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Colunga v. Berryhill

United States District Court, D. Hawaii

December 28, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Before the Court is Plaintiff Coleen Colunga's (“Plaintiff”) Amended Complaint for Review of Social Security Disability and Supplemental Security Income Benefits Determinations (“Amended Complaint”), filed on March 6, 2018, in which she appeals from Administrative Law Judge Kyle Andeer's (“ALJ”) October 20, 2016 Decision (“Appeal”).[1] [Dkt. No. 6.] The ALJ issued the Decision after conducting a hearing on August 9, 2016 (“Hearing”). [Administrative Record (“AR”) at 21.[2] The ALJ ultimately concluded Plaintiff was not disabled, for purposes of the Social Security Act, since March 1, 2013. [Decision, AR at 32.]

         On July 30, 2018, Plaintiff filed her Amended Opening Brief (“Amended Brief”). [Dkt. no. 17.] Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, (“the Commissioner”), filed her Answering Brief on September 11, 2018, and Plaintiff filed her Reply Brief on September 25, 2018. [Dkt. nos. 18, 19.] This Court heard oral argument on October 29, 2018, and issued an entering order ruling on Plaintiff's Appeal on November 26, 2018. [Dkt. no. 21.] The instant order supersedes that entering order. Plaintiff's Appeal is hereby denied, and the ALJ's Decision is affirmed, for the reasons set forth below.


         On September 12, 2014, Plaintiff protectively filed a Title II application for disability insurance benefits and supplementary security benefits pursuant to Title XVI, alleging disability since March 1, 2013. [Decision, AR at 21.] On March 17, 2015, both applications were denied, and again on reconsideration on June 1, 2015. On June 29, 2015, Plaintiff timely filed a request for hearing. At the Hearing, Plaintiff was represented by her former counsel, Jennifer B. Lyons, Esq. Plaintiff and an impartial vocational expert, Margaret Chrissy Ishida (“VE”), appeared and testified at the Hearing. [Id.]

         In the instant Appeal, Plaintiff does not contest the ALJ's findings in steps one through three of the five-step sequential analysis to determine whether a claimant is disabled. Thus, the ALJ's findings as to those steps are only briefly discussed here.

         At step one, the ALJ determined Plaintiff earned $6, 807.39 prior to March 1, 2013 (“alleged onset date”) and had not engaged in substantial gainful activity after the alleged onset date. [Id. at 23.] The ALJ did not consider Plaintiff's earnings to constitute substantial gainful activity. [Id.]

         At step two, the ALJ found Plaintiff to have two severe impairments: chronic obstructive pulmonary disease (“COPD”) and affective disorder. [Id. at 24.] With regard to activities of daily living, the ALJ found Plaintiff had no restrictions. The ALJ considered testimony from Plaintiff and her daughter, Keola Thompson, and concluded Plaintiff “could perform personal care activities, she could make simple meals such as sandwiches, she could wash clothes and clean up after herself, she could drive a car, and she could shop in stores with her granddaughter.” [Id. (citing Exhibits 1E, 6E, 12E, 13E).[3]

