Johnson v. Astrue

Filing 16

ORDER AFFIRMING the decision of the Commissioner denying disability benefits. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 10/11/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of Social)
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Security Administration,
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Defendant.
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Debra Lee Johnson,

No. CV 12-00434-PHX-FJM
ORDER

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The court has before it plaintiff's opening brief (doc. 13), defendant's opposition to
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plaintiff's opening brief (doc. 14), and plaintiff's reply (doc 15). Plaintiff filed an application
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for Disability Insurance Benefits in 2009. Her application was denied initially and upon
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reconsideration and she requested a hearing. An administrative law judge ("ALJ") with the
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Social Security Administration held a hearing on March 7, 2011, and issued an unfavorable
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decision. The ALJ's decision became the Commissioner's final decision when the Appeals
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Council denied plaintiff's request for review.
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Plaintiff was born in 1953 and was 56 years old at the date of her alleged onset of
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disability on July 15, 2009. She has a high school education and previously worked as an
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office coordinator, switchboard operator, and internal customer service representative. She
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was fired from her last job for yelling at another employee.
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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. § 404.1520(a). At

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step one, the ALJ determined that plaintiff has not performed substantial gainful activity

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since July 15, 2009. The ALJ found at step two that plaintiff's morbid obesity, diabetes,

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polymyalgia rheumatica, arthritis, pain in upper extremities, neck, back, and hips, and post

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right knee replacement surgery were severe impairments. But at step three the ALJ found

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that plaintiff's impairments did not meet or equal a listed impairment. Next, the ALJ assessed

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plaintiff's residual functional capacity ("RFC") and found that plaintiff could perform a

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limited range of sedentary work. The ALJ found at step four that plaintiff is capable of

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performing her past relevant work. As a result, the ALJ concluded that she is not disabled.

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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).

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II

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"[W]here the record includes objective medical evidence establishing that the claimant

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suffers from an impairment that could reasonably produce the symptoms of which he

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complains, an adverse credibility finding must be based on 'clear and convincing reasons.'"

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Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ

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found that plaintiff's impairments could reasonably be expected to produce the symptoms

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alleged. However, he found her statements concerning the intensity, persistence, and limiting

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effects not credible. An ALJ's credibility determination is entitled to deference. Lingenfelter

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v. Astrue, 504 F.3d 1028, 1044 (9th Cir. 2007).

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determination "based on contradictory or ambiguous evidence." Johnson v. Shalala, 60 F.3d
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We will not reverse a credibility

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1428, 1434 (9th Cir. 1995). In weighing credibility, the ALJ may consider failures to seek

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treatment or follow a prescribed course of treatment, inconsistencies in testimony or between

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testimony and conduct, and daily activities. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir.

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2007).

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An unexplained failure to seek treatment or to follow a prescribed course of treatment

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may support a conclusion that plaintiff is not credible. Id. at 637. Despite testifying that she

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is frequently in great pain, there is no indication that plaintiff has ever taken prescription

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medicine for pain and no explanation for why she would not do so or seek other forms of

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treatment for her pain. See, e.g., Tr. at 217, 239, 322. This diminishes plaintiff's credibility.

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One of plaintiff's main activities is making greeting cards, a job which requires great

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manual dexterity. The ALJ found inconsistencies between plaintiff's testimony and conduct.

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She testified that she is losing strength in her arms and even answering the phone causes

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pain, yet she also said that she makes greeting cards daily. The ALJ's determination that this

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testimony is inconsistent is entitled to deference.

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Plaintiff at first testified that she left her last job because she could not drive to work.

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Upon questioning, though, she admitted that she was fired from that position for yelling at

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a coworker. She did not lose her job or have to quit because of her impairments. She also

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continued to look for work after her alleged onset date. While her long work history supports

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her credibility, being fired and looking for work after the onset date offset this history. See

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Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998).

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Daily activities may be grounds for an adverse credibility determination if they

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contradict plaintiff's other testimony or meet the threshold for transferable work skills. Orn,

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495 F.3d at 639. The ALJ determined that plaintiff "lives alone and her ability to perform

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activities of daily living are [sic] for the most part normal." Tr. at 26. She goes to a social

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group regularly to make greeting cards for charity. She drives, goes grocery shopping, does

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light housework, cares for her cats, reads, watches television, and makes greeting cards. Her

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activity of making cards is not entirely consistent with her testimony about losing strength

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in her arms, as noted above. On the other hand, the ALJ did not make specific findings that
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plaintiff's activities involve transferable skills or that she spends a "substantial" part of her

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day engaged in such activities. Therefore, daily activities can form the basis of an adverse

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credibility determination only to the extent they are inconsistent with plaintiff's other

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testimony. If there was further reliance on daily activities to detract from her credibility it

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would have been harmless because substantial evidence supports the ALJ's conclusion on

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credibility. Carmickle, 533 F.3d at 1162-63.

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Plaintiff received unemployment benefits in 2008 and 2009, which in some cases can

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negatively impact credibility. See Carmickle, 533 F.3d at 1161-62. But here the benefits

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were received before her alleged disability onset date. And her testimony was consistent –

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she stated that her current source of income was savings, and later testified that she had

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received unemployment benefits in the past. Tr. 39-40, 50-51. To the extent the ALJ relied

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on her receipt of benefits or an apparent inconsistency about benefits in discounting her

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credibility, the error is harmless.

