Brown v. Colvin
Filing
19
FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED 10 MOTION for Summary Judgment filed by Patricia F. Brown, be DENIED; 15 MOTION for Summary Judgment filed by Carolyn W. Colvin, be GRANTED; the Commissioner's decision denying DIB be affirmed. Judge Magistrate Carolyn S Ostby termed case no longer referred. Signed by Magistrate Carolyn S Ostby on 1/9/2014. (JDH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
PATRICIA F. BROWN,
CV 13-48-BLG-SEH-CSO
FINDINGS AND
RECOMMENDATIONS
OF U.S. MAGISTRATE
JUDGE ON SUMMARY
JUDGMENT MOTIONS
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Plaintiff Patricia Brown (“Brown”) seeks judicial review of
Defendant Commissioner of Social Security’s (“Commissioner”) decision
denying her application for disability insurance benefits (“DIB”) under
Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-433.
Complt. (ECF 1). On August 5, 2013, Judge Haddon referred this case
to the undersigned for all pretrial proceedings. ECF 14.1
Now pending are the parties’ cross-motions for summary
judgment. ECFs 10 (Brown’s motion) and 15 (Commissioner’s motion).
For the reasons stated below, the Court recommends that Brown’s
1
“ECF” refers to the document as numbered in the Court’s Electronic
Case Files. See The Bluebook, A Uniform System of Citation, § 10.8.3.
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motion be denied, the Commissioner’s motion be granted, and the ALJ’s
decision denying DIB be affirmed.
I.
PROCEDURAL BACKGROUND
In May 2006, Brown filed her first DIB application and alleged
disability onset in March 1997. Tr. 83-85. That application was denied
initially and on reconsideration, and Brown did not request a hearing
before an ALJ within the time permitted. Tr. 46-48, 52-53. Brown filed
her second DIB application in April 2008, claiming disability onset in
September 2002. Tr. 86-87. That application was denied initially and
on reconsideration. Tr. 10. Brown requested a hearing, which was
dismissed by an ALJ on res judicata grounds. Tr. 10, 37-38.
Brown filed the current and third application for DIB in
December 2009, identifying March 1997 as her alleged onset date. Tr.
88-91. That claim was denied both initially and on reconsideration, and
Brown requested a hearing before an ALJ. Tr. 54-55, 63-65. That
request was initially dismissed in June 2010 on the basis of res
judicata. Tr. 44-45. In July 2010, Brown requested that the ALJ
vacate his Order of Dismissal for good cause, as Brown’s attorney on
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the first two dismissals had been disbarred and was in prison, and had
incorrectly advised her that he had pursued all appeals in a timely
manner. Tr. 69-71. The ALJ set aside the Order of Dismissal in
October 2010. Tr. 80.
The ALJ held a hearing on the merits on December 14, 2011. Tr.
617-70. On March 22, 2012, the ALJ issued a decision concluding that
Brown was not disabled within the meaning of the Social Security Act
(the “Act”) at any time during the period December 19, 2002, through
June 30, 2005, the date she was last insured for DIB. Tr. 10-22. The
Appeals Council denied Brown’s request for review in February 2013,
making the ALJ’s decision the Commissioner’s final decision for
purposes of judicial review. Tr. 2-5; 20 C.F.R. § 422.201(a). This
appeal followed. This Court has jurisdiction pursuant to 42 U.S.C. §
405(g).
II.
STANDARD OF REVIEW
This Court’s review is limited. The Court may set aside the
Commissioner’s decision only where the decision is not supported by
substantial evidence or where the decision is based on legal error.
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Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42
U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla,
but less than a preponderance.” Id. (citing Bayliss v. Barnhart, 427
F.3d 1211, 1214 n. 1 (9th Cir. 2005) (internal quotation marks
omitted)). “It is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (internal quotation
marks and citation omitted).
