August 22, 2013
CAROLYN MURPHY, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL
MARY ALICE THEILER, Magistrate Judge.
Plaintiff Carolyn Murphy proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends this matter be AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1964. She completed the tenth grade of high school and obtained her GED. Plaintiff previously worked as a receptionist, auto parts counter clerk, warehouse worker, cashier, daycare worker, fast food worker, box bender, and electrical inspector. (AR 80-81.)
Plaintiff filed an application for SSI in March 2010, alleging disability beginning November 15, 2008. (AR 194-97.) Her application was denied initially and on reconsideration, and she timely requested a hearing.
ALJ Stephanie Martz held a hearing on October 25, 2011, taking testimony from plaintiff, a vocational expert (VE), and plaintiff's therapist, Diane Spangler. (AR 32-89.) On November 7, 2011, the ALJ rendered a decision finding plaintiff not disabled. (AR 11-24.)
Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on November 5, 2012 (AR 1-3), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found that plaintiff had not engaged in substantial gainful activity since March 1, 2010, the application date. See Social Security Ruling (SSR) 83-20 (SSI payments are prorated for the first month for which eligibility is established after application and after a period of ineligibility).
At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe: degenerative disc disease with central stenosis and foraminal stenosis with radiculopathy; meniscal tear left knee; status post fracture left ring finger; obesity; hypothyroidism; alcohol, methamphetamine, cocaine, and opiate dependence in sustained full remission; and dysthmic disorder. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to perform sedentary work, except that she can lift and carry ten pounds occasionally and ten pounds frequently; sit about six hours; and stand or walk at least two hours in an eight-hour day with regular breaks. She further found plaintiff: can push/pull within the above-described exertional limits; occasionally climb ladders, ropes, or scaffolds, and frequently climb ramps and stairs; frequently balance, kneel, crouch, and crawl; occasionally finger with her left hand; should avoid concentrated exposure to vibration and hazards; is able to understand, remember, and carry out very short and simple instructions and make simple decisions; can have occasional and brief superficial contact with coworkers, supervisors, and the public; should have a routine and predictable workplace; and would need to change positions between sitting and standing at will. With that RFC, the ALJ found plaintiff unable to perform her past work.
If a claimant demonstrates an inability to perform past relevant work or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ concluded plaintiff could perform jobs existing in significant numbers in the national economy, such as work as a surveillance system monitor and addresser. The ALJ, therefore, concluded plaintiff was not disabled since the March 1, 2010 application date.
This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ erred in rejecting consistent medical opinion evidence, in assessing her credibility, lay witness testimony, and the RFC, and in reaching the conclusion at step five. She requests remand for an award of benefits or, in the alternative, for further administrative proceedings. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.
Medical Opinion Evidence
Social Security regulations distinguish between "acceptable medical sources" and "other sources." Acceptable medical sources include, for example, licensed physicians and psychologists, while other non-specified medical providers are considered "other sources." 20 C.F.R. §§ 404.1513(a) and (d), 416.913(a) and (d), and SSR 06-03p.
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
Less weight may be assigned to the opinions of "other sources." Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996). However, the ALJ's decision should reflect consideration of such opinions, SSR 06-3p, and the ALJ may discount the evidence by providing reasons germane to each source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (cited sources omitted).
Plaintiff argues the ALJ erred in the assessment of the medical opinions of treating physician Dr. Harold Moore, mental health counselor Diane Spengler, examining physicians Drs. Mark Koenen and James Czysz, and reviewing physician Dr. Diane Fligstein. Given the existence of contradictory opinion evidence, the ALJ was required to provide specific and legitimate reasons for rejecting medical opinions.
A. Dr. Harold Moore
Dr. Moore has served as plaintiff's treating physician for many years. As described by the ALJ, in August 2011, Dr. Moore opined that plaintiff would have "slight to moderate impairments in her cognitive and social work factors, indicating [she] would have some moderate limitations but was still able to function[, ]" and, due to her degenerative disc disease and meniscal tear, could lift up to ten pounds occasionally, stand and sit for one hour, walk for one hour total in an eight-hour day, and "could sit for short periods but would need to stand and walk frequently, but not far[.]'" (AR 19-20 (discussing AR 871-79).) This was "generally consistent" with an October 2011 assessment by Dr. Moore. (AR 20 (discussing AR 900-02).) Previously, in December 2009, Dr. Moore opined plaintiff's chronic low back pain and left finger fracture would cause "[very] significant interference" with plaintiff's ability to stand, walk, lift, carry, and handle, but assessed no restrictions on sitting, and opined both that plaintiff could perform sedentary work and was permanently disabled. ( Id. (discussing AR 822-25).)