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The ALJ mentioned that although no assistive device was prescribed, plaintiff

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appeared at the hearing with a walker. Plaintiff truthfully told the ALJ that it had not been

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prescribed. While her physicians were aware of it, there is no evidence they told her not to

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use it or stated that it was unnecessary. Plaintiff testified that she uses her walker every time

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she leaves her house but did not say that she was unable to walk without it. Cf. Verduzco

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v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (claimant used cane, but two doctors

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specifically noted that he did not need such a device, and at the hearing he was able to

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quickly stand and retrieve his wallet from his back pocket without assistance or apparent

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discomfort). Her use of a walker without a showing of medical necessity is suspicious. The

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ALJ's determination of plaintiff's credibility is supported by substantial evidence.

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III

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Plaintiff alleges that the ALJ erred by rejecting the opinions of her treating physician

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and the state's examining physician and relying on the opinions of non-examining physicians.

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When the opinion of a treating physician is contradicted, the ALJ may discount it with

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specific, legitimate reasons that are based on substantial evidence. Bray v. Comm'r of Soc.
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Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). However, "when evaluating conflicting

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medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief,

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conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d

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1211, 1216 (9th Cir. 2005). A treating physician's opinion may be rejected if it is based to

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a large extent on plaintiff's subjective complaints and those complaints have been properly

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discounted. Tommasetti, 533 F.3d at 1041.

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Dr. Peairs, plaintiff's orthopedist, saw her in March 2009 for an annual follow-up visit

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three years after total knee replacement surgery of her right knee. After she complained of

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body aches, he suggested an evaluation with her primary care physician for polymyalgia

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rheumatica. There is no indication that she did so or has ever been definitively diagnosed

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with polymyalgia rheumatica. In January 2010, plaintiff returned to Dr. Peairs for a follow-

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up on her knee. She did not require pain medication for her knee. A history of methicillin

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resistant staphylococcus aureus ("MRSA") was the main reason for her annual visit. Dr.

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Peairs completed a pain functional capacity questionnaire in February 2011 in which he

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concluded that plaintiff had moderately severe pain which frequently interfered with her

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attention and concentration, and she often experienced deficiencies in concentration,

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persistence, and pace. Tr. at 364. The ALJ accorded "[l]ittle weight" to this opinion. Tr. at

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The ALJ considers many factors when determining how much weight to give a

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treating physician's opinion, including length of treatment relationship, frequency of

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treatment, nature and extent of the treatment relationship, supporting evidence, consistency,

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and specialization. 20 C.F.R. § 404.1527(c). The ALJ noted that plaintiff's treatment

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relationship was short and infrequent, as Dr. Peairs treated plaintiff only three times in the

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year and a half before her hearing. Her visits were specifically to follow up on her knee

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surgery. See Tr. at 26, 48, 54. There is no supporting evidence for some of the restrictions

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listed in his opinion. "[T]he regulations give more weight to opinions that are explained than

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to those that are not." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). The ALJ

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may "permissibly reject[ ] . . . check-off reports that [do] not contain any explanation of the
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bases of their conclusions." Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). Dr. Peairs's

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opinion is a one-page form with no supporting evidence or explanation. Tr. at 364.

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Moreover, the opinion was largely based on plaintiff's subjective complaints, which the ALJ

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properly discounted. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.

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1999); Tr. at 54-55. The ALJ provided specific and legitimate reasons supported by

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substantial evidence for giving little weight to Dr. Peairs's opinion.

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An examining physician's opinion is given more weight than the opinion of a non-

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examining physician but may be rejected for specific and legitimate reasons supported by

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substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Dr. Prieve

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examined plaintiff in November 2009. He determined that plaintiff could perform a limited

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range of sedentary work. He opined that she could sit for less than 6 hours, but did not

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provide a more specific estimate. The ALJ gave great weight to the opinion with the

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exception of the limit on sitting, which he found was "not supported by the record or Dr.

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Prieve's own findings." Tr. at 26. He also noted Dr. Prieve reported that plaintiff made a

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"very poor effort" during the exam and refused to hop when asked. Id. The lack of

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supporting evidence, inconsistency, and lack of explanation provide specific and legitimate

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reasons to reject this portion of Dr. Prieve's opinion.

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Dr. Rowse and Dr. Goerss reviewed plaintiff's records and completed RFC

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assessments in December 2009 and April 2010, respectively. They found that plaintiff was

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capable of performing a range of light to sedentary work. The ALJ gave great weight to the

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opinions because he found them consistent with the medical evidence. There is no medical

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evidence supporting plaintiff's contention of disabling pain. She has not sought treatment for

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generalized pain, nor does it appear that any physician has recommended treatment more

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extensive than over-the-counter pain medication. The medical records are consistent with

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the opinions of these physicians, and they are consistent with each other. Moreover, they

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explained their opinions. Tr. at 227-29, 314-22. The ALJ provided specific and legitimate

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reasons supported by substantial evidence for giving less weight to Dr. Peairs's opinion and

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more weight to the findings of these physicians.
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IV

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Plaintiff contends that a sit/stand option is inconsistent with sedentary work. The

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vocational expert determined that plaintiff could perform her past jobs with the option of

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sitting or standing at will. The expert testified that there would be some limit as to how often

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an employee could alternate sitting and standing, but there was no definite limit. All

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plaintiff's past relevant work could be performed with the option to sit or stand. Her

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testimony was consistent with the Dictionary of Occupational Titles and her training,

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education, and experience. The ALJ's RFC is supported by substantial evidence and his

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reliance on the vocational expert and inclusion of a sit-stand option were not in error.

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V

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Based on the foregoing, we conclude that the ALJ's conclusion that plaintiff is not

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disabled is supported by substantial evidence in the record. Therefore, IT IS ORDERED

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AFFIRMING the decision of the Commissioner denying disability benefits. The clerk shall

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enter final judgment.

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DATED this 11th day of October, 2012.

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