BRIAN A. TSUCHIDA, Magistrate Judge.
Georgea Lee Pressley seeks review of the denial of her Supplemental Security Income, Period of Disability, and Disability Insurance Benefits applications. She contends the ALJ erred by (1) failing to find she had a severe impairment of degenerative joint disease at step two; (2) finding her less than fully credible; (3) misevaluating the opinions of Dr. Monica Carillo, M.D., and Dr. Susan Hakeman, M.D. Dkt. 16. As discussed below, the Court recommends the case be
Ms. Pressley is currently 54years old, has a high school education, and has worked as an assistant manager of an antique mall and as a housekeeper. On October 17, 2007, she applied for benefits, alleging disability as of February 1, 2006. Tr. 11. Her applications were denied initially and on reconsideration, and by the ALJ after her first hearing. Tr. 11, 22.
This is the second time this matter comes before the Court for judicial review of the administrative decision. The first review (Pressley v. Astrue, C10-2007-RSM-BAT, 2011 WL 4437183 (W.D. Wash. 2011), adopted by C10-2007-RSM, 2011 WL 4439552 (W.D. Wash. 2011)) resulted in a reverse of ALJ Bauer's decision and a remand directing the ALJ to reassess Ms. Pressley's severe impairments; reassess the medical opinions of Dr. Carillo, Dr. Hakeman, and the state agency medical consultants, reevaluate Ms. Pressley's credibility, and redo the five-step evaluation process as necessary. See Pressley, C10-2007-RSM-BAT, 2011 WL 4437183 at *10. Pursuant to remand by the Court, the Appeals Council vacated the first decision. Tr. 701. A different ALJ, Judge Kennedy, conducted a second hearing on May 9, 2012, finding Ms. Pressley not disabled. Tr. 535-550. Ms. Pressley filed exceptions to the ALJ's first decision after remand, and on September 13, 2013, the Appeals Council declined to assume jurisdiction of the case. Tr. 521-30. Accordingly, the ALJ's decision after remand is the Commissioner's final decision that is subject to judicial review. See 20 C.F.R. §§ 404.984(a)(2), 422.210.
Utilizing the five-step disability evaluation process,
Tr. 535-50.
As a preliminary matter, the Court addresses Ms. Pressley's reliance on comparisons between ALJ Bauer's February 18, 2010 decision, and ALJ Kennedy's August 29, 2012 decision. Ms. Pressley does not raise a law of the case or rule of mandate argument, nor could she. The Court's prior Report and Recommendation, as adopted, directed that on remand, the ALJ reassess Ms. Pressley's severe impairments at step two; reassess the medical opinions of Dr. Carillo, Dr. Hakeman, and the state agency medical consultants; reevaluate Ms. Pressley's credibility, and "redo the five-step disability evaluation process as necessary." Pressley. 2011 WL 4437183, at *9, adopted by Pressley 2011 WL 4439552. Ms. Pressley provides no authority suggesting that, on remand, ALJ Kennedy was bound by ALJ Bauer's decision. The Court further notes that the Order of Appeals Council remanding the case to the ALJ after the Court's Order Reversing and Remanding review states "the Appeals Council vacates the final decision of the Commissioner of Social Security . . ." Tr. 701 (emphasis added). Accordingly, the Court rejects Ms. Pressley's arguments suggesting ALJ Kennedy erred in rendering a decision that conflicted with ALJ Bauer's decision. See, e.g., Dkt. 16 at 14 ("Plaintiff contends that [ALJ Kennedy's] step 2 finding is incomplete, and conflicts with the prior step 2 finding of ALJ Bauer that the medical evidence documents severe impairments of degenerative disc disease and degenerative joint disease.").
At step two, Ms. Pressley has the burden of proof to show (1) that she has medically determinable impairments; and (2) that her medically determinable impairments are severe. See Bowen v. Yuckert, 482 U.S. 137, 145, (1987); 20 C.F.R. § 404.1520(c). An impairment is medically determinable if it results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1508. An impairment is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520; 404.1521. "Basic work activities" refers to "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(b). "[T]he step two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
Ms. Pressley contends the ALJ erred in failing to find she had a severe impairment of degenerative joint disease in her hand and knees. Dkt. 16 at 14. Specifically, she argues the ALJ ignored evidence regarding her hand and knee arthritis. Id. at 14-17; Dkt. 20 at 4. At step two, the ALJ found Ms. Pressley had a severe impairment of degenerative disc disease, but declined to find a severe impairment of osteoarthritis (of the left hand) because there was "no report of any adverse effect on the claimant's performance of work-related activities." Tr. 538-39. Stated differently, the ALJ found the impairment non-severe. Because it is unclear whether Ms. Pressley contends her hand and knee arthritis are separate impairments, the Court assesses each in turn.
