GARY S. AUSTIN, Magistrate Judge.
Plaintiff Brenda Simmons ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge.
On November 30, 2015, Plaintiff filed an application for disability insurance benefits alleging disability beginning March 1, 2015. AR 23. The Commissioner denied the application initially on May 31, 2016, and upon reconsideration on September 12, 2016. AR 23. On November 4, 2016, Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 23.
Administrative Law Judge Ruxana Meyer presided over an administrative hearing on July 25, 2017. AR 38-90. Plaintiff appeared and was represented by an attorney. AR 38. Impartial vocational expert Judith Najarian (the "VE") also testified. AR 38.
On December 13, 2017, the ALJ denied Plaintiff's application. AR 23-32. The Appeals Council denied review on April 25, 2018. AR 1-3. On June 15, 2018, Plaintiff filed a complaint in this Court. Doc. 1.
Plaintiff (born March 21, 1978) lived with her children, her sister, and her sister's children. AR 45. Plaintiff was able to perform her own personal care. AR 73. She could feed herself, open doors and open jars. AR 76. She could pick things up and put them away. AR 73. She could rarely do dishes or laundry, sweep or vacuum. AR 73. Nonetheless, she did all the laundry for herself and her children. AR 79. Although she could only shop for about twenty minutes, Plaintiff enjoyed grocery shopping because it got her out of the house. AR 73-74.
As a young woman, Plaintiff completed a "full charge bookkeeping" course. AR 49. More recently, she attended online college in accounting but stopped for health reasons. AR 49. She had held a variety of jobs in bookkeeping and other office positions. AR 53-60. Her continual fatigue and pain impaired her work. AR 50. In 2015, her last employer fired her for multiple errors. AR 51-52. She was supporting herself on welfare with her sister's help. AR 60.
Plaintiff had a driver's license. AR 48. She drove her children to school and drove herself for shopping. AR 48.
Plaintiff reported repetitive motion injuries to her hands, including tendonitis and carpal tunnel syndrome, which resulted in her taking a year off from work in 2012 and 2013. AR 61-63. She had "whole body pain," particularly in her back, neck, shoulders, and arms. AR 62-63. The back pain extended into her right leg. AR 67. She took six oxycodone daily to relieve her pain, but they had little effect. AR 64, 72. Recent weight loss had not alleviated her pain. AR 64. Plaintiff took other medication for heart palpitations, depression and anxiety. AR 69. Ten times daily, she rested for thirty minutes at a time. AR 71.
Plaintiff could not stand in one place. AR 74. She could stand and walk for fifteen to thirty minutes before she needed to sit down and rest for up to one hour. AR 74-75. She could sit for ten to thirty minutes before needing to change position. AR 75. Because of muscle weakness in her arms, Plaintiff could lift only five to ten pounds. AR 75-76. Her brain was foggy, so thinking was difficult. AR 77. She could not concentrate on television or movies. AR 77-78.
On January 19, 2012, Plaintiff underwent a gastric biopsy which revealed mild chronic superficial gastritis. AR 322. A colonoscopy also performed on January 19, 2012, was normal except for internal hemorrhoids. AR 323.
Cervical spine x-rays dated April 14, 2013, revealed mild degenerative changes, mild encroachment at C4-5 by spurring, and straightening of the spine suggesting spasm. AR 282.
The record includes notes of Plaintiff's treatment by Daniel Watrous, M.D., a specialist in arthritis and osteoporosis, from April 6, 2015, through April 28, 2017. AR 475-91, 549-55, 698-752. Dr. Watrous' early examination notes indicate that Plaintiff's diagnoses included fibromyalgia, unspecified endometriosis, low back pain, sleep disturbance, fatigue and malaise. Plaintiff consistently complained of joint pain. Except for two instances of normal results, Plaintiff's blood pressure was high or very high. AR 476, 480, 484, 487, 490.
On April 6, 2015, Plaintiff complained of pain all over, greater on her right side. AR 489. Stress and depression were exacerbating her pain. AR 489. Plaintiff reported hair loss, fatigue, cough, weight gain, leg swelling, bruising and muscle weakness. AR 489. Dr. Watrous continued a diagnosis of fibromyalgia. AR 490. Plaintiff's medications included Norco, Gabapentin, Ibuprofen and Soma. AR 490. Beginning in August 2015, Dr. Watrous began administering Toradal injections. AR 484. Dr. Watrous noted that he encouraged Plaintiff to see a psychologist to manage depression and stress, but Plaintiff's insurance limited her access to mental health support. AR 490. In December 2015, Dr. Watrous referred Plaintiff for aquatic therapy and physical therapy, including a home exercise program. AR 477. (The record does not indicate whether Plaintiff participated in the recommended therapy.)
