Harrington v. Astrue

Filing 20

ORDER affirming the final decision of the Commissioner of Social Security denying Sharon Harrington disability benefits. ORDER that the Clerk enter judgment in favor of Defendant against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this action. Signed by Judge Neil V Wake on 8/22/11. (TLJ)

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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, ) ) Defendant. ) ) Sharon Harrington, No. CV10-08225-PCT-NVW ORDER 16 17 Sharon Harrington seeks review under 42 U.S.C. § 405(g) of the final decision of 18 the Commissioner of Social Security (“the Commissioner”), which denied her disability 19 insurance benefits and supplemental security income under sections 216(i), 223(d), and 20 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative 21 Law Judge (“ALJ”) is supported by substantial evidence and is not based on legal error, 22 the Commissioner’s decision will be affirmed. 23 I. Background 24 A. Factual Background 25 Harrington was born on July 3, 1963. She has worked as a home attendant, office 26 manager, receptionist, records technician, and waitress. Beginning in August 2008, 27 Harrington cared for her husband for about three months after he suffered a stroke. At the 28 time of the administrative hearing, Harrington worked approximately 95 hours per month 1 as an in-home care provider for her mother and was paid $9.00 per hour by the State of 2 California. She testified that she set up medications and assisted her mother transferring 3 from her bed to a chair, and her family did “the rest of it.” 4 In 1994, Harrington received an on-the-job injury to her right wrist, for which she 5 underwent fusion in 1995 and radial nerve surgery . Subsequently, she experienced low 6 back and neck pain radiating into her right arm. In 2007, she had a spinal stimulator 7 inserted, which eliminated her right arm pain, but not her back pain. She also has been 8 diagnosed with sacroiliac joint disorder. 9 B. Procedural History 10 On April 29, 2008, Harrington applied for disability insurance benefits and 11 supplemental security income, alleging disability beginning December 20, 2007, due to 12 lumbar spine and sacroiliac joint disorders, bilateral carpal tunnel syndrome, gastritis, and 13 depression. Both applications were denied on initial review and again on reconsideration, 14 after which Harrington requested that her claim be heard by an ALJ. On March 29, 2010, 15 an administrative hearing was held in San Bernadino, California, at which Harrington 16 testified and was represented by counsel. Arthur Lorber, M.D., an impartial medical 17 expert, and David A. Rinehart, an impartial vocational expert, also appeared and testified 18 at the administrative hearing. 19 On May 18, 2010, the ALJ issued his decision that Harrington was not disabled 20 within the meaning of the Social Security Act. He found that Harrington retained the 21 capacity to perform a reduced range of light work: 22 23 24 25 . . . the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. She can stand and walk for 6 hours out of an 8-hour work day, and she can sit for 6 hours out of an 8-hour work day. She cannot perform power gripping with the right upper extremity; she can perform occasional overhead reaching with the right upper extremity. She cannot climb ladders, ropes, or scaffolds. 26 27 28 -2- 1 In reliance upon vocational expert testimony, the ALJ found that Harrington is capable of 2 performing past relevant work as an office manager, receptionist, medical records 3 technician, and waitress. 4 On September 21, 2010, the Appeals Council denied Harrington’s request for 5 review of the ALJ’s unfavorable decision. On September 21, 2010, the Appeals Council 6 declined to set aside the ALJ’s decision, making that decision the final decision of the 7 Commissioner. On November 19, 2010, Harrington sought judicial review of this 8 decision pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 9 II. Standard of Review 10 The district court reviews only those issues raised by the party challenging the 11 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 12 may set aside the Commissioner’s disability determination only if the determination is not 13 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 14 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 15 preponderance, and relevant evidence that a reasonable person might accept as adequate 16 to support a conclusion considering the record as a whole. Id. In determining whether 17 substantial evidence supports a decision, the court must consider the record as a whole 18 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 19 As a general rule, “[w]here the evidence is susceptible to more than one rational 20 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 21 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 22 If the ALJ’s decision is not supported by substantial evidence or suffers from legal 23 error, the court has discretion to reverse and remand either for an award of benefits or for 24 further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 25 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for further 26 proceedings is appropriate if enhancement of the record would be useful.” Benecke v. 27 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the record has been 28 developed fully and further administrative proceedings would serve no useful purpose, -3- 1 the district court should remand for an immediate award of benefits.” Id. (citing Smolen, 2 80 F.3d at 1292). 