ALICIA G. ROSENBERG, Magistrate Judge.
Plaintiff Magdalena Martinez filed this action on August 15, 2014. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 9, 10.) On March 23, 2015, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The court has taken the matter under submission without oral argument.
Having reviewed the entire file, the court affirms the decision of the Commissioner.
On April 25, 2011, Martinez filed an application for supplemental security income, alleging an onset date of August 11, 2006.
Pursuant to 42 U.S.C. § 405(g), this court has authority to review the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
"Substantial evidence" means "more than a mere scintilla but less than a preponderance — it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.
A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L. Ed. 2d 333 (2003) (citation omitted).
Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),
Martinez has the residual functional capacity ("RFC") to perform light work, except she can lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand, walk and/or sit for six hours in an eight-hour workday; frequently climb ramps or stairs; occasionally climb ladders, ropes or scaffolds; and frequently balance, stoop, kneel, crouch or crawl. Martinez is limited to simple and routine tasks, and cannot perform fast-paced or production work. Her work environment is limited to a habituated setting with little workplace change. AR 20. Martinez has no past relevant work, but there are jobs that exist in significant numbers in the national economy that she can perform such as ticketer, garment sorter and clothes stock sorter. AR 26-27.
Martinez contends the ALJ erred in evaluating the opinion of Dr. Padua, her treating psychiatrist.
An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a medically acceptable treating source, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician's opinion is contradicted by another doctor, "the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Orn, 495 F.3d at 632 (citations and quotation marks omitted). "When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002).
The record contains Dr. Padua's Mental Residual Functional Capacity Questionnaire ("RFC Questionnaire") dated November 30, 2012. AR 573-81. Dr. Padua saw Martinez monthly for 30 minutes and diagnosed Martinez with a major depressive disorder, recurrent, severe without psychotic features. Martinez had a Global Assessment of Functioning ("GAF") score of 60.
The ALJ considered but did not give significant weight to Dr. Padua's opinion due to lack of "significant positive objective clinical or diagnostic findings" to support the opinion, inconsistency of the "extreme functional limitations" with his findings and the record as a whole, and internal inconsistencies in the opinion. AR 23-24.
The ALJ correctly found that Dr. Padua did not list significant findings in support of his opinion. An ALJ may reject a treating physician's opinion that is conclusory and inadequately supported by clinical findings. Bray v. Comm'r, 554 F.3d 1219, 1228 (9th Cir. 2009); Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004). Dr. Padua did not cite or attach supporting treatment notes or test results to the RFC Questionnaire. AR 573-81. Dr. Padua merely stated: "depressed mood, tearful, unable to concentrate, poor memory, anhedonia." AR 574. "Ms. Martinez has a diagnosis of recurrent major depression. She forces herself to do things, depressed mood, difficulty concentrating. Easily forget[s] things and easily stress[es] out." AR 577. The ALJ could reasonably conclude that Dr. Padua's opinion of extreme functional limitations was inadequately supported by the limited findings he documented on the RFC Questionnaire.
The ALJ could reasonably conclude that Dr. Padua's opinion was inconsistent with the findings in his treatment records and the record as a whole. AR 24, 283-94, 383-89, 442-58. As the ALJ noted, Dr. Padua's treatment records indicated Martinez's mental status examinations were normal with no indication of suicidal or homicidal ideation. AR 23, 283-94. Dr. Padua indicated Martinez was at risk for psychiatric decompensation without medications, but treatment records show that Martinez's mood was generally stable with medication and therapy.
The ALJ could reasonably conclude that Dr. Padua's opinion was internally inconsistent.
To the extent Martinez argues the ALJ should have contacted Dr. Padua, her argument fails. Rejection of a treating physician's opinion does not by itself trigger a duty to contact the physician for further explanation. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). The ALJ made no finding that the evidence was ambiguous or that the record was inadequate to allow for proper evaluation. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) ("An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."). At the hearing, when Martinez's counsel explained that there was "an issue" with Dr. Padua's treatment records because they were "like hieroglyphics," the ALJ asked Martinez's counsel if Dr. Padua would prepare a written statement. Martinez' counsel stated that he had "looked into that" and Dr. Padua "won't do it." AR 38. The ALJ did not have a duty to contact Dr. Padua.
To the extent Martinez contends the ALJ failed to properly consider Dr. Bagner's limitations pertaining to detailed tasks and changes in a routine work setting, her contention is rejected. The ALJ noted Dr. Bagner's opinion that Martinez had moderate limitations in her ability to follow detailed instructions and had severe limitations in her ability to respond to work pressure. AR 25, 404-05. The ALJ found Dr. Bagner's opinion to be "generally consistent with the records as a whole." AR 25. An examining physician's opinion constitutes substantial evidence when it is based on independent clinical findings. Orn, 495 F.3d at 631. The ALJ reasonably construed Dr. Bagner's opinion as consistent with an ability to perform simple and routine tasks with little workplace change and no fast-paced or production work. AR 20.
