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Shafer v. Astrue

March 26, 2009

ROBERT WAYNE SHAFER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION RE: PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 2)

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying an application for benefits. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b) and Local Rule 72-302(c)(15). The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument to the Honorable Sandra M. Snyder, United States Magistrate Judge.

I. Procedural History

With a protective filing date of July 8, 2005, Plaintiff applied for Disability Insurance Benefits (DIB), alleging disability due to anxiety, depression, arthritis, and neck pain since January 25, 2005. (A.R. 13, 61-63, 16, 94.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff requested and appeared at a hearing before the Honorable James P. Berry, Administrative Law Judge (ALJ) of the Social Security Administration (SSA), on April 4, 2007; Plaintiff, who was represented by an attorney, testified. (A.R. 13, 35, 38, 13, 305-29.) On May 9, 2007, the ALJ denied Plaintiff's application for benefits. (Id. at 13-19.) Plaintiff sought review from the Appeals Council. After the Appeals Council denied Plaintiff's request for review on July 30, 2007, Plaintiff filed the complaint in this action on September 5, 2007. (Id. at 4-6.) Briefing commenced on June 30, 2008, and was completed on July 23, 2008.

II. Scope and Standard of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

III. Disability

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn1 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).

Here, the ALJ found that Plaintiff's severe impairments of major depressive disorder and panic disorder did not meet or medically equal a listed impairment; Plaintiff retained the residual functional capacity (RFC) to perform heavy exertional work with specifically stated non-exertional limitations of simple and repetitive tasks; maintain attention, concentration, persistence, and pace; relate to and interact with others; adapt to usual changes in the work setting; and adhere to safety rules. (A.R. 15-16.) Plaintiff thus could perform his past relevant work (PRW) as a baker's helper and sanitation cleaner. (A.R. 18.) Therefore, Plaintiff was not disabled from January 25, 2005, through May 9, 2007, the date of decision. (A.R. 19.)

IV. Credibility Findings

The ALJ concluded that Plaintiff's medically determinable impairments could reasonably have been expected to produce the alleged symptoms, but Plaintiff's statements concerning the intensity, persistence and limiting effects of the symptoms were not entirely credible. (A.R. 16.)

Plaintiff argues that the ALJ's findings did not clarify to what extent Plaintiff's statements were credible, and the weight to which they were entitled; further, some of the reasons stated (activities of daily living, and the finding that Plaintiff did not require any special accommodations to relieve his symptoms) were the product of the ALJ's failure to consider and analyze the effect of the structured environment which protected Plaintiff from "exacerbations caused by experiences outside of the environment." (Brief. p. 10.) The remaining reasons, which were not identified in the brief, were "not relevant to plaintiff's mental limitations." (Id.)

The court in Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), summarized the pertinent standards for evaluating the sufficiency of an ALJ's reasoning in rejecting a claimant's subjective complaints:

An ALJ is not "required to believe every allegation of disabling pain" or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide "'specific, cogent reasons for the disbelief.' " Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must "cit[e] the reasons why the [claimant's] testimony is unpersuasive." Id. Where, as here, the ALJ did not find "affirmative evidence" that the claimant was a malingerer, those "reasons for rejecting the claimant's testimony must be clear and convincing." Id.

Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ("Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases."); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59.

The factors to be considered in weighing credibility are set forth in the regulations and pertinent Social Security rulings. They include the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the symptoms; treatment, other than medication, the person receives or has received for relief of the symptoms; any measures other than treatment the claimant uses or has used to relieve the symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529; S.S.R. 96-7p.

With respect to the course of analysis directed by the regulations, the ALJ is first obligated to consider all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. § 404.1529(a). Once it is determined that there is a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the ALJ must then evaluate the intensity and persistence of the symptoms to determine how the symptoms limit the capacity for work. § 404.1529(b), (c). The ALJ will consider all available evidence. To the extent that the claimant's symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence, the symptoms will be determined to diminish the claimant's capacity for basic work activities. § 404.1529(c)(4). A claimant's statements will not be rejected solely because unsubstantiated by the available objective medical evidence. § 404.1529(c)(2).

