JAMES P. DONOHUE, Chief Magistrate Judge.
Plaintiff Jennifer A. Overby appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") that denied her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and REMANDED for further administrative proceedings.
Plaintiff is a 38-year-old woman with a high school diploma. Administrative Record ("AR") at 228. Her past work experience includes employment as a photographer. AR at 252. Plaintiff was last gainfully employed in 2004. Id.
On March 21, 2012, Plaintiff protectively filed a claim for SSI payments, alleging an onset date of June 23, 2006. AR at 213-18, 223. Plaintiff asserts that she is disabled due to heart problems, thyroid cancer, hormonal imbalances, depression, headaches, back problems, shortness of breath, and anxiety. AR at 227.
The Commissioner denied Plaintiff's claim initially and on reconsideration. AR at 104-07, 113-18. Plaintiff requested a hearing, which took place on November 7, 2013, in Columbus, Ohio. AR at 41-76. On December 11, 2013, the ALJ issued a decision finding Plaintiff not disabled and denied benefits based on his finding that Plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 10-25. Plaintiff's administrative appeal of the ALJ's decision was denied by the Appeals Council, AR at 1-6, making the ALJ's ruling the "final decision" of the Commissioner as that term is defined by 42 U.S.C. § 405(g). On July 20, 2015, Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1, 3.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
As the claimant, Ms. Overby bears the burden of proving that she is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is 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). A claimant is disabled under the Act only if her impairments are of such severity that she is unable to do her previous work, and cannot, considering her age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform her past relevant work, she is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On December 11, 2013, the ALJ found:
AR at 12-25.
The principal issues on appeal are:
1. Whether the ALJ erred in assessing medical opinion evidence; and
2. Whether the ALJ erred in discounting Plaintiff's credibility. Dkt. 11 at 1-2.
Plaintiff argues that the ALJ erred in discounting opinions provided by treating physician Jennifer Dickerson, M.D.; and treating psychiatrist Walter Stearns, M.D. Plaintiff also argues that the ALJ erred in failing to address the opinion of examining psychologist Marc Miller, Ph.D., and in failing to account for all of the limitations identified by State agency reviewing psychologist Mary Hill, Ph.D., even though the ALJ purported to credit Dr. Hill's opinion. The Court will address each disputed opinion in turn.
As a matter of law, more weight is given to a treating physician's opinion than to that of a non-treating physician because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes, 881 F.2d at 751; see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician's opinion, however, is not necessarily conclusive as to either a physical condition or the ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, the ALJ must give clear and convincing reasons for doing so if the opinion is not contradicted by other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1988). "This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state his/her conclusions. "He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such conclusions must at all times be supported by substantial evidence. Reddick, 157 F.3d at 725.
The opinions of examining physicians are to be given more weight than non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Like treating physicians, the uncontradicted opinions of examining physicians may not be rejected without clear and convincing evidence. Id. An ALJ may reject the controverted opinions of an examining physician only by providing specific and legitimate reasons that are supported by the record. Bayliss, 427 F.3d at 1216.
Opinions from non-examining medical sources are to be given less weight than treating or examining doctors. Lester, 81 F.3d at 831. However, an ALJ must always evaluate the opinions from such sources and may not simply ignore them. In other words, an ALJ must evaluate the opinion of a non-examining source and explain the weight given to it. Social Security Ruling 96-6p, 1996 WL 374180, at *2 (Jul. 2, 1996). Although an ALJ generally gives more weight to an examining doctor's opinion than to a non-examining doctor's opinion, a non-examining doctor's opinion may nonetheless constitute substantial evidence if it is consistent with other independent evidence in the record. Thomas, 278 F.3d at 957; Orn, 495 F.3d at 632-33.
Dr. Dickerson wrote a narrative letter describing Plaintiff's treatment history and also completed a physical capacity evaluation form opinion in June 2013. AR at 609-11. The ALJ gave Dr. Dickerson's opinions partial weight, rejecting her opinion that Plaintiff was limited to four hours of sitting per workday and that Plaintiff is likely to be absent from work at least five days per month, finding those restrictions to be unsupported by objective evidence. AR at 22. The ALJ also indicated that Dr. Dickerson "relied quite heavily on the subjective reports of symptoms and limitations provided by the claimant, and that she uncritically accepted as true most, if not all, of what the claimant reported." AR at 22. The ALJ stated that because Plaintiff's subjective reports were not entirely reliable (for reasons explained elsewhere in the decision), Dr. Dickerson's reliance on those statements undermined the reliability of her opinions. Id.
