United States District Court, D. Oregon
DEBRA D. SHERMAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Plaintiff Debra Sherman brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits (DIB) and supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred in evaluating the evidence submitted by plaintiff and treating physician, Dr. Buscemi, and (2) whether the ALJ erred in evaluating plaintiff's headache symptoms under step two and four of the sequential evaluation. Because the ALJ articulated sufficient reasons supported by substantial evidence in the record for his evaluation of the respective evidence, the Commissioner's decision is AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for DIB and SSI on July 3, 2006, alleging disability since June 30, 2006. Tr. 12, 107, 176-184. These claims were denied initially and upon reconsideration. Tr. 12, 107, 120-29, 131-34. Plaintiff timely requested a hearing before an ALJ, and appeared before the Honorable John J. Madden on September 17, 2008. Tr. 54-98, 107. ALJ Madden denied plaintiff's claims by written decision dated December 24, 2008. Tr. 12, 107-116. Plaintiff sought review from the Appeals Council. Tr. 150-52.
Plaintiff filed new applications for DIB and SSI on January 20, 2009, alleging disability since December 25, 2008. Tr. 12, 118. Plaintiff was granted DIB, tr. 12, 103, but denied SSI because of her excess income, tr. 12, 117.
On January 19, 2011, the Appeals Council granted review of plaintiff's unfavorable decisions from 2008, reopened plaintiff's favorable decision from 2009, and consolidated plaintiff's claims. Tr. 12-13, 117-19. The Appeals Council directed ALJ Madden, upon remand, to resolve differences between plaintiff's 2008 and 2009 residual functional capacity (RFC) assessments and to obtain supplemental vocational expert (VE) testimony to clarify the effect of assessed limitations. Tr. 12-13, 119.
Plaintiff appeared before ALJ Madden a second time on November 8, 2011. Tr. 13, 33-53. ALJ Madden denied plaintiff's claims by written decision dated January 20, 2012. Tr. 12-25. Plaintiff sought review from the Appeals Council, which was subsequently denied, tr. 1-3, thus rendering the ALJ's decision final. Plaintiff now seeks judicial review.
Plaintiff, born on September 5, 1962, tr. 23, 114, graduated high school, obtained a Certified Nurse Assistant (CNA) diploma, and worked most recently as a Lab Assistant/Phlebotomist (1994-2006). Tr. 60-63, 206-207. Plaintiff was forty-three at the time of alleged disability onset, and forty-nine at the time of her second hearing. See tr. 23, 38. Plaintiff alleges disability due to: systemic lupus erythematosus with renal involvement and bilateral two through five digit deformities. Tr. 15-16.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's RFC, age, education, and work experience. Id.
Plaintiff contends that the ALJ erred in formulating and applying plaintiff's RFC under step four and five of the sequential evaluation. In particular, plaintiff argues that: (1) the ALJ erred in evaluating plaintiff's testimony; (2) the ALJ erred in evaluating Dr. Buscemi's opinion; and (3) the ALJ erred in evaluating plaintiff's headache symptoms.
I. Plaintiff's Testimony
Plaintiff contends that the ALJ improperly rejected her testimony. Pl.'s Br. 13-16, ECF No. 15. In response, defendant argues that the ALJ gave clear and convincing reasons for rejecting plaintiff's testimony. Def.'s Br. 4-7, ECF No. 17.
An ALJ must consider a claimant's symptom testimony, including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529, 416.929. "In deciding whether to accept [this testimony], an ALJ must perform two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant's testimony regarding the severity of her symptoms." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). If a claimant meets the Cotton 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. (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)). This Court "may not engage in second-guessing, " Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted), and "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation, " Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citations omitted).
The ALJ found that plaintiff's statements concerning the intensity, persistence and limiting effects of her symptoms were not credible to the extent that they were inconsistent with the RFC. Tr. 21, 23; see also supra note 4 (identifying plaintiff's RFC). The ALJ's credibility analysis relied on four reasons, including: (1) inconsistency with medical evidence; (2) sporadic and routine treatment; (3) inconsistent statements and actions; and (4) daily activities. This Court looks to those reasons.
First, as to inconsistency with medical evidence, the ALJ Found:
[T]here is no objective medical evidence of lupus-induced persistent profound symptoms to any of her body systems. Her treating nephrologist Dr. Purvis has documented infrequent lupus-induced flares of inflammation in her kidneys. Otherwise, her lupus and kidney functioning consistently has been stable, asymptomatic, doing well and/or in remission based on her clinical signs since September 2006. Consistent therewith, she has had overwhelmingly normal protein and creatinine levels on labs. (September and November 2006; January, March, May[, ] July, October[, ] and December 2007; January and April 2008; April 2009; February, August and September 2010; and February, April and July 2011 (Exhibits 1F [tr. 296]; 11F [tr. 333]; 17F [tr. 371]; 23F [tr. 402-404, 407-410]; 25F [tr. 437-38, 440-42, 444-45, 447, 450-53]; 35F [tr. 536, 540]; 39F [tr. 593, 606-612]; 40F [tr. 521, 631, 636, 638, 645]).
[B]etween August 2006 and October 2011, treating rheumatologist Dr. Boren found no evidence of progression in her lupus-induced bilateral two through five digit deformities. While he documented waxing and waning bruising, tenderness, swelling and/or effusion in her fingers, they rapidly improved on CellCept. Dr. Boren consistently found her lupus and digit deformities were stable (Exhibits 24F, [tr. 415]; 26F [tr. 466]; 25F [tr. 430-35, 438]; 21F [tr. 386, 388, 390]; and 14F [tr. 357-58]; 11F [tr. 327-28]; 42F [tr. 655]. While the claimant has osteopenia based DEXA studies (Exhibit 40F [tr. 627]), bilateral hand x-rays imaged maintained joints with no fracture, dislocation or focal swelling (Exhibit 37F [tr. 564-65]). In December 2006 and April 2009, Christopher Komanapali, M.D., and Dr. DeWayde evaluated the claimant's bilateral two through five digit deformities. She had no evidence of tenderness, effusion, crepitus or pain. She had no weakness or lack of endurance. She had no in coordination. In her upper extremities, she retained full motion, motor strength, bulk and tone. Her hands had the ability to grasp and manipulate both large and small objects with the first three digits, bilaterally. Her thumbs had normal opposition. She had no evidence of myotonia or grip release. In all digits bilaterally, she had intact sensory findings to light, deep and vibratory touch; normal reflexes; and intact cranial nerves. While she had obvious bilateral deformity at digits two through five, the claimant had normal joint position and intact grasping abilities to the extent consistent with the residual functional capacity below, which is not listing level. Finally, even with repetitive bilateral hand function, she had no diminution of strength (Exhibits 8F [tr. 314-18] and 37F [tr. 559-65]).
The ALJ, having considered the medical evidence, concluded that plaintiff's lupus and kidney functioning were consistently stable, asymptomatic, doing well and/or in remission based on her clinical signs since September 2006 except for documented infrequent lupus-induced flares of inflammation in her kidneys. Tr. 21. ...