Wanda Lee Jenkins-Hampton v. Carolyn W Colvin
Filing
18
MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. Accordingly, IT IS HEREBY ORDERED that (1) the decision of the Commissioner is REVERSED; (2) Plaintiff's request for remand is GRANTED; and (3) this action is REMANDED for further proceedings consistent with this Memorandum Opinion. (See Order for details) (bem)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WANDA LEE JENKINS-HAMPTON,
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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
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Defendant.
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) Case No. CV 13-6074-JPR
)
)
) MEMORANDUM OPINION AND ORDER
) REVERSING COMMISSIONER
)
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)
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18 I.
PROCEEDINGS
19
Plaintiff seeks review of the Commissioner’s final decision
20 denying her application for supplemental security income (“SSI”).
21 The parties consented to the jurisdiction of the undersigned U.S.
22 Magistrate Judge under 28 U.S.C. § 636(c).
This matter is before
23 the Court on the parties’ Joint Stipulation, filed June 19, 2014,
24 which the Court has taken under submission without oral argument.
25 For the reasons discussed below, the Commissioner’s decision is
26 reversed and this action is remanded for further proceedings.
27
28
1
1 II.
BACKGROUND
2
Plaintiff was born on March 7, 1956.
3 (“AR”) 171.)
(Administrative Record
She attended two years of nursing school (AR 305)
4 and worked briefly as a baggage clerk at a supermarket, a cashier
5 at Rite Aid, and a clerk at Walmart (AR 211).
6
On July 9, 2009, Plaintiff filed an application for SSI,
7 alleging that she had been unable to work since May 15, 2007,
8 because of diabetes, high blood pressure, and anxiety.
9 08, 171-73, 189.)
After her application was denied, she
10 requested a hearing before an Administrative Law Judge.
11 124.)
(AR 107-
(AR
A hearing was held by videoconference on November 8,
12 2011.1
(AR 70-106.)
Plaintiff, who was represented by counsel,
13 testified, as did a vocational expert.
(Id.)
In a written
14 decision issued December 15, 2011, the ALJ determined that
15 Plaintiff was not disabled.
(AR 23-35.)
On June 27, 2013, the
16 Appeals Council denied Plaintiff’s request for review.
(AR 1-3.)
17 This action followed.
18 III. STANDARD OF REVIEW
19
Under 42 U.S.C. § 405(g), a district court may review the
20 Commissioner’s decision to deny benefits.
The ALJ’s findings and
21 decision should be upheld if they are free of legal error and
22 supported by substantial evidence based on the record as a whole.
23 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v.
24
1
The hearing was initially scheduled for February 15, 2011,
25 but Plaintiff’s counsel appeared that day to report that
26 Plaintiff was unable to attend because she “physically is not
capable of traveling” from her home in Long Beach to the hearing
(AR 67.) The ALJ therefore continued the
hearing so that Plaintiff could appear by videoconference from
the agency’s Long Beach office. (AR 67-68.)
27 in Los Angeles.
28
2
1 Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Substantial evidence
2 means such evidence as a reasonable person might accept as
3 adequate to support a conclusion.
Richardson, 402 U.S. at 401;
4 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
It
5 is more than a scintilla but less than a preponderance.
6 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec.
7 Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
To determine whether
8 substantial evidence supports a finding, the reviewing court
9 “must review the administrative record as a whole, weighing both
10 the evidence that supports and the evidence that detracts from
11 the Commissioner’s conclusion.”
12 720 (9th Cir. 1996).
Reddick v. Chater, 157 F.3d 715,
“If the evidence can reasonably support
13 either affirming or reversing,” the reviewing court “may not
14 substitute its judgment” for that of the Commissioner.
Id. at
15 720-21.
16 IV.
THE EVALUATION OF DISABILITY
17
People are “disabled” for purposes of receiving Social
18 Security benefits if they are unable to engage in any substantial
19 gainful activity owing to a physical or mental impairment that is
20 expected to result in death or which has lasted, or is expected
21 to last, for a continuous period of at least 12 months.
42
22 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257
23 (9th Cir. 1992).
24
A.
25
An ALJ follows a five-step sequential evaluation process to
The Five-Step Evaluation Process
26 assess whether someone is disabled.
20 C.F.R. § 416.920(a)(4);
27 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as
28 amended Apr. 9, 1996).
In the first step, the Commissioner must
3
1 determine whether the claimant is currently engaged in
2 substantial gainful activity; if so, the claimant is not disabled
3 and the claim must be denied.
§ 416.920(a)(4)(i).
If the
4 claimant is not engaged in substantial gainful activity, the
5 second step requires the Commissioner to determine whether the
6 claimant has a “severe” impairment or combination of impairments
7 significantly limiting her ability to do basic work activities;
8 if not, a finding of not disabled is made and the claim must be
9 denied.
§ 416.920(a)(4)(ii).
If the claimant has a “severe”
10 impairment or combination of impairments, the third step requires
11 the Commissioner to determine whether the impairment or
12 combination of impairments meets or equals an impairment in the
13 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part
14 404, Subpart P, Appendix 1; if so, disability is conclusively
15 presumed and benefits are awarded.
16
§ 416.920(a)(4)(iii).
If the claimant’s impairment or combination of impairments
17 does not meet or equal one in the Listing, the fourth step
18 requires the Commissioner to determine whether the claimant has
19 sufficient residual functional capacity (“RFC”)2 to perform her
20 past work; if so, she is not disabled and the claim must be
21 denied.
§ 416.920(a)(4)(iv).
The claimant has the burden of
22 proving she is unable to perform past relevant work.
23 F.2d at 1257.
Drouin, 966
If the claimant meets that burden, a prima facie
24 case of disability is established.
Id.
If that happens or if
25 the claimant has no past relevant work, the Commissioner bears
26
27
28
2
RFC is what a claimant can do despite existing exertional
and nonexertional limitations. § 416.945; see Cooper v.
Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
4
1 the burden of establishing that the claimant is not disabled
2 because she can perform other substantial gainful work available
3 in the national economy.
§ 416.920(a)(4)(v).
That determination
4 comprises the fifth and final step in the sequential analysis.
5 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
6
B.
7
At step one, the ALJ found that Plaintiff had not engaged in
The ALJ’s Application of the Five-Step Process
8 any substantial gainful activity since July 9, 2009, her
9 application date.3
(AR 25.)
At step two, she found that
10 Plaintiff had the severe impairments of “obesity and diabetes
11 mellitus.”
(Id.)
She found that Plaintiff’s hypertension,
12 depression, and anxiety were not severe.
(AR 27-29.)
At step
13 three, the ALJ determined that Plaintiff’s impairments did not
14 meet or equal any of the impairments in the Listing.
(AR 29.)
15 At step four, the ALJ found that Plaintiff had the RFC to perform
16 “medium work” but “must avoid concentrated exposure to
17 unprotected heights or hazardous machinery.”4
(AR 29.)
The ALJ
18 then concluded that under Medical-Vocational Rules 203.14 and
19 203.21, see 20 C.F.R. pt. 404, subpt. P, app. 2, Rs. 203.14 &
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The ALJ assessed whether Plaintiff had been under a
disability on or after her application date rather than her
alleged onset date. (AR 25, 35.) It is not clear whether
Plaintiff amended her onset date to her application date at the
hearing. (See AR 75.) But even if she did not, the ALJ’s use of
the application date could not have prejudiced Plaintiff because
the earliest month in which she could have received SSI benefits
was the month following the month in which she filed her
application. See § 416.335.
4
“Medium work involves lifting no more than 50 pounds at a
time with frequent lifting or carrying of objects weighing up to
25 pounds.” § 416.967(c).
5
1 203.21, Plaintiff was not disabled.
(AR 34-35.)
