Dickey v. Commissioner of Social Security

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/30/2015 DENYING 14 Motion for Summary Judgment; GRANTING 18 Cross-Motion for Summary Judgment. CASE CLOSED. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID DEAN DICKEY,

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Plaintiff,

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No. 2:13-cv-2463-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying his application for a period of disability and Disability Insurance

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Benefits (“DIB”) under Title II of the Social Security Act. The parties have filed cross-motions

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for summary judgment. For the reasons discussed below, plaintiff’s motion is denied and

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defendant’s motion is granted.

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I.

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BACKGROUND
Plaintiff filed an application for a period of disability and DIB on May 21, 2010, alleging

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that he had been disabled since January 1, 2010. Administrative Record (“AR”) 134-140.

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Plaintiff’s application was denied initially and upon reconsideration. Id. at 73-76, 84-86. On July

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2, 2012, a hearing was held before administrative law judge (“ALJ”) Wynne O’Brien-Persons.

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Id. at 31-70. Plaintiff was represented by counsel at the hearing, at which he and a vocational

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expert (“VE”) testified. Id.
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On July 19, 2010, the ALJ issued a decision finding that plaintiff was not disabled under

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sections 216(i) and 223(d) of the Act.1 Id. at 18-26. The ALJ made the following specific

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findings:

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1. The claimant meets the insured status requirements of the Social Security Act through
March 31, 2013.

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2. The claimant has not engaged in substantial gainful activity since January 1, 2010, the
alleged onset date (20 CFR 404.1571 et seq.).

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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3. The claimant has the following severe impairments: degenerative changes of the cervical
and lumbar spine, shoulder pain of an unknown etiology, obesity, asthma, sleep apnea,
and depression (20 CFR 404.1520(c)).
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4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).
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5. After careful consideration of the entire record, I find that the claimant has the residual
functional capacity to perform light work as defined in 20 CFR 404.1567(b) with no more
than occasional climbing ladders, ropes, or scaffolds; no more than occasional crawling;
no more than frequent kneeling; no more than frequent right-sided overhead reaching; no
more than frequent left-sided gross manipulation; no exposure to concentrated heat or
hazards; and not even moderate exposure to pulmonary irritants.

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***
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on August 13, 1968 and was 41 years old, which is defined as a
younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564).
9. Transferability of jobs skills is not material to the determination of disability because
using the Medical-Vocational Rules as a framework supports a finding that the claimant is
“not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and
20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and residual functional
capacity, there are jobs that exist in significant numbers in the national economy that the
claimant can perform (20 CFR 404.1569 and 404.1569(a)).
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11. The claimant has not been under a disability, as defined in the Social Security Act, from
January 1, 2010, through the date of this decision (20 CFR 404.1520(g)).
Id. at 20-26.

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Plaintiff requested that the Appeals Council review the ALJ’s decision, id. at 14, and on

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September 23, 2013, the Appeals Council denied review, leaving the ALJ’s decision as the final

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decision of the Commissioner. Id. at 1-5.
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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

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ANALYSIS
Plaintiff contends that the ALJ erred by (1) improperly discrediting the opinion of

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plaintiff’s treating therapist; and (2) failing to provide a proper rationale for discounting

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plaintiff’s subjective complaints. ECF No. 14 at 10-16.

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A.

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Plaintiff argues that the ALJ improperly discredited the opinion of Marci Hinchey,

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plaintiff’s treating therapist. 2 ECF No. 14 at 10-13. Ms. Hinchey completed a mental assessment

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of plaintiff on August 10, 2011. AR 616-619. She diagnosed plaintiff with major depression and

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post-traumatic stress disorder, based on her clinical findings of depressed mood. Id. at 616. Ms.

