Opinion
Case No. EDCV 14-1697-JPR
12-17-2015
DONALD W. GRASMAN, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his applications for Social Security disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). The matter is before the Court on the parties' Joint Stipulation, filed August 6, 2015, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.
II. BACKGROUND
Plaintiff was born in 1961. (Administrative Record ("AR") 236.) He completed 11th grade and worked as a tree trimmer, construction worker, and cleaner. (AR 50-51, 252.)
On July 21, 2011, Plaintiff submitted applications for DIB and SSI, alleging that he had been unable to work since May 10, 2009, because of "Bipolar I and II," severe depression, posttraumatic stress disorder, attention deficit hyperactivity disorder, "degerated [sic] back disease," and "anger mgmt." (AR 236, 247, 251.) After his applications were denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 100.) A hearing was held on January 16, 2013, at which Plaintiff, who was represented by counsel, appeared, as did both a medical and a vocational expert. (AR 58-63.) The hearing was continued, however, because the medical expert had been unable to review Plaintiff's medical records. (AR 60-62.) Another hearing was held, on February 4, 2013, at which Plaintiff, who was represented by counsel, testified, as did both a medical and a vocational expert. (AR 32-55.) In a written decision issued February 19, 2013, the ALJ found Plaintiff not disabled. (AR 12-24.) On June 24, 2014, the Appeals Council denied Plaintiff's request for review. (AR 1.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, he is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since May 10, 2009, the alleged onset date. (AR 14.) At step two, he concluded that Plaintiff had severe impairments of cervical, thoracic, and lumbar myofascial strain, "left rotator cuff tendinitis strain," "bipolar II disorder," ADHD, and PTSD. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a listing. (AR 15.) At step four, he found that Plaintiff had the RFC to perform medium work with additional restrictions. (AR 16.) Specifically, Plaintiff could lift, carry, push, or pull 50 pounds occasionally and 25 pounds frequently; sit, stand, or walk for six hours in an eight-hour workday with normal breaks; reach and lift with his left upper extremity frequently but not continuously; occasionally climb ladders, ropes, or scaffolds; occasionally stoop, crouch, or crawl; and perform "simple repetitive nonpublic tasks." (Id.) Based on the VE's testimony, the ALJ concluded that Plaintiff could not perform his past relevant work as a tree trimmer, construction worker I, or night cleaner. (AR 22.) At step five, the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national economy: (1) mail clerk, DOT 209.687-026, 1991 WL 671813; (2) linen-room attendant, DOT 222.387-030, 1991 WL 672098; (3) laundry laborer, DOT 361.687-018, 1991 WL 672992; and (4) garment sorter, DOT 222.687-014, 1991 WL 672131. (AR 22-23.) Each of the identified jobs was an unskilled job with a specific-vocational-preparation level of two. (AR 23.) Accordingly, the ALJ found Plaintiff not disabled. (Id.)
V. DISCUSSION
Plaintiff claims the ALJ erred in (1) assessing the opinions of his treating psychiatrist and the consultative examining psychiatrist, (2) assessing his mental RFC, (3) presenting the hypothetical to the VE, and (4) assessing his credibility. (J. Stip. at 3.) For the reasons discussed below, remand is not warranted. The Court addresses Plaintiff's contentions in an order different from that in the Joint Stipulation.
A. The ALJ Properly Assessed Plaintiff's Credibility
1. Applicable law
An ALJ's assessment of symptom severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). "[T]he ALJ is not 'required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).'" Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment '[that] could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original).
If the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015) (as amended); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). The ALJ may consider, among other factors, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements, 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; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties. Rounds v. Comm'r Soc. Sec. Admin., ___ F.3d ___, No. 13-35505, 2015 WL 7958982, at *7 (9th Cir. Dec. 7, 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.
The Commissioner objects to the clear-and-convincing standard but acknowledges that her argument was rejected in Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). (J. Stip. at 32 n.13); see also Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended) (reaffirming Burrell).
