MARCO A. HERNANDEZ, District Judge.
Ingrid Theresa Rose brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner found Plaintiff not disabled and denied her application for disability insurance benefits ("DIB") and Supplemental Security Income benefits ("SSIB") under Titles II and XVI of the Act, respectively. For the reasons set forth below, the Commissioner's decision is AFFIRMED.
On February 23, 2009, Plaintiff applied for DIB and SSIB alleging disability beginning on May 1, 2004. Tr. 20. Plaintiff's claims were denied on May 21, 2009, and upon reconsideration on October 2, 2009.
The parties are familiar with the medical evidence and other evidence in the record. Therefore, the evidence will not be repeated except as necessary to explain my decision.
A claimant is disabled if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure.
At Step One, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled.
At Step Three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
At Step Four, the Commissioner determines whether the claimant, despite any impairments, has the residual functional capacity ("RFC") to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner.
At Step Five, the Commissioner must establish that the claimant can perform other work.
At Step One, the ALJ found Plaintiff had not engaged in substantial gainful activity since May 1, 2004. Tr. at 22, Finding 2. At Step Two, the ALJ found Plaintiff had the "following severe impairments: hypertension, mild coronary disease, diabetes mellitus, mild hip bursitis, leg, back and arm pain, and moderate snoring." Tr. 22, Finding 3. At Step Three, the ALJ found Plaintiff's impairments did not meet or equal the requirements of a listed impairment pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23, Finding 4. At Step Four, the ALJ found Plaintiff had the RFC "to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except she is limited to occasional climbing, balancing, stooping, kneeling, crouching and crawling." Tr. 23, Finding 5. The ALJ also found Plaintiff was not disabled because she was "capable of performing past relevant work as a campaign clerk." Tr. 26, Finding 6.
A court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record.
The initial burden of proof rests upon the claimant to establish disability.
Plaintiff asserts that the ALJ erred in the following ways: (1) the ALJ improperly found that she was not credible; and (2) the ALJ erred at Step Two when concluding that her gout was not a severe impairment.
The Ninth Circuit has developed a two-step process for evaluating the credibility of a claimant's testimony regarding the severity of symptoms.
"To determine whether the claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider . . .: (1) 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; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities."
Plaintiff asserts the ALJ erred when finding that she failed to comply with her medical treatment. Plaintiff contends that the ALJ failed to determine that her medical treatment was "clearly expected to restore capacity to engage in any [substantial gainful activity]" as required under Social Security Ruling ("SSR") 82-59.
The ALJ reasoned that despite Plaintiff's allegations of disabling pain and symptoms, Plaintiff only "underwent physical therapy until February 2005," and was "released to regular work" in 2005. Tr. 25 (citations omitted). The record confirms the ALJ's findings, showing that on February 22, 2005, one of Plaintiff's treating physicians, Laura K. Bitts, M.D., documented that Plaintiff had been "released from occupational therapy" and that Plaintiff's pain had "gradually improved over the last 10 months." Tr. 738. Bitts also assessed Plaintiff as "medically stationary" and "released [Plaintiff] to regular work...." Tr. 738.
The ALJ also concluded that Plaintiff's "allegations that she [was] unable to walk at times [was] not supported by the treatment record or her daily activities" and that "[d]espite her symptoms[,] she [was] able to work part-time" by "assisting disabled clients," and babysitting in 2008. Tr. 25. The ALJ determined that Plaintiff's ability to work was "inconsistent with her allegations that she [was] unable to walk at times and that she relie[d] on her daughter for all household chores." Tr. 25. The record supports the ALJ's findings, showing that at the February 17, 2011, hearing, Plaintiff testified she worked fulltime in 2009 "caring for a neighbor's kid" and was working part-time, four hours a day, caring for mentally disabled people. Tr. 49-50, 52. Plaintiff testified that caring for mentally disabled people included making sure they "ha[d] their meds", "cook[ing] for them", "mak[ing their] dinner", and "mop[ping] the kitchen." Tr. 51-53.
The ALJ further determined that Plaintiff's credibility was "undermined by her noncompliance with medications for high blood pressure". Tr. 25. The ALJ specifically stated that Plaintiff "forgot to take her blood pressure medications the morning of her stress test" in June 2004, stopped "taking her medications for a month" in July 2010 despite having "severe hypertension", stopped "taking her medications in October 2010", and admitted "she was taking her medications only intermittently" in December 2010.