3 The ALJ is responsible for resolving conflicts in medical testimony, determining 4 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 5 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 6 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 7 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 8 III. Five-Step Sequential Evaluation Process To determine whether a claimant is disabled for purposes of the Social Security 9 10 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). If the ALJ determines 11 that the claimant is disabled or not disabled at any step, the ALJ does not continue to the 12 next step. The claimant bears the burden of proof on the first four steps, but at step five, 13 the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 1999). 15 At the first step, the ALJ determines whether the claimant is engaging in 16 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 17 disabled and the inquiry ends. Id. At the step two, the ALJ determines whether the 18 claimant has a “severe” medically determinable physical or mental impairment. 19 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 20 three, the ALJ considers whether the claimant’s impairment or combination of 21 impairments meet or equal an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. 22 Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. 23 Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s 24 residual functional capacity and determines whether the claimant is still capable of 25 performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled 26 and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he 27 determines whether the claimant can perform any other work based on the claimant’s 28 -4- 1 residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). 2 If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id. 3 IV. 4 Analysis The ALJ found that Harrington meets the insured status requirements of the Social 5 Security Act through December 31, 2012, and, at step one, she has not engaged in 6 substantial gainful activity since December 20, 2007. At step two, the ALJ found that 7 Harrington has the following severe impairments: status post fusion of the right wrist, 8 degenerative disc disease, and peripheral neuropathy. The ALJ also found that 9 Harrington’s “medically determinable mental impairments consisting of carpal tunnel 10 syndrome and depression does not cause more than minimal limitation in the claimant’s 11 ability to perform basic mental work activities and is therefore nonsevere.” At step three, 12 the ALJ found that Harrington does not have an impairment or combination of 13 impairments that meets or medically equals one of the listed impairments in 20 C.F.R. 14 Part 404, Subpart P, Appendix 1. 15 Harrington does not raise any issues related to the ALJ’s determinations at the first 16 three steps of the five-step sequential evaluation process. Harrington challenges the 17 ALJ’s weighing of medical source evidence in making his determination of Harrington’s 18 residual functional capacity at step four. 19 A. 20 In weighing medical source opinions in Social Security cases, the Ninth Circuit Legal Standard for Weighing Medical Source Evidence 21 distinguishes among three types of physicians: (1) treating physicians, who actually treat 22 the claimant; (2) examining physicians, who examine but do not treat the claimant; and 23 (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the 25 opinion of a treating physician than to the opinions of non-treating physicians. Id. A 26 treating physician’s opinion is afforded great weight because such physicians are 27 “employed to cure and [have] a greater opportunity to observe and know the patient as an 28 individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). Where a treating -5- 1 physician’s opinion is not contradicted by another physician, it may be rejected only for 2 “clear and convincing” reasons, and where it is contradicted, it may not be rejected 3 without “specific and legitimate reasons” supported by substantial evidence in the record. 4 Lester, 81 F.3d at 830. Moreover, the Commissioner must give weight to the treating 5 physician’s subjective judgments in addition to his clinical findings and interpretation of 6 test results. Id. at 832-33. 7 Further, an examining physician’s opinion generally must be given greater weight 8 than that of a non-examining physician. Id. at 830. As with a treating physician, there 9 must be clear and convincing reasons for rejecting the uncontradicted opinion of an 10 examining physician, and specific and legitimate reasons, supported by substantial 11 evidence in the record, for rejecting an examining physician’s contradicted opinion. Id. at 12 830-31. 13 The opinion of a non-examining physician is not itself substantial evidence that 14 justifies the rejection of the opinion of either a treating physician or an examining 15 physician. Id. at 831. “The opinions of non-treating or non-examining physicians may 16 also serve as substantial evidence when the opinions are consistent with independent 17 clinical findings or other evidence in the record.” Thomas, 278 F.3d at 957. Factors that 18 an ALJ may consider when evaluating any medical opinion include “the amount of 19 relevant evidence that supports the opinion and the quality of the explanation provided; 20 the consistency of the medical opinion with the record as a whole; [and] the specialty of 21 the physician providing the opinion.” Orn, 495 F.3d at 631. 