Fabrizio v. Astrue

Filing 21

ORDER: IT IS ORDERED AFFIRMING the decision of the Commissioner denying disability benefits. The Clerk shall enter final judgment. Signed by Judge Frederick J Martone on 8/21/2012. (LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard K. Fabrizio,

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Plaintiff,

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vs.

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Michael J. Astrue,
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Defendant.
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CV 11-02147-PHX-FJM
ORDER

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Plaintiff appeals from the Administrative Law Judge's ("ALJ") decision to deny his

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application for social security disability benefits. We have before us plaintiff's opening brief

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(doc. 11), defendant's response (doc. 14), and plaintiff's reply (doc. 20).

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A court may set aside a denial of benefits "only if it is not supported by substantial

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evidence or if it is based on legal error." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002) (citation omitted). "Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be

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upheld." Id. (citation omitted). We may only affirm the ALJ on a ground upon which she

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relied. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

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I

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Plaintiff was born in 1963. He previously worked as an auto body technician, but

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stopped working due to panic attacks. Plaintiff submitted an application for disability

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benefits on August 6, 2008, alleging an onset date of December 1, 2007. His application was

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initially denied. The ALJ held a hearing on July 13, 2010, at which the plaintiff and a

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vocational expert ("VE") testified. The ALJ denied plaintiff's application on October 12,

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2010. The Appeals Council denied plaintiff's request for review on September 1, 2011,

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rendering the ALJ's decision final.

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The ALJ followed the Social Security Act's five-step procedure to determine whether

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plaintiff is disabled. See 20 C.F.R. § 416.920(a)(4). First, the ALJ determined that plaintiff

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meets the status requirements of the Social Security Act and had not engaged in substantial

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gainful activity since the date of alleged onset. At step two, the ALJ found that plaintiff has

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the severe impairment of mood disorder/schizoaffective disorder. Next, the ALJ determined

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at step three that plaintiff does not have an impairment or combination of impairments that

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meets or equals a listed impairment. The ALJ proceeded to calculate the plaintiff's residual

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functional capacity ("RFC"). She found that plaintiff has the RFC to perform a full range of

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work at all exertional levels, but was restricted to performing simple and routine work with

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minimal interpersonal contact. Based on this RFC, the ALJ concluded at step four that the

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plaintiff is unable to perform his past relevant work.

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The ALJ consulted a VE at the hearing. The VE testified that a person limited to

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plaintiff's RFC could perform the jobs of a janitor, assembly worker, and quality control

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inspector. The ALJ concluded at step five that plaintiff is not disabled because there are a

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significant number of jobs in the national economy that he can perform.
II

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Plaintiff argues that the ALJ erred in assigning weight to the opinions of Nurse

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Practitioner ("NP") Kathe Reitman, Dr. Stephen Fair, and Dr. James Huddleston.

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First, plaintiff argues the ALJ erred by giving NP Reitman's diagnosis of bipolar

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disorder and opinions about plaintiff's functional capacity little weight.1 NP Reitman first

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completed a medical assessment of plaintiff's ability to perform work-related activities in

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Plaintiff does not, however, argue that it was error for the ALJ to conclude that
bipolar disorder was not a severe impairment.
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March 2009. NP Reitman opined that plaintiff was severely impaired in the areas of

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constriction of interests and performance of complex tasks. Moreover, NP Reitman found

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that plaintiff was moderately severely impaired in the areas of ability to relate to others,

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restriction of daily activity, personal habits, ability to respond appropriately to co-workers,

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respond to work pressures, and perform varied tasks. She also concluded that plaintiff was

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moderately impaired in his ability to understand, carry out, and remember instructions. Tr.

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at 282-83. A second evaluation completed in September 2009 is similar, except that NP

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Reitman opined that plaintiff's ability to respond appropriately to co-workers was severely

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impaired. Tr. at 306-07.

