United States District Court, C.D. California
September 30, 2014
MARIA SANDOVAL, Plaintiff,
CAROLYN W. COLVIN,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
MARGARET A. NAGLE, Magistrate Judge.
Plaintiff filed a Complaint on January 25, 2013, seeking review of a decision by the Social Security Commissioner ("Commissioner") that plaintiff ceased to be eligible for a period of disability ("POD") and disability insurance benefits ("DIB") on May 1, 2010. On February 27, 2013, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on January 16, 2014, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.
SUMMARY OF ADMINISTRATIVE PROCEEDINGS
On June 24, 2002, plaintiff, filed an application for a POD and DIB in which she alleged an inability to work since September 8, 1998. ( See Administrative Record ("A.R.") 110.) By decision dated June 12, 2004, Administrative Law Judge Barry S. Brown ("ALJ Brown") determined that plaintiff, who was born on March 12, 1963 ( id. 34), had the following severe impairments: "Major Depressive Disorder, Recurrent, Moderate without psychotic features[;] Generalized Anxiety Disorder[;] second degree burns to both feet and ankles[;] low back lumbar radiculopathy and neck radiculopathy." ( Id. 111.) ALJ Brown found that plaintiff's impairments precluded her from performing even sedentary activity on a sustained and reliable basis from September 8, 1998, plaintiff's alleged onset date of disability, through June 14, 2000. ( Id. 113.) ALJ Brown also found that from June 15, 2000, through June 12, 2004, the date of ALJ Brown's decision, plaintiff's Major Depressive Disorder and Generalized Anxiety Disorder met the criteria of Medical Listings "12.04 [Affective Disorder] and 12.06 [Anxiety Disorder, ]" respectively. ( Id. ) Accordingly, ALJ Brown determined that plaintiff had been under a disability since September 8, 1998, her alleged onset date of disability, and was entitled to POD and DIB. ( Id. )
The Social Security Administration (the "SSA") re-evaluated plaintiff's eligibility for benefits in 2010, and in a decision dated May 18, 2010, determined that plaintiff had medically improved as of May 1, 2010. (A.R. 12-25.) The SSA determined that plaintiff's benefits should cease on the last day of July 2010. ( Id. 125.) Plaintiff requested reconsideration of the SSA's determination. ( Id. 129.) After a disability hearing by a Disability Hearing Officer, the SSA's "determination was upheld upon reconsideration." ( Id. 23, 130-37.) Plaintiff appealed this determination. ( Id. 23.)
On June 15, 2011, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Helen E. Hesse (the "ALJ"). (A.R. 52, 59-64, 73-80.) Vocational expert Alan Boroskin ("VE") and two medical experts - Dr. Samuel Landau, a physician, and Dr. Joseph Malancharuvil, a board-certified clinical psychologist - also testified. ( Id. 52, 55-59 (Dr. Landau's testimony), 64-73 (Dr. Malancharuvil's testimony), 80-83 (VE's testimony).)
On August 4, 2011, the ALJ issued an unfavorable decision, finding, inter alia, that plaintiff had medically improved as of May 1, 2010, and as a result, her disability ended as of May 1, 2010. (A.R. 23-36.) The Appeals Council denied plaintiff's request for review of the ALJ's decision. ( Id. 1-6). That decision is now at issue in this action.
SUMMARY OF ADMINISTRATIVE DECISION
In her August 4, 2011 decision, the ALJ found that, following ALJ Brown's 2004 decision awarding benefits, plaintiff had developed obesity but had otherwise continued to have the same severe impairments, namely "depressive disorder; anxiety disorder; lumber and cervical disorder; history of second-degree burns." (A.R. 25, 28.) However, the ALJ determined that, as of May 1, 2010, plaintiff's impairments no longer met or equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). ( Id. 26.) Specifically, the ALJ found that, as of May 1, 2010, the severity of plaintiff's impairments had decreased to such an extent that they neither met the criteria of Medical Listings 12.04 and 12.06 nor precluded plaintiff from performing sedentary activity on a sustained and reliable basis. ( Id. 27.)
After reviewing the record, the ALJ also determined that, as of May 1, 2010, plaintiff had the residual functional capacity ("RFC") to perform "less than light work as defined in 20 CFR [§] 404.1567(b)." (A.R. 28.) Specifically, the ALJ determined that plaintiff is limited as follows:
[can] lift/carry 10 pounds frequently and 20 pounds occasionally; stand/walk for six hours of an eight hour day; sit for six hours of an eight [h]our day; climb stairs, stoop, and bend occasionally; and [is] precluded from operating fast moving or hazardous machinery; [is] restricted from highly high [sic] pace work such as rapid assembly; and [is] precluded from safety related operations; limited to moderately complex tasks, up to 4 to 5 step instructions in [an] object-oriented setting.
( Id. )
Ultimately, the ALJ found that, as of May 1, 2010, plaintiff was able to perform her past relevant work as a housekeeper, DOT 323.687-014, and a janitor, DOT 381.687-014, as she actually performed it. (A.R. 34.) In addition, the ALJ determined that, as of May 1, 2010, plaintiff could perform jobs that exist in significant numbers in the national economy, namely inspector of wares, DOT 727.687, and street cleaner, DOT 955.687-018. ( Id. 35.) Accordingly, the ALJ concluded that "[plaintiff]'s disability ended as of May 1, 2010." ( Id. )
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Gutierrez v. Comm'r of Soc. Sec. , 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). "Even when the evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record." Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012).
