BRIAN A. TSUCHIDA, Magistrate Judge.
Plaintiff Matthew A. Goodman appeals the denial of his application for Disability Insurance Benefits. He contends the ALJ erred by (
Mr. Goodman applied for a closed period of disability from
The ALJ held a July 2016 hearing and issued a decision in October 2016. Tr. 24-43, 49-86. The ALJ found that during his closed period of disability from February 23, 2013 to June 8, 2016, Mr. Goodman had the following severe impairments: post-traumatic stress disorder ("PTSD") with traumatic brain injury ("TBI") and headaches; degenerative disc disease of the cervical spine; and lumbar spondylosis with radiculopathy status/post three surgeries. Tr. 27-31. The ALJ assessed residual functional capacity ("RFC") as follows:
Tr. 34 (emphasis added). The ALJ found that Mr. Goodman could not return to his past work, but that he could perform several jobs that exist in significant numbers in the national economy: production assembler; assembler, electrical accessories; and cleaner, housecleaning. Tr. 42-43. Because of this, the ALJ found Mr. Goodman to be not disabled. Tr. 43. As the Appeals Council denied his request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.
The Court will reverse the ALJ's decision only if it was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ's decision may not be reversed on account of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner's interpretation. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Mr. Goodman contends that the ALJ erred by: (
Mr. Goodman argues the ALJ erred by declining to find him disabled throughout the closed period or, at a minimum, from February 23, 2013 to August 4, 2014, because the record demonstrates that the frequency of medical treatment precluded consistent attendance at work. Dkt. 10, 4-7. The Court disagrees.
In an unpublished opinion, the Eleventh Circuit addressed Mr. Goodman's assertion:
Cherkaoui v. Commissioner of Social Security, 678 Fed. Appx. 902, 904 (11th Cir. 2017). Similarly, also in an unpublished decision, the Tenth Circuit rejected the claimant's argument that he was precluded from work because his physician noted that post-surgery claimant would need to miss work at least three times per month:
Razo v. Colvin, 663 Fed. Appx. 710, 717 (10th Cir. 2016).
The Court agrees with the Cherkaoui and Razo courts to the extent that the proper focus must be the functional limitations and restrictions resulting from medically determinable impairments. See SSR 96-8p, 1996 WL 374184. That is, the Court rejects that frequency of medical appointments alone can be considered a disabling medical impairment. Accepting such a proposition would presume disability for anyone who frequently visited a doctor regardless of the necessity of the treatment or the medical prognosis. Moreover, it would presume functional disability for those in Mr. Goodman's position in the Warrior Transition Unit whose primary responsibilities are to attend medical appointments while awaiting discharge from the military. This is not to say that frequency of medical treatment is irrelevant; rather, it means that to be disabling, the frequency of medical treatment must be necessitated by the medical condition and be substantiated by the evidence. The regulations suggest the necessity of such a linkage, for example, via Listing 6.03, which presumes disability for kidney disease with chronic hemodialysis or peritoneal dialysis.
The Court is unpersuaded by Mr. Goodman's narrative citation to the frequency of his medical appointments during the closed period. Dkt. 10, at 5-7 & n.2. No physician opined that Mr. Goodman would frequently miss work due to medical appointments. Nothing suggests that Mr. Goodman could not have scheduled his medical appointments outside of working hours such that being employed would have been precluded for more than 12 months. Moreover, the content of the medical treatment records and Mr. Goodman's own testimony contradict his assertion that the frequency of medical appointments was necessitated by debilitating impairments. For example, in July 2013, i.e., two months after back surgery, the treating nurse noted that Mr. Goodman played 18 holes of golf. Tr. 661. Similarly, on April 29, 2014, Mr. Goodman was released without limitations and stated that his goals for May 2014 included golfing three times a week, rebuilding his truck daily, scuba diving twice a week, riding horseback once a week, participating in archery once a week, glassblowing once a week, and attending a Boy Scout retreat. Tr. 542, 544. At the hearing, Mr. Goodman testified that during the relevant period he did not leave his job at Harris Transportation Company due to physical or mental limitations but because the position entailed a night shift and that such a schedule did not "fit" being a father.
The ALJ did not harmfully err by declining to find that the frequency of medical treatment during the closed period precluded his consistent attendance at work for longer than 12 months.
Mr. Goodman argues that the ALJ erred by declining to consider all of his limitations when assessing RFC, that is, to consider the limitations in the same way the VA did in making its determination of disability. The Court finds that the ALJ did not harmfully err by failing to consider his limitations in the same manner as the VA.