From April 29, 2015, through May 9, 2017, Tulare Community Health Clinic
On October 7, 2015, Plaintiff was treated at the Tulare Regional Medical Center ("TRMC") emergency department for coughing, chest pain and difficulty breathing. AR 407-25. Chest x-rays were generally normal but indicated moderate to moderately severe COPD or asthma and mild thoracic degenerative changes. AR 872.
On October 29, 2015, cardiologist Shaukat Ali, M.D., administered a stress echocardiographic study of Plaintiff, who had experienced chest pain. AR 333-48. Test results reported: (1) no exercise induce[d] ischemia by stress echocardiography; (2) good functional capacity (9 minutes); (3) no angina or arrhythmia; and, (4) a normal resting echocardiogram. AR 333.
On October 31, 2015, Plaintiff went to the TRMC emergency department reporting chest pain and palpitations. AR 358-406. Prudence Smith, M.D., found no evidence of pneumonia, CHF or effusions; normal heart size; and, mild hyperinflation with some peribronchiolar coarsening. AR 381.
On April 14, 2016, cervical spine x-rays indicate mild degenerative changes, straightening of spine suggesting spasm, preservation of disk space and vertebral alignment, mild encroachment upon neural foramina by a bone spur at C4/C5, no acute cervical fracture or prevertebral soft tissue swelling, and no apical pneumothorax. AR 536. A computed axial tomographic imaging (CT) scan of the cervical spine administered on the same day also revealed soft tissue masses most consistent with mildly enlarged lymph nodes and nonspecific thickening of the thyroid isthmus with a 5 mm. low density lesion on the left. AR 283
A May 9, 2016, ultrasound analysis of Plaintiff's thyroid identified: (1) a mildly prominent isthmus measuring 6 mm. thick; (2) a 6 x 13 mm diameter solid hypoechoic nodule in the mid right lobe of the thyroid; (3) a 7 mm. solid hypoechoic nodule in anterior left lobe; and, (4) a 2 mm. cyst in the inferior left lobe. AR 547.
By May 2016, Dr. Watrous had added diagnoses of hand pain, depression, neck pain, enlarged lymph nodes and tachycardia paroxysms. AR 549. Nerve conduction studies administered on May 12, 2016, indicated that median nerve conduction across both the right and left wrists and the left ulnar nerve were within normal limits, but there was nonspecific low right ulnar sensory amplitude. AR 527. Accordingly, Dr. Watrous removed carpal tunnel syndrome from Plaintiff's diagnoses. AR 555.
On July 22, 2016, a CT scan of Plaintiff's neck investigated lymphadenopathy (enlarged lymph nodes). AR 572-73. Frank Macaluso, M.D., analyzed the scan and noted:
A second CT scan on December 13, 2016, revealed no significant change from the July scan. AR 616.
On August 16, 2016, Plaintiff saw her gynecologist Parul Gupta, M.D., complaining of lumps in her breasts and abnormal discharges. AR 587-90. A subsequent diagnostic mammogram identified no significant mammographic change with benign-appearing calcifications and masses consistent with lymph nodes. AR 598-99.
On August 22, 2016, Plaintiff was treated for heart palpitations in the TRMC emergency department. AR 623. Treating physician Salah Sherif, M.D., advised Plaintiff to cut back on caffeine and see her family doctor. AR 630.
No phenotypical abnormalities were detected in a peripheral blood and bone marrow test completed September 29, 2016. AR 863, 868. Analysis of a needle biopsy of a cervical lymph node on October 7, 2016, revealed reactive lymphocytes consistent with reactive lymph nodes. AR 862. Lumbar spine x-rays on October 13, 2016, were normal and showed no change since April 1, 2013. AR 618. An October 25, 2016 CT scan of Plaintiff's abdomen and pelvis was unremarkable except for mild heptomegaly, a small right renal cyst and a 15-mm right ovarian cyst. AR 617.
In a report dated December 29, 2016, Francis McCully, Jr., M.D., stated that a PET scan of Plaintiff's body from the skull base to mid-thigh revealed abnormal hypermetabolic activity in Plaintiff's neck and throat but not in her brain. AR 856. The impression was:
On January 31, 2017, Dr. McCully added that no abnormal hypermetabolic activity was observed in Plaintiff's abdomen. AR 858.
A sonogram of Plaintiff's thyroid gland in February 2017, indicated a benign thyroid goiter without suspicious thyroid nodule. AR 873.
On March 7, 2017, otolaryngologist Jagdev Singh, M.D., examined Plaintiff following a referral by Dr. Watrous. AR 659-60. The examination was generally normal, although Dr. Singh noted severe gingivitis and carious (decayed) teeth. AR 659. The doctor opined that the hypermetabolic activity in Plaintiff's throat and neck might be attributable to chronic inflammation caused by her severe dental problems. AR 660. Dr. Singh recommended that Plaintiff "cut down on smoking and see a good dentist." AR 660.