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted); Desrosiers v. Sec'y of Health and Hum. Servs. , 846 F.2d 573, 576 (9th Cir. 1988). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn , 495 F.3d at 630; see also Connett v. Barnhart , 340 F.3d 871, 874 (9th Cir. 2003). The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r of Soc. Sec. , 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Carmickle v. Comm'r of Soc. Sec. , 533 F.3d 1155, 1162 (9th Cir. 2008).
Plaintiff claims that the ALJ erred in failing to: (1) properly consider the opinions of examining physicians Dr. Grogan and Dr. Curtis; (2) overcome the presumption of plaintiff's continued disability; (3) properly consider her subjective complaints; (4) properly consider the combined effects of her impairments in determining her RFC; and (5) pose a complete hypothetical to the VE. (Joint Stipulation ("Joint Stip.") at 3.)
I. The ALJ Gave Specific And Legitimate Reasons For Rejecting The Opinions Of Examining Physicians Dr. Curtis And Dr. Grogan.
A. Legal Standard
In disability benefits cases, physicians may render medical opinions or provide opinions on the ultimate issue, namely the claimant's ability to perform work. Garrison v. Colvin , 759 F.3d 995, 1012 (9th Cir. 2014) (citing Reddick v. Chater , 157 F.3d 715, 725 (9th Cir. 1998)). It is the responsibility of the ALJ to resolve conflicts in medical testimony and analyze evidence. Magallanes v. Bowen , 881 F.2d 747, 750 (9th Cir. 1989). As a general rule, however, the opinion of a treating physician is entitled to greater weight than that of an examining physician, the opinion of an examining physician is entitled to greater weight than that of a non-examining physician, and the weight afforded a non-examining physician's testimony depends on the degree to which he provided supporting explanations for his opinions. Garrison , 759 F.3d at 1012 (citing Ryan v. Comm'r of Soc. Sec. , 528 F.3d 1194, 1198 (9th Cir. 2008); see also 20 C.F.R. § 404.1527(c).
When a treating or examining physician's opinion is not contradicted by another physician, it may be rejected only for "clear and convincing" reasons. Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995). When contradicted by another doctor, a treating or examining physician's opinion is still owed deference and may only be rejected if the ALJ provides "specific and legitimate" reasons supported by substantial evidence in the record. Garrison , 759 F.3d at 1012; Orn , 495 F.3d at 632. An ALJ can satisfy the "substantial evidence" requirement by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Garrison , 759 F.3d at 1012 (quoting Reddick , 157 F.3d at 725). "The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id.
B. The ALJ Did Not Err In Discounting Dr. Curtis' Assessment Of Plaintiff's Mental Impairments And Limitations
On January 20, 2011, examining psychiatrist Thomas Curtis, M.D., completed a "Consultative Psychological Evaluation And Report With Psychological Test Results" based on a psychiatric evaluation he conducted of plaintiff on January 17, 2011. (A.R. 946-66.) In the report, Dr. Curtis detailed: his general observations; plaintiff's description of her symptoms and medical history; and plaintiff's description of her family, marital, social, academic, and occupational history. ( Id. 946-53.) Dr. Curtis also performed a mental status examination of plaintiff, psychological testing, and a review of plaintiff's medical records. ( Id. 954-60.) He diagnosed plaintiff with "depressive disorder not otherwise specified with anxiety, post-traumatic reaction, panic attacks and psychotic features with voices and mental confusion (also possible somatic delusions" and "psychological factors affecting medication condition." ( Id. 960.) Dr. Curtis also assessed plaintiff with a GAF score of 41. ( Id. 961.) He opined that plaintiff would have moderate impairment in her ability to: understand and remember very short simple instructions; carry out very short and simple instructions; ask simple questions or request assistance; and be aware of normal hazards and take appropriate precautions. ( Id. 963-65.) Dr. Curtis found that plaintiff was markedly limited in all other areas of understanding and memory, sustained concentration and persistence, social interaction, and adaptation. ( Id. ) Finally, Dr. Curtis opined that plaintiff's impairments and limitations have "lasted and are expected to last for a continuous period of time into the permanent future." ( Id. 965.) The ALJ gave "little weight" to Dr. Curtis' opinion, because it was: contradicted by the testimony of Dr. Malancharuvil; inconsistent with the medical evidence of record; inconsistent with plaintiff's daily activities; and relied heavily on plaintiff's subjective complaints. (A.R. 32.) Because Dr. Curtis' opinion was contradicted by Dr. Malancharuvil's assessment, the ALJ was only required to articulate specific and legitimate for rejecting it. See Garrison , 759 F.3d at 1012. As explained below, the ALJ satisfied this standard.
