Wilson v. Astrue

Filing 23

ORDER denying 16 Plaintiff's Motion for Summary Judgment and denying 19 Defendant's Cross-Motion for Summary Judgment. Remanding the case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this order. The clerk is directed to enter final judgment in this case. Signed by Judge Frederick J Martone on 5/13/09.(LSP)

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NOT FOR PUBLICATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) ) Dennis L. Wilson,

No. CV-08-8044-PHX-FJM ORDER

Plaintiff seeks judicial review under 42 U.S.C. § 405(g) of the Social Security Administration's decision that he is not eligible for disability benefits. We have before us plaintiff's motion for summary judgment (doc. 16), defendant's response (doc. 18), and plaintiff's reply (doc. 22). We also have before us defendant's cross-motion for summary judgment, statement of facts, and memorandum in support of the motion (docs. 19, 20, & 21). I Plaintiff filed an application for social security disability benefits on July 25, 2005, alleging a disability onset date of April 25, 2005. Plaintiff claimed to be disabled due to back surgeries, leg pain, Graves disease, bad knees, bilateral shoulder problems, sleep apnea, hepatitis C, and depression. The claim was denied both initially and upon reconsideration. After a January 29, 2007 hearing, the Administrative Law Judge ("ALJ") denied plaintiff's application for benefits by written decision on May 15, 2007. The ALJ concluded that

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plaintiff's only severe impairments were degenerative disc disease and obesity. Tr. at 26-30. The ALJ then concluded that, although plaintiff did not retain the residual functional capacity to perform his past relevant work, Id. at 35, he retained the ability to perform a full range of sedentary work. Id. at 31. This decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 28, 2008. Plaintiff now seeks judicial review of this decision under 42 U.S.C. § 405(g). An ALJ's decision to deny benefits will be overturned "only if it is not supported by substantial evidence or is based on legal error." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. Under this standard, an ALJ's findings must be upheld "if supported by inferences reasonably drawn from the record," even where "evidence exists to support more than one rational interpretation." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also 42 U.S.C. § 405(g). Plaintiff challenges the ALJ's conclusions regarding the severity of his mental impairments and his residual functional capacity to perform sedentary work as unsupported by substantial evidence and based on legal error. II Plaintiff first argues that the ALJ's decision that his mental problems are not a severe impairment was not based on substantial evidence because the ALJ relied on the opinion of a non-examining state agency physician. We disagree. "[R]eports of [a] nonexamining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it." Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The ALJ based his decision on the record as a whole, and relied on the state agency physician's opinion only on the grounds that "it is consistent

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with the overall evidence." Tr. at 29. The state agency physician's report may, therefore, be relied upon as substantial evidence.1 Plaintiff also claims that the ALJ erred by failing to consider a November 30, 2005 worksheet prepared by one of plaintiff's treating physicians, Dr. McLaughlin, regarding plaintiff's medical impairments. The November 30, 2005 worksheet was completed by Dr. McLaughlin as part of a larger report for plaintiff's worker's compensation claim and addressed his residual ability to work. The ALJ, therefore, considered this report in his analysis of plaintiff's residual functional capacity. Id. at 32-34. Dr. McLaughlin's opinion regarding plaintiff's mental impairment was rejected by the ALJ because it was inconsistent with the opinion of Dr. Carris who was treating plaintiff for his depression. Id. at 34. The ALJ properly used his discretion to resolve this conflict, and did not err in rejecting Dr. McLaughlin's opinion regarding plaintiff's mental health. See Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) ("When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict.") (quotation omitted). Plaintiff argues that the ALJ also committed legal error by failing to consider plaintiff's global assessment of function ("GAF") scores. The GAF scale is a tool endorsed by the American Psychiatric Association, which measures an individual's function and limitations. Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,746-01, 50,764 (Aug. 21, 2000) (to be codified at 20 C.F.R. § 416.928). Although plaintiff's GAF score may have at times indicated serious impairment, GAF scores do not "have a direct correlation to the severity requirements in [the Social Security Administration's] mental disorders listings." Id. at 50,764-65. Moreover, the ALJ

Plaintiff also contends that the ALJ improperly relied on the state agency physician's opinion because the opinion was given on December 28, 2005, and did not, therefore, consider any evidence after that date. We reject this argument because the ALJ considered evidence of plaintiff's condition after December 2005 and found the agency physician's opinion to be consistent with the record as a whole. Id. -3-

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considered plaintiff's fluctuating GAF scores, and concluded that plaintiff's "medical impairments had not been at a serious level for 12 continuous months." Tr. at 28-29. The ALJ's conclusion that plaintiff's depression is non-severe was a rational interpretation of the record based on substantial evidence and without legal error. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("`Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quotation omitted). Accordingly, we affirm the ALJ's determination that plaintiff's mental condition is not a severe impairment. III Plaintiff also challenges the ALJ's determination that, despite his severe lumbar impairments, he maintained the residual functional capacity to perform sedentary work. Plaintiff first argues that the ALJ improperly discredited his subjective complaints of pain. We agree. Once a claimant has produced evidence of a severe impairment, an ALJ "may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citation omitted). The ALJ must provide "clear and convincing" reasons for rejecting plaintiff's complaints and "must identify what testimony is not credible and what evidence undermines the claimant's complaints." Id. Where an "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas, 278 F.3d at 958-59. The ALJ articulated three reasons in support of his credibility determination, but his findings are not supported by substantial evidence in the record. First, the ALJ found that the medical evidence did not fully support plaintiff's allegations. The record, however, shows a pattern of escalating treatment for pain

management. The ALJ stated a detailed summary of the plaintiff's medical records, but focused primarily on the progression of plaintiff's range of movement without addressing the evidence of plaintiff's consistent subjective complaints. For example, the ALJ "gave weight" to an August 1, 2006 doctor's examination, but focused only on plaintiff's objective symptoms and failed to address the portion of the doctor's report referring plaintiff to a pain -4-

