EDMUND F. BRENNAN, District Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a Period of Disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties' cross-motions for summary judgment are pending. For the reasons discussed below, the court grants the Commissioner's motion and denies plaintiff's motion.
Plaintiff Joan Conatser formally applied for a Period of Disability and DIB on February 7, 2007, alleging that she had been disabled since January 1, 2005.
On September 3, 2009, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(I) and 223(d) of the Act.
Id. at 12-20.
Plaintiff requested that the Appeals Council review the ALJ's decision. Id. at 4-6. However, on December 30, 2010, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. Id. at 1.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "`It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "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 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues that the ALJ erred in: 1) finding that her hands and shoulder impairments were not severe at step two, 2) rejecting the opinion of plaintiff's treating physician, 3) failing to provide clear and convincing reasons for rejecting plaintiff's testimony, 4) finding that plaintiff had the residual functional capacity to perform light work, and 5) applying the Medical-Vocational Guidelines.
Plaintiff contends that the ALJ erred at the second step of the sequential evaluation process by not finding that plaintiff had severe hands and shoulder impairments. Pl.'s Mot. for Summ. J., Dckt. No. 12-1 at 19. As stated above, the ALJ found at step two that plaintiff's severe impairments included "[d]egenerative disc disease of the cervical and lumbar spine, a sleep disorder, myofascial pain syndrome, consistent with fibromyalgia, and medial and lateral epicondylitis of the left elbow." AR 12.
A severe impairment is one that "significantly limits" a claimant's "physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). An ALJ must consider all of the evidence at step two to determine whether a medically determinable impairment significantly limits the claimant's ability to perform basic work activities. Id. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 145 (1987). "An impairment or combination of impairments may be found `not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (citation omitted). Step two is "a de minimis screening device [used] to dispose of groundless claims" and the ALJ's finding must be "clearly established by medical evidence." Id. at 687 (citations and quotation marks omitted).
There is evidence in the record that could support a finding that plaintiff had wrist and shoulder impairments. For example, a March 14, 2005 assessment found that plaintiff had osteoarthritis of her right shoulder with frequent crepitus and occasional catching. AR 153. An MRI also revealed some degenerative joint disease of the shoulder. Id. On June 30, 2005, Dr. McDaniel, one of plaintiff's treating physicians, found that plaintiff had an impingement of the right shoulder. Id. at 231. On February 7, 2007, plaintiff underwent electrodiagnostic testing, which revealed "[m]ild right median sensory carpal tunnel syndrome without motor involvement." Id. at 295. An orthopedic evaluation conducted on June 2, 2007, found that plaintiff had a "diminished range of motion of her shoulder, as well as findings of carpal tunnel syndrome in her right wrist." Id. at 315.
It is not entirely clear from the ALJ's decision why he did not find that plaintiff's hands and shoulder impairments were severe. In his step two analysis, the ALJ states that plaintiff "has Carpal tunnel in her right hand and starting in the left" and has pain in her right shoulder, but the ALJ did not discuss how these limitations impacted plaintiff's ability to perform basic work activities. Id. at 13. However, any failure to list plaintiff's hands and shoulder limitations as severe was, at most, harmless error because the ALJ considered these impairments in the remaining steps of the sequential evaluation process. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding that when an ALJ accounts for resulting limitations later in the sequential evaluation process, any error in finding the impairment non-severe at the second step is harmless); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (if one severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis) (citing 20 C.F.R. § 404.1523); Burch v. Barnhart, 400 F.3d 676, 682-82 (9th Cir. 2005) (ALJ's failure to find claimant's obesity severe at step two was harmless error where it was considered in determining claimant's RFC).
Plaintiff contends, however, that the ALJ did not include these impairments at the third step of the sequential evaluation process. Dckt. No. 12-1 at 19. Plaintiff misreads the ALJ's decision. Although the ALJ did not individually discuss plaintiff's impairments in his step three analysis, it is clear from the decision that the ALJ considered all of plaintiff's impairments, not just the impairments listed as severe at the second step. The ALJ found that plaintiff did not have impairments or combination of impairments that met or medically equaled one of the listed impairments. AR 13. The ALJ further stated that plaintiff "has no impairment" satisfying the severity criteria in any musculoskeletal or neurological listings. A fair reading of the ALJ's third step analysis, rather than supporting plaintiff's contention that the ALJ only considered serve impairments, reveals that the ALJ considered all of plaintiff's impairments.
