Poole v. Commissioner of Social Security

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”).^[1] Plaintiff filed a motion for summary judgment, which defendant opposed while simultaneously filing a cross-motion for summary judgment. (ECF Nos. 14, 15.) No reply brief was filed by plaintiff.

         For the reasons discussed below, the court DENIES plaintiff’s motion for summary judgment, GRANTS the Commissioner’s cross-motion for summary judgment, and enters judgment for the Commissioner.

         I. BACKGROUND

         Plaintiff was born on February 1, 1964; she has a high school education; her previous occupation was a certified court reporter; and she last worked on August 13, 2004.^[2](Administrative Transcript (“AT”) 49-50, 203.) Plaintiff applied for DIB on October 11, 2011, alleging that her disability began on August 13, 2004, and that she was disabled due to cervical disc disorder, migraines, and bursitis in her hips.^[3] (AT 203, 234.) After plaintiff’s application was denied initially and upon reconsideration, she requested a hearing before an administrative law judge (“ALJ”), which took place on July 23, 2013. (AT 47, 136-48, 149.) In a decision dated September 3, 2013, the ALJ found plaintiff not disabled. (AT 15-32.) The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied plaintiff’s request for review on February 18, 2015. (AT 1-6.) Thereafter, plaintiff filed this action in federal district court on April 21, 2015, to obtain judicial review of the Commissioner’s final decision. (ECF No. 2.)

         II. ISSUES PRESENTED

         Plaintiff raises the following issues: (1) whether the ALJ improperly assessed plaintiff’s residual functional capacity (“RFC”) by improperly weighing the medical opinion evidence in the record; (2) whether the ALJ relied upon inadequate testimony from the vocational expert; and (3) whether the ALJ improperly discounted plaintiff’s testimony regarding the intensity, persistence, and limited effects of her symptoms.

         III. LEGAL STANDARD

         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) (citation 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).

         IV. DISCUSSION

         A. Summary of the ALJ’s Findings

         The ALJ evaluated plaintiff’s entitlement to disability benefits pursuant to the Commissioner’s standard five-step analytical framework.^[4] At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity between August 13, 2004, the alleged onset date, and March 31, 2008, the date last insured. (AT 20.) At step two, the ALJ determined that plaintiff had the following severe impairments: “degenerative disc disease of the cervical spine with radiculopathy, migraines, and chronic pain.” (Id.) However, at step three, the ALJ determined that the plaintiff did not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.)

         Before proceeding to step four, the ALJ assessed plaintiff’s RFC as follows:

After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except that the claimant can lift and carry ten pounds both occasionally and frequently, can sit, stand and/or walk for six hours in an eight-hour day, can occasionally climb, can frequently balance, can occasionally stoop, kneel, crouch and/or crawl. She can frequently, (but not constantly or repetitively), reach, handle, finger, and feel with the bilateral upper extremities.

(AT 21.)

         At step four, the ALJ found that plaintiff was unable to perform any past relevant work through the date last insured. (AT 24.) However, at step five, the ALJ found that considering plaintiff’s age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that the claimant could have performed through the date last insured. (Id.)

         Accordingly, the ALJ concluded that the plaintiff had not been under a disability from August 13, 2014, the alleged onset date, through March 31, 2008, the date last insured. (AT 28.)

         B. Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

         1. Whether the ALJ Improperly Assessed the Medical Opinion Evidence When Determining Plaintiff’s RFC

         First, plaintiff argues that the ALJ erred in considering and weighing the medical opinions of Dr. Duffy, Dr. Kimble, Dr. Champlin, Dr. Jaojoco, and Nurse Practitioner Mullen.

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician’s opinion carries more weight than an examining physician’s opinion, and an examining physician’s opinion carries more weight than a non-examining physician’s opinion. Holohan, 246 F.3d at 1202.

         To evaluate whether an ALJ property 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 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for “specific and legitimate” reasons. 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 (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)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157, ^[5] except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (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, by itself, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

         a. Dr. Duffy and Dr. Kimble

         Plaintiff argues that the ALJ erred by failing to properly incorporate into his RFC determination or otherwise reconcile the limitations opined by Dr. Duffy and Dr. Kimble despite giving those physicians’ opinions significant and considerable weight, respectively. For the reasons discussed below, the undersigned finds no error in the ALJ’s consideration of Dr. Duffy’s and Dr. Kimble’s opinions.

         After completing an MRI scan of plaintiff on September 9, 2003, which found plaintiff had “reversed lordosis and mild annular bulges at ¶ 4-5, C5-6, and C6-7, ” Dr. Duffy completed an attending physician’s statement (“APS”) dated October 28, 2003. (AT 305-09.) Dr. Duffy indicated that the current and planned treatment would be conservative, and restricted plaintiff from performing repetitive motions in the neck and upper extremities and prolonged reading, noting that plaintiff’s headaches made work and concentration difficult. (AT 305-06.) Dr. Duffy opined that plaintiff could not work in another occupation due to her pain and headaches. (AT 306.) On June 11, 2004, Dr. Duffy opined that plaintiff could work part-time. (AT 300.) In a second APS dated December 7, 2004, Dr. Duffy found that plaintiff could not perform her work as a court reporter as of August 1, 2004, basing his determination on plaintiff’s “inability to transcribe” as a result of her impairments. (AT ...