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Murray v. Colvin

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Apr 10, 2014
No. C-13-01182 DMR (N.D. Cal. Apr. 10, 2014)

Summary

finding no conflict

Summary of this case from Trujillo v. Berryhill

Opinion

No. C-13-01182 DMR

04-10-2014

ROGER DALE MURRAY JR, Plaintiff, v. CAROLYN W. COLVIN, Defendant.


ORDER GRANTING CROSS MOTIONS

FOR SUMMARY JUDGMENT IN PART

AND REMANDING FOR FURTHER

PROCEEDINGS

Plaintiff Roger Murray moves for summary judgment to reverse the Commissioner of the Social Security Administration's (the "Commissioner's") final administrative decision, which found Murray not disabled and therefore denied his applications for Title II Social Security Disability Insurance Benefits. The Commissioner cross-moves to affirm. For the reasons stated below, the court grants each motion for summary judgment in part and remands this action to the Commissioner for further proceedings.

I. Procedural and Factual History

Plaintiff first filed for Title II Social Security Disability Insurance Benefits on September 3, 2010, alleging a disability onset date of July 1, 2009. (A.R. 63, 139-142.) He later amended his alleged onset date to October 11, 2010. (A.R. 21, 42.) Plaintiff's application was initially denied on March 10, 2011 (A.R. 65-68) and again on reconsideration on June 7, 2011 (A.R. 75-79). On July 13, 2011, Plaintiff filed a timely request for a hearing before an Administrative Law Judge (ALJ). (A.R. 81-82.)

After the October 12, 2011 hearing, the ALJ issued a decision finding Plaintiff not disabled. (A.R. 18-33.) The ALJ determined that Plaintiff suffers from back pain, right hip pain, depression, anxiety disorder, and obesity, which are severe impairments. (A.R. 23.) Although the ALJ determined that Plaintiff is unable to perform his past work, she determined that he has the following RFC to perform light work:

[T]he claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant cannot climb ladders, ropes, or scaffolds. He can only occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. The claimant cannot work around hazards. He is able to lift and/or carry twenty pounds occasionally and ten pounds frequently. He can sit and stand and/or or [sic] walk for six hours in an eight-hour day. He is limited to one-to-two step instructions and positions with occasional contact with the public and co-workers.
(A.R. 25.) Relying on the opinion of a vocational expert who testified that an individual with such an RFC could perform a significant number of jobs existing in the economy, the ALJ concluded that Plaintiff is not disabled. (A.R. 32.)

Plaintiff filed a request for review of the hearing on December 6, 2011 (A.R. 16-17), which the Appeals Council denied on January 10, 2013. (A.R. 1-6.) The ALJ's decision therefore became the final decision of the Commissioner. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Plaintiff then filed suit in this court pursuant to 42 U.S.C. § 405(g).

II. Issues Presented

1. Whether the ALJ erred in failing to include in her RFC finding all of the limitations caused by Plaintiff's severe and non-severe impairments, as found by the ALJ; 2. Whether the ALJ erred in rejecting the opinions of Plaintiff's treating and examining physicians; 3. Whether the ALJ improperly rejected the credibility of Plaintiff's allegations; 4. Whether the ALJ improperly rejected lay witness testimony; and 5. Whether the ALJ erred in relying on vocational expert testimony that conflicts with the Dictionary of Occupational Titles.

III. Standard of Review

Pursuant to 42 U.S.C. § 405(g), this court has the authority to review a decision by the Commissioner denying a claimant disability benefits. The ALJ's underlying determination "will be disturbed only if it is not supported by substantial evidence or it is based on legal error." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (internal quotation marks omitted). Substantial evidence is evidence within the record that could lead a reasonable mind to accept a conclusion regarding disability status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is "more than a mere scintilla" but less than a preponderance. Id. If the evidence reasonably could support two conclusions, the court "may not substitute its judgment for that of the Commissioner" and must affirm the decision. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). "Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).