1. Plaintiff's Lack Of Treatment
An ALJ may discredit treating physicians' opinions that are unsupported by the record as a whole or by objective medical findings. Batson v. Comm'r, Soc. Sec. Admin. , 359 F.3d 1190, 1195 (9th Cir. 2004). Here, plaintiff submitted no medical records for the period between 2004 and 2008, and she does not dispute that she received no medical treatment during that time. (A.R. 26; see also id. 282-83, 300-02.) Further, as noted by the ALJ, there is no evidence that plaintiff received "active treatment, " such as therapy sessions, counseling, or hospitalizations, for her mental conditions after her favorable disability determination in 2004. (A.R. 27, 29.) The treatment notes that plaintiff submitted for the period between 2008 and 2010 indicate that plaintiff's "mood and affect were normal during numerous office visits." ( Id. 29, 501, 507, 565, 569, 573, 577, 579.) Those treatment notes also show that plaintiff only received routine or minimal care for her physical health ( i.e., rash, nasal congestion, sore throat, urinary tract infection, sinusitis) during that time period. ( See generally, id. 494-526, 561-80.) Plaintiff's failure to seek treatment during that time for her mental health issues is inconsistent with, and seriously undermines, the extreme mental limitations assessed by Dr. Curtis and, thus, constitutes a specific and legitimate reason to reject Dr. Curtis' opinion.
2. Plaintiff's Activities Of Daily Living And Social Interaction
The ALJ next rejected Dr. Curtis' opinion because it was inconsistent with plaintiff's activities of daily living and social interaction. (A.R. 32.) Again, Dr. Curtis opined that plaintiff was either moderately or markedly limited in all areas with respect to understanding and memory, sustained concentration and persistence, social interaction, and adaptation. ( Id. 963-65.) However, plaintiff reported on her November 17, 2009 continuing disability review report that she did not have any difficult understanding/following directions, completing tasks, or getting along with people. ( Id. 355.) Five months later, plaintiff reported to Dr. Ernest A. Bagner III, a board eligible psychiatrist, that she is able to manage money, run errands, and shop, and she has good relationships with her family and friends. ( Id. 533, 535.) Thus, plaintiff's description of her abilities and regular activities conflicts with the severe mental limitations assessed by Dr. Curtis. This contradiction provided a further proper basis for rejecting Dr. Curtis' opinion. Cf. Morgan v. Comm'r of Soc. Sec. Admin. , 169 F.3d 595, 601-02 (9th Cir. 1999) (upholding rejection of physician's conclusion that claimant suffered from marked limitations based on, in part, claimant's reported activities of daily living contradicted that conclusion).
3. Dr. Curtis' Findings Were Based On Plaintiff's Subjective Complaints And On Testing Prone To Manipulation
The ALJ's last reason for rejecting Dr. Curtis' opinion was that Dr. Curtis relied "heavily on the subjective report of symptoms and limitations provided by [plaintiff], and seemed uncritically to accept as true most, if not all, of what [plaintiff] reported." (A.R. 32); see also Ryan, 28 F.3d at 1206-07 ("As we have repeatedly held, an ALJ may discount a medical opinion that relies on subjective statements rather than clinical findings."). The Court agrees with the ALJ that, in determining plaintiff's mental limitations, Dr. Curtis relied more heavily on plaintiff's self-reporting than he did on any objective clinical findings of his own. Dr. Curtis devoted half of his report to reciting plaintiff's descriptions of her symptoms and personal history. (A.R. 946-53.) Dr. Curtis then reviewed plaintiff's medical records but identified no records showing that plaintiff complained of, or received treatment - besides medication - for depression or anxiety after the Commissioner's last favorable decision. ( Id. 960.) Accordingly, Dr. Curtis could not have based his conclusion that plaintiff has extreme mental limitations on his review of her medical records.
Dr. Curtis did perform a series of psychological tests on plaintiff, but the ALJ found that these tests were "mostly self-rating, " and therefore, their results were "within the control of the [plaintiff]." (A.R. 32); see also Tonapetyan v. Halter , 242 F.3d 1144, 1149 (9th Cir. 2001) (ALJ was free to disregard an examining physician's opinion that was based "only on [the plaintiff's] subjective complaints and on testing within [the plaintiff's] control"). In reaching this conclusion, the ALJ relied on Dr. Malancharuvil's testimony that the Beck depression inventories administered by Dr. Curtis were an inappropriate tool for a disability evaluation, because they are "totally under the control of the person who rates it." (A.R. 67-68.) The ALJ also relied on Dr. Malancharuvil's testimony that plaintiff's performance on the MMPI (Minnesota Multiphasic Personality Inventory 2) was a better indicator of plaintiff's mental health, because unlike the Beck depression inventories, the MMPI could not be easily manipulated. ( See A.R. 30.) Significantly, plaintiff received an invalid score on the MMPI, which suggested she was overstating the severity of her symptoms. ( See A.R. 30 (plaintiff's score on the MMPI was indicative of malingering); id. 70 (Dr. Malancharuvil's testimony that, if plaintiff's MMPI test results were to be believed, she was "completely out of her mind"); id. 957 (Dr. Curtis' statement that one possible explanation for plaintiff's score on the MMPI is "purposeful manipulation for secondary gain (malingering)").
Because Dr. Malancharuvil's interpretation of the results of Dr. Curtis' tests was supported by independent evidence in the record - namely, plaintiff's statements regarding her social interactions and activities of daily living and her failure to obtain treatment other than medication after the Commissioner's last favorable decision - the ALJ was entitled to credit Dr. Malancharuvil's interpretation of the results of Dr. Curtis' test results. See Tonapetyan , 242 F.3d at 1149 ("Although the contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record.") Thus, the ALJ did not err in rejecting Dr. Curtis' assessment of plaintiff's mental limitations on the grounds that it was based on plaintiff's subjective complaints and on clinical findings that were susceptible to manipulation.
For these reasons, the ALJ's decision to discount Dr. Curtis' opinion was proper.
