United States District Court, D. Alaska
ORDER
H.
Russel Holland United States District Judge
This is
an action for judicial review of the denial of disability
benefits under Title II of the Social Security Act, 42 U.S.C.
§§ 401-431. Plaintiff has timely filed her opening
brief, [1] to which defendant has
responded.[2] Oral argument was not requested and is not
deemed necessary.
Procedural
Background
Plaintiff
is Kim Therese Nute. Defendant is Carolyn W. Colvin, acting
Commissioner of Social Security.
On
October 2, 2012, plaintiff filed an application for
disability benefits under Title II of the Social Security
Act. Plaintiff alleged that she became disabled on May 16,
2012. Plaintiff alleged that she is disabled because of
multiple sclerosis, lack of full use of hands, weak legs,
depression, fatigue, occasional memory loss/confusion, and
weakened eyesight. Plaintiff’s application was denied
initially. A hearing was held on October 23, 2013. After a
supplemental hearing on May 7, 2014, an administrative law
judge (ALJ) denied plaintiff’s claim. On November 10,
2015, the Appeals Council denied plaintiff’s request
for review, thereby making the ALJ’s June 4, 2014
decision the final decision of the Commissioner. On January
8, 2016, plaintiff commenced this action in which she asks
the court to find that she is entitled to disability
benefits.
General
Background
Plaintiff
was born on August 24, 1964. She was 47 years old at the time
of the hearing. Plaintiff has a 9th grade education.
Plaintiff is married and lives with her husband in the lodge
that they operate. Plaintiff’s past relevant work
includes work as an accounting clerk, electronic sales
representative, PCB inspector, PCB reworker, short order
cook, waitress, Lodge manager, and chamber maid.
The
ALJ’s Decision
The ALJ
first found that plaintiff met “the insured status
requirements of the Social Security Act through December 31,
2016.”[3]
The ALJ
then applied the five-step sequential analysis used to
determine whether an individual is disabled.[4]
At step
one, the ALJ found that plaintiff had “not engaged in
substantial gainful activity since May 16, 2102, the alleged
onset date....”[5]
At step
two, the ALJ found that plaintiff had “the following
severe impairments: multiple sclerosis and major depressive
disorder....”[6]
At step
three, the ALJ found that plaintiff did “not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix
1....”[7] The ALJ considered Listing 11.09 (multiple
sclerosis) and Listing 12.04 (affective
disorders).[8] The ALJ considered the “paragraph
B” criteria and found that plaintiff had mild
restrictions in activities of daily living; mild difficulties
in social functioning; moderate difficulties with regard to
concentration, persistence, or pace; and no episodes of
decompensation.[9] The ALJ also found that the
“paragraph C” criteria were not
met.[10]
“Between
steps three and four, the ALJ must, as an intermediate step,
assess the claimant’s RFC.” Bray v.
Comm’r Soc. Sec. Admin., 554 F.3d 1219, 1222-23
(9th Cir. 2009). The ALJ found that plaintiff
has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except the claimant is limited
to occasional fingering with the bilateral upper extremities;
must avoid moderate exposure to non-weather related extreme
cold and non-weather related extreme heat; and work [is]
limited to 1-2 step tasks involving only simple work-related
decisions with few, if any, work place changes.[11]
The ALJ
found that plaintiff’s pain and symptom statements
related to her MS were “not supported by objective
evidence, her treatment seeking behavior, or her treatment
providers’ observations.”[12] The ALJ also
found plaintiff’s statements less than credible because
of “the apparent effectiveness of treatment” and
because of the “relatively few symptoms document[ed] in
the claimant’s treatment
records[.]”[13] The ALJ found plaintiff’s symptom
statements related to her depression less than credible
because they were “not supported by her treatment
seeking behavior or her treatment providers’
observations.”[14]
The ALJ
gave little weight[15] to Dr. Fraser’s
opinion.[16] The ALJ gave great weight[17] to Dr.
Feigin’s opinion[18] and to Dr. Winn’s
opinion.[19] The ALJ gave no weight to Dr.
Cullen’s and Dr. Downs’ opinions.[20] The ALJ gave
limited weight to the third-party testimony of
plaintiff’s husband.[21]
At step
four, the ALJ found that plaintiff was “unable to
perform any past relevant work....”[22]
At step
five, the ALJ found that “there are jobs that exist in
significant numbers in the national economy that the claimant
can perform[, ]” including motel/hotel housekeeper,
storage facility rental clerk, and self-service store
attendant.[23]
Thus,
the ALJ concluded that plaintiff had “not been under a
disability, as defined in the Social Security Act, from May
16, 2012, through the date of this
decision....”[24]
Standard
of Review
Pursuant
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner....” The court “properly affirms
the Commissioner’s decision denying benefits if it is
supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ’s decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ’s conclusion.’” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner’s decision.
