UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 5, 2010
BEN EDIOR, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge
OPINION AND ORDER
Plaintiff Ben Edior filed a complaint on December 3, 2008, seeking review of the Commissioner's decision denying his application for disability benefits. On June 1, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on July 15, 2009.
On March 31, 2006 (protective filing date), plaintiff, who was born on July 11, 1981, applied for disability benefits under the Supplemental Security Income program ("SSI") of Title XVI of the Social Security Act ("Act"), claiming an inability to work since October 1, 2002, due to sickle cell disease, nephrotic syndrome, arthritis and gout. Certified Administrative Record ("A.R.") 9, 89-92, 101. The plaintiff's application was initially denied on May 31, 2006, and was denied again on April 3, 2007, following reconsideration. A.R. 48-52, 55-66. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Thomas P. Tielens ("the ALJ") on April 28, 2008. A.R. 16-45, 63. On June 23, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 6-15. The plaintiff appealed this decision to the Appeals Council, which denied review on September 26, 2008. A.R. 1-5.
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). "In determining whether the Commissioner's findings are supported by substantial evidence, [this 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); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S.Ct. 1068 (2008); Vasquez, 572 F.3d at 591.
The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 416.920(g). Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments.*fn1 Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam).
Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since March 31, 2006, his application date. (Step One). The ALJ then found plaintiff has the severe impairments of sickle cell disease and nephrotic syndrome; however, he also has mild depression, which is not a severe impairment. (Step Two). The ALJ also found plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). Next, the ALJ determined plaintiff has no past relevant work. (Step Four). Finally, the ALJ found plaintiff can perform a significant number of jobs in the national economy; therefore, he is not disabled. (Step Five).
The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The Supreme Court has recognized that including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Social Security Act by denying benefits to claimants who do meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).
A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities. Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. § 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b); Webb, 433 F.3d at 686.
Although the ALJ found, in Step Two, that plaintiff has the severe impairments of sickle cell disease and nephrotic syndrome, plaintiff complains the ALJ erred in not finding his mental impairment and obesity are also severe impairments. There is no merit to this claim.
A. Mental Impairment
On March 20, 2007, Linda Smith, M.D., examined plaintiff and diagnosed him as having an unspecified depressive disorder and an unspecified anxiety disorder and determined plaintiff's Global Assessment of Functioning ("GAF") was 62.*fn2 A.R. 178-84. Dr. Smith found plaintiff "is mildly impaired." A.R. 183. More specifically, she found plaintiff "had a couple of problems with memory on the mental status exam," but not what she "would consider substantial problems." Id. Thus, Dr. Smith concluded plaintiff is not impaired in his ability to understand, remember, or complete simple commands, but is "mildly" impaired in his ability to: understand, remember, or complete complex commands; interact appropriately with supervisors, co-workers, or the public; comply with job rules such as safety and attendance; respond to change in the normal workplace; and maintain persistence and pace in a normal workplace. A.R. 183-84. Apart from Dr. Smith, the only other physician to assess plaintiff's mental condition was a nonexamining psychiatrist, Herbert Hurwitz, M.D., who found plaintiff does not have a severe mental impairment. A.R. 202-12.
Here, the ALJ concluded plaintiff does not have a severe mental impairment, A.R. 11, 13, and this finding does not contradict the opinion of Dr. Smith; rather, it is supported by the opinions of both Drs. Smith and Hurwitz. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician's medical report based on independent examination of claimant constitutes substantial evidence to support ALJ's disability determination); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) ("[T]he findings of a nontreating, nonexamining physician can amount to substantial evidence, so long as other evidence in the record supports those findings."), cert. denied, 519 U.S. 1113 (1997).
"Obesity is a complex, chronic disease characterized by excessive accumulations of body fat." Social Security Ruling ("SSR") 02-01p, 2000 WL 62809, *2 (S.S.A.). "Obesity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal[, respiratory, and cardiovascular] system[s], and disturbance of [these] system[s] can be a major cause of disability in individuals with obesity." 20 C.F.R. § 404, Subpart P, App. 1, Listing 1.00Q, 3.00I, and 4.00F. "Obesity may also cause or contribute to mental impairments such as depression." SSR 02-01p, 2000 WL 62809 at *3.
