Opinion
Case No. 05cv0475-W (BLM).
January 27, 2006
Michael V. Kelly brought this action to obtain judicial review of the Social Security Commissioner's final decision denying his claim for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 401-33 (as amended on March 2, 2004, by Pub.L. No. 108-203). Before the court is Plaintiff's motion for summary judgment and Defendant's cross-motion for summary judgment and opposition to Plaintiff's motion.
These motions were referred to Magistrate Judge Major for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636 (b) (2) and Federal Rule of Civil Procedure 72 (b). This Court found the motions appropriate for submission on the papers and without oral argument pursuant to Local Rule 7.1 (d) (1). Doc. No. 7. For the reasons set forth herein, this Court RECOMMENDS that Plaintiff's motion be DENIED and Defendant's cross-motion be GRANTED.
PROCEDURAL BACKGROUND
On December 26, 2001, Plaintiff filed an application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act alleging that he had been disabled since February 18, 2001. Administrative Record (hereinafter "AR") at 15, 87, 119, 167, 402. The application was denied initially and upon reconsideration [AR at 27-44, 404-09], resulting in Plaintiff's request for an administrative hearing. AR at 45-54, 410-12.On September 23, 2004, a hearing was held before Administrative Law Judge ("ALJ") Edward Steinman. AR 413-41. Plaintiff and a vocational expert ("VE") testified at the hearing. AR 417-37, 438-39. By written decision dated October 27, 2004, ALJ Steinman found that Plaintiff could perform his past relevant work and therefore was not disabled. AR at 14-22. Plaintiff requested administrative review. AR at 9-10. On January 4, 2005, the Appeals Council found no basis for disturbing the ALJ's ruling and the decision became final. AR at 6-8.
On August 23, 2005, Plaintiff filed the instant motion for summary judgment. Doc. No. 12. Defendant filed a cross-motion for summary judgment and opposition to Plaintiff's motion on September 12, 2005. Doc. No. 9. Plaintiff did not oppose Defendant's cross-motion and neither party filed a reply.
FACTUAL BACKGROUND
A. Plaintiff's Medical History
Born on July 21, 1963, Plaintiff is a forty-two year-old male with a high school education and three years of collegiate study. Plf's Mem. at 3; AR at 24, 109. Prior to the onset of his alleged disability, Plaintiff held employment positions including plater, housekeeper/server, insurance agent, dispatcher, telemarketer, customer service representative, and cashier, all for various durations between mid-1998 through February 2001. Plf's Mem. at 3; AR at 119. On January 19, 2001, however, Plaintiff experienced significant back and neck pain while performing his duties as a plater. AR at 223, 251. Because the severity of his pain continued to increase, Plaintiff enlisted the services of Dr. Michael Kastrup, a chiropractic physician, on or about January 23, 2001. Plf's Mem. at 3; AR at 212-21. At that time, Plaintiff complained of moderate upper back pain with radiation of pain, numbness, and tingling in his upper right arm and hand. AR at 216. Dr. Kastrup diagnosed Plaintiff with a moderate thoracic sprain or strain, and proposed a two-month treatment plan involving stretching, rest, and the application of ice packs. AR at 216-18. Dr. Kastrup also instructed Plaintiff that his work status should be restricted to light duty. Plf's Mem. at 3; AR at 216-18. While Plaintiff reported his injury to his employer that same day, he only continued to work until February 18, 2001. Plf's Mem. at 3; AR at 119, 167.
Plaintiff's complaint was not initially registered as a worker's compensation injury. Plf's Mem. at 3; AR at 224.
Plaintiff formally applied for disability insurance benefits and supplemental security income on March 21, 2001. AR at 80-83; 102-15.
Beginning February through June 2001, Plaintiff received intermittent treatment from various physicians for complaints of increased pain, numbness, and tingling in his neck and bilateral upper and lower extremities. Plf's Mem. at 3; AR at 191. For example, Dr. Gerard Lumkong prescribed Ativan to aid in sleeping and Naprosyn for inflammation, recommended alternate applications of ice and heat, and instructed Plaintiff to stretch regularly. AR at 191. X-rays and MRI scans taken on March 20, 2001 and April 9, 2001 revealed an intervertebral disc at C5-6 on the left, as well as evidence of a moderate sized arachnoid cyst at the posterior fossa. Plf's Mem. at 3-4; AR at 204-07. An April 27, 2001 MRI confirmed the presence of the arachnoid cyst. Plf's Mem. at 4; AR at 210-11. In addition, on June 26, 2001, Dr. Richard Ostrup evaluated Plaintiff's continued complaints of neck and headache pain. Plf's Mem. at 4; AR at 246-48. Dr. Ostrup hypothesized that Plaintiff's intervertebral disc may have been causing some of his symptoms; while acknowledging that Plaintiff's headaches could have been related to his neck pain, Dr. Ostrup remained unconvinced that such symptoms stemmed from Plaintiff's superior cerebellar cyst. Plf's Mem. at 4; AR at 247.
The posterior fossa is a depression on the interior back portion of the base of the skull, near the cerebellum part of the brain. See Medline Plus Medical Encyclopedia, at http://www.nlm.nih.gov/medlineplus/ency/article/001404.htm (last visited Jan. 17, 2006).
On June 29, 2001, Plaintiff presented complaints of consistent and generalized aching with sharp pain and tingling in his neck, shoulders, arms, fingers, thighs, and legs to Dr. Frederick Close, a consulting orthopaedic surgeon. Plf's Mem. at 4; AR at 222-30. After examination, Dr. Close diagnosed Plaintiff with disc herniation at C5-6 on the left, and a chronic sprain of the cervical and thoracolumbar spine. Plf's Mem. at 4; AR at 228. As a result, Dr. Close characterized Plaintiff as "temporarily totally disabled," and recommended a regular regimen of physical therapy. Plf's Mem. at 4-5; AR at 228-29.
On August 13, 2001, Plaintiff sought treatment from orthopaedic spine consultant Dr. Eric Korsh, similarly complaining of headaches, neck pain, bilateral shoulder pain, and balance and sleeping difficulties. Plf's Mem. at 5; AR at 252. According to Dr. Korsh, Plaintiff's symptoms were consistent with cervical disc herniation in his neck, sprain or strain of the cervical spine, and secondary depression as a result of such conditions. Plf's Mem. at 5; AR at 254. Dr. Korsh further determined that Plaintiff was properly considered temporarily totally disabled. Plf's Mem. at 5; AR at 255. Consequently, over the course of the next three months, Dr. Korsh treated Plaintiff's symptoms with pain medication, muscle stimulation, and routine physical therapy.
Dr. Korsh discontinued his treatment of Plaintiff in early November 2001. Plf's Mem. at 5; AR at 258-59.
