THOMAS O. RICE, District Judge.
BEFORE THE COURT are the parties' cross-motions for summary judgment (ECF Nos. 13, 18). Dana C. Madsen represents Plaintiff. Lars J. Nelson represents Defendant. This matter was submitted for consideration without oral argument. The Court has reviewed the administrative record and the parties' completed briefing and is fully informed. For the reasons discussed below, the Court grants Defendant's motion and denies Plaintiff's motion.
The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g); 1383(c)(3).
A district court's review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is limited: the Commissioner's decision will be disturbed "only if it is not supported by substantial evidence or is based on legal error." Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). "Substantial evidence" means relevant evidence that "a reasonable mind might accept as adequate to support a conclusion." Id. at 1159 (quotation and citation omitted). Stated differently, substantial evidence equates to "more than a mere scintilla[,] but less than a preponderance." Id. (quotation and citation omitted). In determining whether this standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. Id.
In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. If the evidence in the record "is susceptible to more than one rational interpretation, [the court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court "may not reverse an ALJ's decision on account of an error that is harmless." Id. An error is harmless "where it is inconsequential to the [ALJ's] ultimate nondisability determination." Id. at 1117 (internal quotation marks and citation omitted). The party appealing the ALJ's decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
A claimant must satisfy two conditions to be considered "disabled" within the meaning of the Social Security Act. First, the claimant must be "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant's impairment must be "of such severity that he is not only unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is engaged in "substantial gainful activity," the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(b); 416.920(b).
If the claimant is not engaged in substantial gainful activities, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant suffers from "any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities," the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 416.920(c). If the claimant's impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. Id.
At step three, the Commissioner compares the claimant's impairment to several impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d).
If the severity of the claimant's impairment does meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant's "residual functional capacity." Residual functional capacity ("RFC"), defined generally as the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis.
At step four, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing work that he or she has performed in the past ("past relevant work"). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.
At step five, the Commissioner considers whether, in view of the claimant's RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant's age, education, and work experience. Id. If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. Id.
The claimant bears the burden of proof at steps one through four above. Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work "exists in significant numbers in the national economy." 20 C.F.R. §§ 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).
Plaintiff protectively filed applications for a period of disability and disability insurance benefits on March 24, 2011, and for supplemental security income on March 4, 2011. Tr. 173-74, 175-83, 184-92. These applications were denied initially and upon reconsideration, and Plaintiff requested a hearing. Tr. 65-73, 74-82, 119-23, 124-29, 130-31. A hearing was held with an Administrative Law Judge ("ALJ") on December 4, 2012. Tr. 35-62. The ALJ rendered a decision denying Plaintiff benefits on January 18, 2013. Tr. 9-27.
The ALJ found that Plaintiff met the insured status requirements of Title II of the Social Security Act through December 31, 2014. Tr. 14. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 18, 2009, the alleged onset date. Tr. 14. At step two, the ALJ found that Plaintiff had the following severe impairment: major depressive disorder. Tr. 14. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meet or medically equal a listed impairment. Tr. 15. The ALJ then determined that Plaintiff had the RFC
Tr. 17. At step four, the ALJ found that Plaintiff was unable to perform any past relevant work as an office helper, shipping and receiving clerk, order picker, fast food worker and manager, short order cook, machine packager, or hand packager. Tr. 21. At step five, the ALJ found that Plaintiff could perform the representative occupations of fish cleaner, dining room attendant, and laundry worker. Tr. 22. In light of the step five finding, the ALJ concluded that Plaintiff was not disabled under the Social Security Act and denied her claims on that basis. Tr. 23.
The Appeals Council denied Plaintiff's request for review on May 22, 2014, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Tr. 1-6; 20 C.F.R. §§ 404.981, 416.1484, 422.210.
Plaintiff seeks judicial review of the Commissioner's final decision denying her disability benefits and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff raises the following two issues for review:
(2) Whether the ALJ properly weighed the medical opinion evidence.
ECF No. 13 at 12-19. This Court addresses each issue in turn.
Plaintiff contends the ALJ improperly discredited her symptom testimony. Id. at 12. In support, Plaintiff asserts that (1) the medical evidence supports her testimony regarding her mental health symptoms; and (2) her failure to seek treatment was justified because her condition did not improve with medication, she could not afford treatment, and her mental condition interfered with her ability to seek treatment. Id. at 12-16.