The Court finds Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003), wherein the Ninth Circuit held the ALJ committed legal error by failing to consider the claimant's obesity, is inapposite here.
First, unlike Celaya, plaintiff was represented by counsel at his administrative hearing, A.R. 16-48, and counsel had the opportunity to raise the claim of plaintiff's purported obesity. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Second, also unlike Celaya, plaintiff's purported obesity is in the most mild category since plaintiff testified he is 5'4" tall and weighs 184 pounds, A.R. 40, which equates to a Body Mass Index ("BMI") of 31.6.*fn3 Finally, the record contains absolutely no evidence demonstrating plaintiff's obesity exacerbates his other impairments, see SSR 02-1p, 2000 WL 628049 at *4 ("There is no specific level of weight or BMI that equates with a 'severe' or a not severe' impairment. Neither do descriptive terms for levels of obesity (e.g., "severe," "extreme," or "morbid" obesity) establish whether obesity is or is not a "severe" impairment for disability program purposes."), or has any effect on his ability to perform basic work activities. Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999); see also Burch, 400 F.3d at 683 ("Even on appeal, [plaintiff] has not pointed to any evidence of functional limitations due to obesity which would have impacted the ALJ's analysis."). Therefore, plaintiff has not shown the ALJ erred in Step Two.
A claimant's residual functional capacity ("RFC") is what he can still do despite his physical, mental, non-exertional, and other limitations. Mayes, 276 F.3d at 460; see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff:
has the [RFC] to perform light work*fn4 . . . except he is limited to occasional climbing, balancing, stooping, kneeling, crouching, and crawling; he is limited to no climbing of ladders, ropes, or scaffolds; and he must avoid exposure to cold, heat, wet, humidity, and hazards such as heights and fast-moving machinery.
A.R. 11 (footnote added). However, plaintiff contends the ALJ's RFC assessment is not supported by substantial evidence because the ALJ failed to properly consider a referral made by treating physician Daniel Wolfsen, M.D., improperly found plaintiff was not a credible witness, and erroneously failed to address the side effects of plaintiff's medication. There is no merit to these claims.
A. Treating Physician's Opinion
The medical opinions of treating physicians are entitled to special weight because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Therefore, the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating physician, Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, 157 F.3d at 725, and "[e]ven if [a] treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). However, in assessing a claimant's application for disability benefits, an ALJ need not set forth verbatim every statement a physician makes; rather, the ALJ need only discuss evidence that is significant and probative of a claimant's disability claim. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003).
On April 30, 2007, plaintiff's treating physician, Dr. Wolfsen, referred plaintiff for a pain management evaluation. A.R. 229. However, this referral does not offer an opinion as to plaintiff's impairments, limitations or prognosis; thus, its significance is unclear, and, standing alone, it does not contradict any finding made by the ALJ. Accordingly, the ALJ did not err in not discussing the referral.
The plaintiff testified he cannot work because he experiences pain and swelling throughout his body, including in his neck, lower back, arms, hands, knees, ankles and stomach, his kidneys flare up, his joints stiffen, and he has urinated blood on a couple of occasions. A.R. 21-29. The plaintiff also stated his fingers sometimes swell so he cannot bend them, make a fist, or grab something, and if he does not use his hands they get stiff, but if he does use them he experiences shoulder and wrist pain. A.R. 24-25. Further, plaintiff testified he has migraine headaches every day or every other day, and sometimes his ankle pain is so bad he has to crawl. A.R. 25-26. He also stated he retains fluids and most of the time he swells "real bad where I can't walk [or] talk[,]" his eyes get puffy, his stomach gets "real big[,]" and he cannot do anything. A.R. 30. The plaintiff also complained he has a bad memory, A.R. 36, and testified he has been repeatedly hospitalized for various conditions. A.R. 20-21, 31. Finally, plaintiff estimated he can only sit for 20 minutes, stand for 5 to 10 minutes, and walk about 50 yards at a slow pace because of his pain, and he has to lie down about 2-4 hours out of an 8-hour day, A.R. 38-40, and he usually cannot lift a full gallon of milk, cannot grip with his hands, and cannot drive because of his pain. A.R. 37-38.
