JAMES P. DONOHUE, Chief Magistrate Judge.
Plaintiff Karen Palmer appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") that denied her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court AFFIRMS the Commissioner's decision.
Plaintiff is a 57-year-old woman with a high school diploma and vocational training in medical terminology. Administrative Record ("AR") at 289. Her past work experience includes employment as a church secretary, medical records clerk, and receptionist. Id. Plaintiff was last gainfully employed in September 2011. Id.
In April 2013, Plaintiff filed an application for DIB, alleging an onset date of September 2, 2011.
The Commissioner denied Plaintiff's application initially and on reconsideration. AR at 168-74, 177-81. Plaintiff requested a hearing, which took place on January 14, 2015; April 6, 2015; and August 10, 2015. AR at 45-117. On September 18, 2015, the ALJ issued a decision finding Plaintiff not disabled and denied benefits based on his finding that she could perform her past work as a receptionist, as well as other specific jobs existing in significant numbers in the national economy. AR at 20-33. 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 April 3, 2017, Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1, 11.
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. Palmer 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 September 18, 2015, the ALJ found:
AR at 22-33.
The principal issues on appeal are:
Dkt. 18 at 1.
The ALJ discounted Plaintiff's subjective statements for a number of reasons: (1) the evidence showed that her lymphedema required less treatment and imposed less restrictions than she alleged; (2) her Morton's neuroma had not prevented work in the past and she did not seek out any treatment for it; (3) her insomnia and mental impairments improved with medication and with abstention from alcohol; and (4) her daily activities demonstrate that she can perform many functions and activities. AR at 26-28. Plaintiff argues that the ALJ's reasons are not clear and convincing, as required in the Ninth Circuit.
As noted above, it is the province of the ALJ to determine what weight should be afforded to a claimant's testimony, and this determination will not be disturbed unless it is 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. 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. 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 v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony.
When evaluating a claimant's subjective symptom testimony, 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 claimant's 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 alleged symptoms. Thomas, 278 F.3d at 958-59 (citing Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
Plaintiff described a process by which her right arm lymphedema must be massaged and wrapped every six months or yearly in order to reduce in size (AR at 68-69, 479), but admitted at the hearing that she had not undergone this procedure in about four years. AR at 70. During some of that time, she had not had insurance, but even since she obtained insurance, she had not obtained treatment for her arm. AR at 70-71.
Lack of treatment for a purportedly disabling condition is a clear and convincing reasons to discount a claimant's subjective testimony. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Plaintiff argues that the ALJ erred in discounting her statements due to lack of treatment, because the treatment available did not actually restore functionality. Dkt. 18 at 8. Plaintiff also argues that the ALJ erred in overlooking the impact of her lack of insurance. Dkt. 18 at 9.
As evidence that her treatment would not restore functionality, Plaintiff cites the opinion of an examining physician, Ron Nielsen, M.D., but Dr. Nielsen did not so opine. Dkt. 18 at 9 (citing AR at 482). Dr. Nielsen indicated that treatment would not "resolve the situation[,]" but did not address the impact of the treatment on functionality. AR at 482. Moreover, Dr. Nielsen indicated that Plaintiff retained the ability to carry 10 pounds occasionally with the right arm, and had no restrictions as to reaching, handling, fingering, or feeling, other than a prohibition on repetitive motions with the right arm. AR at 482-83. Dr. Nielsen's opinion does not describe a total loss of functionality due to the lymphedema, even though it had been three years since treatment. The ALJ gave great weight to Dr. Nielsen's opinion, which supports the ALJ's interpretation of Plaintiff's subjective testimony. See AR at 28.
Also, contrary to Plaintiff's briefing, the ALJ did expressly acknowledge Plaintiff's testimony that her lack of insurance prevented her from obtaining treatment for her lymphedema. AR at 27. The ALJ also noted, however, that even after Plaintiff did get insurance, she still did not seek treatment. Id.