The ALJ articulated specific and legitimate reasons, supported by substantial evidence in the record, for discounting Dr. Padua's opinion. The ALJ did not err.
"To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).
"Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Lingenfelter, 504 F.3d at 1036 (citation and quotation marks omitted). "In making a credibility determination, the ALJ `must specifically identify what testimony is credible and what testimony undermines the claimant's complaints[.]'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted).
In weighing credibility, the ALJ may consider factors including: the nature, location, onset, duration, frequency, radiation, and intensity of any pain; precipitating and aggravating factors (e.g., movement, activity, environmental conditions); type, dosage, effectiveness, and adverse side effects of any pain medication; treatment, other than medication, for relief of pain; functional restrictions; the claimant's daily activities; and "ordinary techniques of credibility evaluation." Bunnell, 947 F.2d at 346 (citing SSR 88-13)
Martinez testified that she feels sad sometimes for two weeks in a month. AR 46-47. She has difficulty sleeping, concentrating and getting along with others. AR 21, 47-48. She sometimes does not like how others express themselves, so she doesn't "go anywhere with anybody." AR 47. She has "constant" fatigue that sometimes "doesn't allow me to get out of bed" or causes her to rest in bed for one or two hours. AR 50. She has difficulty breathing and ambulating because of her knees. AR 21, 51. She can walk less than one block and can stand for 15 minutes before she needs to sit down. She can sit for half an hour to an hour before she has to "readjust my back." AR 51. She gets headaches two or three times a week for up to six to eight hours. AR 54.
The ALJ found that Martinez's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but her statements concerning the intensity, persistence and limiting effects of her symptoms were not entirely credible. AR 23. The ALJ primarily relied on three reasons: (1) Martinez was "less than forthcoming" about her earnings and gave conflicting reasons as to why she stopped working; (2) her activities of daily living were not consistent with the alleged severity of impairment; and (3) the objective medical evidence did not support the alleged severity of her symptoms. AR 18, 22, 23, 25.
An ALJ may consider "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted). The ALJ discounted Martinez's credibility because she was "less than forthcoming" in reporting her earnings and there was no objective way to know her earnings because she worked for unreported cash. AR 18. Martinez argues that her failure to report a "small amount of income" does not render her testimony completely incredible. The ALJ, however, did not find her testimony completely incredible on that basis.
The ALJ found that Martinez gave conflicting reasons as to why she stopped working. AR 18. At the hearing, she testified that she stopped working in 2006 because she had a high-risk pregnancy. AR 42. In the Disability Report — Adult, she stated she stopped working on June 1, 1997 because her company closed. AR 206. Substantial evidence supports the ALJ's findings.
An ALJ may consider inconsistencies between a claimant's allegations and daily activities. Bunnell, 947 F.2d at 346. Martinez could prepare meals, help her youngest daughter with getting her ready for school and with her homework, do the laundry, attend therapy or doctor appointments, maintain personal hygiene, clean, drive a car, go out alone, shop in stores, manage her own finances and watch television. AR 22, 56, 226-33. Martinez admitted to Dr. Bagner that she had "fair relationships with family" and could do housework, make breakfast, go to the doctor and therapy, bathe and dress herself without assistance, manage her own money, do household chores, shop, cook and watch television. AR 22, 403. Nevertheless, Martinez stated she has difficulty lifting, bending, standing, reaching, walking, sitting, kneeling, climbing stairs, seeing, remembering, completing tasks, concentrating, understanding, following instructions, using her hands and getting along with others. AR 22, 231. The ALJ found that Martinez's daily activities were not limited to the extent one would expect for a person with her complaints of disabling symptoms and limitations. AR 22. Some of the physical/mental abilities and social interactions required to perform her daily activities are the same as those necessary for maintaining employment. Id.
Martinez argues that her activities of daily living do not equate to full-time competitive employment. However, the ALJ properly discounted her credibility to the extent her daily activities were inconsistent with a "totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) ("Even where [daily] 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.").
