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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security Administration, ) ) Defendant. ) ) Debra Lee Johnson, No. CV 12-00434-PHX-FJM ORDER 16 The court has before it plaintiff's opening brief (doc. 13), defendant's opposition to 17 plaintiff's opening brief (doc. 14), and plaintiff's reply (doc 15). Plaintiff filed an application 18 for Disability Insurance Benefits in 2009. Her application was denied initially and upon 19 reconsideration and she requested a hearing. An administrative law judge ("ALJ") with the 20 Social Security Administration held a hearing on March 7, 2011, and issued an unfavorable 21 decision. The ALJ's decision became the Commissioner's final decision when the Appeals 22 Council denied plaintiff's request for review. 23 Plaintiff was born in 1953 and was 56 years old at the date of her alleged onset of 24 disability on July 15, 2009. She has a high school education and previously worked as an 25 office coordinator, switchboard operator, and internal customer service representative. She 26 was fired from her last job for yelling at another employee. 27 The ALJ followed the required five-step procedure in finding that petitioner was not 28 1 disabled within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520(a). At 2 step one, the ALJ determined that plaintiff has not performed substantial gainful activity 3 since July 15, 2009. The ALJ found at step two that plaintiff's morbid obesity, diabetes, 4 polymyalgia rheumatica, arthritis, pain in upper extremities, neck, back, and hips, and post 5 right knee replacement surgery were severe impairments. But at step three the ALJ found 6 that plaintiff's impairments did not meet or equal a listed impairment. Next, the ALJ assessed 7 plaintiff's residual functional capacity ("RFC") and found that plaintiff could perform a 8 limited range of sedentary work. The ALJ found at step four that plaintiff is capable of 9 performing her past relevant work. As a result, the ALJ concluded that she is not disabled. 10 I 11 We "disturb the denial of benefits only if the decision 'contains legal error or is not 12 supported by substantial evidence.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 13 2008) (citation omitted). "Substantial evidence is such relevant evidence as a reasonable 14 mind might accept as adequate to support a conclusion." Id. (internal quotation marks and 15 citation omitted). The "evidence must be more than a mere scintilla but not necessarily a 16 preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "Where evidence 17 is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be 18 upheld." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 19 II 20 "[W]here the record includes objective medical evidence establishing that the claimant 21 suffers from an impairment that could reasonably produce the symptoms of which he 22 complains, an adverse credibility finding must be based on 'clear and convincing reasons.'" 23 Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). The ALJ 24 found that plaintiff's impairments could reasonably be expected to produce the symptoms 25 alleged. However, he found her statements concerning the intensity, persistence, and limiting 26 effects not credible. An ALJ's credibility determination is entitled to deference. Lingenfelter 27 v. Astrue, 504 F.3d 1028, 1044 (9th Cir. 2007). 28 determination "based on contradictory or ambiguous evidence." Johnson v. Shalala, 60 F.3d -2- We will not reverse a credibility 1 1428, 1434 (9th Cir. 1995). In weighing credibility, the ALJ may consider failures to seek 2 treatment or follow a prescribed course of treatment, inconsistencies in testimony or between 3 testimony and conduct, and daily activities. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 4 2007). 5 An unexplained failure to seek treatment or to follow a prescribed course of treatment 6 may support a conclusion that plaintiff is not credible. Id. at 637. Despite testifying that she 7 is frequently in great pain, there is no indication that plaintiff has ever taken prescription 8 medicine for pain and no explanation for why she would not do so or seek other forms of 9 treatment for her pain. See, e.g., Tr. at 217, 239, 322. This diminishes plaintiff's credibility. 10 One of plaintiff's main activities is making greeting cards, a job which requires great 11 manual dexterity. The ALJ found inconsistencies between plaintiff's testimony and conduct. 12 She testified that she is losing strength in her arms and even answering the phone causes 13 pain, yet she also said that she makes greeting cards daily. The ALJ's determination that this 14 testimony is inconsistent is entitled to deference. 