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John D. Amant v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 7, 2011

JOHN D. AMANT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

ORDER

This social security action was submitted to the court without oral argument for ruling on plaintiff's motion for summary judgment and defendant's cross-motion for summary judgment. For the reasons explained below, plaintiff's motion is denied, defendant's cross-motion is granted, and the decision of the Commissioner of Social Security (Commissioner) is affirmed.

PROCEDURAL BACKGROUND

On February 27, 2004, plaintiff filed applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and for Supplemental Security Income (SSI) under Title XVI, alleging disability beginning on February 3, 2004. (Transcript (Tr.) at 74-76, 90-96, 373-77.) The applications were denied initially in May 2004 and upon reconsideration in August 2004. (Tr. at 57-58, 66-71, 378-84.) A hearing was held before Administrative Law Judge (ALJ) Antonio Acevedo-Torres in June 2005. (Tr. at 31-56, 72.) Plaintiff was represented by counsel and testified at the hearing. (Tr. at 31-56.) In a decision issued on July 15, 2005, the ALJ found that plaintiff was not entitled to DIB or SSI benefits. (Tr. at 12-21.) After the Appeals Council denied plaintiff's request for review in September 2006 (tr. at 4-6, 8), plaintiff sought judicial review by filing case No. CIV S-06-2659 CMK (E.D. Cal.). By stipulated order filed August 14, 2007, the case was remanded for further proceedings. (Tr. at 421-22.) The court's order required the Appeals Council to remand the case to the ALJ with instructions to (1) further evaluate the May 25, 2005 opinion of treating physician Alexander Chen, M.D., (2) further evaluate the credibility of plaintiff's subjective complaints pursuant to Social Security Ruling (SSR) 96-7p and apply SSR 06-03p to the third-party statements of Deborah Saienni, and (3) obtain testimony from a vocational expert (VE) regarding the effect of any medically determined non-exertional impairment on plaintiff's occupational base. (Tr. at 421-22.) The Appeals Council remanded the case to the ALJ by order dated October 4, 2007. (Tr. at 427-28.)

On January 3, 2008, a remand hearing was held before ALJ Stanley R. Hogg. (Tr. at 691-727.) Plaintiff was represented by counsel and testified at the hearing, as did a VE. (Tr. at 691-92.) In a decision issued on June 19, 2008, the ALJ found that plaintiff had not been under a disability from February 2, 2004 through the date of the decision. (Tr. at 401-11.) The ALJ entered the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2009.

2. The claimant has not engaged in substantial gainful activity since February 2, 2004, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: plantar fasciitis, obesity and a learning disorder (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the exertional demands of work as follows: lift and/or carry 20 pounds occasionally; stand and/or walk for up to 4 hours in an 8-hour workday; and can sit for up to 6 hours in an 8-hour workday. The undersigned further finds that the claimant retains the following residual functional capacity to perform the mental demands of work: moderate limitations dealing with people; moderate limitations concentrating; is unable to work with supervisors, co-workers or the public on more than occasional basis; should not deal with the public on a frequent basis; and limitations in concentrating would preclude complex work but no low semi-skilled or unskilled work.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on June 16, 1971 and was 32 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).

11. The claimant has not been under a disability, as defined in the Social Security Act, from February 2, 2004 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 403-10.)

On February 6, 2009, the Appeals Council denied plaintiff's request for review of the ALJ's June 19, 2008 decision. (Tr. at 389-96.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 405(g) by filing the complaint in this action on April 6, 2009.

LEGAL STANDARD

The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Morgan, 169 F.3d at 599); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).

A reviewing court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. Jones, 760 F.2d at 995. The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

In determining whether or not a claimant is disabled, the ALJ should apply the five-step sequential evaluation process established under Title 20 of the Code of Federal Regulations, Sections 404.1520 and 416.920. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The five-step process has been summarized as follows:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

APPLICATION

Plaintiff argues that the ALJ committed four principal errors in finding him not disabled: (1) the ALJ failed to further evaluate the 2005 opinion of Dr. Chen as required by the remand order, failed to properly evaluate and credit Dr. Chen's 2008 opinion, and failed to discuss or even refer to Dr. Collins' 2004 psychiatric assessment; (2) the ALJ failed to properly evaluate the third-party statements of Deborah Saienni as required by the remand order; (3) the ALJ failed to properly assess the impact of plaintiff's obesity as required by law; and (4) the ALJ failed to pose legally adequate hypothetical questions to the VE and failed to ask the VE whether her testimony was consistent with the DOT. Each of plaintiff's arguments is addressed below.