Ms. Pressley urges the Court to consider several medical opinions. In evaluating her hand impairments, Dr. Mark Heilbrunn's March 2008 disability evaluation diagnosed "[b]ilateral hand non-inflammatory arthritis (degenerative joint disease) of the finger and left thumb metacarpal phalangeal joints." Tr. 328. State Agency consultant Bill Flynn
However, the record also shows Dr. Heilbrunn found Ms. Pressley had "firm grasping" and "fine and dexterous movements," and she could be expected to lift and carry fifteen pounds.
But even if the ALJ erred, Ms. Pressley has not shown harm. First, she fails to explain how her symptoms would result in any specific work-related limitations.
However, the ALJ failed to discuss Ms. Pressley's knee arthritis at step two. Dr. Heilbrunn diagnosed "bilateral knee osteoarthritis and subpatellar crepitus." Tr. 328. Dr. Carillo opined Ms. Pressley was limited to standing/walking for 1.5 hours in ten minute increments, and she had severely reduced range of motion, stability, and strength in her knees. Tr. 1261, 1263. The Court finds Ms. Pressley has established she meets the de minimis threshold for a medically determinable, severe impairment. This error is not harmless because the ALJ's RFC includes significant standing and/or walking.
Ms. Pressley contends the ALJ erred in her adverse credibility finding. Dkt. 16 at 23. Where, as here, there is no evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ discounted Ms. Pressley's credibility for a number of reasons; Ms. Pressley ALJ's RFC assessment in the decision is erroneous and an over-estimation of Plaintiff's physical ability to stand/walk, lift/carry, and finger objects." Dkt. 16 at 20. challenges only some of them. For the reasons described below, the Court concludes Ms. Pressley has not established reversible error.
Ms. Pressley first asserts the ALJ's credibility determination was erroneous in finding her "not fully credible regarding her mental limitations or physical limitations . . . in part because [the ALJ] failed to properly consider all of the underlying physical impairments which could reasonably be expected to produce her pain limitations." Dkt. 16 at 24 (citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). As a preliminary matter, the Court "ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an appellant's opening brief." Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003); see also Carmickle v. Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The Court, therefore, will not intuit which of Ms. Pressley's "underlying physical impairments" she contends are at issue here. Additionally, Ms. Pressley fails to explain how an error regarding mental limitations is in any way relevant to the ALJ's consideration of physical impairments and pain limitations.
Ms. Pressley also argues the ALJ "failed to properly show that Plaintiff was completely incredible regarding limitations in lifting and carrying items, or that she was completely incredible about her limitations in standing and walking." Dkt. 16 at 18 (citing Tr. 541, 543). The argument is also vague, and does not explain the significance of the assertion that the ALJ erred because he did not find Ms. Pressley "completely" incredible. As the Court understands the argument, Ms. Pressley contends that because the ALJ recognized she had some lifting/carrying and standing/walking limitations, the ALJ improperly discounted her credibility. See Dkt. 16 at 18 ("Even the ALJ found Plaintiff partially credible, and limited her lifting and carrying and standing/walking to a light level of exertion (Tr. 541)"). Ms. Pressley offers no support or explanation for the argument, and therefore, the argument has no merit.
Ms. Pressley also contends the ALJ erred in finding her activities of daily living were inconsistent with her allegations of disabling functional limitations. Dkt. 16 at 18-19, 24. The ALJ noted that in 2008, Ms. Pressley reported she did her own laundry and cooking, cleaned her room, visited her daughter twice each week, visited the "Rainbow Center," watched television, listened to music, drove a car, and tended to personal hygiene. Tr. 544. The ALJ also noted that since her first hearing, Ms. Pressley has reported getting dressed, feeding her cat, sometimes doing housework, napping, going to appointments, watching movies with a neighbor, and doing yoga (which was recommended by a physical therapist). Tr. 542.
A claimant's reported daily activities can form the basis for an adverse credibility determination if they consist of activities that contradict the claimant's "other testimony"; or that are transferable to a work setting." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); see also Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be grounds for an adverse credibility finding "if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting."). The ALJ's decision does not identify testimony that was contradicted by Ms. Pressley's conduct.
