Diesta v. Carolyn W. Colvin, Commissioner of Social Security
Filing
26
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER re 1 - Signed by JUDGE HELEN GILLMOR on 11/15/2016. "The Commissioner of Social Security Administration's decision is AFFIRMED . The Clerk of Court is Ordered to CLOSE THE CASE." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM Q. DIESTA,
)
)
Plaintiff,
)
)
)
vs.
)
CAROLYN W. COLVIN, Social
)
Security Administration
)
)
Commissioner,
)
)
Defendant.
_______________________________ )
CIVIL NO. 15-00465 HG-KSC
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER
This case involves the appeal of the Social Security
Administration Commissioner’s denial of Disability Insurance
Benefits and Supplemental Security Income benefits to Plaintiff
William Q. Diesta.
On February 6, 2013, Plaintiff filed an application for
Disability Insurance Benefits and Supplemental Security Income
pursuant to Titles II and XVI of the Social Security Act on the
grounds that he has been disabled since he was in a car accident
in December 2011 and hit his head on the steering wheel.
Plaintiff was diagnosed at various points as having: degenerative
disc disease, post-concussion syndrome, a history of viral bulbar
myelopathy, and a cognitive disorder.
Plaintiff filed
applications for Social Security benefits, claiming that his
1
conditions have prevented him from working since December 30,
2011.
The Social Security Administration denied his application.
Following an administrative hearing, the Administrative Law Judge
(“ALJ”) held that Plaintiff was not disabled at any time from
December 30, 2011 through the date of the ALJ’s decision of
August 1, 2014.
The Appeals Council denied Plaintiff's request
for review and Plaintiff appealed to this Court.
The Court AFFIRMS the decision of the Social Security
Administration Commissioner.
PROCEDURAL HISTORY
On February 25, 2013, Plaintiff William Q. Diesta filed an
application for Disability Insurance Benefits with the Social
Security Administration.
180, ECF No. 14).
(Administrative Record (“AR”) at 176-
On the same date, Plaintiff William Q. Diesta
filed an application for Supplemental Security Income.
(AR at p.
169-175).
In May and November 2013, the Social Security Administration
denied Plaintiff’s initial applications and his requests for
reconsideration.
(AR at pp. 118-122, 126-128, 129-131).
Following the denial of Plaintiff’s application, he sought a
hearing before an Administrative Law Judge (“ALJ”) and on May 20,
2014, an ALJ conducted a hearing on Plaintiff’s applications.
2
(AR at pp. 29-53, 132-33).
On August 1, 2014, the ALJ issued a written decision denying
Plaintiff’s applications and Plaintiff sought review by the
Appeals Council for the Social Security Administration.
pp. 8-28).
(AR at
The Appeals Council denied further review of
Plaintiff’s applications on October 22, 2014, rendering the ALJ’s
decision as the final administrative decision by the Commissioner
of Social Security.
(AR at pp. 1-7).
On November 5, 2015, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny his
applications for Disability Benefits and Supplemental Security
Income in this Court pursuant to 42 U.S.C. § 405(g).
(Complaint
for Review of Social Security Disability and Supplemental
Security Income Benefits Determinations, ECF No. 1).
On February 29, 2016, the Magistrate Judge issued a briefing
schedule.
(ECF No. 16).
On April 18, 2016, Plaintiff filed PLAINTIFF’S OPENING
BRIEF.
(ECF No. 17).
On June 16, 2016, Defendant filed DEFENDANT’S MOTION FOR A
FIRST EXTENSION OF 35 DAYS TO FILE THE ANSWERING BRIEF, which was
granted.
(ECF Nos. 18, 19).
On July 25, 2016, Defendant filed DEFENDANT’S ANSWERING
BRIEF.
(ECF No. 21).
On August 22, 2016, Plaintiff filed PLAINTIFF’S REPLY BRIEF.
3
(ECF No. 22).
On September 28, 2016, Defendant filed a letter requesting a
continuance of the hearing date.
(ECF No. 23).
On September 29, 2016, the Court issued a Minute Order
granting Defendant’s request for a continuance.
(ECF No. 24).
On October 11, 2016, the Court held a hearing on Plaintiff’s
appeal of the decision of the Social Security Administration
Commissioner.
BACKGROUND
Plaintiff is a 51 year old male.
(“AR”) at p. 54, ECF No. 14).
his car on the island of Oahu.
(Administrative Record
Plaintiff is homeless and lives in
(Id. at p. 34).
On December 30, 2011, Plaintiff was in a car accident where
he hit his head on the steering wheel.
(Id. at pp. 34, 38-39).
On February 6, 2013, Plaintiff filed applications for
Disability Insurance benefits and for Supplemental Security
Income, alleging that he has been disabled following the December
30, 2011 car accident.
(Id. at pp. 169-175).
Plaintiff claimed
that he suffered from lightheadedness, headaches, and dizziness
following the car accident, which have limited his ability to
work.
(Id.)
Plaintiff’s applications were denied and reconsideration was
denied by the Social Security Administration.
Following
Plaintiff’s request, a hearing was held before an Administrative
4
Law Judge.
The Administrative Law Judge denied Plaintiff’s application
for Disability Insurance and Supplemental Security Income
benefits.
(Id. at pp. 22-23).
The Administrative Law Judge
found that although Plaintiff could not perform his previous work
as a handyman, there was work that existed in significant numbers
in the economy that Plaintiff could perform.