2 V.
DISCUSSION
3
Plaintiff contends that the ALJ erred in (1) failing to
4 include any mental limitations in her RFC; (2) rejecting the
5 opinions of her treating physician, Dr. Stanley Golanty; (3)
6 discounting her credibility; and (4) evaluating her obesity.5
7 (J. Stip. at 3.)
8
A.
9
10
The ALJ Erred in Assessing Plaintiff’s Mental
Limitations
Plaintiff contends that the ALJ erred by “misinterpret[ing]”
11 the medical record and failing to include in her RFC a limitation
12 to “simple repetitive tasks.”
(J. Stip. at 20.)
For the reasons
13 discussed below, the Court finds that remand is appropriate.
14
15
1.
Applicable law
“RFC is an administrative assessment of the extent to which
16 an individual’s medically determinable impairment(s), including
17 any related symptoms, such as pain, may cause physical or mental
18 limitations or restrictions that may affect [her] capacity to do
19 work-related physical and mental activities.”
20 374184, at *2 (July 2, 1996).
SSR 96-8p, 1996 WL
A district court must uphold an
21 ALJ’s RFC assessment when the ALJ has applied the proper legal
22 standard and substantial evidence in the record as a whole
23 supports the decision.
24 (9th Cir. 2005).
Bayliss v. Barnhart, 427 F.3d 1211, 1217
The ALJ must consider all the medical evidence
25 in the record and “explain in [his] decision the weight given to
26
27
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The Court addresses the disputed issues in an order
28 different from that followed by the parties.
6
1 . . . [the] opinions from treating sources, nontreating sources,
2 and other nonexamining sources.”
20 C.F.R. § 416.927(e)(2)(ii);
3 see also § 416.945(a)(1) (“We will assess your residual
4 functional capacity based on all the relevant evidence in your
5 case record.”); SSR 96-8p, 1996 WL 374184, at *2 (RFC must be
6 “based on all of the relevant evidence in the case record”).
7
In making an RFC determination, the ALJ may consider those
8 limitations for which there is support in the record and need not
9 consider properly rejected evidence or subjective complaints.
10 See Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC determination
11 because “the ALJ took into account those limitations for which
12 there was record support that did not depend on [claimant’s]
13 subjective complaints”); Batson v. Comm’r of Soc. Sec. Admin.,
14 359 F.3d 1190, 1197 (9th Cir. 2004) (ALJ not required to
15 incorporate into RFC evidence from treating-physician opinions
16 that were “permissibly discounted”).
Moreover, the ALJ must
17 consider limitations imposed by all of the claimant’s medically
18 determinable impairments, even those that are not severe.
19 § 416.945(a)(2).
20
21
2.
Background
On October 7, 2009, Dr. Nathan E. Lavid, a board-certified
22 psychiatrist, performed a complete psychiatric evaluation of
23 Plaintiff at the agency’s request.
(AR 304-07.)
He found that
24 Plaintiff complained of panic attacks and took the medication
25 Ativan,6 which she said was helpful.
(AR 304.)
Plaintiff was
26
27
28
6
Ativan, or lorazepam, is a benzodiazepine used to relieve
anxiety. Lorazepam, MedlinePlus, http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682053.html (last updated Oct. 1,
7
1 well dressed, had good hygiene, a normal gait, and a full range
2 of affect.
(AR 304, 306.)
Her thought processes were goal
3 directed and she was able to recall three items immediately and
4 one item after five minutes.
(AR 306.)
Dr. Lavid noted that
5 Plaintiff was “unable to perform serial 3s accurately, but was
6 able to concentrate throughout the evaluation.”
7 diagnosed “Panic Disorder vs. Anxiety Disorder.”
(Id.)
(Id.)
He
Under
8 “functional assessment,” Dr. Lavid noted that the examination
9 “revealed no evidence of cognitive deficits, perceptual
10 disturbances or delusional disorders” and that Plaintiff was able
11 to “focus her attention adequately,” “follow 1- and 2-part
12 instructions,” and “adequately remember and complete simple
13 tasks.”
(AR 307.)
Dr. Lavid found that “[c]onsidering that
14 [Plaintiff] reports a partial response to treatment and performed
15 reasonably well during the mental status examination today, I
16 believe that in her current mental state, she does have the
17 ability to tolerate the stress inherent in the work environment,
18 maintain regular attendance, and work without supervision.”
19 (Id.)
20
On October 28, 2009, Dr. L.O. Mallare, a psychiatrist,7
21 reviewed Plaintiff’s medical records and completed psychiatric22 review-technique and mental-RFC forms.
(AR 313-26.)
In the PRT
23
24 2010).
25
7
Dr. Mallare’s electronic signature includes a medical
26 specialty code of 37, indicating psychiatry. (AR 313); see
Program Operations Manual System (“POMS”) DI 26510.089, U.S. Soc.
27 Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms.
nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin.
28 (Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090.
8
1 form, Dr. Mallare opined that Plaintiff suffered from an anxiety
2 disorder that resulted in mild restriction of activities of daily
3 living, mild difficulties in maintaining social functioning, and
4 mild difficulties in maintaining concentration, persistence, or
5 pace.
(AR 317, 321.)
He noted that Plaintiff was able to
6 perform “SRT,” or simple repetitive tasks.
(AR 323.)
In the
7 mental-RFC form, Dr. Mallare found that Plaintiff was “moderately
8 limited” in her ability to understand, remember, and carry out
9 detailed instructions but was not significantly limited in any
10 other area, including her ability to understand, remember, and
11 carry out very short and simple instructions.
(AR 324-35.)
He
12 found that Plaintiff had “adequate mental function to perform 1-2
13 step instr[uctions],” was able to “interact appropriately w[ith]
14 others,” and could “adapt to simple changes in the work-place.”
15 (AR 326.)
On December 29, 2009, Dr. P.M. Balson, also a
16 psychiatrist,8 reviewed Plaintiff’s medical records and affirmed
17 Dr. Mallare’s findings.
18
19
3.
(AR 330-31.)
Analysis
The ALJ concluded that Plaintiff’s depression and anxiety
20 “d[id] not cause more than minimal limitation in [Plaintiff’s]
21 ability to perform basic mental work activities” and were
22 therefore “nonsevere.”
(AR 28.)
In doing so, the ALJ summarized
23 Dr. Lavid’s opinion as finding that Plaintiff was “able to
24 perform simple and complex tasks, maintain regular work
25 attendance, work without supervision, and tolerate normal work
26
27
8
Like Dr. Mallare, Dr. Balson’s signature included a medical
(AR 331.)
28 specialty code of 37, indicating psychiatry.
9
1 environment stress.”
(AR 27.)
The ALJ concluded that Dr. Lavid
2 “effectively found [Plaintiff] to have no mental impediments to
3 functioning in a work environment” and that Drs. Mallare and
4 Balson found “no more than, at most, mild deficits.”
(AR 28.)
5 The ALJ, moreover, “reject[ed]” Dr. Mallare’s finding on the
6 mental-RFC form that Plaintiff’s ability to perform “complex
7 tasks” was moderately limited, finding it inconsistent with “the
8 other medical evidence of record,” Dr. Lavid’s “clinical
9 findings,” Plaintiff’s “statements regarding her mental ability
10 to perform daily living tasks to Dr. Lavid,” and Dr. Mallare’s
11 finding in the PRT form that Plaintiff had “no more than ‘mild’
12 deficit in all areas of mental functioning.”
13
(Id.)
The ALJ’s finding that Plaintiff’s mental impairment
14 resulted in no functional limitations must be reversed because it
15 is based on a mischaracterization of Dr. Lavid’s opinion and is
16 unsupported by substantial evidence.
Contrary to the ALJ’s
17 observation, Dr. Lavid never opined that Plaintiff could perform
18 “complex tasks” or indicated that she “effectively” had no
19 impediment to maintaining employment.
(See AR 27-28.)
