Nute v. Colvin

          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, ...