CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will recommend that plaintiff's motion for summary judgment be denied and that the Commissioner's cross-motion for summary judgment be granted.
Plaintiff, born March 13, 1965, applied on April 28, 2010 for DIB and SSI, alleging disability beginning April 21, 2009. Administrative Transcript ("AT") 13, 95, 183-94. Plaintiff alleged she was unable to work due to chronic regional pain syndrome of the right upper and lower extremities, a right elbow injury, chronic back pain secondary to lumbar spinal stenosis and degenerative disc disease, and depression. AT 267-68. In a decision dated January 7, 2013, the ALJ determined that plaintiff was not disabled.
AT 15-23.
Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) abused his discretion and demonstrated bias during the administrative hearing in violation of his duty to provide a full and fair hearing; (2) improperly included "marijuana abuse" as a "severe" impairment and failed to include plaintiff's bipolar disorder and depression as "severe" impairments at step two; (3) failed to properly evaluate plaintiff's chronic regional pain syndrome ("CRPS") pursuant to Social Security Ruling ("SSR")
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 record as a whole must be considered,
First, plaintiff argues that several statements made by the ALJ during the administrative hearing demonstrate that the ALJ acted in a biased manner when considering plaintiff's application, which amounted to an abuse of discretion. Plaintiff's argument is without merit.
"ALJs and other similar quasi-judicial administrative officers are presumed to be unbiased. This presumption can be rebutted by a showing of conflict of interest or some other specific reason for disqualification."
Here, plaintiff asserts that the ALJ's statement in his decision that he found Dr. Sahagian's report "offensive" and statements during the administrative hearing that implied that plaintiff was a "doper" demonstrates bias. However, such statements and insinuations when viewed in the context of this case as a whole are not "so extreme as to display clear inability to render fair judgment."
Next, plaintiff asserts that the ALJ erred at step two of his analysis by finding "marijuana abuse" to be a "severe" impairment and not including bipolar disorder and depression in the list of plaintiff's "severe" impairments.
An impairment is "not severe" only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience were specifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account.
Here, plaintiff asserts that the ALJ erred by not including bipolar disorder and depression as "severe" impairments despite the existence of evidence in the record indicating that plaintiff had been diagnosed with these impairments. Although the burden is on plaintiff at step two of the sequential evaluation,
Moreover, even assuming arguendo that the ALJ technically erred by not finding a severe bipolar disorder and depression at step two, such error is harmless if the ALJ proceeded to consider the effects of that impairment at subsequent steps.
Plaintiff asserts that the non-inclusion of these mental impairments as "severe" impairments at step two was not harmless because the ALJ's failure to include the limitations caused by these impairments in his hypothetical to the VE at step five meant that the VE's opinion lacked evidentiary value to support the ALJ's finding that there were jobs in the national economy that plaintiff could perform given his limitations. However, as noted above, plaintiff merely argues that there is evidence in the record that these impairments were diagnosed, and does not demonstrate that they negatively impacted plaintiff's ability to perform basic workplace activities.
Plaintiff further claims that there was insufficient evidence in the record to show that plaintiff had "severe" alcohol and marijuana abuse. This argument also lacks merit. As an initial matter, contrary to plaintiff's assertion, the ALJ did not find that plaintiff had "severe" alcohol abuse. Rather, he found only that plaintiff had "severe" marijuana abuse. Plaintiff is correct that the ALJ did state the following in his step two discussion: "The undersigned does not find, however, that the claimant has a mental impairment, independent of drug or alcohol abuse, which is `severe.'" AT 16 (emphasis in original). However, the ALJ only listed marijuana abuse in his statement of plaintiff's severe impairments. AT 15. Given that the ALJ used the word "or" rather than "and" when making this mention of alcohol abuse in his decision, it can be implied that the ALJ only considered marijuana abuse to be sufficiently severe to merit inclusion as a "severe" impairment at step two.
With respect to the ALJ's finding of "severe" marijuana abuse, substantial evidence in the record supported such a finding. Plaintiff's treatment records are replete with references to "cannabis abuse" and plaintiff herself testified to smoking marijuana during the relevant time period.
Moreover, even assuming arguendo that the ALJ erred in finding that plaintiff had "severe" marijuana abuse, any such error would have been harmless. If this condition were to have been found to be less than severe, or non-existent, as plaintiff suggests, then plaintiff necessarily would have been less impaired than what the ALJ determined. In other words, the absence of an additional "severe" impairment would have indicated that plaintiff had a greater ability to perform basic work activities. Accordingly, even if the ALJ had erred, any such error would have been harmless.