The Court must consider the record as a whole, weighing both the
evidence that supports and detracts from the Commissioner’s
conclusion, and cannot affirm the ALJ “by isolating a specific quantum
of supporting evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882
(9th Cir. 2006) (internal quotation marks and citation omitted). The
Court reviews only the reasons provided by the ALJ, and may not
affirm on a ground upon which the ALJ did not rely. Connett v.
Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The ALJ is responsible for
determining credibility, resolving conflicts in medical testimony, and
resolving ambiguities. “Where the evidence is susceptible to more than
one rational interpretation, one of which supports the ALJ’s decision,
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the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d
947, 954 (9th Cir. 2002) (internal citation omitted).
III. BURDEN OF PROOF
A claimant is disabled for purposes of the Act if: (1) the claimant
has a medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months, and (2) the
impairment or impairments are of such severity that, considering the
claimant’s age, education, and work experience, the claimant is not only
unable to perform previous work, but the claimant cannot “engage in
any other kind of substantial gainful work which exists in the national
economy.” Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).
In determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).
1.
The claimant must first show that he or she is not currently
engaged in substantial gainful activity. Tackett, 180 F.3d at
1098.
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2.
If not so engaged, the claimant must next show that he or
she has a severe impairment. Id.
3.
The claimant is conclusively presumed disabled if his or her
impairments meet or medically equal one contained in the
Listing of Impairments described in 20 C.F.R. Pt. 404,
Subpt. P, App. 1 (hereafter “Listing of Impairments”). Id. If
the claimant’s impairments do not meet or medically equal
one listed in the regulations, the analysis proceeds to the
fourth step.
4.
If the claimant is still able to perform his or her past
relevant work, he or she is not disabled and the analysis
ends here. Id. “If the claimant cannot do any work he or
she did in the past, then the claimant’s case cannot be
resolved at [this step] and the evaluation proceeds to the
fifth and final step.” Id. at 1098-99.
5.
If the claimant is unable to perform his or her past relevant
work due to a “severe impairment (or because [he or she
does] not have any past relevant work)” the court will
determine if the claimant is able to make an adjustment to
perform other work, in light of his or her residual functional
capacity, age, education, and work experience. 20 C.F.R. §
404.1520(g). If an adjustment to other work is possible then
the claimant is not disabled. Tackett, 180 F.3d at 1099.
The claimant bears the burden of proof at steps one through four,
but at the fifth step the Commissioner bears the burden of establishing
that there is other work in significant numbers in the national economy
that the claimant can perform. Id. The Commissioner can meet this
burden via the testimony of a vocational expert or reference to the
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Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2.
Id. If the Commissioner is unable to meet this burden then the
claimant is disabled and entitled to benefits. Id.
IV.
THE ALJ’s OPINION
The ALJ followed the five-step sequential evaluation process in
considering Brown’s claims and in determining that Brown experienced
some limitations in functioning, but did not meet the strict standard for
disability under the Act during the relevant time period. Tr. 7-23.
The ALJ first found that Brown was insured for disability from
March 23, 1997, Brown’s alleged disability onset date, through June 30,
2005. Tr. 13. The ALJ then determined that, while Brown performed
some work from 2000 to 2002, Brown did not engage in substantial
gainful activity from March 23, 1997, through June 30, 2005. Tr. 14.
Next, the ALJ found that the medical evidence established that,
on or before June 30, 2005, Brown had the following medically
determinable severe impairments:
a history of in (sic) a severely comminuted calcaneus fracture of
the right ankle on March 23, 1997, status post open reduction and
internal fixation of her right calcaneus fracture with iliac crest
bone graft with multiple follow-up surgeries for restoration of the
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function and relief of persistent pain symptoms; post-traumatic
degenerative joint disease/arthritis of the right foot, status post
arthroscopic surgery on April 8, 2002, with extensive debridement
and resection of spurs; and trochanteric bursitis of the right hip.
Tr. 14.
The ALJ then found that while Brown may have been disabled
after her March 1997 car accident, that disability ended no later than
December 19, 2002. Tr. 15. The ALJ thus concluded that because
Brown did not submit an application for disability within one year of
the ending of that disability, Brown was not entitled to DIB benefits for
any time before December 19, 2002. Tr. 15-16.