Id. But, the Commissioner’s decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.’” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)).
Discussion
Plaintiff
argues that the ALJ erred in finding her pain and symptom
statements less than credible. “An ALJ engages in a
two-step analysis to determine whether a claimant’s
testimony regarding subjective pain or symptoms is
credible.” Garrison v. Colvin, 759 F.3d 995,
1014 (9th Cir. 2014). “‘First, the ALJ must
determine whether the claimant has presented objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged.’“ Id. (quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).
“In this analysis, the claimant is not required to show
‘that her impairment could reasonably be expected to
cause the severity of the symptom she has alleged; she need
only show that it could reasonably have caused some degree of
the symptom.’” Id. (quoting Smolen
v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
“Nor must a claimant produce ‘objective medical
evidence of the pain or fatigue itself, or the severity
thereof.’” Id. (quoting Smolen,
80 F.3d at 1281). “If the claimant satisfies the first
step of this analysis, and there is no evidence of
malingering, ‘the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing
so.’” Id. at 1014-15 (quoting
Smolen, 80 F.3d at 1281). “This is not an easy
requirement to meet: ‘The clear and convincing standard
is the most demanding required in Social Security
cases.’” Id. at 1015 (quoting Moore
v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924
(9th Cir. 2002)). “In evaluating the claimant’s
testimony, the ALJ may use ‘ordinary techniques of
credibility evaluation.’” Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting
Turner v. Comm’r of Social Sec., 613 F.3d
1217, 1224 n.3 (9th Cir. 2010)). “For instance, the ALJ
may consider inconsistencies either in the claimant’s
testimony or between the testimony and the claimant’s
conduct, unexplained or inadequately explained failure to
seek treatment or to follow a prescribed course of treatment,
and whether the claimant engages in daily activities
inconsistent with the alleged symptoms[.]” Id.
(internal citations omitted).
The ALJ
found plaintiff’s pain and symptom statements less than
credible because “relatively few symptoms [were]
documented in [her] treatment records”, the Tysabri
infusions appeared to be reasonably effective in treating her
MS, and her statements were not supported by her
treatment-seeking behavior, the objective medical evidence,
or her treatment providers’ observations.[25] Plaintiff
argues that these were not clear and convincing reasons.
The
first reason given by the ALJ, that there were relatively few
symptoms documented in plaintiff’s treatment records,
was not a clear and convincing reason. First, it is not
entirely clear what the ALJ meant by
“documented.” But, assuming that the ALJ was
referring to plaintiff’s self-reports of symptoms,
throughout 2012 and 2013, plaintiff consistently reported
paresthesia, rash, numbness with dulled sensation on her
right side, hand numbness, fatigue, reduced sensation in her
fingers, decreased attention span and concentration,
weakness, poor coordination, trouble walking, and trouble
holding and carrying things.[26] And, both Dr. Cullen and Dr.
Downs listed numerous symptoms as support for their
opinions.[27]
The
second reason given by the ALJ was that the Tysabri infusions
appeared to be reasonably effective in treating
plaintiff’s MS. This finding is not supported by the
record. Plaintiff had infusions from January 2013 through
September 2013. On April 16, 2013, plaintiff reported to Dr.
Downs that despite the Tysabri infusion, her walking was
getting worse and that she was getting “abnormally
fatigued....”[28] On the same day, Dr. Downs noted that
plaintiff continued to be unstable when trying to makes turns
when walking and that her attention span and concentration
were slightly reduced.[29] On June 10, 2013, plaintiff reported
to Dr. Cullen that her right leg pain had not improved after
two Tysabri infusions, she still complained of paresthesia
and fatigue, and Dr. Cullen noted that “there ha[d]
been little change in her symptoms, though hand numbness may
have become somewhat worse.”[30]And, at the October 2013
hearing, plaintiff testified that she continued to have
weakness, heaviness, and some numbness in her legs even with
the Tysabri infusions.[31] In sum, the record indicates that
plaintiff’s symptoms were getting slightly worse, or at
least not better.
