Opinion
CASE NO. C13-2190-RSM-MAT
10-14-2014
RAMON JOHN MENCHACA, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL
Plaintiff Ramon Menchaca proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends that this matter be AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1986. He attended high school until the 9th grade and received his General Equivalency Degree in 2010. (AR 221, 473.) Plaintiff has past relevant work as a fast food worker and hand packer. (AR 33.)
Plaintiff's date of birth is redacted back to the year of birth in accordance with Federal Rule of Civil Procedure 5.2(a) and the General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United States.
Plaintiff filed an application for SSI on April 5, 2012, alleging disability beginning January 1, 2011. (AR 21, 190-98.) His application was denied at the initial level and on reconsideration. (AR 79-86, 90-96.)
On May 16, 2013, ALJ Stephanie Martz held a hearing, taking testimony from a vocational expert. (AR 41-53.) Plaintiff's attorney was present at the hearing; however, plaintiff failed to appear. (AR 41-53.) The ALJ found that plaintiff did not show good cause for missing his hearing, and on June 13, 2013, the ALJ issued a decision finding plaintiff not disabled. (AR 18-40.)
Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on October 16, 2013 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
JURISDICTION
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since April 5, 2012, the application date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe plaintiff's anxiety disorder, bipolar disorder, personality disorder, intermittent explosive disorder vs. impulse control disorder, learning disorder, status post thumb fracture, lumbar spondylosis, and lumbar degenerative disc disease. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that plaintiff's impairments did not meet or equal the criteria of a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), except that he could frequently climb ramps and stairs and occasionally climb ladders, ropes, and scaffolds. Plaintiff was found able to frequently balance, stoop, kneel, crouch, and crawl, and occasionally finger with his right dominant hand and that he must avoid concentrated exposure to hazards. Plaintiff was also found able to understand, remember, and carryout simple routine tasks with occasional contact with coworkers and superficial, incidental interaction with the general public. With that assessment, the ALJ found plaintiff unable to perform his past relevant work as a fast food worker and hand packer.
If a claimant demonstrates an inability to perform past relevant work or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ concluded, with the assistance of the VE, that plaintiff could perform other jobs existing in significant levels in the national economy, such as work as a bakery worker, motel cleaner, shipping and receiving weigher, and base filler. The ALJ, therefore, concluded plaintiff was not disabled at any time from the April 5, 2012 application date through the date of the decision.
This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ erred by failing to provide legally sufficient reasons to discredit the opinion of Gordon Hale, M.D., and by failing to give legally sufficient reasons for finding plaintiff's subjective testimony not credible. As a result, plaintiff argues the ALJ erred in assessing plaintiff's RFC and proffered an incomplete hypothetical to the vocational expert. Dkt. 14 at 1. Plaintiff further argues that the ALJ erred in failing to find plaintiff had good cause for missing his hearing. Id. He asks that the ALJ's decision be reversed and his claim remanded for further proceedings. The Commissioner argues the ALJ's decision is supported by substantial evidence and based on the correct legal standards and should be affirmed.
Medical Opinion Evidence
In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for "'clear and convincing'" reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without "'specific and legitimate reasons' supported by substantial evidence in the record for so doing." Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ may reject physicians' opinions "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes, 881 F.2d at 751). Rather than merely stating her conclusions, the ALJ "must set forth [her] own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
Gordon Hale, M.D., a non examining physician, reviewed the medical record and issued a medical opinion regarding plaintiff's functional limitations on September 21, 2012. (AR 66-78.) Dr. Hale opined that plaintiff would be limited to lifting twenty pounds occasionally, lifting ten pounds frequently, standing and/or walking for six hours in an eight hour work day, and sitting for six hours in an eight hour work day. (AR 73.) Dr. Hale further opined plaintiff would be limited to occasional climbing of ladders, ropes, and scaffolds; frequent climbing of ramps and stairs; and frequent balancing, stooping, kneeling, crouching, and crawling. (AR 73-74.) Dr. Hale also opined that plaintiff should limit his handling and fingering with his right hand to occasionally. (AR 74.)
The ALJ gave Dr. Hale's opinion significant weight finding it consistent with the medical record and plaintiff's activities. (AR 29.) However, the ALJ gave only partial weight to the portion of Dr. Hale's opinion related to plaintiff's ability to handle with his right hand. (AR 30). The ALJ discredited this part of the opinion finding that it was based primarily on plaintiff's subjective testimony, which was properly discredited. Id. Plaintiff argues this was not a specific and legitimate reason to discredit Dr. Hale's opinion. Dkt. 14 at 7. This Court disagrees.
According to the Ninth Circuit, "[an] ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan v. Comm'r. Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). This situation is distinguishable from one in which the doctor provides his own observations in support of his assessments and opinions. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) ("an ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations"); see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001).
Here, while Dr. Hale reviewed medical records prior to rendering his opinion, none of these records contained information regarding plaintiff's thumb impairment. The records did not contain any imaging of plaintiff's thumb nor did they indicate plaintiff received treatment for this condition or even discussed this impairment with his doctors. The only information available to Dr. Hale regarding this impairment came from plaintiff's own statements. Thus, Dr. Hale's opined limitations related to plaintiff's thumb impairment could only have been based on plaintiff's subjective complaints. As will be discussed later, the ALJ did not err in discrediting plaintiff's testimony. Therefore, the ALJ properly rejected Dr. Hale's opinion as based in large part on plaintiff's discredited subjective complaints. See Tommasetti v. Astrue, 533 F.3d at 1041.
Credibility
Absent evidence of malingering, an ALJ must provide clear and convincing reasons to reject a claimant's testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). See also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ in this case found that while plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, his statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (AR 27.) Contrary to plaintiff's contention, the ALJ provided a number of clear and convincing reasons in support of this conclusion. A. Treatment Records Inconsistent with Alleged Symptoms
The ALJ first discredited plaintiff's credibility finding it inconsistent with the medical records. (AR 27, 28.) A determination that a claimant's complaints are "inconsistent with clinical observations" can satisfy the clear and convincing requirement. Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1297 (9th Cir. 1998). However, a claimant's pain testimony may not be rejected "solely because the degree of pain alleged is not supported by objective medical evidence." Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (quoting Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir.1991) (en banc)) (emphasis added); see also Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir.2001); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). The same is true with respect to a claimant's other subjective complaints. See Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (finding that while holding in Bunnell was couched in terms of subjective complaints of pain, its reasoning extended to claimant's non-pain complaints as well).
The ALJ gave several examples to show that plaintiff's subjective complaints were unsupported by the medical record. (AR 27, 28.) The ALJ noted that the record did not show plaintiff ever discussed his hand impairment with his doctors. (AR 27). The ALJ also noted that plaintiff generally had a normal range of motion and gait, when examined. (AR 27.). In regards to plaintiff's mental impairments, the ALJ noted that plaintiff was observed to be alert and cooperative with a normal mood, attention span, and ability to concentrate. (AR 28.) The ALJ reasonably found plaintiff's subjective complaints unsupported by the medical evidence. While this alone is not a sufficient reason to discount plaintiff's credibility, the ALJ di d provide other clear and convincing reasons. See Orteza, 50 F.3d at 749-50. B. Plaintiff's Activities
The ALJ also discredited plaintiff's credibility finding his subjective statements inconsistent with his daily activities. (AR 28.) To determine whether a claimant's symptom testimony is credible, the ALJ may consider his or her daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The Ninth Circuit has recognized "two grounds for using daily activities to form the basis of an adverse credibility determination," first, they can "meet the threshold for transferable work skills," second, they can "contradict his other testimony." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
The ALJ laid out in detail the many activities she found inconsistent with plaintiff's reported disabling impairments. The ALJ noted plaintiff's ability to take walks and sit on an airplane despite his allegations of difficulty walking and difficulty sitting for prolonged periods of time. (AR 28.) The ALJ also noted plaintiff's ability to ride a scooter, push a family member on the merry-go-round, and do laundry despite his allegations of constant back pain. Id. In regards to plaintiff's alleged mental impairments, the ALJ noted plaintiff's ability to set reminders on his phone, prepare food, follow written instructions, and babysit on a daily basis. Id. Finally, the ALJ found plaintiff's ability to ride in an airplane, go grocery shopping, take public transportation, spend time at the park, and interact with friends, family, and his significant other, as inconsistent with plaintiff's alleged social limitations. Id.
The ALJ provided ample evidence to support her finding that plaintiff's activities were inconsistent with the alleged severity of his symptoms. Plaintiff, at best, argues in favor of a contrary interpretation of the evidence without demonstrating the ALJ's interpretation of th e record was not rational. It is not the job of the court to reweigh the evidence. If the evidence "is susceptible to more than one rational interpretation," including one that supports the decision of the Commissioner, the Commissioner's conclusion "must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d. 595, 599, 601 (9th Cir. 1999)). The ALJ's interpretation of the record was equally rational to that suggested by plaintiff. As such, the inconsistency with plaintiff's daily activities was a clear and convincing reason to discredit plaintiff's credibility. C. Improvement with Treatment
The ALJ further discredited plaintiff's testimony regarding his mental impairment because the record showed plaintiff's impairment improved while taking medication. (AR 28.) The ALJ may discount a claimant's credibility on the basis of medical improvement. See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The ALJ cited to the record which showed plaintiff reported that with his medication he had improvement in his irritability and that he was able to hang out with friends more frequently. (AR 28, 374.) Plaintiff provides no argument against the ALJ's reasoning. The Court finds that plaintiff's improvement with medication was a clear and convincing reason to discount plaintiff's credibility. For this reason, and for all of the reasons stated above, the ALJ's credibility determination should be affirmed.
RFC Assessment and Vocational Hypothetical
Plaintiff's assignments of error relating to the RFC assessment and vocational hypothetical question are premised on the argument that the ALJ failed to properly assess the opinion of Dr. Hale and failed to properly assess the credibility of plaintiff's testimony. Failing to establish error in these areas, plaintiff's remaining assignments of error also fail.
Good Cause for Failure to Appear at Hearing
Plaintiff argued in his opening brief that the ALJ erred by failing to find plaintiff had good cause for missing his hearing and by failing to reschedule a hearing at which plaintiff could testify. Dkt. 14 at 1. However, as pointed out by defendant, this argument was based on a misreading of the Social Security Administration's Hearings, Appeals, and Litigation Law Manual (HALLEX), thus the plaintiff withdrew this assignment of error in his reply brief. Dkt. 18 at 3; Dkt. 19 at 1. Therefore, the Court will not address this issue further.
CONCLUSION
For the reasons set forth above, the Court recommends this matter should be AFFIRMED.
DATED this 14th day of October, 2014.
/s/_________
Mary Alice Theiler
Chief United States Magistrate Judge