Once a claimant has presented objective evidence that he suffers from an impairment that could cause pain or other non-exertional limitations, the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, he "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 572 F.3d at 591 (9th Cir. 2009).
In his decision, the ALJ concluded that plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible[,]" in part, because they are inconsistent with the medical record. A.R. 13. For instance, although plaintiff testified he had been hospitalized in 2005 at the Arrowhead Regional Medical Center and Loma Linda University Medical Center, A.R. 103-04, and repeatedly hospitalized over the years, see also A.R. 169 (On March 7, 2007, plaintiff told examining physician "he has been in and out of the hospital frequently since a young age" and "was last hospitalized about six months ago at the Arrowhead Regional Medical Center"), there is absolutely nothing in the medical record showing such hospitalizations, see, e.g., A.R. 141-54, 163-68, and "[c]ontradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009).
The ALJ also based his adverse credibility determination of plaintiff on the sporadic nature of plaintiff's health care, which showed plaintiff "did not have a primary care physician for three years before establishing care at the Arrowhead Health Center in October 2005[,]" and plaintiff had no "recent treatment for any impairment." A.R. 13. Certainly, an "ALJ is permitted to consider lack of treatment in his credibility determination[,]" Burch, 400 F.3d at 681; see also Orn, 495 F.3d at 638 ("[I]f a claimant complains about disabling pain but fails to seek treatment . . . for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated."). Thus, this finding also supports the ALJ's adverse credibility determination.*fn5 See, e.g., Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (ALJ properly rejected claimant's testimony based, in part, on fact that claimant claimed he did not receive any medical treatment until almost one year after alleged injury.).
Furthermore, in finding plaintiff was not credible, the ALJ also found that there was "no treating source statement" regarding plaintiff's RFC and no physician had determined plaintiff was disabled, A.R. 13, and both of these findings support the ALJ's adverse credibility determination. See, e.g., Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1995) (substantial evidence supported finding claimant could do a narrow range of medium work where no examining physician concluded claimant was totally disabled). For all these reasons, "[t]he ALJ gave specific, clear and convincing reasons for discounting [plaintiff's] testimony." Thomas, 278 F.3d at 959; Burch, 400 F.3d at 681.
C. Side Effects
In determining a claimant's limitations, the ALJ must consider all factors that might have a significant impact on an individual's ability to work, including the side effects of medication. Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993); Varney v. Sec'y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir. 1988). Thus, when a claimant testifies he is experiencing a side effect known to be associated with a particular medication, the ALJ may disregard the testimony only if he "support[s] that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medication(s)." Varney, 846 F.2d at 585.
Here, plaintiff testified at the administrative hearing that his medications sometimes make him tired, A.R. 32, and the ALJ rejected this testimony based on plaintiff's lack of credibility and to the extent it was inconsistent with the RFC determination. A.R. 13-14. The plaintiff's lack of credibility is a sufficient and proper reason for discrediting a claimant's testimony. See, e.g., Thomas, 278 F.3d at 960 (ALJ properly rejected claimant's claimed side effects, including dizziness and difficulties in concentration, based on a finding claimant lacked credibility). Moreover, since plaintiff did not report any alleged medication side effects to any physician, his claim is also not supported by the medical record. See, e.g., Greger, 464 F.3d at 973 (ALJ did not err in assessing claimant's RFC when claimant did not report alleged side effect of fatigue to any physician); Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) (The ALJ properly rejected claimant's claim that his use of prescription narcotics disabled him when claimant "produced no clinical evidence showing that narcotics use impaired his ability to work.").