Rather,
20 Dr. Lavid’s “functional assessment” was that Plaintiff could
21 follow “1- and 2-part instructions” and adequately remember and
22 complete “simple tasks.”
(AR 307 (emphasis added).)
By the same
23 token, the ALJ erred in rejecting Dr. Mallare’s opinion as
24 inconsistent with Dr. Lavid’s findings and the record evidence,
25 because in fact the three physicians who rendered opinions
26 regarding Plaintiff’s mental functioning – Drs. Lavid, Mallare,
27 and Balson – all agreed that she should be limited to performing
28 some form of simple work.
(See AR 307, 323, 326, 331.)
10
1
The ALJ also mistakenly rejected Dr. Mallare’s findings
2 based on Plaintiff’s statements to Dr. Lavid “regarding her
3 mental ability to perform daily living tasks.”
(See AR 28.)
4 Plaintiff reported to Dr. Lavid that she was able to go on
5 errands, dress and bathe herself, attend church, and visit her
6 daughter and granddaughter.
(AR 306.)
None of those activities
7 appear to involve complex tasks or detailed instructions.
As
8 such, they are not inconsistent with Dr. Mallare’s opinion.
9
Finally, the ALJ points to the supposed conflict between Dr.
10 Mallare’s finding in the PRT form that Plaintiff had only “mild”
11 deficits in all areas of functioning (AR 321) and his finding in
12 the mental-RFC assessment that she had “moderate” limitations in
13 understanding, remembering, and carrying out detailed
14 instructions (AR 324-25).
(AR 28.)
But those findings do not
15 necessarily conflict given that the language used in the two
16 check-off forms does not correspond: in the PRT form, the
17 “degree[s] of limitation” were listed as “none,” “mild,”
18 “moderate,” “marked,” and “extreme” (AR 321), whereas in the
19 mental-RFC form, the degrees of limitation were listed as “not
20 significantly limited,” “moderately limited,” and “markedly
21 limited”9 (AR 324-25).
Moreover, in the mental-RFC assessment,
22 Dr. Mallare found that Plaintiff was moderately limited only in
23 understanding, remembering, and carrying out detailed
24 instructions and was not significantly limited in the other 18
25 categories, which does not appear to be inconsistent with the PRT
26
27
28
9
The mental-RFC form also included places for indicating “no
evidence of limitation in this category” and “not ratable on
available evidence.” (AR 324-25.)
11
1 form’s overall finding of only mild limitations.
2 324-25 with AR 321.)
(Compare AR
And in any event, in the PRT form, Dr.
3 Mallare explicitly referred to his findings in the mental-RFC
4 assessment and stated, consistent with his opinion in that
5 document, that Plaintiff was “capable of SRT,” or simple
6 repetitive tasks.
(AR 323.)
As such, his findings in the two
7 forms do not appear to be inconsistent.
8
Because the ALJ erred in rejecting the doctors’ findings
9 that Plaintiff was limited to simple tasks, that portion of her
10 decision must be reversed.
11
12
4.
Remand for further proceedings is appropriate
When, as here, the ALJ improperly discredited medical-
13 opinion evidence, the Court generally has discretion to remand
14 for further proceedings.
See Harman v. Apfel, 211 F.3d 1172,
15 1175-78 (9th Cir. 2000).
When no useful purpose would be served
16 by further administrative proceedings, however, or when the
17 record has been fully developed, it is appropriate under the
18 “credit-as-true” rule to direct an immediate award of benefits.
19 Id. at 1179 (noting that “the decision of whether to remand for
20 further proceedings turns upon the likely utility of such
21 proceedings”); see also Garrison v. Colvin, 759 F.3d 995, 1020
22 (9th Cir. 2014) (noting that credit-as-true rule applies to
23 medical opinion evidence).
24
Under the credit-as-true framework, three circumstances must
25 be present before the Court may remand to the ALJ with
26 instructions to award benefits: “(1) the record has been fully
27 developed and further administrative proceedings would serve no
28 useful purpose; (2) the ALJ has failed to provide legally
12
1 sufficient reasons for rejecting evidence, whether claimant
2 testimony or medical opinion; and (3) if the improperly
3 discredited evidence were credited as true, the ALJ would be
4 required to find the claimant disabled on remand.”
5 F.3d 1020.
Garrison, 759
When, however, the ALJ’s findings are so
6 “insufficient” that the Court cannot determine whether the
7 rejected testimony should be credited as true, the Court has
8 “some flexibility” in applying the credit-as-true rule.
Connett
9 v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also
10 Garrison, 759 F.3d at 1020 (noting that Connett established that
11 credit-as-true rule may not be dispositive in all cases).
This
12 flexibility should be exercised “when the record as a whole
13 creates serious doubt as to whether the claimant is, in fact,
14 disabled within the meaning of the Social Security Act.”
15 Garrison, 759 F.3d at 1021.
16
Plaintiff argues that if her RFC included a limitation to
17 simple repetitive tasks, she would be found disabled based on the
18 VE’s testimony in response to one of the ALJ’s hypotheticals.
19 (J. Stip. at 22; see also AR 99-100.)
20 however, Plaintiff’s argument fails.
As a factual matter,
The ALJ found that
21 Plaintiff had the RFC to perform essentially a full range of
22 medium work.
(AR 29.)
The ALJ’s hypothetical to the VE,
23 however, included a limitation to standing and walking only two
24 hours in an eight-hour day (see AR 99-100), whereas medium work
25 generally requires standing and walking six hours in an eight26 hour day, see SSR 83–10, 1983 WL 31251, at *6 (Jan. 1, 1983)
27 (“full range of medium work requires standing or walking, off and
28 on, for a total of approximately 6 hours in an 8–hour workday”)
13
1 and light work requires “a good deal of walking or standing” and
2 generally more than the two hours required by sedentary work,
3 id. at *5.
Thus, the VE’s testimony does not establish that
4 Plaintiff would be unable to perform any light- or medium5 exertion work if she were limited to performing only simple
6 tasks.
Accordingly, the third of the three requirements for a
7 remand for benefits has not been met.
Moreover, because further
8 VE testimony is needed to determine whether sufficient jobs exist
9 that Plaintiff can perform, the first of the three requirements
10 has not been met, either.
11
Remand is appropriate so that the ALJ can reconsider
12 Plaintiff’s RFC in light of her apparent limitation to “simple
13 tasks” with one- to two-step instructions (see AR 307, 323, 326,
14 331) and elicit appropriate VE testimony regarding whether
15 sufficient jobs exist that Plaintiff can perform given her
16 physical and mental limitations.
Because the parties’ other
17 contested issues will not necessarily be reassessed as part of
18 those proceedings on remand, the Court addresses each of them
19 below and finds that none warrant reversal.
20
21
22
B.
The ALJ Properly Considered the Treating Physician’s
Opinion
Plaintiff contends that the ALJ committed reversible error
23 in not affording controlling weight to Plaintiff’s treating
24 physician, Dr. Golanty.
25
26
1.
(J. Stip. at 4.)
Applicable law
Three types of physicians may offer opinions in Social
27 Security cases: (1) those who directly treated the plaintiff, (2)
28 those who examined but did not treat the plaintiff, and (3) those
14
1 who did not treat or examine the plaintiff.
2 830.
Lester, 81 F.3d at
A treating physician’s opinion is generally entitled to
3 more weight than that of an examining physician, and an examining
4 physician’s opinion is generally entitled to more weight than
5 that of a nonexamining physician.
6
Id.
This is true because treating physicians are employed to
7 cure and have a greater opportunity to know and observe the
8 claimant.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
9 If a treating physician’s opinion is well supported by medically
10 acceptable clinical and laboratory diagnostic techniques and is
11 not inconsistent with the other substantial evidence in the
12 record, it should be given controlling weight.
§ 416.927(c)(2).
13 If a treating physician’s opinion is not given controlling
14 weight, its weight is determined by length of the treatment
15 relationship, frequency of examination, nature and extent of the
16 treatment relationship, amount of evidence supporting the
17 opinion, consistency with the record as a whole, the doctor’s
18 area of specialization, and other factors.
19
§ 416.927(c)(2)-(6).
When a treating or examining doctor’s opinion is not
20 contradicted by some evidence in the record, it may be rejected
21 only for “clear and convincing” reasons.
See Carmickle v.
22 Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)
23 (quoting Lester, 81 F.3d at 830-31).
When a treating or
24 examining physician’s opinion is contradicted, the ALJ must
25 provide only “specific and legitimate reasons” for discounting
26 it.
Id.
The weight given an examining physician’s opinion,
27 moreover, depends on whether it is consistent with the record and
28 accompanied by adequate explanation, among other things.
15
1 § 416.927(c)(3)-(6).
2
3
2.
Relevant facts
On September 30, 2009, Dr. Concepcion A. Enriquez, who was
4 board eligible in internal medicine, completed an internal
5 medical consultation at the agency’s request.
(AR 300-03.)
Dr.
6 Enriquez found that Plaintiff was 63.5 inches tall and weighed
7 225 pounds.
(AR 301.)
She was able to generate 25 pounds of
8 force using the right hand and 45 pounds of force with her left,
9 dominant hand.
(Id.)
Her cervical and lumbar spine had normal
10 ranges of motion, no tenderness, and no spasm.
(AR 301-02.)
She
11 had normal ranges of motion in her upper and lower extremities,
12 normal muscle tone and bulk, and “5/5” strength throughout.
(AR
13 302.)
Her sensation was “intact to pinprick and light touch.”
14 (Id.)
Plaintiff’s gait and balance were normal, and she did not
15 need an assistive device to walk.
(AR 302-03.)
Dr. Enriquez
16 noted that Plaintiff “has symptoms of diabetic neuropathy,
17 including numbness on her hands and feet,” but on examination her
18 “[m]otor, sensory, and reflexes are all intact,” she could “do
19 fine and gross manipulation using her fingers with no problem,”
20 and her gait and balance were normal.
21
(AR 303.)
Dr. Enriquez diagnosed history of high blood pressure and
22 diabetes.
(AR 302.)
She opined that Plaintiff could lift and
23 carry 50 pounds occasionally and 25 pounds frequently, stand and
24 walk with normal breaks for six hours in an eight-hour day, and
25 sit for six hours in an eight-hour day, and she must avoid
26 unprotected heights and operating dangerous machinery.
27
(AR 303.)
On October 22, 2009, Dr. P.N. Ligot, who specialized in
28
16
1 internal medicine,10 reviewed Plaintiff’s medical records and
2 completed a physical-RFC-assessment form.
(AR 308-12.)
Dr.
3 Ligot listed Plaintiff’s diagnoses as diabetes mellitus,
4 hypertension, and morbid obesity.
(AR 308.)
He believed
5 Plaintiff could lift and carry 50 pounds occasionally and 25
6 pounds frequently, stand and walk about six hours in an eight7 hour day, sit about six hours in an eight-hour day, and perform
8 unlimited pushing and pulling; he also believed she must avoid
9 “concentrated exposure” to hazards such as machinery and heights.
10 (AR 309-11.)
On December 24, 2009, Dr. Myung Sohn, who also
11 specialized in internal medicine,11 reviewed Plaintiff’s medical
12 evidence and affirmed Dr. Ligot’s assessment.
13
(AR 329.)
On February 1, 2011, Plaintiff’s treating physician, Dr.
14 Golanty, completed a medical-statement form and physical-RFC
15 questionnaire.
(AR 335-40.)
In the medical-statement form, Dr.
16 Golanty checked that Plaintiff suffered from type II diabetes,
17 “[i]nsulin resistance,” neuropathy, and nephropathy; he wrote
18 “hands/feet” next to “nephropathy” on the form.12
(AR 335.)
Dr.
19
20
10
Dr. Ligot’s electronic signature includes a medical
(AR 312);
see Program Operations Manual System (POMS) DI 26510.089, U.S.
Soc. Sec. Admin. (Oct. 25, 2011), http://policy.ssa.gov/poms.
nsf/lnx/0426510089; POMS DI 26510.090, U.S. Soc. Sec. Admin.
(Aug. 29, 2012), http://policy.ssa.gov/poms.nsf/lnx/0426510090.
21 specialty code of 19, indicating internal medicine.
22
23
24
25
26
27
28
11
Dr. Sohn’s electronic signature also listed a medical
specialty code of 19, indicating internal medicine. (AR 329.)
12
Diabetic nephropathy is kidney disease or damage that
occurs in people with diabetes. Diabetes and kidney disease,
MedlinePlus, http://www.nlm.nih.gov/medlineplus/ency/article/
000494.htm (last updated Sept. 8, 2014). It is unclear why Dr.
Golanty wrote “hands/feet” next to this entry on the form.
17
1 Golanty opined that Plaintiff could work zero hours a day, stand
2 15 minutes at a time, sit 60 minutes at a time, occasionally and
3 frequently lift five pounds, and occasionally balance.
(Id.)
He
4 wrote that her neuropathy prohibited standing for more than 15
5 mintues without a break to sit down.
6
(Id.)
In the physical-RFC questionnaire, Dr. Golanty listed
7 Plaintiff’s diagnoses as insulin-requiring diabetes mellitus type
8 II.
(AR 336.)
He listed her symptoms as “parasthesias [sic],”13
9 pain, and numbness of the hands and feet, and the “clinical
10 findings and objective signs” as decreased sensation with
11 “microfilament.”
(Id.)
Dr. Golanty opined that Plaintiff could
12 not walk a block without rest or severe pain, could sit 15
13 minutes and stand 15 minutes at a time, and could sit or stand
14 each for less than two hours total in an eight-hour workday.
15 337-38.)
(AR
He believed Plaintiff needed to walk for 10 minutes
16 every 10 minutes in an eight-hour workday and would need to take
17 unscheduled breaks every 15 to 60 minutes.
(AR 338.)
18 would not need to be elevated while sitting.
(Id.)
Her legs
Dr. Golanty
19 checked that Plaintiff could “rarely” lift less than 10 pounds
20 and above, and she could only “occasionally” look down or up,
21 turn her head, or hold her head in a “static position.”
22 39.)
(AR 338-
She could rarely twist, stoop, or crouch and never climb
23
13
“Paresthesia refers to a burning or prickling sensation
24 that is usually felt in the hands, arms, legs, or feet, but can
25 also occur in other parts of the body.” NINDS Paresthesia Info.
26
27
28
Page, Nat’l Inst. Neurological Disorders and Stroke,
http://www.ninds.nih.gov/disorders/paresthesia/paresthesia.htm
(last updated Feb. 14, 2014). “The sensation, which happens
without warning, is usually painless and described as tingling or
numbness, skin crawling, or itching.” Id.
18
1 ladders or stairs.
(AR 339.)
Plaintiff had significant
2 limitations on her ability to perform “fingering.”
(Id.)
Dr.
3 Golanty opined that Plaintiff’s depression and anxiety affected
4 her physical condition, her pain would “constantly” interfere
5 with her ability to concentrate enough to perform simple work
6 tasks, and she was incapable of even “low stress” jobs.
7 337.)
(AR
He believed that she would miss more than four days of
8 work a month because of her impairments or treatment.
(AR 339.)
9 At the end of the form, Dr. Golanty wrote, “[t]he problem is
10 neuropathy + insulin issues for [diabetes] care” and “[t]his is
11 not ortho stuff!”
12
(Id.)
After summarizing the record evidence, the ALJ found that
13 Plaintiff could perform “medium work” that did not involve
14 unprotected heights, hazardous conditions, or dangerous
15 equipment.
(AR 29.)
The ALJ found that her RFC was consistent
16 with the evidence and the findings of Drs. Enriquez, Ligot, and
17 Sohn.
(AR 34.)