Further, the relevant Social Security Ruling provides in pertinent part that an ALJ has an obligation to articulate the reasons supporting the analysis:

...When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.

The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.

S.S.R. 96-7p at 4.

Plaintiff testified at the hearing that he stopped working because of his anxiety, panic attacks, and depression. (A.R. 309-313.) He had problems concentrating and paying attention at the time of the hearing. (Id. at 314-15.) He had a bad neck and low back; he had gone to pain management, but they cancelled because Plaintiff was supposed to have an MRI before going there. (A.R. 316.) Plaintiff said that his back, hips, and legs all the way to his feet hurt and went numb; he had aches in his shoulders and neck for which he probably took three to four extra strength Tylenol tablets during the day for the pain. (Id.) He vacuumed once in a while, and he had performed yard work (cleaning, raking, mowing, and blowing things down) in place of the regular gardener the other day for about six hours, which started bothering his back and neck, and he could not handle the work. (A.R. 319.)

Here, the ALJ stated that he had considered all symptoms and the extent to which they could be considered consistent with the objective medical evidence. (A.R. 16.)

Earlier in his decision the ALJ noted that Plaintiff's complaints of neck pain were inconsistent with the objective medical evidence, which included an internist's examination in 2005 which did not reveal any significant, abnormal clinical findings, establish a severe cervical spine disorder, or reveal any severe physical impairment. (A.R. 15.) This finding is supported by substantial evidence in the form of Dr. Stoltz's report of his examination of September 2005 that produced essentially normal findings and revealed no evidence of any ongoing medical disorders that would limit Plaintiff's activities. (A.R. 184-88, 186-88.) It is also consistent with a later x-ray of the cervical spine taken in August 2006 that revealed neural foraminal narrowing on the right at the C5-6 level and disc space narrowing at C5-6 with anterior osteophytes, the extent of which was not specified and which was thus subject to the ALJ's authority to reconcile conflicting medical evidence. (A.R. 293.) To the extent that evidence is inconsistent, conflicting, or ambiguous, it is the responsibility of the ALJ to resolve any conflicts and ambiguity. Morgan v. Commissioner, 169 F.3d 595, 603 (9th Cir. 1999). Because the ALJ has authority to interpret ambiguous medical opinions, Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993), the Court must defer to the ALJ's decision.

The ALJ also concluded that Plaintiff's complaints of arthritis in the right shoulder were inconsistent with an x-ray taken in August 2006 that showed no signs of impingement and no degenerative changes. (A.R. 16, 292.)

Finally, the ALJ had noted that although an x-ray of the lumbar spine showed degenerative changes at L4-S1, there was no clinical correlation. (A.R. 16.) Substantial evidence supported this finding in that the x-ray of August 2006 revealed degenerative changes with disc space narrowing at the L4-S1 level with osteophytes arising off L3, L4, and L5. However, in contrast, Plaintiff testified that he could lift thirty-five pounds and fifteen pounds frequently, could stand four to five hours with breaks, had no problems sitting, and took only Tylenol to help cope with the pain. (A.R. 294, 316-18.) The ALJ further noted that Plaintiff had no ongoing or regular treatment for his allegedly severe physical complaints. (A.R. 15.)

The ALJ specifically stated that the weight of the objective medical evidence did not support the claims of Plaintiff's disabling limitations to the degree alleged. (A.R. 17.) He further noted that in contrast to the Plaintiff's allegations of disabling pain, Plaintiff did not exhibit any significant atrophy, loss of strength, or difficulty moving that were indicative of severe and disabling pain. (A.R. 17.) Substantial evidence in the form of Dr. Stoltz's report from his consultative examination supports this finding. (A.R. 185-88.)

Likewise, reliance on the conservative nature of treatment or a lack of treatment is appropriate in rejecting a claimant's subjective complaint of pain. Johnson v. Shalala 60 F.3d 1428, 1433-34 (9th Cir. 1995). Here, Plaintiff does not argue that there is any lack of substantial evidence supporting the ALJ's conclusion that Plaintiff's treatment was generally conservative in approach and that Plaintiff had not generally received the type of medical treatment one would expect for a totally disabled individual. (A.R. 17.) Medication and massage for Plaintiff's physical complaints, and even the ...


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