Roemer v. Comm'r of Soc. Sec. Admin.

Full title: Mathew Dale Roemer, Plaintiff, v. Commissioner of Social Security…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Date published: Dec 15, 2020

No. CV-19-05935-PHX-JJT (D. Ariz. Dec. 15, 2020)

Opinion

No. CV-19-05935-PHX-JJT

12-15-2020

Mathew Dale Roemer, Plaintiff, v. Commissioner of Social Security Administration, Defendant.

Honorable John J. Tuchi United States District Judge

ORDER

At issue is the denial of Plaintiff Mathew Roemer's Application for Disability Insurance benefits by the Social Security Administration (SSA) under the Social Security Act ("the Act"). Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, and the Court now addresses Plaintiff's Opening Brief (Doc. 18, "Pl. Br."), Defendant SSA Commissioner's Answering Brief (Doc. 23, "Def. Br."), and Plaintiff's Reply (Doc. 24, "Reply"). The Court has reviewed the briefs and Administrative Record (Doc. 15, "R."), and now affirms the Administrative Law Judge's ("ALJ") decision (R. at 25-47) as upheld by the Appeals Council (R. at 1-6).

I. BACKGROUND

Plaintiff filed his Application for Disability Insurance benefits on March 30, 2016, alleging disability beginning July 29, 2014. (Id. at 28.) Plaintiff's claim was denied initially on August 29, 2016, and upon reconsideration on December 20, 2016. (Id.) On October 15, 2018, Plaintiff appeared before the ALJ for a hearing on his claim, and on November 15, 2018, the ALJ denied Plaintiff's claim. (Id. at 25-47.) The Appeals Council denied Plaintiff's Request for Review of the ALJ's decision on October 23, 2019. (Id. at 1-6.)

The Court has reviewed the medical evidence and will discuss the pertinent evidence in addressing the issues raised by the parties. Upon considering the medical evidence and opinions, the ALJ evaluated Plaintiff's disability based on the following severe impairments: mild asthma, benign tremors, and fibromyalgia. (Id. at 31.)

Ultimately, the ALJ evaluated the medical evidence and testimony and concluded that Plaintiff was not disabled from the alleged disability-onset date through the date of the decision. (Id. at 41.) The ALJ found that Plaintiff "did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (Id. at 34.) Next, the ALJ calculated Plaintiff's residual functional capacity ("RFC"):

[Plaintiff] has the [RFC] to perform light work as defined in 20 CFR 404.1567(b), except he could occasionally push or pull with the bilateral upper extremities. He could frequently climb ramps or stairs, but never ladders, ropes, or scaffolds. He could frequently stoop and kneel, but only occasionally balance, crouch or crawl. He could frequently reach overhead, handle, and finger with the bilateral upper extremities. He could have occasional exposure to pulmonary irritants such as fumes, odors, dusts, and gasses, as well as to poorly ventilated areas. He could have no exposure to unprotected heights or dangerous machinery with moving mechanical parts. He could not drive on the job.

(Id.) Accordingly, the ALJ found that Plaintiff "was capable of performing past relevant work as a sales clerk, as generally performed." (Id. at 39.)

II. LEGAL STANDARDS

In determining whether to reverse an ALJ's decision, the district court reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. To determine whether substantial evidence supports a decision, the Court must consider the record as a whole and may not affirm simply by isolating a "specific quantum of supporting evidence." Id. Generally, "[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

To determine whether a claimant is disabled for purposes of the Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(f). At step two, the ALJ determines whether the claimant has a "severe" medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the claimant's RFC and determines whether the claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she determines whether the claimant can perform any other work in the national economy based on the claimant's RFC, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id.

III. ANALYSIS

Plaintiff raises two central arguments in challenging the ALJ's nondisability determination.¹ First, Plaintiff argues that "[t]he ALJ erred in failing to evaluate [Plaintiff's] fibromyalgia pursuant to Social Security Ruling [(SSR)] 12-2p." (Pl. Br. at 1, 14-20.) Second, Plaintiff argues that the ALJ erroneously discredited several opinions offered by Plaintiff's medical providers. (Id. at 20-29.)

1 On the first page of his Opening Brief, Plaintiff also states a third issue—that the ALJ incorrectly rejected Plaintiff's symptom testimony. (Pl. Br. at 1.) However, Plaintiff does not analyze or argue this issue in his Opening Brief or Reply. Therefore, the Court will not consider it. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (finding that arguments that are presented without substantive analysis are waived).

The Court rejects Plaintiff's arguments and concludes that substantial evidence supports the ALJ's nondisability determination. First, the Court finds that the ALJ evaluated Plaintiff's fibromyalgia consistent with SSR 12-2p. Specifically, the ALJ properly considered Plaintiff's improvement with treatment and the objective medical evidence in evaluating Plaintiff's functional limitations stemming from her fibromyalgia. Second, the ALJ provided specific and legitimate reasons for rejecting Plaintiff's treating physicians' opinions and germane reasons for rejecting the opinion of Plaintiff's certified nurse practitioner. Further, each reason was supported by substantial evidence.

A. The ALJ evaluated Plaintiff's fibromyalgia consistent with SSR 12-2p.

Plaintiff argues that "the ALJ improperly focused on a lack of objective medical findings to support the degree of [Plaintiff]'s reported limitations." (Id. at 15.) Plaintiff argues this point in two ways. First, Plaintiff argues that reliance on objective medical evidence in evaluating functional limitations from fibromyalgia is improper because of fibromyalgia's unique symptoms and its diagnostic methods that frustrate measurement by objective evidence. (Id. at 14-15, 20.) Second, Plaintiff argues that, contrary to the ALJ's findings, "the medical reports provide objective evidence supporting [Plaintiff]'s claim of continuing fibromyalgia symptoms." (Id. at 16.) Plaintiff bases this argument on numerous findings in the record that, despite some improvement, his fibromyalgia symptoms persisted. (Id. at 16-20.)

SSR 12-2p "provides guidance on how [SSA] develop[s] evidence to establish that a person has a medically determinable impairment (MDI) of fibromyalgia (FM), and how [SSA] evaluate[s] FM in disability claims." Social Security Ruling 12-2p. SSR 12-2p considers two distinct but related issues in the five-step process. The first issue is how SSA determines whether a claimant has an MDI of fibromyalgia. This issue only addresses whether a claimant actually has fibromyalgia. To establish an MDI, the claimant must provide medical evidence consisting of "signs—the results of 'medically acceptable clinical diagnostic techniques,' such as tests—as well as symptoms." See Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir.2005). The second issue SSR 12-2p informs is how a claimant's MDI of fibromyalgia is evaluated in determining their functional limitations: i.e., how much a claimant's fibromyalgia limits his functional abilities. See SSR 12-2p.

In evaluating the functional effects of a claimant's fibromyalgia, SSR 12-2p provides that the SSA will "base [its] RFC assessment on all relevant evidence in the case record," including the medical evidence across "a longitudinal record whenever possible because the symptoms of FM can wax and wane so that a person may have 'bad days and good days.'" Id. Similarly, SSR 96-7p, which SSR 12-2p incorporates by reference, provides that adjudicators must consider objective medical evidence in evaluating the credibility of a claimant's symptom testimony.² See SSR 96-7p.

2 SSR 16-3p superseded SSR 96-7p, but it also provides that SSA "must consider whether an individual's statements about the intensity, persistence, and limiting effects of his or her symptoms are consistent with the medical signs and laboratory findings of record." See SSR 16-3p. --------

The Court rejects Plaintiff's arguments because the ALJ's evaluation of Plaintiff's fibromyalgia was consistent with SSR 12-2p. Here, the ALJ found that Plaintiff's fibromyalgia is a severe impairment, so Plaintiff's arguments are limited to whether the ALJ correctly evaluated the functional limitations stemming from fibromyalgia consistent with SSR 12-2p. (R. at 31.) Plaintiff's arguments are misplaced since SSR 12-2p prescribes that adjudicators consider all relevant evidence, including objective medical evidence. SSR 12-2p. Thus, Plaintiff misinterprets SSR 12-2p as prohibiting the consideration of objective medical evidence in evaluating the limitations stemming from a claimant's fibromyalgia. (Pl. Br. at 14-15.) Plaintiff is correct that ALJs must consider the unique aspects of fibromyalgia, but the extent to which objective medical evidence corroborates a claimant's alleged limitations is still a relevant consideration.