IV. Discussion

A. The ALJ's Determination of Plaintiff's Mental RFC

Plaintiff first contends that the ALJ erred by failing to consider all of his medically determinable impairments, severe and non-severe, in determining Plaintiff's mental RFC and subsequently posing an incomplete hypothetical question to the vocational expert (VE). Specifically, the ALJ found that Plaintiff has moderate difficulties in social functioning and in concentration, persistence, or pace. (A.R. 24-25.) However, the only mental limitation reflected in the ALJ's RFC was a limitation to "one-to-two step instructions and positions with occasional contact with the public and co-workers." (A.R. 25.) In concluding that Plaintiff could perform other jobs that exist in the national economy, the ALJ questioned the VE as follows:

Q. Okay. So let's assume a hypothetical individual the claimant's age, education, and work background with the following limitations: lifting and carrying 20 pounds occasionally and 10 frequently. Sitting, standing, walking six hours each in an eight-hour day. No climbing of ladders, ropes, or scaffolds. Occasional climbing of ramps and stairs. Occasional balancing, stooping, kneeling, crouching, and crawling. No work around hazards, and limited to one, two step simple instruction jobs with
occasional contact with public and coworkers. Can that person do the claimant's past work?
A. No, your honor.
. . .
Q. Okay. Are there other jobs in the regional and national economy that such a person could do?
A. Your honor, your hypothetical is in the exertional level of light. And there are the following job titles: assembler, and that is DOT code number 734.687-014. . . . A second job title is photocopy machine operator. DOT code number 207.685-014.
(A.R. 59-60.) Plaintiff argues that the RFC finding does not reflect his deficiency in concentration, persistence or pace, as expressly found by the ALJ, and thus, the ALJ's hypothetical to the VE describing his ability to do "one, two step simple instruction jobs" failed to capture these deficiencies.

In determining a claimant's RFC at step four of the sequential analysis, an ALJ must consider "all of the relevant medical and other evidence" in the record, 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), and must consider all of the claimant's "medically determinable impairments," including those that are not severe. 20 C.F.R. § 404.1545(a)(2); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). "[A]n RFC that fails to take into account a claimant's limitations is defective." Valentine v. Comm'r. of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Similarly, "[t]he hypothetical an ALJ poses to a vocational expert, which derives from the RFC, 'must set out all the limitations and restrictions of the particular claimant.'" Id. (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). However, it is "proper to limit a hypothetical to those impairments that are supported by substantial evidence in the record." Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).

The Commissioner argues that a limitation to simple work adequately captures Plaintiff's moderate limitations in concentration, persistence or pace, asserting that this case is similar to Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-75 (9th Cir. 2008). In Stubbs-Danielson, the medical evidence in the record included an opinion assessing a moderate limitation in concentration, persistence or pace. Id. at 1173. The record also included an additional opinion that despite the claimant's "slow pace, both in thinking & actions" and moderate limitations "in other mental areas," the claimant "retained the ability to 'carry out simple tasks as evidenced by her ability to do housework, shopping, work on hobbies, cooking and reading.'" Id. The Ninth Circuit concluded that the ALJ did not commit error in translating the claimant's condition, "including the pace and mental limitations, into the only concrete restrictions available to [the ALJ]—[the physician's] recommended restriction to 'simple tasks.'" Id. at 1174. The court held that "an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence or pace where the assessment is consistent with restrictions identified in the medical testimony," and noted that this conclusion was consistent with decisions from other circuits. Id. at 1174 (citing Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (holding that where state psychologist both identified the claimant as having deficiencies of concentration, persistence or pace and pronounced claimant able to "sustain sufficient concentration and attention to perform at least simple, repetitive, and routine cognitive activity without severe restriction of function," ALJ's hypothetical including ability to perform "simple, routine, repetitive tasks" adequately captured claimant's deficiencies in concentration, persistence or pace)).

Here, as in Stubbs-Danielson, the ALJ's limitation to "one-to-two step instructions" in the RFC assessment adequately captured examining physician Dr. Richard Palmer's opinion that Plaintiff "is able to adequately perform one or two-step simple repetitive tasks and is able to adequately perform complex tasks as there are no noted intellectual impairments at this time." (A.R. 322, 28.) This limitation to "one-to-two step instructions and positions with occasional contact with the public and co-workers" was consistent with the other restrictions identified in the medical testimony. Dr. Palmer found that Plaintiff demonstrated "intact" intelligence, adequate immediate recall, adequate fund of knowledge, and concrete abstract thinking, and concluded that Plaintiff's concentration was "good." (A.R. 321.) He also found that Plaintiff "has a fair ability to accept instructions from supervisors and interact with coworkers and the public because his anxiety will limit [the] extent of [his] social engagement." (A.R. 322.) The ALJ afforded Dr. Palmer's opinions regarding Plaintiff's functional limitations "significant weight" in formulating Plaintiff's RFC, and Plaintiff does not contend that this was an error. The other relevant opinion to which the ALJ afforded significant weight, that of reviewing physician Dr. S. Jaituni, did not deviate from Dr. Palmer's opinion regarding Plaintiff's mental limitations. (A.R. 400-402; 31.)