2. Relevant background
In an undated disability report, Plaintiff indicated that he stopped working on May 10, 2009, because "work was slow." (AR 251.) In response to a question asking if his medical conditions caused him to make changes in his work activity, he answered, "No." (Id.)
At the hearing, Plaintiff testified that he had had mental-health problems "kind of all my life" but was not diagnosed until he was about 35 years old. (AR 33.) He testified that he was first hospitalized for mental-health issues in February 2002 (id.) and that he was last hospitalized in June 2012 because he was "really depressed," had "thoughts of worthlessness," and "tried to hurt [him]self" (AR 35). Plaintiff testified that in the past week, his most severe symptoms "despite [his] medication" were depression, anxiety, and inability to be around crowds. (AR 34.) Except for a few occasions when he forgot his appointment or his doctor was out, he always had and took his medication. (AR 34-35.)
Similarly, Plaintiff's treating psychiatrist stated in a December 18, 2012 letter that Plaintiff had been hospitalized in "mid-2012" (AR 456), but no record of such a hospitalization exists. A June 13, 2012 treatment note from the Riverside County Department of Mental Health indicated that although Plaintiff was anxious because he had been out of medication for the past week, he denied any suicidal or assaultive ideation. (AR 445-46.)
When asked whether he would be able to do a "simple repetitive type of task for an eight-hour shift" sitting alone at a table, Plaintiff testified that he had never done that kind of work before and that he would probably be "[r]eally nervous." (AR 37.) He testified that having someone with him to make sure he knew what he was doing would probably make him more nervous. (Id.)
Plaintiff testified that he had problems with his back. (AR 45.) At most, he could sit for about an hour and stand for about 30 minutes. (AR 45-46.) He testified that it hurt to lift "probably 30 pounds sometimes" if he had to pick it up from the ground. (AR 47.)
Plaintiff testified that although he had a driver's license and car, he "hardly ever" drove. (AR 37.) He did, however, drive to the hearing, which was about 35 miles round-trip. (AR 37-38.) His drive to the hearing was the longest trip he had taken in the last few years. (AR 38.) He testified that he "sometimes" went grocery shopping and that when he did, his mother usually drove him. (Id.) He had been living with his mother since the August before the hearing, and before that, he was homeless. (Id.) Plaintiff testified that he stopped drinking in 1999 and stopped using drugs "in probably '87." (AR 39.)
In October 2011, Plaintiff reported that he had last used alcohol six months earlier and "illegal drugs" in 1995. (AR 364.)
3. Analysis
The ALJ found that although Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," his "statements concerning the intensity, persistence and limiting effects of these symptoms" were "not entirely credible" (AR 18) and "less than fully credible" (AR 19). Plaintiff challenges the ALJ's determination as to his alleged physical impairments only. (See J. Stip. at 29-30 (challenging ALJ's findings as to allegations of disabling neck, shoulder, and back pain).) As discussed below, the ALJ provided clear and convincing reasons for discounting Plaintiff's allegations of disabling physical impairments.
As an initial matter, Plaintiff argues that the ALJ erred by failing to identify "specific statements" he found not credible. (Id. at 25.) The ALJ is required to "specifically identify the testimony [from a claimant] she or he finds not to be credible and . . . explain what evidence undermines the testimony." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (citing Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)); see also Brown-Hunter, 806 F.3d at 493; SSR 96-7p, 1996 WL 374186, at *4 (July 2, 1996) (decision "must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight"). Here, the ALJ summarized Plaintiff's testimony that he had lower-back problems, could sit for an hour and stand for 30 minutes, had pain when lifting 30 pounds, and had problems lifting his hands over his head. (AR 17.) The ALJ then identified similar allegations of physical limitations from Plaintiff's function report and a third-party function report, noting that both were completed by Plaintiff's girlfriend and finding that "[t]he repetition of [Plaintiff's] subjective complaints through his girlfriend does not make them any more credible." (Id.) In summarizing specific statements from Plaintiff's hearing testimony and the function reports and making this initial finding, the ALJ specifically identified which of Plaintiff's subjective complaints he found not credible. See Lindsley v. Comm'r Soc. Sec. Admin., No. 3:12-cv-0552-SU, 2013 WL 2250369, at *4 n.2 (D. Or. May 22, 2013) (finding that ALJ adequately identified discredited testimony when he summarized claimant's hearing testimony and incorporated that discussion into credibility analysis), aff'd, 592 F. App'x 653 (9th Cir. 2015); Treichler, 775 F.3d at 1103 (ALJ's analysis "need not be extensive" as long as he "provide[s] some reasoning in order for [the court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence").