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The ALJ Properly Discounted Plaintiff’s Treating Therapist’s Opinion

The record indicates that Ms. Hinchey has a master’s degree in Marriage Family
Therapy (“MFT”) and is a licensed Alcohol and Drug Counselor. AR 616.
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Hinchey opined that plaintiff had a fair ability to deal with the public; use judgment; understand,

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remember, and carry out detailed and simple job instructions. Id. at 616-617. She also opined

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plaintiff had a poor ability to deal with work stress; function independently; maintain

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attention/concentration; and understand, remember, and carry out complex job instructions. Id.

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Ms. Hinchey further opined that plaintiff needed a fifteen minute break every hour and could

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manage benefits in his own best interest. Id. at 618-619. Plaintiff contends that the ALJ failed to

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provide legally sufficient reasons for discrediting those opinions. ECF No. 14 at 10-13.

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The applicable regulations provide that a therapist, although a treating medical source, is

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viewed as an “other source” and not as an “acceptable medical source.” SSR 06-03p, 2006 SSR

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LEXIS 5; 20 C.F.R. § 404.1513(d)(1); See Stephens v. Colvin, 2014 U.S. Dist. LEXIS 170423, at

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*12 (N.D. Cal. Dec. 9, 2014) (holding plaintiff’s therapist, MFT, qualifies as an “other source.”).

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An ALJ need only give germane reasons for rejecting the opinion from an “other source.” Molina

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v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Inconsistency with other evidence in the record is

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a germane reason for an ALJ to discount testimony. See Bayliss v. Barnhart, 427 F.3d 1211,

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1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001) (“One reason for which an ALJ

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may discount lay testimony is that it conflicts with medical evidence.”).

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Here, the ALJ accorded partial weight to Ms. Hinchey’s assessment “insofar that it

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acknowledged some concentration problems,” but partially discounted the opinion as the overall

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record does not demonstrate that plaintiff’s limitations in concentration and persistence preclude

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him from performing simple work tasks. AR 24. The ALJ’s finding is supported by substantial

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evidence in the record. In a Function Report completed by plaintiff, he stated he has four kids,

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ages six to seventeen, and two dogs that he helps care for. Id. at 195. Plaintiff also indicated that

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he does laundry, mows the lawn, drives, and goes shopping once a week with his wife for one to

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three hours at a time. Id. at 196-197. Plaintiff further indicated that he is able to pay bills, handle

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a savings account, and use a checkbook/money orders. Id. at 197. These activities, which were

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discussed by the ALJ, support her finding that plaintiff’s impairments in concentration and

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persistence would not preclude unskilled work as opined as opined by Ms. Hinchey.

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Plaintiff contends that “the ALJ failed to even reference or comment on Therapist

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Hinchey’s opinion that Mr. Dickey would require at least a fifteen minute break every hour.”

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ECF. No. 14 at 11. As plaintiff adds that “there is a requirement to consider all relevant evidence

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in an individual’s case record, [and] the case record should reflect the consideration of opinions

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from medical sources who are not ‘acceptable medical sources’ . . . who have seen the claimant in

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their professional capacity.” Id. (quoting SSR 06-03p, 2006 SSR LEXIS 5). Plaintiff appears to

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suggest that the ALJ could not have given a germane reason for rejecting this particular opinion—

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requiring breaks every fifteen minutes—because it was not referenced in her decision. The

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argument overlooks the fact that the ALJ rejected Ms. Hinchey’s opinion that plaintiff lacked the

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ability to maintain concentration and persistence through simple work tasks, which necessarily

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includes rejecting her opinion that plaintiff requires a break every fifteen minutes due to those

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concentration impairments. Although the ALJ’s decision does not recite Ms. Hinchey’s opinion

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that plaintiff would need breaks every fifteen minutes, it is clear that he rejected it as inconsistent

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with the overall record. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (an ALJ

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need not recite “magic words” for the decision to be valid and a reviewing court may draw

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inferences relevant to the ALJ’s analysis “if those inferences are there to be drawn”).3

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The ALJ gave a germane reason for discounting Ms. Hinchey’s opinion, and therefore did
not err in rejecting her opinion.

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B.