The ALJ gave Dr. Moore's opinions little weight:
His opinions regarding the claimant's mental abilities and her ability to do sedentary work are given significant weight. However, his opinion regarding the claimant's limitations for sitting to one hour in an eight-hour day, postural limitations, and limitations on reaching with her right hand, are given little weight. Dr. Moore's treatment notes reflect little objective findings that are consistent with these opinions. Although Dr. Moore noted the claimant reported some "tingling" in her right hand in March 2011, he did not indicate any treatment was necessary and later examinations do not mention this issue. He rarely even notes any complaints of back pain or other objective findings of problems relating to the claimant's allegedly disabling back impairment. For example, in June 2011, Dr. Moore noted the claimant's chronic back pain, but also noted it was "controlled to some extent" with her use of methadone. Dr. Moore's opinion that the claimant could not sit for more than an hour per day in 2011 also conflicts with his opinion from 2009 in which he did not indicate the claimant would have any limitations on sitting. Dr. Moore's opinion on sitting is also inconsistent with the claimant[']s reported activities, which include reading, watching movies, and using a computer. The claimant states that when she stands for too long she needs to "sit, " and does not indicate she must spend significant periods of time laying down. Thus, Dr. Moore's opinions are also inconsistent with the claimant's activities, internally inconsistent, and not supported by objective findings.
The ALJ also gave little weight to a June 2011 letter from Dr. Moore, wherein he opined plaintiff could not "work due to her medical and mental health disability." (AR 20, 810.) ( See also AR 905 (October 2011 treatment note stating: "She is unable to work due to her knee injury and chronic back problem.")) In that letter, Dr. Moore pointed specifically to plaintiff's "degenerative disc disease and anteriolisthesis L3 on L4[, ]" as well as her obesity, hypothyroidism, depression, and meniscal tear. (AR 810.) The ALJ found the opinion "conclusory[, ]" stating Dr. Moore "fails to explain the basis for it[, ]" and adding it was "not clear" whether he was familiar with the SSA definition of disability. (AR 20 (also stating: "Further, as noted above, his other opinions of limitations are similarly unsupported and inconsistent with the record as a whole. As such, his conclusory opinion that the claimant is disabled' merits no weight."))
In arguing error, plaintiff first points to Dr. Moore's consistent prescription of medications for her depression and anxiety, his knowledge of her counseling and methadone maintenance, and his reports that her depression was in "fair' to poor' control." (Dkt. 15 at 8 (cited sources omitted).) However, the ALJ gave Dr. Moore's opinions as to plaintiff's mental abilities significant weight. (AR 20.) An ALJ need not provide reasons for rejecting a physician's opinions where the ALJ incorporated such opinions into the RFC. Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir 2010) (ALJ incorporated opinions by assessing RFC limitations "entirely consistent" with limitations assessed by physician). Plaintiff fails to demonstrate that the mild to moderate limitations assessed by Dr. Moore were not consistent with the assessed RFC.
Plaintiff notes that the December 2009 evaluation from Dr. Moore also includes the opinion that she is "permanently disabled[.]" (AR 825.) However, the ALJ acknowledged that observation, as well as his simultaneous opinion that plaintiff could perform sedentary work. (AR 824.) The ALJ's reliance on the opinion as to sedentary work can be deemed rational. 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)).
Plaintiff describes the purported absence of consistent objective findings as "simply not true[, ]" pointing to Dr. Moore's repeated references to MRI findings. (Dkt. 15 at 8 (citing AR 836, 840, 849, 856).) Those findings included a January 23, 2008 MRI of plaintiff's back and May 25, 2011 MRI of her knee. (AR 463 (reflecting mild and moderate degenerative disc changes and anterolisthesis of L3 on L4) and AR 860-61 (reflecting radial tear of meniscus, ligament sprain, ruptured cyst, and "[v]ery small" cartilage defect).)
Plaintiff appears to assert error as related to her knee condition. However, consistent with Dr. Moore's assessment, the ALJ found plaintiff capable of standing and/or walking for a total of two hours in an eight-hour day with regular breaks. (AR 17; accord AR 875 (assessing plaintiff as capable of standing, at one time without interruption and total in an eight-hour work day, for one hour, finding same with respect to walking, and declining to find plaintiff capable of lesser amounts of time for each function).)