The ALJ found that Plaintiff's credibility was "highly suspect" because of the "discrepancy" between his complaints of pain recounted above and the "objective medical evidence." (AR 17; see also AR 18 (finding credibility "diminished" because allegations were "greater than expected in light of the objective evidence of record").) Indeed, although a May 2009 MRI of Plaintiff's lumbar spine (AR 315-16) and a January 2012 x-ray of his cervical spine (AR 406) showed disc herniation and other degenerative changes, clinical findings from the October 25, 2011 consultative orthopedic examination were inconsistent with allegations of disabling pain. For example, Plaintiff had a normal gait without the use of any assistive device and rose from a chair and walked across the room without difficulty. (AR 375.) Although he was unable to walk on tiptoes and heels, he had no weakness in his ankle flexors and extensors, and his general motor strength was within normal limits. (AR 375-76.) He showed no signs of muscle atrophy or spasm in either his upper or his lower extremities. (AR 375.) Straight-leg raising was negative in both legs in both sitting and supine positions. (AR 376.) Although moving his neck was painful, Plaintiff had a full range of motion, and Spurling's test was negative bilaterally. (Id.) And although Hawkins and Neer tests were mildly positive for Plaintiff's left shoulder, supporting a diagnosis of mild rotator-cuff tendinitis, they were negative for his right shoulder. (AR 375-76.) Accordingly, the examining physician concluded, "[a]lthough [Plaintiff] notes right shoulder pain, there was nothing on examination today to substantiate a diagnosis." (AR 376.) The ALJ was entitled to consider the lack of objective medical evidence in assessing Plaintiff's complaints of pain and his credibility. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."); Lingenfelter, 504 F.3d at 1040 (in determining credibility, ALJ may consider "whether the alleged symptoms are consistent with the medical evidence").
The Spurling test is used to evaluate nerve-root impingement in the cervical spine. See Stedman's Medical Dictionary 1961 (28th ed. 2005).
The Neer and Hawkins-Kennedy tests are used to diagnose impingements or tears in the rotator cuff. See Physical Therapist's Guide to Rotator Cuff Tear, Am. Physical Therapy Ass'n, http://www.moveforwardpt.com/symptomsconditionsdetail.aspx?cid=95bd746b-b25f-46f5-8373-fb56c9f6b46a (last updated Nov. 2, 2011).
The ALJ also discredited Plaintiff's testimony because he had "not received the type of medical treatment one would expect for a totally disabled individual" (AR 17) — that is, he received "routine and conservative treatment since the alleged onset date" (AR 18). The "lack of more aggressive treatment," the ALJ found, suggested that Plaintiff's "symptoms and limitations were not as severe as he alleged." (Id.) Indeed, as discussed below, except for brief treatment with injections and physical therapy in 2009 — some of which was before the alleged onset date — Plaintiff was treated only with prescription pain medication for his alleged back, neck, and shoulder pain.
From February to December 2009, Plaintiff saw a primary-care physician regularly for back pain. (AR 304-10.) From February to April 2009, which was before the alleged onset date, Plaintiff apparently received three injections (AR 309), which did not help (AR 308), but the record contains notes from only one of the injections (AR 317-18). In August 2009, Plaintiff reported that six sessions of physical therapy "helped some" but his back pain was "still bad." (AR 306.) The record, however, contains no evidence of such treatment.
