Sergeon v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Wanda Michelle Sergeon, No. CV-20-00164-PHX-ESW 10 Plaintiff, ORDER v. Commissioner of Social Security Administration, Defendant.

Pending before the Court is Wanda Michelle Sergeon’s (“Plaintiff”) appeal of the Social Security Administration’s (“Social Security”) denial of her application for disability insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 19 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc. 10).

The Court has reviewed the Administrative Record (“A.R.”) and the parties’ briefing (Docs. 13, 14, 18). For the reasons explained in Section II below, the Court finds that the Administrative Law Judge’s (“ALJ”) decision is supported by substantial evidence and is free of harmful legal error. The decision is therefore affirmed.

1 I. LEGAL STANDARDS 2 A. Disability Analysis: Five-Step Evaluation 3 The Social Security Act (the “Act”) provides for disability insurance benefits to those who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months.

10 Id. 11 To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. § 404.1520(a). The claimant has the burden of proof regarding the first four steps:1 Step One: Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are 15 denied. Otherwise, the ALJ proceeds to Step Two.

16 Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant’s 18 physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe 19 impairment or combination of impairments, disability benefits 20 are denied at this step. Otherwise, the ALJ proceeds to Step Three.

Step Three: Is the impairment equivalent to one of a number 22 of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 C.F.R. § 404.1520(d). If the impairment meets or equals one of the 24 listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the 26 analysis.

27 Step Four: Does the impairment prevent the claimant from Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).

1 performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. § 3 404.1520(f). Otherwise, the ALJ proceeds to the last step.

If the analysis proceeds to the final question, the burden of proof shifts to the Commissioner:2 Step Five: Can the claimant perform other work in the national 7 economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only 8 if he or she is unable to perform other work. 20 C.F.R. § 9 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant 10 numbers in the national economy that the claimant can do, given the claimant’s residual functional capacity, age, education, and work experience. Id. B. Standard of Review Applicable to ALJ’s Determination The Court must affirm an ALJ’s decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. In determining whether substantial evidence supports the ALJ’s decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the ALJ’s determination, the Court cannot substitute its own determination. See Morgan v. Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must Parra, 481 F.3d at 746.

1 be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 4 F.3d 1035, 1039 (9th Cir. 1995).

5 The Court also considers the harmless error doctrine when reviewing an ALJ’s decision. This doctrine provides that an ALJ’s decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting the ALJ’s decision and the error “does not negate the validity of the ALJ’s ultimate conclusion”) (citations omitted).

12 II. DISCUSSION 13 A. Procedural Background 14 Plaintiff, who was born in 1963, has worked as a computer programmer. (A.R. 55, 61). In April 2016, Plaintiff applied for disability insurance benefits. (A.R. 155-59).

16 Plaintiff’s applications alleged that on April 7, 2016, Plaintiff became unable to work due to fibromyalgia, Sjogren’s syndrome, and osteoarthritis. (A.R. 61-62). Social Security denied the application, and upon Plaintiff’s request for reconsideration, affirmed the denial of benefits. (A.R. 87-90, 98-102). Plaintiff sought further review by an ALJ, who conducted a hearing in June 2018. (A.R. 29-60).

21 In his October 24, 2018 decision, the ALJ found that Plaintiff is not disabled within the meaning of the Social Security Act. (A.R. 15-23). The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the Social Security Commissioner. (A.R. 1-6). On January 21, 2020, Plaintiff filed a Complaint (Doc. 1) requesting judicial review and reversal of the ALJ’s decision.

26 B. The ALJ’s Application of the Five-Step Disability Analysis 27 1. Step One: Engagement in “Substantial Gainful Activity” 28 The ALJ determined that Plaintiff has not engaged in substantial gainful activity since April 7, 2016 (the alleged disability onset date). (A.R. 17). Neither party disputes this determination.

3 2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments 5 The ALJ found that Plaintiff has the following severe impairments: right shoulder osteoarthritis, bilateral knee osteoarthritis, right hip osteoarthritis, and fibromyalgia. (A.R. 18). The ALJ’s step two determination is undisputed.