(Id. at pp. 22-23).
The Administrative Law Judge relied on the testimony of a
vocational expert to find that someone with Plaintiff’s
limitations could perform work as a Small-Products Assembler,
Inspector, and Marker.
(Id. at p. 22).
Plaintiff sought review of the Administrative Law Judge’s
decision with the Appeals Council, which denied Plaintiff's
request for review and rendered a final administrative decision
by the Commissioner of Social Security.
(Id. at pp. 1-3).
STANDARD OF REVIEW
A claimant is disabled under the Social Security Act if he
or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which ... has lasted or can be expected to last for a
continuous period of not less than 12 months.”
42 U.S.C. §
423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005).
5
A decision by the Commissioner of Social Security must be
affirmed by the District Court if it is based on proper legal
standards and the findings are supported by substantial evidence
on the record as a whole.
See 42 U.S.C. § 405(g); Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971);
see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir.
1993).
ANALYSIS
I.
Plaintiff’s History and Claimed Disability
The Administrative Record reflects that Plaintiff was born
in the Kalihi neighborhood of Honolulu, on the island of Oahu,
Hawaii, on March 30, 1965.
54, 354, ECF No. 14).
(Administrative Record (“AR”) at pp.
Plaintiff graduated from Farrington High
School in Honolulu in 1984.
(Id. at p. 354).
Between 2003 and 2010, Plaintiff had a steady work history
as a self-employed handyman.
(Id. at pp. 35-38).
Plaintiff
stated that he used to strip and wax floors, clean carpets, paint
houses, do carpentry, and build countertops and cabinets.
at pp. 45-46).
(Id.
Plaintiff testified that he stopped working in
early 2011 due to lack of work.
(Id. at pp. 37-38).
6
On December 30, 2011, Plaintiff was in a car accident where
he hit his head on the steering wheel.
(Id. at pp. 34, 38-39).
Plaintiff filed his applications for disability with the Social
Security Administration, claiming that he was unable to work
following his December 2011 accident.
Plaintiff alleged he was
disabled and unable to work due to the following conditions:
I get dizzy spell, light headed, headaches, buzzing
sound in my head when laying down from neck to the head
moving, when I hear noise it echo in high pitch, I get
tired fast, gotta go sleep, I can’t held my head for
long, irritated, get mad easily.
(Id. at p. 244).
Plaintiff stated that dizziness, lightheadedness, and severe
headaches prevent him from concentrating and maintaining his
balance.
(Id. at p. 41-44, 47-48).
Plaintiff is homeless and lives in his car in Honolulu.
(Id. at p. 34).
Plaintiff stated that he is able to maintain an
independent homeless lifestyle and has chosen not to live with
family members.
(Id. at p. 48).
Plaintiff testified that he has
headaches up to four times a day and takes several naps a day.
(Id. at p. 41).
Plaintiff reported that he spends his time
drinking coffee, reading the paper, doing crossword puzzles,
going to sleep, and eating.
(Id. at p. 245).
Plaintiff stated
that occasionally his children take him out to eat.
(Id. at p.
248).
Plaintiff testified that he can sit for a long time, stand
7
for ten minutes at a time, and walk for ten minutes at a time.
(Id. at p. 42).
ten pounds.”
Plaintiff stated that he can lift “may five or
(Id. at p. 43).
Plaintiff is able to pay bills, count change, and use an EBT
card to manage his finances.
(Id. at pp. 222, 247, 355).
Plaintiff testified that he is able to perform independent tasks,
perform personal care, obtain meals and feed himself, do laundry,
take walks, and shop in stores.
II.
(Id. at p. 43-44, 47).
Objective Medical Evidence
In 2001, Plaintiff was diagnosed with viral bulbar
myelopathy,1 which is an impairment to the nerve tissue in the
brainstem.
(AR at pp. 330, 341-42, ECF No. 14); see Dorland’s
Illustrated Medical Dictionary 1167 (29th ed. 2000).
The viral
bulbar myelopathy caused numbness on the right side of
Plaintiff’s face.
(AR at p. 342, ECF No. 14).
Plaintiff’s
facial numbness was resolved within the first year of treatment.
(Id.)
Plaintiff did not report that his viral bulbar myelopathy
interfered with his ability to work following the first year of
treatment.
1
Viral bulbar myelopathy is a lesion on the nerve tissue
surrounding that spinal cord that may cause facial numbness. See
Dorland’s Illustrated Medical Dictionary 1167 (29th ed. 2000).
8
A.
December 30, 2011 Car Accident
On December 30, 2011, Plaintiff was in a car accident and he
went to the Kaiser Permanente Emergency Room.
No. 14).
(AR at p. 550, ECF
The medical records from the visit stated that
Plaintiff was rear ended while in a car that was stopped.
(Id.)
Plaintiff did not lose consciousness from the accident, the
vehicle was not overturned, the airbag was not deployed, and the
windshield was in tact.
(Id.)
Plaintiff arrived at the ER as a walk-in with “moderate”
head and neck pain.
(Id.)
Plaintiff’s physical exam revealed he
was “oriented to person, place and time.
developed and well-nourished.
He appears well-
No distress.”
(Id. at p. 551).
A
computed tomography (“CT”) scan of Plaintiff’s head was performed
that showed no abnormalities.
B.
