Greig v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BRADY G.,1

Plaintiff, Civ. No. 6:22-cv-00618-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

denying his application for supplemental security disability insurance benefits under Title XVI of

the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred by (1) finding

unpersuasive the medical opinion of Royce Ryker, FNP-C, and (2) improperly rejecting

Plaintiff’s subjective symptom testimony. Because the Commissioner’s decision is based on

proper legal standards and supported by substantial evidence, the Commissioner’s decision is

AFFIRMED.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the

last name of the non-governmental party.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for benefits on April 26, 2019, alleging disability as of February 1, 2018.

Tr. 163-164. Following a February 2021 hearing, ALJ Spaulding determined Plaintiff was not

disabled in a March 2021 decision. Tr. 18-28. Plaintiff sought review of the hearing decision

from the Appeals Council, which they denied in February 2022. Tr. 157-59, 1-7. The ALJ’s

decision then became final, and now Plaintiff seeks judicial review of the ALJ’s decision.

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 in 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); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “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.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether

substantial evidence exists, the court reviews the administrative record as a whole, weighing both

the evidence that supports and that which detracts from the ALJ’s conclusion. Davis v. Heckler,

868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.

1986)). “‘If the evidence can reasonably support either affirming or reversing,’ the reviewing

court ‘may not substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of

Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715,

720–21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden

of proof rests on the claimant for steps one through four, and on the Commissioner for step five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that the

claimant can make an adjustment to other work existing in significant numbers in the national

economy after considering the claimant’s residual functional capacity (“RFC”), age, education,

and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this

burden, then the claimant is considered disabled. Id.

Plaintiff argues the ALJ erred in finding unpersuasive the medical opinion of Royce

Ryker, FNP-C because the ALJ found “. . . that FNP Ryker’s opinion ‘is poorly supported by

[her] treatment notes and expertise.”’ Pl.’s Br. 10; ECF No. 13. FNP Ryker opined that because

Plaintiff was taking two different immunosuppressants, he needed to avoid risk of exposure to

COVID-19 as much as possible and avoid working outside of his home. Tr. 565. Plaintiff argues

that because the ALJ found FNP Ryker’s opinions unpersuasive due to her lack of “credentials to

opine about COVID-19, the risk of exposure, or the effect of immunosuppressants on such,” this

was harmful error. Pl.’s Br. 6 (citing Tr. 26); ECF No. 13. Plaintiff argues:

FNP Ryker is an experienced gastroenterology specialist . . . FNP Ryker remains

current on studies related to the COVID-19 virus and vaccines as they relate to

patients receiving immunosuppressant treatments. Tr. 303. By contrast, the ALJ

was notably persuaded by the opinion of a reviewing state agency consultant who

specializes in internal medicine, not gastroenterology. Tr. 26 . . . The ALJ

therefore erred in discounting FNP Ryker’s specialized opinion on this ground.

Pl.’s Br. 6-7.

While the ALJ discussed the opinion of the consulting physician, Dr. Hazlewood, and

found it persuasive, the ALJ was not persuaded by Dr. Hazlewood’s opinions solely due to his

expertise in internal medicine, as the Plaintiff suggests. “[T]here is no longer any inherent extra

weight given to the opinions of treating physicians . . . the ALJ considers the ‘supportability’ and

‘consistency’ of the opinions, followed by additional sub-factors, in determining how persuasive

the opinions are.” Kevin R. H. v. Saul, 2021 WL 4330860, at *4 (D. Or. Sept. 23, 2021). The ALJ

was persuaded by Dr. Hazlewood’s rationale in limiting Plaintiff to light exertional-level work

and decided that it was well supported and consistent with the overall record:

Although neither an examining nor treating physician, Dr. Hazlewood is a medical doctor

with knowledge of the Social Security Administration’s program and requirements. His

opinion is derived from the medical evidence of record. However, Dr. Hazlewood failed

to explain his rationale for limiting the claimant to the light exertional level, and did not

include limitations specifically relating to the alleged symptoms of Crohn’s disease

(despite finding the medically determinable impairment severe). Nevertheless, the light

exertional level is not inconsistent with the medical evidence of record, and I will give

the claimant the benefit of the doubt as lifting/carrying may lead to possible aggravation

of bowel movements. I am persuaded by Dr. Hazlewood’s opinion in this regard, but also

find sufficient evidence to warrant additional limitations to close proximity to a restroom,

and 3 unscheduled breaks of 5 minutes each. Tr. 26 (internal citations omitted).