Next, the ALJ assessed whether Brown suffered from an
impairment or combination of impairments that met or equaled one in
the Listing of Impairments during the period from December 19, 2002,
the date the ALJ found Brown’s disability to have ended, through June
30, 2005, the date Brown was last insured. The ALJ concluded that
Brown did have major dysfunction in her right ankle joint with chronic
joint pain and stiffness, but that Brown did not have an inability to
ambulate effectively and thus her impairments did not meet the
criteria of the Listing of Impairments. Tr. 18.
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The ALJ then determined that, from December 19, 2002, through
June 30, 2005, Brown retained the residual functional capacity to
perform sedentary work. Tr. 19. The ALJ noted that the vocational
expert’s “Past Work Summary” shows that Brown’s past relevant work
as a legal assistant was sedentary as actually performed by Brown. Tr.
21 (citing Tr. 165). Comparing Brown’s residual functional capacity
with the physical and metal demands of this work, the ALJ concluded
that Brown could perform her past relevant work as a legal assistant.
Tr. 18, 21. Accordingly, the ALJ concluded that Brown was not under a
disability at any time from December 19, 2002, through June 30, 2005.
Tr. 22.
V.
PARTIES’ ARGUMENTS
Brown argues the ALJ erred in assessing medical source opinions
and the credibility of her subjective statements. Brown argues that her
subjective complaints of pain are consistent with the objective medical
findings of her treating physicians. Brown’s Br. (ECF 11) at 19-29.
Second, Brown argues the ALJ erred by failing to find that her
diagnosed pes planus, right foot and ankle pain, and regional pain
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syndrome meet an impairment in the Listing of Impairments. ECF 11
at 19-24.
Third, Brown argues the ALJ erred by not accepting Dr.
Schabacker’s opinion that she could sit indefinitely with her leg
elevated. ECF 11 at 19-24.
Fourth, Brown argues that the ALJ erred in posing a hypothetical
question to the vocation expert that did not set forth all of her
impairments.
In response, the Commissioner argues that the ALJ: (1) properly
considered the evidence regarding Brown’s pain and based his decision
on substantial evidence in the record, Commissioner’s Br. (ECF 16) at
4-8; (2) reasonably discounted Brown’s subjective complaints, id. at 811; and (3) posed a hypothetical question to the vocational expert that
captured all of Brown’s functional limitations, id. at 12. Finally, the
Commissioner argues that if the Court finds that the decision denying
Brown’s claims is not supported by substantial evidence, the Court
should remand for further administrative proceedings rather than
reverse for an award of benefits. Id. at 13.
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VI.
DISCUSSION
The primary issues before the Court are whether substantial
evidence supports the ALJ’s decision, and whether the ALJ’s decision is
free of legal error. The Court is not permitted to re-weigh the evidence.
Considering Brown’s allegations of error and applying controlling Ninth
Circuit authority, the Court concludes, as discussed below, that the
Commissioner’s decision is based on substantial evidence in the record,
and is free of legal error.
A.
Determination of the Relevant Time Period
Brown contends the ALJ used an inappropriate legal standard
when he determined that her condition improved as of December 19,
2002, and that he should have instead made a specific finding of
“medical improvement” under the standards for terminating benefits.
See Brown’s Reply (ECF 18) at 4. But such criteria are applicable only
in determining the cessation of disability for a person who is already a
“recipient of benefits[.]” 42 U.S.C. § 423(f); Ordewald v. Barnhart, 351
F. Supp. 2d 499, 503 (W.D. Va. 2005) aff’d, 158 F. App’x 443 (4th Cir.
2005) (finding “medical improvement” criteria not relevant when
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plaintiff had never been found entitled to a period of disability and
disability insurance benefits). Because Brown has not been found
disabled nor been awarded disability insurance benefits, the ALJ was
not required to apply medical improvement standards.