(Id. at p. 553).
Plaintiff’s Medical Treatment Within a Year of the
December 30, 2011 Accident
On January 3, 2012, at a follow-up appointment with General
Practitioner Dr. Russell Tacata, Plaintiff was prescribed Vicodin
and Motrin for his head and neck pain and he was referred to
physical therapy and therapeutic massages for pain treatment.
(AR at p. 474, ECF No. 14).
Plaintiff’s physical therapist and chiropractor Dr. Eugene
Kitts referred him to Y&M Radiology for a magnetic resonance
9
imaging (“MRI”) of Plaintiff’s neck and spine.
(Id. at p. 317).
The January 13, 2012 MRI demonstrated that Plaintiff had some
degeneration of the discs2 in his spine and mild neural foraminal
stenosis.3
(Id. at pp. 318-319).
Plaintiff was also referred to Neurologist Dr. Thomas Drazin
for examination.
(Id. at p. 283).
On February 8, 2012, Dr.
Drazin examined Plaintiff and his MRI results and found that
Plaintiff suffered from moderate degenerative disc disease in his
spine but no herniation.
(Id. at p. 283).
Dr. Drazin concluded
that Plaintiff had post-concussive syndrome4 headaches as a
result of the car accident and gave Plaintiff prescription
strength Naproxen for his headaches.
(Id. at p. 284).
On February 29, 2012, Dr. Drazin conducted a computed
tomography (“CT”) of Plaintiff’s head and neck.
The CT scan of
Plaintiff’s head was “normal” and showed no serious
abnormalities.
(Id. at pp. 278-79, 285).
Dr. Drazin determined
that “[c]onservative treatment should be pursued” and that there
2
Degenerative disc disease is a condition where the discs
in an individual’s spine degenerate, or slowly break down, over
time.
3
Neural forminal stenosis is the narrowing of the spacing
where the spinal nerves are located in the spinal column caused
by encroachment of the bone on the space. See Dorland’s
Illustrated Medical Dictionary 1698 (29th ed. 2000).
4
Post-concussion syndrom occurs after a blow to the head or
body. Common symptoms including headaches. (Administrative
Record at p. 320, ECF No. 14).
10
was no need for “any type of cervical surgery.”
(AR at p. 285,
ECF No. 14).
Plaintiff had therapeutic massages from January 2012 to
March 2012 (id. at pp. 497-548) and went to physical therapy from
December 2011 until July 2012.
(Id. at pp. 491-495).
On July 9, 2012, Plaintiff visited Kaiser Permanente and was
seen by Dr. Hyewon Jun.
(Id. at p. 338-39).
Plaintiff
complained of neck pain, headache, and dizziness.
338).
(Id. at p.
Dr. Jun conducted a neurological exam and found that the
results were “normal,” and that Plaintiff had a normal mental
status and normal gait.
(Id. at p. 339).
Plaintiff was offered
medication for his headache and neck pain, but he declined any
medication.
(Id.)
Plaintiff was requested to have lab tests
done but he declined.
(Id. at p. 359).
On July 31, 2012, Plaintiff visited Kaiser Permanente again
and was seen by Dr. Todd Devere.
(Id. at p. 341).
Dr. Devere
conducted a neurological exam and concluded it was normal.
(Id.)
Dr. Devere stated that he explained to Plaintiff that postconcussion headaches can sometimes take a few months to improve
and he “recommended a trial of nortriptyline, but [Plaintiff]
prefers to avoid prescription medication.”
(Id.)
Dr. Devere
found that Plaintiff was “alert and well oriented with clear
speech and normal language, attention” with normal gait.
p. 343).
11
(Id. at
C.
Plaintiff’s Medical Treatment More Than a Year After
the December 30, 2011 Accident
About six months after Plaintiff’s last appointment, on
February 8, 2013, Plaintiff visited Kaiser Permanente and was
seen by Dr. Robert Sanders for lightheadedness and dizziness.
(AR at p. 351, ECF No. 14).
Dr. Sanders indicated that Plaintiff
“was initially under the care of Dr. Devere who recommended some
medications, patient did not want to take pills so he did not
followup.”
(Id.)
Dr. Sanders found that Plaintiff was alert,
oriented, with a normal mood, and thought content.
352).
(Id. at p.
Plaintiff was able to walk to the medical facility without
issues.
(Id.)
(Id.)
Plaintiff refused lab work and further treatment.
Dr. Sanders stated:
[P]atient refused due to “I don’t like needles”. I
also offered normal saline to attempt to make patient
feel better as well. This too was refused. We did
discuss the possible chronicity of post concussive
syndrome, possible need for additional imaging, and the
importance of following up. Dr. Devere in his prior
note did comment that he thought nortriptyline might
help this patient so I did encourage the patient to
give it a try.
(Id.)
Following his visit with Dr. Sanders, on February 20, 2013,
Plaintiff visited Dr. Devere about his headaches and neck pain.
(Id. at p. 345).
Dr. Devere determined that Plaintiff had
chronic headaches “without migraine features.”
(Id.)
Dr. Devere
prescribed nortriptyline for Plaintiff to take to treat his pain.
12
(AR at p. 345, ECF No. 14).
study for Plaintiff.
Dr. Devere also recommended a sleep
(Id.)
Plaintiff had scheduled a follow-up appointment with Dr.
Devere on March 22, 2013, but he did not show up for the
appointment.
