Opinion
Civil No. 99-1526-HA
January 29, 2001
Tim Wilborn Portland, OR Attorney for Plaintiff.
Victoria Blais Special Assistant United States Attorney Seattle, WA Attorney for Defendant.
OPINION AND ORDER
Plaintiff David Pfeiffer has petitioned the court for judicial review of the final decision of the Commissioner of the Social Security Administration denying plaintiff's claim for Social Security disability benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. For the reasons stated below, this court concludes that substantial evidence supports the Commissioner's decision and, therefore, plaintiff's appeal is denied.
I. Procedural History of the Case
Plaintiff filed an application for benefits on November 7, 1995, alleging that he has been disabled since October 10, 1995. After initial denial of the claim, a hearing was held before an administrative law judge ("ALJ"), who found against plaintiff's application, and the Appeals Council rejected plaintiff's administrative appeal.
II. The ALJ's Findings
At the time of the hearing plaintiff was 39-years old with a high-school education and a year of community college. He last worked as a bus-driver for Tri-Met Transportation District in October 1995. In the past he has also worked as a cook and a lot attendant for a car dealership. He quit his last job as a bus driver because the work was too stressful. (Tr. 189.) The ALJ found the evidence supported a finding of depression, dysthymia, and anxiety attacks. Plaintiff also claimed he is hearing impaired and suffers from migraine headaches. The ALJ concluded that neither of those limitations was significant. Although plaintiff has some problems with stress tolerance and working with others, he does not suffer from a cognitive impairment.
Plaintiff continues to maintain that his headaches cause significant vocational limitations, but does not challenge the ALJ's finding that plaintiff's hearing loss is not significant.
Plaintiff has been examined by four physicians and psychologists. Although three of the medical professionals opined that plaintiff should not return to his work as a bus driver, none of them believed that plaintiff lacks the capacity to work. For example, Dr. Glass found that plaintiff was able to engage in full-time employment with medication and psychological interventions such as he has used to manage his depression for many years. (Tr. 279.) "From a psychological standpoint, sooner rather than later return[ing] to work would be indicated." (Tr. 279.) Dr. Glass found that the only thing prohibiting plaintiff from returning to work was his own "motivation." (Tr. 280.) In addition, after conducting the Minnesota Multiphasic Personality Inventory-2 test, Dr. Glass stated that plaintiff "approached the testing in such a fashion so as to embellish on symptoms of depression." (Tr. 277.)
As a result of this evidence of malingering, the ALJ rejected plaintiff's testimony regarding the severity of his symptom. In addition, the ALJ observed that plaintiff's daily activities (jogging five miles a morning, lifting weights, housework, reading, watching television, group Bible studies, and dinners and movies out) undercut his testimony about the severity of his symptoms.
III. Standard of Review
The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 117 S.Ct. 209 (1996). In order to meet this burden, a claimant must demonstrate an inability "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[.]" 42 U.S.C. § 423(d)(1)(A). An individual will be determined to be disabled only if there are physical or mental impairments of such severity that the individual is not only unable to do previous work but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A). The impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(1)(A).
Social Security regulations provide a five-step sequential analysis for determining whether a claimant is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520. First, the claimant must not currently be performing "substantial gainful activity." Second, the claimant, based on medical evidence, must have a "severe" impairment or combination of impairments. A severe impairment is one "which significantly limits the claimant's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Third, a "severe" impairment must be equivalent in nature to an impairment listed in the regulations as one which the Commissioner acknowledges is so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1529(d). Fourth, if the claimant does not have a listed impairment, the impairment must in combination with other factors prevent the claimant from doing past work. Fifth and finally, if the claimant has established that the impairment prevents performance of past work, the burden shifts to the Commissioner to demonstrate that the claimant can perform other types of work that exist in the national economy, given the claimant's residual functional capacity, age, education, and work experience. Distasio v. Shalala, 47 F.3d 348, 348, (9th Cir. 1995).
When this court reviews a decision of the Commissioner, it will be upheld if it is supported by substantial evidence and the ALJ applied the correct legal standards. "Substantial evidence is `more than a mere scintilla.' It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. It does not have to rise to a preponderance of the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975).
IV. Discussion
In this case, at step three, the ALJ concluded that the plaintiff's impairments are not equal or greater to the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. The ALJ found that plaintiff's impairments only preclude him from returning to his past work as a bus driver, not from performing other types of work. At step four, the ALJ found that plaintiff could return to his past work as a cook. At step five, the ALJ, relying on the testimony of a vocational expert, found that plaintiff could perform other jobs existing in substantial numbers in the economy.
1. Medical Evidence.
Plaintiff argues that the ALJ improperly rejected professional medical opinions in finding that plaintiff is only disabled from working as a bus driver, not other jobs. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) ("clear and convincing reasons" must exist to reject a treating physician's non-contradicted opinion). In this case plaintiff's framing of the issue is inappropriate. In reaching his decision, the ALJ did not reject the opinions of medical professionals; instead, he found that the medical evidence simply does not support plaintiff's contention that he is unable to work. The ALJ's conclusion is based upon substantial evidence.
