GARY S. AUSTIN, Magistrate Judge.
Plaintiff Aracely Guerrero seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for Disability Insurance Benefits under Title II of the Social Security Act and for Supplemental Security Income payments under Title XVI of the Social Security Act.
On October 22, 2008, Plaintiff filed an application for disability insurance benefits and for Supplemental Security Income payments, alleging disability beginning October 5, 2008. AR 144-150.
A claimant is "disabled" for purposes of entitlement to disability benefits if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A); 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
The Commissioner utilizes a "five-step sequential evaluation process" to assess whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)-(f); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). At step one, the Commissioner determines whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or medically equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 404.1520(a)(4)(iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform her past work; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving that she is unable to perform past relevant work (i.e., in steps one through four of the analysis). Drouin, 966 F.2d at 1257; Burch v. Barnhart, 400 F.3d 676, 679 (9
Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 13-22. More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 5, 2008, the alleged disability onset date. AR 15. Further, the ALJ identified chronic post-traumatic low back pain; degenerative disc disease with annular tear; moderate obesity; and probable cervical spine sprain/strain as severe impairments.
Based on a review of the entire record, the ALJ determined that Plaintiff has the RFC "to lift and carry 50 pounds occasionally and 25 pounds frequently, and she can stand, sit, and walk up to 6 hours in an 8-hour workday." AR 16. The ALJ noted that Plaintiff "should avoid frequent bending and stooping." AR 16. The ALJ further found that Plaintiff was "capable of performing her past relevant work as a hotel housekeeper, cashier, receptionist, and retail store manager." AR 20. The ALJ also determined, after consulting the Medical-Vocational Rules, 20 C.F.R. Part 404, Subpart P, Appendix 2 ("the grids") and considering additional testimony from the vocational expert, that Plaintiff was able to perform other jobs that exist in significant numbers in the national economy, such as laundry laborer, laundry worker II, and hand packager.
Plaintiff now argues that the ALJ's decision is not supported by substantial evidence because (1) the ALJ improperly found that Plaintiff did not suffer from a severe mental impairment, and (2) the ALJ improperly evaluated the medical evidence in assessing Plaintiff's physical RFC. Plaintiff further argues that the ALJ's decision contains legal error because the ALJ improperly rejected Plaintiff's subjective symptom testimony. More specifically, Plaintiff contends that that the ALJ erred in not giving specific and convincing reasons for rejecting Plaintiff's testimony regarding her pain and other limitations. Doc. 14, pp. 6-13.
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether (1) it is supported by substantial evidence and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).
"Substantial evidence means more than a scintilla but less than a preponderance." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id. 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." Id.
Plaintiff argues that the ALJ's determination that Plaintiff did not suffer from a severe "mental impairment" was not supported by substantial evidence. Doc. 14, pp. 6-7. The Commissioner contends that Plaintiff's argument lacks merit. Specifically, the Commissioner contends that Plaintiff fails to identify what her mental impairment is; that the evidence in the record supports a finding that any mental impairment was not severe; and that given that the ALJ considered evidence regarding Plaintiff's mental impairment in assessing Plaintiff's RFC, any error by the ALJ in finding it not severe was harmless. Doc. 17, pp. 8-9.
At step two of the five-step sequential disability inquiry, the Commissioner determines "whether medical evidence establishes an impairment or combination of impairments of such severity as to be the basis of a finding of inability to engage in any SGA."
At step two of the sequential disability analysis, the ALJ found that Plaintiff had several severe impairments: chronic post-traumatic low back pain; L5/S1 degenerative disc disease with annular tear; moderate obesity; and probable cervical spine sprain/strain. The ALJ further determined that Plaintiff's "medically determinable mental impairment of depression does not cause more than minimal limitation in the claimant's ability to perform basic mental work activities . . . and is therefore nonsevere." As discussed below, the ALJ's determination is based on substantial evidence in the record.
