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Romo v. Colvin

United States District Court, W.D. Washington

December 4, 2014

DANIELLE ROMO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Danielle Romo, Plaintiff: Eitan Kassel Yanich, LEAD ATTORNEY, LAW OFFICES OF EITAN KASSEL PLLC, OLYMPIA, WA.

For Carolyn W Colvin, Acting Commissioner of Social Security Administration, Defendant: Kerry Jane Keefe, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE (SEA), SEATTLE, WA; Courtney Mertes Garcia, SOCIAL SECURITY ADMINISTRATION, SEATTLE, WA.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, United States Magistrate Judge.

Danielle Romo appeals the denial of her Supplemental Security Income and Disability Insurance Benefits applications, seeking remand for an award of benefits. She contends the ALJ erred by (1) improperly discounting the credibility of her testimony, (2) erroneously evaluating the medical evidence, (3) failing to discuss the lay witness statement of Social Security interviewer L. Fry, and (4) basing his step five finding on an incomplete residual functional capacity (" RFC") assessment. Dkt. 16 at 1-2. Ms. Romo further argues that additional evidence submitted to the Appeals Council supports reversal. Id. As discussed below, the Court finds that the ALJ erred in evaluating some of the medical evidence and in failing to discuss the lay witness statement. Therefore, the ALJ's RFC and step five findings are not supported by substantial evidence, and this case should be REVERSED and REMANDED for further administrative proceedings.

BACKGROUND

Following a hearing, the ALJ issued a final decision finding that since Ms. Romo's alleged disability onset date of April 1, 2009, she was not disabled. Tr. 11-21. Utilizing the five-step disability evaluation process, the ALJ found that cognitive disorder, depressive disorder, anxiety disorder, degenerative disc disease of the cervical spine, osteoarthritis of the left knee, and obesity were severe impairments that did not meet or equal the requirements of a listed impairment. Tr. 13; see 20 C.F.R. § § 404.1520, 416.920; 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ further found that asthma was a medically determinable impairment but did not affect Ms. Romo's ability to perform basic work activities and thus was nonsevere. Tr. 14.

The ALJ found that Ms. Romo had the RFC to perform light work as defined in 20 C.F.R. § § 404.1567(b) and 416.967(b), except that she is limited to simple repetitive tasks and occasional contact with supervisors and co-workers, and precluded from contact with the general public. Tr. 16. Based on this RFC and the testimony of a vocational expert, the ALJ found Ms. Romo could perform jobs existing in significant numbers in the national economy. Tr. 20-21. Therefore, the ALJ found Ms. Romo not disabled. Tr. 21.

DISCUSSION

A. The ALJ's evaluation of Ms. Romo's testimony

The ALJ gave at least two valid reasons to discount Ms. Romo's testimony regarding the severity of her symptoms. First, the ALJ found Ms. Romo made inconsistent and untenable statements regarding her drug use. Tr. 17. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (lack of candor regarding drug use supports ALJ's negative conclusions about claimant's veracity). Substantial evidence supports this finding. On March 9, 2011, Ms. Romo told a mental health provider that she did not want to take a drug test because she would test positive for marijuana, not because she used it but because her sister smoked it in the car. Tr. 17, 434. The ALJ found this explanation " simply not credible." Tr. 17. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (in making credibility determination, ALJ may consider " ordinary techniques of credibility evaluation, such as . . . testimony by the claimant that appears less than candid"). And just a week later, Ms. Romo tested positive for cocaine, despite claims that she had not used that drug since 2008. See Tr. 17, 444, 584, 595. Ms. Romo contends the ALJ's finding is not a convincing reason to reject all of her testimony, noting that a drug test in May 2011 was negative for all illicit substances. See Tr. 594. But the later drug test does not invalidate the ALJ's reliance on the earlier positive result.

Second, the ALJ found Ms. Romo engaged in drug-seeking behavior. Tr. 17. See Massey v. Comm'r Soc. Sec. Admin., 400 Fed.Appx. 192, 194 (9th Cir. 2010) (ALJ's interpretation that claimant engaged in drug-seeking behavior is a clear and convincing reason for disregarding his or her testimony). Substantial evidence supports this finding. On January 20, 2011, Rebecca Sellers, D.O., noted that Ms. Romo became agitated when told that Dr. Sellers would not prescribe more pain medication. Tr. 17, 571. Dr. Sellers also noted, " She has been obtaining narcotics for various issues (cough, neck pain) from multiple providers which furthers my discomfort to prescribe narcotic today." Tr. 574. In addition, on March 18, 2011, Tania Martinez-Lemke, M.D., declined to prescribe opiates, noting, " Previously [prescribed] opiates by outside providers, has been to Silverlake clinic multiple times in the last 6 [months], at which time [she was prescribed] hydrocodone syrup for bronchitis or Percocet for neck pain [which is] concerning for drug seeking behavior." Tr. 583. Ms. Romo nevertheless asserts it was unreasonable for the ALJ to cite her agitation at the January 10, 2011 appointment with Dr. Sellers because Dr. Sellers noted she " seemed confused on details, " was a " tangential historian, " and thought that Dr. Sellers was a different doctor whom she had seen previously. See Tr. 571, 574. But Ms. Romo does not establish that the ALJ's reading of her agitation was an unreasonable interpretation of the record, particularly given Ms. Romo's history of obtaining narcotics from different medical providers. As such, she fails to show error. See Morgan v. Commissioner of the SSA, 169 F.3d 595, 599 (9th Cir. 1999) (" Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.") (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).

Because the ALJ gave at least two clear and convincing reasons, supported by substantial evidence, to discount Ms. Romo's credibility, the ALJ's credibility determination should be affirmed even if the other reasons Ms. Romo challenges are invalid. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (including an erroneous reason among other reasons to discount a claimant's credibility does not negate the validity of the overall credibility determination and is at most harmless error where the ALJ provides other reasons that are supported by substantial evidence).

B. The ALJ's evaluation of the medical evidence

1. Kin L. Lui, M.D., treating physician

Dr. Lui began treating Ms. Romo in July 2011. Tr. 595. In January 2012, he opined that Ms. Romo " cannot focus on task with neck pain and shortness of breath." Tr. 640. He opined that she could work and participate in activities related to preparing for and looking for work for " 0 hours." Id. Dr. Lui also opined that Ms. Romo was physically able to perform sedentary work, meaning that she was able " to lift 10 pounds maximum and frequently lift or carry such articles as files and small tools, " and sit, walk, and stand for brief periods. Tr. 641.

The ALJ gave Dr. Lui's opinion little weight, finding that it was inconsistent with " diagnostic images from February 2011, " which " were unremarkable." Tr. 19. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (inconsistency with the record properly considered by ALJ in rejection of physician's opinions). The February 2011 cervical MRI showed " [m]ultilevel degenerative disc changes without significant canal or foraminal narrowing, " and the February 2011 cervical x-ray showed " [m]oderate degenerative disc disease at C6-C7" with " [m]oderate disc height loss . . . with circumferential osteophytosis." Tr. 631-32. It is questionable whether these findings could be characterized as " unremarkable, " but regardless, the ALJ's reliance on the February 2011 images does not support his rejection of Dr. Lui's opinion. This is because Ms. Romo was in a motor vehicle accident in March 2011, and an ...


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