UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
July 17, 2012
HECTOR RAMOS, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.
The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
On May 27, 2011, plaintiff Hector Ramos filed a complaint against defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The parties' briefing is now complete, and the court deems the matter suitable for adjudication without oral argument.
Eleven issues are presented for decision here: (1) whether the Administrative Law Judge ("ALJ") properly assessed plaintiff's residual functional capacity; (2) whether the ALJ properly considered plaintiff's urological disorder in determining plaintiff's residual functional capacity; (3) whether "[t]he ALJ committed reversible error by failing to follow Social Security Ruling 82-62 along with Groeper v. Sullivan, 932 [F].2d 1232 (8th Cir. 1991) . . . at Step Four of the Sequential Evaluation Process"; (4) whether the ALJ properly refused to review and accept the opinion of plaintiff's treating physician; (5) whether the ALJ properly "reject[ed] medical opinion without explanation"; (6) whether the ALJ properly rejected plaintiff's treating physician's opinion that plaintiff was temporarily totally disabled; (7) whether the ALJ properly considered plaintiff's refusal of treatment in his decision; (8) whether the ALJ gave proper weight to the medical reports of plaintiff's treating physician; (9) whether the ALJ properly discounted plaintiff's credibility and subjective complaints based upon plaintiff's treating physician's recommendation of physical exercise; (10) whether the ALJ, at step five, failed to demonstrate that plaintiff has specific transferable skills; and (11) whether the ALJ erred by failing to assess the vocational expert's credibility. Pl.'s Mem. at 4-12; *fn1 Def.'s Mem. at 3-12.
Having carefully studied, inter alia, the parties' written submissions and the Administrative Record ("AR"), the court finds that, as detailed herein, the ALJ provided a complete and proper assessment of plaintiff's residual functional capacity. In addition, the ALJ properly rejected both plaintiff's subjective complaints and the opinion of plaintiff's treating physician that plaintiff was temporarily totally disabled. The court further finds that the ALJ properly determined plaintiff cannot perform his past relevant work, and that the ALJ met the Commissioner's step five burden to demonstrate that plaintiff can perform other jobs in the regional and national economy. Therefore, the court affirms the Commissioner's decision denying benefits.
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was thirty-nine years old on the date of his June 23, 2010 administrative hearing, has a high school education and a certificate in plumbing. See AR at 31, 35. His past relevant work includes employment as a plumber apprentice. Id. at 46, 133-34.
On April 22, 2009, plaintiff protectively applied for DIB and SSI, alleging that he has been disabled since October 25, 2002 due to "Back injury, ultrascope surgery, arthritis, urology problem, [and] Psoriasis." See AR at 105-08, 109-15, 129, 141. Plaintiff's applications were denied initially, after which he filed a request for a hearing. Id. at 58, 59, 60-65, 68.
On June 23, 2010, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. AR at 30-45, 57. The ALJ also heard testimony from Rheta Baron King, a vocational expert ("VE"). Id. at 46-53; see also id. at 101-04. On August 26, 2010, the ALJ denied plaintiff's request for benefits. Id. at 8-20.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff has not engaged in substantial gainful activity since October 25, 2002, his alleged disability onset date. AR at 11.
At step two, the ALJ found that plaintiff suffers from severe medically determinable impairments consisting of: degenerative disc disease of the lumbosacral and thoracic spines, status-post lumbar microdiscectomy, osteoarthritis of the hands, psoriasis, and overactive bladder syndrome without incontinence. AR at 11.
At step three, the ALJ determined that the evidence does not demonstrate that plaintiff's impairments, either individually or in combination, meet or medically equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix
1. AR at 11.
The ALJ then assessed plaintiff's residual functional capacity ("RFC") and *fn2 determined that he can perform sedentary work except: he can "occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds"; "he can occasionally climb, balance, kneel, stoop, crouch, or crawl"; "he can perform gross and fine manipulations frequently"; "he cannot be exposed to extreme temperatures, heights, or dangerous moving machinery"; and he "must be able to change positions from sitting and/or standing every 30 minutes at will while remaining at his workstation." AR at 12 (emphasis omitted).
The ALJ found, at step four, that plaintiff is unable to perform his past relevant work. AR at 17.
At step five, the ALJ determined that "[t]ransferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that [plaintiff] is 'not disabled,' whether or not [plaintiff] has transferable job skills." AR at 18 (emphasis omitted). Because the ALJ determined that plaintiff suffers from exertional and non-exertional limitations, the ALJ enlisted the help of the VE to determine the extent the non-exertional limitations erode the unskilled sedentary occupational base. Id. at 18-19. Based upon plaintiff's vocational factors and RFC, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform." Id. at 18 (emphasis omitted). The ALJ therefore concluded that plaintiff was not suffering from a disability as defined by the Social Security Act. Id. at 9, 19-20.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. AR at 1-3, 4. The ALJ's decision stands as the final decision of the Commissioner.
III. STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g) (2010). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
A. The ALJ Provided a Complete and Proper Assessment of Plaintiff's Residual Functional Capacity Plaintiff argues that "[t]he ALJ erred by improperly weighing the medical evidence of record and deriving an RFC that does not properly take into consideration all of the evidence." Pl.'s Mem. at 4; see Reply at 5-7. According to plaintiff, "[t]he ALJ merely dismisse[d] the opinions of Plaintiff's treating physicians and proceed[ed] to derive a completely arbitrary RFC of his own." Pl.'s Mem. at 5. Plaintiff specifically asserts that the ALJ "derive[d] his own arbitrary RFC for light [work]." Id. The court disagrees, for the following reasons.
In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including medical records, lay evidence, and the effects of symptoms (including pain) that are reasonably attributed to a medically determinable impairment. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); see Social Security Ruling ("SSR") 96-5p, 1996 WL 374183, at *5 (July 2, 1996); 20 *fn3 C.F.R. §§ 404.1545(a)(3) (2012) (a claimant's assessed RFC is based upon all the relevant evidence in the case record), 416.945(a)(3) (2012) (same). Here, contrary to plaintiff's contention, the ALJ did not find plaintiff has the RFC to perform "light" work. See Pl.'s Mem. at 5. Instead, as discussed above, the ALJ determined that plaintiff has the RFC to perform sedentary work with the following limitations: occasionally lift and carry no more than twenty pounds; frequently lift and carry no more than ten pounds; occasionally climb, balance, kneel, stoop, crouch, or crawl; frequently perform gross and fine manipulations; no exposure to extreme temperatures, heights, or dangerous moving machinery; and plaintiff must be able to change positions from sitting and standing every thirty minutes at will while remaining at his workstation. AR at 12. Having duly reviewed the record and the *fn4 parties' written submissions, the court finds that the ALJ's RFC finding is supported by substantial evidence.
In arriving at the RFC, the ALJ relied on the opinions of treating physician Dr. Robert W. Hunt (orthopaedic surgeon), consultative examining physician Dr. Homayoun Saeid, and consultative non-examining physician Dr. C. Friedman. See AR at 16-17; compare AR at 16-17, with AR at 216, 631, 637-39. Dr. Hunt opined that plaintiff "should observe prophylactic work restrictions for the lumbar spine of no heavy work and no weightbearing or sitting for more than 30 minutes at a time without the opportunity to change position for up to 30 minutes according to need." Id. at 216. Contrary to plaintiff's contention that "the ALJ explicitly ignored the opinions of Plaintiff's treating physician, Dr. Timothy Hunt" (Pl.'s Mem. at 6; see Reply at 4-5), the ALJ explicitly discussed and gave "great weight" to Dr. Hunt's opinion regarding plaintiff's limitations. AR at 17; see also Lester v. Chater, 81 *fn5 F.3d 821, 830 (9th Cir. 1996) ("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." (citation omitted));20 C.F.R. §§ 404.1527(c) (2012) (prescribing the respective weight to be given the opinion of treating sources and examining sources), 416.927(c) (2012) (same).
The ALJ also afforded "some weight" to Dr. Saied's opinion that plaintiff could perform light work, but the ALJ ultimately found that "the record as a whole supports [a] finding that [plaintiff] has somewhat greater limitations than Dr. Saied found." AR at 17; see AR at 631 (Dr. Saied opined that: plaintiff "can lift or carry 20 pounds occasionally and 10 pounds frequently"; plaintiff "can stand or walk for 6 hours in an eight-hour day"; and plaintiff "can sit for 6 hours in an eight-hour day."); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (examining physician's opinion may constitute substantial evidence if the "nontreating physician relies on independent clinical findings that differ from the findings of the treating physician" (internal quotation marks and citations omitted)). Lastly, the ALJ gave weight to the opinion of Dr. Friedman, who opined that plaintiff could perform light work with the following limitations: occasionally climb, balance, stoop, kneel, crouch, and crawl; limited handling and fingering; and avoid concentrated exposure to extreme temperatures and hazards. See AR at 17; see also AR at 637-39; Andrews v. Shalala, 53 F.3d 1035, 1041-42 (9th Cir. 1995) (non-examining physician's opinion may constitute substantial evidence only when it is "supported by other evidence in the record and [is] consistent with it").
Accordingly, the ALJ's RFC finding properly took into account all of the evidence in the record and is supported by substantial evidence.
