United States District Court, E.D. California
June 6, 2014
ROBIN HARRIS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Plaintiff, born July 28, 1959, applied on April 2, 2010 for DIB and SSI, alleging disability beginning September 1, 2009. Administrative Transcript ("AT") 140-150. Plaintiff alleged she was unable to work due to a duodenal ulcer. AT 169. In a decision dated October 17, 2011, the ALJ determined that plaintiff was disabled for a closed period from September 1, 2009 through June 30, 2011, that medical improvement occurred as of July 1, 2011, and that plaintiff was not disabled after that date. AT 19-28. The ALJ made the following findings (citations to 20 C.F.R. omitted):
1. The claimant met the insured status requirements of the Social Security Act as of September 1, 2009, the date that the claimant became disabled.
2. The claimant has not engaged in substantial gainful activity since September 1, 2009, the alleged onset date.
3. At all times relevant to this decision, the claimant has had the following severe impairments: residuals from perforated ulcer and abdominal pain.
4. From September 1, 2009 through June 30, 2011, the period during which the claimant was disabled, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that, from September 1, 2009 through June 30, 2011, the claimant could not perform sustained work activity on a regular and continuing basis at any exertional level due to abdominal pain.
6. From September 1, 2009 through June 30, 2011, the claimant was unable to perform past relevant work.
7. The claimant was born on July 28, 1959 and was 50 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date.
8. The claimant has at least a high-school education and is able to communicate in English.
9. The claimant's acquired job skills do not transfer to other occupations within the residual functional capacity assessed for the period from September 1, 2009 through June 30, 2011.
11. The claimant was under a disability, as defined by the Social Security Act, from September 1, 2009 through June 30, 2011.
12. Medical improvement occurred as of July 1, 2011, the date the claimant's disability ended.
13. Beginning on July 1, 2011, the claimant has not had 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.
14. After careful consideration of the entire record, the undersigned finds that, beginning on July 1, 2011, the claimant has had the residual functional capacity to perform the full range of light work as denied in [the regulations].
15. The medical improvement that has occurred is related to the ability to work.
16. Since July 1, 2011, the claimant's age category has not changed.
17. Beginning on July 1, 2011, the claimant has been unable to perform past relevant work.
18. Beginning on July 1, 2011, transferability of job skills is not material to the determination of disability because applying the Medical-Vocational Rules directly supports a finding of "not disabled, " whether or not the claimant has transferable job skills.
19. Beginning on July 1, 2011, considering the claimant's age, education, work experience, and residual functional capacity, the claimant has been able to perform a significant number of jobs in the national economy.
20. The claimant's disability ended on July 1, 2011.
Plaintiff contends the ALJ improperly rejected the opinion of her treating physician and erroneously found that she had medical improvement based on the unsupported opinion of an examining physician. In finding medical improvement, plaintiff contends the ALJ improperly discredited her subjective complaints.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008).
The record as a whole must be considered, Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). 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 nondisability, the finding of the ALJ is conclusive, see 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. See Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).
A. Physicians' Opinions
Plaintiff contends that the ALJ improperly rejected the opinion of her treating physician,
Dr. Tsang, and improperly relied on the opinion of a consultative examining physician, Dr. Sundar. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id .; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996).
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record, and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester , 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons, that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen , 881 F.2d 747, 751 (9th Cir. 1989)). In any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical findings. Meanel v. Apfel , 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes , 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester , 81 F.3d at 831.
Dr. Tsang, plaintiff's treating physician, in a chronic pain residual functional capacity questionnaire dated September 23, 2010, opined that plaintiff had significant physical limitations. Dr. Tsang indicated that the medical records supported the assessed limitations starting in March 2010. If Dr. Tsang's opinion was credited, plaintiff would be precluded from performing work at any exertional level. AT 320-323. The ALJ did credit this opinion and found that plaintiff could not perform sustained work activity at any exertional level from September 1, 2009 through June 30, 2011. AT 23.
The main thrust of plaintiff's argument appears to be that the ALJ should not have relied on the opinion of consulting physician Dr. Sundar in finding that plaintiff's condition had medically improved as of July 1, 2011 and that she was thereafter no longer disabled. AT 25. In Dr. Tsang's September 2010 opinion, she indicated that plaintiff's prognosis was "good." AT 320. Dr. Sundar examined plaintiff almost a year later, in August 2011. Dr. Sundar took an oral history from plaintiff and performed an independent clinical examination, noting only minimal tenderness in the epigastrium. AT 596-604. Plaintiff contends Dr. Sundar's opinion cannot constitute substantial evidence in support of medical improvement because no medical records were provided for review. However, review of the medical records demonstrates that plaintiff showed improvement after the surgical repair of her perforated ulcer in February 2010. AT 406-407 (June 2010-mild abdominal findings on CT scan; mild tenderness with deep palpation of upper quadrant); 401 (August 2010-cramping, particularly after eating); 398 (October 2010-no rebound or guarding, negative for nausea, vomiting, diarrhea); 387 (February 2011-gastrointestinal negative, plaintiff complained only of hot flashes); 374 (April 2011-plaintiff complained only of knee pain). Because Dr. Sundar's opinion was based on independent clinical findings and is consistent with the medical record as a whole, there was no error in the ALJ's reliance on this opinion in finding medical improvement.
In general, the ALJ gave plaintiff the benefit of the doubt with respect to her claims of disabling symptoms prior to July 1, 2011. After that date, however, the ALJ discredited plaintiff to the extent her statements were inconsistent with the residual functional capacity to perform light work. Plaintiff contests this credibility finding.
The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons. See, e.g., Saelee v. Chater , 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan , 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan , 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief").
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan , 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Smolen v. Chater , 80 F.3d 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Social Security Administration , 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in determining whether the alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of HHS , 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen , 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan , 900 F.2d 172, 177 n.6 (9th Cir. 1990). "Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Morgan v. Commissioner of Social Sec. Admin. , 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ found plaintiff's subjective complaints to be less than credible after July 1, 2011 for several reasons. The ALJ noted that the medical records did not show ongoing abdominal problems since June 2011. The ALJ also considered the mild findings on examination, both on clinical examination by the consulting physician and on ultrasound. AT 26, 407. As discussed above, the medical record demonstrates improvement in plaintiff's medical condition post-surgery. While the record indicates plaintiff sought medical help for physical problems such as pain in her knee and hot flashes, plaintiff's abdominal complaints diminished and clinical findings were mild. The factors considered by the ALJ in assessing plaintiff's credibility are valid and supported by the record. The credibility finding will not be disturbed.
For the reasons stated herein, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 16) is denied;
2. The Commissioner's cross-motion for summary judgment (ECF No. 19) is granted; and
3. Judgment is entered for the Commissioner.