After December 2009, Plaintiff did not complain of or receive treatment for neck, shoulder, or back pain again until two years later, December 2011, when he saw a new primary-care physician. (AR 403.) He saw that physician sporadically after his initial visit — three times in seven months — to refill his pain medication. (AR 402 (Jan. 2012), 440 (Mar. 2012), 435 (July 2012).) Further, although a physician's assistant recommended that Plaintiff be referred to a pain-management specialist for further treatment, he "refused" the referral "upon check-out." (AR 402.)
That Plaintiff was treated with mostly pain medication and did not pursue further injections or physical therapy was a clear and convincing reason for discrediting his allegations of disabling pain. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (that claimant "did not seek an aggressive treatment plan" undermined allegations of disabling impairment); id. at 1039 (ALJ may discount claimant's testimony in light of "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment"); SSR 96-7p, 1996 WL 374186, at *7 (claimant's statements "may be less credible if the level or frequency of treatment is inconsistent with the level of complaints"); Martinez v. Colvin, No. CV 13-6741-SH, 2014 WL 2533784, at *3 (C.D. Cal. June 5, 2014) (ALJ properly discounted claimant's testimony based on conservative treatment when no physician recommended surgery and claimant was treated with "pain management" and epidural injections); Walter v. Astrue, No. EDCV 09-1569 AGR, 2011 WL 1326529, at *3 (C.D. Cal. Apr. 6, 2011) (ALJ permissibly discredited claimant's allegations based on conservative treatment consisting of medication, physical therapy, and injection).
In sum, the ALJ provided clear and convincing reasons for finding Plaintiff not credible. Because those findings were supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959. Plaintiff is not entitled to remand on this ground.
B. The ALJ Properly Assessed the Findings and Opinions of the Treating and Examining Psychiatrists
Plaintiff contends the ALJ erred in assessing the findings and opinions of treating psychiatrist Christopher Fichtner and consultative examining psychiatrist Romualdo Rodriguez. (J. Stip. at 3-8, 15-18.) He also argues that the ALJ should have developed the record further by requesting more information from Dr. Fichtner. (Id. at 6-8.) For the reasons discussed below, remand is not warranted.
1. Applicable law
Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did neither. Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than an examining physician's, and an examining physician's opinion is generally entitled to more weight than a nonexamining physician's. Id.
This is true because treating physicians are employed to cure and have a greater opportunity to know and observe the claimant. Smolen, 80 F.3d at 1285. If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
When a treating or examining physician's opinion is not contradicted by other evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). When it is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. (citing Lester, 81 F.3d at 830-31). Furthermore, "[t]he 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." Thomas, 278 F.3d at 957; accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
2. Relevant background
Dr. Fichtner was Plaintiff's treating psychiatrist at the Riverside County Department of Mental Health beginning in December 2009. (AR 335, 456.) On October 26, 2011, he completed a Narrative Report (Adult) form. (AR 381.) In it, he indicated diagnoses of bipolar II disorder, ADHD, and PTSD. (Id.) He stated that Plaintiff had "chronic, disabling depression with suicidality." (Id.) Although Plaintiff was receiving treatment for all three of his diagnoses, he was "still not in full remission," his prognosis was "guarded," and he was to "continue to be monitored for intermittent suicidality." (Id.) Dr. Fichtner opined that the "stress sensitivity" of Plaintiff's condition rendered him "unable to work." (Id.) He also believed that Plaintiff's memory was moderately impaired, although his judgment was not impaired at all. (Id.) Dr. Fichtner opined that Plaintiff could not "maintain a sustained level of concentration," "sustain repetitive tasks for an extended period," or "adapt to new or stressful situations." (Id.) He indicated that Plaintiff could not interact appropriately with strangers, coworkers, or supervisors. (Id.) He also opined that Plaintiff could not complete a 40-hour workweek without decompensating. (Id.)