B. The ALJ Did Not Fail to Consider Plaintiff's Urological Disorder in Determining Plaintiff's RFC Plaintiff argues that the ALJ failed to consider his urological disorder
(frequent urination) in the assessment of his RFC. Pl.'s Mem. at 7-8. Plaintiff is mistaken. The ALJ considered all relevant evidence in the record, and found that *fn6 plaintiff suffers from overactive bladder syndrome without incontinence. See AR at 11. But the "mere existence" of an impairment is insufficient to prove disability; there must also be "proof of the impairment's disabling severity." Rhodes v. Schweiker, 660 F.2d 722, 723 (9th Cir. 1981) (citation omitted). Plaintiff here cites to no evidence -- and the court finds the record is devoid of any evidence -- that any physician opined any functional limitations due to his "urological disorder." See generally Pl.'s Mem. at 4-12; Reply at 4-8. In fact, the record indicates that medications helped with the symptoms, but plaintiff stopped taking them because he was "tired of medications." AR at 657.
Accordingly, the ALJ did not commit reversible error in finding no limitations due to plaintiff's urological disorder.
C. The ALJ Did Not Err at Step Four
Plaintiff argues that the ALJ failed to make explicit findings regarding the demands of plaintiff's past relevant work in concluding that "Plaintiff could not perform his past relevant work as a plumber apprentice." Pl.'s Mem. at 9. Because step four was resolved in plaintiff's favor, it is unclear to the court the basis of plaintiff's challenge. See AR at 17 (ALJ determined at step four that plaintiff is unable to perform his past relevant work). In any event, the court disagrees with plaintiff, and finds that the ALJ did not err at step four.
"At step four of the sequential analysis, the claimant has the burden to prove that he cannot perform his prior relevant work 'either as actually performed or as generally performed in the national economy.'" Carmickle v. Comm'r, 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). "Although the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citations omitted). The ALJ must make specific findings as to: (1) "the claimant's residual functional capacity"; (2) "the physical and mental demands of the past relevant work"; and (3) "the relation of the residual functional capacity to the past work." Id. at 845 (citing SSR 82-62). But the ALJ is not required to make "explicit findings at step four regarding a claimant's past relevant work both as generally performed and as actually performed." Pinto, 249 F.3d at 845.
In this case, the ALJ did, in fact, make the requisite factual findings to support his conclusion that plaintiff is unable to perform his past relevant work. As noted above, the ALJ assessed plaintiff's RFC and found plaintiff capable of performing sedentary work with various limitations. See AR at 12. The ALJ then -- with the help of the VE -- made specific findings as to the relation of plaintiff's RFC to the demands of his past relevant work, and determined that plaintiff is unable to perform his past work as a plumber apprentice because it requires exertion at the heavy level. See id. at 17, 46-47; see also Pinto, 249 F.3d at 844; 20 C.F.R. §§ 404.1560(b)(3) (2012) (if a claimant has the RFC to do his or her prior work, the ALJ will determine that the claimant is not disabled), 416.960(b)(3) (2012) (same).
Accordingly, because the ALJ made the requisite specific findings to support his conclusion, no error was committed at step four.
D. The ALJ Properly Rejected Dr. Hunt's Opinion that Plaintiff was Temporarily Totally Disabled, While Giving "Great Weight" to Other Aspects of Dr. Hunt's Findings Plaintiff asserts the ALJ erred by refusing to review and accept Dr. Hunt's opinion. Pl.'s Mem. at 9, 10; Reply at 4-5, 8. It is unclear whether plaintiff is contending that the ALJ erred in rejecting Dr. Hunt's opinion in whole or in part. In either case, plaintiff is incorrect. As discussed above, Dr. Hunt opined -- and the ALJ accepted -- that plaintiff cannot perform heavy work or weight-bearing, and cannot sit for more than thirty minutes at a time without the ability to change position for up to thirty minutes according to his need. See AR at 16-17; supra Part
IV.A; see also AR at 46-50 (the ALJ incorporated Dr. Hunt's opined limitations in the hypothetical questions to the VE).
The ALJ did, however, reject Dr. Hunt's opinion that plaintiff was "temporarily totally disabled." See AR at 16. Although Dr. Hunt opined on a few occasions that plaintiff was "temporarily totally disabled," the ALJ properly *fn7 afforded this opinion minimal weight because "[t]he determination of disability is an issue reserved to the Commissioner." Id. at 16 (citations omitted); see Boardman v. Astrue, 286 Fed. App'x 397, 399 (9th Cir. 2008) ("The ALJ is correct that a determination of a claimant's ultimate disability is reserved to the Commissioner, and that a physician's opinion on the matter is not entitled to special significance."); 20 C.F.R. §§ 404.1527(d)(1) (2012) ("A statement by a medical source that [a claimant is] 'disabled' or 'unable to work' does not mean that the [Commissioner] will determine that [the claimant is] disabled."), 416.927(d)(1) (2012) (same).