Plaintiff argues that the ALJ erred in rejecting Dr. Dickerson's opinion about Plaintiff's absenteeism, because the ALJ's reasons for doing so are not legitimate. Dkt. 11 at 5. Specifically, Plaintiff argues that the record shows that Dr. Dickerson performed many clinical tests and was very familiar with Plaintiff's conditions due to frequent visits. Dkt. 11 at 5-7. That may be correct, but neither Dr. Dickerson nor Plaintiff cites any clinical evidence specifically related to absenteeism. Dr. Dickerson does not explain the basis for this opinion in her narrative report, either. AR at 609. As noted by the Commissioner, Plaintiff's medical records show that her cardiac condition was improving with treatment and medication (Dkt. 14 at 6-7), and Dr. Dickerson even recommended an increase in aerobic activity prior to writing her opinion. See AR at 566, 572. Thus, the ALJ did not err when finding that Dr. Dickerson's opinion as to Plaintiff's absenteeism was unsupported by the record.
This is a specific, legitimate reason to reject this portion of Dr. Dickerson's opinion. Thomas, 278 F.3d at 957 ("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."). Accordingly, the ALJ did not err in discounting Dr. Dickerson's opinion in this regard.
Dr. Stearns completed a form opinion describing Plaintiff's mental RFC, after a few months of psychiatric treatment with Dr. Stearns. AR at 612-14. Dr. Stearns described marked and extreme limitations in Plaintiff's social functioning, and moderate limitations in Plaintiff's concentration and persistence. Id. Dr. Stearns indicated that Plaintiff would not be expected to be absent from work five or more days per month, but that her condition would deteriorate if placed under stress. AR at 614.
The ALJ found Dr. Stearns' opinion to be out of proportion to the remaining objective evidence of record[,]" with "nothing in Dr. Stearns['] own reports relating to the claimant that would support such limitations." AR at 22-23. The ALJ speculated that Dr. Stearns may have felt pressured to provide an opinion to satisfy Plaintiff's requests. Id. The Court agrees with Plaintiff that the ALJ's speculation as to the reasons why Dr. Stearns opined as he did is not a legitimate reason to discount the opinion, but nonetheless finds support in the record for the ALJ's finding that Dr. Stearns' opinion is inconsistent with his own treatment notes. See AR at 616-21.
Plaintiff focuses her challenge to the ALJ's assessment of Dr. Stearns' opinion on the speculative portion of the ALJ's reasoning, but does not establish that the ALJ's other line of reasoning (as to Dr. Stearns' opinion being unsupported and inconsistent with the many less severe findings in the treatment record) is erroneous, thereby failing to show harmful error in the ALJ's reasoning. Dkt. 15 at 4-5. Plaintiff also mischaracterizes the Commissioner's argument: the Commissioner does not contend that the ALJ's RFC assessment is consistent with Dr. Stearns' opinion. Dkt. 15 at 5. Instead, the Commissioner argues that the ALJ reasonably found Dr. Stearns' opinion to be unsupported. Dkt. 14 at 8. The Court agrees with that argument, and accordingly finds no harmful error in the ALJ's assessment of Dr. Stearns' opinion.
Dr. Miller performed a consultative examination of Plaintiff in June 2012 and wrote a narrative report describing her symptoms and limitations. AR at 527-32. In her opening brief, Plaintiff argues that the ALJ ignored Dr. Miller's opinion and "simply failed to address it." Dkt. 11 at 10. Plaintiff is incorrect. The ALJ discussed Dr. Miller's opinion in detail, and indicated that his RFC assessment was consistent with Dr. Miller's opinion. AR at 14, 16-17, 18. The Commissioner argues that the ALJ's discussion of Dr. Miller's opinion, as well as his assertion that the RFC assessment is consistent with Dr. Miller's opinion, is sufficient consideration of the opinion, even in the absence of a specific weight assigned to the opinion. Dkt. 14 at 9.
Plaintiff argues in her reply brief that the ALJ did not adequately consider Dr. Miller's opinion because the ALJ did not address the opinion that Plaintiff would have difficulty dealing with the stress and pressure of work. Dkt. 15 at 6 (citing AR at 531). But the ALJ's RFC assessment specifically limits Plaintiff to "low stress work," defined to mean work that does not involve "goal-based production;" does not involve more than occasional changes in the work setting, or more than occasional interaction with supervisors, co-workers, and the public; and that permits up to 5% of the workday to be spent off-task. AR at 18. Dr. Miller did not indicate what type of "difficulty" Plaintiff would have with stress and work pressure, or indicate any particular functional limitations that would result. AR at 531. Plaintiff cannot show that the ALJ's RFC assessment is inconsistent with Dr. Miller's opinion, and thus has not shown error. See Turner v. Comm'r of Social Sec. Admin., 613 F.3d 1217, 1222-23 (9th Cir. 2010).
Upon reconsideration by the State agency, Dr. Hill opined that Plaintiff's "psych [symptoms] will limit [concentration, persistence, and pace] and her ability to tolerate normal work pressures. [Plaintiff] able to perform 1-4 step tasks w/no multi-tasking and no strict time limitations." AR at 99. Plaintiff argues that the ALJ did not adequately account for this opinion in the RFC assessment, because the ALJ did not include all of the limitations opined by Dr. Hill in the RFC assessment.