To the extent the ALJ erred, any error was harmless. Plaintiff’s limitations due to Crohn’s

disease are accounted for in the RFC, and the ALJ went into sufficient detail as to why he was

unpersuaded by FNP Ryker. “[S]he cites no medical evidence to recommend patients taking

immunosuppressants take any more precautions than the general population.” Id. The ALJ notes

the CDC (Centers for Disease Control and Prevention) and WHO (World Health Organization)

have no guidelines on the use of systemic immunosuppressive agents during the pandemic. Id.

An ALJ may, but is not required to, discuss how they considered other factors like specialization

when evaluating the persuasiveness of a medical opinion. 20 C.F.R. § 404.1520c(b)(2), (c)(4).

Finally, the ALJ found inconsistencies between FNP Ryker’s recommendation that Plaintiff

work from home, while at the same time recommending that Plaintiff not use grocery delivery

services, wear a mask when in public, or utilize any other precautions to avoid COVID-19 in

public. Tr. 27. The opinion itself is inconsistent with the entirety of the record and Plaintiff’s

own daily activities, Tr. 565-66, but see Tr. 42, 50, 51, 483, therefore the ALJ relied on

substantial evidence to discount FNP Ryker’s opinion.

Plaintiff next argues the ALJ erred in finding FNP Ryker’s opinion unsupported.

Specifically, Plaintiff argues FNP Ryker’s treatment notes support her opinion that Plaintiff’s

Crohn’s disease has been difficult to control, and that stabilizing his condition required two

immunosuppressant medications, which place him at greater risk for infection and illness from

COVID-19. Pl.’s Br. 11; ECF No. 13. The Court agrees with the Commissioner in that “Nurse

Ryker provided no supporting explanations in her letter for why taking two immunosuppressants

would automatically render an individual unable to work outside the home during COVID-19 . . .

[and] it was reasonable for the ALJ to assume that there would be more robust support for this

opinion in her treatment notes” Def. Resp. 10-11. In fact, the only mention of Plaintiff having to

take precautions for COVID-19 was in one of Ryker’s treatment notes which stated, “He was

encouraged to continue social distancing.” Tr. 556. However, the entirety of the globe was

encouraged to social distance during the COVID-19 pandemic2, which undermines FNP Ryker’s

recommendation that Plaintiff could not work outside of the home under any circumstance. For

those reasons, to the extent the ALJ erred at all, any error was harmless.

2“Keep physical distance of at least 1 metre from others, even if they don’t appear to be

sick. Avoid crows and close contact.” World Health Organization, Advice for the public:

Coronavirus disease (COVID-19), https://www.who.int/emergencies/diseases/novel-coronavirus-

2019/advice-for-public (last visited July 24, 2023).

Plaintiff also contends the ALJ erred in discounting Plaintiff’s subjective statements

about his limitations. To determine whether a claimant’s testimony about subjective pain or

symptoms is credible, an ALJ performs a two-stage analysis. Trevizo v. Berryhill, 871 F.3d 664,

678 (9th Cir. 2017); 20 C.F.R. § 416.929. First, the claimant must produce objective medical

evidence of an underlying impairment that could reasonably be expected to produce the

symptoms alleged. Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090; 1102 (9th Cir. 2014);

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Second, absent affirmative evidence

that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for

discounting the claimant’s testimony regarding the severity of the symptoms. Trevizo, 871 F.3d

at 678; Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings

that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not

arbitrarily discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th

Cir. 2015). The Ninth Circuit demands more than a summary of the medical evidence and

generic, high-level reasons why a claimant’s allegations conflict with that evidence. Lambert v.

Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). The Ninth Circuit “requires the ALJ to specifically

identify the testimony she or he finds not to be credible and . . . explain what evidence

undermines that testimony.” Id.; Brown-Hunter, 806 F.3d at 494.

Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with

the alleged symptoms, and testimony from physicians and third parties about the nature, severity

and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 11-cv-

583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013). In some circumstances, an ALJ may

reject subjective complaints where the claimant's “statements at her hearing do not comport with

objective medical evidence in her medical record.” Bray v. Comm’r of Soc. Sec. Admin., 554

F.3d 1219, 1227 (9th Cir. 2009). However, a lack of objective evidence may not be the sole basis

for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th

Cir. 2001).

At the February 2021 hearing, Plaintiff testified he experiences frequent bowel

movements, bloody stool, and persistent fatigue that was worse on the days of his injection

treatment and the week prior to his next injection treatment. Tr. 42-51. These symptoms

allegedly affected his most recent job in 2019 as a sound technician at a restaurant. Tr. 53.

Plaintiff testified that job ended due to the effects Crohn’s disease:

[B]etween the medication they were giving me and my bowel movements, I just – I – you

know I couldn’t even work a half hour, hour, sitting there without having to go to the

bathroom at that point.

Tr. 54.

However, Plaintiff reported these symptoms prior to his trial of the medication

Azathioprine. When Plaintiff’s attorney asks him if his bowel movement control has gotten

better after using Azathioprine, Plaintiff answers in the affirmative and mentions that his test

results have improved as well. Id. The 9th Circuit shows consistencies in rulings that affirm the

ALJ’s decision to deny benefits where symptoms have improved with medication. See Warre v.

Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (Impairments that can be

effectively controlled by medication or treatment are not considered disabling for purposes of

social security benefits); See also Linda Jean T. v. Saul, No. 19-cv-07738-DMR, 2021 U.S. Dist.

LEXIS 90043, at *8 (N.D. Cal. May 11, 2021), Lewis v. Comm’r of Soc. Sec. Admin., No. CV-

20-00765-PHX-MTL, 2021 U.S. Dist. LEXIS 39094, at *13 (D. Ariz. March 2, 2021). Here,

Plaintiff testified that the frequency of his bowel movements decreases after receiving an

injection of Remicade for at least a few weeks. Tr. 55. This claim is consistent with substantial

objective evidence, various medical opinions, and physical exams, as addressed by the ALJ. See

Tr. 25.

The ALJ did not reject outright Plaintiff’s symptom testimony. Instead, the ALJ

determined that while Plaintiff had severe limitations precluding him from anything other than

limited light work, he was capable of doing more than he alleged. Tr. 23. The ALJ found

Plaintiff had the following severe impairments: Crohn’s Disease. Tr. 21. Despite this

impairment, the ALJ found Plaintiff had the RFC to perform light work, except he requires close

proximity (within a one minute walk) to a restroom. Tr. 23. He also requires 3 unscheduled

breaks of 5 minutes each (in addition to normal breaks). Id. The ALJ noted “. . .the [Plaintiff]’s

statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence the record . . .” Tr. 24. In

support, the ALJ noted the objective laboratory results showed that his

Sample albumin levels, which range from 4.0-5.0, fall within normal limits. Since 2017,

the claimant’s BMI has ranged from a low of 22.4 in April 2018, to a high of 27.9 in

February 2021. He is not underweight. In fact, he is consistently described as well

nourished. Despite the claimant’s testimony regarding blood in 35% of his stools, he is

not diagnosed with anemia, nor has he been prescribed, or reported taking, iron

supplements. Hemoglobin and hematocrit levels are within normal range.

Tr. 25 (internal citations omitted).

Regarding Plaintiff’s complaints of his frequent bowel movements, bloody stools and the

limiting effects that accompany these symptoms, the ALJ noted several in-person visits with

providers where Plaintiff’s symptoms were seemingly minimal, objectively and subjectively. Tr.

