Opinion
Nos. C 01-03042 WHA, C 01-03043 WHA
June 3, 2002
ORDER: (1) GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; AND (2) DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
In this social-security appeal, this order DENIES plaintiffs motion for summary judgment in two cases consolidated for review and GRANTS defendant's cross-motion for summary judgment. The clerk shall close files No. C 01-03042 and C 01-03043.
STATEMENT
Plaintiff Moses Munoz suffered a work-related back injury in 1990, for which he had surgery in 1991. He was given modified duties upon returning to work, but later went back to heavier tasks (AR 663). In 1994, however, he hurt his back again (AR 317-18). After the 1994 incident, his treating physician, Dr. Jeffrey Randall, first recommended that Munoz be placed in a permanent, modified position similar to that given him when he first came back from surgery in 1991 (AR 261,649). In examinations, Munoz described pain upon straight-leg raising of more than 30 degrees. Although Munoz had a good range of motion in his lower back, he also described intermittent aching discomfort in that region that was worsened by any bending, twisting or lifting (AR 648). An MRI scan in January 1995 indicated disc dessication, but no recurrent disc herniation or evidence of epidural fibrosis (AR 667). Munoz was put on disability that month and did not work thereafter (AR 280). EMG tests performed in May of that year revealed no evidence of lumbar radiculopathy (AR 665).
After further periodic check-ups, on April 11, 1996, Dr. Randall said that Munoz's condition was "unchanged" and advised that if Munoz were to return to work, "he would be quite restricted in that he would need to sit and stand as necessary and avoid and repetitive bending, twisting or lifting" (AR 644). On July 19, 1996, Randall stated that "[a]s I have previously written, [Munoz] is limited in his ability to work. He would require not only a job that avoids repetitive bending, twisting, or lifting, but also need to be able to sit, stand, or walk as necessary" (AR 643). Significantly, in a letter dated January 10, 1997, Dr. Randall clarified that in his April 1996 letter, his advisement that Munoz needed to change positions through the work day "was mentioned as a recommendation, and not as a specific work preclusion" (AR 640-41). Subsequent reports by Dr. Randall indicated no significant change in his diagnosis (AR 638, 639, 688). In one fill-in-the-blank report completed on February 26, 1999, however, Dr. Randall indicated that Munoz could stand or walk for 2-3 hours in an eight-hour workday, and sit for 3-4 hours in an eight-hour workday. Summed, this totaled to a recommendation that Munoz could only sit, stand or walk for at most seven hours in an eight-hour workday (AR 423).
As indicated above, this is a consolidated appeal of two adverse determinations by the Commissioner. Munoz's first application (the First Claim) was filed on February 13, 1995. This application was for disability benefits commencing October 26, 1994. On May 9, 1996, an administrative law judge denied his claim. The Appeals Council then rejected his appeal. Munoz commenced a civil action seeking judicial review in United States District Court for the Northern District of California, which led to the remand of the case back to the Commissioner. In the interim, on September 8, 1997, Munoz had filed a second claim for benefits for the period beginning January 1, 1995 (the Second Claim). A hearing was held on Munoz' Second Claim on December 10, 1998. Munoz and a vocational expert testified at this hearing. Another, separate hearing was convened on the remanded First Claim on March 4, 1999. Munoz, a vocational expert and a medical expert testified at this hearing.
The same ALJ heard both cases. He issued a separate opinions in each (AR 300-06, 454-61). In each opinion, both issued on April 27, 1999, the ALJ proceeded through the five-step sequential evaluation process for disability determinations, 20 C.F.R. § 404.1520(f). In each, at step five he found that Munoz was not disabled. Both disability determinations were largely based upon a finding that Munoz's residual functional capacity did not require him to walk significant distances (in addition to alternating between sitting and standing) to reduce strain on his back over the course of an eight-hour day. Given this supposition, the ALJ concluded Munoz could fill a number of positions present in substantial numbers in the economy.
ANALYSIS
The standard of review applicable to this case is well-established. The Social Security Commissioner's decision to deny benefits shall be upheld on appeal if substantial evidence in the record supports that decision, and if the Commissioner, through an administrative law judge, applied the proper legal standards. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "Substantial evidence" means more than a scintilla, but less than a preponderance. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990).
In order to qualify for disability benefits, a claimant must establish that he is unable to engage in "substantial gainful activity" due to a "medically determinable physical or mental impairment" that "has lasted or can be expected to last for a continuous period of not less than 12 months." Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990) (quoting 42 U.S.C. § 423(d)(1)(A)). "A claimant will be found disabled only if the impairment is so severe that, considering age, education, and work experience, that person cannot engage in any other kind of substantial gainful work which exists in the national economy." Ibid. Once a claim proceeds to step five of the sequential review for disability determinations, the government bears the burden of showing no disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
Munoz claims that the ALJ erred in finding him not disabled in both cases. He points to several alleged errors. First, he says that the ALJ erroneously discounted his pain testimony. Second, he argues that the ALJ ignored the findings of his treating physician. Third, he claims that the ALJ either ignored or misrepresented the testimony of the medical expert in the hearing on the First Claim. Fourth and finally, he posits that he had stomach and liver conditions that were improperly ignored by the ALJ as he formulated his disability determination. This order concludes that in all respects substantial evidence supported the ALJ's decisions as to both the First Claim and Second Claim.