I. Evaluation and Crediting of Medical Evidence

Plaintiff's first argument concerns the ALJ's treatment of the medical opinions proffered by treating physician Dr. Chen in 2005 and 2008 and the medical opinion proffered by examining psychiatrist Dr. Collins in 2004.

The weight to be given to medical opinions in Social Security disability cases depends in part on whether the opinions are proffered by treating, examining, or nonexamining health professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). "As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant . . . ." Lester, 81 F.3d at 830. This is so because a treating doctor is employed to cure and usually has a greater opportunity to know and observe the patient as an individual. Smolen v. Chater, 80 F.3d at 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990).

A treating physician's uncontradicted opinion may be rejected only for clear and convincing reasons, while a treating physician's opinion that is controverted by another doctor may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830-31. An ALJ who rejects a treating physician's opinion must articulate valid reasons that are "based on substantial evidence in the record" and meet the appropriate standard. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ need not give weight to a conclusory opinion supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113-14 (9th Cir. 1999) (affirming rejection of a treating physician's "meager opinion" as conclusory, unsubstantiated by relevant medical documentation, and providing no basis for finding the claimant disabled); see also Magallanes, 881 F.2d at 751.

"The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830. An examining physician's uncontradicted opinion, like a treating physician's, may be rejected only for clear and convincing reasons, and when an examining physician's opinion is controverted by another doctor's opinion, the examining physician's opinion may be rejected only for specific and legitimate reasons supported by substantial evidence in the record. Id. at 830-31. "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." Id. at 831 (emphasis in original).

The ALJ may meet his burden of setting forth valid reasons for rejecting a treating physician's medical opinion by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes, 881 F.2d at 751. An ALJ may validly reject a treating physician's medical opinion that is inconsistent with the physician's own treatment records and lacks support by objective evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). An ALJ may also validly reject contradictory medical opinions offered by the same treating physician, Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995), and a treating physician's medical opinion that is inconsistent with the claimant's testimony, Andrews v. Shalala, 53 F.3d 1035, 1042-43 (9th Cir. 1995). Although an ALJ is required to explain why he or she has rejected uncontroverted medical evidence, the ALJ "can resolve disputes in contradicted medical evidence." Sanchez v. Sec'y of HHS, 812 F.2d 509, 511 (9th Cir. 1987). The ALJ "is the final arbiter with respect to resolving ambiguities in the medical evidence," Tommasetti, 533 F.3d at 1041, and indeed it is the ALJ's duty to resolve conflicts in such evidence and determine which medical opinions to credit, Sanchez, 812 F.2d at 511.

A. Dr. Chen's Opinions

Alexander Chen, M.D., appears to have seen plaintiff for the first time on August 19, 2003, when plaintiff requested a drug detox referral. (Tr. at 243-44.) Dr. Chen had treated plaintiff for a year and three-quarters when he completed a form titled "Medical Assessment of Ability to Do Work-Related Activities (Physical)" on May 25, 2005.*fn1 (Tr. at 369-72.) Dr. Chen completed a second "Medical Assessment of Ability to Do Work-Related Activities (Physical)" form on January 9, 2008, after treating plaintiff for more than four years. (Tr. at 627-30.)