In a letter dated December 18, 2012, Dr. Fichtner stated that Plaintiff had responded "fairly well to treatment with a combination medication regimen, but intermittent medication access problems and a problematic environmental situation (he is currently homeless, and has been without any income for a long time) have worsened his stress level." (AR 456.) He stated that Plaintiff had been hospitalized twice since he "last documented his disabling mental illness": in October 2011 and "mid-2012." (Id.) Dr. Fichtner stated, "I believe he has been hospitalized for mental illness at least 4 times in total." (Id.)
The ALJ gave "little weight" to Dr. Fichtner's opinion because it was "brief, conclusory, and inadequately supported by clinical findings." (AR 20.) He also found that it was "inconsistent with the medical evidence as a whole." (Id.) As to Dr. Fichtner's statement that Plaintiff could not work a 40-hour workweek without decompensating, the ALJ found that it had "no probative value" and rejected it. (Id.)
On October 7, 2011, Dr. Rodriguez performed a consultative psychiatric examination of Plaintiff. (AR 362.) He ruled out PTSD but diagnosed ADHD and "[p]olysubstance dependence supposedly in full sustained remission." (AR 367.) As to Plaintiff's prognosis, Dr. Rodriguez concluded that "as long as [he] is properly treated for his ADHD, depression, and any PTSD he may have he can easily recover from his symptoms within 12 months." (Id.) Dr. Rodriguez opined that Plaintiff could "understand, remember, and carry out simple one- or two-step job instructions" but not "detailed and complex instructions." (AR 368 (emphasis in original).) Plaintiff was "[s]lightly limited" in his ability to relate to and interact with supervisors, coworkers, and the public; adapt to the stresses common to the work environment; maintain regular attendance in the workplace and perform work activities on a consistent basis; and perform work activities without special or additional supervision. (Id.) He was "[m]oderately limited" in his ability to maintain concentration, attention, persistence, and pace. (Id.)
The ALJ gave "great weight" to Dr. Rodriguez's opinion because he had "personally observed and examined" Plaintiff and his opinion was consistent with his objective clinical findings. (AR 19-20.) The ALJ noted that "Dr. Rodriguez assessed functional limitations that are essentially the same as those included in the residual functional capacity assessment herein." (AR 19.)
3. Analysis
a. Dr. Fichtner
As an initial matter, Plaintiff fails to establish that the ALJ had a duty to develop the record further by requesting more information from Dr. Fichtner. It is true that an ALJ has a "duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Garcia v. Comm'r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) ("In making a determination of disability, the ALJ must develop the record and interpret the medical evidence."). But it nonetheless remains Plaintiff's burden to produce evidence in support of his disability claim. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (as amended). Moreover, the "ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2010) (as amended May 19, 2011) (citation omitted); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
Here, the record was not ambiguous or inadequate. Dr. Fichtner's conclusion that Plaintiff was unable to work was clear, and Plaintiff's counsel confirmed at the hearing that the case file contained all of Plaintiff's mental-health records. (See AR 35, 42); see McLeod, 640 F.3d at 884 (ALJ had no duty to request more information from treating physicians because "substantially all of their medical records throughout the time they treated [claimant] were before the ALJ" and "[t]here was nothing unclear or ambiguous about what they said"). Further, Plaintiff's mental-health records contained treatment notes from other practitioners besides Dr. Fichtner, including a clinical psychologist, providing additional foundation for evaluating Dr. Fichtner's opinion. (See, e.g., AR 347-57, 453-54.)
In any event, the ALJ developed the record by ordering a consultative examination by a psychiatrist (AR 362-68) and taking testimony from a medical expert, who reviewed all the treatment records and asked Plaintiff questions regarding his hospitalizations and ability to do repetitive work (AR 33-37). For these reasons, the record was sufficient to evaluate Dr. Fichtner's opinion and Plaintiff's disability claim, and the ALJ therefore had no duty to develop it further. See Siple v. Astrue, No. EDCV 09-35 PA (FFM), 2010 WL 3833819, at *3 (C.D. Cal. Sept. 28, 2010) (finding that record was neither ambiguous nor inadequate when ALJ "had available to him opinions of the board certified state agency examining psychiatrist, the board certified non-examining psychiatrist, and the consultative psychiatric examiner").