Nor does plaintiff demonstrate error in relation to her back or hand conditions. "The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957. The ALJ here appropriately pointed to a lack of objective support, including minimal observations as to plaintiff's hand, and rare observations of back pain or other objective findings, as well as the observation that plaintiff's back pain was controlled to some extent with medication. (AR 20.) It should further be noted that, in relation to plaintiff's back, Dr. Moore's December 2009 evaluation included consideration of the January 2008 MRI findings, and he presented no new objective findings to support the more restrictive limitations assessed subsequently.
The ALJ also appropriately considered evidence of inconsistencies relating to the sitting limitation assessed in 2011, including the absence of any prior assessed limitation and evidence of plaintiff's reported activities. See Morgan, 169 F.3d at 603 (ALJ appropriately considers internal inconsistencies within and between physicians' reports) and 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); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (affirming rejection of a treating physician's opinion that was inconsistent with the claimant's level of activity). In addition, while plaintiff did testify she needed to get up after thirty minutes of sitting (AR 47), the ALJ accounted for that testimony by including in the RFC the need to change positions between sitting and standing at will (AR 17).
Plaintiff takes issue with the ALJ's description of Dr. Moore's opinion as conclusory, pointing to his long history of treatment and longitudinal sense of her impairments. She maintains the ALJ impermissibly required Dr. Moore to certify his understanding of the Social Security Act definition of disability. These arguments fail. "Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability." McLeod v. Astrue, 634 F.3d 516, 520 (9th Cir. 2011) (quoting Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) and citing § 404.1527(e)(1) ("A statement by a medical source that you are disabled' or unable to work' does not mean that we will determine that you are disabled.")) While plaintiff takes a contrary view as to the value of Dr. Moore's letter, she fails to demonstrate that the ALJ's interpretation of the evidence was not rational. See Morgan, 169 F.3d at 599.
Finally, plaintiff notes the absence of any contravening evidence from a treating or evaluating provider with respect to her physical condition. However, while true, the record did contain contradictory, January 2011 opinion evidence from non-examining State agency physician Dr. Gordon Hale. (AR 776 (affirming opinion at AR 100-07).) The ALJ found Dr. Hale's opinion generally consistent with the evidence of record and gave it some weight, but found it reasonable to limit plaintiff to sedentary work in light of her more recent knee injury. (AR 19.)
"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831 (cited sources omitted). However, "the report of a nonexamining, nontreating physician need not be discounted when it is not contradicted by all other evidence in the record.'" Andrews, 53 F.3d at 1041 (quoting Magallanes, 881 F.2d at 752 (emphasis in original)). Accord Tonapetyan, 242 F.3d at 1148-49 (contrary opinion of a non-examining medical expert "may constitute substantial evidence when it is consistent with other independent evidence in the record.") Moreover, "[t]he ALJ is responsible for resolving conflicts in the medical record." Carmickle v. Comm'r of SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). When evidence reasonably supports either confirming or reversing the ALJ's decision, the Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
In this case, plaintiff fails to demonstrate that the ALJ's resolution of conflicts in the evidence and reliance on Dr. Hale's contradictory opinions was not reasonable. Instead, as reflected above, the ALJ pointed to specific and legitimate reasons for rejecting portions of Dr. Moore's opinions, and properly relied on both evidence from Dr. Hale and other consistent evidence in the record. Therefore, the ALJ's reasoning in relation to Dr. Moore withstands scrutiny.
B. Diane Spengler
The ALJ gave little weight to May 2010 and May 2011 opinions and the testimony of Ms. Spengler, plaintiff's treating mental health provider. (AR 21-22.) As described by the ALJ, Ms. Spengler opined plaintiff's "anxiety is likely the greatest inhibitor of [her] functioning, " that she "has poor communication skills, and poor memory and judgment[, ]" that her mental health resulted from childhood trauma, prior to substance abuse issues, and that she "would not be employable anytime in the near future because of her pain and mental health issues[.]" (AR 21 (discussing AR 802-09 and AR 64-75).)