On the 2005 assessment form, Dr. Chen's principle diagnosis was bilateral plantar fasciitis, with secondary diagnoses of peripheral neuropathic pain and cavus feet. (Tr. at 369.) By checking boxes on the form, Dr. Chen indicated as follows: plaintiff's ability to walk, stand, or sit was affected by his impairments; during an eight-hour workday, plaintiff could be expected to tolerate walking and/or standing for up to 4 hours maximum per day and sitting for up to 2 hours without interruption; plaintiff's ability to lift or carry objects was not affected by his impairments; plaintiff could lift or carry up to 20 pounds frequently, and up to and over 50 pounds occasionally; plaintiff was not restricted in bending but was totally restricted in climbing stairs and ladders and would require rest periods during the day. (Tr. at 369-70.) In response to a form question about any emotional problem or mental dysfunction, Dr. Chen noted forgetfulness "at times" and panic disorder. (Tr. at 370.) The only prescribed medication noted by Dr. Chen was Vicodin, with constipation a possible side effect experienced by plaintiff. (Id.) In response to the form question about plaintiff's ability to perform "at least the full range of sedentary work" as described on an attachment to the form, i.e., sitting for at least 6 hours in an 8-hour workday, Dr. Chen indicated that plaintiff was not able to perform such work because plaintiff had been seen by a podiatrist and was "felt to not be able to perform work as described" on the form. (Id.) Dr. Chen indicated that plaintiff was not able to work an eight-hour day five days per week because he "[h]as painful condition which prevents ability to work." (Tr. at 371.) Dr. Chen indicated that plaintiff experiences pain due to his impairments, estimating that plaintiff experienced pain at a level of "10 out of 10." (Id.) Dr. Chen found plaintiff's reports of pain credible on the ground that there was "[n]o other reason for him to have symptoms described." (Id.) Dr. Chen did not expect improvement in plaintiff's condition because he felt the condition was permanent. He noted, however, that plaintiff "has special orthotic shoes that will help with his condition." (Id.) From the seven categories of residual functional capacity (RFC) described in the attachment to the form, Dr. Chen selected Category G as the one that most appropriately applied to plaintiff. (Id.) Category G is titled "Less than the full range of sedentary" and includes persons who are unable to do prolonged sitting and persons who can work as long as they may alternate sitting and standing but cannot sit for at least 6 hours of an 8-hour workday, which is a requirement for performing the full range of sedentary work. (Tr. at 372.)

On the 2008 assessment form, Dr. Chen assessed a principle diagnosis of cavus feet, with secondary diagnoses of plantar fasciitis and mechanical capsulitis/neuritis in the right foot. (Tr. at 627.) Dr. Chen checked boxes indicating that plaintiff's ability to walk, stand, or sit was affected by his impairments; during an eight-hour workday, plaintiff could be expected to tolerate walking and/or standing for a total of one to two hours without interruption and sitting for a total of one to two hours without interruption; plaintiff's ability to lift or carry objects was also affected by his impairments because it "[h]urts to lift or carry heavy objects"; plaintiff could lift and/or carry amounts up to 20 pounds occasionally but could never lift and/or carry more than 20 pounds; plaintiff was not restricted from climbing stairs or ladders or from bending or stooping but would require rest periods during the day. (Tr. at 627-28.) In response to the form question about any emotional problem or mental dysfunction, Dr. Chen again noted occasional forgetfulness but did not mention panic disorder. (Tr. at 628.) The only prescription medication indicated by Dr. Chen was Simvastatin, with no side effects experienced by plaintiff. (Id.) In response to the form question about plaintiff's ability to perform "at least the full range of sedentary work" as described on the attachment to the form, i.e., sitting for at least 6 hours in an 8-hour workday, Dr. Chen indicated that plaintiff is capable of performing such work but then noted that plaintiff "only can do list on G," the category that describes persons who are restricted to performing less than the full range of sedentary work. (Id.) Dr. Chen then opined that plaintiff was not able to work an eight-hour day five days per week because he "[h]as pain, decreased stamina" and "[h]as to elevate feet to relieve pain." (Tr. at 629.) Dr. Chen stated that plaintiff experiences pain due to his impairments and estimated his level of pain to be "6 out of 10 in severity." (Id.) Dr. Chen found plaintiff's reports of pain credible because he "[s]eems to be trustworthy/honest." (Id.) Dr. Chen did not expect improvement in plaintiff's condition because he "[h]as not improved in over 3 years." (Id.) Of the seven categories of residual functional capacity described in the attachment to the form, Dr. Chen again selected Category G, "Less than the full range of sedentary," as the category of residual functional capacity that most appropriately applied to plaintiff. (Id.) As noted above, Category G includes persons who are unable to do prolonged sitting and persons who can work as long as they may alternate sitting and standing but cannot sit for at least 6 hours of an 8-hour workday, which is required for performing the full range of sedentary work.

Plaintiff cites the stipulated remand order filed in Case No. CIV S-06-2659 CMK, as well as the Appeals Council's own order implementing the court's order, and argues that the ALJ on remand failed to further evaluate Dr. Chen's 2005 opinion and failed to properly evaluate and credit Dr. Chen's 2008 opinion.