In an effort to address Plaintiff's secondary depression, Dr. Korsh referred Plaintiff to Letty N. Meskin, M.A., Marriage and Family Therapist ("MFT"), for psychological examination. Plf's Mem. at 5; AR at 260. On September 25, 2001, Meskin assessed Plaintiff's mental status, concluding that Plaintiff suffered from "moderate-severe" major depressive disorder and anxiety disorder due to pain. Plf's Mem. at 5-6; AR at 260-71. In addition, Meskin rated Plaintiff's Global Assessment of Functioning ("GAF") score at fifty-five. Plf's Mem. at 6; Def's Mem. at 2 n. 1; AR at 268. Meskin concluded that Plaintiff was temporarily totally disabled due to his psychiatric disability, and recommended treatment including twice-weekly psychotherapy sessions and a possible referral to an approved psychiatrist for anti-depressants and/or anti-anxiety medication. Plf's Mem. at 6; AR at 269-70.
Both Plaintiff and Defendant reference the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders to define this GAF score as "moderate symptoms" or "moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Plf's Mem. at 6 n. 1; Def's Mem. at 2 n. 1. As highlighted by Defendant, the Commissioner of Social Security notes that an individual's GAF score has no direct correlation to the severity requirements in the Social Security Administration's listing of mental disorders. See 65 Fed. Reg. 50, 746, 50, 764-65 (Aug. 21, 2000) (to be codified at 20 C.F.R. pts. 404, 416).
On December 27, 2001, Plaintiff began to receive treatment from Dr. Jean-Jacques Abitbol, an orthopaedic surgeon. Plf's Mem. at 6; AR at 273-80. At that time, Plaintiff's chief complaints included lower back, lower extremity, neck, and left arm pain, as well as numbness and tingling in the lower extremities. Plf's Mem. at 6; AR at 273. Dr. Abitbol diagnosed Plaintiff with neck and back strain or sprain, cervical disc herniation, and probable lumbar radiculopathy with possible disc herniation. Plf's Mem. at 6; AR at 279. Based on this examination and diagnosis, Dr. Abitbol labeled Plaintiff "temporarily totally disabled," and recommended that he undergo back surgery. Plf's Mem. at 6; AR at 279-80. By February 28, 2002, Dr. Abitbol observed that Plaintiff's neck and left arm pain persisted, and recommended to Plaintiff's workers' compensation provider that he have surgery. Plf's Mem. at 7; AR at 283-85, 289.
Soon thereafter, State Agency physician Albert Lizarraras evaluated Plaintiff's residual functional capacity, or Plaintiff's capacity to perform his past relevant or other work despite his alleged limitations. Def's Mem. at 2-3; AR at 301-12. Based upon his examination of Plaintiff and the medical evidence presented, Dr. Lizarraras concluded that Plaintiff's alleged physical limitations would not prevent him from (1) lifting and/or carrying ten pounds frequently, (2) standing and/or walking at least two hours in an eight-hour workday, (3) sitting approximately six hours in an eight-hour workday, and (4) occasionally climbing, balancing, stooping, kneeling, crouching, or crawling. Def's Mem. at 2-3; AR at 302-03.
Dr. Abitbol also recommended that Plaintiff undergo a MRI to rule out lumbar disc herniation, engage in physical therapy, and continue to take his prescribed pain medications. Plf's Mem. at 6; AR at 279.
While Dr. Abitbol awaited authorization from the workers' compensation provider, Plaintiff was examined by a second orthopaedic surgeon, Larry Dodge, on March 21, 2002. Plf's Mem. at 7; AR at 313-25. Plaintiff presented to Dr. Dodge with similar complaints of pain in the base of the neck, upper back, both arms, the lower back, and both legs. Plf's Mem. at 7; AR at 313. After examination, Dr. Dodge determined that Plaintiff suffered from cervical strain superimposed upon cervical degenerative disc disease and small disc herniation C5-6, lumbosacral strain superimposed upon lumbar degenerative disc disease and disc bulging, and a history of depression. Plf's Mem. at 7; AR at 323. Despite these diagnoses, Dr. Dodge explained that the majority of Plaintiff's pain was "secondary to underlying muscular disease and psychosocial stress[,] rather than a significant disc lesion." AR at 323. Moreover, Dr. Dodge considered Plaintiff to have "somewhat borderline indications for surgical care in the cervical spine." Id. Ultimately, Dr. Dodge opined that Plaintiff was capable of work as long as he avoided lifting more than fifteen pounds, repetitive bending and stooping, and twisting and turning of his head and neck. Plf's Mem. at 7; AR at 323.
Dr. Dodge prepared a comprehensive narrative report based on his interview with and examination of Plaintiff, as well as his review of Plaintiff's extensive medical records. AR at 313-25. Notably, the report provides a detailed chronology of Plaintiff's medical history, [AR at 315-21], which includes references to psychiatric evaluations made by psychologist David Hall and regular psychotherapy sessions with Letty N. Meskin, M.A., MFT. AR at 315, 319-21. Other than these references by Dr. Dodge, there is no medical record evidence in the Administrative Record that Plaintiff was evaluated by Dr. Hall or attended regular therapy sessions with Meskin. Moreover, neither Plaintiff nor Defendant address any such treatment in their respective motions. Given this lack of documentation and the parties' failure to discuss such treatment, if any, this Court declines to consider these records.
Nevertheless, on August 12, 2002, Plaintiff elected to undergo an anterior cervical diskectomy, or back surgery. Plf's Mem. at 7; AR at 326-34. Approximately one week after that surgery, Dr. Abitbol described Plaintiff's x-rays as "great," and noted Plaintiff's reports that he was not experiencing any further pain. AR at 297-98. One month later, Dr. Abitbol observed that Plaintiff "continue[d] to do well" despite some discomfort at the back of his neck, in between his shoulder blades, and in his right shoulder area. AR at 299-300.
Next, on November 10, 2002, Plaintiff underwent a physical and psychiatric evaluation at the request of the Social Security Administration. Plf's Mem. at 7-8; AR at 335-45. First, orthopaedic consultant Rajeswari Kumar examined Plaintiff's physical condition. Plf's Mem. at 7; AR at 335-40. Noting Plaintiff's complaints of generalized numbness and persistent pain in his neck, right shoulder, hands, and lower back, Dr. Kumar concluded that Plaintiff's alleged physical limitations were attributable to a restricted range of motion at the lumbar spine. Plf's Mem. at 7; AR at 335-39. On this basis, Dr. Kumar determined that Plaintiff was able to lift twenty pounds occasionally and ten pounds frequently, stand or walk for six hours during an eight-hour workday, and sit for a total of six hours during that same time. Plf's Mem. at 7; AR at 339. Second, psychiatrist Richard Heidenfelder completed Plaintiff's psychiatric evaluation, assessing Plaintiff's symptoms of depression, weight loss, difficulty sleeping, irritability, anxiety, and self-imposed isolation. Plf's Mem. at 7; AR at 341-45. After examination, Dr. Heidenfelder opined that Plaintiff suffered from major depressive disorder secondary to his general medical condition. Plf's Mem. at 7; AR at 344. As a result, Dr. Heidenfelder considered Plaintiff (1) moderately impaired in his ability to comply with job rules such as safety and attendance, (2) moderately impaired in his ability to respond to change in a normal work setting, (3) not impaired in his ability to maintain persistence and pace in a normal work setting, and (4) not limited in his ability to maintain regular work attendance and to perform work activities both consistently and without special or additional supervision. Plf's Mem. at 8; AR at 345.
Like Letty N. Meskin, M.A., MFT, Dr. Heidenfelder assessed Plaintiff's GAF score at fifty-five. Plf's Mem. at 8; AR at 344.
On December 4, 2002, State Agency physician G.E. Tiedeman reevaluated Plaintiff's symptoms, reconsidered the Agency's January 30, 2002 assessment, and rendered a consultative opinion. Def's Mem. at 3; AR at 346-51. Describing Plaintiff's gait as normal and noting that the range of motion in Plaintiff's shoulders, wrists, and hands was within normal limits, Dr. Tiedeman concluded that Plaintiff's allegations and symptoms were only partially credible. AR at 349. Dr. Tiedeman also indicated that the degree of limitation Plaintiff continued to allege was unfounded given the objective findings of his physical examination. Id. As such, while highlighting that Plaintiff's sedentary residual functional capacity was likely appropriate due to his recent back surgery, Dr. Tiedeman opined that Plaintiff was capable of light work. Id.
The following day, State Agency psychiatrist Michael Skopec, M.D., re-assessed Plaintiff's alleged depression and related symptoms. Def's Mem. at 3; AR at 352-56. Dr. Skopec determined that Plaintiff suffered moderate impairments in his ability to comply with job rules, attendance, and changes in the workplace. Def's Mem. at 3; AR at 356. In conclusion, Dr. Skopec found that Plaintiff suffered from major depressive disorder secondary to his general medical condition. Def's Mem. at 3; AR at 353.
The Court notes that other than the December 2002 records obtained from State Agency physicians, Plaintiff did not submit any more current medical records in support of his claims. From the record submitted, it appears that, for various reasons, Plaintiff chose not to pursue additional or on-going treatment for these symptoms.
B. September 23, 2004 Hearing Testimony
At the hearing, Plaintiff testified that since his February 2001 on-the-job injury, he has suffered from persistent problems sitting, standing, walking, bending, twisting, and turning, and has encountered difficulty when using his hands for lengthy periods due to a "disc out" in his lower back. Def's Mem. at 3-4; AR at 416, 421, 424, 426. Plaintiff detailed his inability to walk long distances without pain, describing his neck pain at nine and his leg pain at five out of a scale of ten. Def's Mem. at 4; AR at 424. Plaintiff estimated that he can grasp and hold objects for a total of twenty-five minutes before weakness and shaking causes the objects to fall, but denied any hand pain. Def's Mem. at 3; AR at 421-22, 424. Moreover, Plaintiff approximated that he can comfortably lift and carry five pounds, sit for one and one half hours, stand for ten minutes, and walk for a total of two blocks at one time. Def's Mem. at 3-4; AR at 425-26. Plaintiff also noted that a brain cyst unrelated to his on-the-job injury continued to provoke debilitating headaches, which routinely require him to lie down for long periods of time. Def's Mem. at 4; AR at 430. Finally, while confirming his belief that such physical limitations prevented him from working the typical forty-hour work week, Plaintiff testified that he was not receiving treatment for his pain and headaches, had never sought medical care related to the problems with his hands, and took medication only to address high blood pressure and asthma. Def's Mem. at 4; AR 421-22, 433.
With regard to his psychiatric health, Plaintiff reported that he continued to feel "very sad," upset, and often "tear[ed] up" as a result of his physical limitations. Def's Mem. at 4; AR at 423-24. Plaintiff further explained that he frequently worried about and was fearful of possible complications related to his brain cyst. Def's Mem. at 4; AR at 430-31. Plaintiff also stated that he decided to discontinue taking medication for his neck pain, believing that such medication not only increased his feelings of depression and lack of focus, but also caused dizziness and blurred vision. Def's Mem. at 4; AR at 435. At bottom, Plaintiff declared that although his depression "ha[d] subsided," he continued to experience difficulty concentrating. Def's Mem. at 4; AR at 435.
Plaintiff confirmed, however, that he received no specific treatment for this brain cyst other than an annual MRI to monitor its growth. Def's Mem. at 4; AR at 430.
When questioned regarding his daily activities, Plaintiff testified that he drives almost daily to either the post office or the library, returning home to rest after approximately one hour due to his physical pain. Def's Mem. at 4; AR at 426-27. Plaintiff noted that he drives to and attends Masonic fraternity meetings twice monthly, and engages in occasional volunteer work as a member of that organization. Def's Mem. at 4; AR at 427-28. Plaintiff also confirmed that he prepares his own meals and is able to address his own hygienic needs. Def's Mem. at 4; AR at 428.
VE Bonnie Sinclair also offered testimony, responding to a series of related hypotheticals posed by the ALJ. Def's Mem. at 5; AR at 438-39. First, instructing the VE to assume the assessments made by Drs. Lizarrars and Tiedeman were credited, the ALJ inquired whether Plaintiff could perform any of his former work based on those assessments. Def's Mem. at 5; AR at 438; see also AR at 301-12, 347-51. In response, the VE confirmed that Plaintiff could perform his past relevant work of dispatcher and telemarketer. Def's Mem. at 5; AR at 438. Second, the ALJ requested commentary with regard to what impact, if any, Plaintiff's major depressive disorder, moderate impairments in complying with work rules and in responding to changes in the workplace, and ability to engage only in light work would have on his ability to perform his past work. Id. Before responding to this hypothetical, the ALJ directed the VE to review the opinions, diagnoses, and recommendations of Drs. Heidenfelder and Kumar. Id.; see also AR at 339, 345. After having reviewed these medical records, the VE replied that Plaintiff could perform these same positions. Def's Mem. at 5; AR at 439. Next, the ALJ posed the same hypothetical, this time asking the VE to examine the opinions of Dr. Dodge and Dr. Heidenfelder, the worker's compensation physician and the State Agency psychiatrist, before offering her response. Id.; see also AR at 323, 345. Once again, the VE opined that Plaintiff "still should be able to perform the job of a telephone solicitor." Def's Mem. at 5; AR at 439. Finally, the ALJ inquired whether an individual with Plaintiff's professed limitations-including the need to sleep, difficulty with his hands, debilitating neck and back pain, and depression secondary to all such symptoms-would be unable to perform either his former or other work. Id. The VE responded in the affirmative. Id. C. The ALJ's Decision
On October 27, 2004, the ALJ issued a written decision in which he determined that Plaintiff was not under a disability at any time from the date of his on-the-job injury through the date of the written ruling. AR at 21. In making this determination, the ALJ accorded great weight to the assessments of examining physician Kumar and examining psychiatrist Heidenfelder, and relied on all hearing testimony and the record to demonstrate that Plaintiff's subjective allegations of debilitating pain and general depression were "extreme," and ultimately, "not fully credible." AR at 19.
