Summary
affirming ALJ's determination that seizure disorder was not severe impairment where evidence included no eyewitness accounts of claimant's seizures, no neurological testing, and no indication that claimant's physicians ever reported claimant's alleged seizure disorder to department of motor vehicles, as required by state law
Summary of this case from Mohammad v. AstrueOpinion
No C-00-1250 VRW
May 23, 2001
ORDER
Plaintiff has filed this action under 42 U.S.C. § 405 (g) seeking judicial review of defendant's denial of his application for Social Security disability insurance benefits under Title II the Social Security Act. Before the court are the parties' cross-motions for summary judgment. Plaintiff also makes an alternative motion to remand.
I
Plaintiff originally filed for disability benefits in February 1989. He was found disabled with drug abuse/alcoholism playing a "material factor" in his disability. Plaintiff received disability benefits until they were terminated on January 1, 1997, pursuant to section 105 of Public Law 104-121, which required the termination of benefits to recipients for whom drug abuse/alcoholism was a material factor in their disability.
On July 24, 1996, plaintiff appealed the termination decision. The decision to terminate was affirmed and plaintiff requested a hearing before an Administrative Law Judge (ALJ). A hearing was held on October 28, 1997, in Oakland, California before ALJ Robert P. Wenten. After the hearing, in a written decision dated July 10, 1998, the ALJ found plaintiff not disabled. Plaintiff requested review by the Appeals Council but was denied in a letter dated March 1, 2000. On April 12, 2000, plaintiff filed a complaint in this court. Plaintiff's motion for summary judgment was filed October 11, 2000, and approximately a month later defendant filed its cross-motion for summary judgment.
Plaintiff was born on May 18, 1958. He is not currently employed. He completed high school and two years of classes in college. Plaintiff's daily activities include taking his younger two children to school, house cleaning, watching television and sleeping. Tr. 74-75. For thirteen years he worked as a busboy at a restaurant. In 1990, he stopped working after he was injured when falling pots and pans hit his head in a workplace accident. After this accident, plaintiff began reporting seizures, migraine headaches and depression.
The seizures are described by plaintiff as involving blackouts and dizziness. Tr. 77. Plaintiff has been prescribed anti-seizure medication (Dilantin and phenobarbital). Tr. 66. The migraines reportedly occur every day and last from four to six hours. Tr. 77. For the migraines, plaintiff takes codeine. Tr. 88. Plaintiff has also suffered in the past from rather severe gastrointestinal problems, which may have been related to his consumption of alcohol.
The record contains medical evidence from a host of different doctors about an array of medical problems. Because this appeal focuses mainly on plaintiff's alleged seizure disorder, migraines, intellectual ability and mental health, the court focuses on the medical evidence related to these allegations. Plaintiff first saw Dr. Herring at the West Oakland Health Center for his complaints of seizures following the accident on September 29, 1994. Dr. Herring notes that plaintiff was taking Dilantin for seizures and opines in a March 11, 1997, letter that plaintiff "will continue to suffer from grand mal seizures and asthma for an indefinite period of time" and that "[v]irtually any work will precipitate an asthma attack." Tr. 205. Dr. Herring assessed plaintiff's residual functional capacity finding plaintiff able to sit up for three hours and stand for two hours in an eight hour work day. He also found limitations on lifting, use of machinery, exposure to dust, fumes and gases. Tr. 248-49.
With respect to plaintiff's alleged seizure disorder, Dr. Hill reported that plaintiff complained of "threats" of seizures on January 31, 1996, prompting Dr. Hill to increase plaintiff's dosage of Dilantin. Dr. Hill noted that plaintiff was non-compliant in taking his phenobarbital and "[h]as symptoms far in excess of his findings." Tr. 193.