With respect to Dr. Chen's 2005 opinion, plaintiff contends that the ALJ merely mentioned it in the course of discrediting the doctor's 2008 opinion but did not otherwise evaluate the 2005 opinion at all, thereby ignoring Dr. Chen's opinions in 2005 that plaintiff could sit for only a maximum of two hours without interruption, would require rest periods during the day, suffered from forgetfulness at times, had a panic disorder, was incapable of working an 8-hour day five days a week due to his painful condition, was not capable of performing the full range of sedentary work, asserted credible reports of pain, and suffered from a permanent condition that would not improve. Plaintiff asserts that the ALJ failed to explain what weight, if any, he accorded to the 2005 RFC assessment, despite the court's "very specific remand order," and tacitly rejected the assessment without discussion and without articulating any reason for doing so. (Pl.'s Mot. for Summ. J. (Doc. No. 22) at 26-27.)

With respect to Dr. Chen's 2008 opinion, plaintiff complains that the ALJ rejected that opinion in its entirety despite the fact that Dr. Chen had by then been treating plaintiff for almost four years. Plaintiff acknowledges that the ALJ identified the following grounds for rejecting the 2008 opinion: it was not supported by the treatment records, it was inconsistent with the 2005 report; it was inconsistent with plaintiff's testimony that he did not have any problems sitting; and it belied common sense to say a claimant can sit 1 to 2 hours at one time and at the same time say a claimant can sit for a maximum of 1 to 2 hours in an 8 hour day. Plaintiff contends that the ALJ improperly cobbled together his own RFC assessment instead of crediting Dr. Chen's assessments.

Defendant argues that the ALJ provided valid reasons for rejecting Dr. Chen's opinions when he noted that those opinions were not supported by treatment records and were inconsistent with each other and with plaintiff's own testimony. (See tr. at 407-08.) The court agrees. The following analysis by the ALJ demonstrates that the ALJ considered Dr. Chen's opinions and rejected them in part:

In support of his allegations of severe chronic foot pain and significant functional limitations, the claimant cites a medical source statement issued by his treating physician on January 9, 2008. (Exhibit 22F, pages 2 through 5 [tr. at 627-30]). The claimant's physician stated that plantar fasciitis and mechanical capsulitist [sic] /neuritis of the right foot limited the claimant to walking and/or standing for 1 to 2 hours in an 8-hour workday; sitting for only 1 to 2 hours and limits him to performing a less than sedentary level of work. The undersigned is unable to fully credit the allegations made by the claimant's physician as they are not supported by any of the claimant's treatment records with this physician. Nor are they fully supported by statements made earlier in 2005 by the same physician who opined then that the claimant retained the capacity to walk and/or stand for 4 hours in an 8-hour workday and could frequently lift and/or carry up to 20 pounds and over 50 pounds on an occasional basis. (Exhibit 7F [tr. at 369-72]). Nor is there any evidence in the record showing the claimant alleging to his treating physician that he had limitations in his ability to sit. Further, it belies common sense to say a claimant can sit 1 to 2 hours at one time and at the same time saying maximum sitting of 1 to 2 hours in an 8 hour day. Indeed, the claimant testified he has no problems sitting.

A medical source statement issued on December 5, 2006 by a physician who performed an internal medicine examination of the claimant is more consistent with the record when considered in its entirety. (Exhibit 11F [tr. at 488-93]). The physician stated that claimant can lift and/or carry 25 pounds frequently and 50 pounds occasionally; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday and periodically alternate between standing and/or sitting every 2 hours. (Exhibit 11F, page 5 [tr. at 492]). While the undersigned does not fully credit the functional limitations expressed by an examining physician in a medical source statement issued on August 6, 2007, they lessen the veracity of the claimant's alleged functional limitations where the physician stated that the claimant has no functional limitations. (Exhibit 18F, page 5 [tr. at 571]).

(Tr. at 407-08.)

In addition to finding that the ALJ's gave valid reasons for declining to fully credit Dr. Chen's opinions, the court finds that the ALJ's analysis demonstrates adequate compliance with the district court's remand order requiring the ALJ to "[f]urther evaluate Dr. Chen's May 25, 2005 opinion" and with the Appeals Council's order to "[g]ive further consideration to the treating source opinion," "explain the weight given to such opinion evidence," and, as appropriate, "request the treating source to provide additional evidence and/or further clarification of the opinion." (Tr. at 421, 427.)