In support of this finding, the ALJ first noted that Plaintiff had not engaged in substantial gainful activity since soon after his on-the-job injury. Id. Second, the ALJ explained that Plaintiff's medically determinable impairments of major depressive disorder and status post back and neck injury were indeed "severe," but not so severe as to meet or equal those impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1; the ALJ also underlined that neither a treating nor examining nor consulting physician had opined that Plaintiff suffered from any impairment of listing severity. AR at 16, 18. Next, the ALJ assessed Plaintiff's residual functional capacity, analyzing both Plaintiff's subjective allegations and the opinions and assessments of consulting and examining physicians and psychiatrists. AR at 18-19. The ALJ rejected Plaintiff's subjective complaints, finding his allegations of total disability inconsistent with his treatment record. AR at 19-20. Specifically, the ALJ highlighted that Plaintiff had not sought treatment for his alleged difficulty in using his hands, had discontinued taking any medications for his major depressive disorder, was not taking any medication for pain, and required neither special accommodations nor assistive devices to relieve his pain or other symptoms. Id. Moreover, the ALJ noted that all treatment Plaintiff received for his cervical spine had been "very sporadic and intermittent," and had "reflected a very conservative approach." AR at 19. The ALJ also accentuated that Plaintiff's ability to engage in daily activities and social pursuits contradicted his complaints of physical weakness. AR at 20. Finally, with regard to the examining providers' opinions, the ALJ adopted the opinions of Drs. Kumar and Heidenfelder, who most recently assessed Plaintiff as follows:
The ALJ equally dismissed Plaintiff's counsel's arguments that Plaintiff suffers from an impairment under listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), and/or 12.07 (somatoform disorders), finding that the evidence presented failed to establish at least marked restriction of activities of daily living, difficulties in social functioning, or trouble maintaining concentration, persistence, or pace. AR at 18.
The ALJ further indicated that Plaintiff's brain cyst was "asymptomatic," and determined that on the record, there existed no significant limitations associated with the cyst. AR at 19.
[Plaintiff] is limited to 20 pounds of lifting occasionally, and 10 pounds frequently, and stand/walk for six hours in an eight hour workday, and sit for six hours. He is moderately impaired in his ability to comply with job rules such as safety and attendance, and moderately impaired in ability to respond to change in the normal workplace setting.Id.
Although he described the assessments of Plaintiff's numerous health care providers, the ALJ opted to accord the most weight to the opinions of examining Drs. Kumar and Heidenfelder, "particularly inasmuch as [Plaintiff] acknowledged that he has not received any significant, ongoing medical treatment because of a lack of insurance." AR at 19. For example, the ALJ discounted the residual functional capacity assessment of Dr. Korsh based on the limited time period during which Dr. Korsh treated Plaintiff, and because the opinion was merely a temporary recommendation with regard to disability. AR at 18. Moreover, the ALJ gave only moderate weight to the assessment and opinion of orthopaedic surgeon Larry Dodge, characterizing the opinion as "generally consistent with the medical evidence of record taken as a whole." AR at 18-19. Finally, the ALJ concluded that the assessments performed by State Agency physicians, as non-examining sources, were to be given little weight. AR at 19.
Having thus evaluated Plaintiff's residual functional capacity, the ALJ then examined whether Plaintiff could perform any of his past relevant work. Id. In particular, the ALJ highlighted the VE's testimony, which provided that Plaintiff's residual functional capacity, however sedentary, did not prevent him from engaging in his prior work of telemarketer or dispatcher. AR at 21. Considering this testimony, and based on the ALJ's own assessment of the record, medical evidence, and Plaintiff's subjective allegations, the ALJ concluded that Plaintiff was not disabled. AR at 21-22.
LEGAL STANDARD
To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) he suffers from a medically determinable impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of twelve months or more; and (2) the impairment renders the applicant incapable of performing the work that he previously performed or any other substantially gainful employment that exists in the national economy. 42 U.S.C. § 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be considered "disabled." Id.
The Secretary of the Social Security Administration has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines whether the claimant is engaged in "substantial gainful activity." If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision maker proceeds to step two, which determines whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c).
Where the claimant does not have a severe impairment or combination of impairments, the disability claim is denied. Where the impairment is severe, the evaluation proceeds to the third step, which determines whether the impairment is equivalent to one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. § 404, Subpart P, Appendix 1. If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents the claimant from performing work he has performed in the past. A claimant who is able to perform his previous work is not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant cannot perform his previous work, the fifth and final step of the process determines whether he is able to perform other work in the national economy in view of his age, education, and work experience. The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of the Social Security Commissioner's final decision. 42 U.S.C. § 405(g). The scope of judicial review is limited. The Commissioner's denial of benefits will not be disturbed if it is supported by substantial evidence and contains no legal error. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
Substantial evidence means "more than a mere scintilla but may be less than a preponderance." Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It is "relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion." Id. (citation omitted); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (finding substantial evidence in the record despite ALJ's failure to discuss every piece of evidence). Where the evidence can reasonably be construed to support more than one rational interpretation, the court must uphold the ALJ's decision. Batson, 359 F. 3d at 1193. This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts. See Lewis, 236 F.3d at 509.
Even if the reviewing court finds that substantial evidence supports the ALJ's conclusions, the court must set aside the decision if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching his or her decision. See Batson, 359 F.3d at 1193. Section 405(g) permits a court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the matter to the Social Security Administrator for further proceedings. Id.
DISCUSSION
Plaintiff contends that he has been disabled from approximately February 18, 2001 to the present, and as a result, is entitled to receive disability benefits and supplemental social security income. Specifically, Plaintiff argues that the ALJ erroneously denied his claim for such benefits by failing (1) to incorporate in hypotheticals posed to the VE all Plaintiff's mental and physical limitations, (2) to weigh and resolve conflicting assessments made by examining psychiatrist Heidenfelder and MFT Letty Meskin with regard to Plaintiff's residual functional capacity, and (3) to articulate specific reasons for his refusal to credit Plaintiff's subjective allegations of pain. Plf's Mem. at 9-14. For these reasons, Plaintiff asserts that the ALJ's opinion was not supported by substantial evidence.Defendant counters that the hypotheticals posed by the ALJ adequately included all limitations allegedly suffered by Plaintiff, and as such, claims that the VE's testimony was both reliable and appropriately considered by the ALJ in determining Plaintiff's ability to perform his past relevant work. Def's Mem. at 6-7. Defendant also contends that the ALJ was not obligated either to address or resolve any conflicting opinions advanced by Letty N. Meskin, M.A., MFT, because a MFT is not an acceptable source of medical evidence under the applicable Regulations.Id. at 7-8. Finally, Defendant argues that the ALJ not only properly considered Plaintiff's subjective allegations of disabling pain, but also clearly articulated numerous factors in support of his determination that such allegations were not credible. Id. at 8-10. In conclusion, Defendant maintains that the ALJ properly evaluated the medical evidence and testimony presented, and issued a decision denying Plaintiff's claim or disability benefits supported by substantial evidence and free from reversible legal error.
A. Hypotheticals Posed to the Vocational Expert
As noted above, a disability claimant makes a prima facie showing of disability by establishing that his impairments prevent him from performing his previous work. See DeLorme v. Sullivan, 924 F.2d 841, 849-50 (9th Cir. 1991). The burden then shifts to the Secretary to prove that the claimant can perform either his prior work, or in the very least, other work available in the national economy. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). The Secretary, and in practice, the ALJ, "may carry this burden by eliciting the testimony of a vocational expert in response to a hypothetical that sets out all the limitations and restrictions of the claimant," both mental and physical. Id. Should the ALJ's hypotheticals not include all limitations supported by the record, however, the court need not attribute any evidentiary value to the expert's testimony. See DeLorme, 924 F.2d at 850.
Plaintiff maintains that the hypotheticals posed to the VE were insufficient because they failed to incorporate all functional limitations allegedly suffered by Plaintiff. Plf's Mem. at 9-10. In particular, Plaintiff takes issue with the second hypothetical, claiming that it failed to instruct the VE that his moderately limited ability to comply with job rules specifically included such rules as safety and attendance. Id. Plaintiff further emphasizes this discrepancy by highlighting that the hypothetical concluded its list of limitations with "otherwise not impaired," thereby effectively eliminating these two examples from the VE's consideration. Id.
Specifically, the ALJ inquired:
Q: Okay. The second hypothetical is the psychiatric consultative examination, November 2002, indicating a major depressive disorder, GAF 55, moderate impairments in complying with work rules, respond to changes in work settings, otherwise not impaired, 14F-5.
A: 14F-5?
Q: So if you will, look at 14F-5. Also consider the — orthopedic consultative exam in November of 2002 which indicates light work — at 13F-5. How would that impact on his former work?
A: One moment please. I believe he could perform those same jobs, Your Honor.
AR at 438-39.
Although Plaintiff correctly asserts that where "the hypothetical does not reflect all the claimant's limitations . . . the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy," that is not the case here. See DeLorme, 924 F.2d at 850. For example, this ALJ specifically inquired how Plaintiff's major depressive disorder, moderate impairments in his ability both to comply with work rules and to respond to changes in the workplace, and ability to engage only in light work would impact Plaintiff's ability to perform his past work, if at all. AR at 438. Next, and perhaps most importantly, the ALJ clearly instructed the VE to review and consider the opinions, diagnoses, and recommendations of Drs. Heindenfelder and Kumar prior to offering her response, providing her with specific references to the record in order to do so. Id. After having thus reviewed and considered the relevant medical records, the VE testified that despite the stated limitations, Plaintiff could still perform his past work of dispatcher and telemarketer. Id. at 439. As such, while the ALJ's hypothetical may not have included a verbatim recitation of Dr. Heidenfelder's precise language, the VE was properly instructed to credit fully a specific portion of the record, which she had before her for immediate review. Consequently, the ALJ's hypothetical adequately incorporated all examples of job or work rules enumerated by Dr. Heidenfelder by virtue of the fact that the ALJ advised the VE both to examine and credit specific medical records before offering her response. See Torres v. Sec'y of Health Human Servs., 870 F.2d 742, 745-46 (1st Cir. 1989) (holding that an ALJ's hypothetical, which referred to a limited, unambiguous medical record, appropriately included all claimant's limitations).
Moreover, any alleged discrepancies in the hypothetical, as posed to the VE, were minimal. Indeed, unlike in DeLorme andEdlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001), where the hypotheticals posed excluded from consideration an entire limitations category, namely, the claimant's significant mental impairments, the ALJ here included all impairment categories and levels. In fact, Plaintiff acknowledges that the ALJ included the "work rule" limitation, he merely argues that the ALJ failed to state clearly that the work rule limitation included rules such as safety and attendance. Any ambiguity presented by the ALJ's hypothetical, however, could have been remedied by counsel on cross-examination; Plaintiff's counsel did not attempt to clarify this limitation during the administrative hearing, and therefore waived judicial review of this issue. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (holding that at least where disability claimants are represented by counsel, "they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal"). In addition, Dr. Heidenfelder's opinion, which the VE was instructed to consider, stated that Plaintiff was moderately impaired in his ability to comply with job rules such as safety and attendance. AR at 345. Accordingly, the hypothetical did include "safety and attendance." But, even if Dr. Heidenfelder had not specifically included the examples of safety and attendance, "work rules," by their very description, incorporate countless examples like safety and attendance. The challenged hypotheticals sufficiently included all relevant rules and limitations. As a result, the ALJ's reliance on the VE's testimony was proper and substantial evidence supported his opinion.
B. Opinions Offered by the Examining Psychiatrist and the Marriage and Family Therapist
Plaintiff next contends that the ALJ failed to weigh and resolve conflicting assessments made by examining psychiatrist Heidenfelder and MFT Letty Meskin, and therefore erroneously denied his disability benefits claims. Plf's Mem. at 10-11. In support, Plaintiff argues that the ALJ's acknowledgment of the findings and diagnoses of MFT Meskin were cursory, and merely alluded to the fact that Meskin performed a psychological evaluation and noted Plaintiff's depression and anxiety secondary to a work-related injury. Id. According to Plaintiff, the ALJ failed to address Meskin's additional assessment that he was temporarily totally disabled due to his psychiatric disabilities, and instead proceeded to afford great weight to Dr. Heidenfelder's opinion that he suffered from only moderately impaired abilities. Id. In other words, Plaintiff declares that the ALJ offered no explanation regarding how he reconciled these two conflicting reports, or any indication that he attempted to reconcile them at all.
1. "Acceptable" Medical Sources
With regard to medical evidence and related testimony, the Code of Federal Regulations distinguishes between those opinions derived from "acceptable medical sources," which the ALJ must credit, and those obtained from "other sources." See Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996) (citing 20 C.F.R. §§ 404.1513(a) and (e) (2005); 20 C.F.R. §§ 416.913(a) and (e) (2005) (distinguishing between "acceptable medical sources" and "other sources" such as therapists and social welfare agencies)). Included among those medical sources considered "acceptable" are licensed physicians (medical or osteopathic doctors), licensed or certified psychologists, including school psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. See 20 C.F.R. § 404.1513(a) (2005); 20 C.F.R. §§ 416.913(a) (2005). When presented with conflicting medical opinions — one from an acceptable source and another from a source not accepted under the Regulations — the ALJ need not specifically accept or refute the evidence offered from the "unacceptable" source of medical evidence. See Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990), rev'd on other grounds, 947 F.2d 341 (9th Cir. 1991) (en banc) (explaining that there exists no requirement that the ALJ accept or refute evidence offered by a medical source, such as a chiropractor, not considered acceptable under the Regulations).
As Defendants correctly argue, Letty N. Meskin, a marriage and family therapist, is classified as an "other source" under the applicable Regulations. Accordingly, any opinion offered by Meskin, if found to conflict with a medical opinion presented by a source considered "acceptable" under the Regulations, need not be accepted or refuted by the ALJ. Id. As a result, because MFT Meskin is not a doctor, psychologist, or other such "acceptable" medical source, the ALJ did not err by neither accepting nor refuting her opinion with regard to the severity of Plaintiff's impairments.
2. "Conflicting" Opinions
Plaintiff insists, however, that the ALJ failed to reconcile the "conflicting" reports of MFT Meskin and Dr. Heidenfelder, and therefore erroneously denied his disability benefits claims. Plf's Mem. at 10-11. While Plaintiff is correct that the ALJ is charged with resolving conflicts and ambiguities in medical evidence presented in support of an individual's disability claim, see Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), Plaintiff misinterprets this standard as being applicable to the evidence at issue. In particular, Plaintiff incorrectly assumes that MFT Meskin's opinion is akin to that of an "acceptable" source of medical evidence, which, as explained more fully above, it is not. As such, even if MFT Meskin's opinion does conflict with that of Dr. Heidenfelder, the ALJ is under no burden to summarize the conflicting evidence, to state his interpretation thereof, or to make detailed determinations based on substantial evidence in the record. Id. at 750-51; see also Bunnell, 912 F.2d at 1152. Such analysis is only required where the ALJ chooses to reject the opinion of a treating physician which conflicts with that of an examining physician. See Magallanes, 881 F.2d at 751. Consequently, Plaintiff's argument that the ALJ failed to resolve conflicting assessments made by Dr. Heidenfelder and MFT Meskin is without merit.
In any event, the Court questions whether the determinations of Dr. Heidenfelder and MFT Meskin conflict to the extent that Plaintiff suggests. For example, after examination, both MFT Meskin and Dr. Heidenfelder diagnosed Plaintiff as suffering from major depressive disorder as a result of injuries sustained while employed as a plater. AR at 268-69; 344-45. Both MFT Meskin and Dr. Heidenfelder noted Plaintiff's history of a ruptured disk at his cervical spine. AR at 268, 344. Both MFT Meskin and Dr. Heidenfelder cited pain, lack of sleep, anxiety, depression, and self-imposed isolation among Plaintiff's psychosocial stressors. AR at 268, 341-44. Both MFT Meskin and Dr. Heidenfelder assessed Plaintiff's GAF score at fifty-five. AR at 268, 344. Both MFT Meskin and Dr. Heidenfelder recommended that Plaintiff follow a frequent and prolonged psychiatric treatment regimen in order to address his depression. AR at 270, 345. In fact, the only finding by MFT Meskin that differs from that of Dr. Heidenfelder is her conclusion that Plaintiff was temporarily totally disabled as a result of his depression, whereas Dr. Heidenfelder determined that Plaintiff was only moderately impaired in his ability to comply with job rules and to respond to changes in the workplace. AR at 269, 345. This difference of opinion, however, can be understood by the fact that Meskin's opinion was formed some thirteen months prior to Dr. Heidenfelder's, and was intended as only a temporary assessment of Plaintiff's limitations. AR at 260-71. Accordingly, the opinions do not so much conflict as they illustrate, from two different individuals' perspectives, the nature and extent of Plaintiff's symptoms of depression at two particular points in time.
3. Failure to Discuss "Other Source" Evidence
In a final note, when interpreting the medical evidence presented and developing the record, the ALJ is not required to discuss every piece of evidence offered in support of a disability claimant's allegations. See Howard ex rel. Wolff, 341 F.3d at 1012 (finding substantial evidence in the record despite ALJ's failure to discuss every piece of evidence); see also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (explaining that the ALJ is not obligated to describe all evidence presented, but must justify why significant probative evidence has been rejected) (citation omitted)). In short, the ALJ must consider and analyze all evidence that is either significant or probative of a given disability claim, make findings, and explain why any such evidence has been rejected, if at all. Id.
As discussed above, MFT Meskin's factual findings were extremely similar to those of Dr. Heidenfelder, which the ALJ discussed in detail and incorporated into his hypotheticals. AR at 17. Moreover, in his description of the medical evidence, the ALJ did reference and consider some of Meskin's findings. Id. Finally, the ALJ did not reject any of Meskin's findings, so the ALJ was not required to provide reasons supporting such a rejection. See Lewis, 236 F.3d at 511 (noting that "[l]ay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.") (citation omitted); see also Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
The ALJ did choose to ignore Meskin's 2001 opinion that Plaintiff was temporarily disabled. Because, as discussed above, Meskin was not an acceptable medical source, the ALJ was not required to accept or refute the opinion. Accordingly, he did not err by not distinguishing or considering this opinion. Moreover, because Meskin was not an acceptable medical source, the ALJ was only required to consider her findings and evidence as lay witness testimony. See 20 C.F.R. §§ 404.1513(e) and 416.913(e) (2005) (claimants may offer evidence and testimony from "other sources" in support of the severity of his or her impairments);Sprague v. Bowen, 812 F.2d 1226, 1231-32 (9th Cir. 1987) (lay witness testimony is "qualified evidence" that the ALJ must consider).
The ALJ did not selectively analyze, disregard, or reject the evidence offered by Meskin; instead, he considered Meskin's evidence as required, acknowledging that she evaluated Plaintiff's psychiatric limitations and their alleged impact on Plaintiff's ability to work in late October 2001. AR at 17. The ALJ noted certain of MFT Meskin's findings, and proceeded to focus in greater detail on the most probative medical evidence of Plaintiff's depression on the record: the more recent opinion of Dr. Heidenfelder. See Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985) (noting that because the disability claimant's condition continued to deteriorate, the most recent medical records were the most probative); see also Magallanes, 881 F.2d at 754-55 (same). In other words, the ALJ did not fail to provide specific reasons for his rejection of the lay evidence provided by MFT Meskin; he did not reject the evidence at all. He simply opted to address in greater detail the most significant, probative evidence of Plaintiff's psychiatric limitations. Because the ALJ is not required to expound upon every piece of evidence in his written decision, his failure to discuss Meskin's October 2001 opinion that Plaintiff was temporarily totally disabled therefore was not error.