Plaintiff argues that this case is more analogous to Brink v. Commissioner of the Social Security Administration, 343 Fed. Appx. 211, 212 (9th Cir. 2009), which distinguished Stubbs-Danielson and found that a restriction to "simple, repetitive work" failed to include limitations in concentration, persistence or pace. However, Brink is inapposite. There, the court found that the medical evidence established limitations in concentration, persistence or pace, and that an RFC assessment of simple, repetitive work did not adequately capture these limitations. Id. Contrary to Plaintiff's assertion, a limitation must be included in the RFC determination only where the record provides substantial evidence of such limitations. See id.; see also Osenbrock, 240 F.3d at 1165 (holding that it is "proper to limit a hypothetical to those impairments that are supported by substantial evidence in the record."). Here, the medical evidence supports a finding that Plaintiff is capable of performing one-to-two step instructions despite any limitations in concentration, persistence or pace. See Sabin v. Astrue, 337 Fed. Appx. 617, 621 (9th Cir. 2009) (finding ALJ properly assessed medical evidence in determining that despite moderate difficulties as to concentration, persistence or pace, claimant could perform simple and repetitive tasks on consistent basis). Accordingly, the ALJ did not err in determining Plaintiff's mental RFC. Consistent with the medical evidence in the record, the ALJ properly translated Plaintiff's moderate limitations with respect to concentration, persistence or pace into a limitation to "one-to-two step instructions." See Stubbs-Danielson, 539 F.3d at 1174.

B. The ALJ's Evaluation of Medical Opinions

Plaintiff next argues that the ALJ misapplied the regulatory standards for considering physician opinions with respect to treating physician Dr. Manuel Ballesca and examining physician Dr. Palmer.

1. Applicable Law

Courts employ a hierarchy of deference to medical opinions based on the relation of the doctor to the patient. Namely, courts distinguish between three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("non-examining physicians"). See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a non-examining physician's opinion. Id.

The Social Security Act tasks the ALJ with determining credibility of medical testimony and resolving conflicting evidence and ambiguities. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). A treating physician's opinion, while entitled to more weight, is not necessarily conclusive. Magallanes, 881 F.2d at 751 (citation omitted). To reject the opinion of an uncontradicted treating physician, an ALJ must provide "clear and convincing reasons." Lester, 81 F.3d at 830; see, e.g., Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming rejection of examining psychologist's functional assessment which conflicted with his own written report and test results); see also 20 C.F.R. § 416.927(d)(2); SSR 96-2p, 1996 WL 374188. If another doctor contradicts a treating physician, the ALJ must provide "specific and legitimate reasons" supported by substantial evidence to discount the treating physician's opinion. Lester, 81 F.3d at 830. The ALJ meets this burden "by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick, 157 F.3d at 725. "[B]road and vague" reasons do not suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). This same standard applies to the rejection of an examining physician's opinion as well. Lester, 81 F.3d at 830-31. A non-examining physician's opinion alone cannot constitute substantial evidence to reject the opinion of an examining or treating physician, Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984), though a non-examining physician's opinion may be persuasive when supported by other factors. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (noting that opinion by "non-examining medical expert . . . may constitute substantial evidence when it is consistent with other independent evidence in the record"); Magallanes, 881 F.2d at 751-55 (upholding rejection of treating physician's opinion given contradictory laboratory test results, reports from examining physicians, and testimony from claimant). An opinion that is more consistent with the record as a whole generally carries more persuasiveness. See 20 C.F.R. § 416.927(d)(4).