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Plaintiff next argues that the ALJ erred by failing to give sufficient reasons for

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The ALJ Properly Rejected Plaintiff’s Subjective Complaints and Credibility

discrediting his subjective complaints. ECF No. 14 at 14-16.

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In evaluating whether subjective complaints are credible, the ALJ should first consider

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objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991) (en banc). If there is objective medical evidence of impairment, the ALJ may

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Plaintiff also argues that as a result of improperly discrediting Ms. Hinchey’s opinion,
the ALJ failed to find plaintiff disabled based on the testimony of the VE. ECF No. 14 at 10-13.
This argument is based solely on plaintiff’s contention that the ALJ improperly rejected his
treating therapist’s opinions. As explained above, the ALJ did not err in rejecting this evidence.
Accordingly, the ALJ was not required to rely on the VE testimony that included such limitations.
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then consider the nature of the symptoms alleged, including aggravating factors, medication,

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treatment and functional restrictions. See id. at 345-347. The ALJ also may consider: (1) the

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applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent

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testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment, and (3) the applicant’s daily activities. Smolen, 80 F.3d at 1284.

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Work records, physician and third party testimony about nature, severity and effect of symptoms,

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and inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec.

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Admin., 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly

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debilitating medical problem may be a valid consideration by the ALJ in determining whether the

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alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of

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HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own

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observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot

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substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990).

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“Without affirmative evidence showing that the claimant is malingering, the Commissioner’s

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reasons for rejecting the claimant’s testimony must be clear and convincing.” Morgan, 169 F.3d

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at 599.

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Plaintiff testified that he suffers from serious sleep apnea, depression, anxiety, chronic

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asthma, back and neck pain, and swelling of the legs. AR 36, 40-44. He testified that he often

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only gets three hours of sleep a night due to his sleep apnea, his legs swell three to four times per

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week, and he has been in the hospital about twenty-five times in the past three years mainly due

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to his asthma. Id. at 41-42, 44. Plaintiff stated that his sleep apnea causes him to fall asleep

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while driving, and that he has “some type of pain all the time.” Id. at 39, 46. Plaintiff also

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testified that he can lift ten to twelve pounds, but regularly drops things, can climb stairs and

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swim, stand for fifteen minutes at a time, sit for thirty-five minutes at a time, and is limited in

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kneeling, squatting, and overhead reaching. Id. 46-49. However, plaintiff also admitted that he

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walks two miles with a friend about three to four times per week; can generally take care of his

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personal needs, unless his back goes out, which occurs three to four times per year; and is able to

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drive, go out alone, vacuum, make the bed, garden, go to church and to his kids’ events, and go
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grocery shopping with his wife, although he usually rides in the electric cart while at the grocery

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store. Id. at 46, 50-53. Plaintiff further testified that he has extensive memory and concentration

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issues, and feels that his mental and physical impairments would preclude him from working a

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normal work week. Id. at 55-56.

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The ALJ found that plaintiff’s statements regarding the extent of his limitations were not

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fully credible. First, the ALJ found that plaintiff’s reported daily activities contradict the extent

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of limitations he alleged. AR 22; See Smolen, 80 F.3d at 1284 (an ALJ may rely on inconsistent

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testimony in assessing a claimant’s credibility). As previously discussed, plaintiff testified that he

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is capable of performing housework, caring for his kids, driving, gardening, and going for two

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mile long walks three to four times per week. Id. at 46-53. However, in the Function Report,

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plaintiff also testified that he “can’t bend, walk, [or] lift anything,” does “not get along with any

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of [his] immediate [neighbors,] and [has] paranoid thoughts of getting along with friends.” Id. at

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199. Plaintiff’s statements that he is incapable of bending, walking, or lifting and that he doesn’t

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get along with neighbors and is paranoid of his friends is not consistent with his testimony of two

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mile walks three to four times per week with a friend. These statements are also inconsistent with

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plaintiff’s reported activities, such as caring for his kids and pets, driving, gardening, and

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performing housework.

