United States District Court, C.D. California
December 17, 2014
ALGERETTA CLARK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Algeretta Clark, Plaintiff: Bill LaTour, LEAD ATTORNEY, Law Offices of Bill LaTour, Colton, CA.
For Carolyn W. Colvin, Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Cynthia B De Nardi, SAUSA - Office of the U.S. Attorney, Office of the General Counsel Region IX, San Francisco, CA.
ORDER AFFIRMING DECISION OF COMMISSIONER
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint (" Complaint") on January 24, 2014, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on September 25, 2014. Thus, this matter now is ready for decision.
1. Whether the Administrative Law Judge (" ALJ") properly evaluated plaintiff's credibility. (Jt. Stip. 3-15.)
2. Whether the ALJ properly assessed the medical evidence. (Jt. Stip. 15-18.)
3. Whether the ALJ properly determined plaintiff's residual functional capacity (" RFC") and posed a complete hypothetical to the vocational expert (" VE"). (Jt. Stip. 18-22.)
I. Reversal is not warranted based on the ALJ's assessment of plaintiff's credibility.
Plaintiff complains that " [w]hile the ALJ briefly summarized plaintiff's testimony at her administrative hearing, the ALJ does not indicate which specific statements made by plaintiff that she accepted or rejected nor does the ALJ provide clear and convincing reason to reject plaintiff's testimony." (Jt. Stip. 4.) Plaintiff asserts the " ALJ's credibility findings are improper." (Id.)
Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ " must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as amended);
see also Dodrill, 12 F.3d at 918. Further, a credibility finding must be " sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant's daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment; and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59.
At the administrative hearing, held on August 1, 2012, plaintiff testified that she is unable to work because she is " depressed." (AR 34, AR 40-41.) She reported that she " can't concentrate, " suffers from paranoia, and " sometimes . . . see[s] things or . . .hear[s] things." (AR 41, AR 45, AR 47.) Plaintiff testified that medication has helped her mental health symptoms become a " little better." (AR 50.) With respect to her physical impairments, plaintiff reported that she suffers from pain in her lower back, feet, and ankles. (AR 41.) However, plaintiff also stated that her prescription medication Tramadol helps with the pain. (AR 43.) Plaintiff indicated that she broke both her ankles in 1994 after jumping out of a " three-story window" while " trying to escape being harmed." (AR 43-44.) Plaintiff testified that when she is at home, she is " in [her] bed all day." (AR 50.)
The ALJ declined to " fully credit [plaintiff's] testimony and allegations." (AR 18.) The Court concludes the ALJ provided legally sufficient reasons for rejecting the alleged severity of plaintiff's subjective complaints.
First, the ALJ found that plaintiff's " mental condition is controlled when she is compliant with medication." (AR 18.) Substantial evidence supports this reason. For example, plaintiff was admitted for " agitated behavior" and was placed under psychiatric evaluation on August 12, 2010, but the evaluation notes reported plaintiff had a " history of noncompliance to medications." (AR 216.) Subsequent treatment notes indicate that plaintiff's condition stabilized with medication. (See, e.g., AR 400-01 (treatment note, dated October 20, 2010, indicating plaintiff was oriented, unimpaired in intellectual functioning, and assessing Global Assessment of Functioning (" GAF") score of 65), AR 413 (treatment note, dated August 3, 2012, reporting plaintiff's " chart presents as alert, oriented x 4, speech clear, verbal responses appropriate"), AR 416 (treatment note, dated January 12, 2012, indicating plaintiff's adherence to medication was " good" and she experienced " no side effects").)