Moreover, Plaintiff's argument that the ALJ overlooked evidence in the record of persistent fibromyalgia symptoms, despite his improvement with treatment, is also unpersuasive. (Id. at 16-20.) Though SSR 12-2p mandates that ALJs consider the waxing and waning nature of fibromyalgia, the ALJ's opinion does not indicate that she strayed from that mandate. Ultimately, whether the objective medical evidence corroborates Plaintiff's allegations of disabling symptoms from fibromyalgia is a relevant consideration for the ALJ: thus, the ALJ did not err in considering it. Where the ALJ relies on objective evidence to reject Plaintiff's symptom testimony or medical opinions, the issue becomes whether substantial evidence supports the ALJ's interpretation of the evidence. But this is a different question than whether the ALJ can rely on objective medical evidence in evaluating fibromyalgia: she can.

Finally, the Court also rejects Plaintiff's argument that substantial evidence does not support the ALJ's conclusion that the objective medical evidence contradicts Plaintiff's allegations of disabling symptoms. (Id.) Though Plaintiff identifies records that indicate he experienced persistent symptoms despite his improvement with treatment, substantial evidence still supports the ALJ's interpretation of the evidence. (Id.) The ALJ appropriately relied on medical records indicating Plaintiff's improvement and stability with medication and that he retained full strength, normal range of motion, and normal reflexes, sensation, and gait. (R. at 35, 791-92, 946, 949, 992, 1015, 1024); see 20 C.F.R. § 404.1529(c)(3). Records from Plaintiff's treatment with Banner Health also demonstrate that Plaintiff improved and was stable with medication. (R. at 608, 618, 623, 628, 630, 991, 996, 1015, 1019, 1029, 1034, 1055, 1059, 1064, 1067-68, 1074-75, 1079-80, 1099-1100.) Because substantial evidence is a relatively low evidentiary threshold, the ALJ's interpretation of the evidence is entitled to deference. See Orn, 495 F.3d at 630. Accordingly, the ALJ did not err in concluding that the objective medical evidence undermines Plaintiff's allegations of disabling symptoms due to her fibromyalgia, despite her persistent symptoms. Similarly, as discussed in subsequent sections of this Court's order, the ALJ also appropriately found that the objective medical evidence undermines certain medical opinions from Plaintiff's providers. . . . .

B. The ALJ provided sufficient reasons supported by substantial evidence for rejecting the medical opinions of Plaintiff's treatment providers.

Plaintiff challenges the ALJ's rejection of the opinions of four of his treating medical providers. The ALJ gave little weight to the opinions of (1) Dr. Joseph Nolan, Plaintiff's treating rheumatologist, (2) Dr. Javier Perez, his treating psychologist, (3) Dr. Natasha Bhuyan, his treating physician, and (4) Judy Hahn, his treating certified nurse practitioner. (R. at 37-38.) Instead, the ALJ gave great weight to the opinions of Plaintiff's reviewing and examining physicians. (Id. at 36.)

While "[t]he ALJ must consider all medical opinion evidence," there is a hierarchy among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Those who have treated a claimant are treating physicians, those who examined but did not treat the claimant are examining physicians, and those who neither examined nor treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating physician's opinion is not given controlling weight, then the ALJ must consider the relevant factors listed in 20 C.F.R. § 404.1527(c)(1)-(6) and determine the appropriate weight to give the opinion. Orn, 495 F.3d at 632. If a treating physician's opinion is contradicted by another doctor's opinion, the ALJ cannot reject the treating physician's opinion unless he provides specific and legitimate reasons that are based on substantial evidence in the record." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However, a nurse practitioner does not qualify as an "acceptable treating source" and is instead defined as an "other source." 20 C.F.R. § 404.1513(d)(1). An ALJ "may discount testimony from these 'other sources' if the ALJ gives reasons germane to each witness for doing so." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations omitted).

The Court rejects Plaintiff's arguments and concludes that the ALJ provided sufficient reasons supported by substantial evidence for rejecting the opinions. First, the ALJ correctly rejected Dr. Nolan's opinion based on its inconsistency with Plaintiff's ADLs, his improvement with treatment, and the adequate management of his symptoms with medication. Second, the ALJ correctly rejected Dr. Perez's opinion because it was largely based on subjective reports and was inconsistent with other objective medical evidence and opinions. Third, Dr. Bhuyan's opinion was correctly rejected because of its inconsistency with other evidence, including Plaintiff's ADLs. Finally, the ALJ correctly rejected certified nurse practitioner Hahn's opinion because it was inconsistent with her own findings and Plaintiff's psychological consultative examination.