The ALJ found that while Brown may have been disabled as a
result from her injury and subsequent surgeries, the medical evidence
demonstrated that she recuperated by December 19, 2002. The ALJ
then assessed whether Brown’s severe impairments were disabling
from December 19, 2002, through her date last insured, June 30, 2005.
The ALJ committed no legal error in framing the case as he did.
In Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1456 (9th
Cir. 1995), the Ninth Circuit affirmed an ALJ’s determination that a
claimant was not disabled. There, the plaintiff suffered a back injury
in 1969, and underwent surgery in 1977. Flaten, 44 F.3d at 1456. The
ALJ found that the plaintiff’s condition was disabling from 1976
through 1978, but that the plaintiff subsequently recovered in 1978.
Id. at 1463. The ALJ then determined that the plaintiff retained the
residual functional capacity to perform sedentary work “after her
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recuperation from the 1977 surgery through the date that her insured
status lapsed[,]” and thus was not disabled from a time on or before the
lapse of her insured status. Id. at 1456-57. Finding this conclusion
supported by substantial evidence, the Ninth Circuit affirmed the
denial of benefits. Id. at 1463-1465.
The ALJ here also based his finding that Brown had recuperated
by December 19, 2002, on substantial evidence. The ALJ noted that:
(1) Brown’s last surgery occurred in April 2002, and Brown was initially
very satisfied with the results; (2) she began complaining of gradual
recurrence of her pain in July 2002 and on December 19, 2002, she
received an injection into her right hip after which she reported
immediate relief of her pain; (3) in a follow up visit in April 2003,
Brown reported further relief of her pain, and her doctor indicated that
she had fluid range of motion in her right ankle; (4) after a cortisone
injection on April 29, 2003, Brown received no further treatment
related to her right ankle or right hip for approximately two years; and
(5) Brown became pregnant and delivered a healthy baby boy on
January 31, 2004, and there was no indication that she had any
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problems carrying her child to term or caring for him after his birth due
to her right ankle or hip impairments, or that she complained of
significant right ankle or right hip pain during this period. Tr. 15-16.
In order to qualify for DIB benefits, a claimant must apply for
benefits within 12 months of the end of any disability. 20 C.F.R. §
404.315(a)(3). The ALJ found Brown not disabled after December 2002,
a finding based upon substantial evidence, and Brown did not file her
first application for benefits until May 2006. Thus, even if Brown was
disabled before December 2002, a finding not specifically made here,
she would not be entitled to benefits for that earlier period.
In addition, because Brown applied for benefits after the
expiration of her insured status, she must show that her disability was
“continuously disabling from the time of onset during insured status to
the time of application for benefits[.]” Flaten, 44 F.3d at 1460. In light
of the ALJ’s finding that Brown was not disabled from December 2002
through the expiration of her insured status, Brown has failed to show
that her disability was continuous.
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B.
ALJ’s Consideration of the Evidence
Brown argues that the ALJ “failed to provide proper weight to the
objective test findings, multiple surgical findings, and examination
findings and opinions of [Brown’s] treating physicians[,]” and cites to
each of her multiple surgeries and treatments from 1997 through 2005.
ECF 11 at 13-18.
In evaluating Brown’s claims, the ALJ was required to “make
fairly detailed findings in support” of his decision “to permit courts to
review those decisions intelligently.” Vincent v. Heckler, 739 F.2d 1393,
1394 (9th Cir. 1984) (citation omitted). In doing so, an “ALJ does not
need to discuss every piece of evidence” and “is not required to discuss
evidence that is neither significant nor probative[.]” Howard ex rel.
Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (internal
quotations and citations omitted).
Here, the ALJ issued a detailed decision. Tr. 10-22. He set forth
his rationale for both accepting and rejecting certain evidence in his
assessment of Brown’s medical records, credibility, and residual
functional capacity. Tr. 16-22. In his decision, he also set forth the
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evidence – which the Court concludes is substantial – that informed
and supported his conclusion with respect to Brown’s disability claims.