At Step Five, the burden shifts to the Commissioner to show the claimant can perform other jobs that exist in the national economy. Bray, 554 F.3d at 1222; Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007). To meet this burden, the Commissioner "must 'identify specific jobs existing in substantial numbers in the national economy that [the] claimant can perform despite her identified limitations.'" Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (quoting Johnson, 60 F.3d at 1432). There are two ways for the Commissioner to meet this burden: "(1) by the testimony of a vocational expert, or (2) by reference to the Medical Vocational Guidelines ["Grids"] at 20 C.F.R. pt. 404, subpt. P, app. 2."*fn6 Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); Bray, 554 F.3d at 1223 n.4. However, "[w]hen [the Grids] do not adequately take into account [a] claimant's abilities and limitations, the Grids are to be used only as a framework, and a vocational expert must be consulted." Thomas, 278 F.3d at 960; Bray, 554 F.3d at 1223 n.4. Hypothetical questions posed to a vocational expert must consider all of the claimant's limitations, Valentine, 574 F.3d at 690; Thomas, 278 F.3d at 956, and "[t]he ALJ's depiction of the claimant's disability must be accurate, detailed, and supported by the medical record." Tackett, 180 F.3d at 1101.
Here, the ALJ asked vocational expert Malcolm J. Brodzinsky the following hypothetical question:
I'd ask you to consider that you're dealing with an individual the same as our claimant, who has the same educational background and past work experience. Assume for this hypothetical that this person could do light work, only occasionally climb, balance, stoop, kneel, crouch, or crawl; should use no ladders, ropes, or scaffolds; would need to avoid concentrated exposure to cold, heat, wet environments, humidity, and hazards such as heights and fast moving equipment. Is this hypothetical consistent with any work in the national or local economy?
A.R. 43. The vocational expert responded that the individual could perform the full range of light assembly work, such as production assembler (Dictionary of Occupational Titles ("DOT")*fn7 no. 706.687.010) and cashier II (DOT no. 211.462-010). A.R. 43-44. However, plaintiff contends the hypothetical question to the vocational expert was incomplete because it did not include his testimony, his obesity, and the "mild" mental limitations found by Dr. Smith. There is no merit to plaintiff's claims.
First, since the ALJ found plaintiff's testimony about his pain was not entirely credible, and that determination is supported by substantial evidence, as discussed above, the hypothetical question to the vocational expert did not have to include plaintiff's testimony. See, e.g., Greger, 464 F.3d at 973 (9th Cir. 2006) ("The ALJ . . . 'is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence.'" (quoting Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001)); Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988) ("[E]xclusion of some of a claimant's subjective complaints in questions to a vocational expert is not improper if the ALJ makes specific findings justifying his decision not to believe the claimant's testimony about claimed impairments such as pain."). Similarly, since there is no evidence showing any functional limitations from plaintiff's obesity, also discussed above, the ALJ did not err in failing to include any obesity limitations in his hypothetical question to the vocational expert. Burch, 400 F.3d at 684. Finally, since Dr. Smith found plaintiff has only "mild" mental limitations, the ALJ's failure to include those limitations in the hypothetical question was harmless error since they have no effect on plaintiff's ability to work. See, e.g., Tommasetti, 533 F.3d at 1038 ("The court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate non-disability determination." (citations and internal quotation marks omitted)); Stroh v. Astrue, 2010 WL 572590, *9 (D. Or.) ("[A]ny error arising from the ALJ's failure to incorporate the mild limitations in concentration, persistence, and pace into the [RFC] assessment was harmless. The ALJ provided sufficient reasons for concluding that [claimant's] mental impairment, from which these limitations arise, is not 'severe' within the meaning of relevant regulations. . . . Given that [claimant's] mental impairment was reasonably found to cause no more than a minimal effect on her ability to work, the ALJ's failure to incorporate mild limitations in concentration, persistence, and pace into the residual functional capacity was harmless error." (citations omitted)).
IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.