Plaintiff also claims that the ALJ failed to consider two clinician's records from the Feather River Health Clinic dated August 19, 2009 and August 20, 2009, respectively, when considering plaintiff's impairments at step two. AT 339-41. Contrary to this assertion, however, the ALJ based his step two assessment, and indeed his overall determination, upon a "careful consideration of the entire record," which would include these two records. AT 15. Furthermore, the ALJ was not required to specifically "discuss evidence that is neither significant nor probative."
Third, plaintiff argues that the ALJ erred by not finding that plaintiff had CRPS despite the existence of evidence in the record that supported a finding that plaintiff did suffer from CRPS pursuant to the Commissioner's guidelines articulated in SSR 03-02p.
SSR 03-02p defines CRPS as "a constellation of symptoms and signs that may occur following an injury to bone or soft tissue" that can arise from a precipitating injury, which is often minor in nature, and cause the individual to suffer from pain exceeding that typically associated with the injury he or she sustained. 2003 WL 22399117. Under the Commissioner's guidelines articulated in SSR 03-02p, CRPS can be established through a claimant's "persistent complaints of pain that are typically out of proportion to the severity of" a documented precipitating injury and at least one of the following clinically documented signs in the affected region of the body at any time following the injury:
Plaintiff contends that the ALJ improperly ignored longitudinal record of plaintiff's CRPS presented by the medical evidence, which plaintiff asserts contains evidence that plaintiff exhibited the signs and symptoms set forth in SSR 03-02p. Plaintiff argues that the record indicates that plaintiff began exhibiting signs of CRPS in her right upper extremity in early 2008 after she had hit her right elbow on a car door and that her symptoms and signs worsened as time progressed. However, the only physician to formally diagnose plaintiff with CRPS was Dr. Sahagian, whose opinion the ALJ properly discounted for the reasons discussed below. Prior to Dr. Sahagian taking over as plaintiff's treating physician, Dr. Filibrandt, plaintiff's former treating physician, diagnosed plaintiff with "probable CRPS" and noted that plaintiff's "right upper extremity [was] warmer than [her] left." AT 362-63. However, he also noted that plaintiff's right arm had "no obvious swelling" and "no focal hot joints." AT 362.
Furthermore, none of the other physicians who examined plaintiff or reviewed plaintiff's medical records during the relevant period found that plaintiff had CRPS.
While the record does also contain some evidence that plaintiff sporadically exhibited a temperature difference between her right and left upper extremities, with her right being somewhat warmer than her left, and minor swelling in her right hand,
Nevertheless, plaintiff argues that the fact that the evidence in favor of a finding of CRPS under the standards of SSR 03-02p appears in the record only sporadically does not diminish the impact of this evidence because the transitory nature of CRPS means that its signs may manifest themselves only intermittently. While plaintiff is correct that SSR 03-02p provides that the clinical signs of CRPS may be manifested intermittently, there is still substantial evidence in the record to support the ALJ's determination that plaintiff did not suffer from CRPS. Whether a claimant has CRPS is determined "using the sequential evaluation process, just as for any other impairment." SSR 03-02p, 2003 WL 22399117. Here, the ALJ addressed plaintiff's CRPS claim using this framework and reasonably concluded that plaintiff did not suffer from this impairment. Even though the evidence to which plaintiff cites could potentially support a finding that plaintiff suffered from CRPS under the standards provided by SSR 03-02p, the fact that substantial evidence in the record supported the ALJ's interpretation that plaintiff did not suffer from CRPS means that the court must accept the ALJ's conclusion.
Plaintiff next argues that the ALJ failed to fulfill his duty to fully develop the record because he did not recontact Dr. Whitten, an examining psychiatrist, to obtain clarification of his opinion that plaintiff "may not" be able to engage in certain work-related activities such as interacting with coworkers and customers on a consistent basis, performing tasks in a consistent manner, and completing a workweek without interruption. AT 562-63. Plaintiff's argument lacks merit and the ALJ was not required to contact Dr. Whitten for further clarification of his opinion because Dr. Whitten's opinion as to the impact of plaintiff's mental impairments, when viewed as whole, was not ambiguous.
Disability hearings are not adversarial.
Here, plaintiff asserts that Dr. Whitten's opinion that plaintiff "may not" be able to engage in certain workplace activities on a consistent basis was equivocal, therefore requiring the ALJ to recontact him to obtain clarification as to what he meant by this opinion. However, when these statements are viewed in the context of Dr. Whitten's overall opinion regarding plaintiff's mental health and the impact it had on plaintiff's ability to perform basic work activities as a whole, there is no ambiguity. In the section titled "functional ability," Dr. Whitten's opinion concludes with the following with respect to the impact of plaintiff's impairments on her ability to perform work: "[i]f you were to consider the mental problems in and of themselves, it appears that they would have a moderate impact on her ability to carry out those activities and responsibilities required for those jobs she has been suited for in the past." AT 563. This makes it clear that Dr. Whitten believed that plaintiff's mental impairments had a moderate impact on plaintiff's ability to perform work-related activities, including interacting with coworkers and customers, performing work tasks in a consistent manner, and completing a workweek without interruption. Because Dr. Whitten's opinion does not contain the ambiguity plaintiff asserts, there was no obligation on the ALJ's part to recontact this physician to obtain clarification.
Next, plaintiff argues that the ALJ erred in his assessment of the medical opinions in the record. Specifically, plaintiff asserts that the ALJ erroneously assigned "no weight" to the opinion of Dr. Sahagian, one of plaintiff's treating physicians. She also argues that the ALJ erred further by discrediting the functional restrictions opined by Dr. Otani, a consultative examining physician.
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. Sahagian was one of plaintiff's treating physicians for three years, and examined plaintiff every 3 months during that period. AT 748. On July 24, 2012, Dr. Sahagian issued a medical source statement regarding plaintiff's physical impairments. AT 748-52. In this statement, Dr. Sahagian noted that plaintiff exhibited chronic pain in her right upper and lower extremities and lower back. AT 748. He determined that the plaintiff's pain was "severe" when plaintiff was not using medication.
With respect to plaintiff's ability to perform work-related activities, Dr. Sahagian opined that plaintiff would be unable to have any contact with the public, complete detailed or complicated tasks, work under strict deadlines, or engage in fast-paced tasks such as production line work. AT 749. Dr. Sahagian also opined that plaintiff's impairments were severe enough to "frequently" interfere with her ability to concentrate to the degree necessary to perform simple work tasks.
Dr. Sahagian determined that plaintiff could grasp, turn, and twist objects and engage in fine finger manipulations with her right upper extremity for up to 1 hour per workday.
Based on these limitations, Dr. Sahagian opined that plaintiff would need a job that permits shifting positions at will from sitting, standing, or walking. AT 750. He also opined that plaintiff would need to take unscheduled breaks for 3 to 5 minutes every 15 to 20 minutes during the course of an 8-hour workday. AT 750-51. Finally, he opined that plaintiff's impairments would likely cause her to be absent from work 3 or more days per month.
The ALJ assigned Dr. Sahagian's opinion "no weight" because Dr. Sahagian's own treatment notes did not support the degree of pain and disability he opined in his medical source statement, plaintiff's behavior at the hearing contradicted some of the limitations he opined, and there was limited medical evidence in the record to support Dr. Sahagian's functional determinations. AT 19-20. The ALJ further stated that while he agreed that plaintiff has limitations in her upper right extremity that restrict her from performing work above shoulder level, he would not credit the other limitations Dr. Sahagian opined with regard to plaintiff's right upper extremity, or any limitations attributed to plaintiff's claimed lower back and right leg impairments. AT 22.
Dr. Sahagian's treatment notes throughout the three-year period he was plaintiff's primary physician suggest limitations far less severe than those opined by Dr. Sahagian in his July 24, 2012 opinion. For instance, in a treatment note dated March 8, 2011, Dr. Sahagian stated that he had reviewed an MRI of plaintiff's back and found it to be "fairly unremarkable." AT 619. Similarly, he stated in a note dated April 26, 2011 that an EMG of plaintiff's lower extremity was negative and that the MRI of plaintiff's back "showed slight spinal stenosis at L3-4." AT 659. Dr. Sahagian also noted that "[t]hese findings really should not account for [the] pain and drama" plaintiff expressed to him regarding the impact of her impairments.
Dr. Sahagian's treatment notes also indicate that he found plaintiff's complaints of pain throughout his time treating her to be largely exaggerated.
Furthermore, much of the other medical evidence in the record conflicts with Dr. Sahagian's opinion regarding plaintiff's functional capacity. In particular, plaintiff's examining physician, Dr. Otani, independently examined plaintiff and opined functional limitations that were overall less severe than those expressed by Dr. Sahagian. Dr. Otani opined that plaintiff did not exhibit any signs of CRPS after each of his two examinations, and opined in his Social Security Disability Evaluation form that plaintiff was capable of sitting for up to two hours at a time based on clinical findings similar to those found by Dr. Sahagian. AT 546, 840. He also found that plaintiff had a "normal gait," was "able to heel walk, toe walk, and tandem walk," and able to get up from her chair and onto the examination table without difficulty. AT 546. Similarly, the State Agency consulting physicians who reviewed plaintiff's medical records also found plaintiff to be far less functionally limited than Dr. Sahagian. AT 550-55, 558. The ALJ's reliance on the contradictions between Dr. Sahagian's opinion and the other medical evidence in the record constituted another specific and legitimate reason for assigning "no weight" to his opinion.
Because the ALJ gave multiple specific and legitimate reasons for assigning "no weight" to Dr. Sahagian's opinion that were supported by substantial evidence in the record,
Dr. Otani gave plaintiff a physical examination on October 21, 2010. AT 545-47. During this examination, Dr. Otani noted that the range of motion in plaintiff's right shoulder was limited, but that "all other joints [were] without gross evidence of tenderness, effusion or instability." AT 546. He also noted that outside of tenderness in the right upper extremity, plaintiff exhibited "no skin changes" and exhibited "equal and symmetrical" peripheral pulses and temperature in her extremities.
As part of this examination, Dr. Otani reviewed plaintiff's prior medical records, including records from the Feather River Health Clinic that noted that plaintiff suffered from CRPS in her right upper extremity. AT 546. While Dr. Otani noted plaintiff's complaints of pain, he determined that those "complaints appear to be greater than the objective findings" and that "[t]here is no clinical evidence of the claimed [CRPS] of the right upper extremity." AT 547. He also noted that a review of an x-ray report for plaintiff's back showed that plaintiff had a "mild disk [sic] space narrowing," which confirmed that plaintiff was exaggerating when she "stated that she had [a] compound fracture at L4-5."
Based on these findings, Dr. Otani opined that plaintiff had the ability to sit for up to 2 hours at a time, and for a total of up to 6 hours in an 8-hour workday; stand for up to 1 hour at a time, and for a total of up to 4 hours in an 8-hour workday; and lift and carry up to 10 pounds frequently and 15 pounds occasionally. AT 547. He further opined that plaintiff could not do any overhead work with her right upper extremity.
The ALJ concluded that Dr. Otani's clinical examination findings supported the ALJ's RFC determination, but did not credit his opinion regarding plaintiff's functional restrictions because "they are not supported by his examination findings, or other evidence in the case record." AT 19. This was a specific and legitimate reason for discounting Dr. Otani's opinion that was supported by substantial evidence in the record.
While Dr. Otani opined restrictions were less severe than those opined by Dr. Sahagian, Dr. Otani's determinations regarding the limitations on plaintiff's ability were still more severe than Dr. Otani's own clinical findings suggest. For example, Dr. Otani found during his examination that plaintiff had a normal range of motion and strength in her extremities, with the exception of her right upper extremity, which the ALJ took into account in his RFC determination. AT 17, 546. He also found that "[e]xcluding right shoulder, all other joints are without gross evidence of tenderness, effusion or instability."
Plaintiff asserts in her reply brief that the ALJ should not have considered Dr. Otani's more mild clinical findings as a basis for discounting his opinion regarding plaintiff's functional capacity because the nature of plaintiff's CRPS meant that Dr. Otani's clinical findings were temporary and did not reflect the actual severity of plaintiff's impairments and pain. However, for the reasons stated above, the ALJ properly assessed plaintiff's claim that she had CRPS and made a determination that she did not have this syndrome, which was supported by substantial evidence in the record.
Furthermore, Dr. Otani specifically noted in his opinion that he did not find any clinical signs that plaintiff had CRPS and did not diagnose plaintiff with CRPS.
In sum, the ALJ's RFC determination was based on proper consideration of the medical evidence in the record and was supported by substantial evidence. Accordingly, the ALJ did not err in assessing plaintiff's RFC.
Sixth, plaintiff argues that the ALJ improperly found plaintiff's testimony to lack credibility. This contention is without merit.
The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons.
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors.
Here, the ALJ found plaintiff's testimony regarding the severity of her impairments not credible based on his own observations of plaintiff at the hearing, plaintiff's inconsistent statements concerning drug use, and the existence of medical evidence in the record indicating that plaintiff exaggerated her symptoms. AT 20-21. These were valid reasons for discounting plaintiff's testimony that were supported by substantial evidence in the record.
Plaintiff argues that the ALJ's use of his own observations of plaintiff from the administrative hearing as a reason in support of his credibility finding was improper "sit and squirm" reasoning. To the contrary, "the adjudicator may also consider his or her own recorded observations of the individual as part of the overall evaluation of the credibility of the individual's statements." SSR 96-7p, 1996 WL 374186;
Similarly, the ALJ relied on the inconsistencies in plaintiff's testimony and statements to her physicians in the record regarding her past use of marijuana as a basis for finding her not credible. During the administrative hearing, plaintiff testified that she had not smoked marijuana "for years" and that she had tried it for a period of "three to six months . . . and then . . . did not use it any longer." AT 40. However, plaintiff's statements made to her physicians in the record appear inconsistent with these assertions. In September of 2009, plaintiff told Dr. Filibrandt that she smoked "2 joints" per week in order to calm her nerves. AT 362, 365. However, during a psychiatric examination in January of 2011, plaintiff "denie[d] any drug usage ever." AT 560. Despite this statement of non-use, in June of 2011, plaintiff provided a "crisis assessment" form to the Butte County Department of Behavioral Health stating that she "smoke[s] marijuana once in a while." AT 634. Similarly, plaintiff's treatment notes from plaintiff's physicians throughout the relevant time period indicate that plaintiff used marijuana at least until a couple months prior to the administrative hearing.
Finally, the ALJ relied in part on the clinical findings and statements in the record made by plaintiff's physicians indicating that plaintiff exaggerated the severity of many of her impairments. For instance, Dr. Otani noted on April 26, 2011, that plaintiff demonstrated "multiple inconsistencies in her physical examination which are non-physiologic" and that plaintiff's "subjective complaints appear to be greater than object of [sic] findings." AT 650. While plaintiff is correct in noting that an ALJ may not rely solely on the lack of objective medical findings to discredit a claimant,
Because the ALJ provided clear and convincing reasons for finding plaintiff's testimony regarding the severity of her impairments not credible that were based on substantial evidence in the record, the ALJ did not err in his credibility determination.
Plaintiff also argues that the ALJ improperly discounted plaintiff's sister's testimony.
"[L]ay witness testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence, and therefore cannot be disregarded without comment."
Here, the ALJ determined plaintiff's sister's testimony "add[ed] little to the analysis" on the basis that it "simply echo[ed]" plaintiff's complaints. (AT 22.) This was a germane reason for dismissing the testimony of plaintiff's sister.
Plaintiff's sister's testimony at the administrative hearing regarding the extent of the limitations plaintiff's impairments imposed on her largely mirrored that expressed in plaintiff's own testimony. For instance, both testified that plaintiff could not use her right arm, could not shower without assistance, and had problems getting down stairs and ambulating around her house without assistance. AT 50-53, 66-68. Plaintiff argues that plaintiff's sister did not merely "echo" plaintiff's testimony because she testified as to certain observations she had made regarding plaintiff's activities, such as plaintiff's difficulties with cooking and drinking coffee, that were not mentioned by plaintiff in her own testimony. However, such additional observations do not undermine the ALJ's determination that plaintiff's sister's testimony was substantially similar to plaintiff's testimony because plaintiff's sister's additional anecdotes merely relate the same complaints of pain expressed by plaintiff in her own testimony. With respect to characterizing the extent of the limitations imposed by plaintiff's impairments, plaintiff's testimony and plaintiff's sister's testimony were substantially similar.
Because the ALJ provided clear and convincing reasons for rejecting plaintiff's own subjective complaints and plaintiff's sister provided testimony largely expressing those same complaints, the ALJ's rejection of plaintiff's sister's testimony on the basis of this similarity was not in error.
Finally, plaintiff contends the ALJ failed to include all of plaintiff's limitations in the hypotheticals relied on by the ALJ in finding there were a significant number of jobs which plaintiff can perform. Specifically, plaintiff argues that the ALJ's hypothetical failed to reflect plaintiff's mental impairments of bipolar disorder and depression. Plaintiff's argument lacks merit.
Hypothetical questions posed to a vocational expert must set out all the substantial, supported limitations and restrictions of the particular claimant.
Here, the ALJ posed hypotheticals to the VE based on the limitations reflected in his RFC determination, which was based on substantial evidence for the reasons stated above. Also as noted above, the mental limitations plaintiff asserts the ALJ improperly omitted from his hypotheticals were not omitted in error because the ALJ properly determined at earlier steps of the analysis that plaintiff failed to prove their existence. Accordingly, the ALJ did not err in posing hypotheticals to the VE at step five.
For the reasons stated herein, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion for summary judgment (ECF No. 13) be denied;
2. The Commissioner's cross-motion for summary judgment (ECF No. 14) be granted; and
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.