2. Dr. Ballesca

In his September 21, 2011 report, Dr. Ballesca opined that Plaintiff was unable to sustain light work, even if Plaintiff was given the option to alternate sitting and standing during the work day. (A.R. 488.) He concluded that Plaintiff could only sit four hours before requiring a change in position and stand or walk for no more than two hours before needing to change positions. (A.R. 488.) He also opined that Plaintiff needed to lie down for two hours in an eight-hour workday. (A.R. 491.) The ALJ rejected Dr. Ballesca's opinion in favor of non-treating, non-examining physicians Dr. M. Tambellini and Dr. Jaituni, who concluded that Plaintiff could perform activities consistent with light work. (A.R. 305-309, 400-401.)

Here, where the opinions of Dr. Tambellini and Dr. Jaituni contradicted Dr. Ballesca's opinion that Plaintiff could not perform light work, the ALJ was required to provide "specific and legitimate" reasons supported by substantial evidence. Lester, 81 F.3d at 830-31. Upon review of the record, the court concludes that the ALJ did not err with respect to this portion of Dr. Ballesca's opinion. The ALJ noted that she gave "limited weight" to Dr. Ballesca's opinion that Plaintiff could not sustain light work because the opinion was "not supported by the mild objective findings in the record." (A.R. 30.) She also pointed to Plaintiff's August 2011 lumbar spine MRI, the sole test which Dr. Ballesca's opinion referenced. (A.R. 30, 492.) The ALJ observed that the MRI in question demonstrated "subtle interval worsening," as noted by Dr. Ballesca, but "demonstrated only minimal worsening of the left-sided neural foraminal stenosis and was otherwise normal except for some mild degenerative changes." (A.R. 30, 422.) Otherwise, the MRI revealed no significant changes since the prior exam. (A.R. 422.) Dr. Ballesca did not cite any other clinical findings in his report.

Plaintiff asserts that the ALJ's statement that the "mild objective findings" in the record do not support Dr. Ballesca's opinion is a legally insufficient reason to reject that opinion because it lacks specificity. (Pl.'s Mot. 16.) Contrary to Plaintiff's assertion, the ALJ detailed the objective findings in the record, albeit elsewhere in her decision. (See A.R. 29.) In discussing the credibility of Plaintiff's allegations regarding his physical limitations (see discussion below), the ALJ stated that the "objective findings in the record" did not confirm the allegations, and detailed those findings. A reasonable reading of the ALJ's decision is that she incorporated those "objective findings" in her discussion of Dr. Ballesca's opinion, and the evidence she described supports her analysis of Dr. Ballesca's opinion. The record includes a number of normal hip x-rays, (A.R. 291, 299), with one right hip x-ray revealing mild degenerative changes, (A.R. 274). A lumbar spine MRI also revealed mild degenerative changes, with Plaintiff's physician noting that the MRI showed "nothing concerning." (A.R. 303-304.) A lumbar spine x-ray similarly revealed "[m]ild diffuse degenerative changes." (A.R. 391-392.) As described above, the most recent lumbar spine MRI, performed in August 2011, showed "minimal worsening" and "mild degenerative changes." (A.R. 422.) Other physical exam findings were largely unremarkable. Although Plaintiff occasionally experienced tenderness and limited range of motion, straight leg raising tests were negative, with normal reflexes, sensation, and strength in the lower extremities. (A.R. 250, 251, 297, 385.) The ALJ's finding that Dr. Ballesca's opinion was unsupported by the objective clinical findings is thus supported by substantial evidence. Further, his opinion was contradicted by the opinions of Drs. Tambellini and Jaituni, whose opinions may serve as substantial evidence as they are consistent with other independent evidence in the record, as noted by the ALJ, (A.R. 31). See Lester, 81 F.3d at 831. The court finds that the ALJ provided specific and legitimate reasons supported by substantial evidence to reject Dr. Ballesca's opinion. See Batson v. Comm'r of Soc. Sec., 359 F.3d 1190, 1195 ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole, or by objective medical findings" (internal citation omitted) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)).

Dr. Ballesca also found that Plaintiff was limited in his ability to reach, handle, finger, and feel, opining that in an eight-hour day, Plaintiff would only be able to reach for four hours, handle for two hours, finger for two hours, and feel for two hours. (A.R. 489.) The ALJ rejected this opinion, asserting that there was no evidence of any impairment related to the hands, arms, or shoulders, and noting Dr. Ballesca's opinion that Plaintiff had no limitations of the cervical spine. (A.R. 30, 489-490.) Plaintiff argues that this reason is factually incorrect, because Plaintiff has a documented trigger finger on his right hand which impairs the use of that hand, and that he has been receiving treatment for this condition since November 2008. (See A.R. 235, 236, 275, 286, 288.)

