KENDALL J. NEWMAN, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act").
For the reasons that follow, the court denies plaintiff's motion for summary judgment, grants the Commissioner's cross-motion for summary judgment, and enters judgment for the Commissioner.
Plaintiff was born on February 10, 1976; has a regular high school diploma with a few college credits, although he primarily attended special education classes; is able to communicate in English; and has no past relevant work, except for a couple of temporary jobs with no significant earnings.
On May 25, 2007, at around age 31, plaintiff applied for SSI, alleging that he was unable to work as of May 17, 2007, due to a right hip replacement in 1995, mental retardation, an adjustment disorder, and ADHD. (AT 85, 128, 140, 145, 147, 262, 307.) On September 13, 2007, the Commissioner determined that plaintiff was not disabled. (AT 85, 90-94.) Upon plaintiff's request for reconsideration, the determination was affirmed on January 25, 2008. (AT 89, 95-99.) Thereafter, plaintiff requested a hearing before an administrative law judge ("ALJ"), which ultimately took place on July 7, 2009, and at which plaintiff (represented by an attorney), plaintiff's mother, and a vocational expert ("VE") testified. (AT 28-84.) In a subsequent decision dated December 7, 2009, ALJ Daniel Heely determined that plaintiff had not been under a disability, as defined in the Act, since May 25, 2007, the date that plaintiff's SSI application was filed. (AT 15-23.) After the Appeals Council denied plaintiff's request for review of ALJ Heely's decision on June 15, 2011, plaintiff appealed the Commissioner's decision to this court on August 2, 2011. (AT 1-6);
Subsequently, on February 10, 2012, this court remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) based on the parties' stipulation to a voluntary remand.
Plaintiff has raised the following issues: (1) whether the ALJ erroneously discounted the opinion of plaintiff's treating physician; (2) whether the ALJ improperly discounted plaintiff's credibility; and (3) whether the ALJ failed to properly consider the lay testimony of plaintiff's mother.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
ALJ Benmour evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework.
Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity ("RFC") as follows:
(AT 423.)
At step four, the ALJ found that plaintiff had no past relevant work. (AT 426.) Finally, at step five, the ALJ determined, in reliance on the VE's testimony, that considering plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (AT 427.) Specifically, the VE testified that plaintiff would be able to perform the representative occupations of silver wrapper (with 28,000 positions in the California economy and 214,000 positions in the national economy) and order caller (with 1,700 positions in the California economy and 15,800 positions in the national economy). (AT 427, 469-70.) The VE also testified that these representative occupations could still be performed even if plaintiff were further restricted to being in direct line of sight of a supervisor with the supervisor available to answer questions. (AT 471.)
Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from May 25, 2007, the date that plaintiff's SSI application was filed, through the date of the ALJ's decision. (AT 428.)
Plaintiff argues that the ALJ erred in discounting the opinion of plaintiff's treating physician, Dr. Christopher Cody. That argument is unpersuasive.
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals.
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons.
Here, on April 13, 2011, plaintiff established care with Dr. Cody at Solano County Health and Social Services, who noted plaintiff's ongoing effort to again obtain SSI benefits. (AT 597.) That same day, Dr. Cody completed a one-page disability report for purposes of county general assistance benefits, opining that plaintiff was totally and permanently disabled based on diagnoses of status post total right hip replacement and "reported ADHD," and listing the clinical findings supporting disability as "gait changes." (AT 588, 616.) Subsequently, on February 15, 2012, Dr. Cody indicated on a virtually identical form that plaintiff had a temporary partial disability (i.e., was able to perform limited or restricted work), and that the temporary disability was expected to end by February 29, 2012. (AT 606.) That form contained no diagnoses or clinical findings at all. (
The ALJ justifiably gave Dr. Cody's cursory opinions little weight, because they were conclusory and minimally supported.
The ALJ also noted that Dr. Cody did not actually treat plaintiff for right hip pain or ADHD. (AT 425.) With respect to the hip pain, although Dr. Cody apparently at one point referred plaintiff for an unspecified orthopedic evaluation (AT 596, 617), the records from Dr. Cody's clinic do not document any specific treatment of plaintiff's hip by Dr. Cody, and reveal that Dr. Cody primarily treated plaintiff for other physical impairments such as acid reflux, wrist pain, hypertension, and smoking cessation, which are not alleged to be disabling impairments. (AT 570-621.)