The ALJ gave "little weight" to Dr. Fichtner's opinion that Plaintiff could not work a 40-hour workweek without decompensating, maintain a sustained level of concentration, perform repetitive tasks for an extended period, adapt to new or stressful situations, or interact appropriately with strangers, coworkers, or supervisors. (AR 20.) This opinion was contradicted by Dr. Rodriguez, the consultative examining psychiatrist, who assessed that Plaintiff could work under certain conditions and was only slightly limited in mental functioning except for a moderate limitation in maintaining concentration. (AR 368.) Thus, the ALJ was required to give only specific and legitimate reasons supported by substantial evidence for discounting Dr. Ficthner's opinion, see Carmickle, 533 F.3d at 1164, which he did.
As to Dr. Fichtner's statement that Plaintiff could not work a 40-hour workweek without decompensating, the ALJ found that it had "no probative value" and rejected it. (AR 20.) He found such a conclusion was not entitled to controlling weight because it was "an opinion on an issue reserved to the Commissioner." (Id.) Indeed, to the extent the statement was an opinion that Plaintiff was disabled or unable to work, the ALJ properly rejected it. See §§ 404.1527(d)(1), 416.927(d)(1) ("A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled."); SSR 96-5p, 1996 WL 374183, at *5 (treating-source opinions that person is disabled or unable to work "can never be entitled to controlling weight or given special significance").
As for Dr. Fichtner's opinion generally, the ALJ accorded it little weight because it was "brief, conclusory, and inadequately supported by clinical findings." (AR 20.) The section of the form for assessing Plaintiff's mental functioning presented only "Yes" or "No" choices, and the preprinted clinical criteria that Dr. Fichtner circled — for example, depression, anxiety, suicidal ideation, isolation, apathy, and social withdrawal — did not by themselves adequately explain why he assessed such extreme limitations. (See id.) Dr. Fichtner's sole additional comments at the bottom of the form were that Plaintiff had "chronic, disabling depression with suicidality" and that the "stress sensitivity" of Plaintiff's condition rendered him "unable to work." (Id.) Such conclusory statements were inadequate to support the limitations he assessed. See Molina, 674 F.3d at 1111 (ALJ may "permissibly reject check-off reports that do not contain any explanation of the bases of their conclusions" (alterations and citation omitted)); Batson, 359 F.3d at 1195 ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by . . . objective medical findings").
Further, as the ALJ noted, Dr. Fichtner did not record many clinical findings in his treatment notes, and those findings he did record did not support his October 26, 2011 findings. For example, on February 9, 2010, although Dr. Fichtner noted that Plaintiff was depressed and angry and had "negative thoughts" and feelings of worthlessness, he also "want[ed] to work," had normal, goal-directed thoughts, was alert and oriented, and had normal judgment and insight. (AR 320.) On September 13, 2011, all Dr. Fichtner did was note on a Change of Diagnosis form that he was adding a diagnosis of ADHD "b[ecause] of h[istory] consistent [with] it"; he did not record any clinical findings. (AR 358.) Unlike the clinical psychologist (AR 353-55) and consultative psychiatrist (AR 365-66), Dr. Fichtner apparently did not perform formal mental-status examinations or conduct other similar diagnostic tests. Thus, as the ALJ noted, Dr. Fichtner "primarily summarized in the treatment notes [Plaintiff's] subjective complaints, diagnoses, and treatment, but he did not provide medically acceptable clinical findings to support the functional assessment." (AR 20.) This was a proper basis for discounting Dr. Fichtner's opinion. See §§ 404.1527(c)(3), 416.927(c)(3) (more weight given "[t]he more a medical source presents relevant evidence" and "[t]he better an explanation" it provides to support its opinion); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected when treatment notes "provide[d] no basis for the functional restrictions he opined should be imposed on [claimant]"); Thomas, 278 F.3d at 957 ("The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is . . . inadequately supported by clinical findings.").
