform other substantial gainful work that exists in the national economy, given their residual functional capacity. See 20 C.F.R. § 404.1520(a)(4)(v); Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). In making this determination the Commissioner considers whether, in view of the claimant's residual functional capacity, the claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education, and past work experience. Id. § 404.1520(g). If the claimant can adjust to other work, the Commissioner must find that the claimant is not disabled. Id. § 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits.
III. Standard of Review
The Court's jurisdiction extends to review of the final decision of the Commissioner denying Martin's application for Social Security disability-based benefits. See 42 U.S.C. § 405(g). Judicial review of a decision of the Commissioner is based upon the pleadings and the administrative record of the contested decision. See id. The scope of the Court's review is limited to determining whether the ALJ applied the correct legal standards to Martin's claims for benefits and whether the record as a whole contains substantial evidence to support the ALJ's findings of fact. See id. § 423; Allen v. Kijakazi, 35 F.4th 752, 756 (9th Cir. 2022); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Satisfying the substantial evidence standard requires more than a scintilla but less than a preponderance of record evidence. E.g., Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Substantial evidence has been defined as the amount of relevant evidence a reasonable mind would accept as adequate to support a conclusion. Id. See also Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 2022); Garrison, 759 F.3d at 1009. The Court should uphold the ALJ's decision unless it contains legal error or is not supported by substantial evidence. E.g., Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017).
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. []. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficient] evidence” to support the agency's factual determinations. []. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (internal citations omitted).
The Court must consider the record evidence in its entirety, weighing both the evidence that supports and detracts from the ALJ's conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). A reviewing court may not affirm the Commissioner's denial of benefits by isolating a specific quantum of supporting evidence. Trevizo, 871 F.3d at 675; Revels v. Berryhill, 784 F.3d 648, 654 (9th Cir. 2017). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews, 53 F.3d at 1039, quoted in Garrison, 759 F.3d 1010. Where the evidence can reasonably support either affirming or reversing a decision, the Court may not substitute its judgment for that of the ALJ. Garrison, 759 F.3d at 1010. See also Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“[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.”). Additionally, even if the ALJ erred, the decision should not be reversed if the error is harmless, i.e., if there is substantial evidence in the record to support the ALJ's conclusion on the challenged issue absent the legal error. See Leach v. Kijakazi, 70 F.4th 1251, 1255 (9th Cir. 2023); Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015); Stout v. Commissioner, Soc. Sec. Admin, 454 F.3d 1050, 1054 (9th Cir. 2006); Sorber v. Commissioner of Soc. Sec. Admin., 362 F.Supp.3d 713, 720 (D. Ariz. 2019).
IV. Record on Appeal
Martin was born in 1977, and was 43 years of age when she applied for disability benefits. Martin completed one year of community college, and has no specialized job training. (ECF No. 14-7 at 7). The record indicates that from June of 2003 through February of 2020 Martin worked as a casino “Table Games Dealer,” “Table Games Supervisor,” “Table Games” relief shift manager, and as a casino “Players Club Representative.” (ECF No. 14-7 at 7, 14).
Martin quit working on February 10, 2020, and applied for disability benefits on August 4, 2020. She stated she quit working due to her “conditions,” i.e., epilepsy. (ECF No. 14-7 at 6). Martin averred she was “[terminated in February 2020 after continuing to have absence seizures at work.” (ECF No. 14-7 at 12). Martin's earnings report indicates she collected unemployment benefit payments in the second, third, and fourth quarters of 2020, and in the first and second quarters of 2021. (ECF No. 14-6 at 28). In July, August, and September of 2021 Martin was working for Amazon. (ECF No. 14-6 at 30-33). The earnings record indicates Martin was hired at Amazon on June 30, 2021, and she worked 5.33 hours during the pay period ending June 3, 2021, 15.8 hours during the pay period ending July 10, 2021, 5.08 hours during the pay period ending September 4, 2021, and 7.35 hours during the pay period ending September 11, 2021. (Id.).
In her application for disability benefits Martin reported medications prescribed by Dr. Crepeau at the Mayo Clinic and Dr. Pawar at Foothills Neurology. (ECF No. 14-7 at 8). Martin reported she was taking Briviact (brivaracetam) and Vimpat (lacosamide) for seizures, and oxcarbazapine and Topamax (prescribed by Dr. Pawar) for seizures. (ECF No. 14-7 at 10). There are no treatment notes from Dr. Pawar in the record on appeal; in her application for benefits Martin stated she first saw Dr. Pawar on February 5, 2018, and last saw him on August 1, 2018. (Id.).
Martin also reported she was taking propranolol for anxiety and depression, prescribed by Dr. Crepeau. (ECF No. 14-7 at 8). This medication is a beta blocker usually used to treat high blood pressure, irregular heartbeats, shaking (tremors), and other conditions. It is also used to prevent migraine headaches.
Four months prior to ceasing work, on October 8, 2019, Martin was seen by Dr. Crepeau at the Mayo Clinic. (ECF No. 14-8 at 127). Martin had been in the “Epilepsy Monitoring Unit in early September.” (Id.). At the October 2019 visit oxcarbazepine was discontinued and Martin was started on brivaracetam. (Id.). Dr. Crepeau noted:
Since returning home, she has had no further seizures. She is very pleased with seizure control on the current combination of brivaracetam and lacosamide. She does report that in September, she had to use alprazolam more frequently for anxiety, due to work and personal issues. .. She is fairly bothered by the mood changes with brivaracetam.
She has been off of work for the last 2 months, has had significant decrease in her physical activity level. She and her husband recently did get bike sooner starting to get outside to bike a bit more. They have been also hiking around South Mountain. .(Id.) (emphasis in original).
The doctor also noted:
... seizures have been occurring since 2016. We did recently capture seizures in the Epilepsy Monitoring Unit, saw them arising independently from either hemispheres. At this time, she is on a combination of lacosamide and brivaracetam, with good seizure control. She is struggling with side effects. . She is intending to go back to work in 1 month, will
have a chance to make sure that medications are appropriately balanced. I do agree with her returning to work in a month, assuming reasonable seizure control. We did discuss trying to maintain a regular schedule, and if possible have somewhat of a day shift or mid shift to not disrupt her sleep wake cycle too much.(ECF No. 14-7 at 128).