Although lack of objective medical evidence supporting the degree of limitation "cannot form the sole basis for discounting pain testimony," it is a factor that an ALJ may consider in assessing credibility. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). The ALJ thoroughly discussed the medical evidence in the record. AR 23-25. A medical report dated February 19, 2010 indicated Martinez was diagnosed with lobular carcinoma in situ in February 2007 and was treated with tamoxifen. AR 23, 275. Her left breast carcinoma was in clinical remission and she was advised to continue tamoxifen until February 2012. AR 23, 275. On May 27, 2010, Martinez was diagnosed with neurofibromatosis type I with recurrent migrainous headaches. AR 23, 364-66. She was treated conservatively with medication and was counseled regarding dietary and lifestyle modifications. AR 23, 366. On June 14, 2011, Martinez was diagnosed with menomentrorhagia and menorrhagia, abdominal pain, leiomyoma of the uterus and breast pain. AR 23, 297-98. On May 8, 2012, Martinez was diagnosed with internal derangement of the right knee and underwent arthroscopic debridement of the right knee, arthroscopic patellofemoral chondroplasty of the right knee and a cortisone injection. AR 23, 520. In July 2012, Martinez received physical therapy for her right knee. AR 23, 539-41. The ALJ noted that Martinez's diagnostic examinations were normal or showed only minor abnormalities. AR 23, 335-63.
The ALJ noted that Martinez sought treatment for her diagnosis of a major depressive disorder. AR 23, 283-94, 383-89, 442-58. Dr. Padua indicated that Martinez's mental status examinations were normal with no indication of suicidal ideation or homicidal ideation. AR 23, 283-94. Martinez was found to be in good compliance with her medications with no medication side effects. AR 23, 283-94. Although Martinez was transported via ambulance to the hospital on October 6, 2011 for a panic attack, she was alert and oriented, and noted to be in mild emotional distress. She denied shortness of breath or chest pain. She was placed on a cardiac monitor and remained stable. AR 501. She was diagnosed with an anxiety attack and discharged from the hospital two hours after arrival, with instructions to follow-up with her therapist. AR 505, 513. On July 20, 2012, Dr. Bagner conducted a mental status examination and reported Martinez was generally normal other than a depressed mood. AR 25, 403-04.
Martinez argues that the ALJ may not rely solely on the absence of supporting objective medical evidence to reject her credibility. The ALJ did not rely solely on this reason. The ALJ's credibility finding is supported by substantial evidence. "If the ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas, 278 F.3d at 959 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). The ALJ did not err.
Martinez contends the ALJ erred in rejecting the lay witness statement of her daughter Tracy.
"In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). "When an ALJ discounts the testimony of lay witnesses, `he [or she] must give reasons that are germane to each witness.'" Valentine v. Comm'r, 574 F.3d 685, 694 (9th Cir. 2009) (citation omitted).
The ALJ considered Tracy's third party function report but gave it "limited weight" because the statements mirrored Martinez's allegations and therefore had "little probative value." AR 22, 234-41. The ALJ also noted that Tracy is not a medical professional and has the "pecuniary and filial motivation" to help Martinez receive benefits. The objective medical evidence does not support Tracy's statements. AR 22.
An ALJ may discount lay witness testimony that is similar to the claimant's subjective complaints when the ALJ has provided clear and convincing reasons for rejecting those subjective complaints. Valentine, 574 F.3d at 694. The ALJ's finding that Tracy's statements mirrored Martinez's allegations is supported by substantial evidence. Compare AR 226-33 with AR 234-41. As discussed above, the ALJ properly discounted Martinez's credibility. Therefore, the ALJ may discount the lay witness statements for the same reasons. See Valentine, 574 F.3d at 694 (wife's testimony properly rejected when ALJ properly discounted husband's similar testimony).
The ALJ erred in relying on Tracy's lay status to discount her lay witness statements. Lay witness testimony may be introduced to show the severity of a claimant's impairment(s) and how it affects the ability to work. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) ("A lay person, Bruce's wife, though not a vocational or medical expert, was not disqualified from rendering an opinion as to how her husband's condition affects his ability to perform basic work activities."). The ALJ erred in relying on Tracy's pecuniary and filial motivation. "[R]egardless of whether they are interested parties, `friends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [his or] her condition.'" Valentine, 574 F.3d at 694 (citation omitted). Evidence that a lay witness "exaggerated a claimant's symptoms in order to get access to his disability benefits, as opposed to being an `interested party' in the abstract, might suffice to reject that [person's] testimony." Id. (emphasis in original). The ALJ made no such finding.
The ALJ's errors were harmless in this case because Tracy's statements mirrored Martinez' subjective complaints, which the ALJ properly discounted. Moreover, inconsistency with medical evidence is a germane reason to discount lay witness statements. Bayliss, 427 F.3d at 1218; Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ("One reason for which an ALJ may discount lay testimony is that it conflicts with medical evidence."); see also 20 C.F.R. § 404.1529(c)(3) (a factor to be considered in evaluating third-party statements is their consistency with the objective medical evidence and the record).
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.
IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment herein on all parties or their counsel.