         With regard to her complaints of right shoulder pain, the ALJ reviewed and discussed Plaintiff's diagnoses from: February 22, 2016, concerning her right shoulder impingement; March 2, 2016, concerning her cervical disc disorder with radiculopathy; and March 31, 2016, concerning her complaints of right shoulder pain. [Id. at 25.] Physical therapy progress notes from Kyle K. Kikuchi, D.P.T., Certified M.D.T. (“DPT Kikuchi”) dated April 29, 2016, indicate Plaintiff had no difficulty performing daily living activities; however, her improvement was limited due to “poor compliance with plan of care.” [Id. (citing Exhibit 17F, p. 4).] Based on DPT Kikuchi's prognosis, the ALJ found no evidence that Plaintiff's right shoulder impairment lasted the requisite twelve-months in duration. [Id. (citing Social Security Ruling (“SSR”) 82-52; SSR 85-28).] Plaintiff also complained of right wrist pain, numbness, and tingling in her hands in February and March 2016, but Plaintiff's x-rays revealed no arthritis or ligamentous injuries. [Id. (citing Exhibits 16F, pages 4 and 8; 17F, p. 140- 42).[4] In April 2016, Plaintiff underwent surgery to excise a cyst from her right wrist. [Id. (citing Exhibits 13F, p. 2; 14F, page 1; 17F, pages 8-139, 182-184).[5] In May 2016, Dr. Tanaka noted Plaintiff had no pain following her wrist surgery, and no pain or numbness in her extremities. [Id. (citing Exhibit 16F, p. 2).[6] As a result, the ALJ found Plaintiff not to have a severe right wrist impairment that lasted twelve-months in duration. [Id. (citing SSR 82-52, SSR 85-28).] Thus, neither Plaintiff's right shoulder condition nor her right wrist condition constituted a severe impairment.

         At step three, the ALJ found Plaintiff's impairments did not meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id. at 26.]

         At step four, the ALJ found that Plaintiff had the residual functioning capacity (“RFC”) to

perform medium work as defined in 20 CFR 404.1567(c), 20 CFR 416.967(c), and SSR 83-10 (i.e., lift and/or carry up to 50 pounds occasionally and up to 25 pounds frequently, stand and/or walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-hour workday), except that: she is limited to simple, routine and repetitive tasks; she is limited to a low stress job defined as requiring only occasional decision making or judgment and having only occasional changes in the work setting; she can have only occasional interaction with the public, and; she can have only occasional interaction with co-workers or supervisors (20 CFR 404.1520(e); 20 CFR 416.920(e)).

[Id. at 27 (emphasis omitted).] In crafting his Decision, the ALJ considered the following: Plaintiff's symptoms; the extent to which the symptoms could reasonably be construed as consistent with the objective medical and/or other evidence; and opinion evidence. [Id.] The ALJ followed a two-step process when he reviewed Plaintiff's symptoms, to first determine whether an underlying medically determinable physical and/or mental impairment exists, and whether it could be reasonably expected to result in Plaintiff's alleged symptoms. [Id.] Next, the ALJ determined the extent to which Plaintiff's symptoms limited her functioning. [Id. at 28.] Where statements regarding intensity, persistence, or limiting effects of pain were not substantiated by objective medical evidence, the ALJ considered other evidence to make his determination of Plaintiff's disability. [Id.]

         The ALJ considered Plaintiff's statements against the medical evidence and Plaintiff's own admissions. At the time of the hearing, Plaintiff was planning to travel to California in April 2016; [id. at 28 (citing Exhibit 17F, p. 142);[7] and the ALJ found - consistent with his determination at step two -Plaintiff had little trouble performing activities of daily living, [id.]. The ALJ noted Plaintiff went out often and visited her mother's residence every day; she also went to medical appointments and to the store. [Id.] The ALJ determined Plaintiff's activities of daily living were “not consistent with her allegations of disabling pain and symptoms.” [Id.]

