Opinion
No. C 01-4489 MMC
April 6, 2004
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Richard J. McCormick ("McCormick") brings the above-entitled action, pursuant to 42 U.S.C. § 405 (g), for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits pursuant to Titles II and XVI of the Social Security Act ("the Act"). Before the Court is McCormick's motion for summary judgment 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.
BACKGROUND
McCormick was born on October 18, 1961. (See Tr. 132.) He has an 11th grade education. (See Tr. 149.) From 1979 to 1980, he worked in an automobile body shop. (See id.) He worked as a roofer from 1982 to 1985, and as a drill press operator in 1986. From 1998 through 1990, he worked as a night manager in a fast food restaurant. (See Id.) For approximately six months in 1991, he worked as a cabinet stainer. (See Tr. 38, 149.) McCormick worked as a production assistant in a brewing company from 1991 to 1993, and was terminated from that position on August 2, 1993. (See Tr. 147, 149.) He has not worked since that date. (See Tr. 35, 40.)
On April 22, 1998, McCormick filed applications for disability benefits and supplemental security income ("SSI") benefits, alleging that he has been unable to work since February 3, 1993, as a result of injuries to his back, neck, right shoulder, and rib, in addition to depression and ulcers and other stomach problems. (See Certified Transcript of Administrative Proceedings ("Tr.") 132-134, 147, 355-357.) After the application was denied initially and on reconsideration by the Social Security Administration (see Tr. 95-98, 102-06, 359-362, 364-368), McCormick requested a hearing before an Administrative Law Judge ("ALJ"). (See Tr. 108).
On October 5, 1999, the ALJ conducted a hearing at which McCormick appeared without representation. (See Tr. 30-92.) The ALJ heard testimony from two witnesses: McCormick and a vocational expert ("VE"). (See Id.) At the hearing, McCormick amended the date of onset of his alleged disability to August 2, 1993. (See Tr. 40.)
On November 8, 1999, the ALJ issued her decision (See Tr. 14-26), and found McCormick not disabled based on the five-step sequential evaluation process set forth in the Code of Federal Regulations. See 20 C.F.R. § 404.1520, 416.920. (See Tr. 17.) At step one, the ALJ concluded that McCormick has not engaged in substantial gainful activity since August 2, 1993. (See Tr. 21, 25.) At step two, the ALJ found McCormick has "severe impairments of degenerative changes of the cervical spine with some disc protrusion at C5-6, cervical strain, right shoulder impingement syndrome, and chronic peptic ulcer disease." (See Tr. 25.) The ALJ also found that McCormick's "adjustment disorder, marijuana use, bilateral inguinal hernias and a small umbilical hernia and headaches do not represent severe impairments." (See Id.) With respect to step three, the ALJ concluded that McCormick's severe impairments did not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, because McCormick "lacks the requisite muscle spasm, significant limitation of range of motion and radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss of Listing 1.05C" and there was no "evidence that any of claimant's other conditions meet or equal a listing." (See Tr. 21, 25.)
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's not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other 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).
Turning to step four, the ALJ concluded that McCormick, despite his severe impairments, could perform his past work as a fast food manager and thus was not disabled. (See Tr. 24.) The ALJ also concluded, at step five, that McCormick had the residual functional capacity ("RFC") to perform work "at the light exertional level with the ability to perform occasional climbing, balancing, stooping, kneeling and crouching and the need to avoid frequent overhead lifting." (See Tr. 25.)
McCormick requested review of the ALJ's decision by the Appeals Council, which denied the request on September 24, 2001. (See Tr. 7-9.) Thereafter, McCormick commenced this action for judicial review pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence in the record as a whole 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." 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 AL J'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.
The claimant has the burden of proving a disability within the meaning of the Act. See Maounis v. Heckler. 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, for purposes of both disability benefits and SSI benefits, a claimant is considered disabled when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A), 1382c(3)(A).
DISCUSSION
McCormick argues the ALJ's decision should be reversed with directions to award benefits, or in the alternative, the matter should be remanded for further proceedings. McCormick asserts the ALJ erred by: (1) failing to provide specific and legitimate reasons for rejecting the opinion of his treating physician, Robert Rushton, M.D. ("Dr. Rushton"); (2) substituting her own medical opinion for those of the treating physicians; (3) concluding that McCormick's daily activities supported a finding he was not disabled; (4) concluding that McCormick's previous work as a fast food manager constituted substantial gainful activity; and (5) failing to fully develop the record.
A. The ALJ Did Not Err by Rejecting the Treating Physician's Opinion That McCormick Was Too Disabled to Work
McCormick argues that the ALJ erred by rejecting the opinion of his treating physician, Dr. Rushton. Dr. Rushton opined that McCormick's impairments precluded him from engaging in all work. (See Tr. 317-318.) The ALJ credited the opinions of examining physician Steven McIntire M.D. ("Dr. McIntire") and the Disability Determination Services medical advisors, all of whom opined that McCormick's impairments did not preclude him from working at the light exertional level. (See Tr. 270-273, 247-254, 333-340.)
