Reimer v. Social Security Administration Commissioner

Filing 32

ORDER that the ALJ's decision is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of the Court is directed to TERMINATE this action and enter judgment accordingly. Signed by Judge G Murray Snow on 9/29/2014. (See Order for details)(ALS)

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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 David Benjamin Reimer, Plaintiff, 10 11 12 No. CV-13-08225-PCT-GMS ORDER v. Carolyn W. Colvin, Acting Commissioner of Social Security Administration, 13 Defendant. 14 15 16 17 Pending before the Court is the appeal of Plaintiff David Benjamin Reimer, which challenges the Social Security Administration’s decision to deny benefits. (Doc. 24.) For the reasons set forth below, the Court affirms that determination. 18 19 20 21 22 23 24 BACKGROUND In January 2012, David Benjamin Reimer filed a Title II application for benefits with the Social Security Administration (“SSA”) alleging a disability onset date of August 20, 2010. (R. at 11.) Reimer’s application was denied both initially and upon reconsideration. (Id.) An Administrative Law Judge (“ALJ”) held a hearing and heard testimony in April 2013. (Id.) In evaluation whether Reimer was disabled, the ALJ undertook the five-step sequential evaluation for determining disability.1 (R. at 11–24.) 25 26 27 28 1 The five-step sequential evaluation of disability is set out in 20 C.F.R. ' 404.1520 (governing disability insurance benefits) and 20 C.F.R. ' 416.920 (governing supplemental security income). Under the test: A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) 1 The SSA had already denied a previous application by Reimer in 2009, alleging an 2 onset date in October 2007. (R. at 11.) The ALJ determined that the finding of non- 3 disability for that previous period was final. (Id.) However, the ALJ held that Reimer 4 rebutted the presumption of continuing non-disability by establishing changed 5 circumstances. (Id.) 6 At step one, the ALJ found that Reimer did not engage in substantial gainful 7 activity from the alleged onset date through that date that he last met the insured status 8 requirement on March 31, 2012. (R. at 13–14.) At step two, the ALJ determined that 9 Reimer had the following severe impairments: generalized anxiety disorder, possible 10 major depressive disorder, borderline intellectual functioning, expressive language 11 disorder, and mild-moderate obesity. (R. at 14.) At step three, the ALJ determine that 12 none of these impairments, either alone or in combination, met or equaled any of the 13 SSA’s listed impairments. (R. at 14–16.) 14 At that point, the ALJ made a determination of Reimer’s residual functional 15 capacity (“RFC”),2 concluding that he could perform medium work with various 16 17 18 19 20 21 22 23 24 25 26 27 28 that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations omitted). 2 RFC is the most a claimant can do despite the limitations caused by his impairments. See S.S.R. 96–8p (July 2, 1996). -2- 1 limitations. (R. at 16–21.) At step four, the ALJ determined that Remier could not 2 perform his past relevant work. (R. at 21–22.) At step five, the ALJ considered Reimer’s 3 age, education, and transferability of skills. (R. at 22.) The ALJ determined that there 4 were a significant number of jobs in the national economy that Reimer could perform 5 with his RFC. (R. at 22–23.) 6 Based on these determinations, the ALJ found that Reimer was not disabled and 7 denied his application. (R. at 23.) The Appeals Council declined to review the decision. 8 (R. at 1–3.) Reimer now appeals the ALJ’s determination before this Court. DISCUSSION 9 10 I. STANDARD OF REVIEW 11 A reviewing federal court will only address the issues raised by the claimant in the 12 appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 13 2001). A federal court may set aside a denial of disability benefits only if that denial is 14 either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 15 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 16 than a preponderance.” Id. (quotation omitted). “Substantial evidence is relevant evidence 17 which, considering the record as a whole, a reasonable person might accept as adequate 18 to support a conclusion.” Id. (quotation omitted). 19 However, the ALJ is responsible for resolving conflicts in testimony, determining 20 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 21 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 22 interpretation, we must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. 23 Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the 24 reviewing court must resolve conflicts in the evidence, and if the evidence can support 25 either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. 26 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citations omitted). 