Second, the ALJ properly highlighted that psychologist and consultative examiner Banafshe P. Sharokhi, Ph.D. (" Dr. Sharokhi") " opined that [plaintiff] was exaggerating her symptoms." (AR 18; see also AR 379-86.) On May 16, 2012, Dr. Sharokhi performed a complete psychological evaluation of plaintiff. (AR 379-86.) During the evaluation, Dr. Sharokhi administered a number of tests, including a Mental Status Examination, the Wechsler Adult Intelligence Scale, 4th Edition, Wechsler Memory Scale, 4th Edition, Trail Making Tests, Parts A and B, and the Bender Visual Motor Gestalt Test, 2nd Edition. (AR 379.) Following the tests, Dr. Sharokhi determined that the " results are extremely inconsistent, " plaintiff's " cognitive abilities appear higher than shown on psychometric testing, " and plaintiff's " aborting of subtests prematurely, extremely inconsistent effort, low motivation, carelessness, and impulsivity affected testing results." (AR 384.)
Third, the ALJ properly discounted plaintiff's complaints regarding the severity of her pain as inconsistent with the minimal and conservative treatment she received. (AR 18); see Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as amended) (ALJ properly considered, as part of credibility evaluation, treating physician's failure to prescribe, and claimant's failure to request, medical treatment commensurate with the " supposedly excruciating" pain alleged, and the " minimal, conservative treatment") (citation omitted);
Fair, 885 F.2d at 604 (ALJ permissibly considered discrepancies between the claimant's allegations of " persistent and increasingly severe pain" and the nature and extent of treatment obtained). Despite plaintiff's complaints of debilitating pain in her " back, feet, [and] shoulders, " (AR 180), plaintiff's treating physicians prescribed orthotics for her shoes, physical therapy, and a pain reliever, Ultram. (See AR 30-33.) Further, the Court notes that a review of the record reveals only two treatment notes for plaintiff's physical impairments. (See AR 30 (treatment note, dated September 12, 2011, from physician Elisabeth S. Youn, D.P.M. (" Dr. Youn") who treated plaintiff for her heel, ankle, and back pain), AR 33 (treatment note, dated July 18, 2011, from Dr. Youn indicating plaintiff complained of " painful feet and [right] knee" and " Achilles pain"), AR 42 (plaintiff testifying that she has seen Dr. Youn " probably three times").)
Lastly, the ALJ properly cited plaintiff's ability to engage in activities of daily living that require the same physical and mental abilities as those necessary to obtain and maintain employment. (See AR 18.) By plaintiff's own account, she is able to pay bills, count change, handle a savings account, use a checkbook or money orders, go to the store and doctor appointments, drive a car, watch television, and follow instructions " pretty well." (AR 190-97.) Moreover, in a Third Party Function Report, plaintiff's grandmother stated plaintiff is able to " cook wash, iron, help [her son] with homework and take him to the library." (AR 198-99.) It was not unreasonable for the ALJ to find that this level of activity, which was transferable to work setting, served as evidence of plaintiff's ability to work.
See Thomas, 278 F.3d at 953, 959 (holding that the ALJ did not err in finding that the claimant's ability to perform chores such as cooking, laundry, washing dishes, and shopping undermined the credibility of her subjective complaints); Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (holding that the ability to fix meals, do laundry, work in yard, and occasionally care for friend's child served as evidence of claimant's ability to work); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (per curiam) (holding that the ALJ did not err in concluding that the claimant's ability to cook, do dishes, go to the store, visit relatives, and drive indicated that he could perform light work).
Thus, Disputed Issue One does not warrant reversal of the Commissioner's decision.
II. Reversal is not warranted based on the ALJ's evaluation of the medical evidence.
In Disputed Issue Two, plaintiff argues that the ALJ " failed to provide specific and legitimate reasons for rejecting" a determination by consultative examiner and internist Alexander Popov, M.D. (" Dr. Popov") that plaintiff requires the use of a cane. (Jt. Stip. 16.)
In evaluating medical opinions, the Ninth Circuit distinguishes among three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine nor treat).