In June 2017, Dr. Watrous added a diagnosis of "cancer thyroid unspecified." AR 887. Only the first page of the examination notes is included in the record, and no basis for the diagnosis is articulated.
Agency reviewers questioned Plaintiff's credibility, noting that her activities of daily living were overly restrictive, and her reports were contradictory. AR 98. On initial review, physician Sadda Reddy, M.D., wrote:
Dr. Reddy opined that Plaintiff was able to lift and carry twenty pounds occasionally and ten pounds frequently, and to sit, stand and walk for six hours in an eight-hour workday. AR 102. Although the doctor stated that Plaintiff had postural limitations, the doctor opined that Plaintiff was able to do all postural activities frequently. AR 102. On reconsideration, F. Greene, M.D., found the same physical residual functional capacity as Dr. Reddy. AR 120-21.
Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. "This court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9
If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9
To achieve uniformity in the decision-making process, the Commissioner has established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial gainful activity during the period of alleged disability, (2) whether the claimant had medically determinable "severe impairments," (3) whether these impairments meet or are medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) whether the claimant retained the residual functional capacity ("RFC") to perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of March 1, 2015. AR 25. Her severe impairments included depression, anxiety, hypertension, hypothyroidism and chronic fatigue syndrome. AR 25. None of the severe impairments met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). AR 26.
The ALJ concluded that Plaintiff had the residual functional capacity to lift and carry up to twenty pounds occasionally and ten pounds frequently; to sit, stand and walk six to eight hours in an eight-hour workday; and, to frequently stoop, crouch, crawl, kneel and climb stairs, ramps, ropes, ladders and scaffolds. AR 27. Plaintiff could perform simple routine tasks involving frequent contact with the general public. AR 27.
Plaintiff was unable to perform her past relevant work as an accounting clerk and bookkeeper. AR 30-31. Considering Plaintiff's age, education, work experience and residual functional capacity, however, jobs that Plaintiff can perform exist in significant numbers in the national economy. AR 31. Accordingly, the ALJ found that Plaintiff was not disabled from March 1, 2015, through December 13, 2017 (the date of the hearing decision). AR 32.
Plaintiff contends that the ALJ erred in concluding that Plaintiff's fibromyalgia was not a severe impairment. The Commissioner counters that even if the ALJ erred in failing to include fibromyalgia among Plaintiff's impairments, the error was harmless because the ALJ based her residual functional capacity determination on all limitations of record without regard for the impairment(s) to which those limitations related. The Court agrees that any error here was harmless.
At step two, the Commissioner determines whether the claimant has a medically severe impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987); 20 C.F.R. §416.920(a)(4)(ii). An impairment is a medically determinable physical or mental impairment or combination of physical or mental impairments. 20 C.F.R. § 416.902(f). If a claimant does not have an impairment of combination of impairments which significantly limit the claimant's physical or mental ability to do basic work activities, the Commissioner will find that the claimant does not have a severe impairment. 20 C.F.R. § 416.920(c).
"The step-two inquiry is a de minimus screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9
Even if an individual impairment is not sufficiently serious to prevent a person from working, an ALJ must consider the combined effect of all of the claimant's impairments on his or her ability to function as well as considering the claimant's subjective symptoms, such as pain or fatigue. Smolen, 80 F.3d at 1290. "If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process." SSR 85-28. The ruling warned:
For example, Ms. Smolen suffered from childhood cancer that resulted in the loss of one kidney, loss of part of her left lung, changes in her remaining lung tissue, mild anemia, suppression of bone marrow production, and spinal scoliosis, all of which led to severe fatigue and back pain. Smolen, 80 F.3d at 1290. The ALJ found only a single severe impairment, "slight scoliosis," which limited her ability to walk and sit. Id. The step two analysis disregarded Ms. Smolen's subjective symptoms when determining severity. Id. The Ninth Circuit rejected the step two analysis: "Having found Smolen to suffer from only one "severe" impairment at step two, the ALJ necessarily failed to consider at step five how the combination of her other impairments—and resulting incapacitating fatigue—affected her residual functional capacity to do work." Id. at 1291.
Plaintiff's situation is distinguishable. Despite finding at step two that Plaintiff's fibromyalgia was not a severe impairment, the ALJ in this case carefully considered the evidence relating to Plaintiff's complaints of pain and stiffness in her determination of Plaintiff's residual functional capacity at steps four and five. See AR 28-30.