The ALJ found Ms. Spengler's opinions inconsistent with the evidence in the record as a whole, contrasting, as an example, her belief that plaintiff has PTSD, with examining physician Dr. Mark Koenen's opinion that there was insufficient evidence to establish that diagnosis. (AR 21-22.) The ALJ also found Ms. Spengler's opinions inconsistent with plaintiff's activities of daily living, stating her ability "to run errands, make doctor's appointments, read crime novels, and do household chores support the claimant's abilities to do simple, repetitive tasks." (AR 22.) She further found the opinions inconsistent with Dr. Koenen's objective findings, and concluded that Ms. Spengler's "own notes do not support her conclusions as they do not reflect significant complaints of depression or anxiety." ( Id. )
Plaintiff argues the ALJ's disregard of Ms. Spengler's testimony "is ill-founded because it is indeed consistent with the reports of other psychiatric providers, and the fact that [she] is able to do basic self-care and go to appointments is immaterial." (Dkt. 15 at 10 (citing Smolen v. Chater, 80 F.3d 1273, 1284 n.7 (9th Cir. 1996) ("The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, and many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication.")) Plaintiff notes Ms. Spengler's testimony that she frequently misses appointments because she is so depressed she cannot get out of bed. (AR 66, 69.) Again, however, plaintiff fails to demonstrate error.
The ALJ provided several germane reasons for according Ms. Spengler's opinions little weight, including inconsistencies both internally and with the objective findings and other evidence from Dr. Koenen. See Morgan, 169 F.3d at 603. While plaintiff finds the report of Dr. Koenen to reveal more consistency that not, the ALJ's reading of inconsistency between the opinions is equally rational. For example, Dr. Koenen found plaintiff "did not endorse any history or symptoms consistent with an actual PTSD diagnosis" (AR 710), and found her only mildly limited in her ability to accept instructions from supervisors, able to perform simple and repetitive tasks, and mildly impaired in her ability to perform more detailed and complex tasks. (AR 714.) ( See also AR 712 (Dr. Koenen's Mental Status Examination results).) Also, as discussed further below, while assessing various moderate limitations, Dr. Koenen found they could be expected to improve with psychotherapy and exposure to the workplace. ( Id. )
In addition, while pointing to the consistency of Ms. Spengler's opinions with the opinions of Drs. Moore and Czysz, plaintiff essentially, and improperly, seeks to re-weigh the evidence. Because she fails to demonstrate that the ALJ failed to reasonably resolve the conflicting opinion evidence, she fails to demonstrate error. See Morgan, 169 F.3d at 599.
Finally, the ALJ also reasonably identified inconsistencies between Ms. Spengler's opinions and evidence of plaintiff's activities. Plaintiff's contention that such consideration was "immaterial" should be rejected. See Tommasetti, 533 F.3d at 1041; Rollins, 261 F.3d at 856. It should further be noted that the ALJ specifically, and appropriately, associated the activities with her conclusion that plaintiff could perform simple, repetitive tasks. (AR 22.) For this reason, and for the reasons stated above, the ALJ's assessment of Ms. Spengler's opinions was sufficient.
C. Dr. Mark Koenen
The ALJ found examining psychologist Dr. Koenen's July 2010 opinions supported by his evaluation and gave them significant weight. (AR 20-21.) Plaintiff challenges the ALJ's consideration of Dr. Koenen's opinions that she had moderate impairments in her abilities to complete a normal workday or workweek, to interact with co-workers, supervisors, and the public, and tolerate the stress of competitive work. (AR 714.) The ALJ acknowledged these opinions, but noted Dr. Koenen's clarification that "each of these impairments would be expected to improve with treatment and exposure to the workplace." (AR 21, 714.)
Plaintiff avers an absence of any evidence in the record that her psychiatric conditions improved with treatment, noting Ms. Spengler's subsequent, October 2011 opinion that she was not able to work because of her continuing psychiatric impairments. However, plaintiff fails to account for the fact that Dr. Koenen opined as to his expectation of improvement with both psychotherapy and exposure to the workplace. (AR 713.) Nor does plaintiff acknowledge the specific type of psychotherapy recommended by Dr. Koenen; namely, psychotherapy directed towards engaging in "anxiety provoking situations[, ]" such as "dealing with aversive situations and with authority figures[, ]" "so that she can learn to better tolerate these situations and improve." (AR 713-14.) He opined that "[a]ppropriate psychotherapy directed at this end would likely lead to significant improvement within the next year[, ]" but that "continuing to enable [plaintiff] to avoid anxiety provoking situations (which seems to be the case at present) will all but assure that her functional ability will never improve." (AR 714.) Plaintiff does not point to any evidence that she received the type of psychotherapy recommended by Dr. Koenen.