As for ADHD, the express language of Dr. Cody's April 13, 2011 assessment indicates that the ADHD diagnosis was based on plaintiff's own self-reporting, and a social worker affiliated with Dr. Cody's clinic specifically informed plaintiff that the clinic did not treat ADHD. (AT 595.) The ALJ noted that plaintiff received some treatment for ADHD as an adult while in prison. (AT 425-26.) However, in a March 23, 2007 California Department of Mental Health evaluation by psychologist Diane Sommers, who reviewed plaintiff's records and personally conducted a clinical mental status examination, Dr. Sommers notably opined that plaintiff "by history, has been labeled with ADHD; however, he has not exhibited symptoms consistent with this disorder while in prison." (AT 226.) Furthermore, even though the records from Dr. Cody's clinic indicate that plaintiff received some treatment for depression, anxiety, and insomnia, the treatment notes documented mostly mild to moderate findings, with generally effective control by medication. (AT 576-77, 579, 595.) These findings are largely consistent with prison records, which show that as of 2006-2007, plaintiff's mental health was mostly stable with better sleep, improved mood, no mild transient depression, and a normal range of emotional display. (AT 225.)
Additionally, in discounting Dr. Cody's opinion and formulating plaintiff's RFC, the ALJ properly relied on several other opinions in the record.
The ALJ gave substantial weight to the opinion of consultative examiner and board certified physical medicine and rehabilitation specialist, Dr. Madelaine Aquino, who examined plaintiff on August 23, 2007, and reviewed his records. (AT 262-65, 425.) Dr. Aquino noted plaintiff's hip fracture and related surgery in 1995, and observed that plaintiff ambulated with a slight limp to the right side, but otherwise had a normal gait pattern; was able to sit comfortably during the examination; had no problem getting on and off the exam table; and was able to heel, toe, and tandem walk without difficulty. (AT 262-64.) Dr. Aquino opined that plaintiff could stand and walk about 6 hours in an 8-hour workday, with no continuous walking more than 1 hour at a time; could sit without restriction; had no lifting limitations; and could only occasionally bend or crawl. (AT 265.)
Because Dr. Aquino personally examined plaintiff and made independent clinical findings, her opinion constitutes substantial evidence on which the ALJ was entitled to rely. Moreover, Dr. Aquino's opinion is consistent with the results of objective radiological testing performed. For example, a June 12, 2006 x-ray of plaintiff's right hip and pelvis, referenced by Dr. Aquino, showed stable hardware and alignment, and no significant degenerative changes. (AT 200.) On August 25, 2008, x-rays of plaintiff's right hip showed no acute abnormality. (AT 630.) A subsequent October 22, 2008 MRI of plaintiff's right hip likewise showed no significant abnormality, although the study was noted to be somewhat obscured and distorted by the hardware in plaintiff's hip. (AT 625.)
The ALJ also gave some weight to the assessments of the state agency physicians. (AT 425-26.) On September 10, 2007, state agency physician Dr. Dann reviewed plaintiff's records and opined that plaintiff could lift 20 pounds occasionally and 10 pounds frequently; sit about 6 hours in an 8-hour workday; stand and/or walk about 6 hours in an 8-hour workday; stand and/or walk up to 1 hour at a time with 1-2 minutes in between to sit or rest; and occasionally climb, kneel, crouch, or crawl. (AT 266-70.) Dr. Dann observed that while plaintiff had a medically determinable impairment of his right hip, he found plaintiff only partially credible, because Dr. Aquino's exam and the objective imaging studies did not support the degree of impairment alleged. (AT 270.) Furthermore, on August 17, 2007, state agency psychiatrist Dr. Loomis reviewed plaintiff's records and opined that plaintiff "is capable of understanding, remembering and carrying out simple repetitive tasks. The claimant is able to maintain concentration, persistence and pace throughout a normal workday/workweek as related to simple tasks. The claimant is able to interact adequately with coworkers/supervisors but may have difficulty dealing with the demands of general public contact. The claimant is able to make adjustments and avoid hazards in the workspace." (AT 258.)
The ALJ legitimately gave some weight to the state agency physicians' assessments, because they were generally consistent with other evidence in the record, as discussed above. "Although the contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record."
In light of the above, the court finds that the ALJ provided several specific and legitimate reasons for discounting Dr. Cody's opinion.
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"The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints."
As an initial matter, the court notes that the ALJ did not entirely discredit plaintiff's subjective allegations. Indeed, as noted above, the ALJ imposed significant physical and mental limitations resulting in a substantially reduced range of light work. (AT 423.) For example, in light of his right hip impairment, plaintiff was restricted to standing and/or walking for only 1 hour at a time, with the need to sit and rest for 1-2 minutes in between. (
Nevertheless, to the extent that the ALJ discounted plaintiff's testimony regarding the degree of his symptoms and functional limitations, the ALJ provided several specific, clear, and convincing reasons for doing so.
The ALJ found that the weight of the medical evidence did not support plaintiff's claims of limitations to the disabling degree alleged. (AT 424-26.) For the reasons discussed above, that finding is supported by substantial evidence. To be sure, "after a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity" of the symptoms.
The ALJ also reasonably found that plaintiff's allegations of disabling limitations were undermined by the relatively limited and/or conservative treatment of his physical and mental impairments. (AT 424-26.)