Furthermore, the ALJ explicitly discussed plaintiff's hands and shoulder impairments at the fourth step. In his fourth step analysis, the ALJ wrote:
It is clear from the ALJ's analysis that he considered and weighed the medical evidence regarding plaintiff's wrist and shoulder impairments. Indeed, the ALJ's assessment of plaintiff's RFC specifically included frequent manipulative limitations caused by plaintiff's carpal tunnel. Because the ALJ considered plaintiff's hands and shoulder impairments at the third and fourth step of the sequential evaluation process, any failure in finding these impairments severe at the second step was harmless.
Plaintiff further argues that the ALJ erred in rejecting the opinion of treating physician Dr. McDaniel, while giving significant weight to the opinions of examining physician Dr. Mitchell and non-examining physician Dr. Zheutlin.
Dr. McDaniel had been treating plaintiff for neck, back, and wrist pain since early 2004. AR 256. Dr. McDaniel's progress notes from September 10, 2008 state that plaintiff had fibromyalgia. Dr. McDaniel further observed that plaintiff had no acute distress, had mild limitations of the right hip joint, and was able to ambulate in spite of complaints of anterior hip pain. Id. at 512. He also described plaintiff as "generally looking good and better than the way she feels." Id. Dr. McDaniel examined plaintiff again on December 09, 2008, and observed that plaintiff had no acute distress and moved well. Id. at 514. However, Dr. McDaniel opined that plaintiff was unable to work at that time. Id.
In addition to Dr. McDaniel's opinion, the record also contains the opinion of Dr. Mitchell, an examining physician. On June 2, 2007, Dr. Mitchell conducted a complete orthopedic evaluation. Id. at 311-316. He observed that plaintiff exhibited a smooth range of motion of all joints without evidence of crepitans. Id. at 314. Plaintiff had diminished range of motion in her lumbar spine and shoulder, and there were findings of carpel tunnel in plaintiff's right wrist. Id. at 315. Based on the examination, Dr. Mitchell opined that plaintiff could stand/walk for 6 hours, sit for 6 hours, lift/carry 20 pounds occasionally and 10 pounds frequently. Id. at 316. Dr. Mitchell further opined that plaintiff may have frequent postural limitations, including bending, stooping, crouching, and climbing, and that there may be frequent manipulative limitations caused by carpal tunnel syndrom in plaintiff's right wrist. Id.
The record also contains the opinions of Drs. Zheutlin and Eskander, both non-examining physicians. Dr. Zheutlin opined that plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk 6 hours in an 8-hour day; sit 6 hours in an 8-hour day; was unlimited in pushing and pulling; and could occasionally climb, balance, stoop, kneel, crouch, and crawl. Id. at 471-72. Dr. Eskander opined that plaintiff could lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk 6 hours in an 8-hour day, sit 6 hours in an 8-hour day, was unlimited in pushing and pulling, and occasionally limited in climbing, stooping, kneeling, crouching, and crawling. Id. at 320-321. Dr. Eskander further opined that plaintiff had manipulative limitations, including reaching and fingering. Id. at 321.
The ALJ rejected Dr. McDaniel's opinion because it was not a proper medical opinion as defined by the regulations. Id. at 16. "`Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability.'" Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)); see also 20 CFR § 404.1527(e) ("A statement by a medical source that you are `disabled' or `unable to work' does not mean that we will determine that you are disabled."). Thus, an ALJ is not obligated to provided detailed reasons for rejecting a medical experts opinion regarding the ultimate question of disability. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Dr. McDaniel's medical opinion consisted of his statement that plaintiff was unable to work. This opinion goes to the ultimate issue of disability, a determination specifically reserved for the ALJ. Accordingly, the ALJ properly rejected Dr. McDaniel's opinion.
The ALJ found that plaintiff's statements concerning the intensity and limiting effect of her symptoms were not credible to the extent that they were inconsistent with the RFC assessment. AR 17. In general, the ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons. See, e.g., Saelee, 94 F.3d at 522. If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief").
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Smolen, 80 F.3d at 1284; see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in determining whether the alleged associated pain is not a significant nonexertional impairment. See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172,177 n.6 (9th Cir. 1990). "Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ provided clear and convincing reasons for rejecting plaintiff's testimony. First, the ALJ found that plaintiff was not credible because there were inconsistencies in her statements regarding her past employment. Specifically, the ALJ found that plaintiff failed to detail her employment with her husband's business. Plaintiff's stated on her disability report that she last worked in January 2005 as an office manager in real estate and sales, id. at 95, but she testified at the hearing that she worked in property management during 2006 and 2007. Id. at 26-27.