Moreover, plaintiff fails to support a necessary conflict between the limitations assessed by Dr. Koenen and the RFC. In particular, the ALJ can be said to have accounted for the limitations as related to interactions and stress by limiting plaintiff to occasional and brief superficial contact with coworkers, supervisors, and the public, and to a routine and predictable workplace. ( See also AR 713 (Dr. Koenen also stated that plaintiff's depressive symptoms did "not appear to be particularly severe at [that] time[, ]" and that her panic symptoms "appear[ed] to be largely under control.")) These portions of Dr. Koenen's opinions required no further consideration by the ALJ. Turner, 613 F.3d at 1223. Plaintiff, as such, fails to demonstrate error.
D. Dr. James Czysz
The ALJ gave little weight to October 2011 opinions of examining psychologist Dr. Czysz assessing marked limitations in plaintiff's ability to perform routine tasks without undue supervision, to perform effectively in a work setting with public contact, and to maintain appropriate behavior in a work setting. (AR 21 and AR 896-97.) She found:
His opinions are inconsistent with the evidence in the record as a whole. For example, while he discussed the claimant's panic attacks, there is little indication in the treatment records that the claimant is experiencing panic attacks. His opinions ignores the fact that the claimant lives on her own and is able to routinely attend doctors' appointments and obtain her daily methadone dose. His opinions are also inconsistent with the claimant's ability to have normal appearance, interaction, and affect during her medical appointments.
Plaintiff denies inconsistency with the record, but points to the properly discounted opinions of Dr. Moore and Ms. Spengler as evidence of consistency. She does not demonstrate that the ALJ's reliance on the contradictory opinion evidence from Dr. Koenen and reviewing psychologists Drs. Fligstein and Hacker was not rational.
Plaintiff describes as inaccurate the ALJ's observation as to evidence of her panic attacks. However, she relies almost entirely on her own report, either on forms or to medical providers, of her history of panic attacks. ( See AR 63, 211, 219, 239, 246, 252, 267, 709, 745.) Other documents pointed to are either irrelevant to the current time period (AR 454, 512 (same document, in different form) or of questionable relevance (AR 352; see also AR 745). Instead, as suggested by the Commissioner, the fact that plaintiff reported panic attacks in only one out of some sixteen therapy sessions ( see AR 881-92) provides support for the ALJ's rejection of the opinions of Dr. Czysz.
Finally, plaintiff maintains the ALJ impermissibly substituted her judgment for that of Dr. Czysz in finding his opinions inconsistent with the ability to have a normal appearance, interaction, and affect during medical appointments. However, as stated above, it is entirely appropriate for the ALJ to consider evidence of inconsistencies in the record, Tommasetti, 533 F.3d at 1041, and, further, the ALJ's responsibility to resolve conflicts in the medical opinion evidence, Carmickle, 533 F.3d at 1164. The ALJ, therefore, also appropriately considered inconsistency between Dr. Czysz's opinions and the fact that plaintiff lives on her own and is able to routinely attend medical appointments and obtain her daily methadone dose. Plaintiff, in sum, fails to demonstrate any error in the ALJ's consideration of the opinions of Dr. Czysz.
E. Dr. Diane Fligstein
In July 2010, reviewing State agency psychologist Dr. Fligstein found plaintiff ability to understand and carry out short, simple instructions and work-like procedures, make simple decisions, maintain a normal workweek, ask simple questions, maintain appropriate grooming, avoid workplace hazards, and use public transportation. (AR 718.) Dr. Hacker, in January 2011, affirmed that opinion. (AR 794.) The ALJ found the opinions consistent with the evidence in the record as a whole and accorded them significant weight. (AR 21.)
Plaintiff maintains the ALJ impermissibly "cherry-picked" Dr. Fligstein's opinions by ignoring various moderate limitations assessed. ( See AR 716-18.) However, as the Commissioner observes, the ALJ properly relied on the narrative portion of the form completed by Dr. Fligstein, rather than the check-box portion of that form. Program Operations Manual System (POMS) DI 25020.010 at B.1. Also, in describing Dr. Fligstein's opinions as "vague and unhelpful" (Dkt. 22 at 7), plaintiff focuses on only one statement in the report from Dr. Fligstein, and fails to fully account for the statement made. (See AR 718 ("Her adequate cognitive functioning and [activities of daily living] during her [consultative evaluation] also support her ability to engage in simple, routine tasks the majority of the time.")) Nor, for the same reasons discussed previously, does plaintiff demonstrate any error in Dr. Fligstein's comparison of Ms. Spengler's opinion as to plaintiff's inability to work with evidence that plaintiff runs errands, goes to doctor appointments, reads crime novels, and perform household chores. The ALJ's consideration of this and the other medical opinion evidence should be upheld.
Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester, 81 F.3d at 834. "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ in this case found plaintiff's impairments could be reasonably expected to cause some of the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. As set forth below, the ALJ provided several clear and convincing reasons for this determination.
First, the ALJ considered that plaintiff "has had little treatment for, or complaints of, back pain." (AR 18.) The ALJ pointed specifically to the few complaints of back pain in Dr. Moore's treatment notes, and the fact that plaintiff has done little else than take methadone as treatment, and found her lack of consistent complaints to undermine the alleged severity of her back condition. ( Id. ) In challenging this reasoning, plaintiff points to the records of Dr. Moore, while conceding that the treatment for her chronic back condition is conservative. However, the ALJ's reasoning was entirely appropriate. Indeed, "evidence of conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment[.]" Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); see also Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective pain complaints where petitioner's "claim that she experienced pain approaching the highest level imaginable was inconsistent with the minimal, conservative treatment' that she received").
Second, the ALJ considered that "[a]lthough there is insufficient evidence to indicate... ongoing substance abuse issues, the evidence in the record suggested [plaintiff] has not been entirely honest about her usage." (AR 18.) Plaintiff criticizes this reasoning as impermissible speculation, contending drug use is not an issue in this case, noting the absence of any opinion evidence as to an active substance abuse problem, as well as that the ALJ found her drug and alcohol abuse in full-sustained remission. These arguments fail.
The ALJ noted a January 2011 incident in which plaintiff refused to provide a urine sample for drug testing, and her statement on the following day that "she would sometimes smoke crack on a dark, cloudy day[.]'" (AR 18 (citing AR 784).) The ALJ noted that, in October 2011, plaintiff reported "having a cocaine dirty' in January that she did not want anyone to know about, particularly in light of her application for SSI benefits[.]" ( Id. (citing AR 940).) The ALJ also noted other issues associated with plaintiff's urine samples at her methadone clinic, including that, in April and October 2011, she "had low creatinine levels, which can indicate a diluted sample[, ]" and that, in July 2011, she refused to leave a sample and did not leave another sample until more than a week later. ( Id. (citing AR 909).) The ALJ found plaintiff's credibility "further undermined by the possibility she is withholding information[, ]" pointing to the fact that, also in October 2011, plaintiff referenced the existence of a letter, not included in the record, but "which apparently discussed a grey area'" in her life "and cocaine relapses[.]" ( Id. (citing AR 940).)
An ALJ may consider "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid[.]" Smolen, 80 F.3d at 1284. See also Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (ALJ appropriately considers reputation for truthfulness and inconsistencies in plaintiff's testimony). Proper considerations include inconsistencies regarding drug and alcohol usage. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). Further, "[i]n reaching [her] findings, the law judge is entitled to draw inferences logically flowing from the evidence." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (cited sources omitted). In this case, contrary to plaintiff's contention, the ALJ's reasoning associated with plaintiff's drug use and testing, and generally touching upon questions of her honesty and forthrightness, was entirely appropriate and well supported.
The ALJ next reflected that plaintiff "appears to be trying to portray herself as completely disabled." (AR 18.) She references statements in the record reflecting plaintiff's intention to never give up in seeking SSI and that "she would never work again[.]'" (AR 18 (citing AR 926, 930).) She also contrasts plaintiff's testimony as to her limited ability to walk, with reports of her daily walking, losing weight and maintaining an exercise regime, her ability to take care of her small apartment, and that exercise and daily walking helped her deal with her knee pain. ( Id. (citing AR 925, 939).)
Again, plaintiff fails to demonstrate error in the ALJ's reasoning. One does not need to be "utterly incapacitated" in order to be found disabled under the Social Security Act. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Nevertheless, a claimant's claims of "a totally debilitating impairment" may be discredited when the claimant reports participation in everyday activities that indicate capacities transferrable to a work setting, even if those activities suggest some difficulty functioning. Molina, 674 F.3d at 1112-13. Here, the ALJ reasonably contrasted plaintiff's claims of disability and limitations with contrary evidence in the record.