C. The ALJ Did Not Err In Discounting Dr. Grogan's Assessment Of Plaintiff's Physical Impairments And Limitations
Plaintiff also contests the ALJ's decision not to accord significant weight to the opinion of examining physician Thomas J. Grogan, an orthopedic surgeon. The ALJ reasoned that Dr. Grogan's opinion was not entitled to great weight, because it was contradicted by the opinion of consulting physician Dr. Landau and was: (1) inconsistent with plaintiff's lack of treatment; (2) conclusory; (3) inconsistent with plaintiff's reported daily activities; and (4) relied heavily on plaintiff's subjective complaints. (A.R. 32.)
On June 2, 2010, examining physician Dr. Grogan completed a "Physical Examination Report." (A.R. 554-55.) In his report, he noted that, based inter alia on a physical examination of plaintiff and x-rays, plaintiff suffered from: degenerative disc disease, cervical and lumbar; history of bilateral foot causalgia status post burn with skin grafting; history of chronic headaches; history of atherosclerotic cardiovascular disease with hypercholesterolemia; and history of depression and anxiety. ( Id. 555.) Dr. Grogan opined that plaintiff was "physically incapable of returning to [work as a housekeeper] and should be permanently precluded from that type of employment in the future." ( Id. )
Dr. Grogan also completed a "Physical Capacities Evaluation" that same day. (A.R. 559.) In that evaluation, he opined that plaintiff could sit for three consecutive hours, stand for two consecutive hours, and walk for one hour. ( Id. ) In an entire eight hour day, plaintiff could sit for a total of five hours, stand for a total of four hours, and walk for a total of three hours. ( Id. ) Plaintiff could occasionally lift and carry up to five pounds. ( Id. ) She could do simple grasping and fine manipulation, but no pushing and/or pulling. ( Id. ) Plaintiff could not, however, perform repetitive movements as in pushing and pulling of leg controls. ( Id. ) Dr. Grogan also opined that plaintiff could occasionally bend and reach, but could not squat, crawl, and climb. ( Id. ) According to Dr. Grogan, plaintiff was also moderately restricted from activities involving unprotected heights, being around moving machinery, and driving automotive equipments, and she was mildly limited in exposure to marked changes in temperature and humidity and exposure to dust, fumes, and gases. ( Id. )
1. Plaintiff's Lack Of Treatment
The ALJ first rejected Dr. Grogan's limitations regarding plaintiff's physical impairments, because "[o]ther than records of [plaintiff] taking Ibuprofen for pain, [plaintiff's] treating records on file, which only date back to 2008, do not indicate any complaints of or treatment for her severe impairments." (A.R. 27, 31, 494-526, 561-80.) Further, the record indicates that, since 2008, plaintiff's "Active Problem List" has been limited to anxiety, depression, sinusitis, TMJ disorder, GERD, gastritis, eczema, prediabetes, obesity, and a urinary tract infection. ( Id. 27, 31, 500, 506, 564, 568, 570.) As for the second-degree burns on plaintiff's feet and ankles, the ALJ observed that there is no record that plaintiff received treatment for these injuries after the last favorable disability determination. ( Id. 30.) To the contrary, plaintiff stated that she had recovered from the skin grafting. ( Id. 30; see also id. 953 (plaintiff told Dr. Curtis that she recovered from the skin grafting procedures).) In sum, Dr. Grogan's physical limitations were inconsistent with plaintiff's treating notes, and this was a specific and legitimate reason to reject his opinion.
2. Dr. Grogan's Opinion Is Conclusory
The ALJ's second reason for rejecting Dr. Grogan's opinion - to wit, that his opinion is "quite conclusory, providing very little explanation of the evidence relied on in forming that opinion" - is also legitimate. (A.R. 32); see also Bray v. Comm'r of Soc. Sec. , 554 F.3d 1219, 1228 (9th Cir. 2009) ("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."); Connett , 340 F.3d at 875 ("ALJ properly found that [the physician's] extensive conclusions regarding [the claimant's] limitations are not supported by his own treatment notes. Nowhere do his notes indicate reasons why [the physician would limit the claimant to a particular level of exertion]."). Here, Dr. Grogan performed a physical examination of plaintiff and lumbar and cervical spine x-rays. (A.R. 554-58.) However, he articulated limitations that conflicted with his general observations of plaintiff's strength and range of motion, and he provided no rationale for doing so. Specifically, Dr. Grogan found that: plaintiff had a full range of motion in her shoulders, elbows, wrists, and hands; she scored a 5/5 on the motor examination for all groups tested; plaintiff's sensation was intact to touch; and plaintiff's grip strength was 15/15 on the right side and 15/10 on the left. (A.R. 554.) Dr. Grogan nevertheless opined that plaintiff could: only occasionally lift and carry up to five pounds; occasionally reach; and could not do any pushing and pulling. ( Id. ) Similarly, Dr. Grogan found, inter alia, that plaintiff's gait was "normal to heel and toe without a crutch, cane, or orthoses[;]" plaintiff had a full range of motion in her hips, knees, ankles, and subtalar joints; and motor examination in plaintiff's lower extremities was rated at 5/5 in all groups tested. ( Id. 554-45.) Again, however, Dr. Grogan seemed to overstate plaintiff's limitations in the Physical Capacities Evaluation, restricting her to no repetitive movements (such as pushing and pulling leg controls) and no squatting, crawling, or climbing. ( Id. 559.) Because Dr. Grogan offered no rationale for his assessment of plaintiff's limitations and none was apparent from his observations of plaintiff's strength and abilities, the ALJ did not err by discounting Dr. Grogan's opinion on the grounds that it was conclusory.