The regulations define "light work" to involve "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" and "a good deal of walking and standing."See 20 C.F.R. § 404.1567(b), 416.967(b). "Since frequent lifting or carrying requires being on one's feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday."See SSR 83-10. "Sitting may occur intermittently during the remaining time." See id. The VE testified that the job of fast food manager is classified as light work. (See Tr. 76, 78, 79-80.)
1. Legal Standard
"Because treating physicians are employed to cure and thus have a greater opportunity to know and observe the patient as an individual, their opinions are given greater weight than the opinions of other physicians." Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (citations omitted). Where the treating physician's opinion contradicts the opinion of an examining or consulting physician, the Commissioner must provide "`specific and legitimate reasons' supported by substantial evidence in the record" for rejecting the treating physician's opinion. See Lester v. Chater. 81 F.3d 821, 830 (9th Cir. 1996) (quoting Murray v. Heckler. 722 F.2d 499, 502 (9th Cir. 1983)); see also 20 C.F.R. § 404.1527(d)(2) (requiring the Social Security Administration always to "give good reasons in [the] notice of determination or decision for the weight [given to the] treating source's opinion"). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Magallanes v. Bowen, 881 F.2d at 751 (quoting Cotton v. Bowen. 799 F.2d 1403, 1408 (9th Cir. 1986));see also Social Security Ruling ("SSR") 96-2p ("the notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's opinion and the reasons for that weight.")
2. Opinions of Treating Physician Dr. Rushton
The earliest indication in the record of a therapeutic relationship between Dr. Rushton and McCormick is a letter from Dr. Rushton to Harry B. Matossian, M.D. ("Dr. Matossian"), dated November 19, 1997, in which Dr. Rushton asked Dr. Matossian for a current diagnosis of McCormick's ulcers. (See Tr. 332.) Dr. Rushton also noted, regarding McCormick's costochondritis, that a recent CT scan showed no abnormality other than asymmetry to his chest wall. (See id.) In February 1998, when McCormick complained of pain in his left posterior rhomboid group that had been bothering him for several weeks, Dr. Rushton recommended he try Flexeril. (See Tr. 330.)
Thereafter, Dr. Rushton's records for January 1998 indicate that he sent a letter to Dr. James Neel ("Dr. Neel") about McCormick. (See Tr. 331.) On January 23, 1998, Dr. Neel reported to Dr. Rushton the results of Dr. Neel's examination of McCormick conducted earlier that same day. (See Tr. 228.) Dr. Neel initially noted that McCormick told him he first developed soreness between his shoulder blades and in his right upper trapezius in early 1993, (See Tr. 228), and that he was treated by a chiropractor until August 1993, but suffered "epigastric discomfort/sternal pain" during the twisting portion of his chiropractic adjustments. (See Id.) McCormick told Dr. Neel that he was treated for a stomach ulcer in July 1993. (See. Tr. 229.) According to Dr. Neel, McCormick told him that his shoulder pain worsened between 1993 and 1995 and became more frequent, centering primarily in the intrascapular area, right shoulder, and sternum, and that his stomach/sternal pain persisted. (See id.) As described in Dr. Neel's records, Dr. G.J. Kucera reportedly determined McCormick's condition to be permanent and stationary in 1995, and felt that McCormick's condition did not preclude him from his usual and customary occupation. (See id., and Tr. 232.) McCormick told Dr. Neel that he developed severe sternal pain in the fall of 1997 following physical activity, went to the emergency room, and subsequently was presented to Dr. Rushton for evaluation. (See Tr. 229.) McCormick stated that he was told he had subluxation of a rib, was referred to someone in San Francisco, and was told that surgery was recommended. (See Id.)
At the time of Dr. Neel's evaluation, McCormick was complaining of intermittent discomfort, described as "like a spasm," in his central lower sternum, right upper trapezius and right intrascapular areas. (See Tr. 229.) McCormick also told Dr. Neel that the right side of his neck and right shoulder were stiff, the right side of his body felt weak, and he had "a sense of diminished sensation in his right thumb, index, and 3rd fingers about once a week." (See Tr. 230). McCormick also told Dr. Neel that he felt that he was unable to work. (See Tr: 231.) Dr. Neel noted that McCormick's 1997 chest x-ray, bone scan, and CT scan of his chest, all were negative. (See Id.)
In examining McCormick, Dr. Neel found McCormick's chest to be symmetrical, other than a "prominence over the right costochondral junction," and found tenderness over the right intrascapular region, and the right costochondral prominence. (See Id.) McCormick showed slightly diminished sensation throughout the right upper and lower extremities extending into the right face. (See Tr. 232.) His cervical range of motion was normal, however, and his shoulder range of motion was also normal except for right shoulder extension and internal rotation. (See Id.)
Dr. Neel stated in his report:
Mr. McCormick obviously presents a challenging problem. He clearly has an objective abnormality of the right lower costochondral junction. I am not sure I understand what this represents. There may be some degree of subluxation and/or chronic inflammation. Remarkably, his chest x-ray, bone scan, and chest CT scan were all negative.