Plaintiff has not shown that the ALJ erred in assessing the reliability of her statements regarding her lymphedema and its limiting effects.
Plaintiff does not challenge the ALJ's findings regarding her Morton's neuroma. See AR at 27. This reasoning supports the ALJ's determination regarding Plaintiff's subjective testimony.
The ALJ cited Plaintiff's improvement as to insomnia and mental health impairments with medication as a reason to discount her allegations (AR at 27), and Plaintiff contends that the impact of this evidence on the reliability of her testimony is not clear. Dkt. 18 at 9. The ALJ's finding connects to Plaintiff's allegations that her mental health impairments are disabling. See, e.g., AR at 288 (listing anxiety and depression as disabling conditions). To the extent that Plaintiff's depression improved with medication (AR at 539), the ALJ did not err in finding that this evidence undermined an allegation that the depression is disabling. See, e.g., Warre v. Comm'r of Social 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 SSI benefits.").
The Court agrees with Plaintiff that the ALJ's list of activities does not explain why those activities either contradict her testimony or demonstrate transferable work skills. See AR at 27. Accordingly, the ALJ improperly relied on activities as a reason to discount Plaintiff's testimony. 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").
This error is harmless, however, in light of the ALJ's other valid reasons to discount Plaintiff's subjective testimony, one of which is unchallenged. See Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008).
Plaintiff's husband, Mike Palmer, testified at the April 2015 hearing. AR at 88-94. The ALJ summarized Mr. Palmer's testimony and explained that he afforded only "some weight" to the testimony because
AR at 30.
If an ALJ chooses to discount testimony of a lay witness, he must provide "reasons that are germane to each witness," and may not simply categorically discredit the testimony. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
The Commissioner concedes that some of the ALJ's reasons for discounting Mr. Palmer's testimony are not sufficiently germane. Dkt. 19 at 6-7. Specifically, the Commissioner concedes that the ALJ erred in discounting Mr. Palmer's testimony because he is a laywitness and related to Plaintiff. Id.
But, as noted by the Commissioner, the ALJ also found that Mr. Palmer did not describe very detailed observations of Plaintiff's limitations or abilities. See AR at 30. Indeed, Mr. Palmer testified that he was gone most of the day and did not witness Plaintiff's activities or limitations (AR at 89), was not aware of how often Plaintiff wore a sleeve for her lymphedema (AR at 92), and could not specify the quantity of alcohol Plaintiff consumed or whether she was consuming more or less than in the past (AR at 92-94). This lack of specificity renders Mr. Palmer's testimony less probative to the ALJ's assessment of Plaintiff's impairments and limitations, and serves as a germane reason to discount Mr. Palmer's testimony. Thus, the ALJ's erroneous reasoning is harmless. See Carmickle, 533 F.3d at 1162-63.
Plaintiff has alleged that the ALJ erred at step four in finding that she could perform her past work as a receptionist, because Plaintiff contends that the ALJ's RFC assessment conflicts with the receptionist position as defined in the Dictionary of Occupational Titles ("DOT"). Specifically, the ALJ's RFC assessment limits Plaintiff to performing work that, inter alia, "does not require performing repetitive motions for more than two minutes at a time with the right hand; that does not require consistent pushing or pulling with the right arm; that does not require more than occasional overhead reaching with the right upper extremity[.]" AR at 25. Plaintiff argues that this finding is inconsistent with the DOT definition of receptionist, which requires reaching and handling on a frequent basis, meaning that the activities are performed for up to between one-third and two-thirds of a workday. See DOT 237.367-038, 1991 WL 67192. Plaintiff also posits that the receptionist job duties mentioned in the DOT could be performed repetitively.