Finally, the ALJ found an absence of support for plaintiff's allegation of disabling panic attacks. (AR 19.) The ALJ pointed specifically to the fact that, between November 2009 and September 2011, plaintiff did not once indicate to Ms. Spengler symptoms of panic attacks, and that her counseling "seemed to focus mostly on... family relationships." ( Id. (citing AR 881-92).) As reflected above, one of plaintiff's counseling sessions did reference panic attacks. (AR 885.) However, the failure to acknowledge that reference may be deemed harmless. See Molina, 674 F.3d at 1115 (ALJ's error may be deemed harmless where it is "inconsequential to the ultimate nondisability determination.'"; court looks to "the record as a whole to determine whether the error alters the outcome of the case.") (cited sources omitted). It remains relevant that plaintiff only once reported panic attack symptoms to Ms. Spengler. That is, the ALJ properly considered the inconsistency between plaintiff's allegation and the evidence in the record. See Tonapetyan, 242 F.3d at 1148. The ALJ, in sum, provided a number of clear and convincing reasons to find plaintiff less than fully credible.
Lay Witness Evidence
Lay witness testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence and cannot be disregarded without comment. Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ can reject the testimony of lay witnesses only upon giving germane reasons. Smolen, 80 F.3d at 1288-89.
The ALJ here noted Teresa Reynolds' reports that plaintiff "has no trouble getting along with others, and that she gets along with authority figures just fine[, ]'" that she "runs errands and goes to appointments using public transportation[, ]" and that plaintiff "can only walk a block or two, " and "uses a cane[.]" (AR 22 (citing AR 296-303).) The ALJ found the statement generally consistent with the assessed RFC, but gave the portion of the report as to use of a cane little weight given that plaintiff did not report using a cane. ( Id. )
Contrary to plaintiff's contention, the ALJ did not afford the entire lay statement little weight given the reference to a cane, she explicitly afforded only the portion of the statement referencing a cane little weight. Plaintiff fails to demonstrate the ALJ erred in reaching that conclusion. Nor does plaintiff otherwise undermine the ALJ's consideration of the lay statement. Instead, the ALJ reasonably deemed the lay statement generally consistent with the assessed RFC which included, inter alia, significant limitations in plaintiff's ability to stand and walk, and the need for regular breaks in standing and walking.
At step four, the ALJ must identify plaintiff's functional limitations or restrictions, and assess his work-related abilities on a function-by-function basis, including a required narrative discussion. See 20 C.F.R. §§ 404.1545, 416.945; SSR 96-8p. RFC is the most a claimant can do considering his or her limitations or restrictions. See SSR 96-8p. The ALJ must consider the limiting effects of all of plaintiff's impairments, including those that are not severe, in determining his RFC. §§ 404.1545(e), 416.945(e); SSR 96-8p.
Plaintiff avers error in the ALJ's failure to consider all of the above-described medical opinion evidence. However, this mere restating of plaintiff's argument fails to establish error. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008).
Plaintiff also maintains the ALJ erred by failing to address her reaction to stress, as mandated by SSR 85-15. Again, however, plaintiff fails to demonstrate error by relying on a reiteration of arguments addressed above, including evidence associated with panic attacks and the medical opinions as to her mental impairments. Moreover, plaintiff fails to acknowledge the inclusion of limitations in the RFC associated with and accounting for her mental impairments, including those relating to very short and simple instructions, simple decisions, occasional and brief superficial contact with others, and the need for a routine and predictable workplace. (AR 17.)
Finally, plaintiff alleges the ALJ failed to take into account her left finger impairment, pointing to Dr. Moore's opinion that this impairment caused her marked difficulty in handling and carrying. (AR 824.) The ALJ, however, both adequately addressed Dr. Moore's opinions, and accounted for this impairment by limiting plaintiff to occasional fingering with her left hand. (AR 17, 20, 82-83.) Plaintiff, in sum, fails to demonstrate any error in the RFC assessment.
Plaintiff avers error at step five based on a deficient RFC and incomplete hypothetical to the VE. However, because the Court finds no error in the assessment of the medical evidence and assessed RFC and, therefore, the corresponding hypothetical to the VE, this restating of plaintiff's argument fails to establish error at step five. Stubbs-Danielson, 539 F.3d at 1175-76.
Plaintiff also avers error in relation to the number of jobs identified at step five. The VE identified two jobs: (1) surveillance system monitor, with 244 jobs in Washington State and 8, 359 jobs nationally; and (2) addresser, with 245 jobs regionally and 18, 847 jobs nationally. (AR 82-83.) He also testified that, given the inclusion of a sit/stand at will requirement in the RFC, the number of addresser jobs would be reduced by fifty percent. (AR 83-85.) The ALJ concluded that this evidence established the existence of a significant number of jobs in the national economy plaintiff could perform. (AR 23-24.)