An RFC assessment was also made by Dr. T.M. Fragg, a nontreating, non-examining doctor, on September 30, 1996. Dr. Fragg concluded that plaintiff had an IQ between 69 and 77 and found that he had "significantly subaverage general intellectual functioning." Tr. 125. Dr. Fragg found significant deficiencies of concentration but only slight restriction in the activities of daily living.
Another functional capacity assessment was made by Dr. Satish Sharma. Dr. Sharma examined plaintiff and concluded: "There are no limitations is [sic] sitting, standing, walking, bending or stooping. There are no limitations in holding, fingering or feeling objects. There are no limitations in pushing and pulling. There are no limitations in speech, hearing or vision. He has a history of seizures and should observe seizure precautions. He should not drive, operate heavy machinery or work at unprotected heights." Tr. 197.
Plaintiff sought mental health treatment at the Access program where he was evaluated by Jon Swanson, a social worker. Mr. Swanson determined plaintiff to have dysthymic disorder and possibly panic attack disorder and agoraphobia. Tr. 233. But, Mr. Swanson concluded that plaintiff had "no substantial impairment." Tr. 232. Furthermore, Mr. Swanson interpreted plaintiff's "blackouts" as "similar to panic attacks." Id.
Plaintiff's mental health was also evaluated by Dr. Alonza C. Johnson, a psychiatrist, who saw plaintiff four times between May 27, 1997, and August 7, 1997. He concluded that plaintiff suffered from chronic adjustment disorder with mixed anxiety and depressed moods and dependent personality disorder. Dr. Johnson stated: "The prognosis for this patient is poor. In my clinical judgment, he is permanently disabled and will continue on in a dysfunctional state in both the immediate and distant future." Tr. 253. Dr. Johnson found that the side effects of Tylenol codeine and phenobarbital contributed to plaintiff's disability. Dr. Johnson performed no objective tests on plaintiff and his conclusion that plaintiff suffered from seizures was based purely on plaintiff's medical history.
Dr. Johnson's gender is unclear. Plaintiff and defendant refer to Dr. Johnson as man while the ALJ believed Dr. Johnson to be a woman. The court will assume that plaintiff is in the best position to know Dr. Johnson's gender and will thus assume that he is a man. Obviously, this point is relevant only to the court's choice of pronoun.
Plaintiff's mental health was also assessed by Dr. Rosemarie Ratto on September 20, 1996, at the request of defendant. Dr. Ratto performed a number of psychological tests and concluded that plaintiff suffered from borderline intellectual functioning. Tr. 201. But she stated that "[i]f the tasks are kept simple, he should be able to handle the stresses of a job; however considering his history of seizures and blackouts maintaining work may be difficult." Id.
Also at the request of defendant, plaintiff's mental health and functioning was assessed by Dr. Paul M. Kullman. Dr. Kullman performed a number of objective tests on plaintiff. He found plaintiff to be mildly depressed and have cognitive functioning in the low average range. But, Dr. Kullman noted a "moderate degree of exaggeration and defensiveness" and therefore concluded that plaintiff's "presentation during this exam may not have been an accurate reflection of his normal functioning level." Tr. 265. Dr. Kullman concluded:
In my opinion claimant has the cognitive ability to understand and execute detailed tasks while maintaining an appropriate concentration, persistence, and pace. He also appears capable of relating appropriately with supervisors and others, and exercising appropriate judgment in an employment situation. I have no clear evidence that claimant's subjective experience of pain or depressed mood result in significant functional limitations related to the ability to work fulltime.
Tr. 265.
