No. SACV 19-2395 AGR
MEMORANDUM OPINION AND ORDER
Plaintiff's name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 9, 10.)
Having reviewed the entire file, the court affirms the decision of the Commissioner.
Plaintiff filed an application for disability insurance benefits on May 6, 2015, and alleged that her disability began on that date. Administrative Record ("AR") 45. The application was denied initially and on reconsideration. AR 45, 268, 281. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). On January 24, 2018, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. AR 175-211. On April 5, 2018, the ALJ issued a decision denying benefits. AR 157-69. On October 29, 2019, the Appeals Council issued the final decision of the Commissioner. AR 42-60. This action followed.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"Substantial evidence" means "more than a mere scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and quotation marks omitted).
B. The Appeals Council's Findings
The Appeals Council found that Plaintiff met the insured status requirements through December 31, 2020. AR 48. Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006), the Appeals Council found that Plaintiff had the severe impairments of cervical spine degenerative disc disease; lumbar spine degenerative disc disease; right elbow flexion contracture with a history of fracture; right knee tendinitis; fibromyalgia; and migraines. AR 48.
The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant's impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114.
The Appeals Council found that Plaintiff had the residual functional capacity to perform a range of light work except that she could occasionally push/pull up to 20 pounds with the bilateral lower extremities; occasionally perform postural activities; and occasionally reach overhead with the bilateral upper extremities. She had to avoid concentrated exposure to extreme cold, extreme heat, wetness and vibration; and even moderate exposure to hazards such as unprotected heights, open bodies of water, and moving mechanical parts of equipment, tools or machinery. AR 52.
The Appeals Council concluded that Plaintiff was capable of performing her past relevant work as a receptionist and accounting clerk. AR 58-59.
C. Residual Functional Capacity
The residual functional capacity ("RFC") assessment measures the claimant's capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471 (1986). The RFC is a determination of "'the most [the claimant] can still do despite [the claimant's] limitations.'" Treichler v. Comm'r, 775 F.3d 1090, 1097 (9th Cir. 2014) (citation omitted). The RFC assessment must be supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
The Appeals Council stated that it based the residual functional capacity assessment on the medical facts and non-medical evidence such as observations and daily activities. AR 54. Plaintiff argues that the ALJ improperly discounted the opinions of Dr. Pang and Dr. Daniels, and her subjective allegations.
1. Plaintiff's Allegations
Like the Appeals Council, the court addresses first the claimant's subjective allegations. "Fibromyalgia is diagnosed 'entirely on the basis of patients' reports of pain and other symptoms' and 'there are no laboratory tests to confirm the diagnosis.'" Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017) (citation omitted).
In assessing a claimant's subjective allegations, the Commissioner conducts a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ determines whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce the symptoms alleged. Id. Here, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. AR 53-54. Second, the ALJ evaluates the intensity and persistence of the claimant's symptoms and determines the extent to which those symptoms limit the claimant's ability to perform work-related activities. Social Security Ruling ("SSR") 16-3p. Absent malingering, the ALJ must give specific, clear and convincing reasons for discounting the claimant's subjective allegations. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). To do so, the ALJ must identify the claimant's testimony that is found not to be credible and explain what evidence undermines that testimony. On the other hand, "[o]ur cases do not require ALJs to perform a line-by-line exegesis of the claimant's testimony, nor do they require ALJs to draft dissertations when denying benefits." Id.
The Appeals Council found that the medical evidence indicated her pain symptoms were adequately controlled with medication, and she reported activities of daily living - flying to Maui, going to movies, or taking care of her grandchildren - inconsistent with the severity of symptoms alleged in her hearing testimony. AR 53. The medical records do contain indications that Plaintiff's pain was adequately managed with medication. AR 1748, 1753, 1758, 1760, 1763, 1768. Although the Appeals Council may rely on lack of objective medical evidence to support the severity of Plaintiff's subjective allegations as one factor in the analysis, it may not rely exclusively on that factor to discount Plaintiff's subjective allegations. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
The Appeals Council's findings are supported by substantial evidence. Plaintiff reported to Dr. Pang in 2017 that she missed her appointment because she flew to Maui on a trip, and she had moved into a new multilevel home with stairs. AR 1718. Plaintiff reported in 2015 that she usually wakes up at 6:30 a.m. to 7:00 a.m., prepares breakfast, gives her stepchildren rides as needed, and does laundry and other household chores. She went out once a week with her new husband to dinner or movies. AR 540. She reported in 2016 that she cooks at home and works out a couple of times per week on an elliptical. AR 1216.