The ALJ emphasized the inconsistency between Plaintiff's representations of the intensity, persistence and limiting effects of her condition and Plaintiff's normal gait, strength and range of motion. AR 28. The ALJ noted that Plaintiff remained able to perform a wide range of daily activities, including the care of her minor children. AR 28. In assessing Plaintiff's physical limitations, the ALJ gave significant weight to the assessments of the state agency physicians, Drs. Reddy and Greene, who both opined that Plaintiff was able to perform light work with frequent postural activities. AR 30. Plaintiff herself favors the opinions of Drs. Reddy and Greene, stating that "[t]hese physicians found the record establishe[d] fibromyalgia as a severe, medically determinable impairment, which was in fact the impairment responsible for significant functional limitations." Doc. 14 at 14.
"In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not `severe.'" Buck v. Berryhill, 869 F.3d 1040, 1049 (9
Plaintiff contends that although the ALJ appropriately gave great weight to Dr. Izzi's opinion, she erred in failing to include in Plaintiff's residual functional capacity the doctor's opinion of Plaintiff's limitations in social functioning. The Commissioner responds that the ALJ appropriately interpreted Dr. Izzi's opinion in her determination of Plaintiff's residual functional capacity. For the reasons stated below, the Court agrees with the Commissioner.
On April 17, 2016, psychologist Roger A. Izzi, Ph.D., conducted a consultative psychological examination. AR 510-14. Plaintiff complained of depression and was dysphoric. AR 511. Dr. Izzi administered the Wechsler Adult Intelligence Scale-IV (WAIS-IV) and determined that Plaintiff was functioning in the borderline to average range of intelligence. AR 512. Variability among the subtest scores suggested problems with attention and concentration. AR 512. The doctor also administered the Wechsler Memory Scale-IV (WMS-IV), which revealed deficits in memory functions. AR 513. The doctor diagnosed unspecified depressive disorder. AR 513. Based on his review of Plaintiff's medical records and his interview of Plaintiff, Dr. Izzi opined that Plaintiff's depression would vary according to Plaintiff's perception of her chronic pain. AR 513.
From a psychological viewpoint, Dr. Izzi thought Plaintiff appeared capable of performing a simple and repetitive task on a consistent basis over an eight-hour workday. AR 513. She had moderate limitation in her ability to get along with her peers or be supervised in a work-like setting. AR 513. Fluctuations in Plaintiff's mood were likely and would affect her ability to perform a complex task over an eight-hour period. AR 513. Plaintiff appeared capable of responding normally to issues of attendance and safety, and of dealing with changes in the routine work setting. AR 513.
R. Paxton, M.D., performed the psychiatric review technique. AR 100. He opined that Plaintiff had mild restriction of activities of daily living, moderate difficulties in maintaining social function and concentration, persistence and pace, and one or two episodes of decompensation for an extended period. AR 100. Dr. Paxton opined that Plaintiff had moderate limitations in her ability to carry out detailed instructions and to interact appropriately with the general public, but otherwise had no significant psychological limitations. AR 104-05. On reconsideration, psychologist Barbara Moura agreed with Dr. Paxton's opinions. AR 118, 121-23.
In the hearing decision, the ALJ first considered psychological evidence from the medical records:
The ALJ gave little weight to the third-party function report submitted by Plaintiff's sister, favoring medical documentation over the sister's "anecdotal observations." AR 29-30. Plaintiff's sister reported that Plaintiff's physical symptoms caused stress, anxiety and depression that impaired Plaintiff's ability to concentrate or complete activities. AR 29.
Similarly, the ALJ discounted the opinions of Drs. Paxton and Moura, finding that "these opinions . . . appear over restrictive in precluding any public contact based on minimal mental health treatment, documented mental status and observed demeanor at hearing." AR 30.
The ALJ gave the greatest weight and most careful analysis to Dr. Izzi's consultative opinion:
Accordingly, the ALJ determined that Plaintiff had the residual functional capacity mentally to perform simple routine tasks involving frequent contact with the public. AR 27.
Plaintiff would construe the evidence differently than the ALJ. Plaintiff's analysis and preferred outcome are not binding here. "[A]n ALJ is responsible for determining credibility and resolving conflicts in medical testimony." Magallanes v. Bowen, 881 F.2d 747, 750 (9
The Court is not required to accept Plaintiff's characterization of her treatment records. An ALJ appropriately disregards a medical opinion if it does "not show how [a claimant's] symptoms translate into specific functional deficits which preclude work activity." Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 601 (9
Even if this Court were to accept that the record could support Plaintiff's opinion, the record amply supports the ALJ's interpretation as well. When the evidence could arguably support two interpretations, the Court may not substitute its judgment for that of the Commissioner. Jamerson, 112 F.3d at 1066.
Based on the foregoing, the Court finds that the ALJ's decision that Plaintiff is not disabled is supported by substantial evidence in the record as a whole and based on proper legal standards. Accordingly, this Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Brenda Simmons.
IT IS SO ORDERED.