3. Plaintiff's Activities Of Daily Living
The ALJ's third reason for rejecting Dr. Grogan's opinion - to wit, because his opinion was inconsistent with plaintiff's activities of daily living - is also specific and legitimate. (A.R. 31); see also Morgan , 169 F.3d at 601-02 (ALJ permissibly rejected treating physician's opinion in part because it was inconsistent with plaintiff's daily activities); Rollins v. Massanari , 261 F.3d 853, 856 (9th Cir. 2001) (inconsistency between treating physician's assessment of plaintiff's functional limitations and plaintiff's level of activity was an adequate reason for disregarding the treating physician's opinion). In November 2009, plaintiff reported that her typical day consists of: taking her son to school and picking him up from school, doing chores, and occasionally going to church. ( Id. 353.) In April 2010, plaintiff reported that she is able to dress and bathe herself, run errands, shop, and manage money. ( Id. 533, 535.) Plaintiff's son also reported that "she goes to church on her own" and occasionally "drives the car to the market, " though she is not allowed to drive alone. ( Id. 946.) Thus, the ALJ was entitled to reject Dr. Grogan's opinion to the extent they imposed highly restrictive functional limitations that were inconsistent with plaintiff's daily activities. See Morgan , 169 F.3d at 601-02; Rollins, 261 F.3d at 86 see also Batson , 359 F.3d at 1193 (when evidence supports more than one rational interpretation, courts defer to the Commissioner's decision). Further, to the extent that the ALJ may have erred in citing plaintiff's daily activities as a reason for discrediting Dr. Grogan's opinion, the error was harmless, because the ALJ presented other specific and legitimate reasons for her credibility determination. Cf. Carmickle , 533 F.3d at 1162-63.
4. Dr. Grogan's Reliance On Plaintiff's Subjective Complaints
Finally, the ALJ rejected Dr. Grogan's opinion, because he "apparently relied quite heavily on the subjective report of symptoms and limitations provided by [plaintiff]." (A.R. 32.) However, it appears that Dr. Grogan did not consider plaintiff's subjective complaints as a basis for his opinion. ( Id. 554-60.) Nonetheless, as stated above, the ALJ provided other specific and legitimate reasons for rejecting Dr. Grogan's opinion, and, therefore, her error in finding that Dr. Grogan's opinion was based primarily on plaintiff's subjective complaints was harmless and did not affect the ultimate disability determination. Cf. Carmickle , 533 F.3d at 1162-63.
Thus, the Court finds that the ALJ gave legally sufficient reasons for rejecting the opinions of both Dr. Curtis and Dr. Grogan.
II. The ALJ's Finding That Plaintiff's Mental Impairments Have Medically Improved Is Supported By Substantial Evidence.
"Once a claimant has been found to be disabled, ... a presumption of continuing disability arises in [her] favor[, and the Commissioner] bears the burden of producing evidence sufficient to rebut the presumption of continuing disability." See Bellamy v. Sec'y of Health and Hum Servs. , 755 F.2d 1380, 1381 (9th Cir. 1985). Benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant's impairment such that the claimant becomes able to engage in substantial gainful activity. See 42 U.S.C. § 423(f); 20 C.F.R. § 404.1594; Murray v. Heckler , 722 F.2d 499, 500 (9th Cir. 1983).
Medical improvement is defined as "any decrease in the medical severity of [a claimant's] impairment(s) which was present at the time of the most recent favorable decision that [the claimant was] disabled or continued to be disabled." 20 C.F.R. § 404.1594(c)(1). To determine whether there has been medical improvement, the claimant's current condition must be compared with the claimant's condition at the time of the most recent favorable determination or decision. 20 C.F.R. § 404.1594(c)(2). The most recent favorable determination or decision is the latest final determination or decision involving a consideration of the medical evidence and whether the claimant was disabled or continued to be disabled. 20 C.F.R. § 404.1594(b)(7).
In assessing whether plaintiff's condition medically improved, the ALJ compared plaintiff's medical condition on June 12, 2004, the date of the Commissioner's most recent favorable decision, to plaintiff's medical condition at the time of her decision, August 4, 2011. After carefully reviewing the record as a whole, the Court concludes that the ALJ's finding of medical improvement in plaintiff's mental condition is supported by substantial evidence.
As noted above, by decision dated June 12, 2004, ALJ Brown determined that plaintiff's impairments precluded the performance of even sedentary activity on a sustained and reliable basis from September 8, 1998 to June 14, 2000 and met the criteria of Medical Listings 12.04 and 12.06 from June 14, 2000 through the date of his decision. (A.R. 113.) In finding that plaintiff's condition had improved since ALJ Brown's decision, the ALJ relied on: (1) the lack of treatment records demonstrating any objective findings or diagnostics regarding her alleged impairments after ALJ Brown's decision and (2) the opinions of medical experts Dr. Malancharuvil and Dr. Landau. ( Id. 27-28.)