22 Moreover, Social Security Rules expressly require a treating source’s opinion on 23 an issue of a claimant’s impairment be given controlling weight if it is well-supported by 24 medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent 25 with the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2). If a 26 treating source’s opinion is not given controlling weight, the weight that it will be given is 27 determined by length of the treatment relationship, frequency of examination, nature and 28 -6- 1 extent of the treatment relationship, relevant evidence supporting the opinion, consistency 2 with the record as a whole, the source’s specialization, and other factors. Id. 3 4 5 Finding that a treating physician’s opinion is not entitled to controlling weight does not mean that the opinion should be rejected: 9 [A] finding that a treating source medical opinion is not wellsupported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to “controlling weight,” not that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. §404.1527. . . . In many cases, a treating source’s medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight. 10 Orn, 495 F.3d at 631-32 (quoting Social Security Ruling 96-2p). Where there is a 11 conflict between the opinion of a treating physician and an examining physician, the ALJ 12 may not reject the opinion of the treating physician without setting forth specific, 13 legitimate reasons supported by substantial evidence in the record. Id. at 632. 6 7 8 14 B. The ALJ Did Not Err by Rejecting Examining Physician Dr. Douglas Larson’s Mental Residual Functional Capacity Assessment. 15 Harrington contends the ALJ erred by failing to articulate specific and legitimate 16 reasons for not accepting Dr. Larson’s finding that Harrington’s depressive disorder was 17 severe. On August 15, 2008, Dr. Larson, a State agency psychological consultant, 18 examined Harrington. His report states, among other things: 19 20 21 22 23 This is a pleasant woman who is suffering from depression and pain and is not being helped by being on several strong narcotics to control her pain. She clearly needs a pain management program and serious counseling to learn how to cope with her life. I rated the claimant as 51 on the GAF because she is having moderately severe symptoms and impairment. She is having difficulty with judgment, thinking, mood, anxiety and as a result [sic.] is leading to impairment in her work performance. 24 Dr. Larson also reported: “The claimant’s psychiatric prognosis is fair with treatment.” 25 Based on his examination, Dr. Larson provided the following functional assessment: 26 1. 27 She is mildly impaired in her ability to understand, remember, and complete simple commands. 28 -7- 1 2. She is moderately impaired in her ability to do [sic.] understand, remember, and complete complex commands because of her memory problems and depression. 3. She is moderately impaired in her ability to interact appropriately with supervisors, co-workers or the public as indicated by her social withdrawal and avoidance of work. 4. She is mildly impaired in her ability to comply with job rules such as safety and attendance. 5. She is mildly impaired in her ability to respond to change in the normal workplace setting. 6. She is mildly impaired in her ability to maintain persistence and pace in a normal workplace setting. 2 3 4 5 6 7 8 9 The ALJ stated: 10 11 12 13 The undersigned does not accept Dr. Larson’s finding that the claimant’s depressive disorder is severe. His examination of the claimant was essentially benign and did not reveal evidence of significant depression. While the record reflects that the claimant is taking an anti-depressant, her treating sources have not referred her to a psychiatrist, and any depressive or anxiety symptoms have been situational in nature and due primarily to the claimant[’s] financial problems. 14 Even if the ALJ had accepted Dr. Larson’s finding that Harrington’s depressive 15 disorder was “moderately severe,” Dr. Larson opined that Harrington’s depression caused 16 her only mild and moderate limitations. “Mild” and “moderate” limitations resulting 17 from “moderately severe” symptoms of depression do not preclude performing substantial 18 gainful activity. See Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007) (“We have 19 not previously held mild or moderate depression to be a sufficiently severe non-exertional 20 limitation that significantly limits a claimant’s ability to do work beyond the exertional 21 limitation.”). Thus, even if the ALJ had accepted Dr. Larson’s opinion fully, doing so 22 would not have affected the determination of her residual functional capacity. 23 C. 24 25 The ALJ Did Not Err by Granting No Weight to Treating Physician Dr. Arvind Salwan’s Residual Functional Capacity Assessment. Harrington contends the ALJ erred by granting no weight to the residual functional 26 capacity assessments of treating physician Dr. Salwan. However, the ALJ did not assign 27 “no weight” to the 2009 questionnaire in which Dr. Salwan assessed Harrington’s 28 -8- 1 residual functional capacity. Rather, he said he did not adopt or agree with Dr. Salwan’s 2 opinion finding disability, which was expressed in a letter in 2008. 3 On October 20, 2008, Dr. Salwan submitted a letter stating that Harrington was his 4 patient, and she had been diagnosed and was receiving treatment for myofascial pain 5 syndrome, sacral iliac joint arthropathy, and lumbar facet arthropathy. His letter also 6 stated: “Sharon has been disabled since November 2006.” 7 In his hearing decision, the ALJ stated: 8 In a letter dated October 20, 2008, Dr. Salwan reported that the claimant had diagnoses of myofascial pain syndrome, sacral iliac joint arthropathy, and lumbar facet arthropathy, which rendered her disabled (Exhibit 12F, p.2). 9 10 11 12 13 The undersigned does not adopt nor agree with Dr. Salwan’s opinion because it is not supported by his treatment notes or by the other evidence. Moreover, a finding of disability is one that is reserved to the Commissioner (SSR 96-5p), and Dr. Salwan never indicated what the claimant could do despite her impairments. It is believed that Dr. Salwan was motivated more out of sympathy for the claimant in writing this letter as the substantial evidence does not support his opinion. 