1. Subjective Pain Testimony.
First, Munoz argues that the ALJ improperly discounted his subjective pain testimony. If the ALJ finds the claimant's testimony as to the severity of his pain unreliable, the ALJ must make a credibility determination and findings sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). To determine whether the claimant's testimony regarding the severity of symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements regarding the symptoms, and other testimony by the claimant that appears less than candid; (2) an unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1997). The ALJ may consider the claimant's reputation for truthfulness and inconsistencies either in claimant's testimony or between his testimony and his conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which claimant complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Where a plaintiff presents objective medical evidence of an impairment that could reasonably be expected to produce the symptoms complained of and there is no affirmative evidence of malingering, an ALJ can only reject a claimant's testimony if he provides clear and convincing reasons for doing so. Smolen, 80 F.3d at 1284.
The ALJ identified several inconsistencies between Munoz's subjective claims and evidence in the record. In his decision on the First Claim, the ALJ noted tension between a September 1995 report in which Dr. Randall relayed Munoz's claim that he spent most of his time doing chores around the house (AR 647) and Munoz's "Reconsideration Disability Report," filed in September 1997, in which Munoz said that he "can't do activities — work or recreation" (AR 526). The ALJ also saw an inconsistency between a September 1996 letter saying Munoz was reading at least at a fifth-grade level (AR 704) and Munoz's later statement to Dr. Randall that he had only a third-grade education (AR 688).
In the decision entered rejecting Munoz's Second Claim, the ALJ repeated the above inconsistencies. In this decision, the ALJ also contrasted Munoz's assertion at the hearing that he didn't know his "ABC's or [his] vowels" (AR 479) with the fact that he sent in stories for publication by a literacy group (AR 704). In addition, the ALJ noted that a consultative examiner, Dr. Pliam, observed Munoz displaying excessive grimaces and pain expression consistent with overreaction during his examination, and that he displayed a "limp" that improved during the course of the exam (AR 669-70). Though not discussed by the ALJ, Dr. Pliam also wrote that Munoz "seemed to show symptoms of giving way which did not reflect true weakness" (AR 670).
Munoz also testified that he could not spell (AR 478).
The ALJ relied on the inconsistencies and suggestions of malingering above to discount Munoz's subjective testimony. In each case, the reasons identified by the ALJ were sufficiently clear, convincing and specific to afford grounds for rejecting the claimant's subjective accounts of pain. There was no error on this score.
2. Opinion of Treating Physician.
Next, Munoz asserts that the ALJ improperly discounted the opinion of Dr. Randall, his treating physician. Munoz states that two of Dr. Randall's opinions were ignored: (1) his opinion that Munoz needed to walk during the working day; and (2) his opinion (as implied from marks on a February 1999 form) that Munoz could sit, stand or walk for only seven hours (combined) over an eight-hour day.
Whether Munoz had to have the option of walking around to relieve stiffness factored into the ALJ's treatment of both his First and his Second Claims. In his findings on the First Claim, the ALJ found Munoz capable of working in a job where he could sit and stand alternatively, but did not need to "walk" because a mere step or two in any direction would relieve any stiffness (AR 303-04). In his decision on the Second Claim, the ALJ did not mention any need to take a step or two in any direction, simply providing that Munoz possessed the residual functional capacity to perform jobs allowing only a sit/stand option (AR 458).
With regard to the walking limitation, in July 1996 Dr. Randall stated that "[a]s I have previously written, [Munoz] is limited in his ability to work. He would require not only a job that avoids repetitive bending, twisting, or lifting, but also need to be able to sit, stand, or walk as necessary" (AR 643). In January 1997, Dr. Randall wrote that "In my letter of April 11, 1996, I suggested that if Mr. Munoz returned to work that he would need to change positions through the work day. This along with the importance of regular exercise was mentioned as a recommendation, and not as a specific work preclusion" (AR 640-41) (emphasis added). Dr. Randall's caveat was expressly noted by the ALJ in both of his opinions (AR 304, 457). In short, Dr. Randall never said that Munoz had to change positions through the work day. The ALJ acted well within his discretion in interpreting Dr. Randall's reports as he did, finding that although Munoz did have to change positions, he did not need to walk around.