II A
The ALJ's decision to deny disability benefits will not be disturbed unless (1) the findings of fact are not supported by substantial evidence on the record or (2) the decision is based on a legal error. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the record as a whole and review evidence both supporting and detracting from the ALJ's decision. Desrosiers v. Secretary of Health Human Serv., 846 F.2d 573, 576 (9th Cir. 1988) It is a well-settled role of the ALJ to make credibility determinations and to resolve conflicts in medical testimony. Andrews, 53 F.3d at 1039. If the evidence is "susceptible to more than one rational interpretation," the court will uphold the decision of the ALJ. Id. at 1040. Nevertheless, a decision supported by substantial evidence must be set aside if improper legal standards were applied in reaching the decision. See Brawner v. Secretary of Health and Human Serv., 839 F.2d 432, 433 (9th Cir. 1987)
To collect disability insurance under the Social Security Act, plaintiff must establish that he suffers from a "disability." 42 U.S.C. § 423 (a)(1)(D). "Disability" means "inability to engage in any substantial gainful activity by reasons of any medically determinable physical or mental impairment * * * which has lasted and can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423 (d)(1)(A). The Administration has implemented a five-step sequential analysis to determine whether a claimant is disabled. 20 C.F.R. § 404.1520; SSR 86-8. Five questions are posed in sequence until a finding of disability is affirmatively rejected or mandated by the rule.
The five questions are: (1) Is the claimant engaging in substantial gainful activity?; (2) If not, does the claimant have a severe impairment?; (3) If yes, does the claimant's impairment meet or equal an impairment on the List?; (4) If not, does the impairment nevertheless prevent the claimant from doing past relevant work?; and (5) If the claimant cannot perform past work relevant work, is the claimant, in light of her age, education, job experience and residual functional capacity, still capable of performing other types of work that exist in the national economy? Id.
At step four, the claimant bears the burden of establishing that he is unable to perform her past relevant work. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). If plaintiff meets this burden, then the burden of proof shifts to the Administration to demonstrate that the claimant can perform other types of work existing in the national economy. Id. The Administration can satisfy the burden in step five by either using the Grids when appropriate or taking testimony from a vocational expert. Id.
B
In this case, the ALJ determined that plaintiff was not disabled. At the first step, the ALJ found that plaintiff had not performed significant gainful activity since at least January 1, 1997. At the second step, the ALJ found only plaintiff's mental illness, specifically "personality disorder with some depression," to be severe. Tr. 36. The ALJ concluded that none of plaintiff's other alleged medical conditions were severe. Tr. 29-30. In reaching this conclusion, the ALJ rejected the opinion of Dr. Ratto with respect to plaintiff's cognitive abilities and determined that plaintiff's accounts of his seizures and migraines were unconvincing. At the third step, the ALJ found that plaintiff's mental health problems did not equal or exceed in severity any listed mental health impairment. Tr. 36.
At the fourth step, the ALJ found plaintiff able to perform his past relevant work as a busboy. In making this determination, the ALJ rejected the RFC assessments of Dr. Herring and Johnson. The ALJ relied instead on Dr. Kullman and Dr. Sharma's assessments, though he rejected a part of Dr. Sharma's assessment. Because plaintiff failed to meet his burden of showing that his impairments prevented him from performing his past relevant work, the ALJ found plaintiff not disabled.
III
Plaintiff argues that the ALJ erred in three ways. First, plaintiff argues that the ALJ erred in not finding plaintiff's seizure disorder, migraine headaches and borderline intelligence to constitute "severe" impairments. Second, plaintiff argues that the ALJ improperly discounted the opinions of Drs. Johnson and Ratto. Finally, plaintiff asserts that the ALJ erred at step four of his analysis by determining that plaintiff could work as a busboy without considering plaintiff's severe mental impairments. The court will address each alleged error in turn.
A
Plaintiff argues that the ALJ erred in finding plaintiff's seizures, headaches and low mental capacity to be not severe. The Social Security regulations provide: "An impairment or combination of impairments not it not severe if does significantly limit your physical or mental ability to do basic work activities." 20 C.F.R. § 1521(a). Basic work activities are "the abilities and aptitudes necessary to do most jobs." Id. at (b) Examples are: "Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; Capacities for seeing, hearing, and speaking; Understanding, carrying out, and remembering simple instructions; use of judgment; Responding appropriately to supervision, co-workers and usual work situations; [and] Dealing with changes in a routine work setting." Id.