B. Dr. Collins' Opinion

Rodney Collins, M.D., performed a comprehensive psychiatric evaluation of plaintiff on April 25, 2004. Dr. Collins' functional assessment was as follows:

The claimant is actively using amphetamines and I do not feel that he is a good candidate to manage funds in his best behalf. He would need a payee to help manage funds in his best interest. He also has some deficits of memory, calculations and concentration on mental status evaluation which would again substantiate him needing help in managing funds in his best behalf. I do feel that this claimant could perform simple and repetitive tasks in a work setting; however, more detailed and complex tasks might be beyond him at this time. He would have difficulty accepting and remembering instructions from supervisors, interacting with co-workers and/or the public on a regular basis. The claimant can maintain regular attendance in a workplace and complete a normal workday and workweek without interruptions. I do feel that the usual stresses that are encountered in competitive work might overwhelm him. I do not feel in light of his current circumstances that he could perform work activities consistently.

(Tr. at 207.)

Plaintiff argues that the ALJ erred in failing to even reference Dr. Collins' 2004 psychiatric assessment. Plaintiff cites Dr. Collins' opinions that plaintiff (1) suffers from a chronic learning disability that is unlikely to improve, (2) could perform simple and repetitive tasks in a work setting but more detailed and complex tasks might be beyond him, (3) would have difficulty accepting and remembering instructions from supervisors and interacting with co-workers and/or the public on a regular basis, (4) might be overwhelmed by the usual stresses encountered in competitive work, and (5) could not perform work activities consistently. (Tr. at 207.) Plaintiff contends that the ALJ's failure to mention these opinions constituted a tacit rejection of them without providing specific and legitimate reasons for the rejection.

Defendant argues that the ALJ credited other substantial evidence over Dr. Collins' opinions, which relied on plaintiff's drug use as a basis for the limitations cited by plaintiff. Defendant argues further that Dr. Collins' opinions conflicted with the opinions of examining psychiatrist Shohreh Ghaemian, M.D., who performed a comprehensive psychiatric evaluation of plaintiff on December 3, 2006, and the opinions of Rosemary Tyl, M.D., and Susan Regan, M.D., the non-examining state agency psychiatrists who rendered opinions bases on record review on May 20, 2004 and August 2, 2004, respectively.

It is evident that Dr. Collins did indeed rely on plaintiff's drug use in assessing his functional limitations. Dr. Collins noted plaintiff's daily use of methamphetamine in the family and social history section as well as the alcohol and drug abuse history section of the evaluation. Dr. Collins also included plaintiff's drug use in the DSM-IV diagnosis as active amphetamine abuse, and plaintiff's drug use figured prominently in his functional assessment, as shown in the excerpt quoted above. (Tr. at 205-07.) Dr. Collins' opinion that more detailed and complex tasks might be beyond plaintiff "at this time" and his opinion that "in light of his current circumstances" plaintiff could not perform work activities consistently are obviously grounded on the effects of plaintiff's amphetamine abuse because Dr. Collins did not diagnose any other condition that would limit plaintiff's ability to perform more detailed and complex tasks "at this time" and to perform work activities consistently "in light of his current circumstances." (Tr. at 206-07.)

The ALJ explained his treatment of the testimony and medical evidence related to plaintiff's mental residual functional capacity as follows:

The claimant testified that he suffers from severe depression, anxiety around other people and an inability to read and/or learn.

He testified that these symptoms limit his ability to perform the mental demands of work. The undersigned is unable to fully credit the claimant's allegations. The record shows the claimant suffers from a chronic learning disability, but there is no evidence showing that he has sought or received treatment for this or any other alleged mental impairment. (Exhibits 1F [tr. at 204-07]; 10F [tr. at 483-87] and 22F [tr. at 625-90]). Without consideration of his suffering from any type of drug abuse, an examining psychiatrist stated on December 3, 2006, that the claimant retained the capacity to perform simple, repetitive jobs on a regular basis; and that the only other limitation he has is performing detailed and complex jobs due to his lack of educational background and limited employment history. (Exhibit 10F, page 4 [tr. at 486]). The undersigned credits the opinions of this psychiatrist.

Based on the above evidence, the undersigned has found that a chronic learning disability limits the claimant to performing the mental demands of low semi-skilled or unskilled work which prevents him from working around others on more than occasional basis.

Taking the claimant's drug abuse into consideration along with his learning disability would result in a finding that the claimant was unable to perform the mental demands of work. However, the drug abuse is now in substantial remission and is no longer material.

Accordingly, the undersigned finds that the claimant's drug addiction is not material to a finding of disability. (Tr. at 408.) This analysis demonstrates that the ALJ did not fail to consider and reference Dr. Collins' 2004 psychiatric assessment. Specifically, that assessment was marked as Exhibit 1F at the administrative hearing is cited by the ALJ as evidence -- along with Dr. Ghaemian's 2006 psychiatric assessment and Dr. Chen's 2008 medical assessment and treatment records -- examined for the purpose of determining any functional limitations arising from plaintiff's mental impairments.