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Opinions of treating doctors are generally favored over non-treating doctors. Orn, 495

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F.3d at 631. As the ALJ correctly noted, however, a nurse practitioner is not an acceptable

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medical source. SSR 06-03p, 2006 WL 2329939 at *2 (Aug. 9, 2006). Only acceptable

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medical sources are considered treating sources whose medical opinions can establish the

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existence of an impairment. Id. Thus, NP Reitman's diagnosis of plaintiff cannot establish

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the existence of an impairment. However, information from "other" medical sources -

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including nurse practitioners - may "provide insight into the severity of the impairment(s) and

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how it affects the individual's ability to function." Id. If the ALJ wishes to disregard NP

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Reitman's findings, she must give specific reasons that are germane to NP Reitman for doing

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so. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). One

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example of a germane reason to discount the opinion of an "other" medical source is when

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that opinion conflicts with medical evidence. See Lewis v. Apfel, 236 F.3d 503, 511 (9th

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Cir. 2001).

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Here, the ALJ did not err by giving little weight to NP Reitman's references

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throughout her treatment notes to bipolar disorder. Not only did the ALJ conclude that NP

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Reitman was not an acceptable medical source, she concluded that the weight of the medical

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evidence rejected a bipolar disorder diagnosis. Dr. Huddleston examined plaintiff in

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December 2008 and diagnosed him with "Mood Disorder NOS," noting that the symptoms

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reported by plaintiff were "inconsistent with diagnosis of a bipolar disorder." Tr. at 238-39.
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Dr. William Snyder reviewed the record in January 2009, concluding that the evidence

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supported a diagnosis of "Mood Disorder NOS." Tr. at 256. And although the ALJ gave

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weight to the diagnosis of panic attacks and anxiety by plaintiff's treating primary care

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physician, Dr. McCarty, the ALJ rejected his later diagnosis of bipolar disorder as

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inconsistent with the weight of the other medical evidence in the record. Tr. at 23-24.

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The ALJ also gave several germane reasons for giving little weight to NP Reitman's

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opinions regarding plaintiff's ability to function. Specifically, she noted that NP Reitman's

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conclusions that plaintiff was severely or moderately severely impaired in several areas of

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functioning conflicted with plaintiff's ability to live alone, maintain his own household,

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obtain his own food, and solicit yard work. The ALJ also noted several periods of time

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where plaintiff was only being treated by NP Reitman every three months, and noted that the

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latest treatment notes showed that some areas, such as showering and socialization had

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improved. Tr. at 24. The ALJ did not err in evaluating the opinions of NP Reitman, a non-

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acceptable medical source.

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Next, plaintiff argues that it was error for the ALJ to assign great weight to Dr. Fair's

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opinion, but leave some of his proposed limitations out of the RFC assessment without

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comment. Dr. Fair concluded that plaintiff was markedly limited in the ability to carry out

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detailed instructions, and was moderately limited in several areas, including maintaining

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concentration and interacting appropriately with others. Tr. at 218-19. Based on these

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limitations, Dr. Fair concluded that plaintiff "would be able to understand and remember

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simple tasks," "could handle simple work," but should have "limited contact with others."

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Tr. at 220. At the hearing, the ALJ asked the VE whether there was work available for

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plaintiff if he were "restricted to simple tasks in a routine work setting with limited contact

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with others" (defined as minimal interpersonal contact). Tr. at 47. The VE testified that the

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jobs of janitor, assembly worker, and quality control inspector were available. Tr. at 47.

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Plaintiff's lawyer asked the VE whether a person with all of the limitations noted by Dr. Fair

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in the first portion of his report could work, and the VE testified there were no jobs available.

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Tr. at 49-50. According to plaintiff, it was error for the ALJ to omit significant limitations
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recommended by Dr. Fair from the RFC assessment.

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We disagree with plaintiff's conclusion that several limitations proposed by Dr. Fair

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were omitted from the RFC assessment. Although Dr. Fair believed plaintiff had a number

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of areas of impaired functioning, he ultimately opined that - given these limitations - plaintiff

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could still "understand and remember simple tasks," "could handle simple work," but should

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have "limited contact with others." Tr. at 220. See also Tr. at 304 ("The claimant is able to

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perform simple, routine [work] in a setting with limited contact with others."). These

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limitations were all included in the ALJ's RFC assessment, which stated that plaintiff can

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"perform simple, routine work, but should be limited to minimal interpersonal contact [] in

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the workplace." Tr. at 19. This was the hypothetical the ALJ posed to the VE, who

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concluded based on that RFC that a number of jobs were available.

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Plaintiff argues that the ALJ erred in assigning Dr. Huddleston's opinion any weight.

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After interviewing plaintiff and administering tests, Dr. Huddleston invalidated the test

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results, as the discrepancy between the test results, plaintiff's conduct during the interview,

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and results of the Rey 15 Memory Test suggested to Dr. Huddleston that plaintiff was

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malingering. Accordingly, Dr. Huddleston did not provide any opinions regarding plaintiff's

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functional capacity. He did, however, conclude that plaintiff's symptoms were inconsistent

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with a diagnosis of bipolar disorder. Tr. at 238. This is the opinion that the ALJ gave

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"greater weight" to, because of its consistency with the other medical evidence. Tr. at 23.

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The ALJ did not err in assigning some weight to Dr. Huddleston's opinion.

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III

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Next, plaintiff argues that the ALJ failed to articulate sufficient reasons for rejecting

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his subjective complaints regarding the severity of his symptoms. The evaluation of a

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claimant's subjective symptoms requires a two-step analysis. Vasquez v. Astrue, 572 F.3d

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586, 591 (9th Cir. 2009). First, the ALJ must decide if the plaintiff "presented objective

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medical evidence of an underlying impairment which could reasonably be expected to

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produce the pain or other symptoms alleged." Id. (citation omitted). If there is, then the ALJ

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can only reject the plaintiff's testimony "upon (1) finding evidence of malingering, or (2)
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expressing clear and convincing reasons for doing so." Benton ex rel. Benton v. Barnhart,

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331 F.3d 1030, 1040 (9th Cir. 2003). When weighing credibility, the ALJ can consider

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inconsistencies between plaintiff's testimony and his conduct, daily activities, and work

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record. Thomas, 278 F.3d at 958-59. "If the ALJ's credibility finding is supported by

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substantial evidence in the record, we may not engage in second-guessing." Id. at 959.

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Here, the ALJ noted that plaintiff's symptoms, to the extent they were inconsistent

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with the RFC, were not credible. The ALJ discussed Dr. Huddleston's findings that plaintiff's

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comprehension, vocabulary, and memory appeared functional during the clinical interview,

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which did not comport with the scores during the memory testing. The ALJ then discussed

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the administration of the Rey 15 memory test, the results of which (when combined with the

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other findings), supported a theory of malingering, which undercut plaintiff's claims that he

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suffered from a learning disability. In addition, the ALJ found that plaintiff's self-care

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activities, efforts in managing his finances, and living alone were inconsistent with test

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results. Tr. at 22.

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The ALJ did not rest her entire credibility determination on a finding of malingering.

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She also noted that plaintiff has reported that his symptoms have improved with medicine,

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and noted that plaintiff admitted he was able to attend to his hygiene if needed (for example,

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if heading to a job interview). These reasons are supported by the record and are stated "with

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enough specificity to allow a reviewing court to confirm that the testimony was rejected on

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permissible grounds and not arbitrarily." Benton, 331 F.3d at 1041.

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IV

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Finally, plaintiff argues that the ALJ improperly discounted the third party statement

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given by plaintiff's mother. Lay testimony from a family member must be taken into

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account. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The ALJ must give

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germane reasons for discounting the testimony. Id. Here, the ALJ concluded that the

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statements given by plaintiff's mother were inconsistent with plaintiff's reported activities and

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with the objective medical evidence, and considered their close relationship and the mother's

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possible "biased motivation" to assist his application. Tr. at 24. The ALJ offered germane
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reasons for affording the mother's statements little weight. We conclude that based on the

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evidence in the record, the ALJ did not err in assessing the statements of claimant's mother.

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See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (not error to reject lay witness

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testimony, when ALJ found that statements were inconsistent with plaintiff's presentation to

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doctors and lay testimony possibly influenced by a desire to help based on the close

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relationship with plaintiff).
V

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In sum, we conclude that the ALJ's decision that plaintiff is not disabled is supported

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by substantial evidence in the record. Therefore, IT IS ORDERED AFFIRMING the

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decision of the Commissioner denying disability benefits. The Clerk shall enter final

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judgment.

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DATED this 21st day of August, 2012.

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