Furne v. Astrue

Filing 25

ORDER that the final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment in favor of Defendant and against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 8/24/11. (LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rodney Lee Furne, Plaintiff, 10 11 vs. 12 Michael J. Astrue, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV10-00908-PHX-NVW ORDER 15 16 Plaintiff Rodney Lee Furne seeks review, pursuant to 42 U.S.C. § 405(g), of the 17 administrative denial of his application for social security disability insurance benefits and 18 supplemental security income. Because the administrative law judge’s (“ALJ”) decision was 19 not based on legal error, the Commissioner’s decision will be affirmed. 20 I. Background 21 A. Procedural History 22 On June 24, 2005, Furne filed applications for Title II disability insurance benefits and 23 Title XVI supplemental security income, alleging a disability onset date of October 26, 2004. 24 His applications were denied initially and upon reconsideration. Furne had a hearing before 25 an ALJ on September 18, 2007, at which an impartial vocational expert testified. The ALJ 26 issued an unfavorable decision on October 25, 2007; the SSA Appeals Council denied 27 Furne’s subsequent request for review and the ALJ’s decision became the final decision of 28 the Social Security Commissioner. Pursuant to 42 U.S.C. §405(g), Furne sought judicial 1 review of the ALJ’s decision in this Court. 2 B. 3 Furne was born on October 25, 1955. He was 52 years old at the time of the ALJ’s 4 decision. He has past relevant work experience as a pari-mutuel cashier, slot machine 5 assembler, heating and air conditioning technician, and warehouse hand. Furne is a high 6 school graduate and has an associate’s degree in electronics. He also has vocational 7 certificates in accounting and refrigeration. Factual Background 8 Furne suffers from degenerative disc disease of the lumbar spine, recurrent hernia, 9 gastrointestinal reflux disorder, and high blood pressure. Furne alleges that his lower back 10 pain, which also radiates through his right hip and down the back of his right leg, is his most 11 severe and disabling impairment. His back pain stems from a work-related injury he 12 sustained in 1998 while moving a slot machine for repair, which was aggravated on 13 November 30, 2001, when Furne re-injured his back moving a machine at work. He has not 14 worked since the November 30, 2001 injury. 15 Furne claims that his back pain makes it difficult for him to walk or climb stairs 16 easily, and that he can only stand for about thirty minutes before needing to sit and rest. He 17 also states that his back pain causes him to spend about a third of the workday resting. Furne 18 takes medication, receives trigger point injections and radio frequency ablations, rests, and 19 uses a self-obtained cane to alleviate his back pain. Furne’s recurrent hernias have been 20 surgically repaired and his gastrointestinal reflux disorder has improved with treatment and 21 his cessation of smoking. 22 II. Standard of Review 23 The Court will uphold the Commissioner’s final decision if it is supported by 24 substantial evidence and not based on legal error. See 42 U.S.C. § 405(g) (“findings of the 25 Commissioner of Social Security as to any fact, if supported by substantial evidence, shall 26 be conclusive”); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The substantial 27 evidence standard requires the evidence to “be more than a mere scintilla but not necessarily 28 a preponderance.” Tomassetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations -2- 1 omitted). The Court must consider the “entire record as a whole and may not affirm simply 2 by isolating a ‘specific quantum of supporting evidence.’” Orn v. Astrue, 495 F.3d 625, 630 3 (9th Cir. 2007) (citations omitted). 4 The Court will also review only the issues raised by the party challenging the ALJ’s 5 decision. See Lewis v. Apfel, 235 F.3d 503, 517 n.13 (9th Cir. 2001). The ALJ’s decision 6 will be upheld where the “evidence is susceptible to more than one rational interpretation” 7 and the ALJ’s decision is supported by one such rational interpretation. Orn, 495 F.3d at 8 630. The court will not reverse for harmless error, which exists “when it is clear from the 9 record that ‘the ALJ’s error was inconsequential to the ultimate nondisability 10 determination.’” Tomassetti, 533 F.3d at 1038 (citations omitted). 11 If the ALJ’s decision is not supported by substantial evidence or suffers from legal 12 error, the court has discretion to reverse and remand either for an award of benefits or for 13 further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); 14 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for further proceedings 15 is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 16 587, 593 (9th Cir. 2004). “Conversely, where the record has been developed fully and further 17 administrative proceedings would serve no useful purpose, the district court should remand 18 for an immediate award of benefits.” Id. (citing Smolen, 80 F.3d at 1292). 