The court finds that the ALJ provided a legitimate reason for crediting Dr. Ghaemian's 2006 assessment and rejecting Dr. Collins' 2004 assessment to the extent that the latter was based on plaintiff's use of amphetamines. Moreover, Dr. Collins' assessment was not rejected in its entirety, as the ALJ included learning disability as one of plaintiff's severe impairments and determined that plaintiff was limited to performing low semi-skilled or unskilled work and could not work around others more than occasionally.

C. Conclusion

The court finds that the ALJ on remand did not fail to evaluate or properly credit the opinions of Dr. Chen and Dr. Collins. Plaintiff is not entitled to summary judgment in his favor with respect to this argument.

II. Third-Party Testimony

The testimony of lay witnesses, including family members and friends, reflecting their own observations of how the claimant's impairments affect his activities must be considered and discussed by the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006); Smolen, 80 F.3d at 1288; Sprague, 812 F.2d at 1232. Persons who see the claimant on a daily basis are competent to testify as to their observations. Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999); Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). If the ALJ chooses to reject or discount the testimony of a lay witness, he or she must give reasons germane to each particular witness. Regennitter, 166 F.3d at 1298; Dodrill, 12 F.3d at 919. The mere fact that medical records do not corroborate the testimony does not provide a proper basis for rejecting the testimony. Smolen, 80 F.3d at 1289. It is especially important for the ALJ to consider lay witness testimony from third parties where a claimant alleges symptoms not supported by medical evidence in the file and the third parties have knowledge of the claimant's daily activities. 20 C.F.R. § 404.1513(e)(2); SSR 88-13.

Questions of credibility and the resolution of conflicts in the testimony are usually deemed functions solely of the Commissioner. Morgan, 169 F.3d at 599. The determination of credibility is said to be a function of the ALJ acting on behalf of the Commissioner. Saelee, 94 F.3d at 522. As a general rule, an ALJ's assessment of credibility should be given great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Ordinary techniques of credibility evaluation may be employed, and the adjudicator may take into account prior inconsistent statements or a lack of candor by the witness. Fair, 885 F.2d at 604 n.5. Absent affirmative evidence of malingering, however, the ALJ's reasons for rejecting the claimant's testimony must be clear and convincing. Morgan, 169 F.3d at 599.

Here, plaintiff asserts that the ALJ failed to properly evaluate the third-party statements of Deborah Saienni as directed by the district court and the Appeals Council. The district court's order instructed the ALJ to apply SSR 06-3p to statements obtained from other sources, such as the statement by Deborah Saienni, and the Appeals Council ordered the ALJ to address the third-party opinion. (Tr. at 422, 428.) According to plaintiff, the ALJ erred in making this single reference to the statements of Ms. Saienni: "Just as the above evidence does not fully support the claimant's allegations regarding the severity of his symptoms or the extent of his functional limitations, it also does not support the allegations made by the claimant's girlfriend on July 18, 2004." (Tr. at 407.) Plaintiff argues that Ms. Saienni's third-party evidence provided information useful to understanding how plaintiff's impairments affected his ability to work. Defendant argues that the ALJ provided valid reasons for rejecting Ms. Saienni's lay statements, finding them inconsistent with the medical evidence.

The court finds that plaintiff errs in reading the alleged one-sentence reference to plaintiff's girlfriend so narrowly. The statement is found near the end of the ALJ's five-page detailed discussion of evidence supporting his findings with respect to plaintiff's RFC. (Tr. at 404-08.) The discussion commenced with the ALJ's statement that he considered all symptoms and the extent to which those symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, including opinion evidence. (Tr. at 404-05.) The ALJ's discussion continued with a summary of plaintiff's testimony, followed by references to medical evidence that contradicts many of plaintiff's statements. (Tr. at 405-07.) After the ALJ described several places in the record where plaintiff's veracity is called into question by evidence that contradicts his testimony, the ALJ stated that, "[j]ust as the above evidence does not fully support the claimant's allegations regarding the severity of his symptoms or the extent of his functional limitations, it also does not support the allegations made by the claimant's girl friend on July 18, 2004." (Tr. at 407.) The statement must be considered in the context of the ALJ's entire discussion of plaintiff's testimony and the evidence supporting or refuting it.