Plaintiff asserts that the identification of less than 125 jobs in either occupation is insufficient to meet the Commissioner's step five burden. In support, she points to cases wherein the Ninth Circuit determined that the identification of a small numbers of jobs did not suffice at step five. See Beltran v. Astrue, 676 F.3d 1203, 1206-07 (9th Cir. 2012) (finding 135 regional surveillance monitor jobs qualifies as a very rare' number[, ]" and that "[a]lthough 1, 680 jobs might seem a significant number' standing alone, distributing these jobs between several regions across the nation shows that it is not significant' after all."); Walker v. Matthews, 546 F.2d 814, 820 (9th Cir. 1976) (rejecting ALJ's reliance on "the existence of a few scattered jobs" in two potential occupations).
Plaintiff does not accurately reflect the number of regional jobs identified. The VE testified, and the ALJ found, that only the addressor jobs would be reduced with the inclusion of a sit/stand option. (AR 23-24, 83-84.) Considering the fifty percent reduction in addresser jobs, the ALJ relied on a total of some 364 jobs regionally and 17, 782 jobs nationally to support her step five decision.
The Ninth Circuit has "never set out a bright-line rule for what constitutes a significant number' of jobs." Beltran, 676 F.3d at 1206. It has, however, found "a comparison to other cases... instructive." ( Id. ) The Ninth Circuit has further made clear that "[t]he statute in question indicates that the significant number of jobs' can be either regional jobs (the region where a claimant resides) or in several regions of the country (national jobs)." Beltran, 676 F.3d at 1206 (emphasis in original) (citing 42 U.S.C. §§ 423(d)(2)(A)). As such, upon finding " either of the two numbers significant, '" the Court "must uphold the ALJ's decision." Id.
Here, it is arguable whether, as compared to other cases, a total of some 364 jobs regionally constitutes a significant number. See, e.g., Gray v. Comm'r of the SSA, No. 09-35212, 2010 U.S. App. LEXIS 2609 at *63 (9th Cir. Feb. 8, 2010) (980 jobs in Oregon and 59, 000 jobs nationally significant); Thomas, 278 F.3d at 960 (1, 300 jobs in Oregon region and 622, 000 in the national economy significant); Meanel v. Apfel, 172 F.3d 1111, 1114-15 (9th Cir. 1999) (between 1, 000 and 1, 500 jobs in the local area significant); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (2, 300 jobs in San Diego County and 64, 000 jobs nationwide significant); Barker v. Secretary of Health & Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (1, 266 jobs in the Los Angeles/Orange County area significant); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1987) (amended) (3, 750 to 4, 250 jobs regionally significant); Meissl v. Barnhart, 403 F.Supp.2d 981, 982 & n.1 (C.D. Cal. 2005) (approximately 1, 700 jobs locally and 38, 000 jobs nationally significant). At the same time, as the Commissioner observes, 364 regional jobs almost doubles the 135 jobs at issue in Beltran. See also Yelovich v. Colvin, No. 11-36071, 2013 U.S. App. LEXIS 13248 at *4 (9th Cir. Jun. 27, 2013) (noting that the Ninth Circuit has "referenced cases finding as few as 500 jobs significant.") (citing Barker, 882 F.2d at 1478-79 (citing Jenkins v. Bowen, 861 F.2d 1083, 1087 (8th Cir. 1988) (holding as few as 500 jobs significant))).
Also, plaintiff does not raise a challenge to the ALJ's reliance on the number of jobs identified nationally. ( See Dkt. 15 at 17-18 and Dkt. 22 at 9.) That number - 17, 782 in total - entails more than ten times the number of jobs deemed not significant in Beltran, 676 F.3d at 1207 ("1, 680 jobs distributed over several regions cannot be a significant number'") (emphasis in original). Further considering that number, the Court concludes that the ALJ properly supported his step five decision with a significant number of jobs in the national economy plaintiff could perform. See, e.g., Yepiz v. Colvin, No. CV 12-05226 AJW, 2013 U.S. Dist. LEXIS 46262 at *25-26 (C.D. Cal. Mar. 28, 2013) (800 jobs regionally and 15, 000 jobs nationally significant); Albidrez v. Astrue, 504 F.Supp.2d 814, 824 (C.D. Cal. 2007) (1, 445 job regionally and 17, 382 jobs nationally significant). Plaintiff, therefore, fails to demonstrate reversible error at step five.
For the reasons set forth above, this matter should be AFFIRMED.