Plaintiff argues that the ALJ erred in finding that she had medically improved, because there were objective findings or diagnostics that demonstrated that she continued to suffer from her mental impairments after the Commissioner's last favorable decision. (Joint Stip. at 22-25.) In support of her argument, plaintiff relies primarily on Dr. Curtis' opinion. ( Id. ) However, as discussed above, the ALJ properly rejected the opinion of Dr. Curtis. Plaintiff also cites: a 2009 treatment note indicating that her depression and anxiety were active problems; consultative psychiatrist Dr. Bagner's diagnosis of depressive disorder; and Dr. Bagner's observation that plaintiff's mood and affect were congruent with her reported depression. (Joint Stip. at 22, 30.) However, contrary to plaintiff's argument, "the mere existence of an impairment is insufficient proof of a disability." Matthews v. Shalala , 10 F.3d 678, 680 (9th Cir. 1993); see also 20 C.F.R. § 416.920(f), (g) (claimant's impairment(s) must prevent her from doing her past relevant work and from making an adjustment to any other work).
Furthermore, the ALJ's determination that plaintiff had achieved medical improvement as of May 1, 2010, is supported by substantial evidence. First, the ALJ correctly observed that plaintiff's "treatment records fail to show any objective findings or diagnostics regarding her mental impairments after the CPD." (A.R. 27.) Indeed, the "only significant medical evidence [plaintiff] submitted regarding her mental condition after 2004 was [the] consultative report [completed] by Dr. Curtis, " whose opinion the ALJ properly rejected. ( Id. 27, 30, 494-526, 561-80.) Moreover, "other than some medication,  there is no evidence of other treatment such as therapy sessions, counseling, and hospitalizations." ( Id. 27.) Rather, the treatment notes submitted by plaintiff reveal that plaintiff's "mood and affect were normal during numerous office visits." ( See e.g. 501, 507, 565, 569, 573, 577, 579.) The ALJ was entitled to rely on the lack of treatment and treating notes regarding plaintiff's impairments in finding that she had medically improved after the Commissioner's last favorable decision. See Flaten v. Sec'y of Health and Hum. Servs. , 44 F.3d 1453, 1464 (9th Cir. 1995) (holding that the ALJ did not err in rejecting the claimant's continuing disability claim based, in part, on a lack of medical care during the relevant period).
In addition, the ALJ properly cited Dr. Malancharuvil's opinion that plaintiff had improved after the Commissioner's last favorable decision. (A.R. 27-28, 69.) Specifically, Dr. Malancharuvil testified that although plaintiff suffered from "depressive disorder, " "psychological reactions to physical sensations, including pain, " and "anxiety disorder, " she did not meet or equal the requirements of any listing and had "made improvements since the original decision." ( Id. 69.) Dr. Malancharuvil based his opinion that plaintiff had medically improved on the lack of significant psychiatric treatment in plaintiff's medical records and on a report by examining physician, Ernest A. Bagner III, a board eligible psychiatrist. ( Id. 66-69.) Dr. Malancharuvil also took into account Dr. Curtis' report but, as explained above, found that Dr. Curtis' report was "significantly problematic" and "extremely biased, " because it was based on plaintiff's self-reporting and on testing that was susceptible to manipulation by plaintiff and was inconsistent with the independent evidence in the record. ( Id. 67-69.) Thus, the ALJ did not err by finding medical improvement partly on the basis of Dr. Malancharuvil's opinion, because Dr. Malancharuvil's opinion was supported by independent clinical findings and constituted substantial evidence of medical improvement. See Tonapetyan , 242 F.3d at 1149; Andrews , 53 F.3d at 1041 (when an ALJ rejects an examining physician's opinion in reliance on the testimony of a nonexamining advisor, the nonexaminer advisor's findings may be treated as substantial evidence when they are supported by, and consistent with, other evidence in the record).
In sum, the ALJ's reasons for finding medical improvement were supported by substantial evidence in the record and warranted a finding of nondisability as of May 2010.
III. The ALJ Set Forth Clear And Convincing Reasons For Finding Plaintiff's Testimony Regarding Her Subjective Symptoms And Pain To Be Not Credible.
Plaintiff also argues that the ALJ erred in failing to credit her testimony regarding her symptoms and pain. (Joint Stip. 30-37.) In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ must engage in a two-step analysis. Vasquez v. Astrue , 572 F.3d 586, 591 (9th Cir. 2009). "First, 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. (quoting Lingenfelter , 504 F.3d at 1036 (internal citations and quotation marks omitted)). The claimant is not required to show that her impairment "could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Vasquez , 572 F.3d at 591 (internal citation and quotation marks omitted). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives "specific, clear and convincing reasons" for the rejection. Id. The factors to be considered in weighing a claimant's credibility include, inter alia: (1) the claimant's reputation for truthfulness; (2) inconsistencies in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; and (4) the claimant's unexplained, or inadequately explained, failure to seek treatment. Orn , 495 F.3d at 636.
Here, the ALJ cited no evidence of malingering by plaintiff and concluded that "[plaintiff]'s medically determinable impairments could have reasonably be expected to produce the alleged symptoms." (A.R. 30.) Nevertheless, the ALJ determined that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible to the extent they were inconsistent with the ALJ's RFC assessment. ( Id. ) Because the ALJ found no evidence of malingering, the ALJ was required to articulate "clear and convincing" reasons for discounting plaintiff's subjective symptom testimony. As discussed below, the ALJ satisfied this standard.