15 Plaintiff at first testified that she left her last job because she could not drive to work. 16 Upon questioning, though, she admitted that she was fired from that position for yelling at 17 a coworker. She did not lose her job or have to quit because of her impairments. She also 18 continued to look for work after her alleged onset date. While her long work history supports 19 her credibility, being fired and looking for work after the onset date offset this history. See 20 Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998). 21 Daily activities may be grounds for an adverse credibility determination if they 22 contradict plaintiff's other testimony or meet the threshold for transferable work skills. Orn, 23 495 F.3d at 639. The ALJ determined that plaintiff "lives alone and her ability to perform 24 activities of daily living are [sic] for the most part normal." Tr. at 26. She goes to a social 25 group regularly to make greeting cards for charity. She drives, goes grocery shopping, does 26 light housework, cares for her cats, reads, watches television, and makes greeting cards. Her 27 activity of making cards is not entirely consistent with her testimony about losing strength 28 in her arms, as noted above. On the other hand, the ALJ did not make specific findings that -3- 1 plaintiff's activities involve transferable skills or that she spends a "substantial" part of her 2 day engaged in such activities. Therefore, daily activities can form the basis of an adverse 3 credibility determination only to the extent they are inconsistent with plaintiff's other 4 testimony. If there was further reliance on daily activities to detract from her credibility it 5 would have been harmless because substantial evidence supports the ALJ's conclusion on 6 credibility. Carmickle, 533 F.3d at 1162-63. 7 Plaintiff received unemployment benefits in 2008 and 2009, which in some cases can 8 negatively impact credibility. See Carmickle, 533 F.3d at 1161-62. But here the benefits 9 were received before her alleged disability onset date. And her testimony was consistent – 10 she stated that her current source of income was savings, and later testified that she had 11 received unemployment benefits in the past. Tr. 39-40, 50-51. To the extent the ALJ relied 12 on her receipt of benefits or an apparent inconsistency about benefits in discounting her 13 credibility, the error is harmless. 14 The ALJ mentioned that although no assistive device was prescribed, plaintiff 15 appeared at the hearing with a walker. Plaintiff truthfully told the ALJ that it had not been 16 prescribed. While her physicians were aware of it, there is no evidence they told her not to 17 use it or stated that it was unnecessary. Plaintiff testified that she uses her walker every time 18 she leaves her house but did not say that she was unable to walk without it. Cf. Verduzco 19 v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (claimant used cane, but two doctors 20 specifically noted that he did not need such a device, and at the hearing he was able to 21 quickly stand and retrieve his wallet from his back pocket without assistance or apparent 22 discomfort). Her use of a walker without a showing of medical necessity is suspicious. The 23 ALJ's determination of plaintiff's credibility is supported by substantial evidence. 24 III 25 Plaintiff alleges that the ALJ erred by rejecting the opinions of her treating physician 26 and the state's examining physician and relying on the opinions of non-examining physicians. 27 When the opinion of a treating physician is contradicted, the ALJ may discount it with 28 specific, legitimate reasons that are based on substantial evidence. Bray v. Comm'r of Soc. -4- 1 Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). However, "when evaluating conflicting 2 medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, 3 conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 4 1211, 1216 (9th Cir. 2005). A treating physician's opinion may be rejected if it is based to 5 a large extent on plaintiff's subjective complaints and those complaints have been properly 6 discounted. Tommasetti, 533 F.3d at 1041. 7 Dr. Peairs, plaintiff's orthopedist, saw her in March 2009 for an annual follow-up visit 8 three years after total knee replacement surgery of her right knee. After she complained of 9 body aches, he suggested an evaluation with her primary care physician for polymyalgia 10 rheumatica. There is no indication that she did so or has ever been definitively diagnosed 11 with polymyalgia rheumatica. In January 2010, plaintiff returned to Dr. Peairs for a follow- 12 up on her knee. She did not require pain medication for her knee. A history of methicillin 13 resistant staphylococcus aureus ("MRSA") was the main reason for her annual visit. Dr. 14 Peairs completed a pain functional capacity questionnaire in February 2011 in which he 15 concluded that plaintiff had moderately severe pain which frequently interfered with her 16 attention and concentration, and she often experienced deficiencies in concentration, 17 persistence, and pace. Tr. at 364. The ALJ accorded "[l]ittle weight" to this opinion. Tr. at 18 26. 