Ms. Saienni's third-party function report includes the following allegations: plaintiff's daily activities from the time he wakes up until he goes to bed consist solely of moving from the bed to the couch, where he watches TV; he can't work, take walks, or do everyday chores; she helps him walk to the bathroom; he doesn't do any household chores indoors or outdoors; he can't go out alone; he can only walk 6 steps before needing to rest; he can only pay attention for a few minutes. (Tr. at 139-44.) Some of these extreme allegations are contradicted by plaintiff's own testimony, while others are contradicted by medical evidence and opinions discussed by the ALJ prior to his statement about the allegations of plaintiff's girl friend.

The court finds that the ALJ properly found Ms. Saienni's statements about the severity of plaintiff's symptoms and the extent of his functional limitations unsupported by evidence of record, including plaintiff's own testimony as well as medical evidence and medical opinions. The ALJ was permitted to consider the absence of supporting objective medical evidence along with other factors. Accordingly, plaintiff is not entitled to summary judgment in his favor with respect to his claim that the ALJ rejected the testimony of plaintiff's girlfriend without articulating legitimate reasons for doing so.

III. Assessing the Impact of Obesity

Plaintiff argues next that the ALJ failed to properly assess the impact of his obesity pursuant to SSR 02-01p, as required by law. As plaintiff admits, the ALJ found that plaintiff suffers from the severe impairment of obesity, noted plaintiff's history of suffering from obesity, determined that the record did not contain allegations by plaintiff that his obesity by itself limits his ability to function, and found that the record showed on occasion that obesity intensified plaintiff's alleged bilateral foot pain. (Tr. at 403, 406.) Plaintiff appears to argue that the ALJ should have inferred additional limitations arising from plaintiff's obesity.

SSR 02-1p directs adjudicators to consider the effects of obesity not only under the listings but also when assessing a claim at other steps of the sequential evaluation process, such as the assessment of an individual's RFC. The Ruling explains how obesity may increase the severity of related impairments, particularly musculoskeletal and respiratory impairments, and explains how the effects of obesity should be evaluated. An ALJ must evaluate the additional impact of a claimant's obesity both singly and in combination with the claimant's other impairments.

The court finds that the ALJ's statements concerning plaintiff's obesity demonstrate compliance with SSR 02-01p, since the ALJ properly examined the record for evidence of obesity as a severe impairment, evidence that plaintiff alleged limitations on his ability to function caused by his obesity, and evidence that plaintiff's ability to function was in fact limited due to his obesity, even if plaintiff had not so alleged. The ALJ specifically determined that the record shows that plaintiff's obesity sometimes intensified his foot pain, but plainly did not find any evidence that the severity of plaintiff's impairments was increased by his obesity such that additional limitations were required beyond those included in the ALJ's RFC assessment. In addition, the ALJ relied on medical opinions by treating and examining physicians who were aware of plaintiff's obesity, as they recorded his weight, but did not opine that plaintiff suffered any additional functional limitations as a result of his obesity. Plaintiff has not pointed to any evidence in the record establishing that his obesity caused limitations which were not considered by the ALJ or that his obesity caused limitations greater than those considered by the ALJ.

Plaintiff's argument concerning the alleged failure to properly assess the impact of his obesity pursuant to SSR 02-01p is unpersuasive. The court finds no error in the ALJ's assessment of the impact of obesity on the plaintiff in this case. Accordingly, plaintiff is not entitled to summary judgment with respect to this argument.

IV. Adequacy of the Hypothetical Questions and Consistency with the DOT

Plaintiff argues that the ALJ failed to pose legally adequate hypothetical questions to the vocational expert (VE) and failed to ask the VE whether her testimony was consistent with the Dictionary of Occupational Titles (DOT).

A. Hypothetical Questions

After careful consideration of plaintiff's argument that the ALJ failed to pose legally adequate hypothetical questions, the court finds that the ALJ reasonably concluded that plaintiff retains the RFC to lift and/or carry 20 pounds occasionally, stand and/or walk for up to 4 hours in an 8-hour workday, and sit for up to 6 hours in an 8-hour workday, with moderate limitations dealing with people and concentrating, such that plaintiff is limited to light-exertional semi-skilled or unskilled work. (See tr. at 404.) All of the limitations supported by the record were properly reflected in the hypothetical questions posed by the ALJ. (See tr. at 717-25.)