Martin's next with Dr. Crepeau was ten months later, on August 18, 2020. (ECF No. 14-9 at 74, 78). The doctor noted she had last seen Martin on October 8, 2019. (ECF No. 14-9 at 77). Since she had last seen the doctor Martin had apparently returned to work and then ceased working. The doctor noted that, due to a change in insurance coverage, the cost of lacosamide and brivaracetam had become prohibitive and Martin had “been off of these medications for a period of time.” The doctor noted:
.... She has continued to have intermittent breakthrough seizures. She thinks that seizures are only slightly more frequent than what she was having while she was on the seizure medication. She can now either have a seizure every week, or sometimes go 3 weeks without any seizures. Her husband states in the past, she did have more times when she would go 3 weeks without a seizure. Most of these consist of staring and unresponsiveness. She states that she did recently have a generalized tonic-clonic seizure in her sleep. She woke up with blood on her pillow and found she had bitten upper tongue. Her most recent seizure occurred last Monday.
Since being off of medications, she has noted that she has more of a sense of when the seizures likely to happen. The day prior to the most recent seizure, she felt dizzy and off. She is able to warn her husband something is going to happen. She also has been able to use aplrazolam as a rescue medication when needed.
She also reports feeling better overall off of the medications. She had significant irritability with brivaracetam, which has now improved. She also has had improved energy and weight loss since discontinuing the 2 medications.(Id.).
The doctor opined:
Given the current circumstances, I do think now is the time to reevaluate her medications overall. She has not been on lamotrigine in the
past, and I think that this is a very appropriate medication for her, given seizure classification and side effect profile ...
We also had a discussion regarding non medication treatment options. This would include ketogenic diet or modified Atkins diet. Vagus nerve stimulation would also be appropriate at any time, would not require any further workup. These additional treatments may provide further seizure control, without the systemic side effects that she was experiencing on the other seizure medications.(ECF No. 14-9 at 78). The treatment plan included Martin following-up in the epilepsy clinic in eight weeks. (Id.).
Martin completed an activities of daily living form on September 2, 2020. (ECF No. 14-7 at 24). She reported that on an average day she could “[p]lay w/dogs, cook, clean, sleep, read, color, watch TV.” (ECF No. 14-7 at 22). Martin asserted she had seizures about once a week, or “[s]ometimes more often.” (Id.). She stated the seizures lasted for “about a minute,” and then she would be awake “but not conscious for about 30 minutes. I often fall asleep after a seizure. I have no memory of the seizure or time after. When I wake up, I am dizzy, sore muscles, uncoordinated, have trouble focusing on tasks, for an hour or so.” (Id.). Martin stated she could walk for up to a mile, go grocery shopping, cook, vacuum, and do laundry. She reported that for 48 hours after a seizure she might “be uncoordinated, off balance, light headed, drop things, dizzy.” (ECF No. 14-7 at 23). Martin could drive for up to five miles, she walked her dogs one mile two or three times per week, and she hiked two to three miles four times per month. (Id.). Martin stated her seizures were “unpredictable. Had six confirmed seizures (seen by someone) in July, four in August. As many as three in one day. Longest time without a seizure in last two years is 7 weeks.” (ECF No. 14-7 at 24).
Martin was examined by a consultative examiner, Dr. Gordon, on November 12, 2020. (ECF No. 14-8 at 193). Dr. Gordon noted:
The claimant states in 2016, she was diagnosed with epilepsy. She denies any specific head injury, trauma or accidents. She follows with a neurologist on an as-needed basis. She is not actually sure what kind of seizures she has . . . She states that they tend to be worse the stress, poor
sleep or fatigue. She does endorse poor memory, poor concentration, fatigue, and disorientation following a seizure. She endorses 3 to 4 migraine headaches a month with her seizures. She is on lamotrigine and states that it helps. ... She denies any tinnitus, vertigo or dizziness. She holds a valid Arizona driver's license and admits to continuing to drive a motor vehicle, although she states that she only drives short distances around her home.(ECF No. 14-8 at 193). Martin reported her medications as lamotrigine, alprazolam, and rizatriptan. (Id.). Martin reported the last date she “was able to be gainfully employed was 02/10/2020 and she states she has been unable to return to work since that time due to the COVID-19 pandemic and additionally due to her reported seizures.” (ECF No. 148 at 194). Martin complained of “significant impacts on activities of daily living,” also reporting she was able to “complete self-care activities including meals, hygiene, and light housework,” and that “these tasks are progressively difficult and do take an extended period of time to complete.” (Id.). Martin reported her hobbies “include[d] reading, baking, coloring, hiking, and biking.” (Id.).
Upon neurological examination, Dr. Gordon found Martin was “alert and oriented to person, place, time, and event, affect and speech are congruent, and thought process is cogent.” (ECF No. 14-8 at 195). He also found “cranial nerves II - XII are grossly intact with no focal neurological deficits;” “Cerebellar function was further assessed with finger-to-nose testing without deficits;” “Romberg test was assessed and is negative,” and no dysdiadochokinesia, tremors, nystagmus or pronator drift. (Id.). Dr. Gordon's diagnosis was “history of epilepsy with a current benign neurological examination” and hypertension with a benign cardiovascular examination. (ECF No. 14-8 at 197). Dr. Gordon opined Martin's conditions would not impose physical limitations, but that she would not be able to work around heights, moving machinery, extremes in temperature, chemicals, dust, fumes or gases, or excessive noise. (ECF No. 14-8 at 198).
Martin's application for disability benefits was denied on December 10, 2020. (ECF No. 14-4 at 2). The agency physician (Dr. Mirza) noted Martin had epilepsy, which is classified as a severe impairment. (ECF No. 14-4 at 10). The physician noted Martin reported pain, loss of sensation, malaise, weakness, and fatigue. (ECF No. 14-4 at 11). Relying on the sole medical source opinion in the record, i.e., that of the consulting physician Dr. Gordon, the agency physician determined Martin did not have exertional limitations, also finding she could not engage in work involving hazardous machinery and unprotected heights and also had environmental limitations. (ECF No. 14-4 at 12-14). The agency physician noted Martin's function report indicated she could perform activities of daily living, and that she slept for eight hours at a time but required naps. (Id.).
