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 December 2, 1969, did not graduate from high school, and previously worked as an in-home caretaker.
In a decision dated January 23, 2012, the ALJ determined that plaintiff had not been under a disability, as defined in the Act, from September 28, 2009, the date plaintiff filed her application, through the date of the ALJ's decision. (AT 14-23.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on July 17, 2013. (AT 1-7.) Thereafter, plaintiff filed this action in federal district court on September 15, 2013, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)
Plaintiff raises the following five issues: (1) whether the ALJ's decision failed to properly account for plaintiff's severe and non-severe impairments; (2) whether the ALJ erred in evaluating the medical evidence in the record when making her RFC determination; (3) whether the ALJ made an improper credibility determination with respect to plaintiff's testimony; (4) whether the ALJ made an improper credibility determination with respect to the third party report of plaintiff's fiancé, Edward Johnson; and (5) whether the ALJ erred in utilizing the Medical-Vocational Guidelines at Step Five to determine that there were jobs that existed in significant numbers in the national economy that plaintiff could have performed.
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.
The ALJ 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") for the relevant time period as follows:
(AT 17.)
At step four, the ALJ found that plaintiff was unable to perform any past relevant work. (AT 22.) Finally, at step five, the ALJ determined 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 have performed, specifically, unskilled work at any exertional level. (AT 22-23.)
Accordingly, the ALJ concluded that plaintiff had not been under a disability as defined in the Act from September 28, 2009, through the date of the ALJ's decision. (AT 23.)
First, plaintiff contends that the ALJ erred in her assessment at Step Two because she failed to list "paranoid-type schizophrenia, psychotic disorder, or any impairment of that sort," as "severe impairments" despite the existence of evidence in the record that plaintiff suffered from these types of impairments. (ECF No. 12 at 7-8.)
Under the Commissioner's regulations, an impairment or combination of impairments is deemed to be severe at Step Two if it "significantly limits your physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 404.1521(a). As the Ninth Circuit Court of Appeals has explained, "the step-two inquiry is a de minimis screening device to dispose of groundless claims. An impairment or combination of impairments can be found 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."
Here, the ALJ found that only "antisocial personality disorder, malingering, and depression" were "severe impairments" for purposes of Step Two (AT 16); the ALJ did not discuss whether any of the impairments mentioned by plaintiff were "severe" for purposes of this step. Regardless, substantial evidence from the record supported the ALJ's Step Two determination.
While the record demonstrates that plaintiff had been diagnosed with schizophrenia or a psychotic disorder by several physicians, there is no evidence that those impairments were "severe" for Step Two purposes. For example, much of the evidence regarding the severity of these impairments is in the form of plaintiff's own subjective complaints made to her treating and examining physicians (
Moreover, even assuming arguendo that the ALJ technically erred by not finding that these impairments constituted severe disorders at Step Two, such error is harmless if the ALJ proceeded to consider the effects of those impairments at subsequent steps.
Plaintiff also argues that the ALJ improperly considered her impairments at Step Three of the analysis because she failed to find that plaintiff's impairments met a listing and did not adequately explain her reasons for why plaintiff's impairments did not rise to listing-level severity.
At step three, the ALJ determines whether "a claimant's impairment meets or equals an impairment listed in [20 C.F.R. part 404, subpart P, appendix 1]."
A claimant bears the burden of proving that his or her impairments satisfy all the criteria of a particular listing.
In the present case, the ALJ concluded at step three that plaintiff "does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." (AT 17.) In coming to this conclusion, the ALJ found "that [plaintiff's] impairments do not meet or equal any listing, especially Listing 12:04, because there is no medical evidence to support a listing-level impairment." (
Moreover, the ALJ's determination that plaintiff's impairments did not rise to the level of Listing 12.03 or Listing 12.08 was supported by substantial evidence. Listing 12.03 concerns schizophrenic, paranoid and other psychotic disorders. As noted above with respect to the ALJ's Step Two determination, the ALJ's finding that plaintiff's schizophrenia and other psychotic diagnoses were not "severe" was supported by substantial evidence in the record, thus indicating that plaintiff's mental impairments of this type did not even significantly limit plaintiff's mental ability to do basic work activities, let alone reach the more stringent requirements of Listing 12.03.
Similarly, the record does not support plaintiff's contention that her impairments met the requirements of Listing 12.08, which concerns personality disorders. While the ALJ did find that plaintiff had an antisocial personality disorder that was sufficiently "severe" for Step Two purposes and found that this impairment placed non-exertional limitations on plaintiff's ability to interact with the public, supervisors, and coworkers, the evidence in the record substantially supports the ALJ's finding that plaintiff did not meet Listing 12.08. With respect to the "B" criteria set forth in Listing 12.08, even if it were presumed that plaintiff's limitations regarding contact with the public and coworkers were "marked" in nature, the evidence does not show that plaintiff also had marked difficulties with respect to activities of daily living or in maintaining concentration, persistence, or pace, or had repeated episodes of decompensation, as would be required to meet Listing 12.08.
Moreover, as noted above, the claimant "bears the burden of proving that . . . she has an impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the Commissioner's regulations."
Plaintiff next argues that the ALJ incorrectly assessed plaintiff's RCF. Specifically, plaintiff asserts two arguments with respect to this aspect of the ALJ's decision. First, plaintiff argues that the ALJ improperly assigned "no weight" to the opinion of Dr. Regazzi, an examining psychologist retained by plaintiff's attorney. Second, plaintiff argues that the ALJ's overall RFC assessment does not correspond to the limitations opined by plaintiff's physicians.
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.
Dr. Regazzi examined plaintiff on November 8, 2011, to assess plaintiff's cognitive functioning abilities. During the examination, Dr. Regazzi conducted a clinical interview of plaintiff, reviewed the examination records of Dr. Richwerger, an examining psychologist who had examined plaintiff roughly one month prior to Dr. Regazzi, and tested plaintiff using the Weschler Adult Intelligence Scale ("WAIS-IV") and Wide Range Achievement Test ("WRAT-4"). (AT 587.) Plaintiff's WAIS-IV results showed that she had a full scale IQ of 60, falling within the deficient range. (AT 589.) Her WRAT-4 results showed a reading score of 55, a spelling score of 55, and a math score of 56, all indicating deficient performance. (
Dr. Regazzi diagnosed plaintiff with cocaine abuse, depressive disorder not otherwise stated, mild mental retardation, antisocial personality traits, self-reported chronic knee and back pain, and a GAF score of 45. (AT 590.) Ultimately, Dr. Regazzi opined that plaintiff's diagnosed mental impairments imposed the following restrictions: marked impairment in the ability to understand, remember, and carry out simple instructions; severe impairment in the ability to understand, remember, and carry out complex instructions; marked impairment in the ability to maintain adequate pace; moderate impairment in the ability to maintain attention and concentration; mild impairment in the ability to communicate effectively with others; moderate impairment in the ability to interact appropriately with supervisors and coworkers; and moderate impairment in the ability to interact appropriately with the public. (AT 590-91.)
The ALJ stated the following reasons for assigning "no weight" to Dr. Reggazi's opinion:
(AT 21.) These reasons given by the ALJ were specific and legitimate reasons for rejecting Dr. Regazzi's opinion that were based on substantial evidence in the record.