19 The ALJ considers many factors when determining how much weight to give a 20 treating physician's opinion, including length of treatment relationship, frequency of 21 treatment, nature and extent of the treatment relationship, supporting evidence, consistency, 22 and specialization. 20 C.F.R. § 404.1527(c). The ALJ noted that plaintiff's treatment 23 relationship was short and infrequent, as Dr. Peairs treated plaintiff only three times in the 24 year and a half before her hearing. Her visits were specifically to follow up on her knee 25 surgery. See Tr. at 26, 48, 54. There is no supporting evidence for some of the restrictions 26 listed in his opinion. "[T]he regulations give more weight to opinions that are explained than 27 to those that are not." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). The ALJ 28 may "permissibly reject[ ] . . . check-off reports that [do] not contain any explanation of the -5- 1 bases of their conclusions." Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). Dr. Peairs's 2 opinion is a one-page form with no supporting evidence or explanation. Tr. at 364. 3 Moreover, the opinion was largely based on plaintiff's subjective complaints, which the ALJ 4 properly discounted. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 5 1999); Tr. at 54-55. The ALJ provided specific and legitimate reasons supported by 6 substantial evidence for giving little weight to Dr. Peairs's opinion. 7 An examining physician's opinion is given more weight than the opinion of a non- 8 examining physician but may be rejected for specific and legitimate reasons supported by 9 substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Dr. Prieve 10 examined plaintiff in November 2009. He determined that plaintiff could perform a limited 11 range of sedentary work. He opined that she could sit for less than 6 hours, but did not 12 provide a more specific estimate. The ALJ gave great weight to the opinion with the 13 exception of the limit on sitting, which he found was "not supported by the record or Dr. 14 Prieve's own findings." Tr. at 26. He also noted Dr. Prieve reported that plaintiff made a 15 "very poor effort" during the exam and refused to hop when asked. Id. The lack of 16 supporting evidence, inconsistency, and lack of explanation provide specific and legitimate 17 reasons to reject this portion of Dr. Prieve's opinion. 18 Dr. Rowse and Dr. Goerss reviewed plaintiff's records and completed RFC 19 assessments in December 2009 and April 2010, respectively. They found that plaintiff was 20 capable of performing a range of light to sedentary work. The ALJ gave great weight to the 21 opinions because he found them consistent with the medical evidence. There is no medical 22 evidence supporting plaintiff's contention of disabling pain. She has not sought treatment for 23 generalized pain, nor does it appear that any physician has recommended treatment more 24 extensive than over-the-counter pain medication. The medical records are consistent with 25 the opinions of these physicians, and they are consistent with each other. Moreover, they 26 explained their opinions. Tr. at 227-29, 314-22. The ALJ provided specific and legitimate 27 reasons supported by substantial evidence for giving less weight to Dr. Peairs's opinion and 28 more weight to the findings of these physicians. -6- 1 IV 2 Plaintiff contends that a sit/stand option is inconsistent with sedentary work. The 3 vocational expert determined that plaintiff could perform her past jobs with the option of 4 sitting or standing at will. The expert testified that there would be some limit as to how often 5 an employee could alternate sitting and standing, but there was no definite limit. All 6 plaintiff's past relevant work could be performed with the option to sit or stand. Her 7 testimony was consistent with the Dictionary of Occupational Titles and her training, 8 education, and experience. The ALJ's RFC is supported by substantial evidence and his 9 reliance on the vocational expert and inclusion of a sit-stand option were not in error. 10 V 11 Based on the foregoing, we conclude that the ALJ's conclusion that plaintiff is not 12 disabled is supported by substantial evidence in the record. Therefore, IT IS ORDERED 13 AFFIRMING the decision of the Commissioner denying disability benefits. The clerk shall 14 enter final judgment. 15 DATED this 11th day of October, 2012. 16 17 18 19 20 21 22 23 24 25 26 27 28 -7-

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