In response, the Commissioner points to Plaintiff's testimony that medication relieved any associated pain, (A.R. 52), arguing that "impairments that can be controlled effectively with medication are not disabling." (Def.'s Opp'n 6 (citing Warre v. Comm'r of Soc. Sec., 439 F.3d 1001, 1006 (9th Cir. 2006).) However, Plaintiff also testified that the pain caused by his trigger finger was not the only limitation caused by that condition, describing other problems he has with his right hand, such as dropping utensils and cups. (See A.R. 52-53.) The court finds that the ALJ erred in rejecting this portion of Dr. Ballesca's opinion because the only reason she gave for doing so is not supported by the evidence in the record.

In response to the ALJ's questioning, the VE testified that a person with Plaintiff's RFC could perform the jobs of assembler and photocopy machine operator. (A.R. 60.) However, the ALJ's RFC does not reflect any limitations regarding Plaintiff's hands. The Dictionary of Occupational Titles (DOT) defines assembler (DOT 734.687-014) as "[a]ssembles fabric badges from such materials as metal bars, ribbon, and metal buttons" using any one of five enumerated methods, some of which involve brushing cement, positioning ribbon, and pressing ribbon into place. Photocopying-machine operator (DOT 207.685-014) is defined as "[t]ends duplicating machine to reproduce handwritten or typewritten matter" by placing an original on machine, setting control switch, and pressing buttons. These positions involve the use of an individual's hands and fingers, and with respect to the position of assembler, may involve detailed work requiring some manual dexterity. As Plaintiff's trigger finger could impact the ALJ's determination of Plaintiff's RFC, and accordingly, his ability to perform the jobs of assembler and photocopy machine operator, the court cannot say that the ALJ's error in rejecting this portion of Dr. Ballesca's opinion was harmless. See Tommasetti, 533 F.3d at 1038 (defining harmless error as "when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination" (citation and quotation marks omitted)).

3. Dr. Palmer

Plaintiff also argues that the ALJ erred in rejecting the opinion of examining physician Dr. Palmer, who opined that due to mental health symptoms, Plaintiff has only "a fair ability" to a) "maintain regular attendance in the workplace," b) "complete a normal workday or workweek without interruptions from a psychiatric condition," and c) "handle normal work-related stress from a competitive work environment." (A.R. 28, 30, 322; see Pl.'s Mot. 14-15.) Plaintiff argues that "fair" is a term of art that means "seriously limited but not precluded," citing Cruse v. United States Department of Health and Human Services, 49 F.3d 614, 618 (10th Cir. 1995), in which the Tenth Circuit defined a physician's rating of "fair" to be evidence of disability, rather than ability. See id.

In Cruse, the court observed that

the [mental assessment] forms' definition of "fair" is misleading. Though describing a functional ability as "fair" would imply no disabling impairment, "fair" is defined to mean: "Ability to function in this area is seriously limited but not precluded." We conclude that "seriously limited but not precluded" is essentially the same as the listing requirements' definition of the term "marked[]". . .
Cruse, 49 F.3d at 618. However, Cruse's definition, equating "seriously limited but not precluded" to a "marked" limitation has been widely criticized. In Cantrell v. Apfel, 231 F.3d 1104, 1107-08 (8th Cir. 2000), the Eighth Circuit rejected the Cruse definition, holding that "[t]he word 'fair is both a measure of ability and disability. It is on the balance between poor ability to function and greater ability to function." The court concluded that the term must be read in light of the entire record to determine whether "the balance tips toward functional ability or toward disability." Id.; see also Colvin v. Barnhart, 475 F.3d 727, 731 (6th Cir. 2007) (stating that the "plain meaning of 'seriously limited but not precluded' is that one is not precluded from performing in that area. It defies logic to assert that a finding of 'not precluded' actually means that one is precluded"; adopting Cantrell's interpretation of the term "fair"). Although the Ninth Circuit has not yet opined on this issue, it cited Cantrell approvingly in a recent unpublished case, Chang v. Commissioner of Social Security Administration, 507 Fed. Appx. 698, 699 (9th Cir. 2013). In Chang, the Ninth Circuit held that an ALJ "did not err in concluding that when [an examining physician] used the word 'fair' to describe [the claimant's] abilities in a particular area, he implied no disabling impairment in that area." Id. ("the word 'fair' in a physician's report should be read in light of the entire record" (citing Cantrell, 475 F.3d at 731)); see also Davis v. Astrue, No. 1:12-cv-00320-AWI-JLT, 2012 WL 6202308, at *11 (E.D. Cal. Dec. 12, 2012) (citing Cantrell; finding that the use of "fair" by examining physician "favor[ed] functional ability").