The ALJ, moreover, considered Dr. Golanty’s
18 opinion but gave several reasons for finding it not “persuasive
19 or controlling.”
20
21
3.
(AR 33.)
Analysis
Contrary to Plaintiff’s contention (J. Stip. at 4), the ALJ
22 was not obligated to accord “controlling weight” to Dr. Golanty’s
23 opinion because she permissibly found that it was unsupported by
24 sufficient clinical evidence and inconsistent with the record.
25 See § 416.927(c)(2).
As discussed below, moreover, the ALJ was
26 entitled to discount Dr. Golanty’s opinion for those reasons and
27 because it was based primarily on Plaintiff’s discredited
28 subjective complaints.
19
1
The ALJ permissibly discounted Dr. Golanty’s opinion because
2 his clinical findings and the record as a whole “fail to support
3 his highly restrictive functional assessment.”
(AR 32); see
4 § 416.927(c)(4) (explaining that more weight should be afforded
5 to medical opinions that are consistent with the record as a
6 whole); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685,
7 692–93 (9th Cir. 2009) (contradiction between treating
8 physician’s opinion and his treatment notes constitutes specific
9 and legitimate reason for rejecting opinion); Houghton v. Comm’r
10 Soc. Sec. Admin., 493 F. App’x 843, 845 (9th Cir. 2012) (holding
11 that ALJ’s finding that doctors’ opinions were “internally
12 inconsistent, unsupported by their own treatment records or
13 clinical findings, [and] inconsistent with the record as a whole”
14 constituted specific and legitimate bases for discounting them).
15 Indeed, Dr. Golanty found that Plaintiff was extremely limited by
16 her neuropathy and “insulin issues,” but very few clinical
17 findings support his conclusion.
Physicians noted on a few
18 occasions that Plaintiff had decreased sensation in her
19 extremities (see, e.g., AR 266 (July 2009, noting decreased
20 sensation during foot exam), 341 (Feb. 2011, noting decreased
21 sensation in extremities bilaterally), 392 (Aug. 2011, noting
22 “some loss of protective sensation in both feet”)), but as the
23 ALJ noted, the record is devoid of any objective
24 “electromyographic tests” confirming or showing the extent of
25 Plaintiff’s “diminished sensation or nerve functioning” (AR 32).
26 Indeed, although one of Plaintiff’s treating physicians
27 apparently ordered such tests (see AR 266 (writing “NCT/EMG,”
28 presumably, nerve-conduction test and electromyography, under “P”
20
1 for plan in treatment note)), the results are not in the record
2 and nothing indicates that Plaintiff ever underwent them.
3 Moreover, Dr. Enriquez examined Plaintiff in September 2009 and
4 found that she had intact sensation and normal gait and balance
5 (AR 302), and during an emergency-room visit for treatment of a
6 cough in March 2009, Plaintiff was noted to have “5/5” motor
7 strength throughout, intact cranial nerves, and a “steady gait”
8 (AR 269).
Such findings do not support Dr. Golanty’s opinion
9 that Plaintiff suffered from debilitating limitations because of
10 her peripheral neuropathy and “insulin issues.”
11
As the ALJ found, moreover, Dr. Golanty’s notes show that
12 Plaintiff “has only complained intermittently over the years of
13 tingling in her extremities, with large gaps in the record
14 between such complaints.”
(AR 32.)
Indeed, Plaintiff was first
15 noted to have diabetic neuropathy in March 2006, when she
16 complained of “tingling” in her hands and feet.
(AR 292.)
But
17 although Plaintiff claims to have been disabled since May 15,
18 2007 (AR 171), her doctors did not again note her complaints of
19 neuropathy symptoms until July 2009, when a physician in Dr.
20 Golanty’s office found that Plaintiff had decreased sensation in
21 her feet and diagnosed neuropathy.14
(AR 266.)
Thereafter,
22 physicians in Dr. Golanty’s office noted Plaintiff’s reports of
23 neuropathy or related symptoms only in December 2009, May and
24
25
26
27
28
14
Specifically, no neuropathy symptoms were noted on
treatment records dated March (AR 291), May (AR 290), July (AR
288), September (AR 284), and December 2006 (AR 282); May (AR
280) and November 2007 (AR 277); March (AR 276), April (AR 274),
August (AR 273), and November 2008 (AR 271); and March 2009 (AR
351-52).
21
1 October 2010, and February 2011.15
(See AR 341-42, 345, 348.)
2 The ALJ also correctly noted that nothing supported Dr. Golanty’s
3 assertion that Plaintiff’s medical condition would require
4 frequent absences from work, because her treatment records showed
5 “little more than routine medical care or treatment for
6 transitory issues, and do not reflect a pattern of flare ups or
7 frequent exacerbations of her diabetes or other medical issues.”
8 (AR 32.)
9
The ALJ further found that Plaintiff did not have “any
10 orthopedic problems to account for Dr. Golanty’s restrictions
11 regarding [her] ability to lift, carry, move her neck and engage
12 in postural movement.”
(Id.)
Indeed, Dr. Golanty listed
13 Plaintiff’s symptoms as including only paresthesia, pain, and
14 numbness of the hands and feet (AR 336), none of which appear to
15 support his opinion that Plaintiff could, for example, only
16 occasionally look down, turn her head right or left, look up, and
17 hold her head in a static position; rarely twist, stoop, crouch,
18 and squat; and lift and carry only 5 pounds frequently and up to
19 50 pounds rarely (AR 335, 338-39).16
Dr. Golanty, moreover,
20 stated in his opinion that Plaintiff’s “problem” was neuropathy
21
22
23
24
25
26
27
28
15
In June 2010, Dr. Golanty noted that Plaintiff’s blood
sugar was “ok” and did not mention any neuropathy symptoms or
diagnosis. (AR 344.)
16
Dr. Golanty’s opinions in the medical-statement and
physical-RFC forms also conflict with each other. For example,
he opined in the medical-statement form that Plaintiff could
occasionally and frequently lift only five pounds and could sit
for 60 minutes at a time (AR 335), but in the physical-RFC form
he checked that she could “rarely” lift and carry less than 10
pounds and above and could sit for only 15 minutes at a time (AR
337-38).
22
1 and “insulin issues,” not “ortho stuff” (AR 339), and none of his
2 treatment notes reflect that Plaintiff suffered from reduced
3 ranges of motion or that her ability to make certain movements
4 was in any way limited (see generally AR 266-93, 341-53).
Dr.
5 Enriquez, moreover, examined Plaintiff and found that she had
6 normal ranges of motion of the cervical and lumbar spine and
7 upper and lower extremities, normal muscle tone and bulk, and
8 “5/5” strength throughout (AR 301-02), and an emergency-room
9 doctor similarly found that Plaintiff had “5/5” motor strength
10 (AR 269).
Indeed, Plaintiff never asserted that her impairments
11 affected her ability to lift, squat, bend, or kneel.
12 (Plaintiff’s function report).)
(See AR 200
For all of these reasons, the
13 ALJ was entitled to discount Dr. Golanty’s opinion that Plaintiff
14 suffered from debilitating physical limitations because it was
15 unsupported by his treatment notes and the record as a whole.
16
Plaintiff nevertheless argues that the ALJ’s rejection of
17 Dr. Golanty’s opinion was improper because she incorrectly found
18 that after March 2006, Plaintiff did not complain of neuropathy
19 symptoms again until October 2010 (AR 32), when in fact her
20 doctors noted such complaints beginning in July 2009 (see AR
21 266).
(J. Stip. at 5.)
But as discussed above, the ALJ
22 correctly noted “large gaps” between Plaintiff’s complaints of
23 neuropathy.
Moreover, she correctly found that Dr. Golanty’s
24 opinion was unsupported by his treatment notes and the other
25 record evidence.