Moreover, the ALJ provided specific and legitimate reasons for rejecting Dr. Hunt's opinion that plaintiff was temporarily totally disabled. First, the ALJ found that this opinion "w[as] made without the benefit of the more complete medical record that was developed at the hearing level." AR at 16. This is a specific and legitimate reason for rejecting Dr. Hunt's opinion that plaintiff was temporarily totally disabled. See Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("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" (citation omitted)); Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ properly rejected treating physician's opinion, which was unsupported by medical findings, personal observations, or test reports). This opinion is unsupported by the record as whole, including Dr. Hunt's own opinion on June 6, 2005. See, e.g., AR at 216, 631, 637-39. On June 6, 2005 -- approximately six months after initially finding plaintiff temporarily totally disabled -- Dr. Hunt opined that plaintiff was capable of returning to work but was limited to "no heavy work and no weightbearing or sitting for more than 30 minutes at a time without the opportunity to change position for up to 30 minutes according to need." Id. at 216. Indeed, there are no other treatment records or objective tests that indicate plaintiff was temporarily totally disabled past June 6, 2005. See generally id. at 1-679.
Second, the ALJ properly found that these notes failed to establish the requisite twelve-month durational requirement. See 42 U.S.C. § 423(d)(1)(A) (2004) (to qualify for benefits under the Social Security Act, a claimant must prove, among other things, that he or she suffers from a medically determinable physical or mental impairment that "can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months"); 42 U.S.C. § 1382c(a)(3)(A) (2004) (same); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (to establish eligibility for disability benefits under the Social Security Act, the claimant must prove, inter alia, that he or she "suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months" (citation omitted)).
Accordingly, the ALJ properly rejected Dr. Hunt's opinion that plaintiff was temporarily totally disabled.
E. The ALJ Properly Discussed Dr. Miller's Observations in the Context of Plaintiff's Credibility Plaintiff contends that the ALJ erred by "disregard[ing] . . . evidence based on his allege[d] theory of limited information," when the ALJ "compared Dr. Miller[']s observation against Dr. Hunt[']s observations and stated the observation was based on limited information." Pl.'s Mem. at 9-10. The court disagrees. Foremost, Dr. Miller's observations were not medical opinions as to plaintiff's limitations, but were merely observations of inconsistencies related to plaintiff's worker's compensation case. Moreover, the ALJ discussed Dr. Miller's observations solely in the context of plaintiff's credibility. AR at 15; see Thomas, 278 F.3d at 958-59 (when weighing a claimant's credibility, the ALJ may consider inconsistencies between the claimant's testimony and conduct). Specifically, the ALJ found that Dr. Miller "noted a number of inconsistencies" related to plaintiff's worker's compensation case, which undermines plaintiff's credibility. See AR at 15. The ALJ further stated, "Even taking into account Dr. Hunt's explication that Dr. Miller's observations were based on limited information, these inconsistencies are troubling." Id. As such, the ALJ committed no error.
F. The ALJ Properly Discounted Plaintiff's Credibility and Subjective Complaints Plaintiff argues that the ALJ failed to properly assess his credibility. See Pl.'s Mem. at 10-11. Specifically, plaintiff maintains the ALJ improperly discounted his credibility based upon his refusal of treatment and Dr. Hunt's recommendation of vigorous physical exercise. Id.; see also AR at 14, 15. The court agrees that the ALJ erred in relying on plaintiff's refusal of treatment to discount his credibility, but the court finds that such error is harmless because the ALJ provided several other clear and convincing reasons for discounting plaintiff's credibility.
A claimant carries the burden of producing objective medical evidence of his or her impairments and showing that the impairments could reasonably be expected to produce some degree of the alleged symptoms. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). But once the claimant meets that burden, medical findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ("claimant need not present clinical or diagnostic evidence to support the severity of his pain" (citation omitted)).
Instead, once a claimant has met the burden of producing objective medical evidence, an ALJ can reject the claimant's subjective complaint "only upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so." Benton, 331 F.3d at 1040. The ALJ may consider the following factors in weighing the claimant's credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and his or her conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which she complains. Thomas, 278 F.3d at 958-59. Here, the ALJ did not find evidence of malingering. See generally AR at 18-20. Thus, in rejecting plaintiff's credibility, the ALJ was required to articulate clear and convincing reasons. See Benton, 331 F.3d at 1040. Having carefully reviewed the record, the court finds that the ALJ provided several clear and convincing reasons for discounting plaintiff's subjective complaints.
First, the ALJ found that "the record does not support finding that [plaintiff] is disabled." AR at 16; see also Batson, 359 F.3d at 1197 ("the lack of objective medical evidence supporting [a claimant's] claims . . . constitute[s] substantial evidence in support of the ALJ's negative credibility determination"); Thomas, 278 F.3d at 959 (lack of objective medical evidence supporting descriptions of pain and limitations negatively affected the claimant's credibility regarding her inability to work). Although a lack of objective evidence supporting plaintiff's symptoms cannot be the sole reason for rejecting his testimony, it can be one of several factors used in evaluating the credibility of his subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001).