Here, reading Dr. Palmer's use of the word "fair" in light of the entire record, the court cannot say that the ALJ erred in interpreting "fair" to favor functional ability. Despite opining that Plaintiff has "a fair ability" to "maintain regular attendance in the workplace," "complete a normal workday or workweek without interruptions from a psychiatric condition," and "handle normal work-related stress from a competitive work environment," he also concluded that Plaintiff could perform one-or-two step simple repetitive tasks and could perform "work activities on a consistent basis." (A.R. 322.) In addition, Dr. Palmer's opinion was based upon a February 2011 psychiatric examination. In May 2011 Plaintiff reported that after adjustments to his medication he was "feeling much better." (A.R. 453.) Taken together, the ALJ's determination that Dr. Palmer's use of the word "fair" to describe certain of Plaintiff's abilities was evidence of ability, not disability, is supported by substantial evidence.

C. Plaintiff's Credibility

Plaintiff alleges that the ALJ did not properly consider his own testimony as to his symptoms. Plaintiff argues that the ALJ erred in discounting Plaintiff's testimony as not credible because she failed to identify evidence showing that specific testimony was not credible and because portions of the ALJ's rationale are unsupported. (Pl.'s Mot. 18.)

In general, credibility determinations are the province of the ALJ. "It is the ALJ's role to resolve evidentiary conflicts. If there is more than one rational interpretation of the evidence, the ALJ's conclusion must be upheld." Allen v. Sec'y of Health & Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984). An ALJ is not "required to believe every allegation of disabling pain" or other nonexertional impairment. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989) (citing 42 U.S.C. § 423(d)(5) (A)). Nevertheless, the ALJ's credibility determinations "must be supported by specific, cogent reasons." Reddick, 157 F.3d at 722 (citation omitted). If an ALJ discredits a claimant's subjective symptom testimony, the ALJ must articulate specific reasons for doing so. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). In evaluating a claimant's credibility, the ALJ cannot rely on general findings, but "must specifically identify what testimony is credible and what evidence undermines the claimant's complaints." Id. at 972 (quotations omitted); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (ALJ must articulate reasons that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony."). The ALJ may consider "ordinary techniques of credibility evaluation," including the claimant's reputation for truthfulness and inconsistencies in testimony, and may also consider a claimant's daily activities, and "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The determination of whether or not to accept a claimant's testimony regarding subjective symptoms requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281 (citations omitted). First, the ALJ must determine whether or not there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms "based solely on a lack of objective medical evidence to fully corroborate the alleged severity of" the symptoms. Bunnell v. Sullivan, 947 F.2d 341, 343, 346-47 (9th Cir. 1991) (en banc) (citations omitted). Absent affirmative evidence that the claimant is malingering, the ALJ must provide specific "clear and convincing" reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1283-84.

The ALJ did not conclude that plaintiff was a malingerer.

Here, the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." (A.R. 28.) The ALJ carefully considered the evidence for making this determination, and gave several reasons for failing to fully credit Plaintiff's credibility. As discussed above, the ALJ noted that the objective clinical findings, including x-rays and MRIs, did not confirm Plaintiff's limitations. (A.R. 29.) While subjective pain testimony cannot be rejected solely because it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of Plaintiff's pain and its disabling effects. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Moreover, the ALJ gave a number of other reasons for discounting Plaintiff's testimony. The ALJ looked at Plaintiff's daily activities and concluded that in terms of Plaintiff's "alleged orthopedic impairments," the activities were "not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." (A.R. 28.) As the ALJ noted, Plaintiff reported that he was able to sit for much of the day. (A.R. 28, 193 ("set [sic] most of the time on easy chair."), 200 ("watch tv most of the time and play video games. Maybe read a book.").) Plaintiff also testified that he occasionally does laundry, helps take care of his pets, checks the computer, reads, and takes his daughter to school. (A.R. 54-56.) Plaintiff argues that he did not testify that he is "able to sit for much of the day," and now explains that his easy chair is a recliner, and even when he sits in it, he has to get up and move around often and does not sit "for long periods of time." (A.R. 229.) However, the evidence about Plaintiff's easy chair was not before the ALJ, as it was submitted in connection with the Appeals Council's review, two months after the ALJ's decision. (See A.R. 223-233.) Although this evidence is susceptible to an interpretation more favorable to Plaintiff, the ALJ's interpretation was rational; a court must "uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation." See Burch v. Barnhart, 400 F.3d 676, 680-81 (quoting Magallanes, 881 F.2d at 750) (quotation marks omitted).