1
The ALJ found that plaintiff failed to meet his burden of proving that he suffered from seizures. He stated:
Based on the foregoing, I find that the record contains no credible medical evidence with objective findings to show that the claimant actually has a seizure disorder. There are no eyewitness accounts of the claimant's seizures. There are no reports showing that the claimant ever underwent EEG or other brain and neurological testing. In fact, there is no medical evidence showing any abnormalities of the brain or nervous system. In short, the record contains nothing to corroborate the claimant's self-serving and conflicting reports as to the nature and frequency of his purported seizures. Curiously, his doctors have been prescribing anticonvulsants, apparently based on the claimant's reports of seizures. Yet they have not reported his disorder to the Department of Motor Vehicles. It has been my experience that, if doctors are convinced of such a disorder, they report it as required by State law. Even if Mr. Dees does actually have a seizure disorder, the record contains medical evidence that shows noncompliance with taking prescribed medications. The claimant has not met his burden of showing otherwise.
Tr. 29.
Plaintiff argues that the following pieces of evidence undermine the ALJ's finding that plaintiff did not suffer from seizures: (1) plaintiff's testimony; (2) the diagnosis of Dr. Hill, Dr. Herring and the doctors at the West Oakland clinic; (3) the fact that plaintiff went to the emergency room at least six times for seizure related symptoms; and (4) the fact that plaintiff has been taking anticonvulsant drugs for many years. None of these pieces of evidence, however, mandates the conclusion that plaintiff actually suffers from seizures. First, plaintiff's reports of his seizures both to the ALJ and to the doctors who have diagnosed him cannot support a finding of severe seizure disorder in light of the ALJ's determination that plaintiff lacked credibility. The ALJ noted that plaintiff made only "vague" descriptions of his seizures. Tr. 24. This characterization is supported by the transcript of the hearing before the ALJ. See Tr. 70. The ALJ also noted that plaintiff filed for disability prior to the accident that allegedly gave rise to his seizures. Tr. 24. Finally, the ALJ found plaintiff's reports of his seizures to be inconsistent. Tr. 29. This is supported by the record. Compare Tr. 194 (alleging incontinence) with Tr. 70-71 (denying incontinence); Tr. (194) (first seizure in 1986) with Tr. 62 (seizures occurred after 1990 accident).
Plaintiff's allegation that he went to the "emergency room" a number of times is not supported by the record. The visits he references appear to have been to the West Oakland Health Center and all but one of them was by appointment. See Tr. 170-73, 175, 180. Finally, the fact that plaintiff has been taking anticonvulsant medication does not directly show that he suffers from seizures. It can also support the conclusion that the ALJ drew, that plaintiff has exhibited prescription drug seeking behavior.
Plaintiff does not address the lack of objective evidence the ALJ pointed to. The ALJ was correct that there appears to be no objective test results showing seizures in the record. Nor is there any eyewitness testimony. The only evidence of seizures is plaintiff's testimony to the ALJ and to doctors, but the ALJ found plaintiff to lack credibility. Matters of witness credibility are within the discretion of the ALJ pursuant to Social Security Ruling 96-7p.
The ALJ also relied on Social Security Ruling 87-6, which gives certain requirements for finding that a claimant's epilepsy is disabling. One requirement is that plaintiff provide a "satisfactory description by the treating physician of the treatment regimen and response, in addition to corroboration of the nature and frequency of seizures, to permit an informed judgment on impairment severity. * * * In every instance, the record of anticonvulsant blood levels is required before a claim can be allowed." Ruling at 2-3. These requirements were not met here.