Dr. Willis found that driving a bus exacerbated plaintiff's stress and therefore should be avoided. Dr. Willis also found, however, that plaintiff could perform other jobs not directly related to public safety. (Tr. 22.) Nonetheless, plaintiff characterizes a statement in a report by Dr. Willis as a finding of disability. On December 17, 1995, Dr. Willis completed a Mental Status Report indicating that plaintiff was able to conduct all activities of daily living "except when depressive episode occurs then pts. and pts. wife reports poor motivation to do any self-care." (Tr. 237.) Plaintiff's argument that this statement demonstrates he cannot return to work is without merit. First, Dr. Willis was merely repeating plaintiff's and plaintiff's wife's comments. Thus, this statement is not Dr. Willis's opinion, but simply a recitation of plaintiff's own complaints. See Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (a physician's opinion based on the plaintiff's own complaints may be disregarded if the plaintiff's complaints have been properly discounted). Second, even if this statement were Dr. Willis's opinion, he did not state that plaintiff could not work; he stated only that when plaintiff is depressed, he has poor motivation to care for himself. (Tr. 237.) Third, plaintiff's characterization of this statement directly contradicts Dr. Willis belief that plaintiff could return to work. (Tr. 279.)
Dr. Glass also opined that plaintiff could be treated with medication and psychological interventions to control his depression, which would enable him to drive a bus on a full-time basis. (Tr. 279.) Again plaintiff takes a statement out of context from the body of Dr. Glass's report in order to create the appearance of a finding of disability. Dr. Glass wrote that plaintiff "continues to report symptoms of depression and anxiety, and he observes every three weeks or so, he experiences a three or four day period of increased depression[.]" (Tr. 272.) From this statement, plaintiff argues he suffers crippling depression every three weeks and, therefore, he cannot work. First, as before, this is a recitation of plaintiff's complaints, not Dr. Glass's opinion. Second, plaintiff's argument that Dr. Glass found him disabled is directly contradicted by the balance of the report-most notably, Dr. Glass's finding that plaintiff should return to work "sooner rather than later" and the only thing preventing plaintiff from doing so was his own "motivation." (Tr. 279-80.)
A third medical professional, Dr. Farley, filled out a disability worksheet provided by plaintiff's attorney. In response to the question "Is claimant disabled based on objective medical findings?" Dr. Farley wrote, "for bus driving job." (Tr. 347.) In answer to another question, "Please state the approximate date from which claimant has continuously been unable to work," Dr. Farley wrote "10/5/96." (Tr. 348.) Plaintiff argues from the answer to the second question that Dr. Farley believed that plaintiff is completely disabled. This argument ignores the fact that the second question regarding how long plaintiff has been disabled directly hinges upon Dr. Farley's answer to the first question, in which he stated that plaintiff is disabled only with respect to his "bus driving job." (Tr. 347.) Moreover, Dr. Farley made several other remarks indicating that his opinion of disability related solely to bus driving. For instance, in the small space provided by plaintiff's attorney for written comments, Dr. Farley wrote that plaintiff "likely cannot function in [the] future as bus driver." (Tr. 351.) He gave no indication that plaintiff cannot perform other jobs. The ALJ correctly concluded that Dr. Farley's finding of disability related only to bus driving.
Finally, a fourth medical professional, Dr. Johnson, examined plaintiff and also concluded that plaintiff should not return to bus driving. His opinion does not imply in any way that plaintiff cannot perform other types of work. (See Tr. 299-301.)
In summary, the ALJ's decision that plaintiff retains the capacity to work is supported by substantial evidence.
In his brief plaintiff also includes a separate argument that the ALJ failed to take into account plaintiff's problems with dealing with stress in finding his degree of residual functioning. The court rejects this argument on the ground that it is not supported by the medical evidence, for the same reasons as discussed above.
2. Plaintiff's Testimony.
Plaintiff argues that the ALJ improperly rejected his testimony regarding the extent of his symptoms. In evaluating a claimant's claim of subjective symptom testimony, the ALJ must determine whether the claimant has produced objective medical evidence of an underlying impairment which could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529(a); Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). If there is no evidence suggesting malingering, the ALJ may reject testimony regarding the severity of plaintiff's symptoms only if the ALJ provides clear and convincing reasons for doing so. Smolen, 80 F.3d at 1283; Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). On the other hand, "a claimant's self-serving statements may be disregarded to the extent they are unsupported by objective evidence." Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). Apart from medical evidence, other factors relevant to the ALJ's credibility determination include plaintiff's daily activities; the location, duration, frequency, and intensity of her symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication; treatment other than medication; measures used to relieve symptoms; and functional limitations caused by the symptoms. Smolen, 80 F.3d at 1284; 20 C.F.R. § 404.1529(c)(3). In addition, inconsistences in the claimant's testimony are grounds for finding that the claimant lacked credibility. Johnson, 60 F.3d at 1434; Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ's credibility assessment is entitled to "great weight." Nyman, 779 F.2d at 531. It will not be overturned simply on the basis of "contradictory or ambiguous evidence." Johnson, 60 F.3d at 1434.