As such, any error in the ALJ’s summary of the
26 evidence was harmless.
See Stout v. Comm’r Soc. Sec. Admin., 454
27 F.3d 1050, 1055 (9th Cir. 2006) (nonprejudicial or irrelevant
28 mistakes harmless); see also Wright v. Comm’r of Soc. Sec., 386
23
1 F. App’x 105, 109 (3d Cir. 2010) (Tashima, J., sitting by
2 designation) (ALJ’s misstatements in written decision harmless
3 error when regardless of them “ALJ gave an adequate explanation
4 supported by substantial evidence in the record”).
5
The ALJ also permissibly discounted Dr. Golanty’s finding of
6 extreme limitations because it appeared to be premised largely on
7 Plaintiff’s subjective complaints, which, as discussed in Section
8 V.B below, the ALJ properly discredited.
(See AR 32-33 (noting
9 that Dr. Golanty “appears to have taken [Plaintiff’s] subjective
10 allegations at face value and merely reiterated those allegations
11 in his report and when making his assertions regarding
12 [Plaintiff’s] ability to work”); Tommasetti v. Astrue, 533 F.3d
13 1035, 1041 (9th Cir. 2008) (“An ALJ may reject a treating
14 physician’s opinion if it is based to a large extent on a
15 claimant’s self-reports that have been properly discounted as
16 incredible.” (internal quotation marks omitted)); Tonapetyan v.
17 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (when ALJ properly
18 discounted claimant’s credibility, he was “free to disregard”
19 doctor’s opinion that was premised on claimant’s properly
20 discounted subjective complaints).
Indeed, as previously
21 discussed, the treatment notes from Dr. Golanty’s office reflect
22 very few objective findings to support a diagnosis of peripheral
23 neuropathy and instead reflect mostly Plaintiff’s own report of
24 her symptoms.17
And in his physical-RFC assessment, Dr. Golanty
25
26
27
28
17
Specifically, in July 2009, a doctor conducted a foot
examination and found that Plaintiff had decreased sensation (AR
266), and in February 2011, a doctor noted that Plaintiff had
decreased sensation bilaterally in her extremities (AR 341). The
other notes seem merely to record Plaintiff’s own report of her
24
1 listed only “decreased sensation” under “clinical findings and
2 objective signs.”
(AR 336.)
Thus, as the ALJ found, it appears
3 that much of Dr. Golanty’s opinion as to Plaintiff’s limitations
4 was based on her discredited subjective complaints, and the ALJ
5 was therefore entitled to discredit his opinion.
6
The ALJ also found that Dr. Golanty’s “general lack of
7 medical treatment beyond medication, insulin and advised
8 lifestyle changes fail [sic] to support his highly restrictive
9 functional assessment.”18
(AR 32); Rollins v. Massanari, 261
10 F.3d 853, 856 (9th Cir. 2001) (holding that ALJ properly rejected
11 opinion of treating physician who prescribed conservative
12 treatment yet opined that claimant was disabled).
Plaintiff does
13 not contest that Dr. Golanty prescribed only medication,
14 including insulin, and recommended that she improve her diet and
15 exercise, but she argues that this was not a proper reason for
16 discounting his opinion because “[f]ailing to pursue non17 conservative treatment options is not substantial evidence where
18
symptoms.
In December 2009, Dr. Golanty noted “neuropathy” and
19 Plaintiff’s report that it “affects hands/feet,” she “can’t
20 write,” and she “can’t stand.” (AR 348.) In May 2010, Dr.
Golanty noted “neuropathy” but did not record any symptoms or
(AR 345.) In June
2010, Dr. Golanty noted that Plaintiff’s blood sugar was “ok” and
did not mention any neuropathy symptoms or diagnosis. (AR 344.)
And in October 2010, Plaintiff reported that she had been unable
to afford insulin, had not taken it for “months at a time,” and
complained of “neuropathy in hands and feet,” but Dr. Golanty did
not record any clinical findings to support Plaintiff’s
complaints. (AR 342.)
21 clinical findings related to that condition.
22
23
24
25
26
27
28
18
In any event, it appears that Plaintiff often failed to
follow her prescribed treatment. (See, e.g., AR 280 (noting
Plaintiff had not been taking insulin because of “stress”), 342
(noting “poor diet and exercise control” and that Plaintiff
“states she knows she needs to improve diet + exercise”).
25
1 none exists.”
(J. Stip. at 6 (citing Lapeirre-Gutt v. Astrue,
2 382 F. App’x 662, 664 (9th Cir. 2010) (holding that “[a] claimant
3 cannot be discredited for failing to pursue non-conservative
4 treatment options where none exist”).)
But Dr. Golanty
5 presumably could have provided other treatment, such as
6 prescribing a cane, recommending further testing of her
7 peripheral neuropathy, prescribing stronger pain medication, or
8 referring her to a pain-management doctor or other specialist.
9 In any event, even if the ALJ improperly relied on this finding
10 in discounting Dr. Golanty’s opinion, it was harmless because she
11 gave other legally sufficient reasons for doing so.
See Stout,
12 454 F.3d at 1055; cf. Carmickle v. Comm’r, Soc. Sec. Admin., 533
13 F.3d 1155, 1162-63 (9th Cir. 2008) (ALJ’s reliance on erroneous
14 reasons for adverse credibility determination harmless when
15 substantial evidence supported determination and errors did not
16 negate its validity).
17
Moreover, the ALJ was entitled to rely on the opinions of
18 Drs. Enriquez, Ligot, and Sohn instead of Dr. Golanty’s opinion
19 because they were supported by independent clinical findings and
20 thus constituted substantial evidence.
See Tonapetyan, 242 F.3d
21 at 1149; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).
22 Before rendering her opinion, Dr. Enriquez performed an internal
23 medical examination of Plaintiff, finding, for example, that
24 Plaintiff had normal ranges of motion, intact sensation, normal
25 muscle tone, 5/5 strength, and normal gait and balance.
26 03.)
(AR 300-
Drs. Ligot’s and Sohn’s opinions, moreover, relied on Dr.
27 Enriquez’s and were consistent with it.
(AR 312, 329); see
28 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The
26
1 opinions of non-treating or non-examining physicians may also
2 serve as substantial evidence when the opinions are consistent
3 with independent clinical findings or other evidence in the
4 record.”).
Dr. Sohn, moreover, explicitly stated that he had
5 “reviewed all the evidence in the file” before affirming Dr.
6 Ligot’s RFC finding.
(AR 329); see § 416.927(c)(3) (in weighing
7 medical opinions, ALJ “will evaluate the degree to which these
8 opinions consider all of the pertinent evidence in [claimant’s]
9 claim, including opinions of treating and other examining
10 sources”).
Thus, any conflict in the properly supported medical-
11 opinion evidence was “solely the province of the ALJ to resolve.”
12 Andrews, 53 F.3d at 1041.
13
Finally, to the extent Plaintiff argues that Dr. Golanty’s
14 opinion should have been credited over Dr. Enriquez’s because he
15 is Board certified and Dr. Enriquez is only Board eligible (J.
16 Stip. at 6-7), that argument fails.19
Dr. Enriquez did not need
17 to be Board certified to practice medicine in California, nor
18 does Plaintiff allege that her training was inadequate to permit
19 a thorough and valid examination.
See Kladde v. Astrue, No. ED
20 CV 07-01439(SH), 2009 WL 838104, at *5 (C.D. Cal. Mar. 26, 2009)
21 (finding record supported ALJ’s decision to give greater weight
22 to examining doctor when Plaintiff did not allege that his
23 Board-eligible status rendered him unable to conduct valid
24
25
26
27
28
19
A physician becomes Board eligible upon completion of the
training necessary for Board certification in a given specialty.
See General Policies & Requirements, Am. Bd. of Internal Med.,
http://www.abim.org/certification/policies/general-policiesrequirements.aspx (last visited Sept. 18, 2014). Board
eligibility lasts seven years or until the physician passes the
examination for certification in a given specialty. Id.
