DENNIS JAMES HUBEL, Magistrate Judge.
Plaintiff Kelley Kusak brings this action on behalf of her deceased father, Leonard Spingola, pursuant to section 405(g) of the Social Security Act (the "Act") to obtain judicial review of a final decision of the Commissioner denying his application for disability insurance benefits ("DIB"). I affirm the decision of the Commissioner.
The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).
The claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental 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. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The claimant has the burden of proof on the first four steps. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007),
If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work which he or she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(e) and 416.920(e).
If the claimant is unable to perform work performed in the past, the Commissioner proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his or her age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra, 481 F.3d at 746. The claimant is entitled to disability benefits only if he or she is not able to perform other work. 20 C.F.R. §§ 404.1520(f) and 416.920(f).
The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards.
The Administrative Law Judge ("ALJ") found that Spingola suffered from the severe impairments of alcoholism and lumbar degenerative disc disease. Further, the ALJ found that Spingola had mild restrictions in activities of daily living and moderate difficulties in maintaining concentration. Spingola had the residual functional capacity to perform light duty work, except that during an eight hour day, he could stand or walk no more than four hours. He should not have had exposure to hazards or have climbed ladders, ropes, or scaffolds due to his alcohol consumption. He was restricted to occasional stooping, bending, or crouching. He was able to frequently crawl. He was limited to one to three step tasks. Based on the above limitations, the ALJ concluded that Spingola could have performed work as an assembler of small products, a cashier II, or an electronics assembler.
Spignola was deceased at the time of the ALJ's opinion. He died at the age of 54 on April 12, 2008, of cirrhosis and alcoholism. Tr. 174. During his life, Spignola had been employed as auto mechanic and an automobile repair service estimator. Tr. 112. He was a high school graduate. Tr. 174, 291. At one point he claimed he had been disabled since April 2, 1999, and later he claimed disability since February 1, 2004, but after his death and the substitution of his daughter Ms. Kusak as the claimant in this case, she amended the alleged onset date to May 18, 2006. Tr. 11, 163, 183. Spingola's last date insured was June 30, 2007. Tr. 12. On March 26, 2007, Spignola alleged he was disabled due to "acute cronic [sic] back pain with acute and cronic [sic] shoulder [pain]." Tr. 183, 191.
Prior to his death, Spingola typically woke up between 6:30 and 7:00 a.m., showered, and made himself breakfast. Tr. 300. He would then watch TV until roughly 1 pm and then take a nap. Tr. 209. He made his own dinner, watched more television, and then went to bed between 10 p.m. and midnight. Tr. 209, 300. He did laundry weekly, wiped down surfaces in his house, and did other basic cleaning. Tr. 203, 211. He went outside daily, and was able to do so alone. Tr. 204. Spingola could drive and was able to do light shopping for groceries. Tr. 204. He smoked one pack of cigarettes per day for 18 years prior to his death, Tr. 291, 300, and typically ate just one meal per day. Tr. 253.
Spignola alleged he had "a history of chronic back pain," although he could not trace it to any particular accident or event. Tr. 299. He had back surgery at some point in the 1980s, and again in the 1990s, to address issues with the L5-S1 and L4-L5 vertebrae.
In June 2007, Spingola related to examining psychologist Dr. McConochie that because of his pain, "he can be on his feet and busy for about 15-30 minutes if there is no heavy lifting. He often needs a five-minute rest to do continuous activities." Tr. 293. During the same interview, Spingola said, "Standing and walking for more than five minutes is sometimes very tough." Tr. 291. The same month Spingola told an examining internist, Dr. Komanapalli that "[h]e spends a quarter of his day on his feet." Tr. 300.
Dr. Komanapalli assessed that "the number of hours the claimant could be expected to stand and walk in an eight-hour work day is between two and four hours." Tr. 303. A non-examining physician, Dr. Neal Berner, opined, based on his review of the medical records, that Spingola could stand or walk "about 6 hours in an 8-hour workday." Tr. 307. He explained that he disagreed with Dr. Komanapalli's assessment because a "2-4 hour stand walk is excessive restriction [sic] based on [claimant's] own report of being on feet 1/4 of each day." Tr. 312. In spite of his complaints, Spingola did not take any prescription medications for his pain. Tr. 291. Instead of taking medication or seeking other medical treatment, Spingola preferred to treat his pain by drinking alcohol. Tr. 345.
On January 7, 2007, Spignola was hospitalized due to an alcohol withdrawal seizure. Tr. 252. Kusak had found her father with his eyes rolled back in his head, his teeth clenched, unresponsive to stimuli, and his upper extremities displaying chaotic activities.
According to the emergency room's Dr. Geoffrey Gordon, Spignola related, "He does get quite shaky if he does not drink, but he rarely goes a day without drinking." Tr. 255. On June 7, 2007, the day of his neuropsychological exam, he did not drink and the psychologist, Dr. McConochie, observed that Spingola "does have a bilateral hand tremor, suggestive of neurological problems." Tr. 291. Spingola's hand tremors, however, were not noted by Dr. Komanapalli during a full physical examination on June 14, 2007. Dr. Komanapalli commented extensively on Spingola's ability to use his hands:
Tr. 302-03. Dr. Komanapalli concluded, "There are no manipulative limitations." A non-examining consulting physician, Dr. Neal Berner, noted the discrepancy in shorthand, "Clmt has bilat hand tremor during neuro psych but not during physical CE, OV's or hspt reports." Tr. 311.
Disability Determination Services referred Spingola to psychologist William McConochie, Ph.D. for a neuropsychological exam which took place on June 7, 2007. Tr. 290. The appointment was to be cancelled if Spingola arrived inebriated, but the examiner opined that was Spingola was sober on arrival. Tr. 290. During the interview, Spingola said "his only current work related problem is back pain, which bothers him especially if he is physically active." Tr. 291. McConochie opined that Spingola's "thought content was logical," Tr. 291, and that during the interview and testing process Spingola "had good attention and concentration." Tr. 292. Dr. McConochie indicated that Spingola had no impairment in the areas of sustained concentration and attention, persistence, or in his ability to engage in appropriate social interaction. Tr. 295. Dr. McConochie opined that Spingola had a mild to moderate impairment in his ability to understand and remember instructions. Tr. 295. Nevertheless, Dr. McConochie diagnosed Spingola with "Dementia due to chronic alcohol abuse, by medical record." Tr. 295. He concluded that Spingola's "primary psychological limitation to work activity is borderline level intellectual functioning as an aspect of apparent dementia. Prognosis for improvement in this condition is poor, he does not acknowledge alcohol abuse, which appears to be the underlying origin of this deficiency . . . He is still drinking." Tr. 295-96.
Kusak argues that the ALJ erred by (1) failing to include dementia and bilateral hand tremors as "severe" impairments at step two; (2) failing to give full credit to the opinion of Dr. McConochie, the examining psychologist; (3) failing to give full credit to Dr. Komanapalli, the examining physician; (4) failing to find disability by application of the Medical-Vocational rules (5) failing to credit Kusak's lay testimony about her father; and (6) failing to meet her burden of proving that Spingola retained the ability to perform other work in the national economy.
I address each assignment of error in turn.
An impairment is severe "when alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's physical or mental ability to do basic work activities." SSR 02-01p. "[A]n ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is clearly established by medical evidence."
Kusak argues that the ALJ erred by failing to find that dementia and hand tremors were severe impairments. For the reasons set forth below, I disagree.
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities."
In addition, nothing in the record indicates that Spingola himself ever complained of any difficulty using his hands. On the contrary, his view was that "his only current work related problem [was] back pain." Tr. 291. Moreover, Spingola was able to drive, do laundry, shop, and clean—all activities requiring use of his hands. The ALJ took into account the above evidence, and concluded that there was "no objective basis for imposing any restriction on the use of Mr. Spingola's hands." Tr. 21. I agree. I find the medical evidence clearly establishes that hand tremors were not a severe impairment, and more particularly, not a restriction on his ability to work.
Kusak argues that the ALJ erred by not including dementia as a severe impairment at step two, as well. During his neuropsychological assessment, Dr. McConochie diagnosed Spingola with "[d]ementia due to chronic alcohol abuse, by medical record." Tr. 295. Despite his diagnosis, Dr. McConochie opined that Spingola's "thought content was logical," Tr. 291, and that he "had good attention and concentration." Tr. 292. Dr. McConochie indicated that, with regard to Spingola's ability to engage in work related activity, he had no impairment in the areas of sustained concentration and attention, persistence, or in his ability to engage in appropriate social interaction. Dr. McConochie opined that Spingola only had a mild to moderate impairment in his ability to understand and remember instructions. Tr. 295.
The ALJ considered Dr. McConochie's opinion together with the evidence of record, which showed that Spingola drove himself to the store several times per week, cleaned the surfaces in his house on a weekly basis, shopped for groceries, cooked simple meals, played with his daughter's dog, did light chores, and occasionally went fishing. Tr. 15-16. The ALJ noted that Spingola had no social difficulties, and that he regularly interacted with his daughter, his son-in-law, and a neighbor. The ALJ noted that Spingola and his daughter reported that he had difficulty remembering instructions, but noted that the record indicated Spingola "lived basically independently." Tr. 19. The ALJ also considered the opinion of a non-examining psychiatric consultant, Dr. Frank Lahman. Dr. Lahman agreed that Spingola had dementia due to chronic alcohol abuse, but found only a moderate limitation in his ability to understand, remember, and carry out detailed instructions. Tr. 328. It was Dr. Lahman's opinion that Spingola "can remember simple routine instructions," and "can consistently perform simple repetitive routine tasks." Tr. 330. The ALJ gave great weight to Dr. Lahman's opinion because it "seem[ed] consistent with Mr. Spingola's self-reported level of functioning as revealed in the medical records." Tr. 20. Due to the tension between Spingola's self-reported level of functioning and Dr. McConochie's testimony, the ALJ gave only partial credit to Dr. McConochie's opinion.
For all of the above reasons, the ALJ found that Spingola was capable of one to three step tasks, and dementia was not a severe impairment. I agree with the ALJ's finding because the evidence in the record, discussed above, establishes that Spingola's dementia did not significantly limit his mental ability to do basic work activities. Put otherwise, Spingola's dementia had such a minimal effect on him that it would not be expected to interfere with his ability to work.
Although the ALJ did not find dementia to be a severe impairment, she included a limitation of one to three step tasks in Spingola's residual functional capacity. Even if the ALJ had erred in her assessment, "any alleged error at step two was harmless because step two was decided in [the claimant]'s favor with regard to other ailments" and the ALJ considered the symptoms at issue, dementia in this case, in formulating the RFC.
The weight given to the opinion of a physician depends on whether the physician is a treating physician, an examining physician, or a nonexamining physician. More weight is given to the opinion of a treating physician because the person has a greater opportunity to know and observe the patient as an individual.
As noted in the previous section, the examining psychologist, Dr. McConochie, was the sole person who opined that Spingola had an issue with hand tremors. Dr. Komanapalli, an examining physician who performed an extensive analysis of Spingola's hands, however, concluded that Spingola had no manipulative limitations. Dr. Komanapalli's opinion was consistent with Spingola's own description of his limitations, and his daily activities as described above.
I find that the ALJ gave specific and legitimate reasons to reject the opinion of Dr. McConochie with respect to hand tremors. The ALJ did not err in this regard.
Although both the examining psychologist, Dr. McConochie, and the nonexamining psychiatric consultant, Dr. Lahman, concluded that Spingola had dementia as a result of alcohol abuse, the two differed somewhat their opinions about what Spingola could do. Dr. McConochie opined that Spingola had a mild to moderate impairment in his ability to understand and remember instructions. Dr. Lahman opined that Spingola could remember simple routine instructions and consistently perform simple repetitive routine tasks. The ALJ found that Dr. Lahman's opinion was more consistent with the evidence of daily activities present in the record, and thus gave great weight to his opinion and only partial weight to Dr. McConochie's opinion.
I find that Dr. Lahman's opinion, taken together with consistent evidence in the record, gave the ALJ substantial evidence to assign only partial weight to Dr. McConochie's opinion regarding dementia. The ALJ, therefore, did not err in this regard.
Dr. Komanapalli opined that "[t]he number of hours the claimant could be expected to stand and walk in an eight-hour work day is between two and four hours." Tr. 303. Dr. Berner disagreed with Dr. Komanapalli's opinion based on Dr. Komanapalli's own medical records. Dr. Berner opined that Spingola could stand or walk "about 6 hours in an 8-hour workday." Tr. 307. Dr. Berner explained that he only partially accepted Dr. Komanapalli's opinion because a "2-4 hour stand walk is excessive restriction based on [claimant's] own report of being on his feet 1/4 of each day." Tr. 312. It is ambiguous whether Spingola (and thus Dr. Berner) meant one quarter of a 24-hour day or one quarter of his waking hours. Assuming Spingola referred to his waking hours, simple math
More importantly, as the defendant points out, the limitations imposed by Spingola's alleged back pain are not significantly backed up by the record. In the record before the court, Spingola seldom sought treatment for his back pain. Many of the records are completely absent of any mention of back pain.
Nevertheless, the ALJ put in the residual functional capacity a limitation that Spingola "should not have stood/walked for more than four out of eight hours." Tr. 16-17. This limitation is reasonable in light of the relative absence of medical records indicating Spingola's alleged back problems or limitations on standing and walking such problems might have caused. The ALJ explained that Dr. Berner did not agree with Dr. Komanapalli's assessment because it conflicted with Spingola's statement about being on his feet for a quarter of the day. The ALJ concluded that she "assign[s] great weight to Dr. Berner's opinion, as it is well-explained and thorough" and "assign[s] only partial weight to Dr. Komanapalli's opinion." Tr. 20. The ALJ further explained that "the treating source records do not mention back pain or associated limitations in the record." Tr. 20.
I find that the opinion of Dr. Berner, taken together with the evidence in the record regarding how much time Spingola spent on his feet and the absence of medical records about back pain and associated limitations, constitutes substantial evidence sufficient to accord only partial weight to the opinion of Dr. Komanapalli. The ALJ did not err in assessing a four hour stand/walk limitation in Spingola's RFC.
According to Kusak, the ALJ's alleged error concerning the amount of time Spingola could stand or walk means that he should have been limited to sedentary work and thus deemed disabled under the medical-vocational rules. A claimant is limited to sedentary work when he or she can stand or walk no more than two hours in an eight hour work day.
Lay testimony about a claimant's symptoms is competent evidence which the ALJ must take into account unless she gives reasons for the rejection that are germane to each witness.
"[W]here the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination."
Kusak alleges the ALJ erred by rejecting her testimony with regard to the extent of Spingola's back pain, his ability to stand and walk, and his mental functioning. For example, Kusak testified that Spingola "was in incredible amounts of pain always," Tr. 98, that "the smallest amount of activity would hurt his back," Tr. 101, that he struggled to walk up his own front porch, and that "he had a hard time walking to the mailbox and back." Tr. 102. Kusak further testified that after Spingola's hospitalization in January 2007 for alcohol withdrawal, that "he just wasn't the same. He couldn't think straight. A lot of times he wouldn't make sense." Tr. 101. Relating to Spingola's alcohol abuse, Kusak told doctors on January 7, 2007 that Spingola "drinks approximately 10 to 12 glasses of rum from the time he wakes up until he goes to bed. This has gone on for the last 8 years." Tr. 252. Yet she told the ALJ at the August 19, 2009 hearing that Spingola "would have probably four or five drinks a day." Tr. 99.
The ALJ found that Kusak's testimony about her father's limitations was "descriptive of her perceptions; however, it does not provide sufficient support to alter the residual functional capacity. The behavior observed by Ms. Kusak is not fully consistent with the medical and other evidence of record." Tr. 19. The ALJ pointed out that Dr. Miriam Gage noted in December 2007 that after going home from the January 2007 hospital stay, Spingola "has been relatively intact mentally." Tr. 345. In addition, despite Kusak's report that Spingola had a hard time walking to his mailbox and back, Spingola reported on April 17, 2007, a little over 2 months before his last date insured, he could shop for his own groceries, Tr. 212, and on June 14, 2007, 16 days before his last date insured, that he could climb a flight of stairs. Tr. 300.
The ALJ fully discussed Kusak's testimony, and found discrepancies with the medical and other evidence of record. These discrepancies and inconsistencies with the evidence mentioned in this and prior sections constitute germane reasons to discount Kusak's testimony and to conclude that Kusak is not entirely credible. Accordingly, the ALJ did not err in giving only partial consideration to Kusak's testimony.
Kusak's final assignment of error alleges if the ALJ had (1) properly credited the testimony of Dr. McConochie, (2) properly credited Kusak's testimony, or (3) properly informed the vocational expert of all of Spingola's impairments, then the VE would have been unable to find that Spingola was capable of doing work other than his previous jobs in the national economy. I have rejected, above, Kusak's contentions regarding her own testimony and Dr. McConochie's testimony, and will not repeat my reasoning here. Kusak's assignment of error concerning the limitations imparted to the vocational expert warrants a brief discussion.
According to Kusak, the ALJ failed to include in the hypothetical presented to the vocational expert that Spingola had moderate limitations in concentration, persistence or pace, had a limited attention span, and tended to forget spoken instructions. The ALJ however, noted in her report all of those alleged limitations as they appeared in the record. In addition, even Dr. McConochie only characterized Spingola's impairment as somewhere between "mild" and "moderate." See Tr. 295. Based on the ALJ's consideration of the alleged limitations, she formulated a residual functional capacity that included a limitation "to one to three step tasks equivalent to specific vocational preparation (SVP) 2 entry level work as defined in the Dictionary of Occupational Titles." Tr. 17. Similarly, in her hypothetical to the vocational expert, the ALJ asked the expert to assume an individual who "is limited to steps no more complex than one, two, three steps or the equivalent of SVP 2, entry level employment in the Dictionary of Occupational Titles." Tr. 113.
Hypothetical questions posed to a vocational expert must specify all of the limitations and restrictions of the claimant.
Accordingly, based on the record, the decision of the Commissioner is affirmed.
IT IS SO ORDERED.