Id. For these reasons, the Court finds unpersuasive Brown’s general
argument that the ALJ’s decision is not based on substantial evidence.
The Court addresses Brown’s specific claims of error in more detail
below.
1.
Severity of Brown’s Impairments
Brown argues that the ALJ erred by not including pes planus (i.e.,
flat feet), right foot and ankle pain, and “regional pain syndrome” in the
list of severe impairments at step two of the sequential process. ECF
11 at 19-24.
The ALJ’s failure to list these specific impairments as severe, if
error, is harmless because the ALJ adequately addressed the symptoms
and limitations associated with these impairments when he performed
the residual functional capacity assessment at steps three and four of
the sequential evaluation. As long as any one of a claimant’s
impairments is found to be severe, the ALJ’s analysis moves along the
sequential evaluation process. 20 C.F.R. § 404.1520(a)(4); see also
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Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (“the step-two
inquiry is a de minimis screening device to dispose of groundless
claims”). When the residual functional capacity is formulated between
steps three and four, the ALJ must consider all of claimant’s severe and
non-severe medically-determinable impairments. 20 C.F.R. §
404.1545(a)(2). In Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007),
the Ninth Circuit held that the failure to find a particular condition
severe was harmless when the ALJ discussed it later in the sequential
evaluation process and included relevant restrictions. Compare Hill v.
Astrue, 698 F.3d 1153, 1161 (9th Cir. 2013) (holding that ALJ
improperly excluded a diagnosis of panic disorder in considering
claimant’s residual functional capacity).
The ALJ did not err by failing to include pes planus, right foot
and ankle pain, and “regional pain syndrome” in the list of impairments
at step two of the sequential process. First, pes planus is identified in
some radiology reports (see, e.g., Tr. 372, 377, 385), but there is no
indication that Brown’s pes planus was distinct from the foot injuries
that resulted from her 1997 accident. The severity findings of the ALJ
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accounted for both her 1997 accident and the series of subsequent
surgeries. Tr. 15. Brown’s pes planus condition was accounted for in
the ALJ’s other severity findings and the ALJ thoroughly discussed
Brown’s functional limitations related to her foot and ankle injury. The
ALJ did not err in not listing pes planus as a severe impairment.
Second, the ALJ was not required to find Brown’s right foot and
ankle pain severe. Pain is a symptom, not a medically-determinable
impairment. “Symptoms” are a claimant’s “own description of [her]
physical or mental impairment.” 20 C.F.R. § 404.1528(a); see also 20
C.F.R. § 404.1529(a). Moreover, the ALJ clearly discussed Brown’s
pain complaints when he made his residual functional capacity
assessment. Tr. 19-20. The ALJ did not err in not listing right foot
and ankle pain as a severe impairment.
Third, with regard to “pain syndrome,” the parties cite to no clear
diagnosis in the record. The first mention appears in Dr. Kopplin
report of his first visit with Brown in March 2002, wherein he notes
that she “perhaps” had “mild pain syndrome.” Tr. 453. In the record of
an April 2002 appointment, Dr. Kopplin wrote, “She does have mild
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pain in the anterior tibia, which is indicative of a regional pain
syndrome.” Tr. 449. There is no affirmative diagnosis of regional pain
syndrome by Dr. Kopplin or any other physician. And, as noted above,
the ALJ thoroughly discussed Brown’s pain complaints when assessing
Brown’s residual functional capacity. The ALJ did not err in not listing
regional pain syndrome as a severe impairment.
Even if the failure to list pes planus, right foot and ankle pain,
and regional pain syndrome as severe impairments were error, the
Court finds that the error is harmless because the ALJ did
subsequently consider Brown’s complaints of pes planus, right foot and
ankle pain, and regional pain syndrome in assessing whether Brown’s
impairments fell under the Listing of Impairments, and in assessing
Brown’s residual functional capacity.
2.
Assessment of Brown’s Credibility
Brown argues the ALJ improperly discredited her testimony.