27
1 assessment).
2
Reversal is not warranted on this ground.
3
C.
4
Plaintiff contends that the ALJ’s adverse credibility
The ALJ Properly Discounted Plaintiff’s Credibility
5 determination was not supported by substantial evidence.
6 Stip. at 12.)
(J.
Remand is not warranted on this ground, however,
7 because the ALJ provided clear and convincing reasons, supported
8 by substantial evidence, for discounting Plaintiff’s credibility.
9
10
1.
Applicable law
An ALJ’s assessment of symptom severity and claimant
11 credibility is entitled to “great weight.”
See Weetman v.
12 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779
13 F.2d 528, 531 (9th Cir. 1986).
“[T]he ALJ is not required to
14 believe every allegation of disabling pain, or else disability
15 benefits would be available for the asking, a result plainly
16 contrary to 42 U.S.C. § 423(d)(5)(A).”
Molina v. Astrue, 674
17 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks
18 omitted).
In evaluating a claimant’s subjective symptom
19 testimony, the ALJ engages in a two-step analysis.
20 Lingenfelter, 504 F.3d at 1035-36.
See
“First, the ALJ must
21 determine whether the claimant has presented objective medical
22 evidence of an underlying impairment [that] could reasonably be
23 expected to produce the pain or other symptoms alleged.”
24 1036 (internal quotation marks omitted).
Id. at
If such objective
25 medical evidence exists, the ALJ may not reject a claimant’s
26 testimony “simply because there is no showing that the impairment
27 can reasonably produce the degree of symptom alleged.”
28 80 F.3d at 1282 (emphasis in original).
28
Smolen,
When the ALJ finds a
1 claimant’s subjective complaints not credible, the ALJ must make
2 specific findings that support the conclusion.
See Berry v.
3 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).
4
Absent affirmative evidence of malingering, those findings
5 must provide “clear and convincing” reasons for rejecting the
6 claimant’s testimony.
Lester, 81 F.3d at 834.
If the ALJ’s
7 credibility finding is supported by substantial evidence in the
8 record, the reviewing court “may not engage in second-guessing.”
9 Thomas, 278 F.3d at 959.
10
11
2.
Relevant facts
In a July 2009 function report, Plaintiff stated that her
12 daily activities included reading the Bible, talking on the phone
13 with family members, spending time with her daughter, looking
14 after her granddaughter, and watching “small amounts” of
15 television.
(AR 195.)
She wrote that it took her almost 1.5
16 hours to perform personal care because of hand numbness.
17 196.)
(AR
She did not prepare meals or perform household chores.
18 (AR 197.)
She went outside every day, but someone always had to
19 be with her because of her “severe” panic attacks.
(AR 198.)
20 Plaintiff asserted that she wore glasses “because of diabetes.”
21 (AR 199.)
22 (Id.)
She regularly went to church and her daughter’s house.
Plaintiff reported that she could stand for one hour or
23 less, walk for 30 minutes or less, sit for one hour or less, use
24 her hands for 20 minutes, concentrate for one hour, and “pay
25 attention” for 30 minutes.
(AR 200.)
She could walk for 10
26 minutes before needing to rest for one hour.
27
(Id.)
In an undated disability report, Plaintiff reported that as
28 of June 2009, she was able to use her hands only a few minutes at
29
1 a time, could not wear closed-toe shoes because of “pain [and]
2 swelling,” and had panic attacks that had worsened since the
3 death of her stepmother.
(AR 235, 240.)
In a January 2010
4 disability report, Plaintiff stated that as of October 1, 2009,
5 her hands and feet were numb “more often” and for “longer periods
6 of time,” she could not wear closed-toe shoes for long periods of
7 time, and “some days writing [was] hard.”
8
(AR 251.)
At the November 8, 2011 hearing, Plaintiff testified that
9 she could no longer work because of “bad pain” in her legs, feet,
10 and fingers from neuropathy.
(AR 81.)
Plaintiff could no longer
11 write and could not wear shoes for more than 20 minutes because
12 of her condition.
(Id.)
She testified that she could walk from
13 her chair to the bathroom or to get a glass of water before
14 needing to sit for 15 to 20 minutes.
(AR 82.)
When caring for
15 her granddaughter, she only had to warm food for her and see that
16 she ate, and her granddaughter would just “sit with me the rest
17 of the day until her mother gets there.”
(AR 83.)
Plaintiff
18 said she needed to elevate both feet “[m]ostly all day.”20
19 84.)
(AR
She felt that her hammer toes and heel spurs contributed to
20 her foot pain.
(AR 92.)
Plaintiff was unable to “keep [her]
21 hands straight” or comb her hair because of hand pain.
(AR 94.)
22 She asserted that her depression also played a role in her
23 disability.
(AR 93-94.)
She attended church every Saturday and
24 during church was able to walk around, remove her shoes, and lie
25 down.
(AR 97.)
26
27
28
20
Plaintiff’s assertion conflicts with Dr. Golanty’s finding
that her legs would not need to be elevated with prolonged
sitting. (AR 338.)
30
1
2
3.
Analysis
The ALJ found that Plaintiff’s conditions could reasonably
3 be expected to cause her alleged symptoms, but her statements
4 concerning the intensity, persistence, and limiting effects of
5 those symptoms were not credible to the extent they were
6 inconsistent with Plaintiff’s RFC for medium work.
(AR 30-31.)
7 For the reasons discussed below, the ALJ permissibly discounted
8 Plaintiff’s subjective symptom testimony.
9
The ALJ noted that Plaintiff “has generally not participated
10 in the work force in any significant manner and, since losing her
11 last job, has not apparently made a significant effort to seek
12 out new employment.”
(AR 33.)
Indeed, Plaintiff’s work-history
13 report showed only a few brief periods of employment, even before
14 she allegedly became disabled: she reported working as a
15 childcare provider for friends and relatives “only when needed”
16 from 1985 to 2000, a baggage clerk at a supermarket from May to
17 July 2004, a cashier at Rite Aid from April to May 2006, and a
18 clerk at Walmart from April to May 2007.
(AR 211, 215.)
19 not sought employment since leaving her job at Walmart.
She had
(AR 83.)
20 Moreover, a Social Security earnings report shows that from 1985
21 to 2010, Plaintiff’s only earnings were $1766 in 2004, $1009 in
22 2006, and $342 in 2007.
23 earnings were $8174.21
(AR 176.)
(Id.)
Her total lifetime reported
In discounting Plaintiff’s
24 credibility, the ALJ was entitled to rely on Plaintiff’s poor
25 work history even before she allegedly became disabled.
See
26
27
28
21
Plaintiff earned less than $500 in each of the years 1977,
1978, 1982, 1983, and 1984, and she earned only about $2300 in
1979 and $1300 in 1981. (AR 176.) She had no income in 1980.
(Id.)
31
1 Thomas, 278 F.3d at 959 (ALJ permissibly discounted credibility
2 when claimant “had an extremely poor work history and has shown
3 little propensity to work in her lifetime” (internal quotation
4 marks omitted)).
5
The ALJ also permissibly discounted Plaintiff’s credibility
6 based on her inconsistent statements regarding her limitations.
7 The ALJ noted that Plaintiff asserted that she was “severely
8 restricted in her ability to move about, perform even simple self
9 care tasks, and perform household chores” (AR 33), but in October
10 2009, she told examining psychiatrist Lavid that she could go on
11 errands, dress and bathe herself, attend church, and visit her
12 daughter and granddaughter (AR 33, 306).