Second, the ALJ properly discounted plaintiff's subjective complaints as inconsistent with his conservative treatment. See AR at 14. "[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted); see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly considered, as part of credibility evaluation, claimant's failure to request medical treatment commensurate with the "supposedly excruciating" pain alleged, and the "'minimal, conservative treatment'" (citation omitted)); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (ALJ permissibly considered discrepancies between the claimant's allegations of "'persistent and increasingly severe pain'" and the nature and extent of treatment obtained).
Here, as noted by the ALJ, the record indicates that: plaintiff had some relief after using a portable Transcutaneous Electrical Nerve Stimulation ("TENS") unit; plaintiff's pain was "partially relieved by rest, a home traction unit, use of ice, medication, and use of the muscle stimulator"; and plaintiff benefitted from occasional use of a back brace and a cane. See AR at 196, 212; see also AR at 14. Also, a May 2, 2008 treatment note indicated that plaintiff's psoriasis was "well-controlled with lidex oint[ment on weekdays] and dovonex cream on weekends." Id. at 644; see id. at 651 (treatment note indicated that plaintiff's psoriasis was "stable on topicals"); see also id. at 14. And, as further noted by the ALJ, "the medications [plaintiff] took for urinary difficulties helped his symptoms but he stopped taking them solely because he became tired of taking the pills." Id. at 14 (citing id. at 657); see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (an ALJ may consider, as a factor in weighing a claimant's credibility, the claimant's unexplained or inadequately explained failure "to follow a prescribed course of treatment"); 20 C.F.R §§ 404.1530(a) (2012) (to be eligible for benefits, the claimant "must follow treatment prescribed by [his or her] physician if this treatment can restore [the claimant's] ability to work"), 416.930(a) (2012) (same), 404.1530(b) (2012) (if the claimant does not follow the prescribed treatment without a good reason, he or she will be found not disabled), 416.930(b) (2012) (same).
Third, the ALJ properly discounted plaintiff's subjective complaints based upon "wide gaps in treatment." See AR at 14; see also Fair, 885 F.2d at 603 (a factor an ALJ may consider in weighing a claimant's credibility is the claimant's "unexplained, or inadequately explained, failure to seek treatment"). The bulk of the treatment records are from 2004 to 2006. See generally AR at 196-624. The ALJ therefore concluded that plaintiff's sparse treatment after 2006 "is inconsistent [with] someone with a disabling level of pain, as well as access to medical treatment." Id. at 14. This is a clear and convincing reason for rejecting plaintiff's credibility.
Fourth, the ALJ properly rejected plaintiff's credibility based upon ordinary techniques of trustworthiness determination, such as inconsistent statements regarding plaintiff's pain. See AR at 14-15; see also Thomas, 278 F.3d at 958-59 (when weighing a claimant's credibility, the ALJ may consider inconsistencies between the claimant's testimony); Tonapetyan, 242 F.3d at 1148 (ALJ may engage in ordinary techniques of credibility evaluation, such as considering inconsistencies in a claimant's testimony). The ALJ noted that despite alleging -- in February 2004 -- that he had dull, aching, and constant low-back pain that did not radiate or cause numbness or tingling, plaintiff denied having pain and did not even take over-the-counter analgesics in March 2004. AR at 14-15; see AR at 206, 461. The ALJ also noted that plaintiff's "own description of his pain levels has not indicated disability"; "[i]n June 2005, after undergoing an arthroscopic surgery, [plaintiff] stated that he had constant pain that was only minimal to slight, he intermittently had slight to moderate pain, and he rarely had more than moderate pain." Id. at 15 (citing id. at 216).
Moreover, the ALJ found plaintiff's alleged debilitating back pain inconsistent with Dr. Hunt's recommendation of physical exercise. AR at 15 (citing AR at 196, 216). The ALJ stated, "I would not expect a physician to recommend vigorous physical exercise to someone with an extreme back problem." Id. Plaintiff contends "[t]he ALJ added personal opinions to a treatment using the words Vigorous Physical Exercise," which is contrary to the actual recommended treatment. Pl.'s Mem. at 11 (emphasis omitted). Although Dr. Hunt does not use the word "vigorous" to describe the recommended course of treatment, the fact that Dr. Hunt would recommend a gym membership and swimming suggests a lower level of both pain and functional limitation. See Thomas, 278 F.3d at 959 (factor ALJ may consider in weighing a claimant's credibility is the testimony from physicians concerning the nature, severity, and effect of plaintiff's symptoms).
Fifth, the ALJ found that "[plaintiff's] work history does not increase his credibility." AR at 15; see also Thomas, 278 F.3d at 959 (a claimant's "extremely poor work history" and "little propensity to work in [his or] her lifetime" may negatively affect the claimant's credibility regarding his or her inability to work (internal quotation marks omitted)). The ALJ noted that plaintiff earned less than $5,000 a year in seven of the fourteen years between 1988 (when plaintiff was eighteen years old) and his alleged onset dates of October 2002, which "tends to indicate that [plaintiff] was not working full-time even before his alleged onset date." AR at 15; see also AR at 116-17. This too was a proper reason for rejecting plaintiff's credibility.