With respect to VA benefits, the VA found Mr. Goodman to be 100% disabled based on a number of limitations, attributing predominance to mental limitations: (1) intervertebral disc syndrome with herniated disc ("IVDS"), status post laminectomy and discectomy (also claimed as low back pain), 20%; (2) posttraumatic stress disorder ("PTSD") and depressive disorder, not otherwise specified with traumatic brain injury ("TBI") with cognitive dysfunction and photophobia (claimed as bilateral eye condition), 70%; (3) lumbar radiculopathy, left lower extremity involving the sciatic nerve due to lumbar IVDS, 20%; (4) temporomandibular joint disorder ("TMJ") (claimed as bilateral jaw surgery), 20%; (5) right shoulder strain (dominant), 10%; (6) left wrist tendonitis (non-dominant), 10%; (7) degenerative disc disease, cervical spine (claimed as neck pain), 10%; (8) left foot heel spur and plantar fasciitis, 10%; (9) tinnitus due to TBI, 10%; and (10) paresthesia of the jaw status post maxillary and mandibular surgery (claimed as bilateral jaw surgery), 10%. Tr. 948-49. Although a VA rating of disability does not compel the SSA to reach an identical result, an ALJ must ordinarily give great weight to a VA determination of disability. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). This is so due to the marked similarity between the two federal disability programs. Id. "Because the VA and SSA criteria are not identical, however, the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record." Id.
The ALJ found that the combined impact of the impairments the VA found to be disabling caused limitations that would still permit civilian light work under the standards applicable to an SSA disability analysis. Tr. 39-41. The ALJ noted that Mr. Goodman's "PTSD symptoms, which comprise the majority of his VA disability rating, were found to satisfy retention standards." Tr. 39. In December 2013, the Medical Evaluation Board opined that "[t]he preponderance of the evidence reflects that [behavioral health] symptoms do not interfere with effective duty performance, necessitate duty limitations, or require recurrent/extended hospitalization" and that "Posttraumatic Stress Disorder MEETS retention standards." Tr. 324-25. Similarly, the ALJ noted that the VA acknowledged that a TBI screening in February 2013, the month Mr. Goodman alleged he became disabled, was negative for cognitive functioning impairment. Tr. 40; see Tr. 323, 952. The Medical Evaluation Board noted "there is no evidence supporting that this condition [TBI], individually or in combination impact[s] his ability to perform DA 3349 [physical profile] functional activities, significantly limit[s] or interfere[s] with his performance of duties, would compromise or aggravate his health or well-being if he were to remain in the military." Tr. 323. The ALJ noted that the VA combined PTSD and TBI into one disability evaluation of 70% even while indicating that PTSD was the "more predominant disability based on the statement from the TBI examiner that symptoms were likely due to PTSD, but only on speculation." Tr. 40 (quoting and emphasizing text from Tr. 953). The ALJ then declined to accept the VA's speculation because the objective and other medical evidence did not establish that Mr. Goodman's mental and physical conditions precluded him from performing all light work during the relevant period. Tr. 40. For example, the ALJ noted that while the VA assigned TBI residuals, such as headaches, tinnitus, hearing loss, speech difficulty, and cognitive dysfunction as minimal compensable evaluations—none of which preclude all light work—the record contained no neurological evaluations and very little evidence of these conditions. Tr. 40 (citing Tr. 952). Similarly, the ALJ noted that the VA acknowledged that for Mr. Goodman's PTSD and TBI, the results in the treatment records showed much less severity than the results of a later examination. Id. (citing Tr. 952). The ALJ thus cited specific examples of the inconsistency between the VA's disability determination and the rest of the record. See 209 C.F.R. § 404.1527(c)(4).
The ALJ also cited evidence that Mr. Goodman's activities contradicted the VA's disability rating. An ALJ may discount an opinion to the extent it conflicts with a claimant's daily activities. Morgan v. Commissioner of the SSA, 169 F.3d 595, 601-02 (9th Cir. 1999). The ALJ noted that in 2014 Mr. Goodman was released without limitations and had immediate goals of playing golf three times per week, rebuilding his truck daily, and participating in glassblowing, horseback riding, archery, and scuba diving. Tr. 40 (citing Tr. 542, 544). In July 2013, two months after re-do microdisc surgery, he played 18 holes of golf, Tr. 40 (citing Tr. 675); in October 2013 (less than a month after fusion surgery), he reported walking and going to the zoo as well as driving to the clinic for exams, Tr. 40 (citing Tr. 639, 643); and he regularly reported no behavioral health issues throughout the requested period, Tr. 40 (citing Tr. 651, 661, 721, 727). On his function report, Mr. Goodman noted that he could walk about a mile before he needed to stop; he had no issues with following instructions; he could pay attention until the task was done; and provided primary care for his young, twin sons. Tr. 40-41, 248, 252. Mr. Goodman also traveled for a Seattle internship with the FBI. Tr. 40-41, 546, 682, 861.