Plaintiff also claimed
13 that she was unable to go out alone because of her panic attacks
14 (AR 198) and that she could walk only from her chair to the
15 bathroom or kitchen before needing to rest for 15 to 20 minutes
16 (AR 82), but as the ALJ noted (AR 33), in February 2011,
17 Plaintiff reported to her doctor that she had walked “unassisted”
18 and alone from home to the medical clinic (AR 378).22
Such
19 inconsistencies are a clear and convincing reason for discounting
20 Plaintiff’s credibility.
See Tommasetti, 533 F.3d at 1039
21 (holding that ALJ may consider many factors in weighing
22 claimant’s credibility, including “ordinary techniques of
23 credibility evaluation, such as . . . inconsistent statements
24 concerning the symptoms”).
25
22
Plaintiff asserts that the ALJ erred in relying on this
26 fact because she did not develop the record as to how far
27 Plaintiff lived from the doctor’s office. (J. Stip. at 13.)
28
But
no matter how close it was, it was substantially farther than
from the chair to the bathroom and thus undermined Plaintiff’s
credibility.
32
1
The ALJ also noted that Plaintiff testified that she had
2 problems with prolonged sitting but was “able to apparently sit
3 comfortably during the 80-minute hearing”; moreover, although
4 Plaintiff reported difficulty concentrating, at the hearing her
5 thoughts “did not seem to wander and all questions were answered
6 alertly and appropriately.”
(AR 33.)
The ALJ was permitted to
7 rely on her observations of Plaintiff at the hearing as one of
8 several factors affecting Plaintiff’s credibility, given the
9 inconsistencies between Plaintiff’s claims and those
10 observations.
See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
11 2007) (ALJ’s personal observations may be used in overall
12 evaluation of credibility but cannot form “sole basis” for
13 credibility determination); Thomas, 278 F.3d at 960 (ALJ properly
14 relied on claimant’s “demeanor at the hearing” in discounting
15 credibility); SSR 96–7p, 1996 WL 374186, at *5 (July 2, 1996)
16 (“[T]he adjudicator may also consider his or her own recorded
17 observations of the individual as part of the overall evaluation
18 of the credibility of the individual’s statements.”).
19
Plaintiff argues, however, that “[g]iven the
20 [videoconferenced] hearing and the technical difficulties, it
21 remains unclear to what extent the ALJ was able to adequately
22 observe [her] demeanor” at the hearing.
(J. Stip. at 14.)
It is
23 true that the hearing was conducted by videoconference (at
24 Plaintiff’s request (see AR 67-69)) and that the parties
25 experienced some lost connections or issues with the recording
26 equipment (see AR 72, 75, 85-87), but those problems were all
27 resolved and the hearing was successfully conducted and recorded
28 (see AR 77-78, 88).
Plaintiff’s claim fails because nothing
33
1 indicates that the ALJ was unable to adequately observe Plaintiff
2 over the course of the lengthy hearing.
See McGovern v. Astrue,
3 No. 3:11-CV-05148-RBL, 2012 WL 966430, at *15 (W.D. Wash. Mar. 1,
4 2012) (rejecting as “mere[] speculation” plaintiff’s argument
5 that ALJ was not able to notice plaintiff’s discomfort because
6 “only video hearings were held”), accepted by 2012 WL 963737
7 (W.D. Wash. Mar. 21, 2012).
8
Finally, the ALJ rejected Plaintiff’s testimony as
9 “generally unsupported by the medical evidence.”
(AR 33.)
10 Indeed, although Plaintiff claimed to be significantly limited by
11 her neuropathy, examining physician Enriquez found that Plaintiff
12 had normal ranges of motion in her upper and lower extremities,
13 normal muscle tone and bulk, “5/5” strength throughout, intact
14 sensation, and normal gait and balance.
(AR 302-03.)
The ALJ
15 also noted that although Plaintiff claimed her diabetes affected
16 her vision (AR 199), Dr. Enriquez found that she “retained 20/30
17 bilateral uncorrected vision” (AR 32; see also 301), and
18 Plaintiff and her daughter both reported that she could read the
19 Bible (AR 32; see also AR 195, 203).
This, too, was a clear and
20 convincing reason for discounting Plaintiff’s credibility.
See
21 Carmickle, 533 F.3d at 1161 (“Contradiction with the medical
22 record is a sufficient basis for rejecting the claimant’s
23 subjective testimony.”); Lingenfelter, 504 F.3d at 1040 (in
24 determining credibility, ALJ may consider “whether the alleged
25 symptoms are consistent with the medical evidence”); see also
26 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although
27 lack of medical evidence cannot form the sole basis for
28
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1 discounting pain testimony, it is a factor that the ALJ can
2 consider in his credibility analysis.”).
3
Because the ALJ’s credibility determination is supported by
4 substantial evidence, this Court may not second-guess it.
5 Thomas, 278 F.3d at 959.
Reversal is not warranted on this
6 ground.
7
D.
8
Plaintiff contends that the ALJ committed “reversible error”
The ALJ Properly Evaluated Plaintiff’s Obesity
9 by failing to “make any findings how or to what extent
10 [P]laintiff’s obesity affected [her] functional limitations.”
11 (J. Stip. at 19.)
For the reasons discussed below, Plaintiff’s
12 argument fails.
13
As a general rule, an ALJ must determine the effect of a
14 claimant’s obesity upon her other impairments and ability to
15 work.
Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003); see
16 also SSR 02–1p, 2002 WL 34686281 (Sept. 12, 2002) (requiring ALJ
17 to consider effects of obesity at several points in five-step
18 sequential evaluation).
An ALJ must “evaluate each case based on
19 the information in the case record,” as obesity may or may not
20 increase the severity or functional limitations of other
21 impairments.
22
SSR 02–1p, 2002 WL 34686281, at *6.
Here, the ALJ fully considered Plaintiff’s obesity when
23 formulating her RFC.
The ALJ noted Plaintiff’s weights of 208,
24 225, and 228 pounds at various medical appointments (AR 25-26)
25 and concluded that her obesity was a severe impairment (AR 25).
26 And Dr. Ligot explicitly included in his physical-RFC assessment
27 a diagnosis of “Morbid Obesity (BMI 40).”
(AR 308.)
Plaintiff,
28 moreover, does not point to any limitations attributable to her
35
1 obesity that the ALJ ignored; instead, she cites to treatment
2 notes in which her doctors simply recommended that she lose
3 weight or exercise.
4 348).)
(J. Stip. at 20 (citing AR 280, 282, 341-42,
Indeed, Plaintiff’s own treating physician, Dr. Golanty,
5 failed even to list obesity among Plaintiff’s diagnoses in his
6 RFC opinions, nor did he attribute any of her alleged limitations
7 to that condition.
(See AR 335-40.)
As such, the ALJ adequately
8 considered Plaintiff’s obesity in formulating her RFC.
See
9 Burch, 400 F.3d at 684 (ALJ adequately considered obesity in RFC
10 determination when he recognized obesity “likely contributed to
11 [plaintiff’s] back discomfort” and plaintiff “has not set forth,
12 and there is no evidence in the record, of any functional
13 limitations as a result of her obesity that the ALJ failed to
14 consider”); Garcia v. Comm’r of Soc. Sec. Admin., 498 F. App’x
15 710, 712 (9th Cir. 2012) (ALJ adequately considered obesity by
16 “recogniz[ing] [it] as a severe impairment” and “consider[ing]
17 his obesity and rel[ying] on functional limits suggested by
18 doctors who recognized it” when assessing RFC).
19
Plaintiff is not entitled to reversal on this ground.
20 VI.
CONCLUSION
21
Accordingly, IT IS HEREBY ORDERED that (1) the decision of
22 the Commissioner is REVERSED; (2) Plaintiff’s request for remand
23 is GRANTED; and (3) this action is REMANDED for further
24 proceedings consistent with this Memorandum Opinion.
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IT IS FURTHER ORDERED that the Clerk of the Court serve
2 copies of this Order and the Judgment herein on all parties or
3 their counsel.
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7 DATED:September 30, 2014
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______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge
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