The Appeals Council may rely on a claimant's daily activities and inconsistent statements to medical sources. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) ("Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment."); Valentine v. Comm'r, 574 F.3d 685, 693 (9th Cir. 2009) (same); Thomas, 278 F.3d at 958-59 (noting ALJ may rely on inconsistencies in claimant's statements). Plaintiff argues that her self-reported activities do not detract from her subjective allegations. Plaintiff testified to rather extreme limitations. She testified that she could sit only five to ten minutes before having to get up and move around. AR 198. She spends a lot of time curled up in bed. AR 184-85. The Appeals Council could reasonably conclude that her ability to fly to Maui, a five or six hour flight, and her ability to go to the movies were inconsistent with these allegations regarding her ability to sit. The Appeals Council could reasonably conclude that her cancellation of diagnostic tests in December 2016 because she was taking care of her grandchildren before the holidays, and her regular activity in preparing breakfast for her stepchildren (10 and 12 years old) in 2015, were inconsistent with her testimony about very limited ability to sit, stand, walk and do household chores for five minutes at a time. AR 184-86, 197-99. Similarly, the report that Plaintiff cooks at home is inconsistent with her testimony at the hearing that she does not cook. AR 186, 198-99, 1216. Plaintiff has not shown error. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (when fibromyalgia claimant's testimony is equivocal and ALJ's interpretation is not the only reasonable one, "it is not our role to second-guess it").
As another example, Dr. Daniels' notes indicate that, in May 2017, Plaintiff reported increased pain from being a caretaker for her father for eight weeks in Hawaii. AR 1337. By contrast, at the hearing she testified that she just spent time with her father and told his caretakers what to do. AR 187.
2. Treating Physicians
The Appeals Council found that the medical evidence supported the diagnosis of fibromyalgia under the 1990 ACR criteria for classification of fibromyalgia: (1) a history of widespread pain; (2) at least 11 positive tender points found bilaterally on the body and both above and below the waist; and (3) evidence that other disorders that could cause the symptoms and signs were excluded. The Appeals Council noted that the medical record indicated a history of widespread pain since 2014, the requisite tender points bilaterally and both above and below the waist, and evidence that other disorders had been excluded by relatively benign MRIs and other evidence. AR 48.
The medical evidence indicates that autoimmune disease was ruled out. AR 1212.
"[T]he medical evidence must be construed in light of fibromyalgia's unique symptoms and diagnostic methods." Revels, 874 F.3d at 662.
An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When, as here, a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. at 632 (citations and quotation marks omitted). A non-examining physician's opinion may serve as substantial evidence when it is supported by other evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
"When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted).
Dr. Pang is a treating rheumatologist and diagnosed fibromyalgia.
On August 18, 2016, Dr. Pang opined that Plaintiff could walk two blocks, sit for four hours and stand or walk for less than two hours in an eight-hour workday. She would need a sit/stand option and would have to walk around every five minutes. She could rarely carry 10 pounds or less. She could never crouch or climb stairs or ladders, and could rarely twist or bend. She would need unscheduled breaks during the workday and would need to rest for five days before returning to work. Dr. Pang opined that Plaintiff would likely be off task 20% of the workday and absent more than four days per month. She could tolerate low work stress. AR 571-74.
On October 6, 2017, Dr. Pang opined that Plaintiff could walk two blocks, sit for 30 minutes at one time and two hours total in an eight-hour workday. She could stand for 20 minutes at one time and stand/walk less than two hours in an eight-hour workday. She would need a sit/stand option and walk around for five minutes every 30 minutes. She would need unscheduled breaks to sit quietly for 30 minutes. She could rarely lift 10 pounds and never lift anything more. AR 1696-98. She could rarely bend, crouch and climb stairs, but could never twist or climb ladders. She could rarely look up, look down, turn her head, or hold her head in a static position. She would likely be absent more than four days per month. AR 1698-99.
Dr. Daniels prepared a medical source statement (physical) on September 5, 2017. AR 1691-93. Dr. Daniels diagnosed cervical, lumbar and lumbosacral degenerative disc disease; cervical and lumbar radiculopathy; and right knee pain. She had pain in her neck, right upper extremity and right knee. AR 1691.
