Opinion
CV-20-00320-TUC-JGZ (DTF)
09-23-2021
Diane Maureen Henry, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
Plaintiff Diane Henry (Henry) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision by the Commissioner of Social Security (Commissioner) that found she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 25, 26, 34.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 15.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends the District Court, after its independent review, affirm the decision of the Commissioner because the ALJ's decision properly included sufficient reasons, which were supported by substantial evidence.
I.BACKGROUND
Henry was born in 1961. (AR 36, 250.) She has a high school education and was a credit from earning her associate degree. (AR 36.) She worked various sedentary to light, semiskilled to skilled jobs, including patient admitting clerk, call center customer service representative, retail manager, account manager, and customer service billing insurance clerk. (AR 38, 48, 288, 315.)
In March 2016, Henry was on medications for her hypertension and diabetes, the former of which was well controlled. (AR 421, 426.) Later, medications were able to control Henry's diabetes, as well. (AR 751.)
In September 2016, Henry applied for Social Security Disability Insurance and Supplemental Security Income alleging disability beginning June 16, 2016. (AR 14, 250-61.) Henry alleged she was disabled because of the following conditions: degenerative disc disease, obesity, type II diabetes, diabetic neuropathy, hypertension, umbilical hernia, mitral valve prolapse, hypothyroidism, and depression. (AR 286.) On January 18, 2017, Henry's claims were initially denied. (AR 95-96.) On June 6, 2017, her claims were denied on reconsideration. (AR 129-30.) She then filed a request for a hearing. (AR 155.) On November 14, 2018, Administrative Law Judge (ALJ) Laura Speck Havens held an initial administrative hearing. (AR 34.) On May 1, 2019, the ALJ held an additional administrative hearing. (AR 54.)
In October 2016, Henry submitted an adult function report. (AR 305, 313.) She reported shortness of breath and pain in her legs, back, and hips. Id. She could do chores with her adult son's help. (AR 306, 308.) She also alleged she no longer had energy or interest in doing things she used to enjoy, such as crafting or cooking large meals. (AR 309.) Henry said she could only walk half a block before requiring a ten-to-fifteen-minute rest. (AR 310.)
Around the same time, Henry's niece Linda Solle filled out a third-party function report. (AR 297.) She reported Henry had some function but noted it had drastically decreased. (AR 297-99.) She also described that Henry's grown son helped her with most of the chores. Id. In November 2018, Solle sent a letter to the ALJ describing her aunt's physical condition and Solle's qualifications to comment. (AR 365-67.) She outlined Henry's condition and need for rest and changed position often during the day. (AR 366.)
In May 2017, Jeri Hassman, MD, evaluated Henry. (AR 583.) Henry told Dr. Hassman that missing work because of repairs to her house caused her to lose her last job. Id. After a physical exam, Dr. Hassman concluded Henry would have limitations for at least twelve consecutive months. (AR 586.) Dr. Hassman determined Henry could occasionally lift and carry twenty pounds. (AR 587.) Dr. Hassman also resolved that in an eight-hour workday Henry could stand and walk for four hours and could sit for six to eight hours. Id. Dr. Hassman listed no limitations in reaching, handling, fingering, or feeling, but noted Henry could never climb or kneel. (AR 588.) According to Dr. Hassman, Henry could occasionally stoop, crouch, or crawl. Id.
In August 2017, after a sleep study, Henry was diagnosed with severe sleep apnea and was told to use a continuous positive airway pressure (CPAP) machine. (AR 882.) On September 26, 2017, Henry underwent weight-loss surgery and had a sleeve gastrectomy placed. (AR 770.) This surgery had been recommended as early as February 2016. (AR 418.) The surgery had no complications, and Henry was stable afterwards. (AR 771.) Between January 2016 and her surgery, Henry had lost twenty-one pounds bring her BMI from 50 to 47.24. (AR 770.) In the year after the surgery, Henry lost an additional forty-seven pounds bring her BMI to 37.9 on November 6, 2018. (AR 1054.) This was a total weight loss of sixty-eight pounds. (AR 770, 1054.)