"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." Molina, 674 F.3d at 1112 (citing Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). First, the ALJ must determine whether the claimant has proved the existence of a physical or mental impairment with "medical evidence consisting of signs, symptoms, and laboratory findings." 20 C.F.R. §§ 416.908, 416.927; see Molina, 674 F.3d at 1112. A claimant's statements about his or her symptoms alone will not suffice. 20 C.F.R. §§ 416.908, 416.927. "Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant's testimony as to subjective symptoms merely because they are unsupported by objective evidence." Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). As long as the impairment "could reasonably be expected to produce the pain or other symptoms," the claimant may offer a subjective evaluation as to the severity of the impairment. Bunnell, 947 F.2d at 345-56. This rule recognizes that the severity of a claimant's symptoms "cannot be objectively verified or measured." Id. at 347 (citation omitted).
However, an ALJ may conclude that the claimant's subjective assessment is unreliable, so long as the ALJ makes "a credibility determination with findings sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002); see also Bunnell, 947 F.2d at 345 ("[A]lthough an adjudicator may find the claimant's allegations of severity to be not credible, the adjudicator must specifically make findings which support this conclusion."). If there is no evidence of malingering, the ALJ's reasons for discrediting the claimant's testimony must be "specific, clear and convincing." Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ "must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); see Berry, 622 F.3d at 1234 ("General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.").
In weighing the claimant's credibility, the ALJ may consider many factors, 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.'" Chaudry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing. Id. (quoting Tommasetti, 533 F.3d at 1039).
Here, the ALJ found that although Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms," her "statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible." Tr. 18. Because there is no evidence of malingering in this case, the Court must determine whether the ALJ provided specific, clear, and convincing reasons not to credit Plaintiff's testimony regarding the limiting effect of her symptoms. Chaudhry, 688 F.3d at 672.
Although Plaintiff contends that the ALJ improperly conducted an adverse credibility analysis, this Court disagrees. The ALJ provided the following specific, clear, and convincing reasoning supported by substantial evidence for finding Plaintiff's subjective statements not fully credible: (1) the medical evidence of record did not support the degree of limitation alleged by Plaintiff; and (2) Plaintiff's failure to seek treatment was inconsistent with the disabling symptoms alleged. Tr. 18-20.
First, the ALJ found the medical evidence, which signaled a broader development of improvement, did not support the degree of limitation alleged by Plaintiff. Although Plaintiff testified to debilitating depressive symptoms, such as anhedonia, a lack of motivation, discouragement, difficulty sleeping, and difficulty concentrating, the ALJ found Plaintiff's condition improved with medication and thus the record did not support the degree of limitation alleged. Tr. 18-19. For instance, after Plaintiff was hospitalized for depression in November 2009, she reported "feeling much better" with use of medication. Tr. 19 (citing Tr. 289); see also Tr. 19 (citing Tr. 310 ("[Claimant] stated that the medication had been helpful.")). Plaintiff subsequently discontinued her medication, reporting to a provider that she did not want to take them anymore. Tr. 19 (citing Tr. 370). However, one week after restarting medication in August 2010, Plaintiff was observed by a provider to be "more animated" with an "increased range of affect." Tr. 19 (citing Tr. 374). Similarly, in September 2010, after continued use of medication, Plaintiff's provider noted "significant improvement" in Plaintiff's condition, finding that Plaintiff appeared "brighter and more interactive." Tr. 19 (citing Tr. 379); see also Tr. 378 (treatment notes following antidepressant medication use noted Plaintiff reporting that she was "feeling better"). In December 2010, Plaintiff presented for refills of her medications—several months after she ran out—and reported that "she feels better when she takes her medications, less depressed, and she sleeps better when she has them."
While "it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment," an ALJ may rely on examples of "broader development" of improvement when finding a claimant's testimony not credible. Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014) ("While ALJs obviously must rely on examples to show why they do not believe that a claimant is credible, the data points they choose must in fact constitute examples of a broader development to satisfy the applicable `clear and convincing' standard."). Despite Plaintiff's contention here, the ALJ did not inappropriately "cherry pick" periods of temporary well-being; rather, the ALJ noted that Plaintiff's condition consistently improved when she followed her prescribed course of medication and discredited her testimony on that basis. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for . . . benefits.").