The ALJ properly considered Plaintiff's failure to comply with recommended treatment when discrediting her statements.
In short, the ALJ articulated specific, clear, and convincing reasons supported by substantial evidence in the record when finding Plaintiff's reports of disabling pain and symptoms not credible.
Plaintiff argues that the ALJ erred when finding Plaintiff's statements not credible because the ALJ did not follow SSR 82-59. I disagree.
SSR 82-59 "provides that an ALJ may deny benefits to a claimant who has a disability if the claimant unjustifiably fails to follow prescribed treatment that is clearly expected to restore capacity to engage in any [substantial gainful activity]."
Here, Plaintiff fails to establish that she is already receiving benefits or is eligible for benefits. In addition, even if SSR 82-59 did apply, Plaintiff does not establish that "free community resources [were] unavailable", that "[a]ll possible resources (e.g., clinics, charitable and public assistance agencies, etc.)" were "explored", or that "[c]ontacts with such resources and the claimant's financial circumstances [were] . . . documented" as required under SSR 82-59.
With respect to Plaintiff's argument that the ALJ did not fully develop the record, this argument is unavailing because it was raised for the first time in Plaintiff's reply. It is therefore deemed to be waived.
In sum, the ALJ provided specific, clear, and convincing reasons supported by substantial evidence in the record when finding Plaintiff not credible. As such, the ALJ's adverse credibility finding must be sustained.
Plaintiff asserts the ALJ erred at Step Two when concluding that her gout was not severe. Plaintiff contends the ALJ should have found her gout severe because the ALJ improperly found that there was no evidence of gout since her alleged onset date and the ALJ failed to resolve the ambiguity arising out of the conflict between Sonya Abbassian, M.D.'s conclusion that Plaintiff had gout and Skavaril's conclusion that Plaintiff no longer had gout. A careful review of the record shows that the ALJ did not commit reversible error.
Step Two is a "de minimus screening device to dispose of groundless claims."
Here, the ALJ found that Plaintiff's gout was not a severe impairment, stating that although Plaintiff "has a history of gout[,] . . . there [was] no evidence of gout since her alleged onset date and she is not on medication." Tr. 23. Plaintiff asserts that the ALJ erred because contrary to the ALJ's finding, there is evidence of gout since her alleged onset date.
The ALJ's conclusion that there was no evidence of gout since Plaintiff's alleged May 1, 2004, onset date was erroneous. Abbassian's May 2009 medical notes state, among other things, "Gout — severe". Tr. 959. Bradley Evans, M.D.'s November 2009 medical notes list "[A]llopurinol" as one of Plaintiff's current medications. Tr. 513. In addition, Skavaril's April 2010 medical notes state that Plaintiff is "being treated for gout" and assess Plaintiff with, among other things, gout. Tr. 531. The ALJ's finding that the record was absent any evidence showing Plaintiff had gout after her alleged onset date is not supported by substantial evidence.
The ALJ's conclusion that Plaintiff's gout was not severe because Plaintiff was no longer taking gout medication, however, is supported by substantial evidence. Skavaril's latest medical records show that in October 2010, Plaintiff had "discontinued her [A]llopurinol". Tr. 524. In addition, Skavaril's October 2010 medical notes show that Skavaril did not prescribe Allopurinol or any other gout medication to Plaintiff, and did not list any gout medication, including Allopurinol, as one of the medications Plaintiff was currently taking.
Notably, Plaintiff's arguments also fail because she cites no evidence, including any medical signs, symptoms, or laboratory findings, evidencing any functional limitations arising out of her gout or showing that her gout had any effect on her ability to work. Rather, Plaintiff merely cites to her diagnoses of gout and prescriptions of Allopurinol. Such evidence does not establish that Plaintiff is significantly limited-either physically or mentally-by gout, let alone that her gout is severe.
Lastly, Plaintiff contends that the ALJ erred at Step Two by failing to resolve the ambiguities in the record. Specifically, Plaintiff maintains the ALJ erred when failing to resolve the "conflict" between Abbassian's diagnosis that Plaintiff had gout and Skavaril's conclusion that Plaintiff no longer had gout. Plaintiff's argument is unavailing.
Further development of the record is required "only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."
In sum, Plaintiff fails to show that the ALJ erred at Step Two. Based on the evidence before me, I conclude that the ALJ provided legally sufficient reasons supported by substantial evidence in the record when concluding that Plaintiff's gout was not a severe impairment.
For the foregoing reasons, the Commissioner's decision is AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS SO ORDERED.