Lester, 81 F.3d at 830. In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989), " [t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § § 404.1527(d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for " clear and convincing" reasons. Lester, 81 F.3d at 830. Where, as in this case, the treating physician's opinion is contradicted, it may not be rejected without " specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
While plaintiff asserts that the ALJ erred in failing " to provide specific and legitimate reasons, supported by substantial evidence for rejecting [Dr. Popov's] opinion that Plaintiff's cane is permanent and medically necessary, " the Court does not agree. (Jt. Stip. 16-17.) Here, Dr. Popov's observation that plaintiff's cane is " permanent" and " medically necessary" was specifically in reference to her " balance, " " long distance, " and " walking up and down stairs." (AR 294.) However, despite this finding, Dr. Popov did not include a restriction regarding cane use in his residual functional capacity (" RFC") determination. (Id.) In fact, Dr. Popov concluded plaintiff retained the ability to " stand or walk for 6 hours out of an 8-hour day, " albeit with " [p]ush and pull" limitations in the " lower extremities." (Id.) Ultimately, the ALJ adopted Dr. Popov's RFC determination, but found a standing/walking limitation more restrictive than the one opined by Dr. Popov due to plaintiff's " allegations of pain with walking [and] overall mobility."  (AR 16; see also AR 15 (ALJ finding plaintiff is capable of " light work" and can " stand and walk up to 4 hours in an 8-hour day).) Thus, the ALJ did not ignore Dr. Popov's opinion and properly accepted it and included his limitations in the RFC. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008).
Thus, Disputed Issue Two does not warrant reversal of the Commissioner's decision.
III. Reversal is not warranted based on the ALJ's RFC determination and the hypothetical questions to the VE.
In Disputed Issue Three, plaintiff maintains that the " ALJ's RFC does not account for the limitation opined by Dr. Popov that [plaintiff] uses a cane that is permanent and medically necessary for balance, long distance, and stair climbing" and the " ALJ failed to mention that Plaintiff uses a cane . . . in the hypothetical questions to the [VE]." (Jt. Stip. 19, Jt. Stip. 20.)
Here, the ALJ did not err in omitting any functional limitations regarding use of an assistive device as the ALJ properly discounted plaintiff's opinion and properly assessed Dr. Popov's opinion, whose RFC determination did not include a specific limitation regarding cane use.
See Magallanes, 881 F.2d at 756-57. In other words, because the Court finds that there is substantial evidence in the record as a whole to support the ALJ's credibility determination and evaluation of the medical evidence, substantial evidence also supports the ALJ's decision to exclude plaintiff's cane limitation in her RFC assessment and in the hypotheticals posed to the VE. See, e.g., Elletson v. Astrue, 319 Fed.Appx. 621, 622-23 (9th Cir. 2009) (RFC determination and hypothetical posed to VE were proper because the ALJ's determination that plaintiff " has an unlimited capacity to reach" was supported by substantial evidence).
Further, and in any event, assuming the ALJ committed error in failing to account for plaintiff's cane use in her RFC determination and hypotheticals to the VE, the Court finds any error in the ALJ's Step Five determination is harmless. During the administrative hearing, in response to the ALJ's hypothetical, the VE testified that plaintiff is capable of performing the positions of assembler and nut sorter as reflected in the Dictionary of Occupational Titles (" DOT") as DOT 734.687-018 and DOT 521.687-086. (AR 19, AR 66.) Both positions require only a strength level of sedentary work, which " involves sitting most of the time, but may involve walking or standing for brief periods of time" and precludes balancing. See DOT 734.687-018, 1991 WL 679950 (description of " assembler" position); DOT 521.687-086, 1991 WL 674226 (description of " nut sorter" position); 20 C.F.R. 416.967(a) (defining " sedentary work"). Thus, any error committed by the ALJ in her Step Five determination is harmless as the outcome would have been the same. See Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006) (holding that harmless errors are those that are inconsequential to the ultimate non-disability determination); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (" A decision of the ALJ will not be reversed for errors that are harmless.").
Thus, Disputed Issue Three does not warrant reversal of the Commissioner's decision.
IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice.
In accordance with the Order Affirming Decision of Commissioner filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is affirmed and this action is dismissed with prejudice.