Second, and relatedly, the ALJ found Plaintiff's statements concerning the severity of her limitations inconsistent with her failure to follow a prescribed course of treatment. Despite Plaintiff's improvement with medication use, detailed above, the ALJ noted over a one-year gap in treatment, which cast doubt on the severity of Plaintiff's symptoms: "The claimant's lack of follow-up for over a year again suggests that her condition did not significantly interfere with her functioning." Tr. 20. Although Plaintiff attempted to explain her lack of treatment, the ALJ did not find these explanations convincing. For instance, although Plaintiff asserted an inability to afford medications, the ALJ noted that (1) she testified at the hearing that she had medical insurance through the state, Tr. 19, and (2) even if Plaintiff did not have insurance, the lack of insurance would not have precluded Plaintiff from receiving treatment considering the availability of patient assistance programs. Tr. 20 (citing Tr. 390 ("Learned [patient] can get Zyperxa, which was helpful in the past, on a patient assistant program, this is prescribed.")); see Tr. 381 (referring Plaintiff to Project Access Coordinator to determine whether there may be resources available to help with expense of medications). Moreover, the ALJ found inconsistencies in Plaintiff's reasoning for not following a prescribed course of treatment: Plaintiff reported to providers that she stopped taking medication because "she did not want to anymore," and that she could not afford medications but would try counseling, which the ALJ determined was inconsistent because someone who could not afford medications could likely not afford counseling. Tr. 20. Finally, the ALJ had reason to doubt Plaintiff's commitment to counseling. As the ALJ had previously noted, although Plaintiff was enrolled in counseling in February 2010, she only met with a therapist once and failed to appear at subsequent appointments or otherwise respond to voicemails or letters. Tr. 19 (citing Tr. 293). Plaintiff was subsequently referred to a counselor in February 2012, Tr. 20 (citing Tr. 391); however, there is no evidence that Plaintiff complied with this referral, Tr. 20. Indeed, Plaintiff reported to one provider that she "did not follow through with counseling because she did not like being there." Tr. 402. Accordingly, Plaintiff's inadequately explained failure to follow a prescribed course of treatment provided another clear and convincing reason for discounting her credibility. See Tommasetti, 533 F.3d at 1039 (finding that a plaintiff's "unexplained or inadequately explained failure to seek treatment" provided legitimate reason for rejecting claimant's credibility).
Plaintiff also contends the ALJ failed to properly weigh the medical opinion evidence. ECF No. 13 at 16-19. In support, Plaintiff faults the ALJ for rejecting the opinions of Dr. Pollack and giving greater weight to the opinions of Dr. Chandler and Dr. Veraldi. Id.
There are three types of physicians: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant [but who review the claimant's file] (nonexamining [or reviewing] physicians)." Holohan, 246 F.3d at 1201-02 (citations omitted). A treating physician's opinions are generally entitled to substantial weight in social security proceedings. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If a treating or examining physician's opinion is uncontradicted, an ALJ may reject it only by offering "clear and convincing reasons" that are supported by substantial evidence in the record. Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "However, the ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory and inadequately supported by clinical findings." Bray, 554 F.3d at 1228 (quotation and citation omitted). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing "specific and legitimate reasons" that are supported by substantial evidence in the record. Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31).
Plaintiff contends the ALJ did not give sufficient weight to the findings of examining psychologist, Dr. Dennis Pollack, Ph. D. ECF No. 13 at 7, 17-19. Dr. Pollack examined Plaintiff in November 2012, at the request of Plaintiff's representative, and opined that Plaintiff would have marked limitations in her ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, complete a normal workday or workweek without interruptions from psychologically based symptoms, and perform at a consistent pace without an unreasonable number of rest periods. Tr. 399-408.
This Court finds that ALJ properly evaluated the opinion of Dr. Pollack and reasonably provided the opinions of Dr. Veraldi and Dr. Chandler greater weight. Because Dr. Pollack's opinion was contradicted, see Tr. 20-21, the ALJ need only have provided "specific and legitimate" reasoning for rejecting it. Bayliss, 427 F.3d at 1216.
First, the ALJ found Dr. Pollack's opinion was not supported by the evidence in the record. For instance, the ALJ noted Dr. Pollack's opinion that Plaintiff was unable to complete a normal workday or workweek was not supported by objective findings. Tr. 20. Further, as testified to by Dr. Donna Veraldi, Ph. D., at the hearing, Plaintiff might become depressed once every six months but would not routinely be missing work because of her condition. Tr. 20; see Tr. 44. Because Dr. Veraldi was able to review all of the medical evidence and her opinion was consistent with the findings of Dr. Chandler,
Second, the ALJ noted inconsistencies in Dr. Pollack's own assessment. Although Dr. Pollack opined that Plaintiff had marked limitations in maintaining a schedule and completing a normal work day, the ALJ commented that Dr. Pollack's notes also indicated Plaintiff suffered no significant limitations in the majority of the functioning categories. Tr. 20; see Tr. 406. Further, although Dr. Pollack opined that Plaintiff had marked limitations in her ability to perform activities within a schedule, maintain attendance, or be punctual within customary tolerances, he also noted that Plaintiff arrived on time or early to her evaluations. Tr. 20; see Tr. 400. Because inconsistencies between a doctor's opinion and his own reports, provide a specific and legitimate reason for rejecting even a treating doctor's opinion, see Bayliss, 427 F.3d at 1216 (finding a discrepancy between a doctor's opinion and his other recorded observations and opinions provided a clear and convincing reason for not relying on that doctor's opinion), the ALJ provided another specific and legitimate reason for rejecting Dr. Pollack's opinion.
The District Court Executive is directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and