8 3. Step Three: Presence of Listed Impairment(s) 9 The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 18). Neither party disputes the ALJ’s determination at this step.

13 4. Step Four: Capacity to Perform Past Relevant Work 14 The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b), subject to the following additional limitations: [Plaintiff] can lift and carry 20 pounds occasionally and 10 17 pounds frequently. She can stand and walk for 6 hours in an 18 8-hour day. She can sit for 6 hours in an 8-hour day. The claimant can occasionally climb, balance, stoop, kneel, crouch 19 and crawl. The claimant can occasionally reach overhead with 20 the right upper extremity. She must avoid concentrated exposure to extreme cold and vibrations. (A.R. 19). After considering Plaintiff’s RFC, the ALJ determined that Plaintiff is able to perform her past relevant work as a computer programmer. (A.R. 22). Plaintiff disputes this determination, asserting that the ALJ improperly discounted her symptom testimony and the opinions of treating providers.

5. Step Five: Capacity to Perform Other Work The ALJ did not make alternative findings at step five.

1 C. The ALJ Provided Specific, Clear, and Convincing Reasons for Discounting Plaintiff’s Testimony When evaluating the credibility of a plaintiff’s testimony regarding subjective pain or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 4 586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The plaintiff does not have to show that the impairment could reasonably be expected to cause the severity of the symptoms. Rather, a plaintiff must only show that it could have caused some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

If a plaintiff meets the first step, and there is no affirmative evidence of malingering, the ALJ can only reject a plaintiff’s testimony about the severity of his or her symptoms by offering specific, clear, and convincing reasons. Lingenfelter, 504 F.3d at 1036. The ALJ cannot rely on general findings. The ALJ must identify specifically what testimony is not credible and what evidence undermines the plaintiff’s complaints. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). In weighing a plaintiff’s credibility, the ALJ can consider many factors including: a plaintiff’s reputation for truthfulness, prior inconsistent statements concerning the symptoms, unexplained or inadequately explained failure to seek treatment, and the plaintiff’s daily activities. Smolen, 80 F.3d at 1284; see also 20 20 C.F.R. § 404.1529(c)(4) (Social Security must consider whether there are conflicts between a claimant’s statements and the rest of the evidence).

Here, the ALJ found that Plaintiff’s medically determinable impairments could reasonably be expected to cause her alleged symptoms, but concluded that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (A.R. 20). As discussed below, the ALJ did not commit harmful error in discounting Plaintiff’s symptom testimony.

1 The ALJ gave several reasons for finding Plaintiff’s testimony not credible. The ALJ first explained that Plaintiff’s subjective complaints are not supported by and are inconsistent with the medical evidence. (A.R. 20). As referenced in the ALJ’s decision, treatments notes reflect mild limitations in Plaintiff’s examinations. (Id.). The ALJ also referenced records showing that trigger point injections provided relief and decreased the severity of Plaintiff’s pain by 20%-70%. (Id.).

7 After reviewing the record, the Court finds that the ALJ reasonably concluded that there is a lack of objective evidence in the record supporting Plaintiff’s claimed limitations.

9 Further, the ALJ did not rely solely on the lack of supporting medical evidence in making his credibility determination. As discussed below, the ALJ gave other clear and convincing reasons to discount Plaintiff’s credibility concerning the severity and limiting effects of her pain. Thus, the ALJ properly considered the lack of objective medical evidence supporting Plaintiff’s claimed limitations as one of the factors in weighing Plaintiff's credibility. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the evidence is still a relevant factor in determining the severity of the claimant’s pain and its disabling effects.”) (citing 20 C.F.R. § 18 404.1529(c)(2)).

19 The ALJ also observed that the record reflects that Plaintiff received conservative treatment. (A.R. 21). Routine, conservative treatment can be sufficient to discount a claimant’s subjective testimony regarding the limitations caused by an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th Cir . 2007) (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an impairment.”); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir . 1999) (rejecting subjective pain complaints where claimant’s “claim that she experienced pain approaching the highest level imaginable was inconsistent with the ‘minimal, conservative treatment’ that she received”); Tommasetti, 533 F.3d at 1039-40 (an ALJ may infer that pain is not disabling if a claimant seeks only minimal conservative treatment).

1 As another reason for discounting Plaintiff’s symptom testimony, the ALJ stated that Plaintiff’s allegations are inconsistent with her level of daily activity. (A.R. 21). Daily living activities may provide a basis for discounting subjective symptoms if the plaintiff's activities either contradict his or her testimony or meet the threshold for transferable work skills. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012), superseded by regulation on other grounds. A claimant, however, need not be utterly incapacitated to receive disability benefits, and completion of certain routine activities is insufficient to discount subjective symptom testimony. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).

10 In his decision, the ALJ recounts that Plaintiff testified that she “takes weekly walks at the park for ½ hour, visits the steam room at her gym, is able to drive and is able to complete chores. Additionally, the claimant also testified she walks door to door discussing the Bible with others, as she is a Jehovah’s Witness.” (A.R. 21). The ALJ’s decision cites records in which Plaintiff reported that she went on a 14-mile bike ride during the relevant period and can use stairs with minimal pain. (A.R. 21, 732). The Court finds that substantial evidence in the record supports the ALJ’s conclusion that Plaintiff’s daily activities are inconsistent with her allegations. The ALJ did not err in discounting her symptom testimony on that basis. See Tommasetti, 533 F.3d at 1039 (“[T]he ALJ doubted Tommasetti’s testimony about the extent of his pain and limitations based on his ability to travel to Venezuela for an extended time to care for an ailing sister. The ALJ could properly infer from this fact that Tommasetti was not as physically limited as he purported to be.”); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (upholding denial of disability benefits where claimant could “take care of her personal needs, prepare easy meals, do light housework, and shop for some groceries”); see also Molina, 674 F.3d at 25 1113 (“Even where [daily] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a totally debilitating impairment.”).

28 It is not the Court’s role to second guess an ALJ’s decision to disbelieve a Plaintiff's allegations. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“An ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking . . . .”). Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld. Morgan, 169 F.3d at 599.

5 The Court finds that the reasons provided by the ALJ for discrediting Plaintiff's testimony are specific, clear, convincing, and are supported by substantial evidence in the record.

7 The Court therefore finds that the ALJ did not err in discrediting Plaintiff’s symptom testimony.

9 D. The ALJ Provided Valid Reasons for Discounting the Opinions of Arturo Castro, D.O.

In weighing medical source opinions in Social Security cases, there are three categories of physicians: (i) treating physicians, who actually treat the claimant; (ii) examining physicians, who examine but do not treat the claimant; and (iii) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must provide clear and convincing reasons that are supported by substantial evidence for rejecting the uncontradicted opinion of a treating or examining doctor. Id. at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician’s opinion in favor of another physician’s opinion without first providing specific and legitimate reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a whole); see also Batson, 359 F.3d at 1195; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti, 533 F.3d at 1041 (finding it not improper for an ALJ to reject a treating physician’s opinion that is inconsistent with the record).

Arturo Castro, D.O., Plaintiff’s treating sleep specialist, completed a Fatigue Residual Functional Capacity Questionnaire. (A.R. 770). Dr. Castro stated that Plaintiff suffers from “moderately severe” fatigue, which is sufficiently severe enough to “constantly” interfere with attention and concentration. (Id.). Dr. Castro also stated that Plaintiff frequently experiences “deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner” and must nap during the day.

2 (Id.). Finally, Dr. Castro opined that Plaintiff is unable to sustain fulltime work. (Id.).

3 The ALJ gave little weight to Dr. Castro’s opinions, explaining that Dr. Castro’s examination notes do not mention fatigue or Plaintiff’s inability to work. (A.R. 21). The ALJ also stated that Dr. Castro’s “physical examinations show normal findings of [Plaintiff’s] appearance, her neck, respiratory and cardio findings were normal, and her neurological findings were oriented to person, place and time (Exhibit 13F/3, 7-8, 17F/3, 8).” (Id.). The ALJ also observed that Dr. Castro’s treatment records indicate that he was treating Plaintiff for insomnia, which was well-controlled with Ambien. (Id.). Finally, the ALJ observed that Dr. Castro’s opinion is based mostly on Plaintiff’s self-report. (Id.).