19 III. Analysis 20 To determine whether a claimant is disabled, the ALJ conducts a five-step analysis 21 as outlined in 20 C.F.R § 404.1520(a)(4). At step one, the ALJ found that Furne has not 22 engaged in substantial gainful activity since his alleged disability onset date. At step two, 23 the ALJ found that Furne had the following severe impairments: recurrent hernia, 24 degenerative disc disease of the lumbar spine causing chronic low back pain, gastroesphageal 25 reflux disease, and high blood pressure. At step three, the ALJ found that Furne did not have 26 an impairment or combination of impairments that met or medically equaled one of the listed 27 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d), 28 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). Furne does not allege error with -3- 1 respect to the ALJ’s findings in steps one, two and three. 2 After step three, the ALJ assessed Furne’s residual functional capacity and found he 3 could perform a range of light work, including: lift or carry ten pounds frequently and twenty 4 pounds occasionally; occasionally climb, stoop, kneel, crouch and crawl; and sit, stand, or 5 walk for about six hours in an eight-hour workday with a sit/stand option. At step four, the 6 ALJ determined that Furne has the residual functional capacity to perform the requirements 7 of his past relevant work, specifically as a ticket cashier and an electronics test technician, 8 positions which only require a light level of exertion. Finally, at the fifth step, the ALJ 9 determined that even if Furne would not be able to perform his past relevant work, a finding 10 of “not disabled” would nonetheless be required under Medical-Vocational Rule 202.21. 11 Furne alleges the ALJ erred by failing to properly assess Furne’s residual functional capacity, 12 properly weigh the medical source opinion evidence and Furne’s credibility. 13 A. 14 The ALJ engages in a two-step analysis when evaluating a claimant’s testimony as 15 to subjective pain or other symptoms. See Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 16 2009). The ALJ must first determine that “the claimant has presented objective medical 17 evidence of an underlying impairment which could reasonably be expected to produce the 18 pain or other symptoms alleged” and that the claimant is not malingering. Id. If the ALJ 19 finds the claimant’s testimony is not credible, he must provide specific, clear and convincing 20 reasons for so finding. Id. Further, if the ALJ’s “credibility finding is supported by 21 substantial evidence in the record, [the reviewing court] may not engage in second-guessing.” 22 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Furne’s Credibility and Subjective Pain Testimony 23 When evaluating the intensity and persistence of a claimant’s symptoms, the ALJ 24 considers a broad range of factors in addition to the claimant’s own statements regarding the 25 limitations caused by her symptoms. These factors include the claimant’s daily activities, 26 effectiveness of any medication or treatment in controlling the symptoms, objective medical 27 evidence of the symptoms, and statements by treating and non-treating sources about how 28 a claimant’s symptoms affect his ability to work. See 20 C.F. R. §404.1529(c). With respect -4- 1 to daily activities, a claimant is not required to be “utterly incapacitated” to be found 2 disabled. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, if a claimant is 3 able to 4 5 perform household chores and other activities that involve many of the same physical tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that [a claimant’s] pain does not prevent [the claimant] from working...a specific finding as to this fact may be sufficient to discredit an allegation of disabling excess pain. (Id.) 6 Further, “[w]hile subjective pain testimony cannot be rejected on the sole ground that it is 7 not fully corroborated by objective medical evidence, the medical evidence is still a relevant 8 factor in determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 9 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 10 The ALJ considered the evidence and found that while Furne had produced objective 11 medical evidence of an impairment which could reasonably produce his alleged symptoms, 12 his “statements concerning the intensity, persistence and limiting effects of these symptoms 13 are not entirely credible.” (Tr. 29.) The ALJ did not simply omit reference to Furne’s pain 14 symptoms or rely solely on objective medical evidence in finding Furne less than credible. 