(See Tr. 233.) Dr. Neel expressed some doubts about the causes of McCormick's symptoms, but recommended obtaining cervical films and injecting McCormick's right costochondral junction, as well as a program of stretching and strengthening. (See Tr. 234.) Dr. Neel concluded:
I doubt Mr. McCormick can return to his previous job which requires repetitive use of his right upper extremity in a repetitive pushing and pulling environment. It is my opinion that would only further exacerbate his current symptoms. That being the case, I think it is very important for Mr. McCormick to proceed with some sort of vocational program.
The "previous job" to which Dr. Neel refers is McCormick's employment at the Mendocino Brewery, (see Tr. 233), and not his position as night manager at the restaurant.
(See Tr. 234.) McCormick saw Dr. Rushton again on January 29, 1998. (See Tr. 331.) Dr. Rushton's notes indicate that Dr. Neel felt "there was nothing anyone could do," although it is unclear whether Dr. Rushton heard that statement from Dr. Neel himself or from McCormick. (See Id.) On April 2, 1998, Dr. Rushton's notes indicate that he received a copy of Dr. Neel's consultation and spoke with Dr. Neel by telephone. (See Tr. 329.) Dr. Rushton's notes of this conversation state:
He has never seen anything like this before. He says there is no x-ray proof he is subluxing but I am certain he is. He discussed an anesthesiologist could block his rib in both sections prior to recommended pulling the rib out. . . . [H]e recommended getting C-spine plain films, did not recommend C spine MRI, idea being maybe he has trapezius spasm which is generalizing down in the rhomboid., He wants to have followup as he has never seen anything like this[.]
(See Tr. 329.) Dr. Rushton's notes for April 6, 1998 state:
Will proceed in the above fashion, obtain C-spine films, if no evidence of any abnormalities, will go forward with an anesthesiologist at Dr. Meal's recommendation. If the C-spine films are suggestive of disc disease will obtain MRI of spine.
(See Tr. 326.)
In April 1998, Dr. Rushton and Dr. Matossian jointly referred McCormick to Jens Vinding, M.D. for an MRI of the cervical spine, based on McCormick's clinical history of cervical disc disease, and a gallbladder ultrasound study because of McCormick's clinical history of "atypical upper abdominal pain." (See Tr. 327-28.) As a result of the gallbladder study, McCormick was found to have "four or five sonar densities measuring between 2.0 and 4.0 mm in size . . . within the gall bladder . . . due to cholelithiasis." (See Tr. 328.) The cervical MRI showed a "forward shift of C6 on C5 with narrowing of disc space and some narrowing of neural foramen — particularly on the right." (See Tr. 327.) On May 11, 1998, another MRI of McCormick's cervical spine showed "[d]egenerative disc changes C5-6 with protruding disc posteriorly causing narrowing of neural foramen on the right side. Evidence for hypertrophic change [was] also noted." (See Tr. 323.)
On July 13, 1998, McCormick complained to Dr. Rushton about stomach pain and headaches and discussed his gallstones. (See Tr. 318.) Dr. Rushton recommended "chem 12, amylase" during or shortly after abdominal pain and recommended an "HIDA scan" shortly after such pain. (See Id.)
In order to fill out a Social Security form, Dr. Rushton also performed various tests relating to McCormick's neck and shoulder pain. (See Id.) He found that McCormick had full flexion forward, although he had difficulty turning his neck to the right, but that he had less than half the normal extension in his neck. (See Id.) Dr. Rushton also found that McCormick had an approximately 60 percent reduction in sensation in his right hand, and although his grip strength was equal in both hands, he had "subluxation and popping under joints[.]" (See Id.) Dr. Rushton further found "[n]o obvious atrophy other than . . . contracture of the rhomboid muscle group." (See Id.) Dr. Rushton's notes indicate that he told McCormick that "from [a] Medi-Cal standpoint [he] certainly is disabled." (See Id.)
On July 13, 1998, Dr. Rushton also informed McCormick that he was referring him to Dr. William Bracewell ("Dr. Bracewell") for an electroneuromyographic examination ("EMG"). (See id.) On August 12, 1998, Dr. Bracewell reported conducting an EMG on "the rhomboids, supraspinatus, infraspinatus, and the right posterior deltoid." (See Tr. 310.) Although "[n]o active motor denervation was noted," Dr. Bracewell found that "[m]otor unit changes were noted in the right deltoid which is consistent with the previous C6 motor unit changes." (See id.)
On August 25, 1998, Dr. Rushton wrote a letter to an unspecified recipient, which stated in its entirety:
Mr. McCormick is severely disabled from cervical disk disease. He is unable to work in any fashion. He will remain disabled for a period of one year. His disability dates back at least 5 years.
(See Tr. 317.)