From June 27 to August 16, 2018, Henry went to physical therapy for her lower back pain. (AR 610.) She reported she could take care of herself normally but noted it did increase her pain. (AR 624.) She also stated pain prevented her from walking more than a mile, sitting for more than half an hour, or standing for more than half an hour, and from performing anything but light duties. (AR 624-25.) Her performance in physical therapy seemed to improve, but she still needed frequent breaks. (AR 614.)
In August 2018, Efrain Cubillo IV, MD, started to treat Henry for her pain. (AR 599.) Eventually, he performed a lumbar medial branch block. (AR 1040.) This provided Henry with sufficient relief to indicate Dr. Cubillo should perform a lumbar radiofrequency rhizotomy, which he did. (AR 1034.) This provided 60-70% pain relief about six weeks later. (AR 1028.) On March 13, 2019, Dr. Cubillo filled out a checklist evaluation of Henry. (AR 1044-45.) It said her pain level was moderate because “[p]ain affects, but does not preclude ability to function.” (AR 1044.) He said the pain was affected by changing weather, movement or overuse, stress, humidity, and static position. Id. He also determined that pain often interfered with Henry's attention and concentration, which would often present deficiencies in concentration, persistence, or pace. (AR 1044-45.) There was no indication of the expected duration of these limitations. Id.
In September 2018, surgeons repaired Henry's hernias. (AR 721-29.) The surgery was completed without complications. (AR 728.) In October 2018, an MRI showed “multilevel small disc protrusions [with] no significant central or neuroforaminal stenosis throughout the cervical spine.” (AR 664.)
At the November 2018 hearing, Henry and a Vocational Expert (VE) testified. (AR 33-35, 47.) Henry testified about her past work experience and capabilities. (AR 38-42.) She reported feeling a constant “jabbing burning” pain in her lower back that “circulates” into her front and legs. (AR 44-45.) She also explained that her depression bothered her because her diabetic neuropathy would only deteriorate. (AR 45.) Henry described her stiff neck, multi-level disc degenerative disease, and bulging disc. (AR 46-47.) She claimed to be unable to walk for more than fifteen minutes without stopping and sitting or leaning against a wall, sit for more than twenty minutes at a time, and lift more than five pounds. (AR 44.) She also testified that at her “last visit, ” which was not in the ALJ's record yet, the doctor talked about her potentially needing a walker in the future. Id. She also described some side effects from the gabapentin prescription, such as drowsiness, constipation, and nausea. (AR 39, 43.) The VE testified that a person fitting the ALJ's hypothetical could still work most of Henry's previous jobs. (AR 49.) At the end of the hearing, the ALJ sent Henry for an internal evaluation and closed the hearing. (AR 50.)
In December 2018, Vladyslav Revin, MD, examined Henry. (AR 1011.) Dr. Revin documented Henry's complaints of numbness, tingling, and burning feeling. Id. After a series of tests and observations, Dr. Revin concluded Henry had no limitations on sitting, standing, walking, carrying, squatting, reaching, handling, feeling, grasping, or communicating. (AR 1014-20.) He listed that Henry had limitations in lifting and bending. (AR 1019.) He indicated she could continually lift and carry twenty pounds and could occasionally lift fifty pounds. (AR 1022.) He opined Henry could sit for six hours at a time, stand for one hour at a time, and walk for one hour at a time. (AR 1023.) He also noted that in an eight-hour workday Henry could sit for six hours, stand for two hours, and walk for two hours. Id.
In April 2019, Henry saw a pain specialist and reported burning in her thighs after bending over to pick something up. (AR 1070.) She said her pain fluctuated between a nine and ten on a scale of ten. Id. The specialist advised her to use heat or ice and muscle relaxants and to try a massage. (AR 1072.) In May, an MRI showed mild disc bulging at multiple levels including a protrusion contacting the L3 nerve. (AR 1073.)
At the May 2019 hearing, Henry and VE John Komar testified. (AR 53-55, 57.) Henry described her worsening condition. (AR 55-57.) VE Komar testified there were jobs available for Henry based on the ALJ's hypothetical limitations. (AR 61-62, 66.) He provided the following examples: account manager, customer service representative, insurance billing customer service, hospital administrator, and hospital admitting clerk. (AR 62, 66.) The VE stated that, if the person could not be exposed to fumes, smoke, or dust, there would be no positions available. (AR 64.) The VE also testified “the person would not be able to perform any work satisfactorily if they're going to be off task for fifteen percent or more [of the time].” (AR 67.)
On June 14, 2019, the ALJ issued her unfavorable decision. (AR 11.) At step one, she determined Henry had not engaged in substantially gainful activity since June 16, 2016. (AR 16.) At step two, the ALJ concluded Henry suffered from the following severe impairments: degenerative disc disease, type II diabetes mellitus, morbid obesity improved after gastric bypass, and essential benign hypertension. Id. She considered Henry's history of umbilical hernia, mitral valve prolapse, hypothyroidism, or sleep apnea to be non-severe. (AR 17.) At step three, the ALJ found Henry did not have an impairment or combinations of impairments that meets or is equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, App. 1. (AR 20.)
Between steps three and four, the ALJ determined Henry had a residual functional capacity to perform light work, except she could only stand and walk for one hour at a time or for maximum two hours in an eight-hour day. (AR 21.) Further, the ALJ stated Henry could not climb ladders, ropes, or scaffolding, but she could frequently climb ramps or stairs. Id. The ALJ also concluded Henry could frequently balance, occasionally stoop, kneel, crouch, or crawl, be exposed to moving machinery, and never be exposed to extreme temperatures. Id.
The ALJ credited opinions by consulting internists Drs. Hassman and Revin. Id. The ALJ rejected the fill-in form by Dr. Cubillo because it was unsupported by the record, was inconsistent with treatment notes, failed to “include an assessment of onset date for when the claimant would have first had these indicated limitation, or any specific 12-month period to satisfy the durational requirements.” (AR 21-22.) She remarked that “the record does not document any advice for back surgery” after stating “a doctor's opinion of complete disability that is disproportionate to that doctor's prescription of conservative treatment has been found to be a sufficient reason for rejecting that opinion.” (AR 22.)
The ALJ also found Henry's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] 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.” (AR 24.) The ALJ pointed to improvement of Henry's morbid obesity after her gastric bypass and back pain after radio frequency ablation and medical branch block procedures. (AR 22.) The ALJ referred to records indicating Henry had “retired from work, ” which caused the ALJ to question Henry's motivation to seek work. (AR 23.) Additionally, the ALJ remarked that the record lacked any mention of a recommendation for a walker, mental health treatment, assessments of any significant mental limitations, or complaints regarding medication side effects of any durational nature. Id. The ALJ reasoned Solle's third-party function report and letter did not address medical improvement following Henry's gastric bypass, lack of mental health treatment referrals, or lack of evidence showing a need for an assistive device for walking or standing. Id.
At step four, the ALJ concluded Henry could perform her past relevant work as an account manager, customer service representative, medical assistant, administrative clerk, insurance billing clerk, hospital admissions clerk, and pharmacy technician. (AR 24.) These jobs do not require performance of work-related activity outside Henry's RFC. Id.
On May 27, 2020, the Appeals Council denied Henry's request for review. (AR 1-3.) On July 29, 2020, Henry filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to § 405(g).
II. ISSUES ON REVIEW
Henry raises two issues. (Doc. 25.) First, she argues the ALJ rejected the opinion of her treating pain management specialist absent specific and legitimate reasons. Id. at 1, 10-19. Second, she contends the ALJ rejected her symptom testimony absent specific, clear, and convincing reasons. Id. at 1, 20-24.