27 28 The claimant carries the initial burden of proving a disability in steps one through four of the analysis. See Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). -3- 1 II. ANALYSIS 2 Reimer argues that his case should be remanded to the ALJ for reconsideration 3 based on several errors. First, he argues that his severe medical conditions should have 4 been found to meet listing 12.05(c) at step three of the analysis. Second, he argues that 5 various opinion and other evidence should have been weighed differently in determining 6 his RFC and his ability to work at step five. Those allegations are considered in turn. 7 A. Step Three and Listing 12.05(c) 8 First, Reimer argues that the ALJ’s determination that Reimer did not meet or 9 equal Listing 12.05(c) is not supported by substantial evidence. In order to meet Listing 10 12.05(c) the claimant must have “[a] valid verbal, performance, or full scale IQ of 60 11 through 70 and a physical or other mental impairment imposing an additional and 12 significant work-related limitation of function.” 20 C.F.R. pt. 404, subpart P, app. 1, 13 12.05(C). Reimer argues that the record demonstrates that he met both the IQ 14 requirement and has the required additional impairment. 15 Reimer’s most recent IQ result is 71, which he admits is not within the listing 16 range of 60 through 70. The only evidence of an IQ score within the listing range is a 17 summary of other results created over a decade ago by Dr. Earnest Harman. (R. at 534– 18 37.) Under “Social History,” Dr. Harman begins by stating that “this area is quite sketchy 19 and I have to obtain most of it from some very sketchy records.” (R. at 535.) He then 20 notes that “there are various IQ scores listed . . . from a low of 67 to a high of 71.” (Id.) 21 In the beginning of the SSA listing covering Mental Disorders, it describes how 22 documentation of intelligence tests will be considered. 20 C.F.R. pt. 404, subpart P, app. 23 1, 12.00(D)(6). It provides that “since the results of intelligence tests are only part of the 24 overall assessment, the narrative report that accompanies the test results should comment 25 on whether the IQ scores are considered valid and consistent with the developmental 26 history and the degree of functional limitation.” Id. at 12.00(D)(6)(a). It also discusses 27 how different IQ test use different scales and have different results that must sometimes 28 be converted in order to be used under listing 12.05. Id. at 12.00(D)(6)(c). -4- 1 Here, the only IQ scores that fall within the range are an unknown number of tests 2 that are summarized second hand from “sketchy” records. It is unknown what scale was 3 used on these tests, who performed them, or when they were done. There is no mention 4 of accompanying reports that state whether the results are consistent with Reimer’s 5 history or limitations. 6 It is the claimant’s burden to establish disability under the first four steps and 7 Reimer failed to introduce any qualifying IQ tests results into the record. Even if those 8 records had been introduced, Reimer has not shown why the ALJ would be required to 9 credit those results from over a decade ago as opposed to the current results from after the 10 time of alleged disability onset. The listings require consideration of the lowest score 11 within the set of reported scores from one test, but do not require the same for multiple 12 test administrations. Id. 13 The ALJ’s decision regarding Listing 12.05(C) is supported by substantial 14 evidence from the record as a whole. Reimer’s claim to meet that listing fails at the first 15 prong and this Court need not consider whether he had the additional impairment also 16 required. 17 B. 18 Reimer argues that various opinions and other evidence support a more restrictive 19 RFC and a finding at step five that there are not significant numbers of jobs he can 20 perform in the national economy. 21 Step Five, the RFC, and Weighing of Opinion and Other Evidence 1. Vocational Rehabilitation Opinions 22 Reimer argues that the ALJ should have given greater consideration to the fact that 23 despite over nine years of efforts by public and private vocational rehabilitation agencies, 24 he was still not “employable.” He argues that the workers opinions should have been 25 treated as “nonacceptable” medical sources. 26 First, it is not clear why the opinions of people helping Reimer to search for and 27 apply to jobs should be considered medical in nature. More importantly, whether they are 28 considered “nonacceptable medical source” or other opinion testimony, the ALJ is not -5- 1 required to accept their opinions concerning Remier’s employment prospects as binding. 2 See 20 C.F.R. § 404.1527(d) (“A statement by a medical source that you are ‘disabled’ or 3 ‘unable to work’ does not mean that we will determine that you are disabled.”). Those 4 determinations are reserved for the SSA and the opinions of vocational rehabilitation 5 workers do not determine this outcome. The ALJ is obliged to consider them, which 6 Reimer acknowledges that the ALJ did here. Although the record contains some 7 statements that question Remier’s ability to obtain and maintain various jobs, it also 8 shows that the agencies did place him in jobs. It also records that in the efforts to find 9 work, Reimer was not always compliant with instructions and he sometimes missed his 10 appointments and other obligations. The records also indicate other non-disability related 11 obstacles to employment including the scarcity of work because of the economy and 12 Remier’s troubles with transportation. 