Arizona Cases August 09, 2022: Porter v. Acting Comm'r of Soc. Sec. Admin.

Case Description

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REPORT AND RECOMMENDATION

Honorable Lynnette C. Kimmins United States Magistrate Judge

Plaintiff Elizabeth Porter brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 21-23.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, deny the appeal.

FACTUAL AND PROCEDURAL HISTORY

Porter filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in December 2019, alleging disability from September 30, 2019. (AR 539.) Porter was born in September 1982 and was 37 years of age at the alleged onset date of her disability. (Administrative Record (AR) 539.) She was fired from her last relevant work as a monitor at a bank parking lot. (AR 363, 569.) Porter's application was denied upon initial review (AR 394-419) and on reconsideration (AR 379-93, 422-36). A

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telephonic hearing was held on November 19, 2020. (AR 356-78.) The ALJ then found Porter was not disabled. (AR 47-62.) The Appeals Council denied Porter's request for review of that decision. (AR 1.)

The ALJ found Porter had severe impairments of Rubinstein Taybi syndrome, disc disease of the lumbar spine, generalized anxiety disorder, and depression. (AR 50.) He then determined Porter had the Residual Functional Capacity (RFC) to perform light work with several limitations: no climbing ladders, ropes, or scaffolds; occasionally climbing ramps or stairs, balancing, stooping, kneeling, crouching, and crawling; avoid concentrated exposure to extreme cold or heat, vibration, and hazards; only simple, repetitive tasks; and only occasional changes in the workplace. (AR 53.) The ALJ concluded at Step Five, based on the testimony of a vocational expert, that Porter could perform the jobs of bagger and stuffer, both of which existed in significant numbers in the national economy. (AR 61.)

STANDARD OF REVIEW

The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell , 461 U.S. 458, 460462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue , 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen , 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g).

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Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel , 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan , 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari , 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney , 981 F.2d at 1019 (quoting Richardson v. Perales , 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin. , 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan , 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger , 522 F.2d 1154, 1156 (9th Cir. 1975).

DISCUSSION

Porter brought one claim, in which she argues the ALJ erred in failing to provide clear and convincing reasons for rejecting her symptom testimony. In general, "questions of credibility and resolution of conflicts in the testimony are functions solely" for the ALJ. Parra v. Astrue , 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker , 694 F.2d 639, 642 (9th Cir. 1982)). However, "[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning." Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan , 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 16-3p. "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue , 504 F.3d 1028, 1035-36 (9th Cir. 2007).

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Initially, "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. at 1036 (quoting Bunnell , 947 F.2d at 344). The ALJ found Porter had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 55.) Next, "unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins , 466 F.3d at 883; Benton v. Barnhart , 331 F.3d 1030, 1040 (9th Cir. 2003) (holding an ALJ can reject claimant testimony if he finds evidence of malingering). The ALJ did not make a finding of malingering. Therefore, to support her discounting of Porter's assertions regarding the severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. See Robbins , 466 F.3d at 883.

In a January 9, 2020 function report, Porter stated that it was hard for her to do anything, extreme pain had taken her life away. (AR 589.) Her typical day involved eating, light housework, laundry, working on a jigsaw puzzle, and playing games on her phone. (AR 590.) When doing chores, she would rest for a few hours in between tasks and needed help with lifting. (AR 591.) She cared for cats with help from her husband. ( Id. ) Porter reported that getting dressed caused her to lose her balance, bending down to shave was painful, and she needed reminders to take medicine. (AR 590-91.) Her husband prepared all of her meals because she was unable to stand more than a short time. (AR 591.) She could walk only five minutes without a rest, and had restrictions in lifting, squatting, bending, reaching, remembering, completing tasks, and getting along with others. (AR 594.) Porter was able to drive but rarely went out, although she did shop with her husband. (AR 592, 593.) She reported an ability to follow instructions, but stated that pain made concentration difficult for her. (AR 593-94.) Also, stress impacted her pain level. (AR 595.)