The Commissioner argues that the RFC assessment is not inconsistent with Dr. Hill's opinion, and therefore adequately accounts for Dr. Hill's opinion. Dkt. 14 at 10. While the Court found such an argument persuasive as to Dr. Miller's opinion, because Dr. Miller's opinion was stated in more general terms and did not present a specific inconsistency with the ALJ's RFC assessment, Dr. Hill's opinion is more detailed. Dr. Hill specifically identified functional limitations that would result from Plaintiff's psychiatric symptoms, and the ALJ did not include those functional limitations in the RFC assessment or explain why those limitations were not credited. The ALJ's restriction on goal-based production quotas is arguably consistent with Dr. Hill's opinion regarding "strict time limitations[,]" but the restrictions as to 1-4-step tasks and multi-tasking are not addressed in the ALJ's RFC assessment. Some of the jobs identified by the vocational expert (AR at 24) could be, however, consistent with a restriction to 1-4-step tasks. See DOT 713.687-018, 1991 WL 679271 (identifying the job as requiring reasoning level 1 (involving one- or two-step tasks)); DOT 729.684-018, 1991 WL 679720 (identifying the job as requiring reasoning level 2 (involving "uninvolved written or oral instructions). The impact of a restriction on multi-tasking is not clear.
Accordingly, on remand, the ALJ shall reconsider Dr. Hill's opinion and either account for all portions of the opinion, or provide reasons to discount it.
The ALJ provided a number of reasons to discount the credibility of Plaintiff's subjective complaints. First, the ALJ found Plaintiff's allegations of an inability to work due to chest pain and shortness of breath to lack credibility in light of the medical evidence showing the stability of Plaintiff's symptoms and the evidence related to her activities, including traveling, volunteering, and household activities. AR at 19-20. Second, the ALJ found that Plaintiff's allegation of work limitations due to headaches lacked credibility because her minimal treatment was conservative in nature and no treating or examining physician ever opined that Plaintiff's headaches caused functional limitations. AR at 20. Lastly, as to Plaintiff's allegations of mental limitations, the ALJ found that Plaintiff's minimal, conservative treatment for psychiatric conditions, as well as Dr. Miller's opinion, indicates that her conditions are not as severe as alleged. AR at 20-21. The ALJ also referenced his findings at step two regarding the "paragraph B" criteria, as support for his finding that Plaintiff's mental functional limitations did not preclude work. AR at 21. The Court will consider each of Plaintiff's challenges to the ALJ's credibility rationale in turn.
As noted above, credibility determinations are within the province of the ALJ's responsibilities, and will not be disturbed, unless they are not supported by substantial evidence. A determination of whether to accept a claimant's subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281; SSR 96-7p. First, the ALJ must determine whether there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82; SSR 96-7p. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms solely because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick, 157 F.3d at 722. Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722.
When evaluating a claimant's credibility, the ALJ must specifically identify what testimony is not credible and what evidence undermines the claimant's complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ may consider "ordinary techniques of credibility evaluation" including a reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Smolen, 80 F.3d at 1284; see also Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
Plaintiff argues that the ALJ erred in assessing the credibility of her cardiac symptoms (chest pain and shortness of breath) for a number of reasons. First, Plaintiff argues that the ALJ misrepresented her allegations, because she never claimed to be completely incapacitated by her cardiac symptoms. Dkt. 11 at 12. The ALJ did not state that Plaintiff claimed to be unable to work due solely to cardiac symptoms; Plaintiff herself identified her cardiac symptoms as a reason she could not work. See AR at 49-50. The Court finds that the ALJ did not misrepresent Plaintiff's allegations.
Plaintiff also argues that the ALJ erred in relying on her daily activities to discredit her cardiac symptoms, because the ALJ did not explain how these activities either contradict her testimony or demonstrate transferable work skills. The Court agrees, and finds this line of reasoning to be erroneous. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (activities may undermine credibility where they (1) contradict the claimant's testimony or (2) "meet the threshold for transferable work skills"). The ALJ also provided another reason to discredit Plaintiff's allegations related to her cardiac condition — namely her conservative treatment (AR at 19-20) — and Plaintiff does not challenge this portion of the ALJ's reasoning. This reason is clear and convincing. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008). Accordingly, the ALJ's reasoning as to Plaintiff's daily activities is harmless error. See Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
Plaintiff does not challenge the ALJ's rationale with respect to her allegations of headaches, but does dispute whether her minimal treatment for mental health complaints is a convincing reason to discount her credibility. Dkt. 11 at 14. Plaintiff argues that the ALJ should have considered whether her "inability to afford health care might provide an adequate explanation as to why she had not received mental health treatment." Id. Plaintiff cites no portion of the record suggesting that she did not receive treatment due to an inability to pay, and speculation in a brief does not amount to substantial evidence. Accordingly, Plaintiff has not established error in this line of the ALJ's reasoning.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit by no later than
This Report and Recommendation is not an appealable order. Thus, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge acts on this Report and Recommendation.