Notwithstanding the aforementioned legitimate credibility findings, the ALJ's other purported reason for his adverse credibility finding -- that plaintiff "declined to have an epidural or lumbar spine surgery back in February, April, and November 2004" -- is not a valid reason for discounting plaintiff's credibility. See AR at 14. "[A]n 'unexplained, or inadequately explained, failure to seek treatment' may be the basis for an adverse credibility finding unless one of a 'number of good reasons for not doing so' applies." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). One such good reason is if the claimant failed to obtain treatment due to an inability to afford such treatment. Orn, 495 F.3d at 638; see Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) ("claimant cannot be denied benefits for failing to obtain medical treatment that would ameliorate his condition if he cannot afford that treatment"). Also, a claimant's refusal of surgical treatment cannot adversely affect his credibility if the recommended "[s]urgery was previously performed with unsuccessful results." 20 C.F.R. § 404.1530(c) (2012); 20 C.F.R. § 416.930(c) (2012) (same). Here, plaintiff testified that he did not receive epidural injections because he was denied three times by his insurance company. AR at 38-39; see AR at 13-14 (ALJ acknowledged that plaintiff's insurance company denied his claims for epidural injections). Moreover, plaintiff declined the back surgery because he previously underwent back surgery in May 2003 with unsuccessful results. See id. at 443 (April 19, 2004 Orthopaedic Spine Surgical Consultation note indicated that the May 2003 back surgery provided plaintiff "some relief in regard to his radiating leg pain, [but] unfortunately [plaintiff] continues to have central low back pain, as well as pain in the thoracic area"), 627 (September 8, 2009 Complete Internal Medicine Evaluation note indicated that plaintiff declined surgical treatment for his back because of the outcome of the first operation). Therefore, the ALJ's reliance on this reason for his adverse credibility finding was improper.
Nevertheless, the ALJ's misplaced reliance on plaintiff's failure to seek treatment to discount his credibility was harmless. See Batson, 359 F.3d at 1195-97 (ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but such error was harmless because the ALJ's remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record). The ALJ's error does not "negate the validity" of his ultimate credibility finding, and the ALJ's decision remains "legally valid, despite such error." See Carmickle, 533 F.3d at 1162 (internal quotation marks and citation omitted).
G. The ALJ Did Not Err at Step Five
Plaintiff contends the ALJ erred, at step five, by being "very vague in recommendation of types of jobs from alleged . . . reputable sources" and by failing to specifically identify plaintiff's transferable skills. Pl.'s Mem. at 11. The court disagrees.
At step five, the burden shifts to the Commissioner to show that the claimant retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). There are two ways for the ALJ to meet this burden: (a) by the testimony of a VE; or (b) by reference to the Medical-Vocational Guidelines (the "grids"), 20 C.F.R. pt. 404, subpt. P, app. 2. Tackett, 180 F.3d at *fn8 1100-01 (citations omitted). "Where a claimant suffers from both exertional and non-exertional, the ALJ must consult the grids first." Lounsburry, 468 F.3d at 1115. But the ALJ may rely on the grids alone "only when the grids accurately and completely describe the claimant's abilities and limitations." Tackett, 180 F.3d at 1102 (internal quotation marks and citations omitted). When a claimant's RFC does not coincide exactly with the "full range" of work in one of the grids' three exertional levels, the ALJ may not rely solely on the grids and must obtain the testimony of a VE. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
When an ALJ finds that a claimant has transferable skills, the acquired work skills must be identified, and the specific occupations that the acquired work skills are transferable must be cited in the ALJ's decision. SSR 82-41, 1982 WL 31389, at *7. "Transferability means applying work skills which a person has demonstrated in vocationally relevant past jobs to meet the requirements of other skilled or semiskilled jobs." Id. at *2. A claimant's acquired skills are transferable to other jobs when the skilled or semiskilled work activities the claimant performed in prior jobs "can be used to meet the requirements of skilled or semi-skilled work activities of other jobs or kinds of work. This depends largely on the similarity of occupationally significant work activities among different jobs." 20 C.F.R. § 404.1568(d)(1) (2008); 20 C.F.R. § 416.968(d)(1) (2008) (same); see SSR 82-41, 1982 WL 31389, at *2.
Some acquired job skills are "unique to a specific work process in a particular industry or job setting," while others "have universal applicability across industry lines." SSR 82-41, 1982 WL 31389, at *6. A claimant who does not have skills that are transferable to other work is considered unskilled for purposes of the step five determination. See Silveira v. Apfel, 204 F.3d 1257, 1261 (9th Cir. 2000) (per curiam). "When the [grids] are applicable to a case, transferability will be decisive in the conclusion of 'disabled' or 'not disabled' in only a relatively few instances because, even if it is determined that there are no transferable skills, a finding of 'not disabled' may be based on the ability to do unskilled work." SSR 82-41, 1982 WL 31389, at *1.