14 The ALJ was not required to adopt or agree with Dr. Salwan’s opinion that “Sharon has 15 been disabled since November 2006.” Whether an individual is “disabled” under the 16 Social Security Act is an issue reserved to the Commissioner, and “treating source 17 opinions on issues reserved to the Commissioner are never entitled to controlling weight 18 or special significance.” Social Security Ruling 96-5p. 19 Further, the determination of an individual’s residual functional capacity also is an 20 issue reserved to the Commissioner. Id. Although the ALJ did not specifically reference 21 Dr. Salwan’s responses to a Multiple Impairment Questionnaire, he was not required to 22 discuss it or give it controlling weight or special significance, only to consider it. The 23 ALJ explicitly relied on and cited to Dr. Salwan’s treatment records, including records 24 dated the same day as the Multiple Impairment Questionnaire, which stated Harrington 25 had normal range of motion and strength and no joint enlargement or tenderness in each 26 of her four extremities and she could “undergo exercise testing and/or participate in 27 exercise program.” 28 -9- 1 Moreover, even if the ALJ were required to articulate how much weight he 2 assigned to Dr. Salwan’s responses to a Multiple Impairment Questionnaire, the omission 3 was harmless because Dr. Salwan’s responses to the questionnaire are internally 4 inconsistent and conflict with Harrington’s testimony and written statements by 5 Harrington and her husband. On October 7, 2009, Dr. Salwan completed a Multiple 6 Impairment Questionnaire in which he described Harrington’s pain as severe, located in 7 her neck and lower back, occurring “all the time,” and precipitated by “moving, lifting, 8 picking up objects.” He estimated her level of pain as 9 out of 10 and said her pain had 9 not been completely relieved by medication without unacceptable side effects. Dr. 10 Salwan opined that Harrington could sit 0-1 hours and stand/walk 0-1 hours in an 8-hour 11 work day, occasionally lift 0-5 pounds and never more than that, and never carry any 12 weight at all. He also inconsistently opined that she did not have any significant 13 limitations in repetitive reaching, handling, fingering, or lifting, but she had moderate 14 limitations in grasping, turning, twisting objects and using fingers/hands for fine 15 manipulations and marked limitation using arms for reaching (including overhead). Dr. 16 Salwan said Harrington’s condition would preclude her from performing full-time work 17 that required keeping her neck in a constant position (e.g., looking at a computer screen, 18 looking down at a desk). He also said her pain, fatigue, or other symptoms were severe 19 enough to constantly interfere with attention and concentration and she would need to 20 take unscheduled breaks every 15-20 minutes to rest for 15-20 minutes. Dr. Salwan 21 further opined that Harrington’s impairments were likely to produce “good days” and 22 “bad days” and she likely would be absent from work more than three times a month. 23 Finally, he said that she was limited to no pushing, no pulling, no kneeling, no bending, 24 and no stooping. 25 In contrast, Harrington testified that she is able to set up her mother’s medications, 26 do some housecleaning, go grocery shopping, and lift ten pounds. She said that in an 27 8-hour day, she could stand for a total of 4 hours with breaks every half hour and sit for a 28 total of 4 hours with breaks every half hour. Although she alleges disability beginning - 10 - 1 December 20, 2007, she said that for a period of about three months beginning in August 2 2008 she cared for her husband who had a stroke. In June 2008, she completed a 3 Function Report in which she said that she gives her mother medications and takes her to 4 medical appointments, feeds and bathes pets, shares meal preparation duties with her 5 husband, does light cleaning, shops for groceries and necessary items, regularly attends 6 church, and can drive by herself unless taking pain medications. Also in June 2008, 7 Harrington’s husband completed a Function Report in which he said that Harrington feeds 8 their pets, washes dishes about once a week, goes grocery shopping with her husband for 9 three hours once a week, watches television two hours per day, and communicates with 10 others on the computer once a day. He also said she could lift up to 25 pounds. 11 Harrington contends that the ALJ’s observation that “Dr. Salwan never indicated 12 what the claimant could do despite her impairments,” is incorrect because Dr. Salwan 13 estimated “she can sit no more than one hour, stand/walk no more than one hour, and lift 14 no more than five pounds occasionally. . . .” In fact, Dr. Salwan indicated she could sit 15 “0-1” hours, stand/walk “0-1” hours, and lift “0-5” pounds, which the ALJ could have 16 reasonably interpreted as meaning no sitting, no standing or walking, and no lifting. 17 Thus, the ALJ did not err by not adopting or agreeing with Dr. Salwan’s 2008 18 opinion finding disability because it was not supported by his treatment notes or by the 19 other evidence and opined on an issue reserved to the Commissioner. Although the ALJ 20 did not make an express finding regarding Dr. Salwan’s 2009 functional assessment, he 21 expressly considered Dr. Salwan’s treatment notes and was not required to assign weight 22 to Dr. Salwan’s determination of Harrington’s residual functional capacity. 23 IT IS THEREFORE ORDERED affirming the final decision of the Commissioner 24 of Social Security denying Sharon Harrington disability benefits. 25 /// 26 /// 27 /// 28 - 11 - 1 2 3 IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Defendant against Plaintiff and that Plaintiff take nothing. The Clerk shall terminate this action. DATED this 22nd day of August, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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