(Id. at p. 348).
On April 18, 2013, Plaintiff had another appointment with
Dr. Devere.
headaches.
(Id. at 361).
(Id.)
Plaintiff continued to complain of
Dr. Devere asked Plaintiff about any success
he had with the nortriptyline but Plaintiff stated that he never
tried it.
(Id.)
Dr. Devere again offered medication for
Plaintiff but he refused.
(Id.)
Plaintiff was referred to Clinical Psychologist Dennis
Donovan, Ph.D. to conduct a psychological evaluation of Plaintiff
for his disability claims he filed with the Social Security
Administration.
(Id. at p. 353).
The testing conducted by Dr.
Donovan determined that Plaintiff scored a full scale IQ of 77,
in the borderline range, and he performed poorly on supplementary
memory tasks.
(Id. at pp. 356-357).
On October 10, 2013, Plaintiff was examined at Kaiser
Permanente by Dr. Pamela Monzon.
complained of jaw and chest pain.
(Id. at p. 367).
(Id.)
Plaintiff
Dr. Monzon wrote that
there was no complaints of headaches or blurry vision.
Dr. Monzon provided Plaintiff with Ibuprofen.
(Id.)
(Id. at p. 369).
Dr. Monzon recommended lab testing but Plaintiff refused.
13
(Id.)
Plaintiff visited Dr. Devere against on February 26, 2014.
Dr. Devere stated as follows:
[Plaintiff] has symptoms suspicious for obstructive
sleep apnea as he is always tired, wakes up with severe
headaches and has a hx of snoring. He declines sleep
study even though I explained risks of untreated
obstructive sleep apnea that also could be a major
factor contributing to headaches. He also declines
prescription medication for headache/neck pain (ie.
nortriptyline) and declines physiatry referral for neck
and possible trigger pt injections. He has tried
chiropractor, Physical therapy, naturopathic docs.
(AR at p. 427, ECF No. 14).
Two days later on February 28, 2014, Plaintiff was seen by
Dr. Hyewon Jun for his headaches and neck pain.
(Id. at p. 435).
Dr. Jun found that Plaintiff did not want any test “that involved
the hospital and hates lab draws.
medications from us.”
(Id.)
He does not want any
Dr. Jun encouraged Plaintiff to
consider a sleep study and do blood tests.
(Id. at p. 436).
Plaintiff was referred to physical therapy as possible
treatment for his pain, but at his last appointment on March 27,
2014, he reported that he did “not feel like doing the
exercises.”
(Id. at p. 451).
III. Applicable Law
The Social Security Administration has implemented
regulations establishing when a person is disabled so as to be
entitled to benefits under the Social Security Act, 42 U.S.C. §§
423, 1382c.
The regulations establish a five-step sequential
14
evaluation process to determine if a claimant is disabled.
The
Commissioner of the Social Security Administration reviews a
disability claim for Supplemental Security Income by evaluating
the following:
(1)
Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not
disabled. If not, proceed to step two.
(2)
Is the claimant’s alleged impairment sufficiently
severe to limit his ability to work? If not, the
claimant is not disabled. If so, proceed to step
three.
(3)
Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
the claimant is disabled. If not, proceed to step
four.
(4)
Does the claimant possess the residual functional
capacity to perform his past relevant work? If
so, the claimant is not disabled. If not, proceed
to step five.
(5)
Does the claimant’s residual functional capacity,
when considered with the claimant’s age,
education, and work experience, allow him to
adjust to other work that exists in significant
numbers in the national economy? If so, the
claimant is not disabled. If not, the claimant is
disabled.
Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th
Cir. 2006) (citing 20 C.F.R. §§ 404.1520; 416.920).
The claimant has the burden of proof at steps one through
four, and the Commissioner has the burden of proof at step five.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
15
IV.
The Administrative Law Judge Reviewed Plaintiff’s
Application By Using the Five-Step Sequential Evaluation
At the Plaintiff’s May 20, 2014 administrative hearing, the
Administrative Law Judge (“ALJ”) for the Social Security
Administration reviewed Plaintiff’s claim by engaging in the
five-step sequential evaluation.
Both Parties agree that there were no errors by the ALJ in
the first four steps of the evaluation.
First, the ALJ determined that Plaintiff was not engaged in
substantial gainful activity since the date of his Applications
for Disability Insurance and Supplemental Security Income
benefits.
(AR at p. 15, ECF No. 14).
Second, the ALJ found that Plaintiff had the following
impairments that limited his ability to work: cervical spine
degenerative disc disease, post-concussion syndrome, remote
history of viral bulbar myelopathy, and a cognitive disorder.5
(Id. at pp. 15-21).
Third, the ALJ found that Plaintiff did not have an
impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
20 C.F.R. § 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925 and 416.926.
5
(AR at pp.
A cognitive disorder is a mental health disorder that
affects learning and memory.
16
15-16, ECF No. 14).
Fourth, the ALJ evaluated the medical evidence, Plaintiff’s
testimony, and other evidence in the record to determine
Plaintiff’s residual functional capacity.
The ALJ determined, based on the testimony and medical
evidence, that Plaintiff has the residual functional capacity to
perform light work as defined in 20 C.F.R. § 404.1567(b) and §
416.967(b), with the following limitations:
[Plaintiff] can never climb ladders, ropes, or
scaffolds; can occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; must avoid
hazards; is limited to simple, routine, repetitive,
unskilled work tasks; and will be off-task up to 10% of
the workday.
(AR at pp. 16-17, ECF No. 14).
Fifth, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff can
perform given his age, education, work experience, and residual
functional capacity.
(Id. at pp. 21-23).
In this case, Plaintiff's appeal concerns the ALJ’s decision
regarding step five in the evaluation process.
The Plaintiff challenges the ALJ’s determination that there
is available work for Plaintiff that exists in significant
numbers in the national economy.
17
V.
Plaintiff Argues that the ALJ Erred in Denying his
Applications Based on the Fifth Step in the Social Security
Administration’s Sequential Step Evaluation Process
The Commissioner for Social Security Administration must
show that a claimant can perform some work that exists in
significant numbers in the national economy, taking into account
the claimant’s residual functional capacity, age, education, and
work experience.
1999).
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.
The Commissioner may satisfy this burden with testimony
of a vocational expert.
Osenbrock v. Apfel, 240 F.3d 1157, 1162
(9th Cir. 2001).
The vocational expert’s testimony may constitute substantial
evidence of a claimant’s ability to perform work which exists in
significant numbers in the national economy when the ALJ poses
hypothetical questions that accurately describe all of the
limitations and restrictions of the claimant that are supported
by the record.
Tackett, 180 F.3d at 1101; Magallanes v. Bowen,
881 F.2d 747, 756-57 (9th Cir. 1989).
ALJ’s routinely rely on the Dictionary of Occupational
Titles issued by the United States Department of Labor “in
determining the skill level of a claimant’s past work, and in
evaluating whether the claimant is able to perform other work in
the national economy.”
(9th Cir. 1990).
Terry v. Sullivan, 903 F.2d 1273, 1276
The Dictionary of Occupational Titles is the
presumptive authority on job classifications.
18
Johnson v.
Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
The ALJ determined, based on the testimony and medical
evidence, that Plaintiff has the residual functional capacity to
perform light work with limitations in climbing and restrictions
in limiting his work to simple, routine, repetitive, unskilled
tasks where he would be off-task up to 10% of the workday.
(AR
at pp. 16-17, ECF No. 14).
Plaintiff’s past relevant work included work as a
handyman/construction worker and a janitor.
21).
(Id. at pp. 17-18,
The ALJ found that Plaintiff’s residual functional capacity
would prevent him from engaging in his past work.
(Id. at p.
21).
The ALJ posed a hypothetical to the vocational expert
regarding the type of other work a person with Plaintiff's
residual functional capacity could perform.
The ALJ posed the
following hypothetical to the vocational expert:
I’m going to ask you to assume an individual of the
claimant’s age, education, and past work, who is able to
lift and carry ten pounds frequently, 20 pounds
occasionally, can sit for six hours in an eight-hour
day, stand/walk for six hours in an eight-hour day, can
never climb ladders, ropes, scaffolds, can occasionally
climb ramps and stairs, balance, stoop, kneel, crouch
and crawl. The individual should avoid all hazards, and
is limited to simple, routine, repetitive, unskilled
work.
(AR at p. 49, ECF No. 14).
The vocational expert testified that a person with such a
residual functional capacity could perform work in the following
19
three positions:
(1)
Assembler of Small Products, Dictionary of Occupational
Titles Code 706.684-022, with around 820 jobs in the
local economy and at least 1,600,000 in the national
economy;
(2)
Inspector, Dictionary of Occupational Titles Code
559.687-074, with around 520 jobs in the local economy
and 2,600,000 in the national economy; and,
(3)
Marker, Dictionary of Occupational Titles Code 209.587034, with around 420 jobs in the local economy and
1,100,000 in the national economy.
(AR pp. 49-50, ECF No. 14).
The ALJ asked if a person with the same limitation but was
also limited in exertional capacity to “sedentary” could perform
work in the economy.
(Id. at p. 50). The vocational expert
testified that a person with such a residual functional capacity
could perform work as a Bench Hand Assembler, Table Worker, or
Surveillance Monitor.
(Id.)
Plaintiff challenges the ALJ’s decision at step five of the
evaluation process on three grounds.
First, Plaintiff argues that the ALJ erred by failing to ask
the vocational expert if he could perform the jobs by being offtask for ten percent of the workday.
Second, Plaintiff asserts that the ALJ did not question the
vocational expert if her testimony conflicted with the Dictionary
of Occupational Titles.
Third, Plaintiff claims that the ALJ did not provide clear
and convincing reasons for rejecting the clinical psychologist’s
20
opinion that Plaintiff could not work.
A.
The ALJ’s Hypothetical Adequately Incorporated
Plaintiff’s Limitations in Being Off-Task During the
Workday
The vocational expert’s testimony may constitute substantial
evidence of a claimant’s ability to perform work which exists in
significant numbers in the national economy when the ALJ poses
hypothetical questions that accurately describe all of the
limitations and restrictions of the claimant that are supported
by the record.
Tackett, 180 F.3d at 1101; Magallanes, 881 F.2d
at 756-57.
Plaintiff asserts that the ALJ erred because she did not
adequately inquire with the ALJ about the time that an individual
could be off-task for each of the jobs that the vocational expert
had identified that Plaintiff could perform.
(Opening Brief at
p. 10, ECF No. 17).
The ALJ was not required to conduct such an inquiry with the
vocational expert.
Here, the ALJ properly posed hypothetical
questions to the vocational expert concerning the limitation that
Plaintiff would need to be off-task for a maximum of ten percent
of the workday.
The record demonstrates that the ALJ properly formed her
hypothetical question to the vocational expert concerning the
percentage of time that such a claimant would be off-task.
21
The
ALJ asked the vocational expert about jobs available for someone
with Plaintiff’s residual functional capacity and inquired as
follows:
ALJ: Okay. I’m just going to ask in your opinion what the
tolerances are for an individual being off task
throughout the workday outside of the normal breaks.
VE:
Ten percent off task is the maximum.
ALJ: So if an individual is off task less than ten percent
would the individual be able to perform the jobs that
you testified to?
VE:
Yes.
(AR at pp. 50-51, ECF No. 14) (emphasis added).
It was sufficient for the ALJ to inquire if the jobs that
were specified by the vocational expert could be performed if the
claimant was off-task a maximum of ten percent of the time.
In the written decision, the ALJ stated:
In all, I believe that the claimant’s poor memory, his
alleged borderline intelligence, his poor processing
and alleged poor memory warranted a limit to simple,
routine, repetitive, unskilled work tasks, and the need
to be off-task for 10% of the workday. However, no
greater limits are warranted, in light of the fact that
the claimant clearly remembers what he used to do and
stated that he probably could still do it but for his
dizziness, which, for reasons cited above, it not workpreclusive.
(AR at p. 21, ECF No. 14).
The ALJ’s hypothetical adequately incorporated Plaintiff’s
limitation as to the percentage of time spent off-task.
The ALJ
properly relied on the vocational expert’s testimony that
Plaintiff could perform the jobs as a small products assembler,
22
inspector, and marker.
Thomas v. Barnhart, 278 F.3d 947, 956
(9th Cir. 2002) (holding that the ALJ’s hypothetical adequately
incorporated the claimant’s limitation on concentration,
persistence, and pace).
B.
The ALJ Properly Inquired of the Vocational Expert
Whether a Conflict Existed Between Her Testimony and
the Dictionary of Occupational Titles
Social Security Ruling 00-4p states that when a vocational
expert provides evidence to the ALJ about the requirements of a
job or occupation, the ALJ has an affirmative responsibility to
ask about any possible conflict between the vocational expert’s
evidence and information provided in the Dictionary of
Occupational Titles.
S.S.R. 00-4p, 2000 WL 1898704 (2000).
SSR
00-4p further provides that the ALJ will ask the vocational
expert if the evidence provided is consistent with the Dictionary
of Occupational Titles and obtain a reasonable explanation of any
apparent conflict.
Id.
The Ninth Circuit Court of Appeals held in Massachi v.
Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) that Social
Security Ruling 00-4p requires the ALJ to inquire of the
vocational expert whether the expert’s testimony conflicts with
the presented evidence from the Dictionary of Occupational
Titles.
Here, the ALJ did inquire of the vocational expert if her
23
testimony conflicted with the jobs she cited in the Dictionary of
Occupational Titles.
The ALJ posed hypothetical questions to the vocational
expert concerning the Plaintiff’s residual functional capacity.
(AR at pp. 49-50, ECF No. 14).
The vocational expert identified
a number of jobs that someone with Plaintiff’s residual
functional capacity could perform, including small products
assembler, inspector, and marker.
(Id.)
The vocational expert
provided testimony as to the jobs stated in the Dictionary of
Occupational Titles that Plaintiff could perform, and the ALJ
inquired as follows:
ALJ: I’m going to give you a couple of hypotheticals. I’m
going to ask you to assume an individual of claimant’s
age, education, and past work, who is able to lift and
carry ten pounds frequently, 20 pounds occasionally,
can sit for six hours in an eight-hour day, stand/walk
for six hours in an eight hour day, can never clime
ladders, ropes, scaffolds, can occasionally climb ramps
and stairs, balance, stoop, kneel, crouch and crawl.
The individual should avoid all hazards, and is limited
to simple, routine, repetitive, unskilled work. Can
such an individual perform any of the claimant’s past
work?
VE:
No, Your Honor.
ALJ: Was that no?
VE:
That was no, Your Honor.
ALJ: Are there other jobs in the national economy that such
an individual can perform?
VE:
At the light exertional level, SVP 2 or lower,
unskilled work, some samples would be assmbler of small
products, DOT number 706.684-022. There’s 1,600,000 in
the U.S., and 820 in Hawaii.
24
Inspector is DOT number 559.687-074.
in the U.S., and 520 in Hawaii.
There’s 2,600,000
And marker is DOT number 209.587-034. There’s
1,100,000 in the U.S., and 520 in Hawaii.
ALJ: Is your testimony consistent with the [Dictionary of
Occupational Titles]?
VE:
Yes, Your Honor.
(AR at p. 50, ECF No. 14).
Following this exchange, the ALJ continued to inquire with
the vocational expert about the percentage of time that an
individual could be off-tasks for those positions.
Plaintiff argues that the ALJ was required to ask if the
positions identified by the vocational expert conflicted with the
requirement that the individual be off-task a maximum of ten
percent of the time.
(Opening Brief at p. 13, ECF No. 17).
an inquiry was not required.
Such
The ALJ properly asked if there was
any conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles.
The ALJ was not required to
ask about any potential conflict concerning the time that the
claimant would be off-task with the Dictionary of Occupational
Titles because such limitations are not included in the
Dictionary of Occupational Titles.
Courts have recognized that the Dictionary of Occupational
Titles does not address mental limitations such as persistence,
pace, concentration, or other non-extertional limitations.
Arellano v. Colvin, 2016 WL 3031770, *6 (C.D. Cal. May 25, 2016)
25
(citing Fleener v. Colvin, 2015 WL 5521992, at *6 (D. Or. Sept.
15, 2015)).
The Dictionary of Occupational Titles does not
“expressly address what percentage of the workday or workweek an
employee must be on-task”.
Smith v. Colvin, 2016 WL 3456906, *2
(C.D. Cal. June 22, 2016).
Here, the three positions identified by the vocational
expert do not state limitations for time that must be performed
on-task.
The ALJ was allowed to rely on the vocational expert’s
testimony that there was no conflict between the DOT and the
three positions listed by the vocational expert.
A vocational
expert’s expertise provides the necessary foundation for his or
her testimony and no additional foundation is required for the
ALJ to rely on his or her testimony.
Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005).
District Courts have routinely found that there is no
conflict between the vocational expert’s testimony and the
Dictionary of Occupational Titles when the vocational expert
testifies that the claimant can perform a job even if the
claimant will be off-task for a maximum of ten percent of the
time.
See Arellano, 2016 WL 3031770, at *6; Gordon v. Colvin,
2015 WL 685396, at *7 (C.D. Cal. Feb. 17, 2015); Lea v. Colvin,
2015 WL 997863, at *6 (D. Ariz. Mar. 5, 2015).
In Calvey v. Astrue, 2013 WL 180033, *6 (C.D. Cal. Jan. 17,
2013), the District Court found that there was no conflict
26
between the Dictionary of Occupational Titles and the vocational
expert’s testimony that the claimant could perform the position
of a housekeeper despite the limitation of being off-task ten
percent of the time.
Id.
The written decision in this case is clear that the ALJ
found that“the vocational expert’s testimony is consistent with
the information contained in the Dictionary of Occupational
Titles.”
(AR at p. 22, ECF No. 14).
There was no error in the
ALJ’s reliance on the vocational expert’s testimony that there
was no conflict with the Dictionary of Occupational Titles and
that Plaintiff could work as a small products assembler,
inspector, and marker.
C.
The ALJ Did Not Err in Declining to Credit the
Conclusions of the Clinical Psychologist
Plaintiff argues that the ALJ erred because she did not
provide sufficient reasons for rejecting some of the conclusions
of Clinical Psychologist Dennis Donovan, Ph.D.
(Opening Brief at
p. 14, ECF No. 17).
On May 3, 2013, Dr. Donovan performed a consultative
psychological examination of Plaintiff.
(Plaintiff’s
Psychological Evaluation, AR at pp. 353-358, ECF No. 14).
The
cognitive testing determined that Plaintiff was in the borderline
range of intellectual functioning and indicated that Plaintiff
had limitations in his memory, processing speed, and verbal
27
comprehension.
(AR at pp. 356-57, ECF No. 14).
The report indicated that Plaintiff’s appearance was
“largely unremarkable” and his “level of psychomotor activity was
within normal limits. [Plaintiff] showed no evidence of fine or
gross motor problems.”
(Id. at p. 353).
The summary of the
report’s conclusions stated, as follows:
1.
I don’t think William can handle his own financial
affairs. I think he would benefit from assistance, as
he has very poor memory.
2.
I think William can understand simple oral
instructions, although he may not necessarily remember
them later on.
3.
I don’t think William can maintain normal pace,
persistence, concentration in the workplace. He is
forgetful and he also reports easy distractability.
4.
I think William can handle the stress of low-stress
employment and get along with others, but I do not
think that he can keep up with the work pace. While he
indicates that he gets mad more easily, he also tended
to minimize the importance of this and states that he
just walks away if something upsets him. I suspect
this is what would happen in a workplace when given
expectations beyond his capacities.
(AR at p. 358, ECF No. 14).
The ALJ afforded significant weight to some of the findings
of Dr. Donovan.
The ALJ stated, as follows:
Dr. Donovan’s opinion is afforded significant weight to
the extent that it is consistent with the documented
objected evidence and my opinion as to the claimant’s
limitations. However, in light of the claimant’s
relatively full activities of daily living, including
his ability to handle his finances, I cannot accept Dr.
Donovan’s opinion that the claimant cannot handle his
finances or that he cannot handle the pace of work
because he walks away from his work when things are
28
bad. Not only if this opinion contradicted by the
claimant’s abilities, as mentioned above, there is
little to no evidence that the claimant has ever walked
away from a job when things are bad. If this were the
case, the claimant presumably would not have been able
to have performed the work he performed for several
years. Further, there is no evidence the claimant’s
alleged tendency to walk away arose after he stopped
working.
(AR at p. 21, ECF no. 14).
The ALJ properly rejected Dr. Donovan’s conclusions that
Plaintiff cannot manage his own financial affairs, Plaintiff
cannot handle a normal work pace, and Plaintiff will walk away
from work.
The ALJ properly discounted Dr. Donovan’s conclusions that
were based solely on the Plaintiff’s own allegations.
The ALJ
may discredit a treating physician’s opinion that is premised
solely on a claimant’s own report.
602-03 (9th Cir. 1989).
Fair v. Bowen, 885 F.2d 597,
The ALJ properly discredited Dr.
Donovan’s conclusions concerning the persistence and severity of
Plaintiff’s limitations because it conflicted with Plaintiff’s
own testimony about his participation in everyday activities.
Hensley v. Colvin, 600 Fed. Appx. 526, 527 (9th Cir. 20015) (the
ALJ properly rejected a physician’s opinion that was inconsistent
with the claimant’s reported participation in daily activities);
Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citing
Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
1999)).
29
The ALJ reasonably relied on the Plaintiff’s testimony and
documentary evidence that Plaintiff is able to engage in a wide
range of daily activities including personal grooming, shopping,
doing laundry, going for walks, and doing crossword puzzles.
at pp. 20-21, 220-22, 245-248, 355, ECF No. 14).
(AR
Evidence in the
record demonstrated that Plaintiff has continually stated that he
is able to pay bills, count change, and use an EBT card to manage
his finances.
(Plaintiff’s Applications for Disability Insurance
and Supplemental Security Income Benefits, AR at pp. 222, 247;
Plaintiff’s Psychological Evaluation, AR at p. 355, ECF No. 14).
The ALJ properly found that there was no evidence in the
record demonstrating that the Plaintiff has ever walked away from
work because he was upset or that he was unable to work well with
others.
(AR at p. 21, ECF No. 14).
An ALJ may properly reject a
claimant’s self-reported claim that he cannot work with others
when it is not supported by sufficient evidence in the record.
Turner v. Comm’r Soc. Sec., 613 F.3d 1217, 1225 (9th Cir. 2010).
Objective evidence in the record conflicted with Dr.
Donovan’s conclusions about Plaintiff’s limitations in terms of
memory, concentration, persistence, and pace and the ALJ properly
declined to rely on Dr. Donovan’s conclusions.
Mayes v.
Massanari, 276 F.3d 453, 461 (9th Cir. 2001).
The ALJ credited the objective medical evidence in the
record, particularly Plaintiff’s treating medical physician’s
30
reports.
(AR at pp. 18-21, ECF No. 14).
The ALJ relied on
medical records that repeatedly found that Plaintiff had normal
mental status evaluations conducted by his treating physicians.
(AR at pp. 19, 339, 343, 362, 428).
The medical records of the
treating physicians reflected that Plaintiff was “alert and well
oriented with clear speech and normal language.” (AR at pp. 343,
362, 428).
Plaintiff’s treatment records reflected that
Plaintiff consistently participated in interactive discussions
with his health care providers with no reported limitations in
his ability to pay attention or understand directions.
(AR at
pp. 339, 342, 345, 361, 369, 427).
The ALJ properly relied on the objective evidence and
declined to credit the conclusions of Dr. Donovan that were based
on the Plaintiff’s self reporting.
Plaintiff’s credibility was
placed into question based on his own failure to pursue treatment
for his pain and sleep issues.
An unexplained failure to seek
treatment or follow a prescribed course of treatment can support
an ALJ’s credibility determination.
Fricke v. Astrue, 2012 WL
2395178, *7 (W.D. Wash. June 25, 2012) (citing Fair, 885 F.2d at
603).
Plaintiff’s treating physicians found that he failed to show
up to appointments, refused to have blood work or other
laboratory and diagnostic testing performed, and routinely
refused medication.
(AR at pp. 348, 352, 359, 361, 369, 427,
31
435, ECF No. 14).
The ALJ asked Plaintiff about his refusal to take medication
to treat his pain and Plaintiff did not provide a reasonable
answer.
The ALJ inquired as follows,
ALJ: Okay. Let me ask you, it looks like the doctors have
recommended medication for your headache. They’ve also
recommended a bunch of treatment, injections for your
headache. They wanted to do a sleep study, but you
decided not to do those things. Can you tell me why
not?
Pla: It’s not – – I think it has nothing to do with my
sleeping. It’s either my neck or my jaw.
ALJ: And why – -- they’ve recommended some medications for
your neck, for your jaw, for your headaches, but you’ve
said no, I don’t – –
Pla: They wanted to try to see what medication will work for
me, make an experiment out of me. I don’t know.
(AR at p. 39).
Dr. Devere repeatedly informed Plaintiff that his pain could
be treated with nortriptyline but Plaintiff refused to take it.
(AR at pp. 361 427).
In situations where medication has been
shown to be effective but the patient refuses to avail himself of
the treatment offered, that fact alone allows a determination
that the impairments that could be so treated are not disabling.
Blackwell v. Colvin, 2016 WL 4702823, *5 (E.D. Cal. Sept. 7,
2016) (citing Warre v. Commissioner, 439 F.3d 1001, 1006 (9th
Cir. 2006)).
The Court has reviewed the entire record and finds that
there is substantial evidence to support the ALJ’s decision.
32
CONCLUSION
The Commissioner of Social Security Administration’s
decision is AFFIRMED.
The Clerk of Court is Ordered to CLOSE THE CASE.
IT IS SO ORDERED.
DATED: November 15, 2016, Honolulu, Hawaii.
___________________________________
Helen Gillmor
United States District Judge
William Q. Diesta v. Carolyn W. Colvin, Social Security
Administration Commissioner; Civ. No. 15-00465 HG-KSC; ORDER
AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER
33
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