The ALJ also observed that plaintiff's complaints were not consistent with her daily activities. The ALJ stated that plaintiff's reports of disability were inconsistent with evidence that she was an avid golfer. Id. 18. Accordingly to plaintiff's application, she was unable to work due to her disabling condition on January 12, 2007. However, a progress note completed by Dr. Nichols on February 1, 2007, states that plaintiff "is an avid golfer and very active." Id. at 217. Clearly plaintiff's contention that she was experiencing debilitating pain on January 12, 2007 is inconsistent with playing golf and living an active lifestyle.
Lastly, the ALJ stated that he was not crediting plaintiff's testimony because she testified that she had debilitating pain, but also stated that she stopped taking her prescribed medication. Id. at 18. An ALJ may properly discredit a claimant's testimony where the claimant does not follow a prescribed course of treatment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Plaintiff testified that Dr. Peters prescribed her Lyrica for her fibromyalgia, but that she decided to stop taking the medication because it caused her headaches. AR 41. The ALJ, however, noted that there was no medical evidence supporting her contention that the side effects of her medication were as server as she claimed. Id. at 18; See Fair, 885 F.2d at 603 (". . . a finding by the ALJ that the proffered reason [for discontinuing a prescribed course of treatment] is not believed, can cast doubt on the sincerity of the claimant's pain testimony."). Thus, the ALJ properly discredited plaintiff's testimony for failing to pursue a course of treatment.
The ALJ provided clear and convincing reasons for finding that plaintiff had exaggerated the pain she experienced. Accordingly, the ALJ did not error in rejecting plaintiff's testimony.
Plaintiff argues that the ALJ's finding that plaintiff could perform light work was not supported by substantial evidence in the record. Dckt. No. 12-1 at 28. Specifically, plaintiff argues that the ALJ erred by failing to consider medical evidence that plaintiff's impairments limited her in reaching and fingering. Id. 29-30.
Plaintiff first contends that the ALJ erred by not incorporating fingering limitations in the RFC assessment. Id. at 30. It appears that plaintiff misunderstands the ALJ's RFC assessment. Although the ALJ did not specifically state that plaintiff had limitations with "fingering", the RFC does specify that plaintiff "might also have frequent manipulative limitations because of the carpal tunnel syndrom in her right wrist." Id. at 14. This clearly includes fingering limitations caused by plaintiff's carpal tunnel. See S.S.R. 85-15 (categorizing fingering as a manipulative impairment that may limit a claimants ability to perform certain jobs.)
Plaintiff further argues that the ALJ's RFC assessment was not support by substantial evidence because the RFC did not include limitations in reaching, which was assessed by Dr. Eskander. Though there is evidence indicating that plaintiff had a shoulder impairment, the record also contains evidence that plaintiff was not limited in reaching. Plaintiff was evaluated by Dr. Mitchell, who observed that plaintiff had smooth range of motion in all joints without crepitans. Id. at 314. Although he did find that plaintiff had a reduced range of motion in her shoulder, he did not conclude that plaintiff had reaching limitations. Id. at 315-316. Rather, Dr. Mitchell only found that plaintiff had manipulative limitations caused by carpel tunnel. Id. The ALJ was permitted to resolve the conflict between Dr. Eskander and Dr. Mitchell's assessments and give greater weight to the opinion of Dr. Mitchell, an examining physician. See Edlund, 253 F.3d at 1156 (an ALJ is responsible for resolving conflicts in medical testimony); Lester, 81 F.3d at 830 (the opinion of an examining physician is entitled to greater weight than the opinion of a non-examining physician). Because the ALJ's decision is supported by the opinion of Dr. Mitchell, the ALJ did not error in failing to include reaching limitations in the RFC. Accordingly, the ALJ did not error in assessing plaintiff's RFC.
Lastly, plaintiff argues that the ALJ erred in applying the Medical-Vocational Guidelines. This argument is primarily based on plaintiff's contention that the ALJ failed to account for fingering and reaching limitations in establishing plaintiff's RFC.
The ALJ's decision is supported by substantial evidence in the record and based on the proper legal standards. Therefore, it is hereby ORDERED that
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