The
next reason given by the ALJ was that plaintiff’s
statements were not supported by her treatment seeking
behavior. When assessing credibility, an ALJ may consider
“an unexplained, or inadequately explained, failure to
seek treatment or follow a prescribed course of
treatment.” Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989). Here, plaintiff had legitimate reasons for
not seeking treatment for her MS and depression, including
that she lived in a remote location, [32] that she
lacked insurance at times and therefore may not have been
able to afford treatment, [33] and that she had a fear of
injections and some MS treatments require
self-injections.[34] Plaintiff’s treatment-seeking
behavior was not a clear and convincing reason for finding
plaintiff’s pain and symptom statements less than
credible.
Finally,
the ALJ found that plaintiff’s pain and symptom
statements were not supported by objective medical evidence,
which can include her treatment providers’
observations. SSR 16-3p. This was a clear and convincing
reason to find plaintiff’s symptoms less than credible.
Dr. Downs’ and Dr. Cullen’s treatment notes
contain relatively little objective support for
plaintiff’s pain and symptom statements. Dr. Cullen
found plaintiff’s hand grip weaker on the right and
that she had poor fine motor activity and hypoesthesia in her
fingers.[35] Dr. Downs noted on two occasions that
plaintiff seemed to be unstable on turns when
walking[36] and found that plaintiff’s
“[f]ine motor is slow and a bit dyspraxic, particularly
on the right.”[37] Plaintiff also complained of visual
problems, but on April 16, 2013, Dr. Swanson found that
“from an ocular standpoint, Kim is doing
well.”[38] But, an ALJ may not rely solely on the
lack of objective medical evidence in finding that a
claimant’s subjective statements are not credible.
Fair, 885 F.2d at 601. Because the lack of objective
medical evidence was the only clear and convincing reason the
ALJ gave for finding plaintiff’s pain and symptom
statements less than credible, the ALJ erred as to
credibility.
Plaintiff
next argues that the ALJ erred in rejecting Dr.
Cullen’s opinions. On October 14, 2013, Dr. Cullen
opined that plaintiff was “unable to work”
because of her MS symptoms, which “include instability
with ambulation, reduced concentration, right-sided numbness,
blurred vision with fatigue, and hand
numbness.”[39] Dr. Cullen stated that “[t]hese
symptoms are debilitating and have left her unable to
regularly perform all of her normal daily
activities.”[40] On February 2, 2014, Dr. Cullen opined
that plaintiff could sit for 1-2 hours; could stand/walk for
1-2 hours; would need a 1/2 hour break every two hours; could
rarely lift up to 10-20 pounds and never 50 pounds; could
occasionally twist, stoop, and crouch/squat; could handle and
finger 20% of the day; could reach in front with her arms 30%
of the day; and could reach overhead 10% of the
day.[41]
Dr.
Cullen was a treating physician. “As a general rule,
more weight should be given to the opinion of a treating
source than to the opinion of doctors who do not treat the
claimant.” Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). “At least where the treating
doctor’s opinion is not contradicted by another doctor,
it may be rejected only for ‘clear and
convincing’ reasons.” Id. (quoting
Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir.
1991)). “[I]f the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not
reject this opinion without providing ‘specific and
legitimate reasons’ supported by substantial evidence
in the record for so doing.” Id. (quoting
Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.
1983)). Dr. Cullen’s opinions were contradicted by Dr.
Fraser’s opinion. Thus, the ALJ was required to give
specific and legitimate reasons for rejecting Dr.
Cullen’s opinions.
The ALJ
gave no weight to Dr. Cullen’s October 2013 opinion
because it was inconsistent with his documented examination
findings and because it was conclusory.[42] The ALJ gave
no weight to Dr. Cullen’s February 2014 opinion because
it was inconsistent with his documented examination
findings.[43] Plaintiff argues that these were not
legitimate reasons for rejecting Dr. Cullen’s opinions.
Dr.
Cullen’s October 2013 opinion was conclusory because he
simply stated that plaintiff could not work and did not
indicate what specific limitations plaintiff had. “[A]n
ALJ need not accept a treating physician’s opinion that
is conclusory and brief....” Tonapetyan v.
Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An ALJ may
also reject a treating physician’s opinion if it is
unsupported by his treatment notes. Connett v.
Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Dr. Cullen
found plaintiff’s hand grip weaker on the right, that
she had poor fine motor activity, and that she had
hypoesthesia (reduced sense of touch) in her
fingers.[44] These are the only documented
examination findings in Dr. Cullen’s treatment notes.
These limited findings may support Dr. Cullen’s opinion
as to the limitations plaintiff had with lifting, handling,
...