Whittaker v. Commissioner of Social Security Administration

1 WO [8] IN THE UNITED STATES DISTRICT COURT [9] FOR THE DISTRICT OF ARIZONA [11] Katy Ann Whittaker, No. CV-20-00409-TUC-RM [12] Plaintiff, ORDER [13] v. [14] Commissioner of Social Security 15 Administration, 16 Defendant. [17] On December 8, 2021, Magistrate Judge Leslie A. Bowman issued a Report and [18] Recommendation (“R&R”) recommending that this Court reverse the final decision of [19] the Commissioner of Social Security (“Commissioner”) because the Administrative Law [20] Judge’s (“ALJ”) evaluation of Plaintiff Katy Ann Whittaker’s residual functional [21] capacity (“RFC”) was not supported by substantial evidence. (Doc. 29.) The [22] Commissioner filed an Objection (Doc. 31), to which Plaintiff responded (Doc. 32). For [23] the following reasons, the Court will adopt the R&R and overrule the Commissioner’s [24] Objection. [25] I. Background [26] On August 31, 2017, Whittaker filed a Title II application for disability insurance [27] benefits and a Title XVI application for supplemental security income. (Doc. 20-3 at 14.) [28] She alleged disability beginning on May 28, 2017, due to liver disease, fibromyalgia, 1 chronic fatigue, diabetes, degenerative disc disease, high cholesterol, depression, and 2 obesity. (Doc. 20-3 at 14; Doc. 20-7 at 16.) Whittaker’s applications were denied initially 3 and upon reconsideration. (Doc. 20-3 at 14.) She requested review and appeared with 4 counsel at a hearing before ALJ Laura Speck Havens on July 11, 2019. (Doc. 20-3 at 33.) 5 In her September 26, 2019 decision, the ALJ found that Whittaker suffers from the 6 following severe impairments: fibromyalgia, diabetes, degenerative disc disease, obesity, 7 asthma, and migraine headaches. (Doc. 20-3 at 16.) However, the ALJ found that 8 Whittaker was not disabled because she could perform her past relevant work as a 9 customer complaint clerk. (Doc. 20-3 at 25.) This finding was based in part on the 10 testimony of vocational expert Jose L. Chaparro, who opined at the hearing that a person 11 with Whittaker’s RFC could perform the job of a customer complaint clerk. (Doc. 20-3 at 12 25-26.) The vocational expert further testified, and the ALJ found, that jobs exist in the 13 national economy that Whittaker could perform considering her age, education, work 14 experience, and RFC – Cashier II, Marker, and Sales Attendant. (Doc. 20-3 at 26.) 15 The ALJ’s analysis regarding Whittaker’s RFC states that she 16 has the residual functional capacity to perform light work . . . except the claimant can sit 6 hours out of an 8-hour day, stand [17] 6 hours out of an 8-hour day, and walk 6 hours out of an 818 hour day. The claimant can occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. She can [19] occasionally climb stairs and ladders, kneel, crouch, and 20 crawl and frequently balance and stoop. The claimant can have only occasional exposure to heights, moving machinery, 21 humidity, temperature extremes, dust, fumes, and smoke. 22 (Doc. 20-3 at 21.) In determining Whittaker’s RFC, the ALJ reviewed her medical 23 record, including the May 2018 magnetic resonance imaging (“MRI”) of her lumbar 24 spine and the June 2018 MRI of her cervical spine. (Doc. 20-3 at 22.) The ALJ found the 25 prior administrative medical findings of Carol Hutchinson, D.O., persuasive and 26 consistent with the medical record. (Doc. 20-3 at 24.) Dr. Hutchinson found that 27 Whittaker could “perform light work with occasional postural maneuvers except frequent 28 balancing and stooping and avoid concentrated exposure to extreme heat, humidity, 1 pulmonary irritants, and hazards.” In concluding that Hutchinson’s assessment was 2 consistent with the medical record, the ALJ did not consider the fact that Hutchinson 3 completed her assessment in February 2018, while Whittaker’s MRIs took place in May 4 and June 2018. (Doc. 20-3 at 24.) The ALJ rejected the medical findings of Nora Saul, 5 FNP,1 Whittaker’s treating medical professional, concluding that her findings were not 6 consistent with the medical record. (Doc. 20-3 at 24.) The ALJ also discounted 7 Whittaker’s testimony that she experienced severe back pain that impacted her ability to 8 function mentally and physically, concluding that the testimony was “not entirely 9 consistent with the medical evidence and other evidence in the record.” (Doc. 20-3 at 2110 22.) 11 On July 29, 2020, the Appeals Council denied review, making the decision of the 12 ALJ the final decision of the Commissioner. (Doc. 20-3 at 2.) Whittaker then filed this 13 action. (Doc. 1.) 