The ALJ also discounted Dr. Fichtner's findings and opinion because they were "inconsistent with the medical evidence as a whole." (AR 20.) Indeed, his October 26, 2011 findings were inconsistent with those of Dr. Rodriguez, who had examined Plaintiff only a few weeks before, on October 7. (AR 362.) At that examination, Plaintiff did not have any suicidal, homicidal, or paranoid ideation, and although his mood was depressed and irritable, his affect was polite, serious, and relaxed, and he did "not necessarily look sad." (AR 365.) In addition, he could perform the mental tasks given to him, including serial threes and simple math problems, and he could follow the examiner's conversation. (AR 366.) Moreover, except for a hospitalization on October 27, 2011 (AR 359), treatment records from fall 2011 on showed that Plaintiff was "stable" on medication with no side effects (AR 452), and he had normal speech and thought processes, good eye contact, responsive interaction, good insight and judgment, and fair impulse control, and he was alert and oriented to person, place, time, and purpose (AR 354-55).
As for Dr. Fichtner's statement in his December 2012 letter that Plaintiff was "currently homeless" (AR 456), it was wrong, as the ALJ noted: Plaintiff testified at the hearing that he had been living with his mother since August 2012 (AR 38). Further, Dr. Fichtner's statement that Plaintiff had been hospitalized for mental illness "at least 4 times in total" (AR 456), to the extent he meant four times since the alleged onset date, was also inconsistent with the record, which contains evidence of hospitalizations only in December 2009 and October 2011 (AR 322-24, 359).
Thus, the ALJ's determination that Dr. Fichtner's findings and opinion were inconsistent with the record was specific and legitimate and supported by substantial evidence. See §§ 404.1527(c)(4), 416.927(c)(4) (more weight given "the more consistent an opinion is with the record as a whole"); Batson, 359 F.3d at 1195 ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings").
b. Dr. Rodriguez
The ALJ gave "great weight" to Dr. Rodriguez's opinion. (AR 16.) Plaintiff does not object to that finding generally but contends that the ALJ failed to explain why he allegedly rejected one of Dr. Rodriguez's supposed limitations: that Plaintiff was restricted to "simple one or two-step job instructions." (AR 368 (emphasis in original); J. Stip. at 15-18.) Plaintiff argues that in "rejecting" that part of Dr. Rodriguez's opinion, the ALJ was required to give specific and legitimate reasons and failed to do so. (J. Stip. at 17-18.) But no such limitation existed. Rather, Dr. Rodriguez found that Plaintiff could do "simple one or two-step job instructions" but not "detailed and complex instructions"; he did not limit Plaintiff to only simple, one- or two-step instructions. (AR 368 (emphasis in original).) The ALJ incorporated that portion of Dr. Rodriguez's opinion into his RFC determination by finding that Plaintiff was limited to "simple repetitive nonpublic tasks," a limitation well within the range prescribed by Dr. Rodriguez of what Plaintiff could and could not do. (AR 16; see also AR 19 (noting that Dr. Rodriguez's functional assessments were "essentially the same" as those in RFC determination).) The ALJ properly accorded great weight to Dr. Rodriguez's opinion because he had "personally observed and examined" Plaintiff and his assessments were consistent with his independent clinical findings. (AR 19-20); see Tonapetyan, 242 F.3d at 1149 (finding that examining physician's "opinion alone constitutes substantial evidence, because it rests on his own independent examination of [claimant]"); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (opinion of nontreating source based on independent clinical findings may itself be substantial evidence).
Plaintiff is not entitled to remand on this ground.