First, Plaintiff did not receive a diagnosis of, or treatment for, depression or any other mental health impairment from a treating mental health specialist. AR 266, 268. Plaintiff's primary care providers had prescribed Zoloft, an antidepressant, to Plaintiff, to alleviate depressive symptoms that she had experienced.
Second, the consultative examining psychologist, Dr. Greg Hirokawa, Ph.D., also found that Plaintiff symptoms were "in the mild range." AR 268. Dr. Hirokawa conducted a "comprehensive psychiatric evaluation" of Plaintiff on December 14, 2008. AR 265. Plaintiff reported feelings of depression and anxiety to Dr. Hirokawa. AR 265. Dr. Hirokawa diagnosed Plaintiff with "[a]djustment disorder with mixed emotional features;" he assessed her Global Assessment of Functioning ("GAF") score at 61 ("current" as well as "within the last year");
Dr. Hirokawa also conducted a "functional assessment" of Plaintiff based on her "psychiatric condition." AR 269. Dr. Hirokawa made the following functional determinations:
AR 269 (emphases added). Dr. Hirokawa was the only doctor to assess Plaintiff's psychiatric limitations, and, with the exception of Plaintiff's ability to deal with stress (which he found was mildly to moderately limited), he found that Plaintiff was only mildly limited as to a wide range of basic work activities (comprising a total of eleven distinct categories). Moreover, he assigned her a GAF score of 61, which is indicative of only mild symptoms. Dr. Hirokawa's ultimate conclusion regarding Plaintiff's functional limitations was that the "likelihood" of Plaintiff "emotionally deteriorating in a work environment is minimal." AR 268-269. Dr. Hirokawa's overall assessment and functional findings support the ALJ's determination that Plaintiff's depression was not severe. See Parks v. Astrue, 304 Fed.Appx. 503, 506 (9
Next, the California Department of Disability Services reviewing physician, Dr. Kevin Gregg, who completed a Psychiatric Review Technique form for Plaintiff, also found that Plaintiff's medical impairment was "not severe."
In sum, there is substantial evidence in the record to support the ALJ's step two finding that Plaintiff's medically determinable mental impairment of depression was not severe. The ALJ's decision is, therefore, proper.
Even assuming, arguendo, that the ALJ erred in finding Plaintiff's mental impairment to be not severe, any error is harmless because the ALJ considered Plaintiff's mental impairment at step four of the analysis. See, e.g., Burch v. Barnhart, 400 F.3d 676, 682 (9
Here, the ALJ specifically noted that he considered Plaintiff's mental limitations at steps four and five. AR 16. In doing so, he gave substantial weight to the state agency opinion that Plaintiff's mental impairments are non-severe. He noted that Plaintiff had not been referred for mental health treatment, and her primary physician had provided her with medication for her symptoms. Finally, he noted that the consultative psychologist estimated her GAF score at 61, which is indicative of only mild symptoms. Thus, the ALJ considered the entire medical record at step four. His decision that Plaintiff's mental impairment was mild and did not affect her RFC is supported by substantial evidence. Accordingly, any error at step two would be harmless.
The ALJ found that Plaintiff had the RFC to lift and carry 50 pounds occasionally and 25 pounds frequently, and to stand, walk and sit for 6 hours in an 8-hour day; he further found that Plaintiff should avoid frequent bending and stooping. AR 16. As Plaintiff states in her Opening Brief, "[t]he ALJ's assessment mirrors that of Dr. [Juliane] Tran," the consultative examiner. Doc. 14, p. 7; AR 270-273. Plaintiff, however, argues that Dr. Tran's opinion does "not constitute substantial evidence to support the ALJ's decision because she reviewed no medical records." Doc. 14, p. 8. Plaintiff further argues that the findings of Dr. Leramo, a neurosurgeon Plaintiff consulted one time, taken together with her obesity, are inconsistent with the ALJ's RFC assessment. Doc. 14, p. 9. Finally, Plaintiff argues that the ALJ should have "recontact[ed] Dr. Leramo to seek clarification or additional information regarding [Plaintiff's] limitations." Doc. 14, p. 9.