Martin saw Dr. Crepeau on January 27, 2021. (ECF No. 14-9 at 67, 73). The doctor noted she had last seen Martin on August 18, 2020, five months previously. (ECF No. 14-9 at 70). The diagnoses was focal complex partial epilepsy intractable without status epilepticus and migraine headache. (ECF No. 14-9 at 72). The doctor noted:
Since the last visit, she was started on lamotrigine and is now taking 100 mg twice daily. It seems as though there has been some seizure reduction, and she reports 11 days without a seizure. Her husband reports that she averages one seizure per week and seizures last 60-90 seconds. He described her as having widening of the eyes. She repeatedly swallows and clenches her fists. She hypersalivated. Afterwards, she falls asleep. When she wakes, up, she has no recall of what happened. At this point, there is no consistent pattern as to when the seizures occur.
She does report memory loss. In addition, she has mood symptoms, and states that she has been crying a lot. She has not been doing well from a neurologic perspective.
She is struggling with frequent headaches. She describes some of the headaches as migraines and some numbness sinus type headaches. The pain is often located over the left eye, and is described as stabbing. She has used rizatriptan with some benefit. Largely though, she was asleep and avoids light and sound stimulation. She has never been on a preventative medication.
Even with the machine, she does struggle with side effects. She reports feeling fatigued and slowed down overall. She has been through multiple different antiepileptic medications, and has continued to have seizures despite all of these trials. She also struggled with significant side effects with many of the medications.(ECF No. 14-9 at 70).
The doctor's proposed plan was to increase the dose of lamotrigine, and Dr. Creapeau also noted:
We did have discussion about other treatment options. She does have drug-resistant focal epilepsy, and therefore would be a candidate at any time for vagus nerve stimulation. This would not require any further evaluation, will be placed as a outpatient surgery. We also discussed consideration of deep brain stimulation, given the prior recording of independent bilateral seizures. This would not require further localization testing, but would just require an MRI brain with appropriate sequences for DBS placement. We did have discussion of repeating epilepsy monitor unit admission, to try to further focus in on seizure onset, potentially with SISCOM study. This could give options for either RNS therapy, or if there is any potential for resective surgery, this would require likely intracranial monitoring. We also had discussion of dietary therapy, and I directed her to either the Epilepsy Foundation website, or the Charlie Foundation website for further information.
She does have frequent headaches, and meets criteria for chronic migraine. I did recommend that when she uses rizatriptan as rescue medication, she takes at the earliest possible time, and make combined with an NSAID. She has never been on a preventative medication. I do think a trial of venlafaxine is appropriate, as this may also help mood symptoms. I will have her start with an extended release tablet 37.5 mg. If she tolerates it well, we could consider increasing to 75 mg.(ECF No. 14-9 at 71). Martin was to follow-up in “Epilepsy clinic in 4-6 weeks.” (Id.).
In a disability report dated February 2, 2021, on appeal from the initial denial of benefits, Martin stated she had memory issues due to “anomic aphasia,” and also reported degraded manual dexterity and motor function, in addition to severe migraines and fatigue. (ECF No. 14-7 at 29). Martin stated she was then seeking disability based on “drug resistant focal epilepsy, chronic migraines, memory impairment, depression and anxiety.” (ECF No. 14-7 at 30). At that time Martin was taking alprazolam (an “anxiety, post-seizure rescue” medication, which produced fatigue), lamotrigine (an “anti-seizure” medication, with the side effects of anomic aphasia, fatigue, depression, and slowed motor function), rizatriptan (for migraine headache relief), and venlafaxine (an antidepressant, for migraine headache relief). (ECF No. 14-7 at 31). She stated she was no longer driving, “almost” never went “out in public unaccompanied,” and could only do chores for about an hour each day before needing a break to lie down. (Id.).
In a “Seizure/Epilepsy Questionnaire” dated March 23, 2021, Martin reported her last four seizures occurred on March 6 and March 17, 2021, and on February 22, 2021. She averred it was two hours after each seizure before she could resume activity. (ECF No. 14-7 at 35). Martin reported her medications as lamotrigine and alprazolam, but stated the medications did not help with her seizures. (ECF No. at 35-36). Attached to the questionnaire was a seizure log, indicating Martin had experienced seizures at home, on numerous occasions at restaurants, and that on March 6, 2021, paramedics had been called to her home when she experienced a seizure. (ECF No. 14-7 at 38-42).
In an activities of daily living questionnaire completed March 26, 2021, Martin reported her medications as lamotrigine, alprazolam, and rizatriptan (ECF No. 14-7 at 58). Martin stated she could “no longer be a blackjack dealer because of my inability to watch over the company assets.” (ECF No. 14-7 at 54). She reported she could not handle stress well, she could pay attention for an hour, she could walk for three miles, and that she was “not suppose[d] to drive.” (ECF No. 14-7 at 55). She stated that once or twice a month she would play bingo, lunch, or shop, and that on a daily basis she would visit or text friends or talk on phone, and read, bake, watch television, or color. (Id.). Martin stated she would shop weekly for groceries, clothes, “dog stuff,” and hobby supplies. (Id.). She reported she was able to do chores, including cleaning, laundry, cooking, washing dishes, sweeping, mopping, and vacuuming. (ECF No. 14-7 at 53). Martin could prepare simple meals, and she reported an average day involved: “read, cook, run errands w/my husband, clean, play w/our dog, watch tv.” (ECF No. 14-7 at 52).
Martin's application for disability benefits was denied on reconsideration on April 9, 2021. (ECF No. 14-4 at 35) The decision noted a seizure log submitted by Martin beginning June 16, 2020, stating “[i]n the 33 weeks since we started tracking them, [Martin] has had 34 seizure[s] that [her husband] had observed. . . . The longest length of time between observed seizures has been 16 days, the shortest being three in one day.” (ECF No. 14-4 at 20). The reconsideration disability determination noted Martin also averred she had a new condition, beginning in January of 2020, i.e., “anomic aphasia,” which occurred “a few times throughout the day,” in addition to degraded manual dexterity and motor function. (Id.). Martin had further asserted she was experiencing “severe migraines” and was fatigued, with poor short-term memory. (ECF No. 14-4 at 20-21). She stated she had “difficulty retaining new information and as such would struggle, or be unable to learn a new trade.” (ECF No. 14-4 at 21). The decision notes no secondary diagnosis had been established (“No Medical Evidence in File”). (ECF No. 144 at 18). The decision denying benefits upon reconsideration noted the Commissioner had received records from Mayo Clinic, and a seizure questionnaire, but there was no medical source opinion in the record other than that of Dr. Gordon. (ECF No. 14-4 at 22-23). The decision denying benefits states: “The evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on the claim. The additional evidence needed is not contained in the records of the individual's medical sources.” (ECF No. 144 at 26). The agency physician (Dr. Vu) concluded that, “[b]ased on the totality” of the record evidence, Martin retained the residual functional capacity for work with “seizure precautions,” and therefore the “initial decision appear[ed] reasonable.” (ECF No. 14-4 at 27, 32).
Martin was seen by Dr. Crepeau on September 9, 2021. (ECF No. 14-9 at 199). The doctor noted she had last seen Martin on January 27, 2021. (Id.). The diagnosis was “focal complex partial epilepsy intractable without status epilepticus - primary.” (Id.). The notes state:
Since the last visit, she has continued to have seizures, occurring about one time per week. Some seizures are preceded by what she describes as a roller coaster feelings. At other times, she has no warning, and her husband describes her as wandering around, but being unresponsive. Seizures may last between 90 seconds and 3 minutes, but she may take an entire day to recover. On September 6th, she had 2 seizures in one day.
She has remained on lamotrigine, and we have increased it due to ongoing seizures. She did undergo a partial hysterectomy on July 16, 2021. She did have one seizure that night after surgery and another the following
morning. Since then, she did have her longest recent seizure free interval of approximately 2 weeks. She did then have the 2 seizures on a single day.
She is struggling with other symptoms. She does have word finding difficulties and increasing memory loss. She also reports being exhausted all day and then having difficulty sleeping at night. She is working at keeping up a consistent sleep schedule. She is now starting a job in the phone center for Amazon employee service, which will allow for daytime working hours.
She does continue to have migraines and will typically have benefit from rizatriptan. However, there are times this is not effective, and she recently had a migraine which lasted for more than 2 days.(Id.). As an “assessment/plan,” the doctor opined:
Suzie Rae Martin is a 44 year-old woman with drug resistant focal epilepsy and previously recorded independent bitemporal seizures. She has been through trials of multiple antiseizure medications without significant benefit and side effects. She is now on lamotrigine, which seems to be tolerated better than others, though is still having on average one seizure per week. She is also is reporting memory decline, which may be related to uncontrolled seizures.
We did have a long discussion regarding treatment options. At this time, she is most interested in trying the ketogenic diet or modified Atkins diet. She has looked into apps which can help track food. We did discuss that this requires consistently limiting carbohydrates enough to produce ketones. I recommended that if she does start dietary therapy for epilepsy, she remain on it consistently for approximately 2 months to assess its effectiveness.
We also discussed other medication options, with cenobamate being the next medication I would recommend. We discussed VNS, though expresses some reluctance to an implanted device, and we had to review that it would not likely render her seizure free or take away the need for ASMs, but rather the aim would to reduce seizure frequency and severity.
During her prior EMU stay, we recorded seizures which appeared to be bilateral in onset. I do think there could be value in repeating the stay, recording additional seizures, and seeing if there is a role for SISCOM.RNS could be an option as well, but we would want to better determine
specific seizure foci, for which recording additional seizures would be important. I also would consider repeating the MRI brain and a brain PET scan.
She does have migraine headaches which are prolonged at times. I did let her know that if she has a migraine going on for 2 days, we could make arrangements for a migraine infusion in the ambulatory infusion center.(ECF No. 14-9 at 200). Martin was directed to follow-up in the epilepsy clinic in three months. (Id.).
Subtraction of ictal and interictal SPECT co-registered to MRI (“SISCOM”) is an image processing technique that subtracts the interictal study from the ictal SPECT and co-registers it to an MR image; this has been shown to improve the sensitivity and specificity of seizure localization.
Responsive neurostimulation (RNS) is a breakthrough surgical approach to treating seizures that are not controlled by medication. A neurostimulator is placed under the scalp and within the skull, and it is connected to 2 electrodes placed either on the surface of the brain, into the brain, or a combination of both. The device continuously monitors brain activity and then is programmed to detect seizures. When a seizure or seizure-like activity is detected, the device delivers a small amount of electrical current to the brain to stop or shorten the seizure, or possibly prevent a seizure altogether.
At the hearing before the ALJ on September 16, 2021, Martin alleged the onset of disability as February 10, 2020, and in response to the ALJ's question “Did anything happen at that time that caused you just stop working? (sic),” she responded: “I lost my job.” (ECF No. 14-3 at 38-39). She stated that she “could no longer, according to my company be a dealer, score supervisor, and got moved to a different department and was told I have 30 days to find another job in the corporation. And I wasn't qualified for anything that was open, so I was terminated.” (ECF No. 14-3 at 39). In response to a question regarding whether she had worked since February of 2020, she stated: “I recently started working at Amazon. ... I believe I was hired in June.” (ECF No. 14-3 at 39). Martin told the ALJ she worked “Ten. ... Yes, 10 hours roughly a week,” “answering phones,” and she was earning fifteen dollars an hour. (ECF No. 14-3 at 40). The ALJ asked her if she would “be able to do that full-time if it was offered to you?” and she responded “I don't think so ... Because there's days I don't function very well. ... I get migraines very easily. I have seizures. There's days I'm not very stable in general.” (ECF No. 14-3 at 40).
Martin reported her hobbies as reading, watching movies, playing with her dog, and baking. (ECF No. 14-3 at 43). She watched television for “maybe three, if that,” hours per day, read for “maybe three hours” per day, was on the computer (on her phone or a personal computer) for two hours per day, and she was doing yoga. (Id.). She could drive to grocery store, which was five minutes from her home. Martin also stated she was having “some problems sleeping.” (ECF No. 14-3 at 44). With regard to any side effects from her medications, Martin stated: “I am constantly tired. I don't sleep very well. I have no energy because I'm tired and not sleeping well.” (ECF No. 14-3 at 45). She told the ALJ: “On average, I see my neurologist about every three months;” that she experienced migraines “a couple times a month;” that the migraine headaches lasted for a day; and that she had seizures “[a]t least once a week.” (Id.).