Contrary to Mr. Goodman's assertion, the ALJ considered the combined effects of all of Mr. Goodman's medical conditions but declined to find them to be debilitating because of the medical record, his extensive daily activities, the lack of need for pain medication, and the absence of mental-health treatment. See Tr. 28-41. The Court finds that the ALJ cited persuasive, specific, valid reasons for discounting the VA's disability determination that are supported by the record and did not harmfully err by declining to assess RFC in the same way the VA did in making its determination of disability.
Mr. Goodman contends that the ALJ harmfully erred by summarily rejecting the VA's assigned GAF score of 53, which would indicate moderate symptoms or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Court disagrees.
The ALJ gave little weight to the GAF score because the American Psychiatric Association, which created the GAF score system, no longer endorses the use of GAF scores due to the system's inherent limitations; the GAF scale never had a direct correlation to the severity requirements in the mental disorders Listings under the Social Security Act; and the SSA has rejected the GAF score as a method of evaluating the severity of impairments. Tr. 30 & n.1; see American Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 16 (5th ed. 2013) ("DSM-V"); McFarland v. Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008); 65 Fed Reg. 50746, 50764-65 (Aug. 21, 2000). To the extent the ALJ erred by determining that the VA's assigned GAF score was per se unreliable, the Court finds the error to be harmless. Mr. Goodman fails to identify how giving weight to the VA's assigned GAF score would have altered the ALJ's RFC assessment. The RFC assessment limited Mr. Goodman to occasional public contact, and throughout the decision the ALJ evaluated the functional impact of Mr. Goodman's mental impairments in greater detail than can be expressed in a GAF score of 53.
The ALJ did not harmfully err by giving little weight to the VA's assigned GAF score.
Mr. Goodman argues that the ALJ harmfully erred by ignoring his wife's first lay statement and by failing to mention what weight was given to either of his wife's lay statements. The Court disagrees.
An ALJ must provide a germane reason to discount the testimony of a lay witness. Dodrill v. Shalala, 12 F.3d 915, 918-919. Although the ALJ did not state explicitly that she was rejecting or discounting Ms. Goodman's testimony, her discussion of Ms. Goodman's statements in the context of finding only a mild restriction in the activities of daily living demonstrates that she found the statements to be internally inconsistent and inconsistent with the balance of the record. See Tr. 32, 38.
First, contrary to Mr. Goodman's assertion, the ALJ considered his wife's first lay statement in 2015 (cited as Exhibit 10E), compared it to the second lay statement in 2016 (cited as Exhibit 19E), found the two statements to be inconsistent, and suggested only a mild restriction to activities of daily living:
Tr. 32 (emphasis added). Second, in the discussion following the ALJ's evaluation of Ms. Goodman's statements, the ALJ referred to medical evidence that supported only a mild restriction to activities of daily living and to medical and other evidence that showed moderate difficulties in social functioning and concentration, persistence, or pace. Tr. 32-33.
Thus, to the extent the ALJ erred by failing to explicitly state a germane reason for discounting Ms. Goodman's lay testimony, that error was harmless. The ALJ considered his wife's lay statements and accepted them only to the extent they supported a mild restriction in the activities of daily living. Tr. 32-33. The ALJ accepted in-part Ms. Goodman's lay testimony about social difficulties by limiting Mr. Goodman to occasional public contact in the RFC assessment. See Tr. 34. Moreover, Ms. Goodman's lay testimony is duplicative of Mr. Goodman's own testimony about his limitations. Mr. Goodman does not challenge the ALJ's reasons for discrediting his personal testimony about symptoms.
The Court finds that the ALJ did not harmfully err in her treatment of Ms. Goodman's lay testimony.
Mr. Goodman contends that the ALJ erred by failing to explain adequately why nonexamining physician Dr. Platter's physical RFC assessment was discounted. The Court disagrees.
Non-examining physician Dr. Platter opined that Mr. Goodman had the physical RFC to perform what amounts to sedentary work: lifting/carrying 10 pounds occasionally, less than 10 pounds frequently; standing/walking 2 hours out of an 8 hour day; and sitting for 6 of 8 hours. Tr. 108. The ALJ gave partial weight to this opinion because Mr. Goodman's "activities of daily living, his work attempts, and his limited use of medication show that [he] is capable of performing light exertion." Tr. 38.
An ALJ may reject the opinion of a non-examining physician by referring to specific evidence in the medical record. Throughout the decision, the ALJ referred to specific evidence of: Mr. Goodman's extensive physical activity, such as golfing and providing primary care for his twins; work attempts in which he was not physically limited; and Mr. Goodman's choice, after detoxing from opioids, not to use pain medication during much of the relevant period. Tr. 34-41. For example, at the hearing Mr. Goodman testified that he had "no physical issues" with his work hauling fuel for Harris Trucking and left his position driving for H and E based on non-physical issues. Tr. 66. Moreover, in the position he took at the Rescue Mission that marked the end of the relevant period in June 2016, i.e., five months after Dr. Platter rendered his opinion, Mr. Goodman testified that he was lifting "a few" boxes of paper, each weighing about 50 pounds, and that he was generally engaged in "[w]arehouse work" involving "pushing carts, lifting pallets of pallet jacks, moving them around." Tr. 77.
