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Jeanine A. Ideker v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 31, 2011

JEANINE A. IDEKER, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Jeanine A. Ideker filed this action on September 25, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on October 23 and 26, 2009. (Dkt. Nos. 7, 9.) On June 9, 2010, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court remands this matter to the Commissioner for proceedings consistent with this Opinion.

I. PROCEDURAL BACKGROUND

On December 27, 2004, Ideker filed applications for disability insurance benefits and supplemental security income benefits. Administrative Record ("AR") 62. In both applications, Ideker alleged a disability onset date of September 4, 1994. Id. The applications were denied initially and on reconsideration. AR 62, 82, 91. Ideker requested a hearing before an Administrative Law Judge ("ALJ"). AR 97. On February 12, 2007, the ALJ conducted a hearing at which Ideker and a vocational expert ("VE") testified. AR 338-71. On April 24, 2007, the ALJ issued a decision denying benefits. AR 59. On August 31, 2007, the Appeals Council denied Ideker's request for review. AR 52-54. Thereafter, Ideker submitted additional evidence to the Appeals Council. AR 8-46, 48-51. On December 31, 2008, the Appeals Counsel again denied Ideker's request for review. AR 6-7. This action followed.

II. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.

III. DISCUSSION

A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks omitted).

B. The ALJ's Findings

The ALJ found that Ideker met the insured status requirements through March 31, 2000. AR 64.

Ideker has the severe impairment of fibromyalgia. AR 64. Ideker has the residual functional capacity ("RFC") to perform light work, except that she can only "lift or carry 10 pounds frequently and 20 pounds occasionally." AR 65, 69. She can stand or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday and sit (with normal breaks) for a total of about 6 hours in an 8-hour workday. AR 65-66. She can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. AR 66. She should avoid concentrated exposure to hazards. Id.

The ALJ found that Ideker cannot perform at least some of her past relevant work, but "there are jobs that exist in significant numbers in the national economy that [she] can perform," such as office clerk, cashier, and fast food worker. AR 68-70.

C. Medical Evidence

Ideker contends that the ALJ failed to properly consider the treating physicians' opinions regarding her physical and mental limitations. JS 4-9. According to Ideker, the ALJ improperly disregarded the opinions of Drs. Freyne and Mitzner. JS 4. She further claims that the ALJ improperly rejected brain injury and depression as severe impairments at step two of the sequential analysis. JS 7. Ideker appears to claim that the ALJ was biased because of an "unwillingness to properly develop the record." JS 8.

An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When a treating physician'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. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. at 632 (quotation marks and citations omitted). When the ALJ declines to give a treating physician's opinion controlling weight, the ALJ considers several factors, including the following: (1) length of the treatment relationship and frequency of examination;*fn1 (2) nature and extent of the treatment relationship;*fn2 (3) the amount of relevant evidence supporting the opinion and the quality of the explanation provided; (4) consistency with record as a whole; and (5) the specialty of the physician providing the opinion. See id. at 631; 20 C.F.R. §§ 404.1527(d), 416.927(d).

An examining physician's opinion constitutes substantial evidence when it is based on independent clinical findings. Orn, 495 F.3d at 632. However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.'" Id.

A non-examining physician's opinion constitutes substantial evidence when it is supported by other evidence in the record and consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a non-examining physician's opinion cannot by itself constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006).

"When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted).

1. Dr. Freyne

The ALJ gave Dr. Freyne's opinion less weight on the grounds that (a) her view that Ideker had to change position every 5-10 minutes was "not substantiated by any clinical findings or diagnostic studies of record"; (b) she only treated Ideker on three occasions in April-June 2005; and (c) her opinion was inconsistent with the opinion of examining physician Dr. Gerson and state agency physician Dr. Swan. AR 67-68. The ALJ provided adequate reasons for not fully crediting Dr. Freyne's opinion.

A treating physician's opinion may be discounted if it is not "well-supported by medically acceptable clinical and laboratory diagnostic techniques." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Dr. Freyne's June 2005 letter stated Ideker "has to change positions every 5-10 minutes from sitting to standing due to discomfort." AR 290. Dr. Freyne further opined that Ideker is unable to drive long distances, housework must be done with frequent breaks, fatigue is persistent, sleep quality at night is poor, she has a poor memory, and lifting and carrying are difficult. Id. However, the record does not contain any treatment records with clinical findings from Dr. Freyne. An 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."*fn3 Thomas, 278 F.3d at 957; see also Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986) (per curiam) (ALJ need not accept treating physician's opinion that is "brief and conclusionary in form with little in the way of clinical findings to support [its] conclusion").