While Plaintiff argues that "Dr. Tran reviewed no medical records," she fails to identify which relevant records Dr. Tran should have reviewed and how the purported failure to review particular records prejudiced Plaintiff's consultative examination. 20 C.F.R. § 404.1517 specifies that when the Commissioner arranges for an examination of a claimant, the examiner will be provided "any necessary background information about [the claimant's] condition." Here, Plaintiff's medical records relating to her back problem reflect generally unremarkable findings, and Dr. Tran noted that she had reviewed a progress note specifying that the Plaintiff had "degenerative joint disease of the back with back pain."
In making his RFC assessment, the ALJ noted: "I considered the findings and opinion of Dr. Tran in making this decision and afforded it considerable weight. The doctor performed a thorough and well-documented examination, and her opinion is more consistent with the overall evidence [relative to the opinions of the state agency reviewing physicians, who found Plaintiff's physical impairments to be not severe].
Plaintiff contends that the ALJ's RFC assessment is inconsistent with the findings of Dr. Leramo, and that the ALJ should have "recontact[ed]" Dr. Leramo for additional information regarding Plaintiff's limitations. Dr. Leramo is a neurosurgeon, whom Plaintiff consulted one time to ascertain whether surgery was indicated in her case. AR 331-336. Dr. Leramo noted that Plaintiff was in "mild distress from low back pain," was "moderately obese," and had a "severely antalgic" gait. AR 332. Dr. Leramo did not assess any functional limitations at all; he simply opined that Plaintiff was a candidate for a laminectomy, and referred her to another neurosurgeon in his practice for "possible surgical intervention."
Plaintiff adds that Dr. Leramo was the more appropriate specialist compared to Dr. Tran (who is a specialist in physical medicine and rehabilitation), and, hence, the ALJ should have given greater weight to Dr. Leramo's opinion. Plaintiff, however, provides no legal authority or any persuasive reason as to why Dr. Leramo's status as a neurosurgical specialist, whom Plaintiff consulted one time, would entitle his opinion greater weight than the opinion of Dr. Tran, who performed a "comprehensive orthopedic evaluation" of Plaintiff for the purpose of assessing her functional limitations. While Dr. Leramo may have been an appropriate specialist to assess the feasibility of surgery for Plaintiff, that does not mean that Dr. Tran did not have the most appropriate specialist qualifications to conduct a comprehensive evaluation of Plaintiff for purposes of assessing her functional limitations. Plaintiff's argument to the contrary is unpersuasive.
As for Plaintiff's next argument that the ALJ had "an affirmative duty to recontact Dr. Leramo to seek clarification or additional information regarding her limitations," it is similarly unpersuasive. Plaintiff bears the burden of providing evidence to prove that her impairments limit her functioning to the point of disability. 42 U.S.C. § 423(d)(5)(A), 20 C.F.R. § 404.1512(c).
The ALJ found that Plaintiff was "not entirely credible" and gave her subjective complaints "no weight." AR 19-20. Plaintiff argues the ALJ improperly discredited Plaintiff's "subjective symptom testimony" by failing to provide legally sufficient reasons for rejecting such evidence. Doc. 14, pp. 9-10. The Commissioner responds that "the ALJ provided a valid basis for not fully crediting Plaintiff's allegations, and his reasons are supported by substantial evidence." Doc. 17, p. 14.
Plaintiff testified that she could lift and carry four pounds; stand for fifteen minutes at a time; sit for twenty minutes at a time; walk for ten to fifteen minutes at a time; pay attention for thirty minutes at a time;
"Generally a claimant's credibility becomes important at the stage where the ALJ is assessing residual functional capacity, because the claimant's subjective statements may tell of greater limitations than can medical evidence alone." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (2001). "For this reason, the ALJ may not reject the claimant's statements regarding her limitations merely because they are not supported by objective evidence." Id. (citation omitted) (emphasis added). "Neither may the ALJ rely on his own observations of the claimant at the hearing as the sole reason for rejecting the claimant's complaints." Id. at 1149 (emphasis added). Nonetheless, in assessing the claimant's credibility, the ALJ may use "ordinary techniques of credibility evaluation," considering factors such a lack of cooperation during consultative examinations, a tendency to exaggerate, inconsistent statements, an unexplained failure to seek treatment, inconsistencies between the testimony and conduct; and inconsistencies between daily activities and the alleged symptoms. Id. at 6; also see Smolen v. Chater, 80 F.3d 1273, 1284 (1996); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). In evaluating the credibility of symptom testimony, the ALJ must also consider the factors set out in SSR 88-13, including the claimant's work record and physicians' observations regarding the nature, intensity and effect of the alleged symptoms. See SSR 88-13; Smolen, 80 F.3d at 1284; Barnhart, 278 F.3d at 959. Finally, "[i]f the ALJ finds that the claimant's testimony as to the severity of her pain and impairments is unreliable, the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Barnhart, 278 F.3d at 958. In other words, the ALJ "must give specific, convincing reasons for rejecting a claimant's subjective statements." Tonapetyan, 242 F.3d at 1149. If the ALJ's credibility finding is supported by substantial evidence in the record, courts "may not engage in second-guessing." Barnhart, 278 F.3d at 959.
In discrediting Plaintiff's testimony here, the ALJ cited her lack of cooperation during her consultative examination with Dr. Tran, her tendency to exaggerate, her spotty work history, and her daily activities. The ALJ gave a detailed explanation supporting each of these reasons, all of which are specific and convincing and based on substantial evidence in the record.
To illustrate Plaintiff's lack of cooperation during her consultative examination, for example, the ALJ noted Dr. Tran's repeated observations that Plaintiff exhibited "decreased effort." AR 17; 19; 271; 273. See Tonapetyan, 242 F.3d at 1149 (consultative examiner's observation that claimant showed "poor effort" during examination was a specific and convincing reason for discrediting the claimant's testimony); Barnhart, 278 F.3d at 959 (a claimant's "self-limiting behaviors to impede accurate testing of her limitations supports the ALJ's determinations as to her lack of credibility").
To illustrate Plaintiff's tendency to exaggerate, the ALJ noted his own observation that Plaintiff was able to concentrate for the duration of the fifty-minute hearing, but initially testified that she could concentrate for no more than twenty to thirty minutes at a time.
The ALJ further noted that Plaintiff's "poor work history, with only four full substantial gainful activity years in the past relevant fifteen years (since 1994), or her entire life" undermined her credibility. AR 19, 158; see Barnhart, 278 F.3d at 959 ("spotty" work history constitutes a clear and convincing reason for discounting a claimant's testimony).
Finally, the ALJ noted that Plaintiff's "activities of daily living are not fully consistent with her allegations of total disability," thereby undermining her credibility. AR 19; see Barnhart, 278 F.3d at 959 (claimant's "ability to perform various household chores such as cooking, laundry, washing dishes and shopping," among other factors, bolstered "the ALJ's negative conclusions about [her] veracity"); Molina v. Astrue, 674 F.3d 1104, 1113 (9
In sum, the ALJ's stated reasons for discounting Plaintiff's testimony are specific and convincing, and his credibility finding is free of legal error and supported by substantial evidence in the record. See Tonapetyan, 242 F.3d at 1149; Barnhart, 278 F.3d at 959.
Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn W. Colvin, Commissioner of Social Security, and against Plaintiff Aracely Guerrero.
IT IS SO ORDERED.
The record also contains other potentially relevant records for purposes of Dr. Tran's evaluation: a report from Kern Radiology Medical Group, Inc., dated January 30, 2004 (documenting only "very mild" and "normal" findings); a report from Jacobo Physical Therapy, Inc. dated May, 17, 2004, stating that plaintiff received back injections for back pain and recommending physical therapy for 4 weeks); and 2 progress notes from CBCC Pain Medicine and Surgery Center dated January 6, 2004 and May 18, 2004 (documenting that Plaintiff suffers from degenerative disc disease and neck pain, and received lumbar epidural steroid injections). AR 318; 320; 322-323.