The ALJ also noted that although Plaintiff has received treatment for his impairments, "that treatment has been essentially routine and/or conservative in nature." (A.R. 28.) Specifically, she noted that despite being treated with pain medication and injections, Plaintiff "has received a quite limited range of conservative treatment." (A.R. 28-29.) Plaintiff has not undergone physical therapy or "extensive interventional treatment," nor have his physicians contemplated surgery. (A.R. 29.) Further, the ALJ found that with respect to his mental impairments, Plaintiff had only sought mental health treatment in April 2011, and that medications for his mental symptoms had been effective in controlling his symptoms. (A.R. 29.) After adjustments to his medications, Plaintiff reported in May 2011 that he felt "much better." (A.R. 29, 453.)

Additionally, the ALJ found that Plaintiff failed to follow up on treatment recommendations made by his treating physicians, suggesting that his symptoms may not have been as serious as he alleged. (A.R. 29.) Specifically, Plaintiff was referred to a chronic pain program in April 2011, but there is no evidence he participated. (A.R. 386.) Plaintiff now argues that he did not pursue such treatment because he could not afford to do so. (Pl.'s Mot. 20-21; A.R. 229.) Yet, as the Commissioner notes, Plaintiff was represented at the hearing and his counsel had the opportunity to raise this issue to the ALJ but did not do so. (Def.'s Opp'n 9.) Finally, the ALJ also noted that Plaintiff had not alleged any "significant side effects" from the use of his medications. (A.R. 29.) Plaintiff argues that this is factually incorrect, as the record contains evidence of side effects such as "[s]leepiness," "real tired," "[r]aises blood pressure, makes me sleepy," and "[a]nger, moodiness." (Pl.'s Mot. 21, A.R. 180, 188.) Again, while this evidence may be susceptible to an interpretation more favorable to Plaintiff, the court cannot say that the ALJ's interpretation was irrational.

As noted, this evidence was not before the ALJ as it was submitted two months after the ALJ's decision. (See A.R. 223-233.)
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The ALJ considered all of the above factors in concluding that Plaintiff's testimony was not credible. The court finds that the ALJ provided clear and convincing reasons supported by substantial evidence for her decision.

D. Lay Witness Credibility

Plaintiff also alleges that the ALJ failed to give proper weight to the testimony of Plaintiff's wife. (Pl.'s Mot. 23-24.)

"In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citations and quotation marks omitted). Ordinarily, an ALJ must provide specific reasons, "germane to each witness," to reject the testimony of a lay witness. Id. (citations and quotation marks omitted). "Inconsistency with medical evidence is one such reason." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citation omitted).

Here, Plaintiff's wife, Debra Murray, submitted a Third Party Function Report and handwritten notes, in which she described Plaintiff's symptoms and daily activities. (A.R. 164-171.) The ALJ described Ms. Murray's statements about Plaintiff's limitations, but found that her testimony was not supported by the objective findings in the record and was inconsistent with portions of Plaintiff's testimony regarding his ability to sit. (A.R. 29-30.) Plaintiff does not explain how the ALJ's reasons for rejecting Ms. Murray's testimony are not specific and germane to her. The court finds that the ALJ's rejection of Ms. Murray's testimony is supported by substantial evidence and was not error.

E. The VE's Testimony

Finally, Plaintiff argues that the ALJ erred in relying on testimony by the VE that conflicted with the DOT. Plaintiff argues that the ALJ was required to ask if there was a conflict between the VE's testimony and the DOT, and that here, there is an apparent conflict because the jobs of assembler and photocopy machine operator identified by the VE require a level of mental reasoning beyond Plaintiff's ability. Plaintiff asserts that the ALJ did not address whether the VE's testimony conflicted with the DOT and that the record contains no "persuasive evidence" to justify the deviation from the DOT. (Pl.'s Mot. 24.)