Based on the foregoing, this Court determines that the ALJ's decision to focus primarily on the findings of the examining psychiatrist who most recently evaluated Plaintiff was both reasonable and proper. In sum, the ALJ's decision as a whole is based on substantial, "relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support" his conclusion. Lewis, 236 F.3d at 509.
C. Analysis of Plaintiff's Subjective Symptom Testimony
When determining whether to accept or reject a disability claimant's subjective symptom testimony, the ALJ must perform a two-part analysis. First, the ALJ must apply the analysis presented in Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986), and affirmed in Bunnell v. Sullivan, 947 F.2d 341, (9th Cir. 1991) (en banc). Specifically, the Cotton analysis requires that the claimant (1) produce objective medical evidence of an impairment or impairments, and (2) establish that the impairment or combination of impairments could reasonably be expected to, and not that it did in fact, produce some degree of symptom. See Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996); see also Cotton, 799 F.2d at 1407-08. Second, the ALJ must analyze the credibility of the disability claimant's testimony with regard to the severity of his or her symptoms. See Smolen, 80 F.3d at 1281. Should the disability claimant present evidence meeting theCotton test, and there is no evidence of malingering, the ALJ may choose to reject the claimant's account of his or her symptoms only by offering specific, clear and convincing reasons therefor. See Dodrill, 12 F.3d at 918. General findings are not enough; rather, the ALJ must clearly identify what testimony is not credible and what evidence undermines the claimant's allegations. See Lester, 81 F.3d at 834. Moreover, any findings regarding credibility that the ALJ ultimately makes should be given great weight. See Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Finally, if the ALJ improperly rejects a disability claimant's subjective symptom testimony, and that claimant would have been characterized as disabled had his or her testimony been credited, that claimant's testimony is credited as a matter of law. See Varney v. Sec'y of Health and Human Servs., 859 F.2d 1396, 1401 (9th Cir. 1988).
As the Smolen Court highlights, the Cotton approach "reflects the highly subjective and idiosyncratic nature of pain and other such symptoms." Smolen, 80 F.3d at 1282; see also Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). For example, the amount of pain resulting from a particular physical impairment varies greatly from individual to individual. See Fair, 885 F.2d at 601. As such, the ALJ cannot reject a disability claimant's subjective symptom testimony under theCotton analysis merely "because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen, 80 F.3d at 1282 (emphasis in original).
When determining whether a disability claimant's testimony regarding the severity of the symptoms alleged is credible, the ALJ may consider:
(1) the claimant's reputation for lying, (2) prior inconsistent statements concerning the symptoms, (3) other testimony by the claimant that appears less than candid, (4) an unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, (5) the claimant's daily activities.See Fair, 885 F.2d at 602-04; see also Bunnell, 947 F.2d at 346-47. In addition, to assist ALJs in making the required findings with regard to credibility, the Secretary issued Social Security Ruling 88-13, which directs the ALJ to consider "all of the available evidence." See Bunnell, 947 F.2d at 346 (listing Social Security Ruling 88-13 factors, which include (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain, (2) precipitating and aggravating factors such as movement, activity, and environmental conditions, (3) type, dosage, effectiveness, and adverse side-effects of any pain medication, (4) treatment, other than medication, for pain relief, (5) functional restrictions, and (6) the claimant's daily activities).
Plaintiff argues that the ALJ failed to articulate clear and convincing reasons to support the rejection of his subjective pain allegations. Plf's Mem. at 11-14. In particular, Plaintiff contends that he presented ample objective medical evidence of his physical and psychiatric impairments, and established that these impairments could reasonably be expected to produce those symptoms from which he suffers, therefore meeting the Cotton requirements. Id. at 12. Moreover, Plaintiff underlines that there exists neither evidence to suggest his malingering nor such a finding from the ALJ. Id. Plaintiff insists that because the ALJ merely rejected his subjective pain testimony in general, that testimony must be accepted as true as a matter of law. Id. at 13. As a result, Plaintiff requests that his case be remanded not merely to permit the ALJ to make specific findings related to his subjective symptom testimony, but instead to require the payment of benefits. Id. at 14.
In support of this result, Plaintiff maintains that "when the ALJ posed a hypothetical question based on [Plaintiff's] testimony, the vocational witness testified that he could not do his former work or sustain full time work." Plf's Mem. at 13;see also AR at 439.
In contrast, Defendant argues that the ALJ properly considered Plaintiff's subjective symptom testimony and clearly articulated numerous reasons in support of his determination that the testimony was not credible. Def's Mem. at 8-10. For example, Defendant highlights that the ALJ referenced and discussed credibility factors including, among others, Plaintiff's failure to seek treatment or take prescription medication for both his pain and depression, his significant daily activities and periodic volunteering, and his admissions related to his ability to lift, stand, carry weight, and walk short distances.Id. at 9-10. Having described such credibility factors, Defendant declares that the ALJ's decision was not arbitrary, and is therefore entitled to deference. Id. at 10. Finally, Defendant claims that Plaintiff's argument that the ALJ should have relied upon the VE's response to the final hypothetical posed-specifically, that Plaintiff could not perform his former work if his subjective symptom testimony were credited-mischaracterizes the record evidence. Id. According to Defendant, the VE's response to this hypothetical is irrelevant because the ALJ determined that Plaintiff's subjective symptom testimony was not credible. Id.
In this case, the ALJ made specific findings to support his determination that Plaintiff's complaints of disabling pain were exaggerated, and that Plaintiff failed to seek treatment commensurate with the pain alleged. For example, the ALJ noted that since his 2002 cervical spine surgery, Plaintiff's treatment for his back and neck pain has been sporadic, intermittent, and has reflected a very conservative approach. AR at 19-20, 424-26. The ALJ also confirmed that the medical records presented did not indicate that Plaintiff required any special accommodations to relieve his pain or other symptoms. AR at 20. Moreover, the ALJ underlined that Plaintiff has sought medical treatment for high blood pressure and asthma, suggesting that if he had actually been experiencing debilitating pain, he would have described this pain to the physician consulted for these other two conditions and sought treatment. AR at 19, 421-22, 433. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (concluding that the ALJ did not erroneously discount claimant's testimony of excess pain by highlighting that, among other things, the ALJ noted the lengthy absence of medical treatment for claimant's back problem, which suggests that had claimant actually been suffering from the debilitating pain claimed, she would have sought medical treatment); see also Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993) (noting the ALJ's reference to claimant's prolonged failure to seek treatment for a back condition in support of his determination that claimant's subjective symptom allegations were not credible). Similarly, the ALJ acknowledged Plaintiff's admission that he did not take any medication for pain, and again hypothesized that he could have advised those physicians from whom he was receiving treatment of his need for relief. AR at 19, 422. See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (observing that in support of his refusal to credit claimant's complaints of pain, the ALJ emphasized that claimant did not take pain medication). As such, the ALJ identified several contradictions between claimant's testimony related to excess pain, [AR at 424], and the relevant medical evidence.
The ALJ additionally noted that the medical evidence fails to indicate that those medications that Plaintiff does take are ineffective or cause debilitating side effects. AR at 20.
As with Plaintiff's complaints of disabling pain, the ALJ also identified inconsistencies in the extent of Plaintiff's major depressive disorder and the amount of treatment Plaintiff sought as a remedy. Specifically, the ALJ highlighted Plaintiff's testimony that he neither took medication nor received treatment for his major depressive disorder because his depression "ha[d] subsided." AR at 19, 423-24, 435. Moreover, the ALJ observed that while the medical evidence confirmed that Plaintiff has a brain cyst, the cyst is asymptomatic, has not grown or changed significantly for at least two years, imposes no limitations on Plaintiff, and, in terms of treatment, requires only an annual MRI. AR at 19, 430. Despite this admission, Plaintiff testified that he continued to suffer from depression, often experienced sadness due to his limitations, and worried regularly about his brain cyst. AR at 423-24, 430-31, 435. As a result, with regard to Plaintiff's claims of depression, the ALJ articulated a number of contradictions between Plaintiff's testimony and the relevant medical evidence, as well as cited several inconsistencies within Plaintiff's own testimony. See Johnson, 60 F.3d at 1434 (citing Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984), for the proposition that the court "will not reverse credibility determinations of an ALJ based on contradictory or ambiguous evidence"); see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (explaining that the ALJ pointed out several areas in which claimant's testimony was inconsistent with both his own statements and the medical evidence in making his determination to reject claimant's testimony).
Finally, a review of the ALJ's consideration of Plaintiff's claims of physical weakness reveals that Plaintiff's allegations are undermined by his varied daily and social activities. For example, the ALJ remarked that although Plaintiff claimed to suffer from extreme weakness and numbness in his hands, he had not sought treatment to address these problems. AR at 19, 421-22. Moreover, the ALJ commented that Plaintiff is able to cook his own meals, take short walks, watch television, listen to music, do light cleaning, read, do research for his fraternity, and care for his own personal hygiene and other needs. AR at 20, 152-57, 426-28. The ALJ also underscored Plaintiff's testimony that on a daily basis, he drives himself to the library to check his electronic mail, returning home after approximately one hour. AR at 20, 426-27. In addition, the ALJ emphasized that Plaintiff attends fraternity meetings twice a month, and occasionally serves as a volunteer for that organization. AR at 20, 427-28. Consequently, the ALJ stated ample, specific reasons for discrediting Plaintiff's allegations of physical weakness. See Matthews, 10 F.3d at 679-80 (ALJ describing that claimant's back pain and related limitations did not preclude his performance of housecleaning, light gardening, and shopping); see also, Fair, 885 F.2d at 604 (noting that claimant "remain[ed] capable of caring for all his own personal needs, the performance of his own routine household maintenance and shopping chores, riding public transportation, and driving his own automobile").
Given this extensive list, this Court finds that the ALJ appropriately discounted Plaintiff's credibility related to his allegations of debilitating pain, depression, and physical weakness with specific, clear, and convincing reasons. In addition, this Court notes that the ALJ's decision to afford greater weight to the 2002 opinions of examining physicians Kumar and Heidenfelder-particularly because Plaintiff had not received any significant, ongoing medical treatment due to a lack of insurance — was appropriate; in this case, the ALJ could reject such a claim because Plaintiff has sought appropriate medical care from licensed physicians for other medical symptoms such as asthma and high blood pressure. In other words, the ALJ was entitled to draw an inference from Plaintiff's general lack of medical care for both his back and neck pain and his depression.See Flaten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1464 (9th Cir. 1995) (citing Fair, 885 F.2d at 603 ("finding it appropriate to consider `an unexplained, or inadequately explained, failure to seek treatment'")). Accordingly, this Court finds that the ALJ's statement of specific reasons for discrediting Plaintiff's subjective symptom testimony was sufficient. See Orteza, 50 F.3d at 750 (instructing that when assessing a claimant's subjective symptom testimony, an ALJ "is clearly allowed to consider the ability to perform household chores, the lack of side effects from prescribed medications, and the unexplained absence of treatment for excessive pain").
In a final note, Defendant's claim that Plaintiff misconstrues the record evidence with regard to the fourth hypothetical posed by the ALJ is well taken. Specifically, Plaintiff attempts to argue that because the VE confirmed that Plaintiff could not perform either his former work or other work available in the national economy, assuming Plaintiff's subjective allegations of pain and depression were credited as true, the ALJ's decision that Plaintiff was not disabled was legally erroneous and not based on substantial evidence. As discussed above, the ALJ provided appropriate reasons for not crediting Plaintiff's subjective allegations of pain and depression and, therefore, the ALJ did not err in rejecting the VE's hypothesis based on those allegations. The ALJ is not required to consider a VE's opinion when it is based upon facts the ALJ determines to be inaccurate. The mere fact that the ALJ poses a hypothetical question incorporating certain facts does not mean that the ALJ has determined those facts to be accurate. Accordingly, this Court finds Plaintiff's final argument to be without merit.
In conclusion, this Court finds that the ALJ posed appropriate hypotheticals that incorporated all Plaintiff's mental and physical limitations. This Court also concludes that the ALJ's failure to address in detail the opinion of Letty N. Meskin was not error because Meskin, as a marriage and family therapist, is not a medical source considered "acceptable" under the applicable Regulations, her findings were extremely similar to those of Dr. Heidenfelder, which were addressed in detail, and the ALJ was not obligated to provide detailed commentary with regard to every piece of evidence offered in support of Plaintiff's disability claims. Finally, this Court finds that the ALJ amply articulated specific reasons for his refusal to credit Plaintiff's subjective allegations of debilitating pain, depression, and physical weakness. Accordingly, this Court concludes that Plaintiff's arguments that the ALJ's decision was based on legal error and not supported by substantial evidence are unfounded.
CONCLUSION AND RECOMMENDATION
In light of the foregoing, this Court finds that the ALJ's decision in this case was supported by substantial evidence in the record as a whole and was free from legal error. Accordingly, this Court RECOMMENDS that Defendant's cross-motion for summary judgment [Doc. No. 9] be GRANTED and Plaintiff's motion for summary judgment [Doc. No. 12] be DENIED.
This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1).
IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than February 24, 2006. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 24, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).