In September 1998, Dr. Rushton's notes indicate that he and McCormick were looking forward to McCormick's consultation with a Dr. Hunstock later that month. (See Tr. 316.) In a June 14, 1999 letter to Dr. Rushton, Alan T. Hunstock, M.D. ("Dr. Hunstock") referred to McCormick's September 1998 visit to his office, and stated he believed that radiculopathy might be contributing to McCormick's pain and that surgery might be effective. (See Tr. 350.) Dr. Hunstock, a neurosurgeon, also felt that McCormick "had significant problems with his chest wall and rib disorder and this may have mimicked his current pain problem." (See id) Dr. Hunstock recommended that McCormick obtain a second neurological opinion and stated that if the consensus was to operate, he would be happy to proceed. (See id)
In a letter, dated October 14, 1998, and received by the State of California Department of Social Services Disability and Adult Programs Division on October 19, 1998, Dr. Rushton opined:
Mr. McCormick suffered a work comp injury in Feb of 1993 which was misdiagnosed but now appears to be a C6 cervical disk herniation with nerve root impingement. This has resulted in rhomboid muscle spasm and contracture. He is subluxing his rib anteriorly at the sternum and probably posteriorly where the posterior Right seventh rib connects with the T7 transverse process. He has markedly limited use of his right upper extremity secondary to this injury and he has therefore been disabled since 1993.
(See Tr. 314.)
On September 10, 1999, an MRI of McCormick's right shoulder was performed by Dr. Vinding at Dr. Rushton's request. (See Tr. 354.) Dr. Vinding found "some hypotrophic changes of the AC compartment" and "an indentation upon the supraspinatus muscle in the area where the muscular tendinous junction is located," as well as a "small amount of joint effusion." (See id.) Dr. Vinding found no other abnormalities, and concluded that McCormick had "apparent impingement syndrome due to hypotrophic changes of the AC compartment inferiorly." (See Id.)
In a letter dated October 1, 1999, Dr. Rushton opined:
Mr. McCormick suffered a work comp injury in Feb of 1993 which was misdiagnosed but now appears to be a C6 cervical disk herniation with nerve root impingement.
His job involved a mechanical type of twisting motion from right to left which always occurred in a regular fashion in the same posture at a rapid frequency throughout the day.
He also has rhomboid muscle spasm and contracture although it is improving. He is subluxing his seventh rib anteriorly at the sternum and probably posteriorly where the posterior Right seventh rib connects with the T7 transverse process. On an MRI scan he has evidence of Rt shoulder impingement with increase joint effusion and hypertrophy of the Rt clavicular acromial joint. All of these findings are consistent with the over use of the right upper extremity and the twisting required by his particular job at the
He has limited use of his right upper extremity secondary to this injury and he has therefore been disabled since 1993.
He has recently been found to have bilateral inguinal hernias and an umbilical hernia all of which were repaired 9/28/99 and will keep him disabled on that basis alone though 11/1/99. His hernias were first noted approximately 4/25/99.
He also has a symtomatic [sic] hiatal hernia, had a peptic ulcer treated August of 97. He has on going dyspepsia. He has gallstones which are felt to be asymptomatic.
Mr. McCormick has been ligitimately [sic] disabled for some time. If he were capable of working he would be working.
(See Tr. 353.)
3. Examining Physicians
In rejecting Dr. Rushton's opinion, the ALJ relied on the report of examining physician Steve McIntire, M.D. ("Dr. McIntire"). On May 2, 1999, Dr. McIntire conducted a "comprehensive orthopedic examination" of McCormick, based on McCormick's complaints of neck and back pain, and shoulder pain. (See Tr. 270.) Dr. McIntire based his findings on his review of a prior "physical therapy report as well as clinic report and an MRI report," in addition to the physical examination he conducted. (See Id.) Dr. McIntire conducted various range of motion tests and noted the following:
Cervical spine exam: I do not detect paravertebral muscle spasms or vertebral abnormalities. I do not detect pain on palpitation about the neck. I do not discern muscle spasms. There does not appear to be pain induced on range of motion testing of the cervical spine.
Right shoulder examination: I do not detect significant joint deformities, effusions, or point tenderness. Impingement signs are absent. The claimant exhibits slight discomfort on range of motion testing.
(See Tr. 272.) Dr. McIntire also noted:
Objectively the claimant has full range of motion of the cervical spine and right shoulder. There is slight discomfort on range of motion testing of the right shoulder. The claimant does not have other significant findings on examination. There are no findings to suggest a cervical myelopathy or radiculopathy. Degenerative changes have, however, been observed on MRI and radiographic studies.
(See Tr. 273.) Dr. McIntire concluded:
Given the radiographic results and present examination, it may be worthwhile for this claimant to avoid tasks that require very heavy labor, such as frequent lifting and carrying of more than 50 Ib or frequent overhead lifting of more than 30 Ib. The current examination does not point to additional functional limitations.
(See Tr. 273.)
The ALJ also relied on the conclusions of two consulting physicians from Disability Determination Services. (See Tr. 23.) Both of those physicians separately found, in June and December 1998, that McCormick was capable of performing activities consistent with light work. (See Tr. 247-254, 333-340.)
The Court notes the conclusions of several other treating physicians who found that certain of McCormick's medical problems were not severe. Dr. Matossian declared McCormick more than ninety percent cured of his ulcer in October 1997, although McCormick's complaints continued. (See Tr. 219, 216-17.) On May 14, 1998, psychiatrist Stephan Lampe, M.D. conducted a comprehensive psychiatric examination and found that McCormick could withstand the stress of an eight-hour work day. (See Tr. 19, 242.) Philip Smith, M.D., who performed McCormick's hernia surgery, stated on September 29, 1999 that "it is expected that he will be unrestricted in his activities from the standpoint of his hernia recovery" by November 1, 1999. (See Tr. 352.) The Court also notes that, although the ALJ did not rely on Dr. Neel's opinion, Dr. Neel felt that McCormick would benefit from "some sort of vocational program," (See Tr. 234), which suggests that Dr. Neel did not believe that McCormick was too disabled to work in any profession.
4. The ALJ's reasons for rejecting Dr. Rushton's opinions
In rejecting Dr. Rushton's opinion that McCormick was unable to work, the ALJ stated:
I do not credit Dr. Rushton's opinions, expressed on several occasions that claimant is disabled from all work. I find Dr. Rushton's pronouncements of disability are not supported by the clinical findings. In addition, Dr. Rushton's willingness to state that claimant's disability `dates back at least 5 years,' despite the fact that he first saw claimant in 1997 indicates a lack of objectivity and that he is acting more as an advocate rather than an objective treating doctor. Further, Dr. Rushton's opinion that claimant has been disabled `for some time,' in part because If he were capable of working he would be working,' suggests that his opinion is inordinately based upon claimant's subjective complaints.
Read in isolation, this statement might suggest the ALJ was relying on her own diagnosis. When reviewed in the context of her statements at the hearing, however, the Court understands the statement to reflect the ALJ's concern with Dr. Rushton's failure to explain how McCormick's impairments precluded him from performing light work.
(See Tr. 23 (citations omitted).) The ALJ also stated that she found Dr. McIntire to be "more objective" than Dr. Rushton, and thus accorded more weight to his findings. (See Id.) The ALJ also credited the June and December 1998 opinions of the Disability Determination Services medical advisors that McCormick had a residual functional capacity for light exertional work, on the ground that they are "highly qualified physicians and experts in the evaluation of medical issues in disability claims under the Act." (See id. (citing SSR 96-6p). The ALJ also set forth a lengthy recitation of McCormick's medical history. (See id. 18-22.)
The Court finds that the ALJ did not err in rejecting Dr. Rushton's opinion because the ALJ set forth specific and legitimate reasons supported by substantial evidence for disregarding Dr. Rushton's opinion. Although Dr. Rushton treated McCormick for a substantial period of time, and the record indicates that McCormick had various medically documentable conditions, nothing in the medical record indicates that Dr. Rushton had any basis for concluding that McCormick was unable to work other than McCormick's own statements to him. In particular, Dr. Rushton's records are devoid of any reference to any specific physical or mental limitations that would preclude McCormick from working. His various letters stating that McCormick cannot work also fail to point to any particular limitations caused by McCormick's medical conditions that would prevent him from working, other than a general statement that McCormick has "limited use of his right upper extremity."' (See Tr. 314, 353; see also Tr. 317, 318.) Accordingly, the ALJ did not err by rejecting Dr. Rushton's opinion that McCormick was too disabled to work, because the ALJ provided specific and legitimate reasons for doing so that are supported by substantial evidence in the record. See Lester. 81 F.3d at 830.
The Court notes that McCormick has submitted a new declaration from Dr. Rushton in conjunction with his motion for summary judgment. (See Motion for Summary Judgment, Ex. A.) As that declaration does not explain now McCormick is impaired as a result of his medical impairments, it would not have changed the outcome of the administrative hearing. Accordingly, the Court finds the new declaration provides no basis for remand. See Booz v. Secretary of Health Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1983) (holding that remand is warranted for consideration of new evidence "only where there is a reasonable possibility that the new evidence would have changed the outcome" of the earlier proceeding had the information been offered).
B. The ALJ Did Not Improperly Base Her Decision on Her Own Medical Opinion
McCormick contends that the ALJ improperly substituted her own medical opinion for that of the treating physician, Dr. Rushton. McCormick relies on the following exchange between the ALJ and McCormick at the October 5, 1999 administrative hearing:
ALJ: And if you want to get something else from [Dr. Rushton] I will certainly consider it. You know, the problem that I see, and I'm just speaking to you honestly, is that the MRI findings that were described were not very substantial. I read to you what they said.
Clmt: Urn-hum.
ALJ: You may think that's extremely serious, but I've read a lot of MRI reports, I'm not a doctor, but I've evaluated a lot of MRI reports.
Clmt: Okay.
ALJ: And this says a lot of things that are not extremely, extremely serious.
Clmt: Okay.
ALJ: So it's not clear, on the face of it, that you're unable to do any kind of work just because of this report.
Clmt: Right.
ALJ: But certainly, you know, if your doctor wants to interpret this and send me a letter about it, I'm certainly willing to read that and consider it.
Clmt: Thank you.
(See Tr. 82-83.)
McCormick fails to cite to the portions of the transcript that precede this exchange, which explain the purpose of the discussion:
ALJ: The problem is that no doctor has explained what limitations may or may not be related to the MRI results. . . . Well, he has said, in one or two of his letters that he thinks you're not able to work. But he hasn't really explained what he thinks your limitations are. So if you want him to clarify that, I'm certainly willing to consider whatever he has to say. This is Dr. Rushton I'm talking about.
(See Tr. 80-81.) Read in context, the ALJ's remarks make clear that the ALJ was concerned about Dr. Rushton's failure to explain specifically how McCormick was limited as a result of his impairments and thus, in Dr. Rushton's opinion, was precluded from being able to work. Rather than offering her own medical opinion, the ALJ merely explained that the injuries described in the MRI reports were not so obviously debilitating that she could infer disability without a medical opinion from Dr. Rushton explaining what physical limitations were caused by McCormick's medical condition that prevented him from being able to work.
Accordingly, the plaintiff has not shown that the ALJ improperly based her decision on her own medical opinion.
C. The ALJ Did Not Lack Substantial Evidence For Her Conclusions as to McCormick's Limitations
McCormick argues that the ALJ lacked substantial evidence for finding McCormick's daily activities supported the conclusion that McCormick was not disabled. The ALJ made such a finding as part of her overall determination of McCormick's credibility. (See Tr. 23-24.)
An ALJ cannot reject a claimant's subjective testimony "without making findings sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony."See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1994). Among the factors the ALJ may consider in making a credibility determination are the claimant's "ability to perform household chores, the lack of side effects from prescribed medications, and the unexplained absence of treatment for excessive pain." See id.
"[O]nce the claimant produces objective medical evidence of an underlying impairment, the adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." See Bunnell v. Sullivan. 947 F.2d 341, 345 (9th Cir. 1991) (citingCotton v. Bowen. 799 F.2d 1403, 1407 (9th Cir. 1986)). "[A]lthough an adjudicator may find the claimant's allegations of severity to be not credible, the adjudicator must specifically make findings which support this conclusion." See id. "These findings, properly supported by the record, must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not `arbitrarily discredit a claimant's testimony regarding pain.'" See id. at 345-46 (quoting Elam v. Railroad Retirement Bd., 921 F.2d 120, 1213-14 (11th Cir. 1991)). "[A] reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain." See id. at 346. "General findings are insufficient; rather the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints."See tester. 81 F.3d at 834.
McCormick testified that he could lift 20 pounds occasionally, but could not lift anything repetitively. (See Tr. 56.) He estimated that if he had breaks every two hours, he could stand for a total of three hours, for about thirty minutes at a time, (see Tr. 57), and further testified that with medication, he could sit all day. (See Tr. 57.) He was unable to estimate how much time he could spend walking in an eight-hour day, partly because he had not yet fully recovered from his hernia surgery. (See Tr. 58.) McCormick also testified that he could not perform his prior work as a fast food manager. (See Tr. 67.) He felt that his health was too unstable to allow him to adhere to a regular work schedule. (See Tr 67-68.) The ALJ stated in her decision that she found McCormick's testimony "not credible," for the following reasons:
His allegations regarding functional limitations are not supported by the medical evidence. Further, the fact that claimant is able to obtain significant pain relief with Tylenol and Flexoril indicates less severe orthopedic pain and greater functional ability than claimant is willing to acknowledge. I find claimant's considerable activities of daily living including doing some housework and cooking, going grocery shopping once a week, haying full custody of his 12 year old son and walking him to school daily, going rock hunting, driving four miles ever Sunday and trying to fix the roof of his house are indicative of a greater functional ability than he is willing to acknowledge.
In addition, claimant's smiling and casual demeanor at the hearing indicated that he was not in severe pain. He had no limitations that could be observed by a layman. In making these observations, I am not basing my entire decision or credibility assessment upon claimant's appearance at the hearing. This is but one factor which I have considered along with all the other evidence of record. I do not find claimant's testimony to be credible.
(See Tr. 23-24.)
McCormick contends that the ALJ erroneously summarized his testimony with respect to his daily activities. McCormick testified before the ALJ that, on a scale of one to ten, with ten being the worst pain imaginable, his headaches rated a ten, but that he could reduce the pain with Tylenol to a five, and with Flexeril to a one or two. (See Tr. 46.) He also testified that in the previous six months, the headaches were greatly reduced in both severity (a rating of three on a scale of ten) and frequency, occurring only "[o]nce a week, maybe twice a month." (See Tr. 46-47.) He rated his chest pain at eight on a scale of ten, but testified that he was not prescribed any pain medication for it, and took no over the counter remedies, although the pain had occurred daily since 1993. (See Tr. 48-49.) McCormick rated his back/shoulder pain at seven on a scale often, occurring approximately three days a week and lasting all day, and stated that Flexeril reduced the pain to a rating of two on a scale of ten. (See Tr. 52-53.) McCormick rated the pain from his ulcers at six on a scale of ten, but stated that he did not take any prescribed pain medication for his ulcers. (See Tr. 54.) The ALJ's statement that McCormick's pain is greatly reduced by medication thus is supported by substantial evidence.
As to McCormick's daily activities, he testified that he can get dressed and take care of his grooming to "a limited extent," although he does not "groom or dress to go anywhere." (See Tr. 63.) He performs household chores such as "[t]aking out the garbage, sweeping the big stuff up off the floor, pulling the blankets over [his] sheets," and doing laundry. (See Tr. 63, 67.) He has "done cooking" since August 1993. (See Tr. 63-64.) He goes shopping for groceries once a week. (See Tr. 64.) McCormick testified that he walks daily, and although the amount of his walking had decreased over time, he felt that his recent hernia operation would allow him to walk more frequently. (See. Tr. 65.) He has spent much of his time since 1993 "rock hounding" by "walking . . . at the river," although that became "harder and harder to do," and he had stopped doing it as of the time of the hearing. (See Tr. 66.) McCormick testified that he had not done much repair or maintenance work at his mother's property, but he has "tried to keep her roof from leaking." (See Tr. 66-67.) McCormick also testified that he had had full custody of his son for approximately a year prior to the October 5, 1999 hearing, and that he drove his son to school every morning, a distance of approximately four miles. (See Tr. 40-41, 65, 67.)
McCormick correctly points out that the ALJ misstated his testimony in that he never testified that he drives four miles every Sunday; nonetheless, McCormick did testify that he drove his son to school every day, a distance of four miles, which involves more exertion than the weekly drive mentioned by the ALJ. (See Tr. 67.) Although he did not testify that he walked his son to school every day, he did testify that he walked every day. (See Tr. 65.) Although McCormick testified that he had stopped going to the river to go "rock hounding/' he also testified that he felt that his hernia operation would allow him to walk more frequently again. (See Tr. 65, 66.) The remainder of the ALJ's statements are entirely accurate.
Consequently, although the ALJ misstated some portions of McCormick's testimony, her summary of his stated activities was largely correct and was supported by substantial evidence. Moreover, the ALJ did not err by concluding, based on the totality of the evidence, in particular, the lack of any specified functional limitations in the medical record, the lack of medication prescribed for chest and ulcer pain, and the substantial reduction in his headache pain and back/shoulder pain when he took Tylenol or Flexeril, that McCormick was overstating the amount of pain that he felt. The ALJ set forth specific findings in support of that conclusion, and although other finders of fact might have come to different conclusions, the ALJ's conclusions were supported by substantial evidence. See Andrews v. Shalala. 53 F.3d 1035, 1039-40 (9th Cir. 1995) (holding ALJ's decision must be upheld "where the evidence is susceptible to more than one rational interpretation").
Accordingly, the Court finds the ALJ did not err in rejecting McCormick's testimony about his limitations and the degree of pain he suffers as a result of his impairments.
D. The ALJ Did Not Err By Concluding McCormick's Past Work as a Fast Food Manager Was Substantial Gainful Activity
The ALJ concluded that McCormick could perform his past relevant work as a fast food manager, and that, accordingly, he was not disabled within the meaning of the Act. (See Tr. 24.) McCormick argues that the ALJ's conclusion that he is not disabled because he could perform his past work as a fast food manager is erroneous as a matter of law because his past work was not substantial gainful employment as defined under 20 C.F.R. § 404.1573(c)(5-6) and 416.973(c)(5-6). Specifically, McCormick asserts that his performance was substandard, and that he was only employed because the fast food restaurant was family-owned.
The Social Security regulations provide that an applicant's work will not be considered to be "substantial gainful activity" if the work is performed "under special conditions" that "take into account [the applicant's] impairment." See 20 C.F.R. § 404.1573(c), 416.973(c). Examples of such "special conditions" include the applicant's being permitted to work "at a lower standard of productivity because of family relationship" and being "given the opportunity to work despite [the applicant's] impairment because of family relationship."See 20 C.F.R. § 404.1573(c)(5-6), 416.973(c)(5-6).
From 1988 to 1990, McCormick worked as a fast food manager at a Mr. Frosty's restaurant owned by his parents. (See Tr. 36, 149, 376.) McCormick's mother, Ann Wood, attested:
We made allowances for Richard because he was our son, and we would not have put up with anyone else with his attitude. . . . If he had not been our son, we would never have kept him on as an employee. Eventually, though he was our son, we asked him to leave because the other night shift employees were very unhappy and were threatening to quit if Richard! returned. We also had some complaints from customers about his attitude.
(See Tr. 376.) McCormick alleges that because he was given special consideration by his mother, the ALJ erred in finding that his past work as a fast food manager was substantial gainful activity.
Although the record indicates that McCormick's mother gave him more leeway in his employment as a fast food manager than she would have given a non-family member in the same position, nothing in the record suggests that those "special conditions" of his employment were because of his severe impairments. Nothing in the record suggests that McCormick had any physical difficulties performing his work as a fast food manager. Indeed, the job ended in 1990, three years before his current physical problems began to manifest themselves. Moreover, there is no evidence that McCormick had a psychological impairment at that time that precluded him from working as a fast food manager. Although McCormick may had a "bad attitude," nothing in the record suggests that a severe impairment of a psychological nature was the cause of it. Indeed, Stephan Lampe, M.D. conducted a comprehensive psychiatric examination of McCormick and found that McCormick could withstand the stress of an eight-hour work day. (See Tr. 242.) Because the evidence does not show that McCormick was given special consideration during his employment as a fast food manager due to any physical or mental impairments, §§ 404.1573 and 416.973 have no application here.
Accordingly, the ALJ did not err by concluding that McCormick's past work as a fast food manager constituted substantial gainful employment.
E. The ALJ Did Not Fail to Fully Develop the Record
McCormick appeared at the administrative hearing without the assistance of counsel. In McCormick's reply brief, he contends, for the first time, that the ALJ erred by not conducting the hearing in a manner designed to elicit all McCormick's pertinent testimony and evidence regarding his disability.
The Court ordinarily does not consider an argument raised for the first time in a reply brief because the opposing party has no opportunity to respond, see, e.g., Confederated Tribes of the Umatilla Indian Reservation v. Bonneville Power Admin., 342 F.3d 924, 933 (9th Cir. 2003). The Court nonetheless will address McCormick's argument because of the importance of the issue.
"Lack of counsel does not affect the validity of the hearing and hence warrant remand, unless the claimant can demonstrate prejudice or unfairness in the administrative proceedings." Vidal v. Harris. 637 F.2d 710, 714 (9th Cir. 1981). In Cox v. Califano, 587 F.2d 988 (9th Cir. 1978), the Ninth Circuit held that where a claimant is not represented by counsel, "it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." See id at 991. (internal quotation and citation omitted). In such a situation, the ALJ "must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited." See id. (internal quotation omitted). "[T]he issue is not whether the right to representation was knowingly waived, rather, it is whether, in the absence of representation, the administrative law judge met the heavy burden imposed by Cox." See Vidal. 637 F.2d at 714.
In Cox, the Ninth Circuit remanded the action for further proceedings after concluding that the plaintiff had been prejudiced by his lack of representation during the hearing before the ALJ. See Cox. 587 F.2d at 991. There, the ALJ interpreted a letter written by the Plaintiff's treating physician, which letter indicated that the plaintiff was unlikely to return to his past relevant work and advised the plaintiff to begin vocational rehabilitation, as a medical opinion that the plaintiff could in fact return to work. See id. at 990-91. Relying on a vocational expert's testimony that if the plaintiff was able to "engage in a sustained daily work routine," there existed certain jobs that plaintiff could perform, the ALJ found the plaintiff was not disabled. See id. at 990. The Ninth Circuit held that the ALJ appeared to have misunderstood the treating physician's letter, and that "[h]ad plaintiff been represented by counsel at the administrative hearing, it is likely that the ALJ's misunderstanding of both the physician's letter and the testimony of the vocational expert would have been clarified." See id. at 991. The Ninth Circuit observed that the ALJ "made no effort to, and gave plaintiff little opportunity to, elaborate further on [the] crucial question" of the meaning of the treating physician's letter. See id.
Similarly, in Vidal. the Ninth Circuit held that where an unrepresented plaintiff establishes prejudice from lack of representation, he is entitled to a remand for further proceedings.See Vidal. 637 F.2d at 713-15. There, the ALJ found that the plaintiff had a learning disability and that he could not perform his past relevant work, but, in reliance on the testimony of a vocational expert, found that the plaintiff could perform certain other jobs. The Ninth Circuit held that the testimony of the vocational expert was insufficient to support the ALJ's finding because the vocational expert did not "provide convincing evidence that [the plaintiff] was qualified for the [other] positions." See id. at 713. In particular, the Ninth Circuit observed that the ALJ "did not adequately probe whether an individual with [the Plaintiff's] learning disability would be considered eligible to apply for those jobs." See id. at 714. As a result, "[the Plaintiff's] case was clearly prejudiced by the inadequate examination of the vocational expert" as it was clear from the record that the plaintiff "was totally incapable of challenging the vocational expert's conclusions." See id. The court concluded that "[h]ad the claimant been represented by counsel at the hearing, it is likely that cross-examination of the vocational expert would have revealed" relevant information as to whether plaintiff was in fact qualified to perform the other jobs. See id ln the instant case, McCormick argues that the ALJ failed to adequately develop the record by failing to seek additional information from Dr. Rushton about McCormick's specific limitations or by explaining to McCormick what was needed. As explained above, however, the ALJ did explain to McCormick what she felt was missing from the record. (See Tr. 80-83.) Indeed, the ALJ ended the hearing by inquiring whether McCormick wanted to "ask Dr. Rushton to give [plaintiff] another letter." (See Tr. 92.) McCormick responded, "I don't see what more I can get from him, I really don't." (See Id.)
Accordingly, the Court finds the ALJ did not fail to fully and fairly develop the record.
CONCLUSION
For the reasons stated above:
1. Plaintiff's motion for summary judgment is hereby DENIED.
2. Defendant's cross-motion for summary judgement is hereby GRANTED and the decision of the Commissioner is hereby AFFIRMED.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.