         The ALJ also noted Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the persistence and limiting effects were not consistent with the medical records and other evidence. [Id. (citing SSR 16-3p).] The ALJ considered that, in March 2012, medical records showed Plaintiff's medication resolved some breathing symptoms, with no intrapulmonary abnormality. [Id. (citing Exhibits 1F, p. 13; 4F, p. 13).[8] In July 2014, there were no acute cardiopulmonary findings, [id. (citing Exhibits 2F, p. 3; 3F, pages 10 and 12; 4F, p. 7; 8F, p. 25), [9] and Plaintiff had a normal pulmonary function test in September of that same year. [Id. (citing Exhibits 1F, pages 9-11; 2F, pages 9-11; 3F, pages 11, 13; 8F, p. 26).[10] ¶ 2015, Dr. Sulieman noted an increase in Plaintiff's breathing impairment; however, the ALJ pointed out the exacerbation was sporadic and did not last for twelve consecutive months. [Id. (citing SSR 82-52).] In October 2015, Dr. Tanaka noted Plaintiff reported increased congestion and cough, but she denied experiencing shortness of breath or dyspnea on exertion. [Id. (citing Exhibit 16F, p. 4).[11] Again in October 2015, Dr. Sulieman reported Plaintiff's gradual progress with treatment and reduced episodes of exacerbations. [Id. (citing Exhibit 13F, p. 14).[12] The ALJ relied upon Dr. Sulieman's December 2015, February 2016, and April 2016 notes showing that Plaintiff's pulmonary status was stable, her symptoms had dramatically improved, and she denied any significant chest pain, palpitations, cough, or wheezing. [Id. (citing Exhibit 13F, pages 2, 5, and 8).[13]

         State agency medical consultants, D. Mai, M.D. and N. Shibuya, M.D. concluded that Plaintiff could perform medium exertional-level work with generally unlimited postural activities, but had limited used of her right upper extremity and should avoid concentrated exposure to respiratory irritants and hazards.[14] [Id. at 28-29 (citing Exhibits 1A, 2A, 5A, 6A).[15]

         The ALJ did not find evidence that a separate limitation to respiratory irritants was warranted. As to Plaintiff's past diagnoses and complaints related to her right shoulder and cyst impairments discussed at step two, Dr. Papst's treating notes indicate Plaintiff's ability to use her hands for gross and dexterous movement was within normal limits and she could elevate her arm ninety percent of the way. [Id. at 29 (citing Exhibits 7F; 10F).[16] The ALJ found no evidence that Plaintiff had postural limitations, or that she must avoid hazards such as unprotected heights or moving machinery. The ALJ found Dr. Papst's treating notes, [id. (citing Exhibits 4F, 7F), ] to support his medical source statement.

         The ALJ gave only partial weight to the mental functional limitation opinions of Kristin A. Christensen, Psy.D. because he found it to be internally inconsistent. [Id. (citing Exhibits 5F; 9F; 11F; 12F, pages 2, 16-20, 28-32, and 40).[17] In August 2014 and May 2016, Dr. Christensen stated Plaintiff was not emotionally stable enough to work, and in February 2015, Dr. Christensen opined Plaintiff's psychological symptoms were significant enough to prevent her from returning to the workforce at that time. [Id. (citing Exhibit 12F, pages 2, 26, 40, and 43).[18] However, Dr. Christensen's notes in 2015 stated Plaintiff could: understand and remember simple work instructions; maintain regular job attendance; persist at repetitive work tasks on a consistent basis under ordinary supervision; get along with supervisors and coworkers if contact were minimal; adapt/cope with a low-demand entry-level job; and was capable of managing benefits in her own best interest without assistance. [Id. (citing Exhibits 5F; 9F; 12F, pages 18-19 and 30-31).[19]

         Dr. Christensen's records indicate Plaintiff did not always suffer from anxiety of affective disorder symptoms, and that most issues related to intergenerational familial problems, poor motivation and sleep difficulty. Dr. Christensen noted Plaintiff “sounds a little bit like a martyr” regarding her family. [Id. (citing 12F, p. 11).] The only time Dr. Christensen noted Plaintiff demonstrated a potentially significant mental impairment was in the summer of 2015 when Plaintiff was non-compliant with treatment, and decided to change her medication on her own by stopping her antidepressant for four days and then taking only a half dose. Later in October 2015, Dr. Tanaka reported Plaintiff told him she felt “relatively well, ” [id. at 30 (citing Exhibit 16F, p. 16), [20] and in December 2015, Dr. Christensen reported Plaintiff said she was feeling depressed with some anxiety, but it was manageable. [Id. (citing Exhibit 12F, p. 8).[21] In February 2016, Dr. Christensen noted Plaintiff looked more put-together on a weekly basis. [Id. (citing Exhibit 12F, p. 4).]