1. Dr. Nolan's opinions.

Dr. Nolan offered two opinions on Plaintiff's behalf. (R. at 450-54, 945.) In a "Fibromyalgia Questionnaire" on May 28, 2015, Dr. Nolan opined to significant functional limitations stemming from Plaintiff's fibromyalgia, including the ability to sit, stand, and walk for less than one hour per eight-hour workday. (Id. at 450-54.) In a June 6, 2017 letter, Dr. Nolan wrote that Plaintiff maintained the same sitting, standing, and walking limitations and would likely be absent from work more than three times per month due to his symptoms. (Id. at 945.)

The ALJ provided several reasons for rejecting Dr. Nolan's opinions. She found that Dr. Nolan's opinions were inconsistent with (1) Plaintiff's lack of atrophy in his muscles and his reported improvement with exercise. (Id. at 37.) They were also inconsistent with evidence indicating (2) his symptoms were well-controlled with medication. (Id.) Next, Dr. Nolan's opined-to manipulative limitations were (3) unexplained. Finally, the opinions were inconsistent with Plaintiff's (4) ADLs and (5) the objective medical evidence. (Id.)

The Court finds that the ALJ provided sufficient reasoning supported by substantial evidence for rejecting Dr. Nolan's opinions. As discussed above, substantial evidence supports the ALJ's determination that Plaintiff's symptoms are well-controlled with medication. (Id.) This was a permissible rationale for rejecting Plaintiff's testimony and the ALJ reasonably found that this stability undermines Dr. Nolan's opinions. See 20 C.F.R. § 404.1527(c)(3), (4). Further, substantial evidence supports the ALJ's finding that the opinions are inconsistent with Plaintiff's ADLs. The ALJ cites claimant's ability to cook, clean, run errands daily, and travel to San Francisco as inconsistent with Dr. Nolan's opinions. (R. at 37.) The ALJ also identifies other vacations to Pine Top and Palm Springs as inconsistent with Plaintiff's alleged sitting and standing limitations. (R. at 35.) Though these ADLs do not necessarily evidence an ability to sustain fulltime employment, the ALJ reasonably determined that they undermine Dr. Nolan's opinions since they are inconsistent with his opinions. Even if the ALJ's other rationales are unsupported by substantial evidence, such errors would be harmless because the ALJ provided additional sufficient reasoning for rejecting Dr. Nolan's opinions. E.g., Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).

2. Dr. Perez's opinion.

On July 8, 2016, Dr. Perez opined regarding Plaintiff's functional limitations due to her psychological impairments. (R. at 839-43.) He found that Plaintiff has moderate-to-marked and marked limitations in several functional areas and that he would be absent from work more than three times per month on average because of his limitations. (Id.)

The ALJ rejected these opinions for three reasons. First, the ALJ found that Dr. Perez's opinion was vague and imprecise. (R. at 37.) Second, the ALJ found that the opinion relied largely on subjective reports rather than objective medical evidence. (Id.) Third, she found that the opinion was inconsistent with the objective medical evidence. (Id.)

Initially, Plaintiff is correct that the ALJ's conclusion that Dr. Perez's opinion "is vague and imprecise" is erroneous. (Pl. Br. at 26.) In short, Plaintiff correctly identifies that Dr. Perez's form-questionnaire provides specific definitions that explain the nature of the limitations that Dr. Perez opined to. (Id.)

Nevertheless, substantial evidence supports the ALJ's conclusion that Dr. Perez's opinion is overly reliant on subjective reports and is inconsistent with the objective medical evidence. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible."). Indeed, Dr. Perez's records contain some distinct examples of clinical observations rather than mere recitations of Plaintiff's reports. (R. at 1197, 1199, 1201-02, 1208, 1210-11, 1213, 1216.) Still, the ALJ's interpretation of the evidence is a reasonable one. Though Dr. Perez's records contain examples of true clinical observation, they are predominated by recitations of Plaintiff's self-reports. (R. at 845-885, 1195-1233.) Further, Plaintiff's argument that "the ALJ failed to recognize the importance of a patient's self-reporting in the evaluation and treatment of psychological disorders[,]" is apt here, but does not negate the ALJ's conclusion. (Pl. Br. at 28.) Despite the appropriateness of psychological treatment providers relying on subjective reports, substantial evidence still supports the ALJ's determination that the magnitude of that reliance here justified a reduction in the weight given to Dr. Perez's opinion.