The VE testified via interrogatory that Plaintiff's RFC would permit her to perform the job of receptionist as generally performed, because although "[t]here is some operation of office equipment such as typing on a keyboard . . . this is typically performed in short spurts rather than repetitively." AR at 359. She also indicated that the remainder of the RFC restrictions were consistent with the DOT definition of receptionist. Id. The VE went on to note that "repetitive motion" (as mentioned in the RFC assessment) is not a term used in the DOT, but that she provided her opinion "with regard to the presence of repetitive tasks based on my professional experience performing job analyses and labor market surveys for these occupations." AR at 360. Plaintiff argues that the ALJ erred in relying on this vocational testimony at step four, because the VE's explanation of why the receptionist job is consistent with the RFC assessment is insufficiently supported.
The DOT raises a rebuttable presumption as to job classification. Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir. 1995). Pursuant to SSR 00-4p, an ALJ has an affirmative responsibility to inquire as to whether a VE's testimony is consistent with the DOT and, if there is a conflict, determine whether the VE's explanation for such a conflict is reasonable. Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007). As stated by the Ninth Circuit Court of Appeals: "[A]n ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation." Johnson, 60 F.3d at 1435-36 (VE testified specifically about the characteristics of local jobs and found their characteristics to be sedentary, despite DOT classification as light work). See also Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) ("We merely hold that in order for an ALJ to rely on a job description in the [DOT] that fails to comport with a claimant's noted limitations, the ALJ must definitively explain this deviation.") "Evidence sufficient to permit such a deviation may be either specific findings of fact regarding the claimant's residual functionality, or inferences drawn from the context of the expert's testimony." Light, 119 F.3d at 794 (internal citations omitted).
The VE noted that the DOT does not use the term "repetitive motions," and thus she drew on her professional experience when determining whether the receptionist job required the repetitive motions precluded in the ALJ's RFC assessment. AR at 360. Plaintiff has not persuasively explained why the ALJ was not permitted to rely on this testimony. Although she contends that the VE's testimony is not supported by any evidence (Dkt. 18 at 5), the VE's testimony is itself evidence. See Bayliss, 427 F.3d at 1218 ("A VE's recognized expertise provides the necessary foundation for his or her testimony. Thus, no additional foundation is required."); Buckner-Larkin v. Astrue, 450 Fed. Appx. 626, 628-29 (9th Cir. Sept. 20, 2011) ("The [VE] noted that although the DOT does not discuss a sit-stand option, his determination was based on his own labor market surveys, experience, and research. Therefore, the conflict between the DOT and the [VE] was addressed and explained by the [VE], and the ALJ addressed this in the decision.").
The ALJ's RFC assessment limits Plaintiff to occasional overhead reaching with her right arm, and the DOT defines the receptionist position to require frequent reaching. Nonetheless, the VE testified that Plaintiff's RFC assessment was consistent with the DOT definition of the receptionist position.
Plaintiff argues that they are not consistent, presumably because a job requiring frequent reaching cannot be performed by a person limited to occasional overhead reaching with her right arm. See Dkt. 18 at 5. But there is no apparent inconsistency, because the DOT does not specifically require that reaching occurs frequently overhead, and it is not obvious or foreseeable that a receptionist's work would involve frequent overhead reaching. See Gutierrez v. Colvin, 844 F.3d 804, 808-09 (9th Cir. 2016). Plaintiff suggests that a receptionist's work in collecting and distributing mail could involve overhead reaching (Dkt. 20 at 4), but even if it did, this task would not necessarily be performed for more than two-thirds of a workday, and thus would not necessarily conflict with the ALJ's restriction to overhead reaching on an occasional basis.
Plaintiff has not shown that the ALJ erred in relying on the VE's testimony regarding the consistency between the RFC assessment and the DOT definition of the receptionist job. Therefore, the step-four findings are affirmed and the Court need not examine the alternative step-five findings.
The role of this Court is limited. As noted above, the ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews, 53 F.3d at 1039. When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Thomas, 278 F.3d at 954. While it may be possible to evaluate the evidence as Plaintiff suggests, it is not possible to conclude that Plaintiff's interpretation is the only rational interpretation.
Accordingly, the Court AFFIRMS the Commissioner's decision.