14 Magistrate Judge Bowman issued an R&R on December 8, 2021, finding that the 15 ALJ erred in determining Whittaker’s RFC by failing to base her evaluation on 16 substantial evidence. (Doc. 29.) The R&R found the ALJ’s determination of Whittaker’s 17 RFC not based on substantial evidence because Hutchinson’s assessment of Whittaker, 18 on which the ALJ primarily relied in determining RFC, occurred before the objective 19 medical evidence—the MRIs—of Whittaker’s degenerative disc disease was available. 20 (Doc. 29 at 8.) The R&R further concluded that the ALJ had impermissibly substituted 21 her own opinion for the opinions of medical providers when, in reviewing the MRI 22 results, she found that Whittaker’s “allegation of disabling back pain was inconsistent 23 with medical records indicating normal gait, clear lungs, and conservative treatment.” 24 (See Doc. 20-3 at 23-24; Doc. 29 at 8.) Thus, the R&R concluded that the ALJ’s reliance 25 on Hutchinson’s assessment, conducted without the benefit of objective medical evidence 26 in the form of MRIs, combined with the ALJ’s own evaluation of the MRI results not [27] 1 Saul found that Whittaker “could sit for seven hours and stand/walk none, needed to 28 shift positions every 20 minutes, had manipulative limitations, needed 4 additional breaks, and would miss 3-4 days [of work] per month.” (Doc. 20-3 at 24.) 1 based on a medical provider’s opinion, resulted in a disability determination that was not 2 supported by substantial evidence. The R&R recommended reversal on this basis. (Doc. 3 29 at 7-8.) 4 Defendant filed an objection to the R&R, contending that substantial evidence 5 supports the ALJ’s findings because the ALJ correctly based her decision on a variety of 6 available evidence, not just Hutchinson’s administrative medical findings. (Doc. 31.) 7 Defendant points to multiple pieces of evidence that the ALJ considered, including the 8 MRI results, “normal” examination results from Whittaker’s primary care physician, 9 Whittaker’s own statements that her pain medications kept her pain manageable, and 10 records from Whittaker’s emergency room visits documenting that “she had full range of 11 motion, her muscles and reflexes were normal, and she had a normal gait.” (Id.) 12 Defendant acknowledges that the ALJ did find Hutchinson’s medical findings persuasive, 13 consistent with the medical record, and supported by objective medical evidence, but 14 maintains that because Hutchinson’s findings were not the only basis for the ALJ’s RFC 15 determination, substantial evidence supported the RFC determination and thus it should 16 be upheld. (Id.) 17 In response, Plaintiff maintains that the R&R was correct in concluding that the 18 ALJ’s adoption of Hutchinson’s medical opinion—which was not based on a complete 19 medical record—renders the RFC determination unsupported by substantial evidence. 20 (Doc. 32.) 21 II. Standard of Review 22 A district judge “may accept, reject, or modify, in whole or in part, the findings or 23 recommendations” made by a magistrate judge. 28 U.S.C. § 636 (b)(1). The district 24 judge must “make a de novo determination of those portions” of the magistrate judge’s 25 “report or specified proposed findings or recommendations to which objection is made.” [26] Id. The advisory committee’s notes to Rule 72(b) of the Federal Rules of Civil Procedure 27 state that, “[w]hen no timely objection is filed, the court need only satisfy itself that there 28 is no clear error on the face of the record in order to accept the recommendation” of a 1 magistrate judge. Fed. R. Civ. P. 72(b) advisory committee’s note to 1983 addition. See 2 also Johnson v. Zema Sys. Corp., 170 F.3d 734 , 739 (7th Cir. 1999) (“If no objection or 3 only partial objection is made, the district court judge reviews those unobjected portions 4 for clear error.”); Prior v. Ryan, CV 10-225-TUC-RCC, 2012 WL 1344286 , at *1 (D. 5 Ariz. Apr. 18, 2012) (reviewing for clear error unobjected-to portions of Report and 6 Recommendation). 7 The Court must affirm the Commissioner’s decision if the decision “is supported 8 by substantial evidence and based on the application of correct legal standards.” 9 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (per curiam). “Substantial 10 evidence” is “such relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). It “is 12 more than a mere scintilla but less than a preponderance.” Id. In determining whether 13 the Commissioner’s decision is supported by substantial evidence, the Court must “weigh 14 both the evidence that supports and the evidence that detracts from the ALJ’s factual 15 conclusions.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) 16 (internal quotation omitted). When evidence “is susceptible to more than one rational 17 interpretation, one of which supports the ALJ’s decision,” this Court must uphold the 18 ALJ’s conclusion. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). The Court 19 may consider “only the reasons provided by the ALJ in the disability determination and 20 may not affirm the ALJ on a ground upon which [she] did not rely.” Revels v. Berryhill, [21] 874 F.3d 648, 654 (9th Cir. 2017) (internal quotation omitted). 22 Error in a social security determination is subject to harmless-error analysis. 23 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). “[A]n error is harmless so long 24 as there remains substantial evidence supporting the ALJ’s decision and the error does 25 not negate the validity of the ALJ’s ultimate conclusion.” Molina v. Astrue, 674 F.3d 26 1104, 1115 (9th Cir. 2012) (internal quotation omitted), superseded by regulation on 27 other grounds. The Court must “look at the record as a whole to determine whether the 28 error alters the outcome of the case.” Id. An error that is “inconsequential to the ultimate 1 nondisability determination” is harmless. Id. (internal quotation omitted). 2 III. Applicable Law 3 At the first step of the five-step sequential evaluation process, the ALJ must 4 determine if a claimant is engaged in “substantial gainful activity”; if so, the claimant is 5 not disabled. 20 C.F.R. §§ 404.1520 (a)(4)(i), 416.920(a)(4)(i). At the second step, the 6 ALJ must determine whether the claimant has a “severe medically determinable physical 7 or mental impairment” or combination of impairments that has lasted or is expected to 8 last for a continuous period of at least 12 months; if not, the claimant is not disabled. 20 9 C.F.R. §§ 404.1520 (a)(4)(ii), 416.920(a)(4)(ii); see also 20 C.F.R. §§ 404.1509 , 416.909. 10 At the third step, the ALJ must determine if the claimant’s impairment(s) meets or equals 11 that of a listed impairment; if so, the claimant is disabled. 20 C.F.R. §§ 12 404.1520(a)(4)(iii), 416.920(a)(4)(iii). At the fourth step, the ALJ must determine 13 whether, based on the claimant’s residual functional capacity, the claimant can perform 14 his or her past relevant work; if so, the claimant is not disabled. 20 C.F.R. §§ 15 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform any past relevant 16 work, then the ALJ moves to the fifth step to determine whether, based on the claimant’s 17 residual functional capacity, age, education, and work experience, the claimant can make 18 an adjustment to other work; if so, the claimant is not disabled. 20 C.F.R. § 19 404.1520(a)(4)(v), 416.920(a)(4)(v). 20 The ALJ determines RFC. 20 C.F.R. § 404.1546 (c); Vertigan v. Halter, 260 F.3d 21 1044, 1049 (9th Cir. 2001) (“[i]t is clear that it is the responsibility of the ALJ, not the 22 claimant’s physician, to determine residual functional capacity”). It is not based on a 23 medical opinion but is instead based on “all of the relevant medical and other evidence.” [24] 20 C.F.R. § 404.1545 (a)(3). 25 A claimant’s statements about her pain or other symptoms will not alone establish 26 disability; “[t]here must be objective medical evidence from an acceptable medical 27 source that shows” the claimant has a medical impairment or impairments that “could 28 reasonably be expected to produce the pain or other symptoms alleged . . . .” 20 C.F.R. § 1 404.1529(a). The existence of such an impairment must be shown by “[m]edical signs 2 and laboratory findings, established by medically acceptable clinical or laboratory 3 diagnostic techniques . . . .” Id. § 404.1529(b). But once a claimant has shown that she 4 has a medically determinable impairment or impairments that could reasonably be 5 expected to produce her pain or other symptoms, her “statements about the intensity and 6 persistence” of her pain or other symptoms cannot be rejected “solely because the 7 available objective medical evidence does not substantiate” them. 20 C.F.R. § 8 404.1529(c)(2). In evaluating the intensity and persistence of a claimant’s symptoms, an 9 ALJ must consider all the available evidence from the claimant’s “medical sources and 10 nonmedical sources about how [the claimant’s] symptoms affect [her].” Id. § 11 404.1529(c)(1). 