But the ALJ also provided other reasons to discredit Ms. Pressley's credibility, which are clear and convincing and supported by substantial evidence, and which Ms. Pressley does not challenge. The ALJ questioned Ms. Pressley's allegations regarding mental impairments because her fluctuating symptoms appeared to appropriately track particularly stressful events in her life.
Thus, even assuming the ALJ erred as Ms. Pressley contends, she has not established harmful error. See Carmickle, 533 F.3d at 1162 (including an erroneous reason, among other reasons, to discount a claimant's credibility is at most harmless error if the other reasons are supported by substantial evidence and the erroneous reason does not negate the validity of the overall credibility determination). Accordingly, the Court recommends affirming the ALJ's credibility finding.
Ms. Pressley also argues the ALJ erred in discounting the opinions of treating doctor Monica Carillo, M.D., and examining doctor Susan Hakeman, M.D. When a treating or examining doctor's opinion is not contradicted by another doctor, the ALJ may reject the opinion only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1988). Where a treating or examining doctor's opinion is contradicted by that of another doctor, it may not be rejected without "specific and legitimate reasons based on substantial evidence in the record." Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
Ms. Pressley first challenges the ALJ's rejection of treating Dr. Carillo's opinion that her impairments met or equaled the criteria for listing 12.04, affective disorders, and 12.06, anxiety disorders. Dkt. 16 at 3-8. The ALJ's observed that two reviewing doctors, Dr. Dan Donahue, Ph.D., and Dr. Alnoor Virji, M.D., declined to adopt Dr. Carillo's opinions because they found the opinion was based on Ms. Pressley's complaints and not supported by the evidence. Tr. 547 (citing Tr. 1012-23.). Ms. Pressley argues it was not appropriate for the ALJ to rely on reviewing Dr. Virji's Physical RFC assessment to discount Dr. Carillo's interrogatories; or to rely on Dr. Donahue's opinion, because he did not identify which of Dr. Carillo's records he reviewed when he rejected her opinion in his Mental RFC form. Dkt. 16 at 9. The Court agrees. The ALJ's reasons for rejecting Dr. Carillo's opinions on this basis were neither specific and legitimate, nor based on substantial evidence. Both doctors failed to identify which of Dr. Carillo's records they reviewed in forming their own opinions. Additionally, it would not be rational for Dr. Virji to reject a mental impairment opinion in forming a physical RFC, nor would it be reasonable for the ALJ to discount a mental impairment opinion on the grounds that a reviewing doctor rejected that opinion in completing a physical RFC.
The ALJ also rejected Dr. Carillo's interrogatory opinions on the grounds that the doctor did not provide medical evidence to support her conclusions, and did not explain how she reached those conclusions. Tr. 547. The interrogatory forms completed by Dr. Carillo indicate that her opinions as to whether Ms. Pressley met the criteria for listing 12.04 and 12.06 were based on the fact that Ms. Pressley "has been under my care for five years during which I have participated in the management of her anxiety and depression," Tr. 511, and "Pt can not maintain employment due to incapacity to manage anxiety when demands are placed on her . . ." Tr. 497. There are no specific references to the record, and nothing indicates the doctor observed the findings she recorded. Ms. Pressley contends the ALJ's reasons for discounting the doctor's opinions were in error, because he ignored the length and nature of Dr. Carillo's treating relationship with her. Dkt. 16 at 8. In support of her argument, she identifies a number of treatment records between 2005 and 2009.
"Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability." Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). A treating physician's opinion need not be given controlling weight when it is "conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings[.]" Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Additionally, "[w]here the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld." Morgan v. Comm'r, Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999) (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.1995)).
The ALJ gave specific and legitimate reasons for rejecting Dr. Carillo's opinions that she met or equaled the listing criteria. The opinions lacked objective medical findings, and the evidence Ms. Pressley proffers to support the opinions are susceptible to more than one rational interpretation. Accordingly, the ALJ's conclusion must be upheld.
Although the reasons the ALJ gave to discount Dr. Carillo's opinions are not error free, the Court concludes the ALJ's errors were harmless. This is because despite the errors, substantial evidence supports the remaining valid reasons the ALJ gave, and thus the ALJ's errors do not negate the validity of the his ultimate determination that Dr. Carilllo's interrogatory opinions "do[] not merit any weight." See Tr. 547; see also Carmickle, 533 F.3d at 1162.