One month prior to Dr. Regazzi's examination, Dr. Richwerger, a psychologist retained by the Commissioner to conduct a consultative examination, examined plaintiff and administered a number of psychological tests, including the same WAIS-IV test administered by Dr. Regazzi. (AT 565.) Plaintiff's WAIS-IV scores from this examination revealed a full scale IQ of 50; plaintiff's other scores were similarly poor. (
Dr. Nakagawa, another examining psychologist, examined plaintiff on January 21, 2010, prior to both Dr. Regazzi's and Dr. Richwerger's examinations. During this examination, Dr. Nakagawa noted that plaintiff pulled on her jacket and screamed statements such as "get off me" multiple times during the examination in a manner that Dr. Nakagawa described as "contrived and melodramatic." (AT 299.) Plaintiff asserted that she experienced hallucinations that affected all senses even though Dr. Nakagawa found her speech to be relevant and coherent. (
Dr. Regazzi noted in her report that she had reviewed Dr. Richwerger's opinion and the fact that Dr. Richwerger found the examination results invalid due to plaintiff's questionable efforts when taking the tests she had been administered. (AT 587.) However, Dr. Regazzi did not review Dr. Nakagawa's report that demonstrated signs of malingering on plaintiff's part that were similar to those exhibited during Dr. Richwerger's examination event though the report was available at that time. Furthermore, Dr. Regazzi did not administer the TOMM or do anything else to ensure that plaintiff was not malingering beyond verbally encouraging plaintiff to perform to the best of her ability despite having reviewed Dr. Richwerger's then-recent examination report that found plaintiff to be malingering after obtaining test results similar to those obtained via Dr. Regazzi's own testing. The ALJ correctly pointed to these facts as reasons for assigning "no weight" to Dr. Regazzi's opinion.
The fact that both Dr. Richwerger and Dr. Nakagawa found plaintiff to be clearly malingering after plaintiff obtained similar test results to those found by Dr. Regazzi shows that their opinions contradicted Dr. Regazzi's opinion despite the fact that they obtained similar test results. Accordingly, the ALJ had to only provide specific and legitimate reasons supported by substantial evidence in the record in order to properly dismiss Dr. Regazzi's opinion.
Plaintiff also argues that the ALJ's RFC assessment was in error because there was no basis in the evidentiary record to support such findings. Specifically, plaintiff asserts that the mental limitations the ALJ ascribed to plaintiff regarding restrictions concerning contact with others were not reflected in the medical opinions in the record. However, it is "the responsibility of the ALJ, not the claimant's physician[s], to determine residual functional capacity."
Next, plaintiff argues that the ALJ improperly found plaintiff's testimony to lack credibility when assessing this evidence for RFC purposes.
A claimant's subjective statements and statements made by laypersons should be considered by the ALJ, but they need not always be accepted as true. In
However, "the ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking. . . ."
Here, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. The ALJ gave the following reasons for finding plaintiff's testimony not fully credible:
(AT 21 (internal citations omitted).) These reasons were clear and convincing.
First the ALJ found that the evidence in the record demonstrated that if plaintiff had remained off street drugs and regularly took her prescribed medications, then many of her claimed symptoms would have markedly improved. However, plaintiff was not fully compliant with this course of treatment. A claimant's "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment" is a specific and legitimate reason for finding a claimant not credible.
Even more compelling is the ALJ reasoning that plaintiff's failure to give her full effort during the two consultative examinations that were invalidated by findings of malingering, and complete avoidance of another examination, revealed plaintiff to not be credible. The ALJ properly interpreted these actions as evidencing plaintiff's lack of credibility with respect to plaintiff's claims concerning the limitations her mental impairments impose on her.
Finally, the ALJ also properly reasoned that the discrepancy between plaintiff's daily living activities during the claimed disability period and plaintiff's allegations of debility constituted a basis for discounting plaintiff's testimony. "[T]he 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."
Plaintiff further argues that the ALJ improperly discounted the third party report offered by plaintiff's fiancé, Edward Johson. "[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 gave two reasons for discounting Mr. Johnson's report. First, the ALJ determined that Mr. Johnson's statement that plaintiff had not had a job since she was a teenager was "contradicted by [plaintiff's] own testimony." (AT 22.) Second, the ALJ determined that Mr. Johnson's testimony regarding plaintiff's engagement in daily activities such as cooking, walking, doing household chores, taking public transportation, and shopping was not consistent with plaintiff's testimony concerning the disabling nature of her impairments. (
Mr. Johnson's comments concerning plaintiff's work history were in direct contradiction to plaintiff's testimony regarding the last time she had a job. Mr. Johnson stated in the third-party statement he submitted on November 1, 2009, in support of plaintiff's application that plaintiff had not had a job since she was a teenager. (AT 196.) To the contrary, plaintiff testified during the August 8, 2011 hearing before the ALJ that she had worked as an in-home support worker two to three years prior to that date. (AT 60.) Similarly, plaintiff noted in her own disability report that she had worked as an in-home care provider from 2002 to June 15, 2009. (AT 177.) Given that Mr. Johnson stated in his report that he had known plaintiff for fifteen years and that he was plaintiff's "spouce [sic]," this incongruity between his statement and plaintiff's statements concerning plaintiff's work history is even more striking. The ALJ noted this inconsistency between Mr. Johnson's statements and plaintiff's testimony and found that it limited the persuasiveness of his report. This constituted a germane reason for discounting Mr. Johnson's testimony because this inconsistency gives rise to a reasonable inference that Mr. Johnson's recollection of plaintiff's activities was not entirely accurate.
Similarly, the discrepancy between Mr. Johnson's statements concerning plaintiff's daily activities and plaintiff's own claims regarding the debilitating nature of her mental condition constituted a germane reason for discounting Mr. Johnson's testimony. As the ALJ noted, Mr. Johnson stated that plaintiff could cook, do certain household chores, go on walks, use public transportation, shop for groceries, and go to church on a regular basis. (AT 192-94.) As noted above with respect to plaintiff's credibility determination, such testimony regarding plaintiff's living activities contradicted plaintiff's own claims of the debilitating nature of her mental condition. Such contradiction between a claimant's testimony concerning her living activities and her claimed debilities may constitute a clear and convincing reason for finding the claimant's testimony not credible.
Both of the contradictions highlighted by the ALJ constituted germane reasons for assigning limited weight to Mr. Johnson's third-party statements. Accordingly, the ALJ did not err in finding Mr. Johnson's statements unpersuasive.
Finally, plaintiff argues that the ALJ erred when she utilized only the Medical-Vocational Guidelines (the "grids") in making her Step Five determination because plaintiff's non-exertional limitations were sufficiently severe enough to necessitate the ALJ's use of vocational expert testimony at Step Five.
The grids take administrative notice of the numbers of unskilled jobs that exist throughout the national economy at various functional levels. 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(b). "The ALJ can use the grids without vocational expert testimony when a non-exertional limitation is alleged because the grids provide for the evaluation of claimants asserting both exertional and non-exertional limitations. But the grids are inapplicable when a claimant's non-exertional limitations are sufficiently severe so as to significantly limit the range of work permitted by the claimant's exertional limitations."
Here, the ALJ used the grids exclusively to make her Step Five determination that plaintiff could perform jobs requiring "unskilled work at all exertional levels." (AT 23.) Plaintiff asserts this was in error because the ALJ's determination that plaintiff's impairments limited her to only occasional interaction with co-workers and supervisors demonstrates that plaintiff's non-exertional limitations were sufficiently severe so as to significantly limit the range of work permitted by her exertional limitations, thus requiring the ALJ to also use a vocational expert's testimony in making her Step Five determination.
The ALJ, however, specifically found that plaintiff's nonexertional limitations did not compromise plaintiff's ability to perform unskilled work at all levels. (AT 23.) In doing so, the ALJ relied on the regulations, which note that the primary work functions in the bulk of unskilled work relate to working with things, rather than people. (AT 22);
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 12) is DENIED.
2. The Commissioner's cross-motion for summary judgment (ECF No. 15) is GRANTED.
3. Judgment is entered for the Commissioner.
4. The Clerk of Court is directed to close this case and vacate all dates.
IT IS SO ORDERED.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.