12 For claims filed on or after March 27, 2017, medical opinions must be evaluated 13 pursuant to 20 C.F.R. § 404 .1520c(c) based on factors including supportability, 14 consistency, relationship with the claimant, and specialization. Medical opinions are 15 more persuasive if they are supported by explanations and objective medical evidence, 20 16 C.F.R. § 404 .1520c(c)(1), and if they are consistent with the evidence from other medical 17 and nonmedical sources, id. § 404.1520c(c)(2). Furthermore, the medical opinion of a 18 specialist “about medical issues related to his or her area of specialty” is more persuasive 19 than that of a non-specialist. Id. § 404.1520c(c)(4). The purpose, length, and extent of a 20 medical source’s treatment relationship with the claimant, the kinds and extent of 21 examinations and testing performed, and the frequency of the claimant’s visits, may also 22 demonstrate a medical source’s knowledge and understanding of the claimant’s 23 impairments. Id. § 404.1520c(c)(3)(i)-(v). In addition, a medical source’s familiarity 24 with other evidence in a claim may make the medical source’s opinion more persuasive. 25 Id. § 404.1520c(c)(5). 26 IV. Analysis 27 As the R&R notes, the ALJ adopted the RFC assessment of Dr. Hutchinson; 28 however, that assessment was completed prior to Whittaker’s spinal MRIs. (See Doc. 201 3 at 22, 24; Doc. 20-13 at 43-44.) The MRI results showed evidence of moderate to 2 severe degenerative disc disease and chronic radiculopathy. (See Doc. 20-3 at 22; Doc. 3 20-13 at 43-44.) Dr. Hutchinson’s medical assessment specifically finds no evidence of 4 radiculopathy and no severe degenerative disc disease. (See Doc. 20-4 at 31.) 5 Accordingly, Dr. Hutchinson’s medical assessment is inconsistent with the objective 6 medical evidence present in Whittaker’s MRIs. Of the factors set forth in 20 C.F.R. § 7 404.1520c(c) for evaluating medical opinions, supportability and consistency with 8 medical evidence are the most important. See 20 C.F.R. § 404 .1520c(b)(2). Because Dr. 9 Hutchinson’s assessment regarding Whittaker’s spinal conditions is both inconsistent 10 with and unsupported by the results of Whittaker’s spinal MRIs, the Court agrees with 11 the R&R’s conclusion that the ALJ’s evaluation of Dr. Hutchinson’s medical assessment 12 is not supported by substantial evidence. 13 In determining Whittaker’s RFC, the ALJ rejected the medical findings of Nora 14 Saul, FNP, Whittaker’s treating medical professional, concluding that her findings were 15 inconsistent with the medical record. (Doc. 20-3 at 24.) Saul found that Whittaker “could 16 sit for seven hours and stand/walk none, needed to shift positions every 20 minutes, had 17 manipulative limitations, needed 4 additional breaks, and would miss 3-4 days [of work] 18 per month.” (Doc. 20-3 at 24.) The ALJ found this assessment inconsistent with the 19 medical record evidence showing Whittaker’s “generally normal physical findings” and 20 thus rejected it. (Id.) However, the ALJ did not consider the fact that, unlike Dr. 21 Hutchinson, Saul completed her assessment after Plaintiff’s MRIs. Nor did the ALJ 22 consider the extent to which Saul’s assessment was consistent with the MRI results 23 showing Whittaker’s serious spinal conditions, which provide objective medical evidence 24 that could support Saul’s assessment. The ALJ’s decision to credit Dr. Hutchinson’s 25 assessment over the assessment of FNP Saul is not supported by substantial evidence. 26 In determining Whittaker’s RFC, the ALJ discounted Whittaker’s testimony about 27 the severity of her symptoms. (Doc. 20-3 at 21-22.) Whittaker testified that her severe 28 back pain affected her physical and mental abilities and functions. (Doc. 20-3 at 21.) The 1|| ALJ found that Whittaker’s medically determinable impairments could reasonably be 2|| expected to cause her alleged symptoms but that her statements concerning the intensity, || persistence, and limiting effects of her symptoms were “not entirely consistent with the 4|| medical evidence and other evidence in the record.” (Doc. 20-3 at 22.) As the R&R notes, the ALJ then reviewed Whittaker’s MRI studies herself and found Whittaker’s 6|| allegations of disabling back pain inconsistent with the medical records. (Doc. 20-3 at 2123; Doc. 29 at 7-8.) However, the ALJ “is not a medical doctor and cannot calculate an 8 || RFC directly from the raw medical record.” (Doc. 29 at 8.) 9 For these reasons, the Court concludes that the ALJ’s RFC determination was not 10 || supported by substantial evidence and will reverse and remand for further proceedings. 11 Accordingly, 12 IT IS ORDERED that the Report and Recommendation (Doc. 29) is adopted, as 13} set forth herein. 14 IT IS FURTHER ORDERED that the Commissioner’s Objection (Doc. 31) is 15 || overruled. 16 IT IS FURTHER ORDERED that the final decision of the Commissioner is 17 || reversed, and this case is remanded to the agency for a further determination of whether 18 || benefits are due, including re-evaluation of Whittaker’s residual functional capacity and || the opinions of Dr. Hutchinson and FNP Saul. 20 Dated this 13th day of April, 2022. [22] 23 □ bi □ Honorable Rostsiary □□□□□□□ 25 United States District □□□□□ [28] -9-