III. STANDARD OF REVIEW
Courts review only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A person is disabled if their “physical or mental impairment or impairments are of such severity” that they are unable to do both their previous work and, considering their “age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists” in their immediate area, whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
Courts may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney ex rel. Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence supporting as well as detracting from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, it was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “A reviewing court may only consider the reasons provided by the ALJ in the disability determination and ‘may not affirm the ALJ on a ground upon which he did not rely.'” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot “affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally” (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))); see also Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015).
IV. DISCUSSION
Rejecting Treating Pain Management Specialist's Opinion
Henry argues the ALJ committed legal error by failing to provide specific and legitimate reasons for rejecting Dr. Cubillo's assessment of her abilities. (Doc. 25 at 19.) The Commissioner rejoins that the ALJ properly rejected Dr. Cubillo's opinion because it was a conclusory checklist questionnaire without any explanation, conflicted with treatment notes, and failed to include any durational requirement. (Doc. 26 at 13-15.)
“To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (alteration in Ryan) (quoting Ryan v. Comm'r of Soc. Sec, 528 F.3d 1194, 1198 (9th Cir. 2008)). “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (quoting Ryan, 528 F.3d at 1198). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Id. (quoting Magallanes, 881 F.2d at 751).
On March 13, 2019, Dr. Cubillo opined in a Pain Functional Capacity (RFC) Questionnaire that Henry's moderate pain would often interfere with her attention and concentration and would often result in failure to complete tasks in timely manner. (AR 1044-45.) This opinion lacked any statement on duration or onset. Id. That day, Dr. Cubillo reported Henry's thought processes were not impaired and there had been no demonstrated abnormalities in her attention. (AR 1032.) He also reported Henry had tender facet joints and noted the previous MRI showed “multilevel discogenic narrowing degeneration lower lumbar facet arthropathy L2-3” with “small right posterior lateral disc protrusion abutting the right L3 nerve root without cord compression.” (AR 1029, 1031.)
The ALJ rejected Dr. Cubillo's Pain Functional Capacity (RFC) Questionnaire. (AR 22.) Specifically, the ALJ stated:
The record includes such an unsupported fill-in form dated March 13, 2019. On that form, Dr. C[u]billo made no effort to
correlate his check marks such as that the claimant would “often” experience problems with concentration, persistence, or pace, even with the treatment notes he had made on the same exact day, which were grossly within normal limits (See, Ex. 23F, pp. 4-5). In addition, as noted above, the fill-in form by Dr. C[u]billo neglected to include an assessment of onset date for when the claimant would have first had these indicated limitations, or any specific 12-month period to satisfy the durational requirements of the Act. For all of these reasons, the undersigned rejects and accords no reliance at all to the fill-in form submitted by Dr. C[u]billo on March 13, 2019.Id. The ALJ also described Dr. Cubillo's opinion as “disproportionate” to the conservative treatment provided to Henry. Id.
Both parties argue the Court should apply the lower standard for contradicted treating attorney. (Doc. 25 at 10-19; Doc. 26 at 11.) The ALJ provided several reasons for rejecting Dr. Cubillo's opinion. Rather than cite binding Ninth Circuit precedent, the Defendant urges this Court to follow their preferred lower standard, only acknowledging in footnotes the correct standards. (Doc. 26 at 11 n.5, 16 n.7.) The Court declines to follow Defendant's invitation to commit error. The Commissioner also fails to respond to most of the arguments made by Plaintiff in her opening brief. Neither of these actions is helpful.