Ms. Pressley also challenges the ALJ's rejection of Dr. Carillo's January 2011 opinion. Dkt. 16 at 17-20. The doctor's January 2011 opinion includes a partially completed DSHS "Range of Joint Motion Evaluation Chart." Tr. 1265-66. The doctor noted Ms. Pressley suffered from "severely reduced" range of motion in her knees and "severely reduced" stability and right knee strength. Tr. 1268. She opined Ms. Pressley could lift five pounds occasionally and two pounds frequently with both hands, and could stand/walk for 1.5 hours in ten minute increments. Tr. 1263.
The ALJ rejected Dr. Carillo's January 2011 opinion because the objective findings were not found in the report, the doctor relied on Ms. Pressley's complaints, and the findings were not supported by the record. Tr. 547-48. To the extent Ms. Pressley contends the ALJ erred in rejecting the opinion because he did not properly discount her self-reports regarding lifting/carrying and standing/walking limitations, Dkt. 18 at 16, the Court agrees. "An ALJ may reject a treating physician's opinion if it is based `to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999). The ALJ did not address self reports about such limitations in his adverse credibility determination. The ALJ also erred in rejecting the opinion on the basis that the objective observations were not included in the report with respect to Ms. Pressley's knee impairments, because the attached "Range of Joint Motion Evaluation Chart" indicates she provided her observations of Ms. Pressley's limitations in knee flexion/extension. Tr. 1265-66. For the same reason, the ALJ erred in assuming the doctor relied on Ms. Pressley's complaints with respect to her knee impairments.
Nevertheless, the ALJ properly rejected Dr. Carillo's opined walking and standing limitations as unsupported by the record. See Batson, 359 F.3d at 1195. Dr. Heilbrunn diagnosed "bilateral knee osteoarthritis and subpatellar crepitus," but his functional assessment states Ms. Pressley "has adequate balancing on either leg. And by history is able to negotiate steps, hills, and uneven terrain . . . She does not need or use an assistive device. The claimant could be expected to walk or stand for at least 30 minutes uninterrupted, and for a total of 5-6 out of 8 hours, with limitations correlating to . . . bilateral knee osteoarthritis . . ." Tr. 328. Additionally, Mr. Flynn and Dr. Virji opined Ms. Pressley could stand and/or walk for at least six hours in an eight-hour workday. Tr. 332; 1013. Substantial evidence also supports the ALJ's rejection of the only opinions that support Dr. Carillo's January 2011 opinion (Dr. Carillo's July 2008 and March 2010 opinions, Tr. 546-47, 355-60, 979-83).
The ALJ also did not err in rejecting the doctor's opinions concerning Ms. Pressley's hand impairments, as she provided no objective basis for her opinion that Ms. Pressley was limited to lifting five or fewer pounds. The attached chart contains no findings regarding range of motion in the hand or wrist . See Tr. 1266. Further, Dr. Carillo indicated Ms. Pressley had no gross or fine motor skill restrictions and her other opinions, to the extent they support this opinion, were properly rejected.
Thus, although the ALJ offered some invalid reasons to discount Dr. Carillo's January 2011 opinion, he also offered valid reasons, which were specific and legitimate. The inclusion of invalid reasons does not affect the validity of the ALJ's ultimate conclusion that Ms. Pressley was not disabled. See Carmickle, 533 F.3d at 1162. Because substantial evidence supports the ALJ's valid reasons for discounting Dr. Carillo's opinions, the Court concludes the ALJ's invalid reasons were harmless. The Court recommends affirming the ALJ's rejection of Dr. Carillo's January 2011 opinion.
Ms. Pressley also contends the ALJ erred because he did not consider Dr. Carillo's "History & Physical Report" dated January 11, 2012. Ms. Pressley argues the report indicates findings of "1+ pitting edema" (location unspecified) and severe reduction of flexibility, stability, and right knee strength. Dkt. 16 at 19 (citing Tr. 1261). Dr. Carillo also opined Ms. Pressley could lift no more than five pounds at a time without pain, and carry no more than two pounds at a time for any extended period of time, which she attributed to "lumbago" upon physical examination. Tr. 1260-61. An ALJ "need not discuss all evidence presented to [him]. Rather, [he] must explain why "significant probative evidence has been rejected." Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citing Cotter v. Harris, 642 F.2d 700, 706 (3d Cir. 1981)). As these findings appear to attribute lifting and carrying restrictions to Ms. Pressley's back—an impairment the ALJ found "severe"—the evidence is significant and probative. Because the ALJ failed to discuss this opinion, he failed to provide clear and convincing or specific and legitimate reasons to reject it. Accordingly, on remand, the Court recommends the ALJ reevaluate Dr. Carillo's January 11, 2012 report.
The ALJ adopted Dr. Hakeman's opinion that Ms. Pressley has difficulty interacting with the public, would work best independently, should not perform stressful or complex work, and should be limited to simple and routine work. Tr. 546. However, the ALJ assigned "little weight" to the remainder of the opinion for four reasons. Two of these were valid.
The ALJ first took issue with Dr. Hakeman's use of the word "marked" in her opinion, finding it was insufficient to support the doctor's disability statement because it was not defined in the opinion and because the impairment failed to describe what Ms. Pressley could do. Tr. 546. The ALJ's reasoning is plain error, not supported by substantial evidence, and not a clear and convincing reason to discount the doctor's opinion. See Magallanes, 881 F.2d at 750. The form lists a number of cognitive and social factors which must be rated according to the severity of the claimant's limitations. Tr. 351-52. The doctor appropriately indicated when Ms. Pressley had marked, moderate, mild, or no limitations. Id. Additionally, as Ms. Pressley correctly observes, the terms are defined directly on the form. Dkt. 16 at 22 ("Marked — very significant interference with basic work-related activities."). The ALJ erred in rejecting the opinion on this basis.
The ALJ also rejected the opinion because "the longitudinal record does not support the claimant is totally disabled with regard to work-related pressures." Ms. Pressley challenges this reasoning, asserting the ALJ has applied an improper legal standard. The Court is also perplexed as to the purpose and intent of the ALJ's statement. Nothing in the opinion indicates Dr. Hakeman opined Ms. Pressley was "totally disabled." See Tr. 350-354. The statement appears wholly disconnected from the substance of Dr. Hakeman's opinion, and accordingly, cannot be a clear and convincing reason to reject it.
However, the ALJ also provided valid reasons to discount Dr. Hakeman's opinion. The ALJ did not err in rejecting the opinion because of the doctor's reliance on Ms. Pressley's subjective complaints. The ALJ found "[t]he notations that the claimant had trouble with crowds, experienced panic attacks, and had medication side effects of headaches appear to simply be information that she obtained from the claimant." Tr. 546. Ms. Pressley's complaints were properly discounted for reasons she does not challenge, including inconsistent reporting about difficulties with public interaction and a lack of disruptions in daily activities and alleged mental difficulties (including panic attacks). See Tr. 542, 544. Thus, the ALJ properly discounted Dr. Hakeman's opinion on this basis. Tommasetti, 533 F.3d at 1041. Additionally, Dr. Hakeman did not support her opinion with her own observations. Ryan v. Comm'r, Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) ("[A]n ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations"). For example, the Mental Status Exam notes do not appear to support the severity of her opined limitations, nor, as the ALJ observed, did the doctor reference any of her objective findings. See Tr. 354, 546.
The ALJ also found Dr. Hakeman failed to explain her basis for opining Ms. Pressley had marked limitations regarding work-related pressures. Tr. 546 (citing Tr. 352 (finding marked restrictions in ability to respond appropriately to and tolerate the pressure and expectations of a normal work setting). An ALJ need not accept the opinion of a doctor which is "brief, conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the ALJ reasonably found the opinion provided inadequate explanation for the marked limitation it opined. The doctor's only note in support of this opinion is "trouble with crowds . . . panic — has to leave + go outside immediately." Tr. 352. Ms. Pressley contends the assessment is supported by Dr. Hakeman's mental status exam, which states that her mood was "dysphoric," her affect range "decreased," and she would "need to leave and go outside if having a panic [sic] attacks." See Tr. 354. But those findings too are conclusory and fail to establish a connection between the doctor's opinion and mental status exam findings.
Here, again, the inclusion of invalid reasons does not affect the validity of the ALJ's ultimate conclusion that Ms. Pressley was not disabled. See Batson, 359 F.3d at 1197. Thus, because substantial evidence supports the ALJ's valid reason for discounting Dr. Hakeman's opinion, the Court concludes the ALJ's invalid reasons were harmless. The Court recommends affirming the ALJ's decision to discount Dr. Hakeman's opinion .
For the foregoing reasons, the Court recommends that the Commissioner's decision be
On remand, the ALJ should consider whether Ms. Pressley has a severe impairment of degenerative joint disease affecting her knees, reevaluate Dr. Carillo's January 11, 2012 report (Tr. 1259-1261) and, as necessary, reevaluate the medical opinion evidence of record.
A proposed order accompanies this Report and Recommendation. Objections, if any, to this Report and Recommendation must be filed and served no later than
