Opinion
No. C 01-01764 MMC
January 15, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Lois Lacrone Hill ("Hill") brings this action pursuant to 42 U.S.C. § 405 (g) for judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her claim for benefits under Title II of the Social Security Act ("the Act"). Before the Court are Hill's motion for summary judgment or, in the alternative, for remand, and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
Jo Anne Barnhart is substituted for her predecessor, Larry G. Massanari, as Commissioner. See Fed.R.Civ.P. 25(d)(1)
BACKGROUND
On September 4, 1997, Hill, who was then 50 years old, filed an application for disability benefits, alleging that she has been unable to work as of September 25, 1992. (See Certified Transcript of Administrative Proceedings ("Tr") at 314.) Hill alleges "disabling symptoms, including chronic neck and arm pain, occasional tingling in her fingers, constant and excruciating low back pain radiating into both legs, bilateral wrist pain, diminished grip strength, headaches, blurred vision, dizziness, and blackouts." (See Tr. at 15.) The SSA denied Hill's application for benefits initially and on reconsideration, and Hill filed a timely request for a hearing before an administrative law judge ("ALJ"). (See Tr. at 277-286.)
On January 13, 1999, the ALJ, having conducted a two-day hearing, issued a decision analyzing Hill's claim under the SSA's five-step sequential evaluation process. The ALJ found that Hill's "`severe' impairments are degenerative osteoarthritis, cervical and lumbosacral spine, and status-post bilateral carpal tunnel release surgeries." (See Tr. at 22-23.) The ALJ also found that Hill could perform her past relevant work as a "retail store clerk, hand packer, and envelope stuffer" and, accordingly, concluded that Hill was "`not disabled' at the fourth sequential step." (See Tr. 23.) After the Appeals Council denied Hill's request for review, (see Tr. at 5-6), Hill filed the instant action for judicial review.
"The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled.
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any work? If so, the claimant is not disabled. If not, the claimant is disabled." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if the decision is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ See id.
DISCUSSION
Hill argues the ALJ erred by (1) improperly rejecting an opinion of her treating physician, William A. Munkascy, M.D. ("Dr. Munkacsy"); (2) improperly rejecting an opinion of examining physician Barbara A. McQuinn, M.D. ("Dr. McQuinn"); and (3) improperly finding that Hill could perform her past relevant work.A. Treating Physician
In a letter dated December 12, 1997, Hill's treating physician, Dr. Munkacsy, stated Hill "is unable to pass any physical exam required to be able to work." (See Tr. at 579.) Additionally, in an assessment form dated April 14, 1998, Dr. Munkacsy stated Hill has a "poor ability to perform any type of work." (See Tr. at 586.) Hill argues the ALJ erred by failing to credit these and similar opinions provided by Dr. Munkacsy.
The opinion of a treating physician is generally entitled to greater weight than the opinion of a non-treating physician. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (observing treating physician has "greater opportunity to know and observe the patient as an individual"). Where the opinions of a treating and a non-treating physician differ, and the ALJ has disregarded the treating physician's opinion, the ALJ's decision will be affirmed only "if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record." See Andrews, 53 F.3d at 1041.
Here, the ALJ relied on the opinion of Gwilym B. Lewis, M.D., who testified at the hearing as a medical expert. Dr. Lewis provided the opinion that Hill could lift twenty pounds occasionally, could lift 10 pounds on a repetitive basis, could use her hands on a frequent, but not repetitive, basis, and was limited to work with a sit/stand option. (See Tr. at 692-93.) The ALJ explained that he did not credit Dr. Munkacsy's contrary opinion that Hill was unable to perform any work because there was a "lack of objective medical signs and findings" to support such opinion and because the opinion was "based solely on the claimant's subjective complaints." (See Tr. at 19.)
Hill argues it is improper to "avoid giving weight to the medical opinions by evaluating them as if they were statements of Plaintiff." (See Pl.'s Mot. at 6:3-4.) Where a treating physician's opinion as to the effect of symptoms is based on subjective reports of the claimant, however, and the ALJ has properly found the claimant is not credible, the ALJ may properly reject the physician's opinion. See Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (holding where ALJ "properly discounted" claimant's "subjective complaints," ALJ may properly disregard opinion of treating physician based on claimant's subjective complaints). In her motion, Hill does not argue that Dr. Munkacsy's conclusion that she cannot perform any work was based on anything other than her subjective reporting of symptoms, nor does she dispute in any manner the ALJ's finding that she is not credible.
For the first time in her reply, Hill asserts that because MRIs showed she "tested positive for bulging spinal discs," (see Pl.'s Reply at 4:14), the ALJ erred in finding Dr. Munkacsy's opinion was based solely on Hill's subjective complaints. Issues not "specifically and distinctly raised and argued" in an opening memorandum need not be considered by the Court. See Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 726 (9th Cir. 1992), cert. denied, 507 U.S. 1004 (1993) (holding issue not raised in opening brief deemed waived). In any event, the MRIs on which Hill relies indicate the disc bulging was "mild," (see Tr. at 410, 431 ), and "very small." (See Tr. at 615.) Hill points to nothing in Dr. Munkacsy's reports indicating that he is of the opinion that a person with a mild, very small disc bulge is precluded from performing all work. Consequently, it is not unreasonable to infer, as the ALJ apparently did, that Dr. Munkacsy's opinion that Hill cannot perform any work was not based on his review of the MRI results.