Moreover, substantial evidence also supports the ALJ's conclusion that Dr. Perez's opinion is inconsistent with the objective medical evidence. Records from Plaintiff's visits with her psychiatric nurse practitioner repeatedly document normal objective findings. (R. at 797-824, 902-915, 976-990.) Similarly, the exam findings from Plaintiff's psychiatric consultative examination also documented normal findings and noted that Plaintiff's dramatic presentations undermined his subjective reports. (Id. at 829.) Accordingly, the ALJ did not err in discounting Dr. Perez's opinion based on its inconsistency with the objective medical evidence and its reliance on Plaintiff's subjective reports.

3. Dr. Bhuyan's opinion.

Dr. Bhuyan submitted an opinion regarding Plaintiff's functional limitations, which the ALJ rejected for several reasons. First, the ALJ found that the opinion regarding manipulative limitations is inconsistent with Dr. Bhuyan's treatment records because her records purportedly do not mention tremors. (R. at 38.) Second, the ALJ found that Dr. Bhuyan's opinion was extreme and internally inconsistent since she opined Plaintiff can lift weights up to five pounds but can never use his arms for grasping or reaching. (Id.) Third, the ALJ found the opinion was inconsistent with the objective medical record, which indicates Plaintiff maintains full strength in the upper extremities and normal gait. (Id.) Finally, the ALJ found that the opinion was inconsistent with Plaintiff's ADLs. (Id.) Specifically the ALJ found that Plaintiff's ability to cook and drive was inconsistent with the opinion that Plaintiff can never grasp bilaterally. (Id.)

The Court finds that substantial evidence supports the ALJ's rejection of Dr. Bhuyan's opinion. Initially, Plaintiff correctly points out that the ALJ's finding that Dr. Bhuyan did not identify tremors in her treatment records was erroneous. (Pl. Br. at 25.) Nevertheless, that error was harmless since the ALJ provided additional valid reasons for discounting Dr. Bhuyan's testimony. (R. at 38.) The objective medical evidence and Plaintiff's ADLs support the ALJ's discounting of Dr. Bhuyan's opinion. Records indicating Plaintiff's normal gait and full strength support the ALJ's conclusions. (R. at 789-96, 946-51.) Further, the ALJ properly found that Plaintiff's ADLs, which reflect that he regularly drove and cooked, also undermine Dr. Bhuyan's opinion. (Id. at 38, 74, 78, 826, 849.) Accordingly, the ALJ did not err.

4. Certified nurse practitioner Hahn's opinions.

Certified nurse practitioner Hahn opined regarding Plaintiff's functional limitations in a "Mental Impairment Questionnaire." (R. at 561-65.) In a second opinion on May 3, 2016, she opined that Plaintiff is unable to work due to her medical issues. (Id. at 800-01.) The ALJ rejected her opinion regarding Plaintiff's disability status because that is an issue reserved to the ALJ. (R. at 38.) The ALJ rejected the remainder of Hahn's opinions as inconsistent with her own findings and the findings of Plaintiff's psychological consultative examination. (Id.)

The Court finds that the ALJ's rejection of Hahn's opinions was for germane reasons supported by substantial evidence. The ALJ was correct to reject her opinion regarding the ultimate issue of Plaintiff's disability status since that is a question reserved to the ALJ. See 20 C.F.R. § 404.1527(d). Further, substantial evidence supports the ALJ's determination that Hahn's opinions are inconsistent with the objective medical evidence. As discussed above, Hahn's treatment records regularly document normal objective findings, including normal grooming, eye contact, hygiene, orientation, mood, affect, and speech. (R. at 797-824, 902-915, 976-990.) Similarly, records from Plaintiff's psychological consultative examination contained evidence of normal objective findings. (Id. at 825-33.) Thus, the ALJ did not err by rejecting Hahn's opinions based on these findings.

IV. CONCLUSION

Substantial evidence supports the ALJ's nondisability determination. The ALJ evaluated the functional limitations stemming from Plaintiff's fibromyalgia consistent with SSR 12-2p. Further, substantial evidence supports the ALJ's evaluation of the medical opinions of record, including her rejection of the opinions offered by Plaintiff's treating physicians and nurse practitioner.

IT IS THEREFORE ORDERED affirming the November 15, 2018 decision of the Administrative Law Judge (R. at 25-47), as upheld by the Appeals Council (R. at 1-6).

IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case.

Dated this 15th day of December, 2020.

/s/_________

Honorable John J. Tuchi

United States District Judge