The ALJ's first reason for discounting plaintiff's subjective symptom testimony was that plaintiff's treatment and treatment notes were inconsistent with her assertion that she was totally disabled. Specifically, the ALJ observed that there were "no restrictions recommended by any treating doctor" after the Commissioner's last favorable decision and there was no evidence of "significant treatment for her severe impairments." (A.R. 31.) The ALJ noted that treatment notes suggested plaintiff received "no active treatment for her depression, anxiety, and spine disorders [after] 2004, even though she received regular treatment for other conditions such as [a] urinary tract infection and asthma." ( Id. 31, 494-526, 561-80.) The ALJ also found no evidence that plaintiff had "taken any narcotic based pain relieving medications in spite of the allegations of quite limiting pain and there is no evidence of the use of any medications designed to treat psychiatric or mental symptoms." ( Id. 31, 494-526, 561-80.) The ALJ reasoned that, given plaintiff's allegations of "totally disabling symptoms, one might expect to see some indication in the treatment records of restrictions placed on the [plaintiff] by the treating doctor" or that plaintiff would have done more to seek treatment. ( Id. 31.) Plaintiff's failure to seek treatment for allegedly disabling impairments was a clear and convincing reason for discounting her subjective symptom testimony. See Orn , 495 F.3d at 638 ("[I]f a claimant complains about disabling pain but fails to seek treatment... an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated. In the case of a complaint of pain, such failure may be probative of credibility[.]"); see also Burch , 400 F.3d at 681 (upholding ALJ's discounting of claimant's credibility due partly to the claimant's lack of consistent treatment and characterizing the claimant's lack of motivation to seek treatment as powerful evidence of the limited severity of her pain).
The ALJ's second reason for discounting plaintiff's subjective symptom testimony was that she made inconsistent statements. For example, the ALJ noted that plaintiff testified in 2011 that she had been receiving psychotherapy for about two years, but in 2010, she told Dr. Bagner that she was not seeing a psychiatrist or counselor and had never received psychiatric treatment. (A.R. 31; see also id. 63-64 (plaintiff's testimony), 532, 535 (plaintiff's statements to Dr. Bagner).) The ALJ also observed that plaintiff's testimony regarding her inability to "perform chores" - namely, cooking and laundry - contradicted written evidence that she does chores every day. (A.R. 31; see also id. 75 (plaintiff's testimony), 353 (plaintiff's description of her daily activities); 438 (plaintiff's neighbor stated in 2002 that plaintiff did the laundry and the dishes).) Similarly, plaintiff reported that her "depression has caused her to become isolated and... to not want to care for her personal dress, etc." (A.R. 29, 304), but she told Dr. Bagner that she is able to "dress and bathe herself, " "run errands and shop, " and "manage money" and that she has "good" relationships with her family and friends. ( Id. 533, 535.) Plaintiff's inconsistent statements were a clear and convincing reason for discrediting her testimony. See Orn , 495 F.3d at 636.
The ALJ's third reason for discounting plaintiff's subjective symptom testimony was that plaintiff's activities of daily living were inconsistent with her allegation that she was totally disabled. (A.R. 30-31.) As stated above, an ALJ is allowed to consider a claimant's daily activities in assessing a claimant's credibility. Orn , 495 F.3d at 636; Tommasetti v. Astrue , 533 F.3d 1035, 1041 (9th Cir. 2008). However, "[t]he mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. One does not need to be utterly incapacitated' in order to be disabled." Webb v. Barnhart , 433 F.3d 683, 688 (9th Cir. 2005) (quoting Vertigan v. Halter , 260 F.3d 1044, 1050 (9th Cir. 2001)). Here, the ALJ found that plaintiff's allegations of debilitating pain ( see, e.g., A.R. 76-78) were inconsistent with her statements that she takes her son to school and picks him up, does unspecified chores, goes to church, and occasionally drives. (A.R. 353, 533, 535, 946.) It is not clear, however, that this level of activity is inconsistent with plaintiff's claimed limitations, particularly given her statements that she rarely, if ever, drives alone, spends part of the morning lying down, and spends most of her day at home. See Garrison , 759 F.3d at 1016 (only if the claimant's level of activity were inconsistent with her claimed limitations would those activities have any bearing on her credibility); see also id. (claimant's ability to talk on the phone, prepare meals once or twice a day, occasionally clean one's room, and, with assistance, care for one's child, all the while taking hours-long rests is consistent with an inability to function in a workplace environment). Nevertheless, to the extent that the ALJ may have erred in discrediting plaintiff's subjective symptom testimony partly on the basis of her daily activities, the error is harmless, because the ALJ cited other clear and convincing reasons for her credibility determination. See Carmickle , 533 F.3d at 1162-63. Thus, the ALJ did not err in rejecting that plaintiff's subjective symptom testimony.
IV. The ALJ Properly Determined Plaintiff's RFC.
Plaintiff also contends that the ALJ failed to take into account all of plaintiff's exertional and non-exertional severe limitations in determining her RFC. (Joint Stip. at 42-47.) Specifically, plaintiff contends that the ALJ erred by failing to take into account the "pain in her feet, pain in her lumbar spine, pain with range of motion in the cervical spine, limited range of motion in the lumbar spine, " as well as her anxiety and depression, in determining her RFC. ( Id. at 44.)