At the November 19, 2020 hearing, Porter testified that the Rubinstein Taybi Syndrome caused her mental difficulties with memorization, mathematics, and comprehension. (AR 366.) She reported that she struggled with her last job because she

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was not able to control her emotions and experienced debilitating pain. (AR 366-67.) She stated that it took her hours to do chores because she had to rest due to pain, primarily in her lumbar area. (AR 368, 371-72.) She often cried, experienced anxiety, and was easily confused. (AR 368, 370, 372.) She was unable to sit or stand for more than ten minutes at one time. (AR 368-69.) She spent 6 to 7 hours per day laying down due to pain, and her medication made her drowsy. (AR 369.) She reported her pain was a 10 out of 10 on a normal day, even with the use of prescription medication. (AR 368-69.) Porter stated that she had difficulty controlling her moods, had outbursts, and got angry on a daily basis. (AR 369-70.) She testified that she rarely had left the house since Covid began. (AR 372.)

The ALJ found that Porter's testimony about her limitations was not fully consistent with the evidence of record. (AR 55.) The ALJ relied on his finding that Porter's symptoms improved with conservative treatment. (AR 59.) Also, the ALJ cited Porter's ability to engage in a "wide range of activities of daily living." ( Id. ) Finally, the ALJ found Porter's testimony not fully consistent with the medical opinions and objective medical evidence. ( Id. ) Porter primarily relied on two categories of symptoms as the reason she was unable to work, lumbar pain and symptoms related to psychological impairments. The ALJ offered the same reasoning as to both categories, but the Court discusses each separately.

Lumbar Pain

The ALJ discounted Porter's pain testimony because she received only conservative treatment and experienced a decrease in her pain. Porter received three L4-5 translaminar epidural injections between October 2017 and January 2019, prior to her September 2019 alleged onset date. (AR 971.) She reported a 50% improvement in symptoms after each injection, lasting 3 to 4 weeks. (AR 971, 981.) After the January 2019 injection, Porter rated her pain as averaging 6/10. (AR 1085, 1089.) With that improvement, she could work with less discomfort and more easily perform activities of daily living. (AR 1085.) After the third injection, however, she experienced prolonged menstrual bleeding. (AR 977.) And she was unable to continue injections due to a loss of medical coverage. (AR 967.) In December 2019, Porter indicated that the medications she had tried were not effective. (AR 864.)

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At that exam, Dr. Lin found no indication for surgery and recommended continued conservative treatment, although he stated that she could consider a spinal cord stimulator. (AR 866.) In May 2020, Dr. Ko counseled Porter that a spinal cord stimulator was only a last resort, and she did not meet the criteria; Porter decided to pursue neuropathic pain medication. (AR 965.) At that appointment, she rated her pain as averaging a 9/10. (AR 1044.) The following month, she rated her pain as averaging an 8/10. (AR 1039.) In September 2020, Porter reported that her pain was averaging 5-6/10. (AR 1034.) In November 2020, Porter reported to a doctor that she had not experienced pain radiating in her leg since receiving an epidural the prior month. (AR 933.)

"[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment." Parra , 481 F.3d at 751 (citing Johnson v. Shalala , 60 F.3d 1428, 1434 (9th Cir. 1995)). With respect to the nature of Porter's treatment, Dr. Lin found she was not a surgical candidate and recommended what he labeled "conservative management." (AR 866.) Dr. Ko advised that she was not a candidate for a spinal cord stimulator, but she could try various medications. (AR 965.) The medical profession appears to consider the injections and medications prescribed for Porter to be conservative. However, "[c]ourts have variously characterized steroid epidural injections as both conservative and not conservative depending on other circumstances." Bostock v. Berryhill , No. 2:18-CV-02565-JDE, 2018 WL 5906174, at *4 (C.D. Cal. Nov. 9, 2018). Because Plaintiff received only one type of injection, was not taking narcotic medication, and never required an assistive device for walking, the Court finds substantial evidence to support the ALJ's finding that Porter's pain was treated solely with conservative treatment. See Burch v. Barnhart , 400 F.3d 676, 680-81 (9th Cir. 2005) (upholding "the ALJ's decision where the evidence is susceptible to more than one rational interpretation.") (quoting Magallanes , 881 F.2d at 750).