The ALJ also discounted Dr. Freyne's opinion on the ground that she treated Ideker only on three occasions in a three-month period and, therefore, did not have an opportunity to evaluate Ideker's course of illness. AR 67. The ALJ may consider the treating physician's length of treatment. See Orn, 495 F.3d at 631. Dr. Freyne states she evaluated Ideker on three occasions during April-June 2005. AR 290. Ideker testified at the hearing that she saw Dr. Freyne only "once or twice." AR 363.

Dr. Freyne's opinion was inconsistent with the opinion of examining physician Dr. Gerson. AR 67. An examining physician's opinion constitutes substantial evidence when, as here, it is based on independent clinical findings. Orn, 495 F.3d at 631. Dr. Gerson opined that Ideker was able to lift 10 pounds frequently, 20 pounds occasionally, and could stand and walk for up to 6 hours in an 8-hour workday and sit for 6 hours in an 8-hour workday. AR 259. Dr. Gerson's opinion was consistent with state agency physician Dr. Swan. AR 267-74. A non-examining physician's opinion constitutes substantial evidence when it is supported by other evidence in the record and is consistent with it. Andrews, 53 F.3d at 1041. Dr. Swan found Ideker was able to lift 10 pounds frequently, 20 pounds occasionally and could stand or sit for a total of 6 hours in an 8-hour workday. AR 268.

The ALJ provided specific and legitimate reasons for discounting Dr. Freyne's opinion. The ALJ did not err.

2. Dr. Mitzner

The ALJ discounted Dr. Mitzner's opinion that Ideker was unable to work on the grounds that (a) it was conclusory and "not supported by significant clinical signs or symptoms in [Dr. Mitzner's] progress notes"; and (b) Dr. Mitzner did not refer Ideker to a specialist for evaluation and treatment of an allegedly disabling condition. AR 68, 233, 241, 242. The ALJ provided specific and legitimate reasons for discounting Dr. Mitzner's statements.

The ALJ need not accept a treating physician's opinion as to disability. "A treating physician's evaluation of a patient's ability to work may be useful or suggestive of useful information, but a treating physician ordinarily does not consult a vocational expert or have the expertise of one." McLeod v. Astrue, 2011 U.S. App. LEXIS 2346, *6 (9th Cir. Feb. 4, 2011). Although an impairment is a medical condition, disability is an administrative determination, reserved to the Commissioner, of how an impairment affects the ability to engage in gainful activity. Id.

As discussed above, 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. Dr. Mitzner's treatment records do not contain clinical findings that support his opinions.*fn4 AR 184-227; Thomas, 278 F.3d at 957; Young, 803 F.2d at 968.

The ALJ also considered that Dr. Mitzner was a family practioner and never referred Ideker to a specialist for evaluation or treatment of an allegedly disabling condition. AR 68. The ALJ was permitted to consider Dr. Mitzner's specialization in determining how much weight to give his opinion. See 20 C.F.R. §§ 404.1527(d)(5) ("We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than the opinion of a source who is not a specialist."), 416.927(d)(5) (same); see Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (treating physician opinion may be discounted when it does not contain recommendations one would expect for a disabling condition).*fn5 The ALJ did not err.

3. Nonsevere Impairments

Ideker argues that the ALJ erred in finding that brain injury and depression were not severe impairments at step two of the sequential analysis. Even assuming error at step two, such error was harmless. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Any prejudice to Ideker could occur only at steps four and five because all other steps were decided in her favor. Id. The RFC takes into account limitations imposed by all impairments, even those that are not severe. Id. at 683 (citing SSR 96-8p); AR 66.

4. Bias

Ideker's claim of bias appears to simply reflect a disagreement with the ALJ's findings. See JS 8-9. In an administrative hearing, a party alleging bias must overcome a presumption of honesty and integrity. See Withrow v. Larkin, 421 U.S. 35, 47, 95 S. Ct. 1456, 43 L. Ed. 2d 712 (1975); see also Schweiker v. McClure, 456 U.S. 188, 195-96, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982); Bayliss v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005) (a claimant is required to show that "the ALJ's behavior, in the context of the whole case, was so extreme as to display clear inability to render fair judgment") (citations and quotation marks omitted). Here, Ideker has failed to present evidence demonstrating bias and has not rebutted the presumption.

D. Credibility

Ideker contends the ALJ failed to consider her subjective complaints and credibility. JS 17. "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).

At step one, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (citing Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). The ALJ found that Ideker's medically determinable impairment could reasonably be expected to produce the alleged symptoms. AR 66.

"Second, if the claimant meets this first test, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Lingenfelter, 504 F.3d at 1036 (citations omitted). "In making a credibility determination, the ALJ 'must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted).

Here, the ALJ made no finding of malingering. See generally AR 62-70.

He found that Ideker's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not entirely credible." AR 66. "[T]o discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief."

Orn, 495 F.3d at 635 (citations and quotation marks omitted). "The ALJ must cite the reasons why the claimant's testimony is unpersuasive." Id. (citation, brackets, and quotation marks omitted). In weighing credibility, the ALJ may consider factors including: the nature, location, onset, duration, frequency, radiation, and intensity of any pain; precipitating and aggravating factors (e.g., movement, activity, environmental conditions); type, dosage, effectiveness, and adverse side effects of any pain medication; treatment, other than medication, for relief of pain; functional restrictions; the claimant's daily activities; and "ordinary techniques of credibility evaluation." Bunnell, 947 F.2d at 346 (citation omitted). The ALJ may also consider inconsistencies or discrepancies in a claimant's statements and inconsistencies between a claimant's statements and activities. Thomas, 278 F.3d at 958-59. "If the ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas, 278 F.3d at 958-59 (citing Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)).

The ALJ discounted Ideker's credibility for at least three reasons: (1) the objective medical evidence in the record did not support the degree of Ideker's complaints; (2) Ideker's statements were inconsistent with her daily activities; and (3) Ideker was prescribed conservative treatment.*fn6 AR 66-67.

The ALJ found that the objective evidence did not support functional limitations to the degree Ideker alleged. AR 66. The ALJ noted that Ideker's physical exams have been mostly normal except for tenderness in the lumbar spine, loss of range of motion of the lumbar spine, crepitus, and loss of range of motion of the bilateral knees. Id. Straight leg raise testing has been negative and Ideker is neurologically intact. Id. Further, an MRI of the cervical spine was negative except for a 3mm protrusion at C4-5 and 2mm bony bar at C5-6 with no stenosis, nerve root impingement or other abnormality. Id.

After the ALJ's decision on April 24, 2007, and after the Appeals Council denied review on August 31, 2007, Ideker submitted additional medical records to the Appeals Council for the period after the date last insured. The Appeals Council concluded the new information provided no basis to reopen and change the decision and stated that the ALJ's decision constituted the final decision of the Commissioner. AR 6. Given that the Appeals Council considered the new evidence, this Court also considers the medical records. Lingenfelter, 504 F.3d at 1030 n.2; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). To warrant a remand, Ideker must show the new evidence is material to determining her disability. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). To be material, the new evidence must bear "'directly and substantially on the matter in dispute.'" Mayes, 276 F.3d at 462 (citation omitted). In addition, Ideker must demonstrate "a 'reasonable possibility' that the new evidence would have changed the outcome of the administrative hearing."*fn7 Id.

The additional medical records bear on the ALJ's findings as to the objective medical evidence. Whereas the ALJ found that Ideker's straight leg raising has been negative based on the examining physician's report on March 7,2005 (AR 66), a medical record dated August 28, 2007 found positive straight leg raising on the left for pain shooting down to the top of her foot (AR 45). Whereas the ALJ found no evidence of trigger points (AR 66), the August 28, 2007 medical record found paraspinous muscle tenderness with several trigger points (AR 45). Remand is appropriate so the ALJ may consider the additional medical records and determine whether they affect his findings as to Ideker's credibility and residual functional capacity.

E. Steps Four and Five of the Sequential Analysis

Because this matter is being remanded, the Court notes only that the ALJ omitted the limitations regarding climbing, balancing, stooping, kneeling, crouching, and crawling in his hypothetical to the VE. See AR 65-66, 366. While the ALJ is not required to include limitations in a hypothetical that are not in his findings (Rollins, 261 F.3d at 857 (9th Cir. 2001); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001)), he is required to include the limitations he found credible and supported by substantial evidence. Bayliss, 427 F.3d at 1217-18; Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (In determining the claimant's RFC, the ALJ may elicit testimony from a VE, but the hypothetical must consider all of the claimant's limitations.).

IV. ORDER IT IS HEREBY ORDERED that this matter is remanded for further proceedings consistent with this Opinion.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.


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