An ALJ is required to consider all of the limitations imposed by a claimant's limitations, even those that are not severe. Carmickle , 533 F.3d at 1164. "Even though a non-severe impairment standing alone may not significantly limit an individual's ability to do basic work activities, it may - when considered with limitations or restrictions due to other impairments - be critical to the outcome of a claim.'" Id. (quoting Social Security Ruling 96-8p (1996)). Where the ALJ has properly considered all of the limitations for which there is record support, however, the ALJ's RFC determination will not be overturned so long as the ALJ applied the correct legal standard and the RFC assessment is supported by substantial evidence. See Bayliss v. Barnhart , 427 F.3d 1211, 1217 (9th Cir. 2005).
Here, the ALJ found that plaintiff had the residual functional capacity to perform less than light work, limiting plaintiff to, inter alia: lifting or carrying no more than ten pounds frequently and twenty pounds occasionally; sitting, standing, or walking for no more than six hours a day; and performing only limited to moderately complex tasks with up to four to five step instructions in an object oriented setting. (A.R. 28.) The ALJ stated that she "considered all symptoms" in making this assessment of plaintiff's RFC. ( Id. ) Indeed, she discussed plaintiff's subjective description of her symptoms but, as explained above, found that plaintiff was not credible. ( Id. 28-31.) The ALJ also considered Dr. Grogan's and Dr. Curtis' assessments of plaintiff's limitations but again, as discussed above, found that their assessments were not entitled to great weight, because they were contradicted by independent evidence in the record and by the opinions of medical experts Drs. Landau and Malancharuvil. ( Id. 30-33.) The ALJ also considered and rejected the functional assessments of consulting physicians who found that plaintiff could perform "medium exertional work" and had "no severe mental impairments." ( Id. 33.) Thus, the ALJ properly considered all of the evidence regarding plaintiff's limitations in determining her RFC and, as discussed extensively above, satisfied the applicable legal standards in declining to accord great weight to some of that evidence.
The Court finds that the ALJ's RFC assessment was supported by substantial evidence. Specifically, the ALJ's RFC assessment was supported by the testimony of medical experts Dr. Malancharuvil and Dr. Landau. (A.R. 32-33.) Reports of a non-examining medical expert "may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it." Andrews , 53 F.3d at 1041. In determining plaintiff's physical RFC, medical expert Dr. Landau based his assessment on plaintiff's medical records, including a "Complete Orthopedic Consultation" by orthopedic surgeon, Carlos Gonzalez, who considered plaintiff's back and feet impairments. (A.R. 56-57, 527-31.) For his part, Dr. Malancharuvil relied on plaintiff's medical records, or lack thereof, as well as the opinion of consultative examiner Dr. Bagner, who considered plaintiff's depression and anxiety. ( Id. 66-70.) Both Dr. Landau's and Dr. Malancharuvil's opinions were supported by plaintiff's failure to seek treatment, other than obtaining medication for her depression and anxiety and Ibuprofen for her pain, after the Commissioner's last favorable decision. In sum, Dr. Landau's and Dr. Malancharuvil's opinions were supported by independent evidence in the record and, therefore, constituted substantial evidence supporting the ALJ's assessment of plaintiff's RFC. For these reasons, the Court finds no error in the ALJ's determination of plaintiff's RFC.
V. The ALJ Posed A Complete Hypothetical Question To The Vocational Expert.
In her final argument, plaintiff contends that the ALJ failed to pose a proper hypothetical to the VE, because her hypothetical did not include the limitations assessed by Dr. Curtis and Dr. Grogan. (Joint Stip. at 50-52.) Hypothetical questions posed to the vocational expert must accurately describe "all the claimant's limitations, both physical and mental, supported by the record." See Hill v. Astrue , 698 F.3d 1153, 1161 (9th Cir. 2012). If the ALJ's hypothetical question to the VE does not reflect all of the claimant's limitations, then the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy. Id.; Matthews , 10 F.3d at 681.
Here, the ALJ presented the VE with a hypothetical question about the vocational opportunities for someone meeting the following description:
[A] 48-year-old individual with a high school education... who is literate and speaks at least basic English... [who's] not a citizen, but she's worked in the United States a number of years... This individual can sit for six hours out of an eight hour day, stand and walk six hours out of an eight hour day with normal workday breaks; occasionally lift twenty pounds, frequently lift ten pounds; occasionally climb stairs, bend, or stoop. She is precluded from climbing ladders, ropes, or scaffolding, from balancing, working at unprotected heights, around dangerous or fast-moving machinery. She's precluded from work - high-production quota or rapid assembly line work. She needs an object-oriented environment. She should not be in charge of safety operations of others. And she can perform moderately complex tasks, up to four or five steps.
This description is consistent with the ALJ's RFC determination. ( Compare id. with id. 28.) Further, for the reasons stated above, the ALJ did not err by discounting Dr. Grogan and Dr. Curtis' assessments of plaintiff's functional limitations, and the ALJ was entitled to exclude from the hypothetical plaintiff's asserted limitations that were not supported by the record. See Hill , 698 F.3d at 1161. Thus, the ALJ posited a complete hypothetical based on a proper RFC determination supported by substantial evidence of record. There was, therefore, no error.
For the foregoing reasons, the Court finds that the Commissioner's decision is supported by substantial evidence and is free from material legal error. Neither reversal of the Commissioner's decision nor remand is warranted.
Accordingly, IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for the Commissioner.
LET JUDGMENT BE ENTERED ACCORDINGLY.