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management specialist. Tr. at 34, 330-31. Moreover, the ALJ did not discuss the progress notes from Dr. Charles H. Tadlock, whom plaintiff began to see for pain management in October 2006. Second, the ALJ determined that plaintiff's activities were inconsistent with his testimony regarding his pain. "[D]aily activities may be grounds for an adverse credibility finding `if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.'" Orn, 495 F.3d at 639 (quotation omitted). To find that plaintiff's activities warrant a negative credibility determination, "[t]he ALJ must make `specific findings relating to [the daily] activities' and their transferability." Id. On January 10, 2006, one of plaintiff's treating physicians noted that plaintiff's only indoor interests are watching movies and playing video games. Tr. at 374. The physician did not, however, address how often or for how long plaintiff is able to do either. Id. The ALJ relied on this notation to conclude that plaintiff has the residual functional capacity to concentrate for prolonged periods because he plays video games. Id. at 34-35. A single stray comment regarding the fact that plaintiff has an interest in video games does not provide substantial evidence that plaintiff is able to concentrate. Indeed, we could find no other evidence in the record to support a finding that plaintiff is able to concentrate for prolonged periods or that plaintiff even plays video games. The ALJ also concluded that plaintiff's twelve hour car trip to arrive at the hearing was consistent with "a full range of sedentary work." Id. at 35. We disagree. The record does not include any evidence regarding the amount of time plaintiff was able to drive, the amount of pain plaintiff suffered on the journey, or the manner and position in which plaintiff traveled. In addition, from the record, plaintiff's trip appears to be an isolated incident for a very particular circumstance and not a daily, or even frequently occurring, activity. That plaintiff was able to drive or ride in a car for twelve hours once is not necessarily consistent with an ability to work eight hours five days a week or perform the other functions necessary for sedentary work. See 20 C.F.R. § 404.1567(a) (defining sedentary work). -5-

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The ALJ also rejected plaintiff's subjective complaints because of his personal observations of plaintiff at the hearing. Tr. at 35. However, "[t]he ALJ's observations of a claimant's functioning may not form the sole basis for discrediting a person's testimony." Orn, 495 F.3d at 639. Because we have rejected the ALJ's other reasons, his personal observations alone cannot support an adverse credibility finding. We conclude, therefore, that the ALJ has failed to provide specific, clear and convincing reasons for discounting plaintiff's subjective complaints of pain. Finally, plaintiff argues that Dr. McLaughlin's conclusion that he was "off work indefinitely" is entitled to controlling weight, or that, at the very least, the ALJ improperly failed to provide specific, legitimate reasons for disregarding this opinion. As part of his November 30, 2005 report, Dr. McLaughlin completed a medical source statement regarding plaintiff's maximum medical improvement. Tr. at 392-410. In this statement, Dr.

McLaughlin concluded that plaintiff: could stand, walk, or sit for a total of three hours during an eight hour workday; could never bend, squat, crawl, or climb a ladder; could tolerate work for zero hours in a day; and would be unable to perform work for more than ten days per month. Id. at 392-93. Dr. McLaughlin also concluded that "overall when taking [plaintiff's] multiple co-morbid issues and his 2 lumbar surgeries, pain and depression, I think he is off work indefinitely." Id. at 396. Nonetheless, the ALJ gave this opinion "little weight" because "[t]his opinion was offered less than 12 months after the alleged onset date," and because "[t]he medical evidence shows that claimant's pain complaints became better controlled with medication and control of his mental impairments." Id. at 33. A treating physician's opinion is entitled to controlling weight where it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). Even where a treating physician's opinion is not "well-supported," the ALJ may not disregard the opinion without "setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). The ALJ must consider certain specific factors, including the -6-

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nature and extent of the treatment relationship, when deciding how much weight to afford the opinion. 20 C.F.R. § 404.1527(d)(2)(i)-(ii); Orn, 495 F.3d at 631. Dr. McLaughlin's opinion is not "well-supported" by objective clinical evidence and, is not, therefore, entitled to controlling weight in this case. Nonetheless, the ALJ failed to provide specific, legitimate reasons for rejecting Dr. McLaughlin's opinion. Even though it was provided less than twelve months after plaintiff's alleged onset date, Dr. McLaughlin's opinion addressed plaintiff's maximum improvement. In addition, the ALJ's conclusion that plaintiff's pain became controlled by medication after the opinion was offered is, for the reasons discussed, not supported by the record. The ALJ also failed to consider the required factors in deciding the proper weight to give to Dr. McLaughlin's opinion. Id. Accordingly, this case must be remanded so that the ALJ may provide clear and convincing reasons for disregarding plaintiff's subjective complaints and so that the ALJ may properly consider Dr. McLaughlin's November 30, 2005 opinion. IV IT IS THEREFORE ORDERED, DENYING plaintiff's motion for summary judgment (doc. 16), and DENYING defendant's cross-motion for summary judgment (doc. 19) and REMANDING the case to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this order. The clerk is directed to enter final judgment in this case. DATED this 13th day of May, 2009.

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