The Commissioner asserts the opinion could be rejected because it is a conclusory, “check-the-box” questionnaire. (Doc. 26 at 14.) Such opinions may only be rejected if unsupported by the record as a whole or by objective medical findings. Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). Henry argues Dr. Cubillo's opinion was not contradicted by the treatment notes-not that it was supported by them. (Docs. 25, 34.) The questionnaire considered Henry's ability to respond and perform with pain in a work setting. (AR 1045.) The ALJ and the Commissioner point to treatment notes about Henry's attention or concentration during her visits. (AR 22; Doc. 26 at 13.) The treatment notes did not indicate how Henry would perform in a work environment fulltime; they indicated how Henry performed during the short treatment appointment. However, as the opening brief points out, “The absence of evidence is not evidence.” (Doc. 25 at 15 (citing Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993)).) The record absolutely supports the responses to the first three questions because Henry reported feeling pain since at least 2015. (AR 443, 592, 1028.) The response to the fourth question is arguably supported by the record as well. (AR 660, 1028.) However, the medical records do not indicate the level to which the pain would interfere with Henry's attention and concentration, resulting in failure to timely complete tasks. Thus, the crucial responses to the last two questions lack any support within the record. (AR 1044-45.) The opinion for those questions was a conclusory, check-the-box questionnaire that is unsupported by the record and was properly rejected. See Burrell, 775 F.3d at 1140.
The ALJ and Commissioner assert that Dr. Cubillo's opinion was inconsistent with his treatment notes from the same day. (AR 22; Doc. 26 at 13.) Henry argues that the notes during the appointment and the questionnaire are not comparable. (Doc. 25 at 11-12.) She attacks the ALJ for comparing the “[m]ental status review” during the appointment with the questionnaire. Id. at 11. The Court agrees that routine office visits do not compare with capacity to function in a work setting.
Henry further attacks the criticism that the questionnaire did not match the medical records on three counts. Id. at 12. First, Henry argues that treatment records are not there to provide evidence for disability, but to promote communication and recordkeeping. Id. Second, time-limited examinations do not correlate with functioning in a work environment. Id. at 13. Third, the record does not show that Henry was “grossly within normal limits” as the ALJ asserts, pointing to tender facet joints, positive fact loading maneuvers and the diagnoses. Id. The Court agrees with these reasons and would find the ALJ erred to rely on them to reject Dr. Cubillo's opinion.
The ALJ implies that Dr. Cubillo's opinion of “complete disability” was disproportionate because Dr. Cubillo did not advice Henry to have back surgery. (AR 22.) Henry also contends that this overstepped the ALJ's authority. (Doc. 25 at 13-14.) Henry argues that “Dr. Cubillo did not furnish just an ‘opinion of complete disability.'” Id. at 13.) The Court agrees. Dr. Cubillo opined that Henry's pain would “often” result in a failure to complete tasks in a timely manner. (AR 1045.) But more importantly, according to Henry, the ALJ was not qualified to prescribe a course of treatment that “detracted from Dr.
Cubillo's assessment of work-related limitations.” (Doc. 25 at 14.) Further, it was error for the ALJ to claim this was disproportionate because Dr. Cubillo did not advise back surgery; instead, the ALJ must explain her reasoning and is not qualified as a medical expert. See Leusch v. Berryhill, 358 F.Supp.3d 896, 906 (D. Ariz. 2019) (citing Trevizo v. Berryhill, 871 F.3d 664, 683 (9th Cir. 2017); Day, 522 F.2d at 1156).
The Commissioner and ALJ point to the lack of onset date or duration in Dr. Cubillo's assessment. (AR 22; Doc. 26 at 15.) Henry asserts that Dr. Cubillo's assessment did not need to specify an onset date or a duration of the limitations because there is no reason to support the implied rationale that the assessment did not cover the relevant period of disability. (Doc. 25 at 15.) The Commissioner cites Stuck v. Saul, 843 Fed.Appx. 970, 971 (9th Cir. 2021), and Mae v. Saul, No. 1:19-CV-03061, 2020 WL 3620092, at *11 (E.D. Wash. Mar. 6, 2020), to argue that Dr. Cubillo was required to put a durational estimate in his opinion for it to be accepted. (Doc. 26 at 15.) These cases require a physician to affirmatively indicate a duration when there is indication that the limitation is narrow. In Stuck, the physician rendered the opinion after strenuous activity when the symptoms were exacerbated. 843 Fed.Appx. at 971. In Mae, the physician specifically stated that the limitation would not be permanent. 2020 WL 3620092, at *11. Here, Dr. Cubillo did not limit his opinion and provided it when Henry was feeling 60-70% pain relief from the previous pain intervention. (AR 1028.) The cases cited by Commissioner are distinguishable from the case before this Court. The pain in Henry's back had been present for more than a year and Henry was receiving some relief when the opinion was rendered. (AR 592, 1028.) This was not a specific or legitimate reason to reject Dr. Cubillo's opinion; thus, the ALJ erred by relying on it.
Henry also argues that the consultative examiners were insufficient to reject Dr. Cubillo's opinion because their examinations “were insufficient under the agency's standards.” (Doc. 25 at 16.) First, Henry contends the agency failed to provide the “necessary background information” on Henry's condition to the consultative physicians. Id. (quoting 20 C.F.R. § 404.1517). The Commissioner did not respond to this argument. (Doc. 26.) It is unclear what documents or background information was provided to the consultative examiners before the examination. (AR 583-88, 1011-27.) The physicians to not reference any MRI or other test performed outside of their consultation. Id. This Court concludes that the ALJ violated the applicable regulations, § 404.1517, by failing to provide records to the consultative physicians. See Peacock v. Comm'r of Soc. Sec. Admin., No. CV-17-00523-PHX, 2018 WL 2753151, at *7 (D. Ariz. June 8, 2018) (finding ALJ did not comply with regulations by failing to provide medical records to consultative physician).
Second, Henry asserts the ALJ failed to recognize that the consultative physicians' opinions contradicted one another and that Dr. Revin's opinion even contradicted itself. (Doc. 25 at 16.) The ALJ “accepted the standing and walking restrictions as assessed by consultative internist Dr. Hassman (Ex. 13F) and Dr. Revin (Ex. 22F).” (AR 21.) Dr. Hassman opined that Henry could stand and/or walk for “2-4 hours in an 8 hour day (4 hours)” and could sit for “6-8 hours in an 8 hour day.” (AR 587.) Dr. Ravin, first, stated that Henry had no limitation on her ability to sit, stand, or walk. (AR 1019.) He then concluded that, in an eight-hour day, Henry was limited to six hours of sitting, two hours of standing, and two hours of walking. (AR 1023.) The ALJ did not reconcile any of these contradictions or even note them. (Doc. 21.) The ALJ erred in using these physician's opinions to discount Dr. Cubillo's without accurately describing them or failing to note contradictions. Cf. Garrison, 759 F.3d at 1016 (explaining ALJ erred in mischaracterizing testimony of plaintiff).
Having determined the ALJ erred in some of the reasons she provided for rejecting Dr. Cubillo's assessment, the Court must determine if the errors were harmless. See Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d at 1038). Because the ALJ provided a specific and legitimate reason for discounting Dr. Cubillo's opinion, the other errors are harmless. See Reed v. Saul, 834 Fed.Appx. 326, 329 (9th Cir. 2020).
Hence, the District Court should affirm the ALJ's rejection of Dr. Cubillo's assessment. The ALJ provided a sufficient reason and, the error in the other reasons was harmless. See id. Rejecting Henry's Symptom Testimony
For an ALJ to discredit a claimant's testimony they must complete a two-step analysis. Trevizo, 871 F.3d at 678. “First, 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.'” Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Second, if “there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). This requires more than general findings. Burrell, 775 F.3d at 1138 (“General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996))). Thus, “[t]o support a lack of credibility finding, the ALJ [is] required to point to specific facts in the record.” Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)).
Here, the ALJ determined Henry's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” except for the mental health symptoms because “the record documents no mental health treatment for the claimant or clinical assessments of any significant mental limitations.” (AR 23-24.) However, she still discounted Henry's “statements concerning the intensity, persistence and limiting effects of these symptoms” because they were “not entirely consistent with the medical evidence and other evidence in the record.” (AR 24.)
Earlier in the decision, the ALJ had discussed improvements in Henry's health, such as losing weight after her surgery or her reduced pain after Dr. Cubillo's treatments. (AR 22.) She also questioned Henry's motivation to seek work after she was documented as “retired from work.” (AR 23.) She also pointed to discrepancies between Henry's testimony and the medical records, such as Henry testifying that she may need a walker and that she had side effects from her medication and the general reports indicating Henry maintained a normal gait and the lack of recommendation for assistive device or specific side effects from Henry's medication. Id. The ALJ also described Henry's daily activities as “relatively full and grossly normal, including the ability to drive a motor vehicle, read, regularly attend mass, prepare simple meals, do light cleaning, shop in stores, use a phone and computer, pay bills, and handle bank accounts.” Id.
Neither the ALJ nor the Commissioner has asserted Henry was malingering; thus, the ALJ needed to provide “specific, clear and convincing reasons” for rejecting Henry's testimony about the severity of her symptoms. See Garrison, 759 F.3d at 1014-15. By requiring that the statements about intensity, persistence, and limiting effect be “entirely consistent with the medical evidence, ” the ALJ held Henry to a higher standard than appropriate. See Lacy v. Comm 'r of Soc. Sec. Admin., No. CV-18-04117-PHX, 2020 WL 1285948, at *1-2 (D. Ariz. Mar. 18, 2020), amended on reconsideration on other grounds by No. CV-18-04117-PHX, 2020 WL 2465706 (D. Ariz. May 13, 2020). The Court will still consider if the ALJ provided specific, clear and convincing reasons for discounting Henry's statements.
The ALJ's general finding that Henry's statement about intensity, persistence, and limiting effect were not consistent with the medical record is insufficient. See Burrell, 775 F.3d at 1138. The ALJ also pointed to a three reasons for discounting Henry's credibility: Henry's inconsistent statements, improvements to Henry's conditions, and Henry's daily activities. (AR 22-23.) Those are the only reasons the Court will consider. See Luther, 891 F.3d at 875.
Inconsistencies
ALJs are permitted to use “ordinary techniques of credibility evaluation, ” such as inconsistent statements. Tommasetti, 533 F.3d at 1039. Here, the ALJ noted three inconsistencies: report of potentially needing a walker, medication side effects, and Henry claiming she was retired. (AR 23.)
First, during the November hearing, Henry testified she had recently fallen and the doctor had told her she may need a walker in the future. (AR 44.) The ALJ noted that this is not in the administrative record (AR 23.) The Court could not find reference to any recommendation for a walk. This is an inconsistency indicating Henry is not credible.
Second, Henry reported her medication made her drowsy during the first hearing. (AR 42.) Again, as the ALJ correctly points out, this is not documented in the record. (AR 23.) The Court agrees that the record lacks any complaint of durational side effects from Henry's medication.
Third, the ALJ discussed the records listing Henry as retired from work. Id. This made the ALJ “question[] the motivation of an individual to seek work, when they are already utilizing this phrase as identity.” Id. The Court agrees Dr. Cubillo's records report Henry had been retired. (AR 947, 1029, 1033.) This is an inconsistency from her argument that she had been terminated because of her illness. (AR 36.)
The ALJ provided three inconstancies between Henry's statements and the record; suggestion that Henry would need a walker, negative medication side effects, and Henry claiming she was retired. The ALJ was permitted to rely on ordinary techniques of credibility evaluation, such as inconsistent statements. See Tommasetti, 533 F.3d at 1039. The ALJ did not err by relying on this and it provided a specific, clear and convincing reason to discount Henry's credibility. Thus, this Court would recommend finding the ALJ did not err in this reasoning.
Improvements
An ALJ may discount a claimant's testimony about the severity of her symptoms if her condition responds favorably to conservative treatment, see Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (discounting symptom testimony where claimant's knee pain was treated with over-the-counter pain medication), or if she fails to seek more aggressive treatment for her allegedly severe condition, see Tommasetti, 533 F.3d at 1039 (discounting symptom testimony where claimant “did not seek an aggressive treatment program”).
The ALJ cited improvements in Henry's weight and back pain. (AR 22.) It is true Henry lost a significant amount of weight after her surgery. (AR 642 (showing fifty-eight-pound loss).) Henry even admitted she had lost a significant amount of weight. (AR 43.) The ALJ also stated Henry's back pain was “better” and Henry “was starting to walk again for continued weight loss.” (AR 22 citing AR 1049-50.) The medical record reports Henry “state[d] her back pain is better and wants to start walking again.” (AR 1049.) The ALJ, thus, characterized that Henry was walking, but the actual record shows she merely wished to start walking. This difference is crucial because it is the difference in her ability and her desire. It does not show that Henry could start walking. Neither the ALJ nor the Commissioner showed that these improvements were sustained.
The Court finds this to be insufficient to discount Henry's credibility. It was not linked with her actual statements and also mischaracterized the medical records. Hence, the ALJ erred in using this to discredit Henry's credibility.
Daily Activities
An ALJ may rely upon a claimant's daily activities to reject the claimant's symptom testimony if the activities either contradict the symptom testimony or involve skills that could be transferred to the workplace. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The Ninth Circuit has said “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations, ” and have held that “[o]nly if [her] level of activity were inconsistent with [a claimant's] claimed limitations would these activities have any bearing on [her] credibility.” Garrison, 759 F.3d at 1016 (alterations in Garrison) (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). ALJs must be cautious about concluding daily activities are inconsistent with testimony about pain because “impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Id. (citing Smolen, 80 F.3d at 1287 n. 7; Fair v. Bowen, 885 F.2d 597, 603 (9thCir. 1989)).
The ALJ characterized Henry's daily life as “full and grossly normal.” (AR 23.) She listed the following activities as not consistent with Henry's statements: “the ability to drive a motor vehicle, read, regularly attend mass, prepare simple meals, do light cleaning, shop in stores, use a phone and computer, pay bills, and handle bank accounts.” Id.
The ALJ does not explain how these activities conflict with Henry's reported symptoms or limitations. Further, these activities are not inconsistent with Henry's reported pain or limitations. See Garrison, 759 F.3d at 1016. Henry reported she could only drive on short trips, be in the car for ten to twenty minutes, read for thirty minutes before falling asleep, and use her phone or laptop for fifteen to twenty minutes each day. (AR 40-41.) She did chores with her adult son's help and took breaks during them. (AR 39.) Her son also helped her with grocery shopping, or she would use a scooter. (AR 40) Even attending mass or handling bank accounts is not inconsistent with her reported limitations. None of the activities, alone or together, are inconsistent with limitations that preclude work because “many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.” See Garrison, 759 F.3d at 1016.
The daily activities are not inconsistent with Henry's statements and do not constitute a clear and convincing reason to discount her credibility. The ALJ erred by relying on this to discount Henry's credibility.
Harmlessness
When an ALJ errs in some of the reasons for supporting an adverse credibility finding, courts must determine if that reliance was harmless error. Carmickle v. Comm 'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The errors are harmless if the “remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record.” Id. (emphasis omitted). Here, the ALJ properly relied on inconsistencies within Henry's statements for her adverse credibility finding, such that the ultimate determination is supported by substantial evidence. This Court recommends finding the ALJ's errors harmless. See Carmickle, 533 F.3d at 1162. Hence, the District Court should affirm the ALJ's decision to discredit Henry's statements.
V. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order affirming the Commissioner's final decision.
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), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, 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 District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No. reply briefs shall be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 20-00320-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).