"[A]n [ALJ] may [not] rely on the testimony of a vocational expert regarding the requirements of a particular job without first inquiring whether that expert's testimony conflicts with the [DOT]." Massachi v. Astrue, 486 F.3d 1149, 1150 (9th Cir. 2007). The obligation to ask about the existence of a conflict stems from SSR 00-4p, which requires an ALJ to identify and elicit an explanation for any conflict between a VE's testimony and the information in the DOT. Id. at 1152-1153. When there is a conflict, compliance with SSR 00-4p "ensure[s] that the record is clear as to why an ALJ relied on a vocational expert's testimony . . . ." Id. at 1153. To comply with SSR 00-4p, "the ALJ must first determine whether a conflict exists. If it does, the ALJ must then determine whether the vocational expert's explanation for the conflict is reasonable and whether a basis exists for relying on the expert rather than the [DOT]." Id. Failing to ask whether there is a conflict between the VE's testimony and the DOT is harmless error where there is no apparent conflict or where the VE explained the reason for the deviation. Id. at 1154, n.19.

Here, the ALJ accepted the VE's testimony that a person limited to "one, two step simple instruction jobs" could perform the jobs of assembler and photocopy machine operator and therefore concluded that Plaintiff was not disabled. As Plaintiff correctly contends, the ALJ failed to explicitly inquire whether there was a conflict between the VE's testimony and the DOT. (See A.R. 59-61.) However, the court finds that there was no conflict between the VE's testimony that Plaintiff could perform the jobs of assembler and photocopy machine operator and the DOT. The DOT lists requirements of various occupations, including the level of mental reasoning required for each occupation using a six point scale. Meissl v. Barnhart, 403 F. Supp. 2d 981, 982 (C.D. Cal. 2005). The jobs of assembler and photocopy machine operator are classified as requiring a reasoning development level of two. A level two reasoning ability requires an individual to be able to "[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions, and [d]eal with problems involving a few concrete variables in or from standardized situations." Id. (internal quotation marks and citation omitted). As the court in Meissl noted, the word "detailed" is immediately qualified by the word "uninvolved"; therefore, the rigorousness of the word "detailed" is "downplayed . . . by labeling [the instructions] as being 'uninvolved.'" Id. at 984. In that case, the court held that "[a] reasoning level of two, then, does not conflict with a limitation to simple repetitive tasks." Id. at 984-85 (finding that "a neat, one-to-one parallel" does not exist between DOT's reasoning levels and Social Security Administration's categories of mental ability). Numerous courts have relied on the reasoning in Meissl to conclude that there is no conflict between the DOT's level two reasoning and an RFC limitation to "simple one or two step instructions." See Eckard v. Astrue, No. 1:11cv0516 DLB, 2012 WL 669895, at *7-8 (E.D. Cal. Feb. 29, 2012); see also Kellerman v. Astrue, No. 2012 WL 3070781, at *17-18 (N.D. Cal. July 27, 2012) (holding that there is no conflict between level two reasoning and RFC limitation to "simple one or two step instructions"). The court finds this reasoning persuasive and concludes that there is no conflict between the VE's testimony and the DOT evidence. Absent any conflict, the ALJ's failure to question the VE regarding any possible conflict is harmless. See Massachi, 486 F.3d 1149, 1154 n.19.

V. Conclusion

For the foregoing reasons, the court finds the ALJ's decision not fully supported by substantial evidence in the record. Accordingly, the court remands this case to the Commissioner for further proceedings consistent with this opinion.

IT IS SO ORDERED.

__________________________

DONNA M. RYU

United States Magistrate Judge


Summaries of

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
Apr 10, 2014
No. C-13-01182 DMR (N.D. Cal. Apr. 10, 2014)

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Case details for

Murray v. Colvin

Case Details

Full title:ROGER DALE MURRAY JR, Plaintiff, v. CAROLYN W. COLVIN, Defendant.

Court:UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

Date published: Apr 10, 2014

Citations

No. C-13-01182 DMR (N.D. Cal. Apr. 10, 2014)

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