363, 368, 371, 377, 494. The ALJ contrasts Plaintiff’s subjective symptom complaints with the

opinions of Dr. Nisbet, Dr. Hazlewood, and FNP Ryker. State agency medical consultant Dr.

Nisbet determined Plaintiff’s limitations could be well-managed without great disruption to

work, and found them to be non-severe. Tr. 66-74. State agency medical consultant Dr.

Hazlewood determined Plaintiff’s Crohn’s disease as a severe impairment, but stated he could

perform light work. Tr. 76-90. Plaintiff’s own treatment provider, FNP Ryker, attested to

Plaintiff’s improvement in symptoms with the use of Remicade, and that his “Monitr level looks

good, which seems like your Crohn’s is well controlled.” Tr. 425; see also 422, 565. The ALJ

does acknowledge Plaintiff’s worsening symptoms that were reported to FNP Ryker two days

prior to the administrative hearing. Tr. 25. However, the Court agrees with the Commissioner in

citing the rule that “[a]ny deterioration in [Plaintiff]’s condition subsequent to [the last date

insured] is, of course, irrelevant.” Def.’s Br. 4, citing Waters v. Gardner, 452 F.2d 855, 858 (9th

Cir. 1971); see also Melody A. v. Kijakazi, No. 1:21-cv-00186-CWD, 2022 U.S. Dist. LEXIS

179543, at *12 (D. Idaho Sept. 29, 2022). In Melody A., the Magistrate Judge noted the rule that

worsening symptoms after the date last insured can only be used to establish a disability if it can

reasonably “relate back” to Petitioner’s condition prior to the date last insured. Id. However, in

that case, the narrow exception did not apply to the Petitioner’s IBS-related symptoms because,

during and immediately surrounding the relevant period, Petitioner denied gastrointestinal

complaints and had generally normal physical examination findings. Such is the case here.

During the relevant time period, Plaintiff denied gastrointestinal complaints and had generally

normal exam findings. Therefore, the ALJ relied on substantial evidence to discount Plaintiff’s

subjective symptom testimony.

Finally, the ALJ pointed to Plaintiff’s activities of daily living and noted those activities

“do not support the severity and persistence alleged at the hearing.” Tr. 25. Despite alleging

debilitating bowel movements with bloody stool and fatigue, Tr. 42-51, the ALJ noted Plaintiff

was able to complete household chores, prepare his own meals, care for his dog, go grocery

shopping once or twice per week, play music daily, record songs, walk a half mile at a time, and

attend family birthday parties, music events and band practice once or twice a month:

He explained that he needs to stay near a bathroom and this leads him to be less

active; however, it appears his fatigue does not prevent him from participating in

normal activities and hobbies. The claimant also testified that he regularly drives

3 miles to Corvallis, Oregon to pick up fast food for dinner. This fairly normal

array of activities of daily living suggests that despite the claimant’s fatigue, he

could be expected to work an eight-hour day at a light exertional level, within the

limitations described in the residual functional capacity.

Tr. 25-26 (internal citations omitted).

The ALJ did not err in utilizing “ordinary techniques of credibility evaluation” in

weighing the validity of Plaintiff’s self-reported limitations. Ghanim, 763 F.3d at 1163;

Lingenfelter, 504 F.3d at 1040. Although Plaintiff argues another interpretation of the record is

reasonable, that is not a legitimate reason for overturning the ALJ’s conclusions. See Gutierrez v.

Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (“If the evidence can reasonably

support either affirming or reversing, ‘the reviewing court may not substitute its judgment’ for

that of the Commissioner.”) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996))).

Because the ALJ provided “specific, clear and convincing reasons” for finding Plaintiff less-than

credible regarding the extent of her limitations, the ALJ did not err in giving little weight to

Plaintiff’s testimony regarding those limitations. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).

CONCLUSION

The ALJ’s decision is supported by substantial evidence and, to the extent the ALJ erred,

the error was harmless. The Commissioner’s final decision is therefore AFFIRMED.

IT IS SO ORDERED.

DATED this 8th day of August, 2023.

/s/ Michael McShane

Michael J. McShane

United States District Judge