MARCO A. HERNÁNDEZ, District Judge.
Plaintiff Dawn Espenas brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act and Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c) (3)). Because the Commissioner's decision is supported by substantial evidence, the decision is AFFIRMED.
Plaintiff applied for SSI and DIB on October 19, 2011, alleging an onset date of February 26, 2006.
Plaintiff alleges disability based on major depressive disorder, anxiety, back pain, posttraumatic stress disorder, and fatigue. Tr. 95, 113, 239. She testified that she is unable to work because she has difficulty completing tasks, leaving the house, being in public, interacting with others (particularly supervisors and men), and lifting more than ten pounds. Tr. 43-49. She was forty-two years old at the time of the administrative hearing. Tr. 36. She graduated from high school and attended one term of college. Tr. 36. She has past work experience as a child care provider, receptionist, file clerk, housekeeper, and elderly care provider. Tr. 36-37. Because the parties are familiar with the medical and other evidence in the record, the Court refers to any additional relevant facts in the discussion section below.
A claimant is disabled if unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 16. Next, at steps two and three, the ALJ determined that Plaintiff has severe impairments of degenerative disc disease of the cervical spine, obesity, depression, and post-traumatic stress disorder, but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 16. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) except she is limited to lifting and carrying twenty pounds occasionally and ten pounds frequently, standing or walking for six hours in an eight-hour day, sitting for six hours in an eight-hour day, and occasionally climbing ladders, ropes, or scaffolds. Tr. 19. She is capable of carrying out very short and simple instructions, and is limited to occasional interaction with the public and casual contact with coworkers. Tr. 19. With this residual functional capacity, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 25. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy, such as housekeeper. Tr. 25-26. Thus the ALJ determined that Plaintiff is not disabled.
The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g);
The court must weigh the evidence that supports and detracts from the ALJ's conclusion.
Plaintiff contends that the ALJ erred by: (1) assigning "little weight" to the opinions of Plaintiff's psychologist and psychiatric mental health nurse practitioner; (2) failing to include all functional limitations that were supported by the record in the residual functional capacity (RFC); and (3) finding Plaintiff not credible. The Court discusses the ALJ's credibility finding first, because it impacts the other two issues.
Plaintiff contends that the ALJ failed to provide legally sufficient reasons for rejecting her testimony. In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. § 404.1529. First, the ALJ determines whether there is objective medical evidence of an underlying impairment that could reasonably be expected to produce some degree of symptoms.
The ALJ may consider many factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.
Here, the ALJ concluded that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible. . . ." Tr. 19. He gave "little weight" to Plaintiff's testimony regarding her symptoms because he found it "disproportionate to the objective and clinical findings." Tr. 20.
The ALJ found that Plaintiff's credibility was undermined because, to the extent she has received treatment for her allegedly disabling impairments, that treatment has been routine or conservative. Tr. 22. Impairments that can be controlled effectively with medication or treatment are not disabling for purposes of determining eligibility for benefits.
Plaintiff testified that she had bulging disks in her neck that caused pain down her back and right arm. Tr. 48. However, the ALJ noted that Plaintiff has not undergone surgery for her degenerative disk disease of the cervical spine, nor has any treating doctor recommended surgery. Tr. 22. In addition, on June 18, 2012, a myelogram/CT did not reveal any significant nerve impingement and a treating physician stated that Plaintiff was improving with medication and should continue conservative treatment. Tr. 473. The ALJ also noted that while the record reveals that Plaintiff is obese, Plaintiff reported that she was having some success losing weight by walking every day and paying attention to what she ate. Tr. 22. In sum, Plaintiff's positive response to treatment provided a legally sufficient reason for rejecting her testimony as to the severity of her pain-related limitations.
Plaintiff testified that she is afraid she will have a panic attack when she leaves the house and that her anxiety and stress would interfere with her ability to work. Tr. 43-46. However, the ALJ noted that Plaintiff has not been hospitalized or treated with any intensive mental health program for her mental impairments. Tr. 22. Plaintiff testified that taking lithium had helped with her suicidal ideation, although she was still depressed.
The ALJ also found that Plaintiff's activities of daily living undermined her credibility. Tr. 22. Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.