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Plaintiff claims that the “ALJ’s characterization of Mr. Dickey’s daily activities . . . [is]

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not accurate.” ECF No. 14 at 15. He further argues that “mere evidence of the ability to perform

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housework, shop alone, or go to the doctor was not inconsistent with a finding of disability.” Id.

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at 16. Plaintiff’s argument mischaracterizes the ALJ’s basis for discrediting his subjective

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complaints. The ALJ did not broadly find that plaintiff’s reported daily activities are inconsistent

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with disability. Rather, he focused on specific alleged limitations and the claimed severity of

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those limitations and found that plaintiff’s reported activities contradicted other allegations,

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including his claim that he had significant limitations in standing, walking, sitting, and postural

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movement. See AR 22; Molina, 674 F.3d at 1113 (“Even where those activities suggest some

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difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the extent

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that they contradict claims of a totally debilitating impairment.”). As the ALJ’s finding was

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supported by substantial evidence, there was no error in discounting plaintiff’s testimony.

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Furthermore, the ALJ provided other clear and convincing reasons for rejecting plaintiff’s

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testimony, none of which are contested by plaintiff. The ALJ discredited plaintiff’s subjective

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complaints for the additional reason that they are not supported by objective medical evidence.

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Id. at 23. While an ALJ may not rely solely on a lack of objective medical evidence to support an

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adverse credibility finding, it is a relevant consideration in assessing credibility. See Moisa v.

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Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Morgan, 169 F.3d at 595. Although plaintiff went

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to the hospital several times from 2010 to 2012 for his asthma, the clinical findings on each visit

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were minimal and the results of plaintiff’s x-rays, respiratory work up, cardiovascular tests were

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unremarkable with no acute findings. AR 474, 478, 508-509, 519, 520, 557, 570.

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The ALJ also noted that plaintiff demonstrated improvement in his symptoms with

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treatment. Id. at 23. Plaintiff has treated his back pain with pain medication, nerve root block

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injections, and radiofrequency therapy. After plaintiff’s first radiofrequency treatment in 2009 he

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reported a forty percent reduction in pain and that his activity level was “quite good.” Id. at 282.

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It was also noted in January 2012, that the occasional lumbar epidurals he receives “seem to

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benefit him enormously.” Id. at 706. Further, plaintiff’s treating physician, Dr. Held, noted that

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plaintiff’s “sleep apnea has responded well to treatment” and that plaintiff’s “prognosis for his

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sleep apnea would be considered good as is his prognosis for his asthma. . . .” Id. at 621. The

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ALJ was permitted to find that plaintiff’s allegations were not fully credible in light of evidence

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showing that plaintiff’s impairments were managed with medication. The ALJ permissibly found

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that this medical evidence did not support plaintiff’s allegations of disabling impairments.

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Lastly, the ALJ discounted plaintiff’s testimony of debilitating mental impairment as it

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was inconsistent with the minimal treatment received. Id. at 23-24. Evidence of “conservative

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treatment” is sufficient to discount a claimant’s testimony regarding severity of an impairment.

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See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (citing Johnson v. Shalala, 60 F.3d

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1428, 1434 (9th Cir. 1995)). At the hearing on July 2, 2012 plaintiff testified that he “just finally

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got into a . . . psychiatrist.” Id. at 41. However, for the two years prior to the hearing, plaintiff’s
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alleged severe mental impairments were treated solely with depression medication, which were

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taken intermittently, and inconsistent therapy sessions with a counselor. Id. at 1004, 1006, 1012,

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plaintiff’s testimony of severe mental impairments.

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Accordingly, the ALJ gave numerous clear and convincing reasons for discounting

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plaintiff’s subjective complaints.

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IV.

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CONCLUSION
The ALJ applied the proper legal standard and supported his decision with substantial

evidence. Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment is denied;

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2. The Commissioner’s cross-motion for summary judgment is granted; and

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3. The Clerk is directed to enter judgment in the Commissioner’s favor.

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DATED: March 30, 2015.

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