To the extent that plaintiff's argument is grounded on the claims that the ALJ should have assessed additional limitations pursuant to the opinions of Dr. Chen and Dr. Collins, the argument lacks merit. The court is unpersuaded by plaintiff's argument that the ALJ failed to incorporate Dr. Ghaemian's opinion that plaintiff was limited to performing simple and repetitive work because the ALJ's assessment of plaintiff's RFC provides that he is precluded from performing complex work, but not "low semi-skilled or unskilled work." (Tr. at 404.) The ALJ in fact included this limitation in his initial hypothetical question posed to the VE. (Tr. at 718.)

Accordingly, plaintiff is not entitled to summary judgment in his favor with respect to this claim because the ALJ's RFC determination was proper and the hypothetical questions posed to the vocational expert were not deficient. See Holohan v. Massanari, 246 F.3d 1195, 1208-09 (9th Cir. 2001) (ALJ is required to question a vocational expert in a manner that properly takes into account the limitations on the plaintiff's abilities to engage in various work-related functions).

B. Consistency with the DOT

The court has also considered plaintiff's argument that the ALJ failed to ask the VE whether her testimony was consistent with the DOT. An ALJ is required to inquire on the record as to whether any testimony given by a VE is consistent with the DOT. If there is a conflict between the two, the ALJ must then resolve it by determining whether the VE's explanation for the conflict is reasonable and justifies reliance on the expert's testimony rather than on the DOT information. SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 4, 2000). The Ninth Circuit has held that the ALJ may not rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT. Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007).*fn2 However, failure to make the requisite inquiry is harmless where there is no conflict or where the vocational expert's testimony provides sufficient support to justify any potential conflict. Id. at 1154 n.19.

Here, the ALJ failed to ask the VE on the record whether her testimony was consistent with the DOT, but stated in his decision that the VE's testimony was consistent with the information contained in the DOT. (Tr. at 410.) Plaintiff argues that the jobs identified by the VE based on the ALJ's hypothetical questions were not consistent with the DOT because the jobs include three -- storage facility clerk, office helper, and mail room clerk -- that conflict with the ALJ's RFC assessment that plaintiff has moderate limitations dealing with people, has moderate limitations in concentrating, and cannot work with supervisors, co-workers, or the public except occasionally. Plaintiff argues further that the three jobs in question require a reasoning level that exceeds plaintiff's ability to perform simple, routine tasks. As a result of these alleged defects, plaintiff contends that the ALJ was not justified in relying on the VE's testimony when he determined that jobs exist in significant numbers in the national economy that plaintiff can perform.

Although plaintiff has cast his argument as one concerning inconsistency between the VE's testimony and the DOT, there is no such inconsistency in this case. Plaintiff's argument really concerns whether the jobs selected by the VE are consistent with plaintiff's abilities. However, plaintiff has misinterpreted the DOT numbering system with respect to the element of dealing with people. The three jobs at issue do not require more contact or communication with people than would be appropriate for a person with plaintiff's limitations, as two of them require only "speaking-signaling," which is defined as talking with and/or signaling people to convey or exchange information, and the third requires "taking instructions/helping," which means that no immediate response is required, unless clarification is needed. (See Def.'t's Cross-Mot. for Summ. J. (Doc. No. 23), Mem. at 13-14.)

The three jobs at issue require a reasoning level of 2 or 3 on a scale of 6. Although plaintiff was educated in Special Education classes and did not continue past the ninth grade, plaintiff has not demonstrated that levels 2 and 3 exceed the capacity of a person with the RFC to perform unskilled and low semi-skilled work.*fn3 In the absence of evidence that plaintiff's reasoning skills fall below the DOT requirements for reasoning levels 2 and 3, the court does not find that the mere fact of plaintiff's having a learning disability requires a conclusion that he is unable to perform the jobs cited by the VE.

C. Conclusion

Plaintiff is not entitled to summary judgment on his argument that the ALJ failed to pose legally adequate hypothetical questions to the VE and failed to ask the VE whether her testimony was consistent with the DOT. The ALJ was justified in relying on the VE's testimony when he determined that jobs exist in significant numbers in the national economy that plaintiff can perform. Accordingly, plaintiff is not entitled to summary judgment in his favor with respect to this argument.

CONCLUSION

For the reasons set forth above, the court has determined that plaintiff is not entitled to summary judgment in his favor with respect to any of his arguments.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. No. 22) is denied;

2. Defendant's cross-motion for summary judgment (Doc. No. 24) is granted; and

3. The Commissioner's decision is affirmed.

DAD:kw

Ddad1/orders.socsec/amant0935.order


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