C. The ALJ Properly Assessed Plaintiff's Mental RFC
1. Applicable law
A district court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record and "explain in [his] decision the weight given to . . . [the] opinions from treating sources, nontreating sources, and other nonexamining sources." §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii); see also §§ 404.1545(a)(1), 416.945(a)(1) ("We will assess your residual functional capacity based on all the relevant evidence in your case record."); SSR 96-8p, 1996 WL 374184, at *2 (July 2, 1996) (RFC must be "based on all of the relevant evidence in the case record"). In making an RFC determination, the ALJ may consider those limitations for which there is support in the record and need not consider properly rejected evidence or subjective complaints. See Bayliss, 427 F.3d at 1217 (upholding ALJ's RFC determination because "the ALJ took into account those limitations for which there was record support that did not depend on [claimant's] subjective complaints"); Batson, 359 F.3d at 1197 (ALJ not required to incorporate into RFC any findings from treating-physician opinions that were "permissibly discounted").
2. Analysis
Dr. Rodriguez opined that Plaintiff could do "simple one or two-step job instructions" but not "detailed and complex instructions" (AR 368 (emphasis in original)), and the ALJ found in his RFC determination that Plaintiff was limited to "simple repetitive nonpublic tasks" (AR 16). Plaintiff contends that the RFC failed to incorporate Dr. Rodriguez's assessment. (J. Stip. at 20-21.) As discussed earlier, however, the RFC's limitation of simple, repetitive, nonpublic tasks was well within the range of functional capacity assessed by Dr. Rodriguez. It was also consistent with the functional assessments by the nonexamining state-agency psychiatrists who reviewed Plaintiff's medical records. (See AR 370-72, 399-400, 430-31.) On initial consideration, Dr. R. Paxton indicated on a Mental Residual Functional Capacity Assessment form that Plaintiff's ability to "carry out very short and simple instructions" was not significantly limited and his ability to "carry out detailed instructions" was moderately limited. (AR 370.) Dr. Paxton opined that Plaintiff could do "simple level work at two hour intervals in a non public setting." (AR 372; see also AR 400 (indicating in case analysis that Plaintiff could do nonpublic, simple, repetitive tasks).) On reconsideration, another state-agency psychiatrist affirmed that assessment. (AR 431.) The RFC limitation was also consistent with the opinion of the medical expert, who testified at the hearing not only that Plaintiff could do "simple, repetitive work" but also that "occasional detailed or complex work would be possible." (AR 43-44.) Because the RFC determination was consistent with the opinions of Dr. Rodriguez, the state-agency psychiatrists, and the medical expert, it was supported by substantial evidence. See Young v. Comm'r of Soc. Sec., 594 F. App'x 914, 916 (9th Cir. 2014) (finding mental RFC supported by substantial evidence because it was consistent with limitations assessed by examining clinical neuropsychologist and consultative psychiatrist).
The electronic signatures of the state-agency physicians include a medical-specialty code of 37, indicating psychiatry. (AR 400, 431); see Program Operations Manual System (POMS) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/lnx/0424501004.
Moreover, the RFC's limitation of simple, repetitive tasks was consistent with the unskilled, SVP-level-two jobs identified by the ALJ in his step-five determination. (AR 23); see SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000) (specific-vocational-preparation (SVP) level of one to two indicates unskilled work); SSR 85-15, 1985 WL 56857, at *4 (Jan. 1, 1985) ("The basic mental demands of . . . unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions . . . ."); §§ 404.1568(a), 416.968(a) (unskilled work involves "simple duties that can be learned on the job in a short period of time").
Plaintiff is not entitled to remand on this ground.
Plaintiff also contends that the ALJ's hypothetical to the VE was incomplete and he therefore erred in relying on the VE's testimony. (J. Stip. at 21-22); see Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (if hypothetical to VE does not reflect all of claimant's limitations, then VE's testimony "has no evidentiary value to support a finding that the claimant can perform jobs in the national economy"). As discussed, the ALJ's RFC determination adequately incorporated Dr. Rodriguez's assessment. Because his hypothetical to the VE included the same limitations as those in the RFC determination — including "simple repetitive tasks; non-public" (AR 51) — he properly relied on the VE's testimony in finding Plaintiff capable of performing other work (AR 22-23). Thus, Plaintiff is not entitled to remand on this ground.
VI. CONCLUSION
Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. DATED: December 17, 2015
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge