Ferkol v. Astrue

Filing 20

ORDER affirming the Commissioner's denial of benefits. Signed by Judge Frederick J Martone on 8/23/12. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security,
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Respondent.
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No. CV 11-01717-PHX-FJM

Mary Elizabeth Alongi Ferkol,

ORDER

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The court has before it petitioner's brief (doc. 15), respondent's opposition (doc. 16),
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and petitioner's reply (doc. 19). Petitioner filed an application for Disability Insurance
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Benefits and Supplemental Security Income in December 2007. Her application was denied
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initially and upon reconsideration by state agencies. An administrative law judge ("ALJ")
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with the Social Security Administration held a hearing in January 2010 and issued an
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unfavorable decision. The ALJ’s decision became the Commissioner’s final decision when
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the Appeals Council denied petitioner’s request for review.
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I
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We "disturb the denial of benefits only if the decision 'contains legal error or is not
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supported by substantial evidence.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
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2008) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable
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mind might accept as adequate to support a conclusion." Id. (internal quotation marks and
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citation omitted). The "evidence must be more than a mere scintilla but not necessarily a

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preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "Where evidence

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is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be

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upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). We must "review the

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administrative record as a whole, weighing both the evidence that supports and that which

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detracts from the ALJ's conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

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1995).

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Petitioner was born in 1958 and was 51 years old at the time of the hearing. She is

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a high school graduate and has previously worked as a cashier, waitress, and cafeteria

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manager. She alleges onset of disability on December 9, 2008.
II

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The ALJ followed the required five-step procedure in finding that petitioner was not

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disabled within the meaning of the Social Security Act. See 20 C.F.R. §§ 416.920(a),

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404.1520(a). In step one, the ALJ determined that petitioner had not performed substantial

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gainful activity since December 9, 2008. At step two, she concluded that petitioner was

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severely impaired as a result of pseudo seizures, osteoporosis, and degenerative disease in

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the lumbosacral area. At step three, the ALJ determined that petitioner's impairments did not

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meet or equal a listed impairment. Next, the ALJ assessed petitioner's residual functional

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capacity ("RFC") and found that petitioner could perform medium exertional work. At step

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four, she concluded that petitioner was able to perform past relevant work as a cashier and

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waitress. As a result, the ALJ determined that petitioner is not disabled. Petitioner alleges

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the ALJ erred by not finding her mental impairments severe, improperly rejecting her treating

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psychiatrist's assessment, improperly rejecting her treating physician's assessment, and failing

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to accept or reject the assessment of the state agency reviewing psychologist.

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III

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At step two, the ALJ concluded that petitioner's depression and anxiety were

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medically determinable, but not severe, impairments. Petitioner contends this was error

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because the ALJ relied on a prediction from March 2008 that petitioner's impairments would
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improve, failed to cite the record to support her conclusion, and made findings inconsistent

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with the record. But the ALJ's conclusion comes after a two-page summary of petitioner's

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history of depression and anxiety. This summary is fully supported by citations to the record

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and relies on much more evidence than the state psychologist's prediction. The conclusion

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specifically refers to the treating psychiatrist's assessment in January 2010 and explains why

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it is given little weight. Additionally, any error in the ALJ's finding on mental impairments

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at step two is harmless because the ALJ considered limitations posed by petitioner's mental

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impairments at step three. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (any error

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in neglecting to list bursitis at step two was harmless because ALJ extensively discussed

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bursitis at step four). The ALJ did not err by finding petitioner's mental impairments are not

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severe.

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IV

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"When evidence in the record contradicts the opinion of a treating physician, the ALJ

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must present 'specific and legitimate reasons' for discounting the treating physician's opinion,

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supported by substantial evidence." Bray v. Comm'r of Social Security Admin., 554 F.3d

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1219, 1228 (9th Cir. 2009). On the other hand, the ALJ "must present clear and convincing

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reasons for rejecting the uncontroverted opinion of a claimant's physician." Thomas v.

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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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In March 2008, state psychologist Dr. Goldberg found that petitioner had major

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depressive disorder and an anxiety-related disorder, but these severe impairments were not

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expected to last 12 months. Tr. at 383-88. He determined petitioner's limitations were mild.

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State psychologist Dr. Garland filled out a mental RFC in September 2008 and found

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petitioner not significantly limited or moderately limited in all categories. Tr. at 476-77.

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In November 2009, petitioner's treating psychiatrist, Dr. Papke, reported petitioner's

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symptoms were mild. Tr. at 610. But on January 12, 2010, Dr. Papke opined that petitioner

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had severe or moderately severe impairments in her ability to perform work-related activities.

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Tr. at 807-08. Petitioner argues that the ALJ erred by failing to provide clear and convincing

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reasons for rejecting Dr. Papke's assessment. Defendant contends that the lesser standard of
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"specific and legitimate reasons" applies and, in any event, the ALJ's reasons meet either

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standard. The court finds that the ALJ's rejection of Dr. Papke's opinion was supported by

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substantial evidence and reasons sufficient to meet either standard.

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The ALJ noted that Dr. Papke's assessment was a "change of trend." The January

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2010 opinion was contrary to Dr. Papke's own opinion from November 2009 and the

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assessments of Drs. Goldberg and Garland. Until January 2010, petitioner's symptoms

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appeared to be improving. Her anxiety decreased with treatment and medication, such as

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when she started taking Abilify in May 2009.

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The ALJ may "permissibly reject[ ] . . . check-off reports that [do] not contain any

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explanation of the bases of their conclusions." Crane v. Shalala, 76 F.3d 251, 253 (9th Cir.

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1996). "[W]hen evaluating conflicting medical opinions, an ALJ need not accept the opinion

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of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical

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findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Dr. Papke used a

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"check-the-box" form when she diagnosed petitioner with severe impairments. Her sparse

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comments on the form do not explain why she found petitioner's impairments severe when

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her symptoms had been mild merely two months before. "[T]he regulations give more

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weight to opinions that are explained than to those that are not." Holohan v. Massanari, 246

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F.3d 1195, 1202 (9th Cir. 2001). The report does not explain the bases of Dr. Papke's

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conclusions and therefore her opinion that petitioner was severely impaired could be rejected

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by the ALJ.

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V

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Petitioner contends that the ALJ erred in discounting her treating physician's

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assessment. On June 30, 2008, Dr. Sy filled out a check-the-box form assessing petitioner's

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ability to do work-related activities. She concluded that petitioner could not perform the full

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range of sedentary work. She reported petitioner's pain was moderately severe, but also

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noted that this degree of pain could not reasonably be expected to result from objective

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clinical or diagnostic findings. She wrote that petitioner's pain was "difficult to assess" as

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the MRI was "only mildly abnormal." Tr. at 422.
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The ALJ presented clear and convincing reasons for discounting Dr. Sy's opinion.

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The opinion appears to be based on plaintiff's self-reported pain and is at odds with objective

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clinical findings. "[A]n ALJ may discredit treating physicians' opinions that are conclusory,

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brief, and unsupported by the record as a whole . . . or by objective medical findings."

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Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

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The ALJ properly discounted plaintiff's testimony regarding the severity of her

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symptoms. Plaintiff's daily activities, as reported by her neighbor and herself, were

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inconsistent with allegations of disabling impairments. "[I]f, despite his claims of pain, a

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claimant is able to perform household chores and other activities that involve many of the

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same physical tasks as a particular type of job, it would not be farfetched for an ALJ to

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conclude that the claimant's pain does not prevent the claimant from working." Fair v.

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Bowen, 885 F.2d 597, 603 (9th Cir. 1989). "An ALJ may reject a treating physician's

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opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly

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discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008).

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In addition, an unexplained failure to follow a prescribed course of treatment warrants

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discrediting an allegation of disabling pain. Fair, 885 F.2d at 603. There is substantial

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evidence in the record that plaintiff failed to take her prescribed medications. Dr. Sy's

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opinion here was conclusory, based largely on self-reported pain, and at odds with the

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objective medical findings. The ALJ did not err in giving minimal weight to the opinion of

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Dr. Sy.

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VI

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In March 2008, state psychologist Dr. Goldberg diagnosed petitioner with depression

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and anxiety and found her to have only mild functional limitations. Tr. at 393-95. Dr.

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Garland, another state agency reviewing psychologist, examined petitioner on

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reconsideration in September 2008. Dr. Garland found that she had medically determinable

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impairments which did not satisfy the criteria of any listing. When assessing functional

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limitations, he found them to be mild or moderate. Tr. at 490. He noted that petitioner had

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claimed her mental attitude worsened since March, and she had been diagnosed with
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polysubstance abuse, major depressive disorder, and panic disorder without agoraphobia, but

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concluded that petitioner could meet the basic mental demands of work on a sustained basis.

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Tr. at 476-78, 492. Petitioner faults the ALJ for neither accepting nor rejecting Dr. Garland's

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opinion. She contends that the error was not harmless because the vocational expert testified

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that the limitations assessed by Dr. Garland would preclude work.

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After reviewing the opinions of Dr. Sy and Dr. Goldberg, the vocational expert

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testified that a person with the limitations assessed by these doctors could perform sedentary

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work or past relevant work as a cashier or waitress. Tr. at 69-76. Petitioner's lawyer then

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asked the ALJ to review Dr. Garland's mental RFC. The ALJ appeared to summarize the

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report, then asked the vocational expert whether this report, combined with Dr. Sy's report,

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changed the expert's opinion. Tr. at 77. The vocational expert testified that a person with

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these limitations could not perform past relevant work or any other work. Tr. at 77-78.

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Upon close reading of the transcript and Dr. Garland's report, it becomes clear that the

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part of Dr. Garland's report read by the ALJ was a summary of Dr. Sy's opinion. Dr. Garland

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mentioned Dr. Sy's conclusions but did not adopt them. In fact, he came to the opposite

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conclusion by determining that petitioner could work. Tr. at 478. Any conclusions Dr. Sy

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made about petitioner's mental or psychological ability to work do not deserve as much

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weight as Dr. Garland's conclusions, as Dr. Sy specializes in osteopathy while Dr. Garland

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specializes in psychology. 20 C.F.R. § 404.1527(c)(5).

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If the ALJ had accurately read Dr. Garland's conclusions and accepted them, it would

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have provided more support for finding the petitioner not disabled. If the vocational expert

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had heard and accepted an accurate summary of Dr. Garland's findings, he would not have

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found petitioner to be precluded from all work.

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misunderstanding was the same as if the ALJ had rejected Dr. Garland's opinion. It was not

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mentioned in the ALJ's opinion and was not used as support by either the vocational expert

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or the ALJ for a finding of no disability. Any error was therefore harmless. See McLeod v.

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Astrue, 640 F.3d 881, 888 (9th Cir. 2011).

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VII
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The practical effect of the ALJ's

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Based on the foregoing, we conclude that the ALJ’s determination that plaintiff is not

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disabled, and therefore not eligible for benefits, is supported by substantial evidence in the

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record. Accordingly, IT IS ORDERED AFFIRMING the Commissioner's denial of

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benefits.

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DATED this 23rd day of August, 2012.

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