In this case substantial evidence of malingering exists. Dr. Glass found that plaintiff could return to work but lacked "motivation." (Tr. 280.) In addition, after conducting the Minnesota Multiphasic Personality Inventory-2 test, Dr. Glass found that plaintiff had "embellished" his "symptoms." (Tr. 277.) Because there is medical evidence of malingering, the clear-and-convincing standard for rejecting plaintiff's testimony is inapplicable. See Smolen, 80 F.3d at 1283.
Even if the clear-and-convincing standard applied, the court still finds that the ALJ identified sufficient reasons for disregarding plaintiff's symptom testimony.
Additionally, plaintiff's daily activities belie his testimony of crippling depression and inability to interact with others. Plaintiff jogs five miles every morning, reads the newspaper for an hour, does yard work and housekeeping, and lifts weights. He also bikes ten miles once a week. He works on hobbies such as photography and home improvements. He visits friends and relatives once or twice a week, and attends Bible study classes on Friday nights. He also attends church and goes out to dinner or the movies with his wife. (Tr. 24.) The extent of plaintiff's activities significantly undercut his argument that he cannot work and cannot successfully interact with people.
Further, plaintiff's testimony was contradicted by evidence in the medical reports. For example, plaintiff testified that as a result of his anxiety, it takes him until noon to get started on a typical day. Plaintiff told his doctors, however, that he tries to get up by 9:00 a.m. each morning and typically jogs five miles in the morning.
In summary, the ALJ had sufficient reasons for rejecting plaintiff's testimony regarding the extent of his symptoms.
3. Headaches.
Next, plaintiff argues that the ALJ improperly failed to find his migraine headaches are a significant impairment. In his brief plaintiff asserts that he has migraines twice a week, lasting anywhere from two to eight hours. Plaintiff testified, however, that his headaches are relieved by Ibuprofen and Imitrex. (Tr. 26.) Moreover, he fails to cite to any medical evidence supporting his claim that his headaches are a disabling problem. Nyman, 779 F.2d at 531 ("a claimant's self-serving statements may be disregarded to the extent they are unsupported by objective evidence."). The ALJ's decision on this point is supported by substantial evidence.
4. Past Work as a Cook.
At step four of the sequential evaluation, the ALJ found that plaintiff could return to his past work of a cook. Plaintiff argues that past work is relevant only if it was performed within 15 years prior to the date of the ALJ's decision. 20 C.F.R. § 404.1565(a). Plaintiff's work as a cook ended 15 years and 2 months before the decision. Social Security Ruling 82-62 states that the 15-year period is "generally" to be applied. That Ruling makes clear that the 15-year period is not a strict limitation. Considering that cooking skills are not ones which are generally subject to change, and considering that the past work occurred only two months outside the 15-year period, the ALJ's decision that plaintiff could perform past work of a cook was not error.
5. Other Jobs.
In the alternative, the ALJ based on the testimony of a vocational expert found that plaintiff could perform several other jobs available in the national economy, such as a janitorial worker, a small-parts assembler, an electronics worker, a cashier, or a laundry worker. Plaintiff argues that the ALJ's hypothetical to the vocational expert was flawed because he failed to include as a limitation that plaintiff often fails to complete tasks in a timely manner. Case law provides that hypothetical questions posed to a vocational expert must set out all the limitations and restrictions of the particular claimant. "The limitation of evidence in a hypothetical question is objectionable `only if the assumed facts could not be supported by the record." Magallanes v. Bowen, 881 F.2d 747, 757 (9th Cir. 1989) (quoting Sample v. Schweiker, 694 F.2d 639, 644 (9th Cir. 1982). Based on his evaluation of the evidence, the ALJ is free to accept or reject the more restrictive considerations suggested by claimant's counsel. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 1986).
The ALJ's failure to include in his hypothetical an additional limitation that "plaintiff fails to complete tasks in a timely manner" was not error. The ALJ credited the opinion of an agency psychologist who found, "Deficiencies of concentration, persistence, and pace were assessed as seldom, and episodes of deterioration or decompensation of work or work-like setting[s] were assessed as once or twice." (Tr. 25.) In addition, based on Dr. Farley's, opinion, the ALJ found that plaintiff's "ability to perform at a consistent pace is only limited in his ability as a bus driver." (Tr. 22.) As such, plaintiff's proposed addition to the hypothetical does not accurately reflect the medical evidence. The court also rejects plaintiff's argument that the hypothetical was unduly vague.
CONCLUSION
For the reasons provided above, the decision of the Commissioner is affirmed. This case is closed, and any other pending motions are denied as moot.
IT IS SO ORDERED.