Regardless of the nature of the treatment, the Court finds substantial evidence to support the ALJ's finding that Porter's pain improved with treatment. SSR 16-3p § 2(b) (finding success or failure of treatment relevant to evaluating symptom testimony). After

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injections, Porter reported a 50% reduction in symptoms, including an improved ability to perform her job and activities of daily living. At that time, her pain was averaging a 6/10. After several months of neuropathic pain medication in 2020, Porter reported her pain level had improved, even slightly more than from injections, averaging between a 5 and a 6 out of 10. Presumably, at this level, her daily functioning ability should have been improved as much or more than when she felt her pain level to be a 6/10. And one of the most recent medical records indicated she had received an injection and obtained benefit from it.

The opinions of the state agency medical consultants conflicted with Porter's testimony in several respects, and the ALJ found the medical opinions more persuasive and a reason to reject Porter's symptom testimony. Porter testified that she experienced chronic high levels of pain, and had limitations in lifting, bending, squatting, and reaching. She reported being able to walk, sit, or stand for less than ten minutes at one time, and spent 6 or more hours per day laying down. The state agency medical consultants, Drs. Vaghaiwalla and Hartman, determined Porter could perform light work, which requires lifting up to 10 pounds frequently, with extended periods of standing, walking, and/or sitting, 20 C.F.R. §§ 404.1567(b), 416.967(b). (AR 401-02, 430-32.) The opinions of the state agency medical consultants were a clear and convincing reason, supported by substantial evidence, to reject Porter's symptom testimony. SSR 16-3p § 2(b) (directing ALJs to consider testimony and findings from reviewing physicians regarding the severity of a claimant's symptoms); Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1161 (9th Cir. 2008) (upholding the ALJ's rejection of claimant's symptom testimony in favor of a contradictory medical opinion); Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002). In this case, the only two medical opinions agreed on Porter's physical limitations and provided a clear and convincing reason to discount her symptom testimony. Cf. Lingenfelter v. Astrue , 504 F.3d 1028, 1037-38 (9th Cir. 2007) (finding ALJ should not have relied on medical opinion to reject symptom testimony because the record contained contradictory medical opinions).

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The ALJ also found that the objective medical evidence did not support the severity level of the symptoms reported by Porter. A 2015 MRI reflected L4/5 degenerative disc disease and mild right L4/5 neuroforaminal stenosis. (AR 971.) In late January 2019, Porter had paraspinal tenderness and mildly limited range of motion (painful in flexion); but her gait, sensation, and strength were normal, she had no spasms or trigger points, and a sitting straight leg raise was negative to 70 degrees. (AR 1088.) In April 2019, her exam was normal with the exception of a positive straight leg raise at 60 degrees and paraspinal tenderness. (AR 1063.) In December 2019, an x-ray showed mild degenerative disc disease and mild diffuse spondylosis. (AR 788, 868.) At an early December 2019 exam, PA Frank Perez found paraspinal tenderness, limited and painful range of motion, decreased sensation to the right calf, and sitting straight leg raise positive at 60 degrees bilaterally. (AR 970.) Her gait was normal, strength 5/5 in lower extremities, and she had no spasms, trigger points, sacroiliac joint tenderness, or facet loading signs. ( Id. ) Later that month, Dr. Lin noted a decreased range of motion and tenderness, but no pain, negative straight leg raise, and a normal gait, sensation, and strength. (AR 865-66.) The findings from the MRI and x-ray were mild. Porter's exams consistently revealed tenderness and varying degrees of limitation in range of motion, with some positive straight leg raise tests. But other times Porter's straight leg raise was negative, and her gait, strength, and other objective findings remained normal at all exams. Therefore, there is substantial evidence to support the ALJ's finding that Porter's symptom testimony regarding lumbar pain was not consistent with the objective medical evidence. See Burch , 400 F.3d at 681 ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.")

Anxiety and Depression

The ALJ relied upon Porter receiving only conservative mental health treatment and experiencing improvement from that treatment. Porter saw a therapist from October 2016 to May 2019, prior to her September 2019 alleged onset date. (AR 875.) In March 2019, the therapist referred Porter to her primary care doctor for a medication evaluation. (AR 884.)

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Prior to her alleged onset date, Porter's primary care doctor began prescribing medication to her for depression and anxiety. Other than the therapist, there are no records from a mental health specialist. Therefore, there is substantial evidence to support the ALJ's finding that Porter received only conservative treatment for her anxiety and depression.