As for the seven-hour "limit," it is difficult to reconcile such a limitation with Dr. Randall's assertions that plaintiff could, in fact, return to work (AR 640-41), and that his condition thereafter was "unchanged" (AR 638) and "stable" (AR 421). An ALJ is entitled to give more weight to extensive written opinions by a treating physician than to cursory fill-in-the-blank forms. To the extent that it can be interpreted to state that Munoz was unable to work an eight-hour day, the February 1999 form is inconsistent with Dr. Randall's more thought-out opinions as well as the other medical evidence in the record. The ALJ acted within his discretion in interpreting the records as he did. See Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 1982).
3. Opinion of Medical Expert.
Next, Munoz contends that the ALJ improperly discounted or misinterpreted the testimony of the medical expert who testified at the March 1999 hearing on the First Claim. The testimony in question went to whether Munoz would have to walk around during a work shift to alleviate his back pain, and if so how much. After interviewing the medical expert, the ALJ incorporated the expert's testimony into a question to the vocational expert present at the hearing. The ALJ asked the vocational expert a hypothetical in which the worker could sit and stand alternately, and if necessary step one to three feet in either direction (AR 332, 341-42). The vocational expert said that a meaningful number of jobs existed for such a person. On examination by Munoz's attorney, however, the vocational expert testified that if the hypothetical person had to walk around much more than a few feet, he could not fill these or any other positions.
The underlying medical-expert testimony informing the ALJ's question was as follows (AR 330, 338-39) (emphasis added):
ALJ: All right. I have a rather specific question. Is there, as far as you can tell, a difference between [Munoz's] ability to sit and alternately stand and his ability to sit and alternately walk?
ME: I don't think there's any real difference. I, in my experience individuals that have this kind of result after disk surgery are usually better, more comfortable if they can keep moving. They will tell you if they have to stand still in a line at the grocery store it bothers them more than if they can keep walking. So in my experience they have more trouble in standing in a fixed position for any length of time.
* * *
Atty: Dr. Lewis, in your review of the record, was it — at some point in time the opinion of claimant's treating physician that he should be able to walk around as necessary. So I — was that the opinion of the treating physician?
ME: Yes. My experience has been with this type of movement, if they have to stand perfectly still it aggravates the symptoms. But if they can just move a little bit, they don't have to walk any great distance. I just noticed when he got up now briefly he backed over towards the wall. But just moving, to just move your body and move your feet and shift your weight, that's what I have in mind when I say it. They don't have to necessarily walk a certain length of time or distance, but it's shifting the body weight and getting, getting the, moving about seems to be helpful to the joints of the spine.
Atty: When you say moving about, what do you mean by moving about?
ME: Well, moving short distances, a foot or two or three or four can be equivalent to walking.
Atty: So moving one to four feet is equivalent to walking?
ME: Yes. It can be, yes.
After receiving this testimony, the ALJ then asked the following question to the vocational expert (AR 341-42):
ALJ: Mr. Johnson, I have a question. Let us assume that this walking around consists of moving one to three feet in either direction. He can, a person can remain in a booth if they're in a booth or they could remain in contact with a window if it's a window that they're working or the belt. But they are moving around as Mr. Munoz did from the table back to the wall and back again.
VE: The person could perform these jobs.
A reasonable interpretation of the medical expert's testimony was that Munoz had to move about during his shift, but that such movement could for all intents and purposes be satisfied in a position with a sit/stand option. This interpretation was incorporated into the hypothetical the ALJ asked the vocational expert in both cases. There was no error by the ALJ.
With the Second Claim, the ALJ did not incorporate the de minimis walking requirement into his hypothetical question to the vocational expert (AR 483). Plaintiff does not attack this question as insufficient, and with good reason. Even if walking a foot or two in any direction is somehow inconsistent with a sit/stand option, an ALJ need not include restrictions in a hypothetical question when those restrictions are not supported by substantial evidence in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). As discussed, Munoz's treating physician opined that a walking requirement was not a specific work limitation, and the medical expert's testimony could be interpreted similarly.
4. Other Ailments.
Finally, Munoz claims that the ALJ ignored evidence of his (Munoz's) liver and stomach ailments in making his not-disabled finding. The problem with this argument is that plaintiff points to no evidence that these conditions significantly impaired his ability to work. Munoz does cite to a July 1996 letter from Dr. Randall providing as follows (AR 412):
Mr. Munoz remains debilitated by his chronic back and leg pain. As I have previously written, he is limited in his ability to work. He would require not only a job that avoids repetitive bending, twisting, or listings, but also needs to be able to sit, stand, and walk as necessary. His situation is made more difficult to manage by the fact that he is unable to tolerate anti-inflammatory medications.
At most, all this reflects is that Munoz's stomach and liver problems affected the treatment regimen for his back condition, not that they constituted freestanding or contributing impairments. By considering the full record relating to Munoz's back condition, the ALJ effectively took these asserted ailments into account. See Osenbrock, 240 F.3d at 1163-64.
CONCLUSION
Defendant's motion for summary judgment is GRANTED in both C 01-03042 and C 01-03043. Plaintiffs motion is DENIED. The clerk shall close the file.
IT IS SO ORDERED.