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Kahle v. Berryhill

United States District Court, W.D. Washington, Tacoma

April 27, 2018

LAURA KAHLE, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.



         Laura Kahle seeks review of the denial of her application for disability insurance benefits. Ms. Kahle contends the ALJ erred in evaluating the opinions of her treating physicians and her own testimony. Dkt. 12 at 1. The Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         I. BACKGROUND

         Ms. Kahle is currently 51 years old, has a high school education, and has worked as a substance abuse counselor, triage scheduler, and companion. Tr. 44. On September 19, 2014, Ms. Kahle applied for disability benefits, alleging disability as of February 10, 2012. Tr. 26. Her application was denied initially and on reconsideration. Tr. 26. After the ALJ conducted a hearing on December 8, 2015, the ALJ issued a decision finding Ms. Kahle not disabled. Tr. 26- 45.


         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Ms. Kahle has not worked since the alleged onset date.
Step two: She has the following severe impairments: degenerative disc disease; right foot drop; reflux disease, status post bariatric surgery; polyarthralgia; bilateral knee arthritis vs. patellofemoral syndrome; obesity; affective disorder; and anxiety disorder.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Ms. Kahle can perform light work, can carry 20 pounds occasionally and 10 pounds frequently, can sit 6 hours and stand/walk 6 hours, can never climb ladders, ropes or scaffolds, can frequently balance, stoop, kneel, crouch and crawl, should avoid concentrated exposure to hazards, can carry out complex tasks, can have superficial contact with coworkers and the public, and can accept supervisor instructions.
Step four: She cannot perform past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that she can perform, Ms. Kahle is not disabled.

         Tr. 28-31. The Appeals Council denied Ms. Kahle's request for review, making the ALJ's decision the Commissioner's final decision. Tr. 1.[3]


         Ms. Kahle contends the ALJ erred in rejecting her testimony and the opinions of two treating physicians, pain management specialist Susan J. Shlifer, M.D., and rheumatologist Parul Sharma, D.O., and in relying instead on the opinion of nonexamining physician Norman Staley, M.D. Ms. Kahle contends the errors are harmful because both treating physicians opined that she could not sustain an 8-hour work day and would miss at least four days per month due to her impairments or treatment, and a vocational expert testified that a person who missed work even two times per month could not sustain employment.

         In determining whether the Commissioner's findings are supported by substantial evidence, the Court must review the administrative record as a whole, “weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Court may not affirm simply by isolating a specific quantum of supporting evidence. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If, however, the evidence reasonably supports both affirming and reversing the denial of benefits, the Court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21; see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (if the “evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld”).

         A. Ms. Kahle's Testimony

         At the hearing, Ms. Kahle testified that she could not walk three blocks without stopping to rest, she did not drive longer than ten minutes due to back pain as well as safety concerns because of her right foot drop, sitting was uncomfortable, and she could not stand comfortably for more than a few minutes. Tr. 69-77.

         The ALJ discounted Ms. Kahle's testimony as inconsistent with medical evidence and her work history and activities, and because of evidence indicating drug-seeking activity. Tr. 33.

         The ALJ found that Ms. Kahle had established underlying impairments that could reasonably be expected to cause her symptoms and did not find evidence of malingering. Tr. 33. Under such circumstances, the ALJ may reject Ms. Kahle's testimony about the severity of her symptoms only with “specific, clear and convincing reasons for doing so.” Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ's reasons must be supported by substantial evidence. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (reviewing court's “task is to determine whether the ALJ's adverse credibility finding of [a claimant's] testimony is supported by substantial evidence under the clear-and-convincing standard”). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

         Although the ALJ included erroneous reasons regarding daily activities and work history, the Court concludes that the largely normal clinical findings, stopping work for reasons other than her impairments, and drug-seeking activity, when taken together provide a clear and convincing reason, supported by substantial evidence, to discount Ms. Kahle's testimony.

         1. Medical Evidence

         There is no dispute that Ms. Kahle suffers from severe degenerative disc disease, confirmed by imaging, gastrointestinal disorders related to a congenital abnormality, and knee arthritis. Tr. 28-29, 800-801. Nor does the Commissioner dispute that she requires opioid medication to deal with the resulting pain. Tr. 33; Dkt. 13. What is disputed is the resulting level of functional limitations.

         Substantial evidence supports the ALJ's findings that Ms. Kahle typically reported low to moderate levels of pain and that there was a paucity of abnormal medical findings in measurements of functional ability. Tr. 33-36. In a series of visits to Narinder Duggal, M.D., from February 2012 to May 2013, Ms. Kahle's typical pain levels were around three or four out of ten with 70-80% pain relief, and her physical exam results were largely normal. Tr. 372, 379, 387-88, 394, 414, 422, 432, 441, 450, 458, 466, 477, 489, 500, 511, 523, 535, 546, 557; but see Tr. 404 (20-30% pain relief), 460, 469, 481, 493, 503 (neck range of motion restricted). Ms. Kahle began seeing Dr. Shifler in May 2013. Through the latest examination, in November 2015, pain levels continued to be typically “mild” to “moderate” with “adequate pain control” and physical exam results were largely normal other than the right foot drop. See, e.g., Tr. 1658-62, 1692-95, 1697-1700, 1737-39, 1852-53, 1855, 1862-64, 1866-68, 1869-71, 1873-75, 1869-71, 1879-80, 1886; but see Tr. 1665-67 (pain 7/10), 1860 (antalgic gait, “some swelling and stiffness of joints in fingers”), 1857 (antalgic gait).

         Ms. Kahle argues that her relatively benign medical reports are only because she was under treatment and relatively sedentary, and do not reflect her ability to work. Dkt. 12 at 7-9. However, the ALJ used the benign treatment notes to evaluate Ms. Kahle's testimony, not to demonstrate her ability to work. An ALJ may consider “inconsistencies in testimony or between testimony and conduct” as a factor in weighing credibility. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007). Ms. Kahle's assertions that disabling pain prevents her from sitting or standing for more than a few minutes are inconsistent with the treatment notes that her pain was typically well-controlled. The inconsistency provides a legitimate reason for the ALJ to discount Ms. Kahle's testimony regarding her symptoms.

The lack of objective medical evidence corroborating the level of pain is also “a factor that the ALJ can consider in [her] credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“while subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.”). The ALJ reasonably considered the lack of abnormal clinical findings.

         Ms. Kahle contends that the ALJ's findings were not consistent with the record as a whole, because the ALJ selectively cited benign medical evidence. Dkt. 12 at 8. An ALJ may not cherry-pick from the record. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Likewise a reviewing court “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Orn, 495 F.3d at 630 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). But here, the reported pain levels and medical findings the ALJ cited are consistent with the overall record. It is the higher pain levels that are the exception in the records.

         The Court concludes that substantial evidence supports the ALJ's determination that inconsistencies with the medical ...

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