13 Reimer argues that the records from the vocational agencies should have weighed 14 for him rather than against him. However, the Court defers to the ALJ’s determination 15 when the evidence is subject to more than one rational interpretation. See Batson, 359 16 F.3d at 1198. The records from the vocational rehabilitation service support the outcome 17 in this case and this Court will not substitute its judgment even if they might be read 18 another way to support the opposite conclusion. See Matney, 981 F.2d at 1019. 19 2. Medical Opinions 20 Some of the records from the vocation rehabilitation agencies were made by 21 medical sources. For example, the State of Arizona’s Vocational Rehabilitation 22 Department referred Reimer for an assessment by Dr. Horan, who was an examining but 23 not a treating psychiatrist. The SSA also had a psychologist, Dr. Delong, examine 24 Reimer, but not treat him. Reimer argues that the opinions of Dr. Horan and Dr. Delong 25 should have been given greater weight. Reimer also argues that the opinion of his treating 26 therapist, Ms. O’Malley, should have been given greater weight by the ALJ. 27 The regulations impose a hierarchy for medical opinions offered by licensed 28 physicians. The opinion of a treating physician is given more weight than non-treating -6- 1 and non-examining medical sources. See 20 C.F.R. § 404.1527; Orn v. Astrue, 495 F.3d 2 625, 631 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 3 In order to reject the testimony of a medically acceptable treating source, the ALJ must provide specific, legitimate reasons based on substantial evidence in the record. However, only licensed physicians and certain other qualified specialists are considered “[a]cceptable medical sources.” 20 C.F.R. § 404.1513(a). Physician’s assistants are defined as “other sources,” § 404.1513(d), and are not entitled to the same deference, see § 404.1527; SSR 06–03p. The ALJ may discount testimony from these “other sources” if the ALJ “‘gives reasons germane to each witness for doing so.’” 4 5 6 7 8 9 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citations omitted). 10 Here, the psychiatrist and psychologist were not treating physicians. The ALJ 11 provided specific, legitimate reasons based on substantial evidence for discounting their 12 opinions. The ALJ cited other records and the opinions of other medical professionals. 13 Although the ALJ did not specifically state the level of weight assigned to Dr. Horan’s 14 report, the ALJ clearly described the findings and contrasted other medical records with 15 different findings. (R. at 18–19.) This demonstrates the level of weight given even if it 16 does not state it and any error in failing to state the level is harmless. This does not show 17 that the ALJ failed to evaluate this medical opinion or to consider the proper factors in 18 weighing it. The ALJ did assign a not significant weight to the opinion of Dr. Delong and 19 gave adequate reasons which are equally applicable to Dr. Horan. (R. at 20–21.) 20 Ms. O’Malley, as a physician’s assistant, was an “other source.” Contrary to 21 Reimer’s argument, non-acceptable medical sources are classified separately and treated 22 differently. Although in some circumstances they can be given weight as great as other 23 sources, that is neither the required nor the presumed outcome. The ALJ gave germane 24 reasons for discounting her testimony, even if Reimer does not agree with the adjectives 25 that the ALJ used to describe Ms. O’Malley’s opinion. 26 The ALJ noted in several places that Reimer was not taking his medication and 27 had a history of noncompliance with treatment. (See, e.g., R. at 17, 20.) Reimer argues 28 that the ALJ should have recognized that the noncompliance was not willful or extreme -7- 1 and that it was caused in part by memory problems and a lack of insurance. Reimer is 2 essential arguing that the noncompliance should have been given little weight. In the 3 decision, the ALJ did give it little weight and emphasized that it was not the primary 4 basis for his finding that Reimer was not disabled. (R. at 17, 19.) There is no error in 5 mentioning this consideration which Reimer acknowledges is supported by the record. 6 In general, Reimer argues that the ALJ should have weighed the records and 7 opinions of these various medical professionals differently. However, the Court defers to 8 the ALJ’s determination when the evidence is subject to more than one rational 9 interpretation. See Batson, 359 F.3d at 1198. The records and opinions support the 10 outcome in this case and this Court will not substitute its judgment even if they might be 11 read another way to support the opposite conclusion. See Matney, 981 F.2d at 1019.The 12 ALJ’s consideration of the medical record and opinion evidence was neither based on 13 legal error nor unsupported by substantial evidence. 14 IT IS HEREBY ORDERED that the ALJ’s decision is AFFIRMED. 15 IT IS FURTHER ORDERED that the Clerk of the Court is directed to 16 17 TERMINATE this action and enter judgment accordingly. Dated this 29th day of September, 2014. 18 19 20 21 22 23 24 25 26 27 28 -8-

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