ECF 11 at 24-28. In Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012),
the Ninth Circuit restated the long-standing standard for assessing a
claimant’s credibility as follows:
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In assessing the credibility of a claimant’s testimony
regarding subjective pain or the intensity of symptoms,
the ALJ engages in a two-step analysis. First, the ALJ
must determine whether there is objective medical
evidence of an underlying impairment which could
reasonably be expected to produce the pain or other
symptoms alleged. If the claimant has presented such
evidence, and there is no evidence of malingering, then
the ALJ must give specific, clear and convincing
reasons in order to reject the claimant’s testimony
about the severity of the symptoms. At the same time,
the ALJ is not required to believe every allegation of
disabling pain, or else disability benefits would be
available for the asking, a result plainly contrary to 42
U.S.C. § 423(d)(5)(A). In evaluating the claimant’s
testimony, the ALJ may use ordinary techniques of
credibility evaluation. For instance, the ALJ may
consider inconsistencies either in the claimant’s
testimony or between the testimony and the claimant’s
conduct, unexplained or inadequately explained failure
to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms.
While a claimant need not vegetate in a dark room in
order to be eligible for benefits, the ALJ may discredit
a claimant’s testimony when the claimant reports
participation in everyday activities indicating
capacities that are transferable to a work setting.
Even where those activities suggest some difficulty
functioning, they may be grounds for discrediting the
claimant’s testimony to the extent that they contradict
claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal quotations
omitted).
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The ALJ found that Brown was no longer complaining of
significant ankle and right hip pain by late 2002 or early 2003, and that
Brown did not receive any treatment or evaluation related to her right
ankle from April 2003 to February 2005. Tr. 19. He also found that the
medical records revealed no significant complaints of right ankle or
right hip pain after the birth of her child in January 2005. Tr. 20.
These were proper bases to discount credibility. See 20 C.F.R. §
404.1529(c)(3)(ii) (ALJ considers the “location, during frequency, and
intensity” of pain and other symptoms); Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999) (finding ALJ provided clear
and convincing reasons for rejecting claimant’s testimony by citing, in
part, medical reports of improvement that contradicted claimant’s
claims of lack of improvement); Flaten, 44 F.3d at 1464 (finding, in
part, that the claimant’s “relative absence of medical problems”
following her surgery supported ALJ’s decision to discredit claimant’s
testimony).
The ALJ also relied on the fact that evidence in the record
indicated that Brown’s ability to sit was not significantly limited before
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her date last insured. Tr. 20. Inconsistency between a claimant’s
statements at the hearing and contemporaneous statements to doctors
and other evidence is also an appropriate factor to consider as part of a
credibility finding. See 20 C.F.R. § 404.1529(c)(4) (ALJ must consider
whether there are conflicts between a claimant’s statements and the
rest of the evidence); Morgan, 169 F.3d at 599-600 (finding ALJ
provided clear and convincing reasons for rejecting claimant’s
testimony by citing, in part, claimant’s inconsistent statement to doctor
regarding her activities).
The ALJ noted that Brown’s statements to her doctors reflected
daily activities that were inconsistent with her claims of disability. Tr.
20. An ALJ must consider a claimant’s activities when evaluating her
credibility. 20 C.F.R. § 404.1529(c)(3)(i); see also Berry v. Astrue, 622
F.3d 1228, 1234-35 (9th Cir. 2010) (upholding adverse credibility
finding where claimant’s self-reported activities undermined his
credibility). The ALJ reasonably noted that many of Brown’s daily
activities reported to her doctors both before and after her date last
insured were inconsistent with the limitation of keeping her foot
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elevated at all times while seated. Tr. 20; 533-34. For instance, the
ALJ noted that there was no indication in the record that Brown had
any problems carrying her child to term or caring for him after his birth
in 2004. Tr. 19-20. The ALJ also noted that caring for an infant would
require frequent sitting, walking, and lifting and carrying up to 10
pounds, and that the medical records do not indicate that Brown had
any significant complaints of right ankle or right hip pain after the
birth of her child through January 2005. Tr. 20.