Accordingly, Hill fails to establish that the ALJ erred in not crediting Dr. Munkacsy's opinion that Hill is incapable of performing any work.
B. Examining Physician
"[T]he opinion of an examining doctor . . . can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996).
Hill argues that the ALJ erred by not addressing a letter authored by examining physician Dr. McQuinn in which Dr. McQuinn stated Hill's former position as a "packer" with Crane's Standard Processing was "probably incompatible with her present physical restrictions." (See Tr. at 625-26.) Hill asserts that by not referring to that letter, yet finding Hill could perform her past relevant work as a packer, the ALJ erred by implicitly rejecting Dr. McQuinn's opinion without expressing the requisite specific and legitimate reasons.
Dr. McQuinn, at the request of Hill's counsel, examined Hill on June 15, 1995 for purposes of a neurological evaluation. (See Tr. at 627.) In a letter dated June 17, 1995, Dr. McQuinn concluded Hill had the following "subjective factors of disability": "occasional discomfort in the hands and volar wrists with forceful activities of the hands and repetitive activities of the hands" and "intermittent slight to moderate neuralgic pain in the arms which occurs on a daily basis." (See Tr. at 643.) In that letter, Dr. McQuinn also stated that Hill had the following "objective factors of disability": "cervical disc disease at C4-5," "right CS cervical radiculopathy," "bilateral carpal tunnel syndrome prior to her surgery with improvement in her nerve conduction studies post-surgery," and "nerve compression of the median nerves." (See id.) Dr. McQuinn further stated that Hill's "work restrictions would include a preclusion from work involving prolonged or repetitive neck flexion, extension, or rotation and from repetitive fine manipulation of either hand." (See id.) Dr. McQuinn could not state, however, whether Hill would be precluded from performing her job with her previous employer because she had not been provided with the physical requirements of that job. (See Tr. at 642.)
On November 15, 1996, after Dr. McQuinn apparently had been provided with the necessary information about Hill's job, Dr. McQuinn wrote a letter in which she described Hill's job with Crane's Standard Processing as one in which Hill was required to "repetitively stuff and band envelopes." (See Tr. at 625.) Dr. McQuinn then opined: "I feel that this position is most probably incompatible with [Hill's] present physical restrictions as described in my June 17, 1995, report." (See id.) The ALJ found that Hill is "precluded from repetitive use of both hands," (see Tr. at 22), apparently accepting Dr. McQuinn's opinion as stated in her report of June 17, 1995 that Hill was so precluded. The ALJ, however, did not refer to Dr. McGuinn's November 15, 1996 letter.
At the fourth sequential step, "[t]he claimant has the burden of proving an inability to return to his former type of work and not just to his former job." See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (emphasis in original). Dr. McQuinn's letter of November 15, 1996 contained an opinion that Hill could not return to a particular former job. Given that the ALJ agreed with Dr. McQuinn that Hill cannot perform work requiring repetitive use of both hands, and that the ALJ did not include a finding that Hill's specific work for Crane's Standard Processing did not require repetitive use of both hands, the ALJ may well have accepted Dr. McQuinn's opinion of November 15, 1996. Nevertheless, assuming, arguendo, that the ALJ did not accept the opinion, the failure to state specific and legitimate reasons for that decision was harmless because the question before the ALJ at the fourth step was whether Hill is unable to perform her former "type of work," not whether she was unable to return to a particular former job. See id.
At the hearing before the ALJ, Hill testified she was required to use both hands repetitively for "[a]bout 7 hours" when performing that particular job. (See Tr. at 663.)
Accordingly, Hill fails to establish that the ALJ erred in not addressing Dr. McQuinn's opinion of November 15, 1996.
C. Past Relevant Work
Hill argues the ALJ erred in concluding she was able to perform her past relevant work as a hand packer and as an envelope stuffer.
Hill additionally argues that the ALJ erred in finding she could perform her past relevant work as a retail store cashier. In light of the Court's findings with respect to other past relevant work, discussedinfra, the Court does not reach this issue.
As discussed above, a claimant is considered disabled at the fourth step if she is unable to perform her former type of work. See Villa, 797 F.2d at 798. In determining what exertional demands are required to perform a type of work, the ALJ "may rely on the general job categories of the Dictionary [of Occupational Titles], with its supplementary Selected Characteristics, as presumptively applicable to a claimant's prior work."See id. If the ALJ relies on the Dictionary of Occupational Title's ("Dictionary") description of the type of work at issue, the claimant may rebut the presumption in two ways. See id. First, the claimant may demonstrate that the claimant's past type of work involved duties "not envisaged by the drafters of the category," i.e., the claimant may show that she has not performed the type of work described in the Dictionary, irrespective of how her employer may have labeled her position. See id. (citing DeLoatche v. Heckler, 715 F.2d 148, 151 (4th Cir. 1983) ("The fact that the claimant's former employer labeled the claimant's job that of `school social worker' does not prove that the claimant was engaged in the occupation that the Dictionary . . . labels as `school social worker' and identifies as sedentary.")) Alternatively, the claimant may "undertak[e] the burdensome task" of showing the Dictionary inaccurately describes the exertional demands of the type of work in question. See Villa, 797 F.2d at 798.
Here, vocational expert Richard Hincks testified that "when [Hill] worked at the engraving company, she actually did two separate jobs," which the vocational expert identified as "hand packager" and "envelope stuffer." (See Tr. at 719.) The vocational expert testified that, according to the Dictionary, both of those types of work required no more than "frequent" use of the hands. (See Tr. at 721,) The vocational expert explained that "frequent" is defined in the Dictionary as "from 2.5 to 5 hours per day." (See id.) The ALJ found the vocational expert's testimony credible, and relied on that testimony to find that Hill can perform her past relevant work as a "hand packer" and "envelope stuffer." (See Tr. at 23.)
In his decision, the ALJ referred to the first of these two jobs as "hand packer." (See, e.g., Tr. at 15.)
The Dictionary classifies levels of use as "occasional", "frequent," and "constant." See 2 Dictionary of Occupational Titles at 1013. All parties and other participants in the instant matter use the term "repetitive" in place of "constant," defined in the Dictionary as "activity or condition exists 2/3 or more of the time." See id.
As noted, the ALJ accepted Dr. Lewis' opinion that Hill could use her hands on a frequent, albeit not repetitive, basis.
Hill does not argue that in her prior occupation she did not perform the duties of "hand packer" and "envelope stuffer." Nor does Hill attempt to undertake the burdensome task of demonstrating that the Dictionary's descriptions of those types of work are inaccurate. Rather, Hill, in reliance on her testimony that she performed a specific job in which she stuffed envelopes and packed them into boxes, asserts that "[b]ecause each of both tasks involved using her hands from 2.5 to 5 hours per day, Plaintiff, in doing both tasks, was using her hands for twice as much time in a shift." (See Pl.'s Mot. at 8:2-5.) In other words, Hill argues that because she is precluded from performing repetitive work with her hands, she is precluded from returning to a particular job in which such repetitive work was apparently required by her employer. A showing that a claimant cannot return to a specific job, however, is insufficient to meet a claimant's burden that she cannot perform her past relevant work.See Villa, 797 F.2d at 798; see also Andrade v. Secretary of Health and Human Services, 985 F.2d 1045, 1050-52 (10th Cir. 1993) (holding where Dictionary described occupation of "general contractor" as requiring only light work, claimant's testimony that his particular former job required light work and some "very heavy" exertional requirements was insufficient to show he could not perform "occupation of general contractor as that job is generally performed in the national economy").
Hill also argues that it was error for the vocational expert to "separate out job tasks from other job tasks in characterizing past relevant work." (See Pl.'s Mot. at 7:25-27.) Hill relies on Valencia v. Heckler, 751 F.2d 1082 (9th Cir. 1985), in which the Ninth Circuit held that where a claimant is unable to perform her previous occupation, yet retains the residual functional capacity to perform one task associated with her previous occupation, the fourth step must be resolved in favor of the claimant and the ALJ must proceed to the fifth step. See id. at 1087 (holding where claimant's past relevant work was "kitchen helper" and "agricultural worker," fact that claimant could perform one but not all of the tasks necessary to perform those jobs required finding that claimant could not perform her past relevant work). Valencia, however, is distinguishable because, unlike the situation there, the ALJ here did not find that Hill could perform some but not all of the duties required of a person performing the occupation of hand packer or envelope stuffer. Hill's argument is simply a reiteration of her assertion that because she could not perform the tasks required by one former employer, she cannot perform the occupation of either hand packer or envelope stuffer. This, as noted, is incorrect. See Villa, 797 F.2d at 798.
As noted, at the fifth step the ALJ determines whether the claimant can perform available work. See McCartey, 298 F.3d at 1074 n. 6.
Accordingly, Hill has failed to show the ALJ's finding that she can perform her past relevant work as a hand packer or an envelope stuffer constituted error.
CONCLUSION
For the reasons stated above:
1. Plaintiff's motion for summary judgment or for remand is hereby DENIED;
2. The Commissioner's cross-motion for summary judgment is hereby GRANTED, and the decision of the Commissioner is hereby AFFIRMED.
The Clerk shall close the file.
IT IS SO ORDERED.
UNITED STATES DISTRICT COURT
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.IT IS ORDERED AND ADJUDGED
1. Plaintiff's motion for summary judgment or for remand is hereby DENIED.
2. The Commissioner's cross-motion for summary judgment is hereby GRANTED, and the decision of the Commissioner is hereby AFFIRMED.