Demarzio v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Fay Ann Demarzio, No. CV-20-02503-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 At issue is the denial of Plaintiff Fay Ann Demarzio’s application for disability 16 insurance benefits by the Social Security Administration. Plaintiff filed a Complaint (Doc. 17 1) with this Court seeking judicial review of that denial. The Court now addresses 18 Plaintiff’s Opening Brief (Doc. 11, Pl. Br.), Defendant Social Security Administration 19 Commissioner’s Answering Brief (Doc. 12, Def. Br.), and Plaintiff’s Reply Brief (Doc. 15, 20 Reply). The Court has reviewed the briefs and Administrative Record (Doc. 10), and now 21 affirms the Administrative Law Judge’s (“ALJ”) decision. 22 I. BACKGROUND 23 Plaintiff filed an application for Title II benefits on July 9, 2015, alleging disability 24 beginning June 30, 2014. (Doc. 10, Administrative Record page (“AR”) at 144, 13.) 25 Plaintiff’s claim was denied initially on November 19, 2015, and subsequently upon 26 reconsideration on June 27, 2016. (AR at 144.) On February 14, 2018, Plaintiff appeared 27 before the ALJ for a hearing on her claim. (AR at 35.) On July 31, 2018, the ALJ denied 28 Plaintiff’s claim. (AR at 141.) The Appeals Council granted Plaintiff’s request for review 1 and remanded the case back to the ALJ. (AR at 161.) Upon remand, the ALJ held a second 2 hearing on February 12, 2020, where both Plaintiff and a different vocational expert 3 testified. (AR at 79.) On April 27, 2020, the ALJ issued another denial. (AR at 10.) Plaintiff 4 appealed again; however, the Appeals Council denied the request for review, rendering the 5 ALJ’s second decision the final decision of the Commissioner. (AR at 1.) Plaintiff now 6 seeks judicial review of the Commissioner’s decision pursuant to 42 U.S.C. § 405 (g). (Doc. 7 1.) 8 The Court has reviewed the medical evidence and will discuss the pertinent 9 evidence in addressing the issues raised by the parties. Upon considering the medical 10 evidence and opinions, the ALJ evaluated Plaintiff’s disability based on the following 11 severe impairments: bilateral knee osteoarthritis and coronary artery disease status post 12 coronary angiography. (AR at 16.) 13 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 14 that Plaintiff was not disabled from the alleged disability onset date through the date last 15 insured. (AR at 24.) The ALJ found that Plaintiff “did not have an impairment or 16 combination of impairments that met or medically equaled the severity of one of the listed 17 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (AR at 16.) Next, the ALJ 18 calculated Plaintiff’s residual functional capacity (“RFC”): 19 [Plaintiff] had the [RFC] to perform light work as defined in 20 CFR 404.1567(b) except the [Plaintiff] can lift and carry [20] twenty pounds occasionally, ten pounds frequently, stand and 21 walk four hours in an eight hour workday, and sit for six hours in an eight hour workday. The [Plaintiff] could occasionally [22] climb, kneel, crouch and crawl, and must avoid even moderate 23 exposure to hazards. 24 (AR at 18.) Accordingly, the ALJ found that Plaintiff “was capable of performing past 25 relevant work as an office manager and school director.” (AR at 22.) 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews only 28 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503 , 1 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 2 determination only if it is not supported by substantial evidence or is based on legal error. 3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 4 that a reasonable person might accept as adequate to support a conclusion considering the 5 record as a whole. Id. To determine whether substantial evidence supports a decision, the 6 Court must consider the record as a whole and may not affirm simply by isolating a 7 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 8 susceptible to more than one rational interpretation, one of which supports the ALJ’s 9 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 954 10 (9th Cir. 2002) (citations omitted). 11 To determine whether a claimant is disabled, the ALJ follows a five-step process. [12] 20 C.F.R. § 404.1520 (a). The claimant bears the burden of proof on the first four steps, but 13 the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094 , 1098 14 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is presently 15 engaging in substantial gainful activity. 20 C.F.R. § 404.1520 (a)(4)(i). At step two, the 16 ALJ determines whether the claimant has a “severe” medically determinable physical or 17 mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At step three, the ALJ considers 18 whether the claimant’s impairment or combination of impairments meets or medically 19 equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. 20 § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. At step 21 four, the ALJ assesses the claimant’s RFC and determines whether the claimant is still 22 capable of performing past relevant work. 20 C.F.R. § 404.1520 (a)(4)(iv). If not, the ALJ 23 proceeds to the fifth and final step, where she determines whether the claimant can perform 24 any other work in the national economy based on the claimant’s RFC, age, education, and 25 work experience. 20 C.F.R. § 404.1520 (a)(4)(v). If not, the claimant is disabled. Id. 26 III. ANALYSIS 27 Plaintiff raises three arguments in her challenge of the ALJ’s nondisability finding. 28 First, Plaintiff argues that the ALJ erred by finding Plaintiff’s mental impairments were 1 not severe. (Pl. Br. at 15.) Second, Plaintiff argues that the ALJ erroneously rejected the 2 physical assessment by Plaintiff’s treating cardiologist, Dr. Patel and her physician’s 3 assistant, Nancy Copper. (Id. at 19–20.) Third, Plaintiff argues that the ALJ erroneously 4 rejected her symptom testimony without sufficient justification. (Id. at 20–21.) For the 5 following reasons, the Court rejects Plaintiff’s arguments and finds that the ALJ’s 6 determination is supported by substantial evidence. 7 A. Mental Impairment 8 Plaintiff first argues that remand is required because the ALJ erred at step two by 9 finding her mental impairments were “non-severe.” (AR at 16–18.) As referenced by the 10 ALJ, Plaintiff claimed she could not work because she suffered from anxiety and 11 depression. (Id.) The ALJ found the alleged severity of Plaintiff’s impairments “cause[d] 12 no more than ‘mild’ limitation in any of the functional areas” and thus found them to be 13 non-severe. (AR at 17.) 14 To establish a medically determinable impairment, a claimant must provide 15 evidence from a medically acceptable source, such as laboratory results or a licensed 16 physician. 20 C.F.R. § 404.1513 (a). An impairment or combination of impairments are 17 “not severe” if the medical evidence clearly establishes a slight abnormality that has “no 18 more than a minimal effect on an individual’s ability to work.” SSR 85-28, 1985 WL 56856 19 at *3 (1985) (Program Policy Statement; Titles II and XVI: Medical Impairments That Are 20 Not Severe); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); Smolen v. 21 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 22 1988) (adopting SSR 85-28). 23 A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the 24 impairment(s) and an informed judgment about its (their) limiting effects on the individual’s physical and mental 25 ability(ies) to perform basic work activities; thus, an assessment of function is inherent in the medical evaluation 26 process itself. 27 SSR 85-28, 1985 WL 56856 at *4. Basic work activities are defined as the abilities and 28 aptitudes necessary to do most jobs, such as (1) walking, standing, sitting, lifting, pushing, 1 pulling, reaching, carrying, or handling; (2) seeing, hearing, and speaking; 2 (3) understanding, carrying out, and remembering simple instructions; (4) use of judgment; 3 (5) responding appropriately to supervision, coworkers and usual work situations; and 4 (6) dealing with changes in a routine work setting. See 20 C.F.R. §§ 404.1522 , 416.922. 5 To determine whether a claimant’s alleged mental impairment is severe, the ALJ 6 rates a claimant’s degree of functional limitation in four broad functional areas. 20 C.F.R. 7 § 404.1520a(c). The functional areas are: (1) understanding, remembering, or applying 8 information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; 9 and (4) adapting or managing oneself. 20 C.F.R. § 404 .1520a(c)(3). The ALJ rates the level 10 of impairment in each functional area on a five-point scale: none, mild, moderate, marked, 11 and extreme. 20 C.F.R. § 404 .1520a(c)(4). If the ALJ finds that the degree of limitation is 12 only mild in each functional area, then he or she will generally find that the claimant’s 13 mental impairment is non-severe. 20 C.F.R. § 404 .1520a(d)(1). 14 The ALJ did not err in finding Plaintiff’s mental impairments were non-severe. In 15 his analysis, the ALJ properly evaluated Plaintiff’s mental limitations in the four functional 16 areas. (AR at 16–17.) The ALJ found the Plaintiff had no limitation in the functional area 17 of understanding, remembering, or applying judgment. (AR at 16.) Likewise, the ALJ 18 found no limitations in the functional areas of interacting with others, or adapting or 19 managing oneself. (AR at 17.) As to the remaining functional area, concentrating, 20 persisting, or maintaining pace, the ALJ determined Plaintiff had a mild limitation. (Id.) 21 To make this determination, the ALJ relied on the opinions of Dr. Haggar and Dr. Drake, 22 where they opined that Plaintiff had an absence of, or mild, mental limitations. (AR at 21– 23 22.) The consultative examiners found Plaintiff exhibited minor, if any, problems with 24 attention, no problems with memory and a slight instability in mood. (Id.) Given the 25 consistency with the medical record and its noted “persuasive[ness]”, the ALJ properly 26 relied on these opinions. (AR at 22.) See Mitchell v. Colvin, No. CV-13-02384-PHX-JZB, [27] 2015 WL 1186222 , at *12 (D. Ariz. Mar. 16, 2015). Furthermore, the ALJ rejected Nurse 28 Linehan’s opinions because of its significant incongruence with Plaintiff’s treatments and 1 daily activities. (AR at 21.) See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) 2 (holding that the ALJ may reject opinions that are incongruent with claimant’s treatments). 3 The ALJ’s explanation proffers a specific and legitimate reason for discounting evidence 4 from an acceptable medical source. See Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 5 685, 687 (9th Cir. 2009). Accordingly, the Court finds the ALJ properly assessed Plaintiff’s 6 mental impairments as non-severe, with a proper reliance on the opinions of Dr. Haggar 7 and Dr. Drake and a proper rejection of Nurse Linehan’s conflicting statements. 8 Plaintiff also contends that the ALJ failed to consider her mental impairments in his 9 RFC analysis. (Pl. Br. 15–16.) The Ninth Circuit has held that an ALJ commits legal error 10 when he assigns mild limitations in the paragraph B analysis yet excludes those limitations 11 from the RFC determination. Hutton v. Astrue, 491 Fed. App’x 850, 850–51. The burden 12 of proof lies with the claimant to show that the ALJ erroneously erred in excluding those 13 limitations. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009). Plaintiff’s argument is not 14 persuasive given that the ALJ did consider her mental impairments in his RFC analysis. 15 The ALJ referenced Plaintiff’s “unstable” and “depressed mood”, “adequate attention and 16 comprehension” and “reported irritation.” (AR at 20, 22.) Further, the ALJ stated that he 17 “considered all symptoms and the extent to which these symptoms can reasonably be 18 accepted as consistent with the objective medical evidence . . . .” (AR at 18.) The Court 19 construes this statement to include Plaintiff’s alleged mental impairments. Accordingly, 20 the Court finds the Plaintiff failed to meet her burden and thus, finds no error. 21 B. Medical Opinion Evidence 22 Next, Plaintiff argues that the ALJ improperly rejected the opinions of her treating 23 cardiologist, Dr. Patel, and physician’s assistant (“PA”), Nancy Cooper. (Pl. Br. at 19.) In 24 response, the Commissioner argues that the ALJ properly provided legally sufficient 25 reasons, supported by substantial evidence, for discounting Dr. Patel’s and PA Cooper’s 26 opinions. (Def. Br. at 13–14.) 27 In assessing a claimant’s RFC, the ALJ considers “all of the relevant medical and 28 other evidence,” including medical opinion evidence. 20 C.F.R. § 416.945 (a)(3); see 20 1 C.F.R. § 416.927 .* Generally, the greatest weight is given to the medical opinions of a 2 treating physician. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). A treating 3 physician’s opinion is entitled to controlling weight only if the opinion is “well-supported 4 by medically acceptable diagnostic techniques and is not inconsistent with other substantial 5 evidence in the case record.” Jimenez v. Comm’r of Soc. Sec. Admin., 413 F. Supp. 3d 993 , 6 999 (D. Ariz. 2019); 20 C.F.R. §§ 404.1527 (d)(2). Further, “[t]he ALJ need not accept 7 [the] opinion of any physician, including a treating physician, if that opinion is brief, 8 conclusory, and inadequately supported by clinical findings.” Thomas, 278 F.3d at 957 . 9 Dr. Patel and PA Cooper jointly opined that Plaintiff has extreme functional 10 limitations, but this opinion is largely unsupported by the medical evidence as well as their 11 own treatment notes. (AR at 1295–98.) For example, Plaintiff received an X-ray 12 examination of her knee following a motor vehicle accident. (AR at 1439.) This 13 examination produced normal results, and a further physical examination showed Plaintiff 14 maintained normal strength, no swelling or deformity, and intact ligaments. (AR at 21, 15 1410.) Dr. Patel also found Plaintiff maintained a normal gait and posture, and at a later 16 visit, encouraged her to exercise by walking 30 minutes a day. (AR at 1471, 650.) While 17 Plaintiff argues a recommendation of walking for exercise is not inconsistent with finding 18 one disabled, it is inconsistent with the imposition of extreme functional limitations. These 19 exercise recommendations are especially inconsistent with Dr. Patel’s opinion that 20 Claimant could only perform “less than sedentary” work. (AR at 21, 1295–98.) 21 Additionally, the opinion of Dr. Patel and PA Cooper remains incongruent with 22 Plaintiff’s daily activities. Plaintiff reported that she independently shops without an 23 assistive device, performs housework, watches her granddaughter, conducts personal care 24 and goes out to dinner with her son. (AR at 20.) Further, in January 2018, Plaintiff reported 25 to Dr. Patel that she was walking four miles a day for exercise, without chest discomfort 26 or shortness of breath. (AR at 1474.) Plaintiff’s self-reported activities signal her ability to [27] * When considering medical opinions and prior administrative findings for claims filed 28 before March 27, 2017, the rules in 20 C.F.R. §§ 404.1527 , 416.927 apply. 20 C.F.R. §§ 404 .1520c, 404.1527, 416.920c, 416.927. 1 interact socially, manage her symptoms and function in public environments. Moreover, 2 the record is inapposite from the authority cited by Plaintiff, Vertigan v. Halter, where the 3 claimant suffered from physical—as opposed to mental—impairments. 260 F.3d 1044 , 4 1048–49. While it is true that physical activities bear no weight in determining the severity 5 of a physical impairment, the same cannot be assumed for mental impairments. See 20 6 C.F.R. § 404.1520 (c). The ALJ did not err in his interpretation of Plaintiff’s mental 7 impairments as non-severe and consequential rejection of the incongruent opinion of Dr. 8 Patel. 9 C. Symptom Testimony 10 Additionally, Plaintiff argues that the ALJ erred by rejecting her symptom testimony 11 without clear and convincing reasons, given the lack of malingering present. (Pl. Br. at 20– 12 21.) Plaintiff claims that the ALJ erred by discrediting Plaintiff’s symptom testimony on 13 an assertion that was not supported by the medical evidence, and on an attenuated reliance 14 of Plaintiff’s daily activities. (Id. at 21–22.) In response, Defendant argues that the ALJ 15 properly rejected the Plaintiff’s symptom testimony, given the objective medical evidence 16 and her daily activities. (Def. Br. at 17.) 17 An ALJ employs a two-step process in evaluating a claimant’s symptom testimony. 18 Garrison, 759 F.3d at 1014 . “First, the ALJ must determine whether the claimant has 19 presented objective medical evidence of an underlying impairment ‘which could 20 reasonably be expected to produce the . . . symptoms alleged.’” Lingenfelter v. Astrue, 504 21 F.3d 1028 , 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 22 Cir. 1991) (internal quotation marks omitted)). If the claimant presents this evidence, then 23 the ALJ can accordingly reject the claimant’s symptom testimony where there is evidence 24 of malingering, Lingenfelter, 504 F.3d at 1036, or by offering “specific, clear and 25 convincing reasons for doing so.” Garrison 759 F.3d at 1014–15. These reasons must be 26 sufficient to “permit the court to conclude that the ALJ did not arbitrarily discredit 27 claimant’s testimony.” Thomas, 278 F.3d at 958 . [28] 1 1. Objective Medical Record 2 The ALJ properly relied on objective medical evidence when rejecting Plaintiff’s 3 symptom testimony. (AR at 19–22.) Although the ALJ found that “the claimant’s 4 medically determinable impairments could reasonably be expected to cause some [of] the 5 alleged symptoms,” the Plaintiff’s statements concerning the effects of these symptoms are 6 generally inconsistent with the objective medical record. (AR at 19.) Plaintiff’s complaints 7 of knee pain do not correspond with the objective medical record. (AR at 1408.) The record 8 shows that following various injuries to Plaintiff’s knee, a 2017 X-ray revealed a normal 9 examination. (AR at 1410.) Plaintiff had maintained normal strength, no swelling or 10 deformity, and all of her ligaments remained intact. (Id.) The record also explicitly shows 11 that Plaintiff maintained normal stress tests and echocardiograms in both January 2016 and 12 May 2018. (AR at 1450, 1477, 1486.) This does not align with Plaintiff’s claims of chest 13 pain and chest tightness. (AR at 1478.) Given that these normal examination findings are 14 in contradiction with Plaintiff’s statements concerning the intensity, persistence and 15 limiting effects of her symptoms, the ALJ did not err in rejecting Plaintiff’s symptom 16 testimony. 17 2. Plaintiff’s Daily Activities 18 The ALJ also properly relied on Plaintiff’s daily activities when discounting 19 Plaintiff’s allegations. (AR at 16–17, 19–20.) 20 C.F.R. § 404.1529 (c)(3)(i); Smolen, 80 20 F.3d at 1284 (finding that the ALJ may consider the claimant’s daily activities when 21 weighing a claimant’s symptom testimony). Plaintiff claims her pain and depression inhibit 22 her various routine activities, yet she continues to conduct all routine activities. (AR at 93– 23 95, 559, 561.) She admits that she shops alone—without assistance—watches her 24 granddaughter, gardens, performs household chores, cares for herself, her two dogs, three 25 cats and three parrots, and goes out to dinner with her son. (AR at 561–62.) These activities 26 do not corroborate Plaintiff’s claimed difficulty in carrying out job tasks and daily 27 activities. (AR at 20.) Given these facts, the Court rejects any notion that the ALJ relied on 28 “post hoc rationale” (Reply at 9), and consequently affirms that the ALJ did not err in utilizing Plaintiffs daily activities to support the rejection of her symptom testimony. 2|| IV. CONCLUSION 3 The ALJ provided sufficient reasons supported by substantial evidence for finding 4|| Plaintiff's mental impairments to be non-severe, and for rejecting both the medical opinion 5|| evidence and symptom testimony. The Court affirms the ALJ’s nondisability 6 || determination. 7 For the forgoing reasons, 8 IT IS ORDERED affirming the July 31, 2018 decision of the Administrative Law 9|| Judge (AR at 166-69), as upheld by the Appeals Council on October, 28 2020 (AR at I6). 11 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. [13] 14 Dated this 11th day of July, 2022. [15] Michal T. Shurde M Michael T. Liburdi 18 United States District Judge [28] -10-