The ALJ’s credibility finding is supported by substantial evidence
and meets the clear and convincing standard. The Court cannot
substitute its own interpretation of the evidence for the ALJ’s
interpretation. “Where the evidence is susceptible to more than one
rational interpretation, one of which supports the ALJ’s decision, the
ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954 (citation
omitted). The ALJ did not err.
3.
Dr. Schabacker’s “Opinion”
Brown argues that the ALJ erred in not accepting Dr.
Schabacker’s “opinion” that Brown could sit indefinitely with her leg
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elevated, citing to Dr. Schabaker’s June 1, 2006 consultation note. ECF
11 at 27 (citing Tr. 531). Typically, an ALJ must articulate clear and
convincing reasons for discounting an uncontroverted opinion of a
treating physician. See Smolen, 80 F.3d at1285. This notation appears
in the “Subjective” section of Dr. Schabaker’s notes, not in “Impression”
or “Discussion” section. And the statement is surrounded by language
that makes it clear that it is a recording of Brown’s description of her
limitations:
[Brown] reports that she is able to walk up to 20
minutes at a time before pain indicated the need to
rest. She is able to sit indefinitely with her foot
elevated. She is able to dress independently. She
notes that horseback riding is real hard. She is able to
clean the house, but requires frequent rests. She
acknowledges having adjusted her lifestyle to
accommodate her pain.
Tr. 531. In this context, it is clear that this portion of the medical
record is not Dr. Schabacker’s opinion on Brown’s functional
limitations, but rather a recitation of Brown’s own subjective
complaints as relayed to him. An ALJ may discount a medical opinion
that merely recites a plaintiff’s subjective complaints. Bray v. Comm’r
of Soc. Sec. Admin, 554 F.3d 1219, 1228 (9th Cir. 2009). Brown’s claim
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that the ALJ erred in discounting this statement is misplaced. In the
“Discussion” section of his report, Dr. Schabaker notes that Brown in
“doing quite well.” Tr. 531.
Although the ALJ also discounted two opinion letters written by
Dr. Schultz in 2008 and 2009, Brown does not raise this as error in her
brief. The Court therefore declines to address this particular finding.
See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161, n. 2
(9th Cir. 2008) (declining to address a specific finding by the ALJ when
claimant failed to argue the issue with any specificity in his briefing).
4.
Hypothetical Question to Vocational Expert
Brown argues that the ALJ erred in posing a hypothetical
question to the vocational expert that did not set forth all of her
impairments. ECF 11 at 28-29. The Court rejects this argument.
Where, as here, a claimant fails to show that she is unable to return to
her previous work, the burden of proof remains with the claimant. See
Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). Vocational
expert testimony at this step in the sequential evaluation is therefore
“useful, but not required” to support the ALJ’s decision. Id.
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Here, the ALJ did not rely on the vocational expert’s response to a
hypothetical when he concluded that Brown could perform her past
relevant work. Instead, after finding that Brown could perform the full
range of sedentary work, the ALJ used only the vocational expert’s
“Past Work Summary” to determine that the legal assistant job
performed by Brown was sedentary. Tr. 21, 165, 662. Because the ALJ
did not rely on the vocational expert’s testimony, whether or not the
ALJ erred in not including all of Brown’s limitations in a hypothetical
is irrelevant to his ultimate determination. Accordingly, any error in
this regard is harmless. See Matthews, 10 F.3d at 681.
VII. CONCLUSION
Based on the foregoing,
IT IS RECOMMENDED that Brown’s summary judgment
motion (ECF 10) be DENIED, the Commissioner’s summary judgment
motion (ECF 16) be GRANTED, and the Commissioner’s decision
denying DIB be affirmed.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall
serve a copy of the Findings and Recommendations of the United States
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Magistrate Judge upon the parties. The parties are advised that,
pursuant to 28 U.S.C. § 636, any objections to these findings must be
filed with the Clerk of Court and copies served on opposing counsel
within fourteen (14) days after receipt hereof, or objection is waived.
DATED this 9th day of January, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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