11 The ALJ reasonably concluded that Dr. Castro’s opinions are not supported by his treatment notes. Dr. Castro’s treatment records reveal relatively mild limitations that were well-treated with medication. (A.R. 720-29, 783, 786, 788). Dr. Castro found that Plaintiff slept reasonably well on melatonin and Ambien. (A.R. 783). Further, he found that a sleep study showed no sleep apnea, no sleep walking, and normal REM sleep. (A.R. 788). The Court finds that the ALJ provided specific and legitimate reasons supported by substantial evidence in the record for assigning little weight to Dr. Castro’s opinions.

18 E. The ALJ Provided Germane Reasons Supported by Substantial Evidence for Rejecting the Opinions of Plaintiff’s Treating Physical Therapists A source that is not an acceptable medical source is considered to be an “other source.” 20 CFR 404.1513(d). “Other sources” include nurse practitioners, therapists, and lay witnesses. 20 CFR § 404.1513. Information from these “other sources” must still be considered even though the information cannot establish the existence of a medically determinable impairment. Id. An other source’s opinion can be rejected as long as the ALJ provides “germane” reasons, such as finding that the opinion is inconsistent with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

On May 9, 2018, Plaintiff’s two physical therapists, Kayla Sibbaluca and Jennifer Larson, DPT3 completed a Pain Functional Capacity Questionnaire. (A.R. 793-94). Ms. Sibbaluca and Dr. Larson opined that Plaintiff has “moderately severe” pain that is “often” sufficiently severe to interfere with attention and concentration. (A.R. 793).

4 Ms. Sibbaluca and Dr. Larson also completed a Medical Assessment of Ability to Do Work Related Physical Activities. (A.R. 795-97). The Medical Assessment states that Plaintiff has been diagnosed with arthritis in both shoulders, a bone spur in her right shoulder, bone spur in her right knee, and iliotibial band syndrome in her right knee. (A.R. 795). Ms. Sibbaluca and Dr. Larson opined that Plaintiff has a number of limitations, including that Plaintiff can occasionally and frequently lift and/or carry fifteen pounds on her right side, can stand and/or walk for less than two hours in an eight hour work day, can sit for less than six hours in an eight hour work day, and must alternate between sitting every forty-five minutes. (Id.).

13 The ALJ afforded Ms. Sibbaluca and Dr. Larson’s opinions little weight, explaining that “they are inconsistent with the general treatment record” and are inconsistent with Plaintiff’s “statements that she goes to the gym to exercise her knee and is able to go on long bike rides[.]” (A.R. 22). Reading the ALJ’s opinion as a cohesive whole, the Court may reasonably infer the medical evidence that the ALJ relied on in drawing this conclusion. See Magallanes, 881 F.2d at 755 (courts may draw specific and legitimate inferences from the ALJ’s opinion). The Court finds that the ALJ provided germane reason supported by substantial evidence in the record for rejecting the Ms. Sibbaluca and Dr. 22 3 The record indicates that Jennifer Larson is a Doctor of Physical Therapy. (A.R. 794). However, such a position is not an “acceptable medical source” as defined by the Social Security regulations. See Austin v. Colvin, No. 1:15-CV-00015-REB, 2017 WL 24 1201757, at *4 (D. Idaho Mar. 31, 2017) (“[A]lthough Dr. Wright is referred to as a Doctor of Physical Therapy, such a position is not an “acceptable medical source” as defined by the Social Security regulations.”). Plaintiff concedes that Dr. Larson is considered an “other source” under the Social Security regulations. (Doc. 13 at 20-21).

1 || Larson’s opinions.

2 III. CONCLUSION 3 Based on the foregoing, 4 IT IS ORDERED affirming the decision of the Commissioner of Social Security.

5 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || accordingly.

7 Dated this 30th day of September, 2020.

10 Honorable Eileen S. Willett 1 United States Magistrate Judge -12-