In this case, the ALJ consulted the grids first and determined that "[t]ransferability of job skills is not material to the determination of disability because using the [grids] as a framework supports a finding that [plaintiff] is 'not disabled,' whether or not [plaintiff] has transferable job skills." AR at 18.
Particularly, the ALJ determined that if plaintiff had the RFC to perform the full range of sedentary work, a finding of "'not disabled'" would be directed by Rule 201.28. AR at 18. "Because the grids are not designed to establish automatically *fn9 the existence of jobs for persons with both severe exertional and non-exertional impairments, they may not be used to direct a conclusion of non-disability." Lounsburry, 468 F.3d at 1116 (citation and footnote omitted). In other words, "if the same person is not disabled under the grids, the non-exertional limitations must be examined separately" with the assistance of a VE. See id. The ALJ here properly recognized that because plaintiff also suffers from non-exertional limitations, reliance solely on the grids was not permitted and testimony from the VE was required to "determine the extent to which these limitations erode the unskilled sedentary occupational base." AR at 18-19; see Widmark, 454 F.3d at 1070; Lounsburry, 468 F.3d at 1116; see also Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576-77 (9th Cir. 1988) (pain, postural limitations, and environmental limitations are examples of non-exertional limitations).
During the hearing, the ALJ -- with the assistance of the VE -- specifically found that although plaintiff "has a number of skills that he acquired in the course of his training," he has no transferable skills. See AR at 52. Based upon plaintiff's limitations and vocational factors, the VE testified about three alternative occupations at the sedentary exertional level that plaintiff could perform: (1) Cashier II (Dictionary of Occupational Titles ("DOT") No. 211.462-010, 1991 WL 671840) with 2,525 local positions and 96,630 national positions; (2) Food and Beverage Order Clerk (DOT No. 209.567-014, 1991 WL 671794) with 100 local positions and 1,925 national positions; and (3) Telephone Quotation Clerk (DOT No. 237.367-046, 1991 WL 672194) with 100 local positions and 3,400 national positions). AR at 50-51; see AR at 19.Although the Cashier II job is normally performed at a light exertional level, the VE testified that a person with plaintiff's limitations and vocational factors could perform this job because "it is sometimes performed as sedentary work or work with a sit/stand option." See AR at 50. Because the conflict in testimony between the VE and the DOT was adequately resolved, the ALJ properly relied on the VE's testimony that plaintiff could perform the Cashier II job. See Massachi, 486 F.3d at 1153; Light, 119 F.3d at 793 (evidence sufficient to permit an ALJ to accept a VE's testimony that contradicts the DOT may be either specific findings of fact regarding the claimant's residual functionality, or inferences drawn from the context of the expert's testimony (citations omitted)).
Having carefully reviewed the DOT's description of the requirements of the three alternative jobs, the court finds that -- aside from the inconsistency that was adequately explained by the VE regarding the Cashier II job -- there are no inconsistences between the DOT and the VE's testimony. Compare AR at 50-51, with DOT Nos. 211.462-010, 209.567-014, 237.367-046. Notably, all three jobs have Specific Vocational Preparation ("SVP") ratings of 2, which require only a "short demonstration up to and including 1 month" to learn. See DOT Nos. 211.462-010 (SVP rating is 2), 209.567-014 (same), 237.367-046 (same). SVP is defined as "the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation." DOT, app. C, 1991 WL 688702. Because these jobs require one-month or less of training, they are considered unskilled occupations and thus are consistent with the ALJ's finding that plaintiff has no transferable skills and is, for the purposes of step five, considered "unskilled." See Silveira, 204 F.3d at 1261; SSR 82-41, 1982 WL 31389, at *2
("Unskilled occupations are the least complex types of work. Jobs are unskilled when persons can usually learn to do them in 30 days or less."). The VE's testimony therefore qualifies as substantial evidence to support the ALJ's step five finding that plaintiff retains the ability to perform other gainful activity. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985) ("To qualify as substantial evidence, the testimony of a vocational expert must be reliable in light of the medical evidence." (citations omitted)).
Plaintiff also maintains that he "cannot be denied [benefits] because of opportunities for work that are merely conceivable and not reasonably possible."
Pl.'s Mem. at 11. Plaintiff is mistaken. At step five, the ALJ need only show "that the claimant can perform some other work that exists in significant numbers in the national economy." Lockwood v. Comm'r, 616 F.3d 1068, 1071 (9th Cir. 2010), cert. denied, __ U.S. __, 131 S. Ct. 2882, 179 L. Ed. 2d 1189 (2011). Here, the ALJ demonstrated that plaintiff can perform three jobs (Cashier II, Food and Beverage Order Clerk, and Telephone Quotation Clerk) that exist in significant numbers. See Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (citing approvingly decisions that have found several hundred jobs "significant"); 20 C.F.R. §§ 404.1566(b) (2012) ("Work exists in the national economy when there is a significant number of jobs (in one or more occupations) having requirements [that the claimant is] able to meet with [his] physical or mental abilities and vocational qualifications."), 416.966(b) (2012) (same).
