Opinion
Case No. 3:18-cv-01101-YY
08-06-2019
ZUMAL.-B., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION :
Zuma L.-B. ("plaintiff") seeks judicial review of the final decision by the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Title II Disability Insurance Benefits ("DIB") under the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The Commissioner's decision is supported by substantial evidence; therefore, it should be AFFIRMED.
PROCEDURAL HISTORY
Plaintiff filed an application for DIB on July 6, 2015, alleging disability beginning October 5, 2005. Tr. 41. Plaintiff's claim was initially denied on September 9, 2015, and upon reconsideration on November 17, 2015. Id. A hearing was held before an Administrative Law Judge ("ALJ") on March 15, 2017, in which plaintiff testified, as did a vocational expert ("VE"). Tr. 57-93. At the hearing, plaintiff amended his alleged onset date to October 1, 2009. Tr. 41, 60-61. On May 19, 2017, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 41-49. After the Appeals Council denied his request for review, plaintiff filed a complaint in this court. Tr. 1-6. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and "'may not affirm simply by isolating a specific quantum of supporting evidence.'" Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 42-43.
At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 43.
At step two, the ALJ found plaintiff has the severe impairment of a urinary tract disorder. Id.
At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 44. The ALJ next assessed plaintiff's residual functional capacity ("RFC") and determined that he could perform a full range of medium work as defined in 20 C.F.R. § 404.1567(c). Id.
At step four, the ALJ found plaintiff was able to perform his past relevant work as a systems administrator. Tr. 47-48. By finding plaintiff was able to do his past relevant work, the ALJ determined plaintiff was not disabled; therefore, the ALJ did not proceed to step five. 20 C.F.R. §§ 404.1520(a)(4), 404.1520(f).
FINDINGS
Plaintiff argues that the ALJ erred by improperly discounting his subjective symptom testimony and erroneously assessing the medical opinion evidence of Dr. Lubahn, Dr. Niehus, and physician's assistant (PA) Jessica Vincent.
I. Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling ("SSR") 96-7p, governing the assessment of a claimant's "credibility," and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to "credibility," clarifies that "subjective symptom evaluation is not an examination of an individual's character," and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine "the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record." Id. at *4.
A. Lack of Medical Evidence
The ALJ found that plaintiff's "allegations of debilitating impairment existing on or before December 31, 2014, are not fully supported by the treatment records and objective evidence." Tr. 45. Specifically, the ALJ found plaintiff's "medical records show his condition was stable from October 2008 through the date last insured and he was seeing a physician only once a year with stable exams." Id. While a lack of medical evidence cannot serve as the sole reason for discrediting plaintiff's testimony, "it is a factor that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
Plaintiff argues the "fact that a medical condition is 'stable' does not mean that it is [not] ca[u]sing symptoms or that it is not disabling." Pl. Br. 13, ECF #8. While that may be true in some circumstances, here, medical records show that plaintiff's condition was not disabling. Critically, during the entirety of the relevant period—from October 1, 2009, through December 31, 2014—there are no treatment notes in which plaintiff reported urinary incontinence of any sort. Indeed, the treatment notes from 2011 to 2014 explicitly state that plaintiff was not experiencing urinary incontinence, frequency, or urgency. Tr. 410, 414, 417, 419. Accordingly, the ALJ properly relied on the lack of medical evidence.
B. Activities of Daily Living
An ALJ may invoke activities of daily living in the context of determining symptom allegation credibility in order to (1) illustrate a contradiction in previous testimony, or (2) demonstrate that the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ found that plaintiff's ability to take classes at Portland State University was inconsistent with his allegations. Tr. 46. However, plaintiff testified that the longest class that he took was 90 minutes and he would have to leave halfway through the class to go to the bathroom. Tr. 84-85. Because the ALJ failed to explain how plaintiff's ability to take classes was inconsistent with his testimony, this does not constitute a valid basis for discounting his testimony. See Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918).
C. Reason Plaintiff Stopped Working
The ALJ also cited the fact that plaintiff was laid off due to "downsizing and economic reasons rather than due to his incontinence issues." Tr. 46. The fact that a claimant stopped working for reasons other than his impairment is a proper basis for discounting the claimant's symptom testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
Plaintiff argues that an employer keeping "a 27 year employee, who needed frequent 10 minute restroom breaks for a few years after cancer surgery, is not a reason for discounting [plaintiff's] testimony." Pl. Br. 14, ECF #8. Even if plaintiff's suggestion—that his employer kept him on for a few years out of sympathy—is accepted by the court as a reasonable interpretation of the record, the ALJ's finding was also reasonable. Where the evidence presents the possibility for multiple interpretations and the Commissioner's decision is rational, the decision must be affirmed because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Tommasetti, 533 F.3d at 1040. Therefore, this was a proper basis for discounting plaintiff's symptom testimony.
Plaintiff does not allege that the layoff had anything to do with his impairment. While plaintiff testified that his incontinence caused him to take longer to do his job, the record does not reflect that his employer ever raised an issue regarding his work performance. Tr. 82. --------
In sum, while plaintiff's activities of daily living are not a clear and convincing reason for rejecting plaintiff's symptom testimony, that error was harmless because the lack of medical evidence and the reason plaintiff stopped working constitute clear and convincing rationales sufficient to discount plaintiff's symptom testimony. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (the ALJ's overall credibility decision may be upheld even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld.).
II. Medical Opinion Evidence
The ALJ is responsible for resolving ambiguities and conflicts in the medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). However, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Additionally, the ALJ may discount physicians' opinions based on internal inconsistencies, inconsistencies between their opinions and other evidence in the record, or other factors the ALJ deems material to resolving ambiguities. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999).
A. Dr. Lubahn
Dr. Lubahn saw plaintiff on February 10, 2016, on a referral from PA Vincent. In her chart notes, Dr. Lubahn wrote, "The patient states that the ONLY reason he is here is for me to sign disability paperwork. . . ." Tr. 488. Dr. Lubahn told plaintiff, "I do not have cause to sign any paperwork for him." Id. The ALJ gave great weight to Dr. Lubahn's opinion, finding it "suggests that the claimant was not disabled even as of February 10, 2016, more than one year after the claimant's date last insured." Tr. 47.
Despite Dr. Lubahn's ultimate conclusion that plaintiff was not disabled, she noted that plaintiff was wearing 10 pads per day and going to the bathroom 20-30 times per day. Tr. 488. While Dr. Lubahn may have believed such urinary frequency was not disabling, the VE testified that if plaintiff needed to use the bathroom once every hour, that would be disabling. Tr. 91-92. Accordingly, notwithstanding Dr. Lubahn's conclusion that plaintiff was not disabled, her notes regarding plaintiff's urinary frequency appear to establish that plaintiff's impairment reached a disabling level in 2016.
Nevertheless, any error in the ALJ's assessment of Dr. Lubahn's opinion is harmless because the urinary frequency noted by Dr. Lubahn occurred more than a year after the relevant period. As noted above, the record lacks evidence that plaintiff was suffering from incontinence or urinary frequency between October 1, 2009, through December 31, 2014. See Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (harmless error exists if "the mistake was . . . irrelevant to the ALJ's ultimate disability conclusion").
B. PA Vincent
Evidence from an acceptable medical source is used to establish whether a claimant has a medically determinable impairment. 20 C.F.R. § 404.1521. Acceptable medical sources include licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 404.1502. Evidence from "other sources," including, but not limited to, "nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, [and] therapists," may also be used to show the severity of a claimant's impairments and how they affect his ability to work. SSR 06-03p at *2.
Because Vincent is a physician's assistant, she is considered an "other source." 20 C.F.R. § 404.1502. To reject evidence from "other sources," the ALJ must give germane reasons for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
The ALJ rejected PA Vincent's opinion and gave it "no weight" because she did not treat plaintiff during the relevant period. Tr. 47. This constitutes a proper basis for discounting PA Vincent's opinion. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223-24 (9th Cir. 2010) (holding ALJ did not err in declining to address the opinion of an "other" source that was outside the relevant period).
Plaintiff argues that the ALJ's rationale is inconsistent because the ALJ gave great weight to Dr. Lubahn's opinion, even though Dr. Lubahn did not treat plaintiff during the relevant period. Pl. Br. 18, ECF #8. However, the ALJ relied on Dr. Lubahn's opinion to the extent it showed plaintiff was not disabled as of February 10, 2016, which the ALJ explicitly noted occurred "more than one year after the claimant's date last insured." Tr. 47. Therefore, the ALJ's treatment of the opinions of PA Vincent and Dr. Lubahn is not inconsistent. Moreover, the ALJ credited Dr. Lubahn's opinion, and the ALJ is not required to discuss in detail or provide explanations for accepting medical opinions; rather, the ALJ need only offer reasons when rejecting them. See Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).
The ALJ also rejected PA Vincent's opinion on the basis that she relied only on plaintiff's subjective reports. Tr. 47. When medical "opinions are based to a large extent on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (internal quotations and citations omitted). As discussed above, the ALJ properly rejected plaintiff's subjective symptom testimony. Moreover, there are no medical records from the relevant period that substantiate PA Vincent's assessment. Accordingly, PA Vincent's over reliance on plaintiff's subjective reports constitutes an additional germane reason for rejecting her opinion.
C. Dr. Niehus
The Appeals Council reviewed a letter submitted by Dr. Niehus and concluded that "this evidence does not show a reasonable probability that it would change the outcome of the decision." Tr. 2. The Appeals Council "did not consider and exhibit this evidence," and denied plaintiff's request for review Tr. 1.
This court lacks jurisdiction to review a decision of the Appeals Council denying a request for review of an ALJ's decision, because the Appeals Council decision is a non-final agency action. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 2012) "When the Appeals Council declines review, the ALJ's decision becomes the final decision of the Commissioner, . . . and the district court reviews that decision for substantial evidence, based on the record as a whole[.]" Id. (citations and quotations marks omitted).
However, "when a claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ's decision, the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence." Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012) (emphasis added). In Brewes, the Appeals Council had incorporated the new evidence into the administrative record and expressly considered it in denying review of the ALJ's decision. Id. at 1161-62. On the other hand, if the Appeals Council does not consider the supplemental evidence and it does not become part of the record, then the court does not consider it in determining whether substantial evidence supports the denial of benefits. Knipe v. Colvin, No. 3:14-cv-01533-SI, 2015 WL 9480026, at *5 (D. Or. Dec. 29, 2015); see also Ruth v. Berryhill, No. 1:16-cv-0872-PK, 2017 WL 4855400, at *9 (D. Or. Oct. 26, 2017) (holding that where Appeals Council looked at but did not consider additional evidence, it was not subject to review by the court).
The parties appear to treat Dr. Niehus' opinion as if it had been considered by the Appeals Council. Pl. Br. 18, ECF #8; Def. Br. 5, ECF #9. While the letter from Dr. Niehus was included in the administrative record as part of the documentation related to plaintiff's appeal, the Appeals Council explicitly and unequivocally stated that it "did not consider and exhibit this evidence." Tr. 2; see also Tr. 11 (copy of Dr. Niehus' letter included in the record as part of the appeal documentation but not exhibited as medical evidence). Where the Appeals Council explicitly declined to consider the newly submitted evidence or make it part of the record, this court cannot consider it, and ALJ's decision is the final decision of the Commissioner subject to review. Knipe, 2015 WL 9480026, at *5.
Furthermore, a plaintiff cannot justify a remand "simply by obtaining a more favorable report from an expert witness once his claim is denied." Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985)). Indeed, a claimant must establish good cause for failing to seek a doctor's opinion prior to the denial of his claim. Id.
Dr. Niehus was plaintiff's primary care provider dating back to at least 2005. Tr. 314, 350. Nevertheless, plaintiff did not obtain an opinion from Dr. Niehus until 2017, after his claim had been denied. Tr. 11, 41-49. Plaintiff provided no explanation as to why he waited until after the hearing to solicit Dr. Niehus' opinion. Because plaintiff has not established good cause for his failure to seek Dr. Niehus' opinion prior to the denial of the claim, this court lacks authority to consider it.
RECOMMENDATION
For the reasons discussed above, the decision of the Commissioner should be AFFIRMED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, August 20, 2019. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. // // // // //
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED August 6, 2019.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge