KAREN L. STROMBOM, Magistrate Judge.
Plaintiff has brought this matter for judicial review of the Defendant Commissioner's denial of her application for disability insurance benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing the parties' briefs and the remaining record, the Court hereby finds that for the reasons set forth below, the Commissioner's decision to deny benefits is AFFIRMED.
On November 5, 2010, Plaintiff protectively filed a DIB application, alleging disability as of October 30, 2008, due to neck and shoulder problems, hearing loss, and sleep problems.
On May 25, 2012, the ALJ issued a decision finding Plaintiff not disabled.
Plaintiff argues the ALJ's decision should be reversed and remanded to the Commissioner for payment of benefits, because the ALJ erred: (1) in failing to include urge incontinence as a severe impairment at step two, (2) in evaluating the medical evidence in the record; (3) in discounting Plaintiff's credibility; and (4) in assessing Plaintiff's residual functional capacity ("RFC"). For the reasons set forth below, the Court disagrees that the ALJ erred in determining Plaintiff to be not disabled, and therefore affirms the Commissioner's decision. Although Plaintiff requests oral argument (ECF # 13), the Court finds such argument to be unnecessary here.
The determination of the Commissioner that a claimant is not disabled must be upheld by the Court, if the "proper legal standards" have been applied by the Commissioner, and the "substantial evidence in the record as a whole supports" that determination.
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Plaintiff argues that the ALJ erred in failing to include urinary urge incontinence as a severe impairment at step two. The ALJ noted that Plaintiff experienced incontinence issues, but that post-bladder surgery they caused "only transient and mild symptoms and limitations, did not persist for twelve continuous months, and do not have greater than [] minimal limitations on the claimant's ability to perform basic work activities and are therefore considered non severe." AR 28. Plaintiff argues that she continued to experience urge incontinence issues post-surgery, and that even if urge incontinence was not a severe impairment, the ALJ should have considered the limitations it causes when assessing her RFC.
Defendant employs a five-step "sequential evaluation process" to determine whether a claimant is disabled.
An impairment is 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." SSR 85-28, 1985 WL 56856, at *3 (Jan. 1, 1985);
The medical record contains evidence that Plaintiff complained of urge incontinence, but does not contain any medical opinion regarding the limitations caused by Plaintiff's urge incontinence.
The dearth of objective evidence establishing the existence of limitations caused by Plaintiff's urge incontinence is fatal to her assignment of error, because there is no medical evidence establishing the severity of the impairment.
Plaintiff argues that the ALJ erred in discounting opinions provided by treating physicians Julian Arroyo, M.D., and William Morris, M.D., and examining physician Jeffrey Patterson, M.D. The Court will address each physician's opinion in turn.
The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence.
In resolving questions of credibility and conflicts in the evidence, an ALJ's findings "must be supported by specific, cogent reasons."
The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician.
In general, more weight is given to a treating physician's opinion than to the opinions of those who do not treat the claimant.
Dr. Arroyo treated Plaintiff throughout the relevant period and afterward, and provided two disputed opinions regarding her functioning. AR 310, 377. The ALJ credited portions of these opinions, but rejected Dr. Arroyo's opinion that Plaintiff could seldom work above shoulder level, and that she was limited to occasional reaching, on the grounds that the medical evidence did not establish a reaching limitation, and that the opinion was contradicted by Plaintiff's daily activities and her demonstration of reaching during the administrative hearing. AR 35. The ALJ also rejected a later opinion
Plaintiff argues that the ALJ erred in failing to cite any contradictory medical evidence, and that neither her daily activities nor her brief demonstration of reaching at the administrative hearing meaningfully contradict Dr. Arroyo's opinion on reaching limitations. She also contends that because the ALJ's rejection of the limitation on lifting 11-20 pounds on a seldom basis is entirely unexplained, it is erroneous.
The Court agrees with Plaintiff. The ALJ failed to cite any medical evidence contradicting Dr. Arroyo's opinions, which is particularly problematic because Dr. Arroyo's treatment notes during the relevant period are replete with references to reaching limitations.
The Commissioner argues that any error is harmless, because "there was no evidence that [reaching or lifting overhead] restrictions would preclude performance of Plaintiff's work as a real estate agent[.]" ECF # 19, p. 10. This is not true as to the work as generally performed, because the Dictionary of Occupational Titles ("DOT") defines the job to require frequent reaching and occasional lifting of up to 20 pounds.
Dr. Morris treated Plaintiff before, during, and after the relevant period, and consistently recommended neck surgery.
The ALJ gave Dr. Morris's opinion little weight, because she found that he relied "heavily" on Plaintiff's self-report, rather than objective medical evidence. AR 35. She noted that Dr. Morris treated Plaintiff only twice during the relevant period, and that his findings on those visits would not support his January 2012 opinion. AR 35 (referencing AR 330, 335-36). Both of those treatment notes indicate that Dr. Morris reviewed a recent cervical MRI, and that he interpreted those reports to show significant bilateral foraminal stenosis at C5-6. AR 330, 336. The ALJ cited medical evidence purportedly inconsistent with Dr. Morris's MRI interpretation: a February 2009 MRI report indicating "moderate bilateral neuroforaminal stenosis" at C5-6, which had been also present during a 2007 MRI (performed during a time when Plaintiff was working); and a July 2010 MRI report indicating "mild narrowing of the right neural foramen" at C5-6. AR 343, 533.
Dr. Morris performed physical examinations of Plaintiff on both of the treatment visits during the relevant period, as well as at the time he rendered his January 2012 opinion. AR 330, 335-36, 656-67. His reference to those findings, as well as to MRI reports, contradicts the ALJ's finding that Dr. Morris relied "heavily" on Plaintiff's self-report rather than objective evidence. But, as the ALJ noted, other medical opinions contradicted Dr. Morris's interpretation of the MRI results, most pointedly as to the medical opinion that Plaintiff's C5-6 neuroforaminal stenosis had existed during a time that she was working. This evidence undermines Dr. Morris's opinion that Plaintiff could not work without neck surgery, and serves as a specific and legitimate reason to discount Dr. Morris's opinion. Thus, the ALJ did not err in discounting Dr. Morris's opinion.
Dr. Patterson examined Plaintiff in March 2010, in connection with her Department of Labor & Industries claim. AR 312-28. He concluded that Plaintiff could "work at a sedentary occupation with a lifting requirement of less than 20 pounds below shoulder level." AR 327. The ALJ gave "little weight" to Dr. Patterson's opinion, because his findings indicated that Plaintiff had no trouble walking and sitting, and her motor strength test results were normal. AR 34. The ALJ also noted that Plaintiff reported to Dr. Patterson that she was currently working. AR 34-35 (referencing 314). The ALJ also indicated generally that Dr. Patterson's opinion was inconsistent with other medical evidence as well as Plaintiff's activities of daily living. AR 35.
Plaintiff focuses on the lifting requirements of a sedentary job, arguing that Dr. Patterson's opinion focused on Plaintiff's shoulder limitations (which caused lifting restrictions) in reaching his sedentary finding, rather than focusing on the sitting/walking aspects of a sedentary job. This argument is supported by Dr. Patterson's own estimate of Plaintiff's physical capacities, which indicates that Plaintiff can sit, stand, and walk eight hours a day each, but that she can only seldom (less than 10% of the time) lift 11-20 pounds, and can frequently lift 6-10 pounds. AR 311. Neither the ALJ nor the Commissioner in her briefing appreciate that this summary estimate of physical capacities was completed by Dr. Patterson; both indicated that it was an opinion of Dr. Arroyo's. AR 35; ECF # 19, at 9-10. In any event, the ALJ's reasoning regarding walking and sitting is not a legitimate basis to discount Dr. Patterson's opinion, because Dr. Patterson himself acknowledged that Plaintiff was not limited as to walking or sitting.
Neither is Dr. Patterson's opinion inconsistent with her ability to work as a real estate agent (assuming the accuracy of her statement to that effect to Dr. Patterson), because Plaintiff described her job requirements to be consistent with Dr. Patterson's opinion.
Finally, the ALJ's reasoning that Dr. Patterson's opinion is "not supported by the other medical evidence of record" lacks specificity, and is not necessarily accurate. Dr. Arroyo indicated that Plaintiff was limited to occasionally lifting 10 pounds and seldom lifting 20 pounds (AR 310), and the State agency reviewing physician found that Plaintiff was limited in her ability to reach overhead (AR 99).
Furthermore, none of Plaintiff's daily activities (as summarized by the ALJ (AR 34)) are inconsistent with Dr. Patterson's opinion. Although the Commissioner suggests that Plaintiff's ability to launder is inconsistent with Dr. Patterson's opinion, it would be unreasonable to infer that Plaintiff's laundry tasks required lifting more than 20 pounds, or that they required lifting above shoulder level. Plaintiff testified at the hearing that she does three loads of laundry per month (AR 66), and this frequency does not suggest an inconsistency.
Thus, because none of the reasons provided by the ALJ for discounting Dr. Patterson's opinion are specific and legitimate, the ALJ erred in assigning little weight to the opinion. This error is harmless, however, because none of the limitations indicated on Dr. Patterson's physical capacities estimate are inconsistent with Plaintiff's own description of her past work.
The ALJ provided several reasons for discounting Plaintiff's credibility, specifically (1) her conduct at the administrative hearing, demonstrating an ability to move her head, hear without hearing aids, manipulate a small object, and raise her arms above her head; (2) her ability to work in the past, despite neck/shoulder problems and carpal tunnel syndrome; (3) her reluctance to take pain medications, despite pain complaints; (4) inconsistent activities of daily living; and (5) evidence showing that Plaintiff reported continued employment after her alleged onset of disability. AR 30-34.
Questions of credibility are solely within the control of the ALJ.
To reject a claimant's subjective complaints, the ALJ must provide "specific, cogent reasons for the disbelief."
In determining a claimant's credibility, the ALJ may consider "ordinary techniques of credibility evaluation," such as reputation for lying, prior inconsistent statements concerning symptoms, and other testimony that "appears less than candid."
Plaintiff reported to providers on a number of occasions that she was currently working, during the period she alleged disability and after her date last insured.
The ALJ noted that Plaintiff had been diagnosed with carpal tunnel syndrome and degenerative disc disease years before her alleged onset of disability, and continued to work as a real estate agent with some of the same symptoms she now contends are disabling. AR 31. The ALJ also noted that Plaintiff's February 2009 MRI results were noted to be similar to findings dating to a time when Plaintiff was working. AR 31 (citing AR 532-33, 728). Particularly as to her carpal tunnel syndrome, which Plaintiff mentioned at the administrative hearing as the first reason why she cannot work (AR 54), the record does not corroborate her allegation that this condition worsened over time.
The record contains scant references to carpal tunnel syndrome, and no evidence that the condition was ever treated, which is inconsistent with Dr. Morris's 2012 opinion that she required carpal tunnel surgery and that she could not work until after she recovered from that surgery. AR 656-57. The ALJ properly considered evidence showing that Plaintiff had previously worked with carpal tunnel syndrome in evaluating the credibility of her disability allegation.
The Court need not address the other reasons provided by the ALJ, because even if they are erroneous, they would not invalidate the reasons addressed here, and thus would amount to harmless error.
Plaintiff argues that the ALJ's RFC assessment is flawed because it does not account for the limitations caused by her hearing loss. The ALJ acknowledged that Plaintiff's hearing had been tested and that she wears hearing aids. AR 28 (citing AR 803). At the administrative hearing, Plaintiff testified that she has trouble hearing in large groups, when "there's lots of noise buzzing around." AR 55-56. The ALJ limited Plaintiff to working in environments that do "not involve noise above a moderate level." AR 30. Plaintiff contends that this limitation does not adequately address her hearing concerns, because she experiences hearing problems even in a quiet environment. ECF # 13, p. 11.
A claimant's RFC assessment is used at step four to determine whether he or she can do his or her past relevant work, and at step five to determine whether he or she can do other work.
Plaintiff's argument regarding her hearing limitations assumes that the ALJ should have inferred various limitations from her conduct during the administrative hearing. The medical record contains no description of any hearing limitations. Plaintiff herself did not describe any particular limitations, other than having trouble in noisy environments, yet in her Opening Brief suggests that the ALJ should have inferred from her requests to have statements repeated during the administrative hearing that she has problems discriminating sounds in noisy and quiet environments. ECF # 13, p. 11. It is not clear from the transcript of the administrative hearing that when Plaintiff asked her attorney to repeat his question (AR 54), or asked the VE to speak louder (AR 74), that Plaintiff was demonstrating any particular hearing limitation, or that she was more limited than accounted for in the ALJ's RFC assessment and VE hypothetical. Due to this dearth of evidence regarding Plaintiff's specific hearing limitations, she has not established that the ALJ erred in failing to account for more severe limitations.
Based on the foregoing discussion, the Court hereby finds the ALJ properly concluded Plaintiff was not disabled. Accordingly, the Commissioner's decision to deny benefits is AFFIRMED.