Accordingly, the ALJ met his burden and properly concluded that plaintiff retains the ability to perform other gainful activity that exists in significant numbers in the national economy.
H. The ALJ was Not Obligated to Assess the VE's Credibility
Relying on Singleton v. Schweiker, 551 F. Supp. 715 (D.C. Pa. 1982), plaintiff contends that because the ALJ failed to assess the credibility of the VE, the VE's testimony "constitutes [an] opinion f[ro]m [an] unreliable source." Pl.'s Mem. at 11-12. But Singleton is inapposite to plaintiff's contention. There, the court simply found that where a claimant suffers solely from non-exertional limitations, the grids are inapplicable and the "testimony from a vocational expert is necessary." Singleton, 551 F. Supp. at 723. Other than Singleton, plaintiff does not cite, nor is the court aware of, any authority that would require the ALJ to assess the VE's credibility. To the extent plaintiff is challenging the admissibility of the VE's testimony under Federal Rule of Evidence 702, "[t]he Federal Rules of Evidence do not apply to the admission of evidence in Social Security administrative proceedings." Bayliss v. Barnhart, 427 F.3d 1211, 1218 n.4 (9th Cir. 2005) (citations omitted). Moreover, "[a] VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required." Id. at 1218.
Accordingly, because plaintiff has identified no legal basis that imposes a duty upon the ALJ to assess the VE's credibility, the court cannot find that the ALJ erred by failing to make such an assessment.
I. Defendant Did Not Fail to Comply with the Court's Case Management Order
1. Defendant Did Not Fail to Engage in a Good Faith Telephonic Settlement Conference
On March 7, 2012, plaintiff filed a document entitled "Notice of Non of Non compliance of Mandatory settlement telephone conference" ("Non-Compliance Notice"), contending that defendant failed to comply with the court's Case Management Order by: (1) failing to contact plaintiff within ten calendar days after the filing of the Memorandum in Support of Plaintiff's Complaint; and (2) by failing to engage in a good faith telephonic settlement conference. See Non-Compliance Notice at 1-2. The court disagrees.
First, defendant did not fail to timely engage in the telephonic settlement conference. Under the court's Case Management Order, defendant was responsible for arranging the settlement conference call "no later than ten (10) calendar days after the filing of the Memorandum in Support of Plaintiff's Complaint." Case Management Order at 3, May 31, 2011, ECF No. 6. Plaintiff filed his Memorandum on February 7, 2012; therefore, defendant had until February 17, 2012 to arrange the call. Because defendant contacted plaintiff on February 17, 2012, the court finds that defendant did not fail to timely initiate the settlement conference call. See Def.'s Mem. at 2 n.1.
Second, defendant did not fail to engage in a good faith telephonic settlement conference with plaintiff. Pursuant to the court's Case Management Order, the court ordered that "counsel should spend as much time as needed attempting to resolve the matter themselves." Case Management Order at 4, May 31, 2011, ECF No. 6. Because defendant determined that, in light of an independent review of the underlying merits, "there were no mutually satisfactory settlement options available," defendant was not mandated to proceed further with the settlement conference. See Def.'s Mem. at 2 n.1.
Accordingly, defendant did not violate the court's order regarding the mandatory settlement procedures.
2. Defendant Did Not Fail to Oppose the "Motion"
Also on March 7, 2012, plaintiff filed a Notice of Non-Opposition ("Non-Opposition Notice"), asserting that "no opposition papers to the Motion have been served [on] Plaintiff." Non-Opp'n Notice at 1. But there was no motion pending before this court. To the extent plaintiff is construing his Memorandum in Support of Plaintiff's Complaint as a "Motion" and contending that defendant failed to oppose it, such contention lacks merit. The schedule for the preparation and filing of pleadings in this matter is dictated by the court's May 31, 2011 Case Management Order, which states, inter alia, that "[w]ithin thirty (30) days after service of the Memorandum in Support of Plaintiff's Complaint, defendant shall serve and file a document entitled 'Memorandum in Support of Defendant's Answer.'" Case Management Order at 4, May 31, 2011, ECF No. 6. Because the Memorandum in Support of Plaintiff's Complaint was filed on February 7, 2012, defendant had until March 8, 2012 to file the Memorandum in Support of Defendant's Answer. Defendant here timely filed his Memorandum on March 8, 2012.
Accordingly, defendant properly complied with the court's Case Management Order and did not fail to oppose the "Motion."
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice.