ANN AIKEN, District Judge.
Plaintiff Maranda Savage brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's applications for Title XVI supplemental security income ("SSI") and Title II disability insurance benefits ("DIB") under the Act. For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.
On October 5, 2009, plaintiff applied for SSI and DIB. Tr. 180-94. Her applications were denied initially and upon reconsideration. Tr. 104-18. On February 17, 2012, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 45-71. On March 21, 2012, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 22-39. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-6.
Born on April 7, 1983, plaintiff was 27 years old on the amended alleged onset date of disability
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record.
The initial burden of proof rests upon the claimant to establish disability.
The Commissioner has established a five-step sequential process for determining whether a person is disabled.
At step two, the Commissioner considers whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, she is not disabled.
At step three, the Commissioner evaluates whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must determine that the claimant can perform other work that exists in significant numbers in the national and local economy.
At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. Tr. 25. At step two, the ALJ determined that plaintiff had the following severe impairments: obesity, bipolar disorder, anxiety disorder, and cannabis dependence.
Because she did not establish disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform "a full range of work at all exertional levels," but with non-exertional limitations:
Tr. 28.
At step four, the ALJ found that plaintiff could not perform her past relevant work. Tr. 36. At step five, the ALJ determined that light and sedentary exertion jobs existed in significant numbers in the national and local economy that plaintiff could perform despite her impairments, such as clamper, laundry worker, kitchen helper, housekeeping cleaner, cleaner and polisher, and bakery worker. Tr. 38. The ALJ therefore concluded that plaintiff was not disabled under the Act.
Plaintiff argues that the ALJ erred by: (1) finding her not fully credible; ( 2)rejecting the lay testimony of her husband, Nick Savage; (3) improperly assessing the medical opinion evidence from Alan Mersch, D.O., and Douglas Col, Ph.D.; and (4) failing to account for all of her limitations in the RFC, thereby rendering the step five finding invalid.
Plaintiff contends that the ALJ failed to articulate a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom statements concerning the extent and severity of her impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ... symptoms only by offering specific, clear and convincing reasons for doing so."
At the hearing, plaintiff testified that she is unable to work due to "[n]ot being able to handle leaving the house or dealing with people." Tr. 53. Although she denied panic attacks, plaintiff explained "I get really stressed out when I leave the house [and] I only want to go to the specific place that I'm going [otherwise] I get really flustered and upset."
After summarizing plaintiff's hearing testimony, the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but that her statements regarding the extent of these symptoms were not fully credible due to her failure to seek mental health treatment, activities of daily living, work history, inconsistent statements, and tendency to exaggerate, as well as the lack of corroborating objective medical evidence. Tr. 28-35.
Notably, the ALJ determined that plaintiff's "overall treatment history and use of medications, which reflect that [she] has sought relatively little care indicates [that she] does not believe her conditions are as serious as she claims." Tr. 33. Failure to seek medical treatment is a clear and convincing reason to reject a claimant's subjective statements.
Here, substantial evidence supports the ALJ's conclusion. Plaintiff has been aware of her mental impairments for over a decade and at least one provider referred her to counseling.
Plaintiff does not now proffer a reason, finance-related or otherwise, for her failure to obtain mental health services.
Additionally, the ALJ resolved that plaintiff's credibility was impaired by her activities of daily living. Daily activities may serve as a basis for discrediting a claimant where they either "are transferable to a work setting" or "contradict claims of a totally debilitating impairment."
The ALJ also found that plaintiff's employment history "does little to bolster the credibility of her claims" because she worked for several years with the same conditions and stopped working for reasons unrelated to her alleged disability. Tr. 35. When a claimant's work history undercuts her assertions, the ALJ may rely on that contradiction to discredit the claimant.
In sum, the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. As a result, this Court need not discuss all of the reasons provided by the ALJ because at least one legally sufficient reason exists.
Plaintiff also asserts that the ALJ neglected to provide a germane reason to reject the testimony of her husband, Mr. Savage. Lay testimony regarding a claimant's symptoms or how an impairment affects the ability to work is competent evidence that an ALJ must take into account.
In December 2009, Mr. Savage completed a Third-Party Adult Function Report. Tr. 233-40. Mr. Savage stated that plaintiff engaged in limited cooking, housework, and shopping, as well as took care of their children, watched television, and played video games. Tr. 233-36. He nonetheless reported that plaintiff "has always been sick," "is not good at taking instructions," has hallucinations, and "cannot handle [stress or] people very well [and gets] overwhelmed just thinking of being around others." Tr. 237-39.
The ALJ discredited Mr. Savage's third-party statements because his "report largely mirrors the report and testimony of [plaintiff] as to her alleged limitations and ability to work [and plaintiff's credibility has been] rejected." Tr. 35. The ALJ also found that "great weight cannot be given to all of Mr. Savage's statement because some of them, like many of [plaintiff's] statements, are not fully consistent with the record as a whole." Tr. 36. In addition, the ALJ noted the close relationship between plaintiff and her husband, and the fact that he "has a financial interest in the outcome of this case, since any benefits his cohabiting wife receives will inure to the benefit of the household." Tr. 35.
Lay witness testimony may be disregarded on same basis as claimant's discredited subjective reports.
In this case, Mr. Savage's Third-Party Adult Function Report was completed the same day as plaintiff's Adult Function Report and is virtually identical thereto.
Plaintiff next argues that the ALJ impermissibly rejected the opinions of Drs. Mersch and Col. Plaintiff also repeatedly asserts that the ALJ neglected to develop the medical record in regard to her psychological conditions.
There are three types of medical opinions in social security cases: those from treating, examining, and non-examining doctors.
Initially, the Court notes that the medical record in this case is limited because, as discussed above, plaintiff did not seek mental health treatment for her allegedly disabling conditions. Accordingly, the entirety of the medical record consists of evidence from Dr. Mersch, plaintiff's treating source; Drs. Col and Pearson, who each performed one-time evaluations on plaintiff; and Dorothy Anderson, Ph.D., a state agency consulting source. Tr. 83-84, 320-90, 394-98, 409-15, 426-39, 455-522. As discussed in greater detail below, Drs. Mersch and Col indicated that plaintiff is disabled, whereas Drs. Pearson and Anderson opined that plaintiff was capable of performing work consistent with the RFC.
In May 2009, plaintiff reinitiated care with osteopath Dr. Mersch after moving back to Oregon.
In September 2009, Dr. Mersch wrote a letter on behalf of plaintiff's DIB and SSI claims:
Tr. 392. In February 2011, Dr. Mersch authored a second letter, stating simply "[i]t is my medical opinion that for medical reasons, Maranda will be unable to participate in consistent, active, gainful employment." Tr. 448.
In April 2011, Dr. Mersch completed a check-the-box "Physical Residual Function Capacity Questionnaire" prepared by plaintiff's attorney. Tr. 449-53. The doctor indicated that his opinion was based on "hx, psych Dr. D. Col 4/10 & clmt." Tr. 449. He checked boxes reflecting that plaintiff was "[i]ncapable of even `low stress' jobs" and her "pain or other symptoms [would] frequently" interfere with attention and concentration. Tr. 450. Dr. Mersch did not endorse any physical limitations, but reported that plaintiff's mental impairments, which commenced in "June 09" but "have lasted or can be expected to last [a] lifetime," were likely to cause her to be absent from work "20+" days per month. Tr. 449-53. Although this form did not solicit any information about drug use, the doctor checked a box denying alcohol abuse. Tr. 453.
The ALJ extensively evaluated the medical evidence from Dr. Mersch but ultimately was "unable to give full weight to [his opinion] for several reasons." Tr. 30-35. Namely, the ALJ afforded less weight to Dr. Mersch's reports because they were: (1) "largely relate[d] to [plaintiff's] mental limitations [but] Dr. Mersch does not appear to be a psychiatric expert"; ( 2) "base [ d] at least in part on [plaintiff's] subjective allegations"; (3) "quite brief and conclusory" and "contradictory [to] clinical findings"; and ( 4) "inconsistent with other substantial evidence regarding [plaintiff's] ongoing abilities." Tr. 30-33. In addition, the ALJ observed that "it is not clear that Dr. Mersch properly factored [plaintiff's] history of marijuana use into his assessment." Tr. 32.
It is well-established that an ALJ may afford less weight, even where a treating physician is involved, to opinions that are not accompanied by explanations or references to clinical findings.
An independent review of Dr. Mersch's reports reveal that they are conclusory and, outside of the April 2011 form, not accompanied by reference to any objective findings.
Moreover, there is no indication that Dr. Mersch took plaintiff's drug into consideration. Plaintiff told Dr. Pearson that she smoked marijuana all day, every day. Tr. 395. Less than two months later, she reported to Dr. Cols that she continued to smoke non-medical marijuana. Tr. 428. Yet there is no mention in any of Dr. Mersch's chart notes or his disability opinions reflecting plaintiff's chronic substance use. From this omission, the ALJ reasonably concluded that Dr. Mersch's assessments were less reliable.
In April 2010, plaintiff underwent a "Psychodiagnostic Testing Evaluation" with Dr. Col. Tr. 426-39. Dr. Col's assessment was based on six tests, although the tests themselves are explained within the report, as well as a clinical interview with plaintiff. Tr. 426-33. Two of these tests revealed results indicating that plaintiff "tended to exaggerate her symptoms and paint herself in an unrealistically negative light," although Dr. Col remarked that "[t]his kind of response is not unusual in disability applicants, and usually simply reflects a desire to receive the help and support for which they are applying." Tr. 429-30. The doctor diagnosed plaintiff with depressive disorder, generalized anxiety disorder, post-traumatic stress disorder, and avoidant personality disorder. Tr. 433. In concluding his report, he described plaintiff as "a woman with an inadequate personality structure, who defensively retreats from the world around her while simultaneously wishing that she could receive more nurture and acceptance from other people."
In the accompanying "Rating of Impairment Severity" form, prepared on the same day, Dr. Col reported that plaintiff experienced mild limitations in activities of daily living and concentration, persistence, or pace, and extreme impairment in social functioning. Tr. 438;
The ALJ "g[a]ve reduced weight to the functional assessment of Dr. Col for many of the same reasons discussed above in connection with Dr. Mersch — such as Dr. Col's reliance on the subjective statements of a non-credible [plaintiff,] his failure to fully account for the impact of her history of marijuana use[,] [and the fact that his opinion is] not consistent with the evidence as a whole." Tr. 32-33. In assessing the examining source evidence, the ALJ elected to give more weight to Dr. Pearson because, while "Dr. Col appears to have performed a greater number of psychological tests than did Dr. Pearson, Dr. Col seems not to have given careful consideration to the results of those tests, [which] suggest[ed] that [plaintiff was] exaggerating her symptoms."
As discussed above, an ALJ may reject a medical opinion that is based on a claimant's discredited self-reports.
Here, nothing Dr. Col's objective observations support his dire opinion of plaintiff's functioning.
Essentially, as the Commissioner notes, "[t]he ALJ was compelled to choose between two examining opinions: Dr. Pearson's opinion versus Dr. Col's opinion." Def.'s Resp. Br. 12-13. Dr. Pearson examined plaintiff less than two months prior to Dr. Col and assessed the same diagnoses, as well as similar functional limitations: mild to moderate impairments in concentration, persistence, or pace and in social functioning. Tr. 397. Despite these likenesses between their reports and the circumstances under which they were rendered, Dr. Pearson, unlike Dr. Col, opined that plaintiff "is not viewed as unemployable, though vocational options are narrower than for most of her age and level of intelligence."
The claimant bears the burden of proving the existence or extent of an impairment, such that the ALJ's limited "duty to further develop the record is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."
In March 2010 and April 2010, plaintiff underwent two consultive psychological examinations with Dr. Pearson and Dr. Col, respectively, to garner medical opinion evidence concerning her mental functioning. Specifically, after plaintiff was nevaluated by Dr. Edwin Pearson [and] denied benefits" on nthe basis of that evaluation," she sought a second opinion from Dr. Col. Tr. 426. The ALJ subsequently conducted a hearing at plaintiff's request, thereby providing her with an opportunity to testify and submit additional evidence; in fact, the ALJ explicitly agreed to keep the record open for 10 days after the hearing. Tr. 69. There is no indication that plaintiff sought any additional treatment thereafter or furnished any supplemental evidence to the ALJ, although she did submit her pharmacy records to the Appeals Council pursuant to her request for review. Tr. 5.
In any event, neither the ALJ nor any medical source found the record in this case to be ambiguous or insufficient for proper evaluation. In addition, contrary to plaintiff's assertion, further development is not required simply because Dr. Mersch's reports neglected to address or otherwise acknowledge her daily drug usage, or because Dr. Col's and Dr. Mersch's opinions are vague as to the onset date of disability. Rather, plaintiff failed to carry her burden of proof, in part because she neglected to seek regular treatment for her allegedly disabling mental impairments, which does not equate to an inadequacy or ambiguity in the evidence. The ALJ's duty to more fully develop the record was not triggered.
Finally, plaintiff argues that the ALJ's RFC and step five finding are erroneous because they do not account for the functional limitations described in his testimony and the third-party statements, as well as in the medical opinion evidence furnished by Drs. Mersch and Col. The RFC is the maximum a claimant can do despite her limitations.
As discussed above, the statements of plaintiff, Mr. Savage, Dr. Mersch, and Dr. Col were properly discredited by the ALJ. Accordingly, plaintiff's argument, which is contingent upon a finding of harmful error in regard to the aforementioned issues, is without merit.
For the foregoing reasons, the Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