As to plaintiff's hip impairment, plaintiff told consultative examiner Dr. Aquino on August 23, 2007, that he was not taking any medications or receiving any active treatment at that time. (AT 262.) The record indicates that plaintiff was evaluated at San Joaquin General Hospital orthopedic clinic for right hip pain in 2008, and was given an injection, instructed to perform daily exercises, and told to take Motrin or aspirin for pain as needed. (AT 631-32.) At the July 7, 2009 hearing before ALJ Healy, plaintiff stated that he did not get treatment from a particular doctor for his physical problems and that he had stopped taking his pain medication, because "well, they just ran out and I didn't see a need to go back to the doctors." (AT 47.) At the subsequent November 2, 2012 hearing before ALJ Benmour, plaintiff testified that he was taking some pain medication, but confirmed that he had not received any recent treatment for his hip since the fairly limited treatment at San Joaquin General Hospital. (AT 446-49.)
With respect to plaintiff's alleged ADHD, the record does not contain evidence of any substantial treatment for ADHD after plaintiff's SSI application was filed. (AT 424, 425-26.) To be sure, in some mental impairment cases it may be inappropriate to discount a claimant's credibility based on the claimant's failure to seek treatment for the mental impairment, such as when the claimant lacks the capacity to seek treatment, or resources for treatment are not available. However, in this case, plaintiff had access to, and did seek, treatment for some of his mental impairments, including depression and anxiety. Moreover, he was given the option to pursue available treatment for his alleged ADHD with Catholic Social Services, but the record contains no indication that plaintiff actually pursued treatment there. (AT 595.) Furthermore, as noted above, the treatment notes from Dr. Cody's clinic documented mostly mild to moderate findings regarding plaintiff's other mental health impairments, with generally effective control by medication. (AT 576-77, 579, 595.)
Finally, the ALJ rationally concluded that plaintiff's activities were not limited to the extent one would expect given complaints of disabling symptoms and limitations. (AT 422.) "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."
In this case, plaintiff testified that he could walk for approximately an hour before he needed a 2-3 minute break, could stand in one place for about an hour, and could lift about 20 pounds. (AT 454.) He further testified that he took care of his own hygiene, drove himself to doctor's appointments, and did household chores, including cleaning his room, washing dishes, mopping the floor, and doing laundry. (AT 422, 455-56.) Plaintiff did not cook often or do grocery shopping at the time of the hearing before ALJ Benmour, because he then lived with his parents who performed those functions (AT 455), but he had previously shopped for groceries and prepared simple meals when living on his own, with some menu planning assistance from his mother. (AT 53-54, 151-54.) In a third-party function report, plaintiff's mother indicated that plaintiff used public transportation, rode a bicycle, went to the library and the movies, talked on the phone, read, watched television, played videogames, looked for a job, did yard work, did not need reminders taking medicine, could pay bills, could count change, and could handle a savings account. (AT 151, 153-55.) Plaintiff himself confirmed that he frequently rode a bicycle during the relevant period, which is confirmed by numerous medical records. (AT 40, 46-47, 162, 631 ["The patient states the pain is worse on riding his bike and it has been bothering him for the last couple of years."], 633 ["The patient does not have any acute issues except for the fact that he gets off and on pain in the right hip, particularly when he spends a lot of time on his bike"].) Additionally, around January 2012, plaintiff, with Dr. Cody's support, applied for a free sport fishing license. (AT 608.)
To be sure, plaintiff also points to some contrary evidence, suggesting that plaintiff's activities may be more limited. However, it is the function of the ALJ to resolve any ambiguities, and the court finds the ALJ's assessment to be reasonable and supported by substantial evidence.
For these reasons, the court finds that the ALJ's evaluation of plaintiff's credibility is supported by substantial evidence in the record as a whole.
"[C]ompetent lay witness testimony cannot be disregarded without comment" and "in order to discount competent lay witness testimony, the ALJ must give reasons that are germane to each witness."
Here, the ALJ specifically discussed the statements and testimony of plaintiff's mother, clearly indicating that the ALJ had considered the information for purposes of assessing plaintiff's RFC. (AT 422, 424.) Nevertheless, the ALJ ultimately found that the record as a whole did not support plaintiff's mother's opinion that plaintiff "needs to be in a sheltered workshop" beyond the limitations already assessed in the RFC. (AT 424.) As discussed above, the ALJ provided specific, clear, and convincing reasons for discounting plaintiff's testimony. These reasons (in particular, the weight of the medical evidence, limited and/or conservative treatment, and plaintiff's activities), are equally germane to the testimony of plaintiff's mother.
Any error in not explicitly re-stating or linking the reasons given for discounting plaintiff's testimony with respect to discounting plaintiff's mother's testimony was harmless, and remand is not warranted.
For the foregoing reasons, the court finds that the ALJ's decision was free from prejudicial error and supported by substantial evidence in the record as a whole. Accordingly, IT IS HEREBY ORDERED that:
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.