Dr. Daniels opined that Plaintiff could walk for two hours and sit/stand for less than two hours in an eight-hour workday. Plaintiff would need a sit/stand option and be able to walk around every 15 minutes. She would need up to eight unscheduled breaks. She could never lift even less than ten pounds. She could never look up and rarely look down or turn her head right or left. She could occasionally hold her head in a static position. She could rarely climb stairs and never twist, bend, crouch or climb ladders. She would likely be absent more than four days per month. AR 1691-93.
The Appeals Council gave little weight to the opinions of Dr. Pang and Dr. Daniels. The Appeals Council concluded that the opinions were inconsistent with the medical evidence as a whole and had little supportability in that the physicians did not document the medical facts and non-medical evidence relied upon in formulating their opinions. AR 58.
The Appeals Council considered the state agency opinions "with the entire record of evidence when formulating the restrictions in the residual functional capacity." AR 57. --------
Substantial evidence supports the Appeals Council's reasons for discounting Dr. Pang's August 18, 2016 opinion. In her treatment notes on that date, Dr. Pang noted that "[w]e" filled out the disability paperwork "but she is aware that I did not see her preceding March and cannot comment on her functional status." AR 1207. Given that Dr. Pang could not comment on Plaintiff's functional status, it is reasonable to conclude that the August 2016 opinion reflected Plaintiff's subjective allegations. "Right now she feels that she cannot do much activities due to the degree of pain." AR 1207. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ could reasonably discount physician's opinion based largely on claimant's allegations that were themselves properly discounted). Plaintiff presented as well nourished and not in any acute distress. AR 1206 ("WNWD," "NAD"). Dr. Pang observed that Plaintiff had significant sensitivity to pain with touch or minor stimuli. She could not wear a bra and people could not hug her. AR 1207, 1212.
As for Dr. Pang's October 6, 2017 opinion, the treatment notes on the same date indicated moderate pain of 6/10 with no joint pain, back pain or muscle pain. AR 1716-17. She presented as well nourished and in no acute distress. She had bilateral trapezius trigger points and knee crepitus. Plaintiff reported to Dr. Pang that she had flown to Hawaii and been gone for several months due to her father's heart condition. AR 1718. Plaintiff stated she is applying for long term disability. Dr. Pang "helped her fill out paperwork." She knows "objectively that she has daily symptoms worse with stress, worse with doing excessive activities." AR 1718. The Appeals Council could reasonably conclude that Dr. Pang does not disclose the medical and non-medical evidence that formed the basis of the opinions in the October 6, 2017 opinion. The opinion that Plaintiff could sit for 30 minutes at one time and two hours in an eight-hour workday was inconsistent with Plaintiff's report that she flew to Hawaii, a five or six hour flight. Nor is there any apparent basis for the rest of the opinions, such as the opinion that Plaintiff could not look up, look down, turn her head left or right, or hold her head in a static position. See Smith v. Berryhill, 752 Fed. Appx. 473, 475-76 (9th Cir. 2019) (noting ALJ could discount treating physician's opinion based on claimant's inconsistent self reports).
Similarly, the Appeals Council could reasonably conclude that Dr. Daniels did not disclose the medical or nonmedical evidence for his opinion dated September 5, 2017. Dr. Daniels opined that Plaintiff could sit for only 10 minutes at one time and less than two hours in an eight-hour workday. She could stand/walk for only 10 minutes at one time and for two hours in an eight-hour workday. AR 1691. Plaintiff reported that she had flown to Hawaii to take care of her father for eight weeks after his heart surgery. She reported that her pain was worse from being a caretaker. She had also moved to a new home. AR 1337. Plaintiff presented as well appearing in no apparent distress. AR 1339, 1747, 1752, 1757, 1762, 1767. Her pain level was at 7/10. AR 1338, 1751, 1756, 1761, 1766. As the Appeals Council noted, she had reported pain of 7/10 during her work history and, in 2015, worked 60 hours per week at that reported pain level. AR 54, 489, 540.
In summary, the court cannot say that the Appeals Council erred in concluding that the treating physicians' opinions were inconsistent with the record as a whole and did not disclose the evidence relied upon to support the opinions.
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. DATED: February 23, 2021
ALICIA G. ROSENBERG
United States Magistrate Judge