The ALJ did not harmfully err by discounting non-examining physician Dr. Platter's physical RFC assessment.
Mr. Goodman contends that the ALJ erred at step five by posing questions to the VE that were deficient because they did not include all of his limitations, such as an inability to work consistently due to medical appointments or the limitations considered in the VA's disability determination. Because Mr. Goodman has failed to demonstrate that the ALJ erred in assessing RFC, the Court rejects Mr. Goodman's contention that the hypotheticals posed to the VE were deficient based on an inaccurate RFC assessment.
Mr. Goodman argues that the ALJ's step five finding was not supported by the evidence because the VE testified to job numbers that have been contradicted by evidence presented to the Appeals Council. The Court disagrees.
At the hearing, the VE testified that a person with Mr. Goodman's assessed RFC could perform three light work jobs: production assembler, DOT 706.687-010, 20,570 jobs nationally and 348 jobs in the state of Washington; assembler, electrical accessories, DOT 729.687-010, 42,068 jobs nationally and 837 in Washington; and cleaner, housekeeping, DOT 323.687-014, 76,968 jobs nationally and 1,377 jobs in Washington. Tr. 79. Although Mr. Goodman did not object to the VE's qualifications or to the VE's job-numbers testimony, he submitted to the Appeals Council a sworn declaration by a private VE, Joseph A. Moisan, Ed. D., that the job numbers were incorrect with respect to two of the three jobs: production assembler and assembler, electrical accessories. Dkt. 10, at 20-37. Dr. Moisan attacked the hearing VE's methodology and stated the following job numbers: production assembler, 677 jobs nationally and 7 jobs in the state of Washington; assembler, electrical accessories, 270 jobs nationally and 3 in Washington; and the same numbers as the VE for cleaner, housekeeping. Dkt. 10, at 29. According to Dr. Moisan, only the job of cleaner, housekeeping existed in significant numbers; however, cleaners, housekeeping are required to be on their feet the entire time they are working, well beyond the six-hour limit for work at the light exertional level. Id. The Appeals Council considered Dr. Moisan's declaration but found it was not relevant to Mr. Goodman's claim for disability. Tr. 2.
The Commissioner argues that the Court need not consider Dr. Moisan's testimony because it was reasonable for the ALJ to accept as substantial evidence VE testimony that was never challenged until after the hearing was over. Dkt. 11, at 8. That is, the Commissioner implicitly argues that "when a claimant fails entirely to challenge a vocational expert's job numbers during administrative proceedings before the agency, the claimant waives such a challenge on appeal." Shaibi v. Berryhill, ___ F.3d ___, 2017 WL 3598085, at *6 (9th Cir. Aug. 22, 2017). Mr. Goodman responds that he was deprived of the opportunity to object at the hearing because the ALJ did not respond to a pre-hearing request for a subpoena duces tecum that would have allowed him to scrutinize the information on which the VE relied. Dkt. 12, at 8.
The Court finds the holding of Shaibi to be inapplicable here because Mr. Goodman challenged the VE's testimony "during administrative proceedings," and the Appeals Council considered but substantively rejected Dr. Moisan's testimony. Generally, when a VE's testimony on job numbers conflicts with the Medical-Vocational Guidelines, the ALJ must "clarif[y] and develop[] the record." Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989). The vast discrepancy between the VE's job numbers for two of the three positions and those tendered by Dr. Moisan are too striking to be ignored and would warrant a remand under different circumstances. See, e.g., Buck v. Berryhill, ___ F.3d ___, 2017 WL 3862450 (Sept. 5, 2017). Here, however, the Commissioner's failure to reconcile the conflict between the VE's hearing testimony and Dr. Moisan's testimony is harmless because the parties agree about the job numbers for a cleaner, housekeeping, DOT 323.687-014, and disagree only on the question of whether the position constitutes "light work." Dr. Moisan provided no support for his conclusion that, contrary to the DOT definition, the position of cleaner, housekeeping DOT 323.687-014 entails more than light work.
In assessing RFC, the ALJ stated that Mr. Goodman could perform "
The ALJ did not harmfully err by relying on the VE's testimony that Mr. Goodman could perform the requirements of a light-work job that exists in substantial numbers in the national economy: cleaner, housekeeping DOT 323.687-014.
For the foregoing reasons, the Commissioner's decision is