The Court concludes that the ALJ provided clear and convincing reasons for rejecting Plaintiff's testimony regarding the severity of her symptoms, even though the record regarding Plaintiff's daily activities is more nuanced than the ALJ portrays. Plaintiff stated that she cares for her youngest son and helps him with his homework. Tr. 297. She also does some housework, such as cooking, laundry, dishes, and vacuuming. Tr. 299. She walks her dog three times a day. Tr. 299. Plaintiff can pay bills and use a checkbook. Tr. 300. However, Plaintiff also testified that she has trouble staying on task with household chores and often requires help from her children. Tr. 45. Plaintiff's daughter stated that she sees herself as the person in charge of her siblings and pets, and that Plaintiff struggles with everyday tasks including domestic chores. Tr. 305.
In sum, the Court finds that while the record may be "susceptible to more than one rational interpretation," the ALJ's decision is supported by substantial evidence and therefore must be upheld.
Plaintiff contends that the ALJ failed to provide legally sufficient reasoning to support assigning "little weight" to the opinions of psychologist Keli J. Dean and psychiatric mental health nurse practitioner Isabel Toledo-Silvestre. The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions.
If a treating doctor's opinion is contradicted by the opinion of another physician, the ALJ must provide "specific, legitimate reasons" for discrediting the treating doctor's opinion.
Only physicians and certain other qualified specialists are considered "[a]cceptable medical sources."
Examining psychologist Dr. Dean evaluated Plaintiff on May 4, 2012. Tr. 450. She diagnosed Plaintiff with post-traumatic stress disorder, generalized anxiety disorder, major depression, pain disorder, and panic disorder. Tr. 457. She opined Plaintiff's ability to work was "quite limited" and "increased demands at this point would exacerbate [Plaintiff's] symptoms." Tr. 458. She also noted that Plaintiff had some moderate limitations in various areas of workrelated mental functioning. Tr. 460-61.
Treating nurse practitioner Ms. Toledo-Silvestre began treating Plaintiff on October 24, 2011. On February 16, 2012, she opined that Plaintiff had moderate and marked limitations in various areas of work-related mental functioning, such as the ability to understand and remember instructions, the ability to maintain attention and concentration, the ability to respond appropriately to changes in the work setting, and "the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." Tr. 522. Ms. Toledo-Silvestre also stated that Plaintiff found it challenging to leave the house. Tr. 523. She noted that Plaintiff stated that "anxiety, depression, and problems with her memory and concentration are severe enough to be unable to work...." Tr. 522.
On June 14, 2012, Ms. Toledo-Silvestre's treatment notes state that Plaintiff "has very challenging depression and severe anxiety," and that Plaintiff stated that she was unable to work because of both mental health and physical problems. Tr. 496.
In an October 2013 letter, Ms. Toledo-Silvestre opined Plaintiff cannot work, even in low stress environments, due to her "major depressive disorder, post traumatic syndrome, social anxiety disorder, and agoraphobia." Tr. 541. Ms. Toledo-Silvestre described Plaintiff's inability to concentrate or cope with stress, severe mood swings, and chronic pain. Tr. 541. In addition, she stated that Plaintiff cannot "drive or go on public transportation unless somebody goes with her as she could experience a panic attack." Tr. 541. She explained that while lithium helped with Plaintiff's suicidal ideation, Plaintiff was still "constantly depressed." Tr. 541.
The ALJ gave little weight to the opinions of Dr. Dean and Ms. Toledo-Silvestre. He found that their opinions were not supported by the objective medical evidence of record, including Ms. Toledo-Silvestre's treatment notes. Tr. 23. He also found that their opinions did not comport with the record as a whole, including Plaintiff's "extensive activities of daily living." Tr. 23. Further, he found that Ms. Toledo-Silvestre's opinions were based heavily on Plaintiff's subjective complaints. Tr. 23. Finally, he noted that Ms. Toledo-Silvestre was not a medically acceptable source. Tr. 23.
The ALJ found that Dr. Dean and Ms. Toledo-Silvestre's opinions were not supported by objective medical evidence in the record, including Ms. Toledo-Silvestre's treatment notes. A conflict between treatment notes and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a treating provider.
The ALJ also found that Dr. Dean and Ms. Toledo-Silvestre's opinions were inconsistent with the extent of Plaintiff's daily activities, particularly those associated with caring for a minor child as a single mother. Tr. 23. As discussed above, a full portrayal of Plaintiff's daily activities is more nuanced than the ALJ describes in his opinion. However, the ALJ presents substantial evidence to support a finding that Plaintiff's activities demonstrate that she is not as limited as Dr. Dean and Ms. Toledo-Silvestre suggest. Therefore, the Court upholds the ALJ's determination on this issue.
The ALJ discounted Ms. Toledo-Silvestre's opinion because it appeared to be "based heavily on [Plaintiff's] subjective complaints." Tr. 23. A treating physician's opinion may be rejected if it is based on a non-credible claimant's subjective reports.