No treating physician provided a description of the seizures or the treat regimen. Two lab reports showing plaintiff's blood levels of anticonvulsants were submitted. But lab reports at Tr. 147 and 156 simply indicate blood levels of anticonvulsants, they do not describe the required level. Plaintiff argues that the levels shown meet the required levels. Pl B.R. (Doc. #9) at 20. Defendant argues that the same tests show levels below those required. Def. Opp. Br. (Doc. #11) at 6. The only conclusive evidence about anticonvulsant blood levels was provided by Dr. Hill who found plaintiff not in compliance. Tr. 193.
The ALJ appears to have mistakenly believed that there were no reports were in the record. Tr. 29. There actually were two reports.
In sum, the ALJ's determination that plaintiff did not have severe seizures was supported by substantial evidence in the record and the ALJ's conclusion that Social Security Ruling 87-6 precludes a finding of disability was not erroneous.
2
The ALJ also disbelieved plaintiff's complaints of severe migraine headaches. He stated:
Likewise, I find that there is insufficient objective medical evidence to show that the claimant suffers from any other `severe' medically determinable physical impairment that has lasted for a period of at least 12 continuous months and that has resulted in more than minimal limitations in his ability to perform basic work activities. Mr. Dees' reports of migraine headaches are unproven.
Tr. 29.
In concluding that plaintiff did not suffer from severe migraine headaches, the ALJ again noted that the only evidence supporting the existence of such headaches was plaintiff's testimony. Tr. 25 ("The medical record contains no objective or other findings supporting a diagnosis of migraine headaches."). But again, the ALJ discredited plaintiff. Furthermore, Dr. Sharma concluded that plaintiff's headaches were not migraines but were due to muscle tension. Tr. 197. The ALJ relied on this opinion. Tr. 27. The court concludes that the ALJ's finding that plaintiff did not suffer from severe migraine headaches is supported by substantial evidence.
3
The ALJ did not explicitly find that plaintiff's low cognitive and intellectual functioning did not constitute a severe impairment. Rather, the ALJ appeared to consider plaintiff's cognitive abilities and alleged mental illness together, attempting to determine whether plaintiff had a severe "mental impairment." Tr. 30. The ALJ considered evidence about mental illness and mental capacity together before ultimately concluding that plaintiff suffered from severe "personality disorder with some depression." Tr. 36. In reaching this determination, however, the ALJ did reject (if by implication) plaintiff's contention that his low cognitive ability constitutes a severe impairment.
This finding can be implied because the ALJ clearly rejected the opinion of Dr. Ratto. Tr. 31. Dr. Ratto had concluded that "complexity is difficult for this individual due to low level of cognitive functioning" and that plaintiff's "concentration appears to be impaired." Tr. 202. Instead, the ALJ credited the opinion of Dr. Kullman. Tr. 31, 34-36, 38. Kullman had concluded:
In my opinion claimant has the cognitive ability to understand and execute detailed tasks while maintaining an appropriate concentration, persistence, and pace. He also appears capable of relating appropriately with supervisors and others, and exercising appropriate judgment in an employment situation.
Tr. 265.
Plaintiff argues that the finding that plaintiff did not have severe cognitive impairment was not supported by substantial evidence based on the reports of Drs. Ratto and Kullman. Plaintiff's argument that Dr. Kullman's report supports a finding of severe impairment fails. Plaintiff pulls out of Dr. Kullman's report several observations and then ignores Dr. Kullman's ultimate finding that plaintiff has no significant functional impairments. Rather than support plaintiff's argument, Dr. Kullman's report actually provides substantial evidence in support of the ALJ's conclusion.
Because Dr. Kullman's opinion was based on independent clinical findings, the opinion itself may be substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). While Dr. Ratto's opinion was to the contrary, it is the ALJ's job to weigh the competing medical evidence. Consequently, the court concludes that the ALJ's determination that plaintiff did not suffer from a severe mental impairment is supported by substantial evidence.