The ALJ queried: “The doctors haven't precluded you from driving due to seizures at this point?” and Martin responded “I try not to drive.” (Id.). The ALJ asked “But have they told you that you can't drive or should not drive?” and Martin responded “Yes.” (Id.). She did allow that her doctors had “warned” her she “should not” drive. (ECF No. 14-3 at 46). The ALJ asked why she was driving when the doctors had advised her otherwise, and she answered: “Sometimes my husband isn't here and I need something from the grocery store.” (Id.).
With regard to the effect of her seizures, Martin stated: “Once the convulsions ends, I'm in a vegetative state for 45 minutes to an hour. I look like I'm sleeping and I often snore, but I can't be woke.” (ECF No. 14-3 at 47). She stated that after a seizure it took a day before she could go to the bathroom by herself. (Id.). Martin also reported “constant” aphasia, which got “really bad after a seizure, that I'll frequently be talking and get works mixed up. Or I'll forget what I'm saying in the middle of what I'm saying. I'll have poor dexterity, and I'll drop things.” (ECF No. 14-3 at 48). She also reported that when she experienced a migraine it took “eight to 48 hours” to “go away.” (Id.). Martin reported the seizures were triggered by “stress, lack of sleep, and then they'll just come out of the blue. I'll be out shopping or having a manicure and it'll just happen.” (ECF No. 14-3 at 49). She reported she had not experienced an on-the-job seizure at work, but that at the time of the hearing “in my new job, I've only worked four shifts, actually worked four shifts.” (Id.). She averred she had to call in sick for work twice due to “[m]igraines so severe, I was throwing up and crying.” (Id.). Martin testified “I've had seven seizures within the last year that my husband's had to call the EMT's [sic], just to make sure that I am okay.” (ECF No. 14-3 at 50).
Martin presented for a post-hearing consultative examination on October 6, 2021, with Erica Neal, a physician's assistant (“PA”). (ECF No. 14-9 at 193). PA Neal noted no records were provided or reviewed. Martin reported she was working part time at Amazon. PA Neal's notes state:
In the decision denying benefits issued December 3, 2021, the ALJ noted “the claimant was sent to a post-hearing consultative examination, which was proffered to the claimant and subsequently admitted as Exhibit 12 upon no objection from the claimant.” (ECF No. 14-3 at 21).
She reports she has had seizures for five years. She states she has had many tests and tried many medications . . .
She states she has seizures once a week. She states she has does not know what kind of seizures she has. She states she does not have an aura or warning. She feels her body freeze and stiffen. She states she often bites her lip or tongue. “Convulsions last 2-3 minutes”. She states she is in a vegetative state after her seizure for 45 minutes to one hour. She reports headaches after her seizures. States her husband logs her seizures. She reports symptoms of aphasia several times per day. She also reports short term memory loss. She has poor balance. She has difficulty with fine motor skills. She reports trouble with concentration.
She is currently on Lamictal, rizatriptan for migraines post seizures, and Xanax for rescue meds, and CBD oil for anxiety. She states she has tried bribiact, vimpat, oxcarbazepine, and Topamax in the past. She is currently working at Amazon part time. She states she is quitting.
She reports she had a seizure yesterday while driving. She states she typically only drives to and from work. She states she has a valid driver's license but “has been told she is not supposed to drive.”(ECF No. 14-9 at 194). The notes also state: “The claimant denies significant impact on activities of daily living. The claimant is able to complete self-care activities including meals, hygiene, and light house work. The claimant is not confined to bed, and gets adequate sleep. The claimant is able to drive a vehicle.” (Id.). The doctor noted: “Other than the claimant[']s subjective complaints, the physical exam was unremarkable.” (ECF No. 14-9 at 196). PA Neal noted Martin's grip strength was normal and evaluated Martin's fine motor skills, reporting Martin “was able to pick up small coins with both hands without difficulty, screw a nut onto a bolt with both hands without difficulty, along with writing their name and other visit specific information on this chart with no appendicular dysmetria noted in the dominant hand without difficulty.” (ECF No. 14-9 at 195-96).
In the written opinion denying benefits, issued December 3, 2021, the ALJ concluded Martin had not engaged in “substantial gainful activity” since the alleged onset of disability. (ECF No. 14-3 at 23). The ALJ noted Martin had “worked after the alleged disability onset date but this work activity did not rise to the level of substantial gainful activity. Earnings records show some recent unemployment benefits, which do not constitute ‘substantial” activity,' as well as some income below SGA levels in 2020 and 2021.” (Id.).
The ALJ determined Martin had the severe impairments of epilepsy and migraine headaches. (Id.). The ALJ concluded Martin's impairments did not meet or equal a listed impairment. (Id.). The ALJ further determined:
The claimant alleged she stopped working in February 2020, due to conditions including epilepsy (Ex. 2E/2). She described having “absence” seizures around once per week, resulting in memory loss, sore muscles, and troubles with coordination and focus for around an hour after each seizure (Ex. 4E/1). She stated that the seizures are unpredictable, can occur more than once per week, and can take “hours or days” to fully recover (Exs. 4E/3; 10E/1). At the hearing, the claimant testified that she began working for Amazon as a customer service representative beginning around July 2021, but only for around 10 hours per week. She stated that she is unable to work on a full-time basis due to ongoing migraines and seizure episodes. Further, the claimant stated that her medication causes sleepiness and fatigue during the day.
After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.
Turning to the objective medical evidence, treatment notes show the claimant treated her epilepsy at the Mayo Clinic, where she was diagnosed with migraine headaches and intractable focal epilepsy and continued to report seizures on a bimonthly basis despite treatment with medication (Ex. 3F/1). She reported in September 2019 that the “majority of her seizures are smaller events” though she had two convulsive seizures in her lifetime (Ex. 3F/1). Workup including a negative MRI scan, as well as an electroencephalogram (EEG) that showed left temporal slowing (Ex. 3F/1). Treatment providers adjusted the claimant's medication but counselled her to continue taking Vimpat for treatment of her epilepsy (Ex. 3F/3).
Subsequently, the claimant reported in October 2019 that she had “good seizure control” after starting on brivaracetam and lacosamide (Ex. 4F/4-5). The claimant reported getting out on her bike more as well as hiking in the mountains (Ex. 4F/4). However, in August 2020, the claimant reported that she was unable to afford brivaracetam and lacosamide due to a change in her insurance coverage (Ex. 9F/76). Subsequently, the claimant reported to a consultative examiner in November 2020 that she maintained her driver's license and continued to drive short distances (Ex. 5F/1). The consultative examiner diagnosed the claimant with a reported history of epilepsy with a current benign neurological examination (Ex. 5F/5).
More recent records from January 2021 show the claimant reported continued seizures, around once per week, despite adhering to her medication (Ex. 6F/1). She also reported frequent headaches. Treatment providers noted the claimant had not yet tried a preventative medication for her headaches and prescribed venlafaxine. Regarding seizures, treatment providers adjusted the claimant's medication and counselled additional treatment options, including vagus nerve stimulation, deep brain stimulation, SISCOM study, and discussion of dietary therapy (Ex. 6F/2).(ECF No. 14-3 at 24-25).
The ALJ further determined:
The undersigned finds the medical opinion of Robert Gordon, D.O., consultative examiner, to be partially persuasive, and credit that his limitations are based on the claimant's reported history of epilepsy, combined with his own neurological examination, wherein he found the claimant to have no neurological deficits at the time (Ex. 5F). Overall, the opined limitations are generally consistent with the claimant's observed seizure episodes, as the claimant's history of epilepsy warrant restrictions to light work with additional work and environmental hazard limitations (Exs. 3F/1, 3; 4F/4-5; 5F; 6F/2).
The undersigned finds the medical opinion of Erica Neal, PA-C, consultative examiner, to be partially persuasive, and credits her limitations
are supported by the claimant's reported history of seizures, with a benign neurological examination conducted in October 2021 (Ex. 12F). Overall, the opined limitations are generally consistent with the claimant's observed seizure episodes, as the claimant's history of epilepsy warrant restrictions to light work with additional work and environmental hazard limitations (Exs. 3F/1, 3; 4F/4-5; 5F; 6F/2).
The undersigned finds the prior administrative medical findings of D. Mirza, M.D., and K. Vu, D.O., to be partially persuasive, and credits their work and environmental limitations are supported by a review and summary of the claimant's medical records regarding the claimant's history of seizures (Exs. 2A; 4A). Their findings are only partially consistent with the weight of evidence, as the undersigned finds that a limitation to light work is also appropriate, given that the claimant's seizures and migraine headaches could limit the claimant's ability to carry heavier weight during a workday (Exs. 3F/1, 3; 4F/4-5; 5F; 6F/2).(ECF No. 14-3 at 25).
The ALJ determined:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant cannot climb ladders; can have no exposure to unprotected heights or moving machinery. She can have occasional exposure to chemicals, loud noises, humidity, wetness, dust, fumes, smoke, temperature extremes, and vibrations.(ECF No. 14-3 at 23).
The ALJ determined:
Based on the foregoing, the undersigned finds the claimant has the above residual functional capacity assessment, which is supported by the objective medical evidence, the claimant's described activities of daily living, and the medical opinions and prior administrative findings of record (SSR 16-3p). Indeed, the claimant and her spouse alleged that the claimant had frequent epileptic seizures and associated migraine headaches that would preclude the claimant from performing a normal workweek (Exs. 4E; 8E; 9E; Hearing Testimony). However, treatment notes indicate the claimant's seizures were under “good control” when the claimant adhered to her medication regimen (Ex. 4F/4-5). Moreover, the claimant engaged in significant activities of daily living during the period at issue, including hiking, biking, driving, shopping for groceries, and performing regular household chores, which indicate the claimant was not as physically limited as she alleged during the hearing (Exs. 5F/2; 12F/2). The claimant has also
started working in customer service for Amazon, and it does not appear she is limited physically by her seizures or headaches from performing such work at the lighter exertional level on a full-time basis, so long as the claimant is limited in exposure to possible triggers or dangers such as workplace or environmental hazards (Exs. 10D-13D; Hearing Testimony). Accordingly, the undersigned finds the claimant is able to perform the work outlined in her residual functional capacity.(ECF No. 14-3 at 25-26).
The ALJ concluded:
... the claimant is capable of performing past relevant work as a Casino Dealer and Card Room Supervisor. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).
***
In addition to past relevant work, there are other jobs that exist in significant numbers in the national economy that the claimant also can perform, considering the claimant's age, education, work experience, and residual functional capacity (20 CFR 404.1569 and 404.1569a). Therefore, the Administrative Law Judge makes the following alternative findings for step five of the sequential evaluation process.
The claimant was born on June 13, 1977 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). The claimant has at least a high school education (20 CFR 404.1564). Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).(ECF No. 14-3 at 27).
If the claimant had the residual functional capacity to perform the full range of light work, a finding of “not disabled” would be directed by Medical-Vocational Rule 202.21. However, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all of these factors the individual would be able to perform the requirements of representative occupations such as:
• Routing Clerk, with a Dictionary of Occupational Titles code of 222.687-022. This position is light, with an SVP 2 per the Dictionary of Occupational Titles. The vocational expert testified that there are approximately 105,000 such positions in the national economy.(ECF No. 14-3 at 27). The ALJ also found Martin had the residual functional capacity to perform the jobs of assembler of small products and parking lot attendant. (ECF No. 14-3 at 28).
V. Analysis of Plaintiff's Claim for Relief
Martin contends the ALJ failed to provide sufficient reasons for rejecting her testimony regarding the extent to which her migraines, seizures, and the side effects of her medication preclude her from all work on a sustained basis. Citing 20 C.F.R. § 404.1529 and Social Security Ruling (“SSR”) 16-3p, Martin contends the ALJ did not supply sufficient reasons for rejecting Martin's allegations that she is unable to work on a full-time basis due to migraines and seizures, and because her medication causes sleepiness and fatigue.
When evaluating a claimant's symptom testimony, ALJs must engage in a two-step analysis. The ALJ must determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ proceeds to consider all of the evidence presented to determine the persistence and intensity of the alleged symptoms. Id. § 404.1529(c). This evidence includes information about the claimant's prior work record, the claimant's statements about her symptoms, evidence submitted by medical and nonmedical sources, and observations by agency employees. Id. § 404.1529(c). If there is no evidence of malingering, the ALJ may reject the claimant's symptom testimony only by giving specific, clear, and convincing reasons supported by evidence in the record. E.g., Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021). The Court may set aside an ALJ's decision only when it is not supported by “substantial evidence” or is based on legal error. Trevizo, 871 F.3d at 674.
The ALJ must “set forth the reasoning behind [their] decisions in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). It is the ALJ's prerogative to “determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record.” Treichler v. Commissioner of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). The Commissioner's decision to deny benefits should be vacated only if it is not supported by substantial evidence or is based on legal error. Id. “Substantial evidence means more than a mere scintilla, but less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674. And even when the ALJ commits legal error, their decision must be upheld when that error is harmless, i.e., the error “is inconsequential to the ultimate nondisability determination,” or “the agency's path may reasonably be discerned, even if the agency explains its decision with less than ideal clarity.” Treichler, 775 F.3d at 1099. See also Brown-Hunter, 806 F.3d at 492; King v. Commissioner of Soc. Sec. Admin., 2020 WL 5587429, at *2 (D. Ariz. Sept. 18, 2020). Although the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. E.g., Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021); Thomas, 278 F.3d at 954. When the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold the ALJ's conclusion. E.g. Ahearn, 988 F.3d at 115-16, citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Trevizo, 871 F.3d at 674-75.
An ALJ is not required to believe every allegation of disability, otherwise disability benefits would be available for the asking, a result plainly contrary to the Social Security Act. See Ahearn, 988 F.3d at 1116. When a claimant establishes an underlying impairment, the ALJ must evaluate whether their symptom testimony is consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. § 404.1529(c)(2)-(3); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). In this matter, the ALJ cited the governing regulations, 20 C.F.R. § 404.1529, which delineates how the Commissioner is to evaluation symptoms, and the ALJ also cited SSR 16-3p, which delineates the factors the ALJ should evaluate in evaluating symptoms, acknowledging they were required to consider both objective evidence and other evidence in evaluating symptoms. (ECF No. 14-3 at 24). The ALJ conducted the requisite analysis and, therefore, the decision did not include legal error.
The ALJ provided specific, clear, and convincing reasons, supported by substantial evidence in the record, for discounting Martin's allegations regarding the severity and frequency of her symptoms. Specifically, the ALJ stated Martin's statements regarding the severity and frequency of her symptoms were not consistent with the medical record and her reported activities of daily living. Throughout the limited medical evidence in the record on appeal Martin generally reported experiencing seizures on average once per week, in contrast to her testimony that she experienced more frequent seizures. The ALJ noted Martin's treatment notes indicated her seizures were under “good control” when she adhered to her medication regimen. Record evidence supports the ALJ's conclusion that Martin's symptoms were not as severe as reported, such as the contradiction between Martin stating she saw her neurologist (Dr. Crepeau) three times per year when in fact she saw Dr. Crepeau once per year. This is a valid basis for the ALJ's construction of Martin's testimony because unexplained gaps in medical treatment support an ALJ's negative credibility finding. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Martin asserts the notes from Dr. Gordon and PA Neal “depict frequent headaches despite compliance with medication, memory loss, mood swings, crying episodes, fatigue, and overall slowing as well as recurrent episodes involving twitching, widening of the eyes, hypersalivating with repeated swallowing, clenched fists, [and] the absence of any recall of what had happened afterwards.” (ECF No. 17 at 11). However, the consultative examinations of Dr. Gordon and PA Neal do not “depict” these symptoms, but instead simply recount Martin's symptoms as reported during their encounters with Martin. To the contrary, Dr. Gordon and PA Neal note, inter alia, that Martin's fine motor coordination was intact, which contradicts her statements that she was experiencing declining motor coordination skills.
Additionally, Martin saw Dr. Crepeau only once in 2020, despite alleging disability due to epilepsy beginning February 1, 2020, which weighs in favor of upholding the ALJ's determination. See SSR 16-3p, 2017 WL 5180304, at *9 (“If the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints, we may find the alleged intensity and persistence of an individual's symptoms are inconsistent with the overall evidence of record”). At the hearing, Martin testified that, “on average,” she saw her neurologist about every three months, but the record shows she saw Dr. Crepeau only twice in 2021, on January 27 and eight months later on September 9, 2021. And it is notable that Martin did not comply with Dr. Creapeau's recommendation that she follow-up these visits with the epilepsy clinic, and Martin did not pursue the further treatment recommendations discussed with Dr. Crepeau. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (including conservative treatment as a valid reason for the ALJ to properly reject claimant testimony). Martin also averred she had a new conditions, beginning in January of 2020, including degraded manual dexterity and motor function; however, Dr. Gordon and PA Neal noted no deficits in either manual dexterity or motor function. (ECF No. 144 at 20). When an ALJ's determination that a claimant's reports regarding the severity and frequency of their symptoms is not supported by the record medical evidence the ALJ may properly discount those reports. See Bray, 554 F.3d at 1227.
The ALJ did not rely solely on a lack of medical evidence corroborating Martin's symptom testimony to discount that testimony. Citing her own representations in her activities of daily living reports, the ALJ noted Martin engaged in significant activities of daily living during the period she alleged she was too incapacitated to work, including driving (for grocery items, although she had been told she should not drive based on her epilepsy diagnosis) and performing regular household chores, which indicate Martin was not as physically limited or as constantly fatigued as she alleged during the hearing. Despite alleging disabling symptoms from seizures and migraines and medication side effects, Martin also engaged in crafts, went to restaurants with friends, played with her dog, and went biking and hiking for several miles at a time. In October 2021, PA Neal noted that Plaintiff denied significant impact on activities of daily living and reported she got “adequate sleep,” and that she was able to drive (although she reported to Dr. Neal that she “had a seizure yesterday while driving”) and Martin also reported she was able to “complete self-care activities, including meals, hygiene, and light housework” (ECF No. 14-9 at 194). An ALJ may properly rely on a claimant's self-reported activities of daily living as evidence that their impairments are not as severe as reported. E.g., Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (finding a claimant's ability to fix meals, do laundry, work in the yard, and occasionally care for his friend's child was evidence of claimant's ability to work). The ALJ cited sufficient evidence as a reasonable mind might accept as adequate to support the ALJ's conclusion that Martin's symptom testimony was not entirely credible. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The ALJ also noted that Martin worked part-time during the relevant period. See Sarkiss v. Colvin, 623 Fed.Appx. 329, 330 (9th Cir. 2015), citing Bray v. Commissioner of Soc. Sec., 554 F.3d 1219, 1227 (9th Cir. 2009) (noting seeking employment during the relevant period is a proper basis to discount a claimant's statements about her symptoms). The ALJ also noted in passing that Martin had collected unemployment benefits during the relevant period. Most notably, Martin applied for and received benefits after she ceased working, and she received unemployment benefits before and after she filed her application for disability-based benefits. To receive unemployment benefits, Martin had to attest that she was physically and mentally able to work, which is inconsistent with her claim that she was too disabled to work and her testimony that she was unable to work on a full-time basis due to weekly seizures followed by migraines several times per month, and the side-effects of her medication. See Lucey v. Astrue, 2012 WL 3094958, at *4 (D. Ariz. July 30, 2012). Arizona unemployment law requires a claimant to hold herself out as available for full-time work to receive unemployment benefits. Id. at *5. This record evidence supports the ALJ's finding that Plaintiff's statements regarding disabling symptoms and medication side effects were not consistent with the objective record evidence. Although they did not specifically do so in this matter, an ALJ does not err in considering receipt of unemployment benefits during the pendency of an application for disability benefits when making a credibility finding. See Lucey, 2012 WL 3094958, at *5 (“[T]he ALJ did not err in considering Plaintiff's receipt of unemployment benefits when making his credibility finding.”), cited in Thomas v. Colvin, 2015 WL 13741219, at *2 (D. Ariz. Nov. 25, 2015), report and recommendation adopted, 2016 WL 1295133 (D. Ariz. Apr. 4, 2016). See also Van Curan v. Colvin, 2013 WL 3742412, at *10 (D. Ariz. July 17, 2013).
There are further discrepancies in the medical record that cast doubt on Van Curan's credibility. For example, Van Curan received unemployment compensation during the same period that he claims he was disabled. (Tr. 33) In Arizona, “unemployment law requires a claimant to hold himself out as available for full-time work to receive unemployment insurance.” Lucey v. Astrue, 2012 WL 3094958, 5 (D. Ariz. 2012) Accordingly, Van Curan's unemployment benefits, while not dispositive, may be considered by the ALJ in making his credibility findings. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155 (9th Cir. 2008); Lucey v. Astrue, 2012 WL 3094958, 5 (D. Ariz. 2012). Van Curan v. Colvin, 2013 WL 3742412, at *10 (D. Ariz. July 17, 2013).
With regard to weighing the record evidence that supports Martin's allegations regarding the frequency and severity of her symptoms, it is notable that the burden is on the claimant to establish their disability. In this matter there is a noticeable paucity of objective evidence substantiating Martin's reports of the severity and frequency of her symptoms. A distinguishing feature of this case is the absence of a treating physician's opinion as to Martin's specific limitations with regard to her ability to perform work-related tasks. See Matthews v. Shalala, 10 F.3d 678, 680-81 (9th Cir. 1993) (upholding the Commissioner's non-disability decision and emphasizing that “[n]one of the doctors who examined [claimant] expressed the opinion that he was totally disabled”); Curry v. Sullivan, 925 F.2d 1127, 1130 n.1 (9th Cir. 1990) (upholding the non-disability determination and noting that, after surgery, no doctor suggested the claimant was disabled); McGee v. Astrue, 368 Fed.Appx. 825, 828 (9th Cir. 2010) (noting, in concluding the ALJ did not improperly weigh the medical evidence in concluding that the claimant had impairments but was not disabled: “Importantly, none of the physicians who examined [the claimant] ‘expressed the opinion that [the claimant] was totally disabled' or that he could not return to work.”).
The claimant bears the burden of establishing they are “disabled” throughout the first four steps of the sequential evaluation, including that they are unable to perform their past relevant work. This often requires a statement from a medical source regarding their ability to do specific work-related tasks on a sustained basis. “Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681.
Cited by Martin in her reply, Smartt v. Kijakazi, 53 F.4th 489, 493, 499 (9th Cir. 2022), actually weighs in favor of affirming the ALJ's decision. The Smartt panel determined the ALJ's rationale to deny benefits must be “clear enough that it has the power to convince” and concluded the ALJ had provided sufficient clear and convincing reasons for discounting the claimant's subjective pain testimony. Id. at 495. In Smartt the Ninth Circuit concluded the ALJ had provided sufficient reasons for discounting the claimant's symptom testimony, including findings that the claimant's self-reported limitations were inconsistent with the objective medical evidence, the claimant's selfreported daily activities did not support their testimony, and that a generally conservative treatment plan indicated the claimant's symptoms were not as described. Id. at 493. The Smartt panel reiterated that “[w]hen objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as under cutting such testimony.” Id. at 498, citing Chaudhry v. Astrue, 688 F.3d 661, 67273 (9th Cir. 2012) (affirming an ALJ's determination that interpreted and preferred objective medical evidence to subjective testimony); and Burch, 400 F.3d at 681 (affirming an ALJ's discounting of subjective claims of disabling pain based on objective medical evidence and a claimant's daily activities). The Smartt panel concluded:
Indeed, if Burch was applied as aggressively as Smartt insists, an ALJ would be required in many cases to simply accept a claimant's subjective symptom testimony notwithstanding inconsistencies between that testimony
and the other objective medical evidence in the record, allowing a claimant's subjective evidence to effectively trump all other evidence in a case. This misinterpretation of Burch conflicts with other precedents from our court, where we've made clear that an 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” the Social Security Act.53 F.4th at 599.
VI. Conclusion
The ALJ's decision finding Martin not disabled is free of harmful legal error and supported by substantial record evidence. Therefore, IT IS RECOMMENDED that the decision of the Commissioner denying claims for disability-based benefits be affirmed, and that the Complaint be dismissed with prejudice.
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.
Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, 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 have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).