The ALJ stated that he discounted Ms. Toledo-Silvestre's opinion because, as a psychiatric mental health nurse practitioner, she was "not a medically acceptable source." Tr. 23. "Acceptable medical sources" are defined in the regulations as sources who "can provide evidence to establish an impairment," including licensed physicians and licensed or certified psychologists. 20 C.F.R. § 1513(a). Nurse practitioners are not listed as acceptable medical sources, but are instead listed in the regulations as "other sources." 20 C.F.R. § 1513(d)(1).
Factors the ALJ should consider when determining the weight to give an opinion from "other" sources such as nurse practitioners include: the length of time the source has known the claimant and the number of times and frequency that the source has seen the claimant; the consistency of the source's opinion with other evidence in the record; the relevance of the source's opinion; the quality of the source's explanation of his opinion; and the source's training and expertise. SSR 06-03p, at *4;
Here, Ms. Toledo-Silvestre has treated Plaintiff since 2011. However, as noted, the ALJ found her opinion inconsistent with other evidence in the record and largely based on Plaintiff's subjective complaints. Furthermore, Ms. Toledo-Silvestre's opinions contradicted those of two nonexamining acceptable medical sources, state agency psychological consultants Barney Greenspan, Ph.D., and Joshua Boyd, Psy.D. Tr. 23-24. The ALJ gave some weight to Dr. Greenspan's opinion that "the claimant could have casual contact with coworkers and the general public." Tr. 23-24. The ALJ gave great weight to Dr. Boyd's opinion and adopted it in the RFC, because Dr. Boyd had the opportunity to review additional records and his opinion was supported by the objective evidence and the record as a whole. Tr. 24. Dr. Boyd opined that Plaintiff "was capable of carrying out very short and simple instructions, was limited to occasional interaction with the public, and could have casual contact with coworkers." Tr. 24. In addition, Dr. Boyd indicated that Plaintiff "would benefit from additional instruction and time when adapting to more complex changes, and would benefit from assistance in setting work goals"; however, these were "occupational suggestions, not limitations per se." Tr. 24.
Thus the record reflects that Ms. Toledo-Silvestre's opinion was inconsistent with Plaintiff's daily activities, was largely based on Plaintiff's subjective complaints, and was inconsistent with those of "acceptable medical sources" in the record. Accordingly, the Court concludes that the ALJ did not err when he discounted the weight given to Ms. Toledo-Silvestre's opinion.
In summary, the Court affirms the ALJ's decision to grant "little weight" to Dr. Dean and Ms. Toledo-Silvestre's opinions. While the Court disagrees with the ALJ's assessment of their opinions' consistency with the treatment notes, the Court agrees the opinions are inconsistent with the record as a whole. Furthermore, the Court finds that the ALJ's decision to discount Ms. Toledo-Silvestre's opinion based on her reliance on Plaintiff's subjective complaints and her role as a nurse practitioner is supported by substantial evidence.
Plaintiff contends that the ALJ's RFC assessment fails to account for Plaintiff's limited ability to interact appropriately with supervisors or maintain persistence, attention, and concentration. Plaintiff's argument fails for two reasons. First, the evidence that Plaintiff presents in support of her argument—her own testimony and the opinions of Dr. Dean and Ms. Toledo-Silvestre—is all properly discounted by the ALJ as discussed above. Second, the ALJ relies on state agency psychological consultant Dr. Boyd's opinion and determines it is more credible. Tr. 24. Dr. Boyd opined that Plaintiff "was capable of carrying out very short and simple instructions; was limited to occasional interaction with the public; and could have casual contact with coworkers." Tr. 24. The ALJ adopted Dr. Boyd's opinion and included in the RFC all of the limitations described by Dr. Boyd. Therefore, the ALJ adequately captured the Plaintiff's limitations in the RFC.
Plaintiff also contends that the ALJ erred by declining to include stricter limitations on Plaintiff's ability to lift and carry. This argument similarly fails. The ALJ did not find Plaintiff's testimony credible. Therefore, he was not obligated to rely on it in developing his RFC assessment. The RFC captures the physical limitations reflected in the objective medical evidence. For example, the RFC captures the opinions of the state agency medical consultants, which were given "some weight," in limiting Plaintiff's ability to lift and carry 20 pounds occasionally and 10 pounds frequently. Tr. 24. The ALJ's RFC is therefore supported by substantial evidence.
Based on the foregoing, the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.