         Dr. Frisch and Dr. Torigoe concluded Plaintiff could: understand, remember and carry out simple work instructions; maintain regular attendance and sustain an ordinary routine without special supervision; interact with peers and supervisors in a work setting with limited demands and social interaction; and adapt to routine changes in a simple work setting within her physical abilities. [Id. (citing Exhibits 1A, 2A, 5A, 6A).] Plaintiff and her daughter submitted testimony that Plaintiff did not handle stress or changes in routine well; however, the ALJ found the medical evidence did not support their complaints. The ALJ gave great weight to Dr. Frisch and Dr. Torigoe's mental RFC assessment, despite it being based on nonexamining relationships, because the medical evidence supports their assessment, and both physicians are familiar with the Social Security disability program. [Id.]

         Dr. Christensen gave Plaintiff Global Assessment of Functioning (“GAF”) scores of sixty five and seventy, indicating only mild mental impairment, which was consistent with Dr. Christensen's conclusions.[22] [Id. at 30 (citing Exhibits 7F, p. 1; 12F, pgs. 2, 16, 26, 40, 43).[23] The ALJ noted GAF scores are not the best evidence of mental impairment, but are supported by the treatment record. [Id. (citation omitted).] GAF scores do provide further support that additional mental functional limitations beyond what the ALJ adopted are not warranted. [Id.]

         Finally, the ALJ concluded Plaintiff was unable to perform any of her past relevant work as a salesperson or case aid. [Id.] Plaintiff's RFC limited her to simple, routine, repetitive tasks; her prior occupations exceeded her current capacity for unskilled work.

         The ALJ noted that, at the time of the alleged onset date, Plaintiff was fifty-five years old and considered an individual of advanced age. She has a high school education, speaks English, and is limited to simple, routine, repetitive tasks (i.e., unskilled work), with no transferrable skills. [Id. at 31.]

         Considering these factors and the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ concluded there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. [Id.] The ALJ noted Plaintiff's additional limitations eroded the unskilled medium exertion occupations base, and asked the VE whether jobs exist for Plaintiff's age, education, work experience, and RFC. The VE testified that, given all of these factors, Plaintiff could perform the following occupations:

1. Kitchen helper, [Dictionary of Occupational Titles (“DOT”)] 318.687-010, medium level of exertion, unskilled [specific vocational preparation] 2, with 276, 861 jobs in the national economy;
2. Stores laborer, DOT 922.687-058, medium, unskilled, with 20, 461 national jobs, and;
3. Hand packager, DOT 920.587-018, medium, unskilled, with 42, 130 national jobs.

[Id.] The ALJ found these jobs to be significant and accepted the VE's testimony because it was not contradicted, and was consistent with the information in the DOT and its companion documents. [Id. (citing SSR 00-4p).] The ALJ concluded Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy; therefore, a finding of “not disabled” was appropriate under Medical-Vocational Rule 203.15. [Id. at 31-32 (quoting SSR 83-14).]

         Finally, the ALJ determined that Plaintiff had not been under a disability from the March 1, 2013 onset date. In conclusion, the ALJ ruled Plaintiff was not disabled as to her Title II application for a period of disability and disability insurance benefits, and not disabled as to her Title XVI application for supplemental security income. [Id. at 32.]

         In the instant Appeal, Plaintiff argues the ALJ erred when he failed to consider Plaintiff's and Ms. Thompson's testimony regarding Plaintiff's limitations, and failed to properly reject it. [Amended Brief at 1-2.] Additionally, Plaintiff argues the ALJ failed to present a hypothetical to the VE that contained all of the limitations he determined Plaintiff to have in his RFC finding. As a result, Plaintiff argues the VE's testimony had no evidentiary value, and the ...

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