15 Rather, he acknowledged the symptoms Furne described, but went on to give specific reasons 16 based on the evidence in record for discounting Furne’s credibility as to the severity and 17 disabling affect of his pain. First, the ALJ found that Furne’s statements regarding the extent 18 of his pain were inconsistent with much of the objective medical evidence presented, and that 19 clinical signs and diagnostic findings did not show Furne’s condition to be as disabling as 20 he claimed. For example, the ALJ pointed to examinations of Furne’s lumbar spine showing 21 that it “is normal without muscle spasms, tenderness or step offs . . . has a normal range of 22 motion with no sign of a nerve or spinal cord tension or compression . . . [and] has normal 23 muscle strength, tone and size[.]” (Tr. 29.) The ALJ also pointed to x-rays of Furne’s spine 24 showing only mild abnormalities. (Id.) Second, the ALJ noted that Furne’s pain had been 25 treated conservatively, with injenctions and medication instead of surgery. Finally, the ALJ 26 also credited evidence that treatment had been successful in controlling Furne’s symptoms, 27 weighing against Furne’s credibility regarding the severity and disabling affect of his pain. 28 -5- 1 2 Accordingly, the ALJ did not err in discounting Furne’s subjective pain testimony. B. Residual Functional Capacity Assessment and Medical Opinion Evidence 3 Furne alleges that the ALJ did not properly weigh the various medical source 4 opinions in the record. When presented with conflicting medical opinions, the ALJ must 5 make credibility determinations and resolve any conflicts or ambiguities. See Benton v. 6 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). In reviewing the ALJ’s reasoning, the Court 7 is “not deprived of [its] faculties for drawing specific and legitimate inferences from the 8 ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 9 In weighing medical source opinions in Social Security cases, the Ninth Circuit 10 distinguishes among three types of physicians: (1) treating physicians, who actually treat the 11 claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non- 12 examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 13 821, 830 (9th Cir. 1995). Generally, more weight should be given to the opinion of a treating 14 physician than to the opinions of non-treating physicians. Id. Where a treating physician’s 15 opinion is not contradicted by another physician, it may be rejected only for “clear and 16 convincing” reasons, and where it is contradicted, it may not be rejected without “specific 17 and legitimate reasons” supported by substantial evidence in the record. Lester, 81 F.3d at 18 830. Moreover, the Commissioner must give weight to the treating physician’s subjective 19 judgments in addition to his clinical findings and interpretation of test results. Id. at 832-33. 20 Further, an examining physician’s opinion generally must be given greater weight 21 than that of a non-examining physician. Id. at 830. As with a treating physician, there must 22 be clear and convincing reasons for rejecting the uncontradicted opinion of an examining 23 physician, and specific and legitimate reasons, supported by substantial evidence in the 24 record, for rejecting an examining physician’s contradicted opinion. Id. at 830-31. 25 The opinion of a non-examining physician is not itself substantial evidence that 26 justifies the rejection of the opinion of either a treating physician or an examining physician. 27 Id. at 831. “The opinions of non-treating or non-examining physicians may also serve as 28 substantial evidence when the opinions are consistent with independent clinical findings or -6- 1 other evidence in the record.” Thomas, 278 F.3d at 957. Factors that an ALJ may consider 2 when evaluating any medical opinion include “the amount of relevant evidence that supports 3 the opinion and the quality of the explanation provided; the consistency of the medical 4 opinion with the record as a whole; [and] the specialty of the physician providing the 5 opinion.” Orn, 495 F.3d at 631. 6 Moreover, Social Security Rules expressly require a treating source’s opinion on an 7 issue of a claimant’s impairment be given controlling weight if it is well-supported by 8 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent 9 with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2). If a treating 10 source’s opinion is not given controlling weight, the weight that it will be given is 11 determined by length of the treatment relationship, frequency of examination, nature and 12 extent of the treatment relationship, relevant evidence supporting the opinion, consistency 13 with the record as a whole, and the source’s specialization. Id. 14 15 16 Finding that a treating physician’s opinion is not entitled to controlling weight does not mean that the opinion should be rejected: 20 [A] finding that a treating source medical opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to “controlling weight,” not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. §404.1527. . . . In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight. 21 Orn, 495 F.3d at 631-32 (quoting Social Security Ruling 96-2p). Where there is a conflict 22 between the opinion of a treating physician and an examining physician, the ALJ may not 23 reject the opinion of the treating physician without setting forth specific, legitimate reasons 24 supported by substantial evidence in the record. Id. at 632. 17 18 19 25 1. ALJ’s Weighing of the Medical Opinion Evidence 26 In assessing the weight to be accorded to the various medical opinions on record to 27 determine Furne’s residual functional capacity, the ALJ gave the opinions of “the 28 consultative examiners” and treating physicians Pitt, Cohen, and Borjeson substantial weight, -7- 1 finding their opinions to be consistent with the record and based on objective evaluations of 2 Furne. (Tr. 31.) The ALJ gave the state agency medical opinions “weight” because he found 3 them to be generally consistent with the whole record. (Id.) These physicians generally 4 assessed Furne as suffering from fewer limitations and retaining a relatively higher residual 5 functional capacity than the assessments of Drs. Simchak and Shafran. 6 Dr. Simchak, an examining physician, found Furne could lift or carry a maximum of 7 ten pounds and sit, stand or walk for less than two hours in an eight-hour workday. (Id.) Dr. 8 Shafran, a treating physician, found that Furne could lift or carry five pounds frequently and 9 ten pounds occasionally, and sit, stand, or walk for a total of three hours in an eight-hour 10 workday. (Id.) With respect to Drs. Simchak and Shafran, the ALJ stated that their opinions 11 were “given weight to the extent that it shows that the claimaint is not as limited in his 12 functional abilities as he claimed to be[,]” but that with respect to Furne’s overall functional 13 abilities, their opinion “do not appear to be based on independent clinical or laboratory 14 findings, but appear to be primarily reliant on [Furne’s] subjective complaints.” (Tr. 31-32.) 15 He accordingly gave the opinions of Drs. Simchak and Shafran “less weight with regard to 16 [Furne’s] overall functional ability.” (Tr. 32.) 17 Furne claims that the ALJ erred in weighing the medical opinions of Drs. Simchak and 18 Shafran. Although the ALJ identifies Dr. Simchak as a treating physician in his decision, and 19 Furne argued the same in his opening brief, the Commissioner’s response clarifies that Dr. 20 Simchak is not, in fact, a treating physician, but merely examined Furne on one occasion. 21 (Doc. 18 at 21.) In his reply, Furne acknowledges that Dr. Simchak is in fact a consultative 22 examiner, and not a treating physician. (Doc. 24 at 7.) Nonetheless, Furne continues to 23 allege that the ALJ’s failure to “identify any reason for giving [Dr. Simchak’s] opinion less 24 weight than other consultative examiner opinions” is error. (Id.) This argument is 25 unavailing. Although the ALJ did improperly identify Dr. Simchak as a treating physician 26 and analyzed his opinion under the treating physician rubric, the reasons he gave for giving 27 Dr. Simchak’s opinion less weight apply equally to justify giving Dr. Simchak’s opinion less 28 weight as a consultative examiner. The ALJ explained that Dr. Simchak’s opinion was given -8- 1 weight to show Furne was not as limited as he claimed to be, but was discounted as to 2 Furne’s overall functional ability because his opinion was based primarily on Furne’s 3 unsupported subjective claims instead of independent clinical or laboratory findings. (Tr. 31- 4 32.) He also explained that the other consultative examiners’ findings were more consistent 5 with the record and medical findings as a whole. These reasons are sufficient to explain why 6 Dr. Simchak’s opinion was given less weight than the opinion of the other consultative 7 examiners, who found Furne to have fewer limitations in his residual functional capacity. 8 Furne further alleges that the ALJ’s weighing of the medical opinion evidence is “self- 9 conflicting” because the ALJ found Furne to be more limited than some of the consultative 10 examiners opined. (Doc. 15 at 20-21.) However, Furne provides no authority to support his 11 argument that if the ALJ gives a consulting physician’s opinion substantial weight, he is 12 required to conform his residual functional capacity assessment exactly to the consulting 13 physician’s assessment. Rather, the ALJ is entitled to consider the record as a whole, give 14 weight to various medical opinions, and complete his residual functional capacity assessment 15 based on all of the evidence presented. In fact, the ALJ’s decision shows he credited several 16 medical opinions, not only the ones that assessed Furne with fewer limitations than the ALJ’s 17 ultimate residual functional capacity assessment. Indeed, the more limited assessment that 18 the ALJ ultimately adopted shows the ALJ considered the clinical and diagnostic findings 19 of some impairment in addition to the opinions of the various medical sources in reaching 20 his assessment. Accordingly, there is no reversible error on this basis. 21 Finally, Furne’s opening brief focuses primarily on why the ALJ erred in evaluating 22 Dr. Simchak’s opinion under the mistaken identification of Dr. Simchak as a treating 23 physician. In his reply brief, Furne acknowledges this mistake and attempts to shift focus 24 by alleging error in the evaluation of Dr. Shafran’s opinion, arguing that the ALJ set forth 25 “no reason” for rejecting Dr. Shafran’s opinion. (Doc. 24 at 7.) While this argument is 26 untimely, in any event, Dr. Shafran’s opinion was considered and given some weight. 27 Further, the ALJ did explain that he gave less weight to Dr. Shafran’s opinion with respect 28 to Furne’s overall functional abilities because his opinion was based primarily on Furne’s -9- 1 unsupported subjective claims, instead of independent clinical or laboratory findings. (Tr. 2 31-32.) There is therefore no reversible error with respect to the weighing of the medical 3 opinion evidence. 4 C. 5 Furne also alleges that the ALJ failed to comply with SSR 83-20 by not calling a 6 medial expert to aide in determining the onset date of Furne’s disability. However, because 7 the ALJ did not find that Furne had ever been disabled, there was no need to infer an onset 8 date of disability; there is no need to establish an onset date, and have that date confirmed 9 by a medical expert, where there is no finding of disability. See Sam v. Astrue, 550 F.3d 808, 10 809 (9th Cir. 2009) (noting that “SSR 83-20 does not require a medical expert where the ALJ 11 explicitly finds that the claimant has never been disabled”). Because Furne’s argument that 12 the ALJ failed to comply with SSR 83-20 by not calling a medical expert to determine the 13 disability onset date is explicitly foreclosed by Sam, there is no reversible error. Compliance with Social Security Ruling 83-20 14 D. 15 Furne also claims the ALJ erred in his evaluation of Furne’s ability to perform his past 16 relevant work. The ALJ found that Furne was capable of performing his past work as a ticket 17 cashier, which is unskilled work performed at a light exertional level, and as an electronics 18 test technician, which is semi-skilled work performed at a light exertional level. Past Relevant Work 19 During Furne’s hearing, the vocational expert testified regarding Furne’s ability to 20 perform past relevant work and the restraints of the sit/stand option. Specifically, the 21 vocational expert testified that “it’s possible that the mutual ticket cashier” work could be 22 performed with a sit/stand option, but that such work would “require an employer to provide 23 a stool and allow the person to use that. And that’s not always the case.” (Tr. 1039.) The 24 vocational expert accordingly noted that the ticket cashier position would require special 25 accommodations. (Id.) Further, the vocational expert stated that the ticket cashier position 26 was Furne’s only past relevant work that could be performed with a sit/stand option; “[n]one 27 of [Furne’s] other work could be performed” if a sit/stand option were required. (Id.) 28 The ALJ, in his residual functional capacity assessment of Furne, determined that - 10 - 1 Furne required a sit/stand option for future employment. It was therefore error for the ALJ 2 to state that Furne could perform his past relevant work as an electronics test technician, 3 since the vocational expert testified that a person who required a sit/stand option could not 4 perform the work of an electronics test technician. However, this error is harmless because 5 the ALJ identified other past relevant work, namely as a ticket cashier, which would be 6 available to Furne with a sit/stand option. Furne does not need to be capable of doing all of 7 his past relevant work in order to be found not disabled; there only needs to be some past 8 relevant work available to him to support a finding of non-disability at this step. See 20 9 C.F.R. §§ 404.1520(a)(4)(iv), 404.1560(b) (“If [claimant has] the residual functional capacity 10 to do [his] past relevant work . . . [claimant is] not disabled.”). The vocational expert’s 11 testimony that Furne’s work as ticket cashier could be performed with a sit/stand option, 12 coupled with the ALJ’s residual functional capacity assessment showing the nature of the 13 sit/stand option in finding that Furne could sit or stand for six hours in an eight hour 14 workday, is sufficient to support the ALJ’s finding that Furne could perform his past relevant 15 work. See Vertigan v. Halter, 260 F.3d 1044, 1051 (9th Cir. 2001) (citing Matthews v. 16 Shalala, 10 F.3d 678, 681(9th Cir. 1993)) (“The burden is on the claimant to prove that []he 17 cannot perform past relevant work.”). There was accordingly no reversible error at this step. 18 See Tomassetti, 533 F.3d at 1038 (noting an ALJ’s error is harmless and non-reversible when 19 it is “‘inconsequential to the ultimate nondisability determination’”) (internal citation 20 omitted). 21 22 23 24 25 IT IS THEREFORE ORDERED that the final decision of the Commissioner of Social Security is affirmed. IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant and against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this action. DATED this 24th day of August, 2011. 26 27 28 - 11 -

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