In contrast, the ALJ did not cite any evidence to support his finding that Porter's mental health symptoms improved with treatment. (AR 56-59.) In fact, the ALJ cited a record dated three months before his opinion (October 22, 2020), in which Porter's scores on screening questionnaires revealed moderately severe depression and severe anxiety. (AR 57 (citing AR 949-50).) At that time, the doctor determined Porter's anxiety and depression were both uncontrolled. (AR 950.) There is not substantial evidence to support the ALJ's finding that Porter's mental health symptoms improved with treatment.

The opinions of the state agency psychological consultants and examining consultant, Dr. Rezapour, conflicted with Porter's testimony in some respects, and the ALJ found the medical opinions more persuasive and a reason to reject Porter's symptom testimony. Porter testified to having issues with her memory, comprehension, concentration, completion of tasks, getting along with others, and controlling her mood. Dr. Rezapour acknowledged Porter's mood to be anxious and irritable. (AR 871.) However, after examining and testing her mental state, he found only mild limitations in social functioning and maintaining an even temperament. (AR 872.) He also rated her difficulties with concentration, persistence, and focus as mild. ( Id. ) Drs. Keeshin and Flocks also found Porter had mild limitations in social interactions, but identified moderate limitations in understanding, remembering, and applying information, concentration, persistence, pace, and adapting and managing oneself. (AR 403-04, 432-34.) As Porter did not qualify her mental limitations in the way the doctors did, it is challenging to compare her testimony with the medical opinions. Regardless, the ALJ adopted the more restrictive findings of the reviewing doctors and limited Porter to simple, routine tasks, and occasional changes in the workplace. (AR 53.) This appears to encompass the moderate limitations found by the doctors as well as Porter's testimony to limitations in memory, comprehension, and

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concentration. The ALJ did not find Porter had any limitations in interacting with others, which comports with the mild limitation findings of the doctors. However, that contradicts Porter's testimony that she had limitations in getting along with others and lack of mood control. The opinions of the state agency medical consultants and examining psychologist were a clear and convincing reason, supported by substantial evidence, to reject, in part, Porter's mental health symptom testimony. SSR 16-3p(2)(b); Carmickle , 533 F.3d at 1161; Thomas , 278 F.3d at 958-59.

The ALJ also found that the objective medical evidence did not support the severity level of the mental health symptoms reported by Porter. At five therapy appointments between March and May 2019, Porter's mood and affect were either depressed or anxious (with the exception of one appointment when she exhibited a normal affect). (AR 884-88.) However, her appearance, speech, and thought process were normal, she had no risk factors, and her mood improved from the therapy. ( Id. ) A social worker Porter had seen for therapy also completed an evaluation in May 2020, one year after last seeing Porter. (AR 875-81.) She documented Porter as cooperative, with normal speech, memory, and concentration; however, she reported an anxious and depressed mood and affect, mild impairment in judgment, agitated motor activity, and persecution delusions. (AR 875-76, 881.) During a February 2020 consulting exam, Porter's speech was at times excessive, and her mood and affect were anxious and irritable, but she was cooperative, had good eye contact, established a rapport, and exhibited normal psychomotor activity, thought content, and thought process. (AR 871.) In October 2020, at an appointment to review her psychiatric medications, Dr. Pyun documented Porter as pleasant with a normal affect. (AR 949.) The remaining records, from medical professionals that Porter saw from 2019 forward, do not document any abnormal psychiatric findings. Therefore, there is substantial evidence to support the ALJ's finding that Porter's symptom testimony regarding mental health limitations was not consistent with the objective medical evidence. See Burch , 400 F.3d at 681.

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Conclusion

The Court finds the ALJ found more than one clear and convincing reason to discount Porter's symptom testimony regarding her pain and mental health symptoms, including the objective medical evidence, the medical opinions, and the nature and success of treatment. Further, the ALJ's reasons are supported by substantial evidence. Because the Court finds sufficient grounds to uphold the ALJ's finding on Porter's symptom testimony, it does not evaluate whether Porter's activities of daily living provide another basis to discount her testimony.

RECOMMENDATION

A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). The Court concludes the ALJ did not err as to the one claim raised by Porter. Therefore, the Magistrate Judge recommends that the District Court deny Plaintiff's appeal.

Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-193-TUC-JCH .