Plaintiff's next argument is that the ALJ improperly rejected the opinions of Drs. Johnson and Ratto. Dr. Johnson had concluded in a mental residual functional capacity assessment that: "Overall, it's my clinical judgment that Jerome Dees is markedly limited when the whole picture is put together." Tr. 257. The ALJ rejected this finding, stating:
I find that Dr. Johnson's conclusions and opinions regarding Mr. Dees [sic] mental functional capacity are simply unsupported by the record, and are inconsistent with other substantial medical evidence. I further find that as the treating psychiatrist she has vastly overstated the claimant's dysfunctionality and, according [sic], I reject her opinions.
Tr. 38. The ALJ had previously noted that Dr. Johnson's assessment was not based on the results of any clinical testing. Tr. 34. Instead, the ALJ found that Dr. Johnson's opinion rested on plaintiff's subjective complaints. Tr. 38.
The parties agree that Dr. Johnson should be considered a treating physician. It is clear, however, that his opinion was controverted by at least Dr. Kullman's opinion. Thus, the ALJ could reject Johnson's opinion if he gave specific, legitimate reasons for doing so and the reasons were based on substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). This is precisely what the ALJ did in this case. The ALJ documented the medical opinions of all of the doctors who saw plaintiff, compared the opinions and determined which ones to credit, based on all of the evidence, including his own perceptions of plaintiff.
The ALJ could reject Dr. Johnson's opinion because it was based in part on plaintiff's own accounts of his symptoms and limitations and the ALJ had determined plaintiff to be an incredible witness. Morgan v. Commissioner, 169 F.3d 595, 602 (9th Cir. 1999). Plaintiff argues, however, that Dr. Johnson's opinion was not based on plaintiff's own accounts of his symptoms. Plaintiff concedes that Dr. Johnson's findings of physiological impairments were from history but contends that Dr. Johnson's psychiatric impairment findings were based on "his own, continuous clinical examinations." Pl B.R. (Doc. #???) at 24.
Accepting this as true, the ALJ could still reject Dr. Johnson's opinion with respect to psychiatric impairment as "brief and conclusory in form with little in the way of clinical findings to support its conclusion." Magallanes v. Bowen, 881 F.2d at 751. Dr. Johnson found that plaintiff had chronic adjustment disorder with mixed anxiety and depressed moods and dependent personality disorder, but he did not explicitly link these problems to the impairments he found in the RFC assessment. Furthermore, as stated above, Dr. Johnson used no objective tests to measure plaintiff's mental health. There are no progress notes from Dr. Johnson's evaluation of plaintiff. Dr. Johnson's mental health diagnosis in this respect could be rejected under Magallanes.
Plaintiff also argues that the ALJ impermissibly rejected the opinion of Dr. Ratto. The ALJ rejected the opinion of Dr. Ratto for three reasons: (1) plaintiff allegedly gave Ratto "misinformation;" (2) plaintiff's response to certain questions made the ALJ think he was feigning incapacity; and (3) the ALJ's observations and the reports by Johnson and Kullman were inconsistent with Ratto's findings. Tr. 31.
The "misinformation" was plaintiff's statement to Ratto that he attended "special education" classes while in school. TR 199. Plaintiff argues that this is not misinformation at all. At the hearing, plaintiff stated that he "went through second grade in college" at "Scolan College" "taking a lot of reading classes." Tr. 60. It is not clear to the court how these two statements are inconsistent. Plaintiff could easily have taken special education classes at some point prior to taking classes at Scolan College. Or, plaintiff could accurately characterize his reading classes at Scolan as special education. The court agrees with plaintiff that the ALJ was incorrect in his conclusion that plaintiff misinformed Dr. Ratto.
The ALJ also incorrectly reported plaintiff's answers to Ratto's questions. Ratto stated that plaintiff knew the name of the current president and the colors of the flag but that he did not know the past president. Tr. 200. Thus, the following statement by the ALJ was partially incorrect: "I find that, considering the claimant's actual educational background, his inability to provide accurate information such as the name of the current president, the colors of the flag, the number of weeks in a year, etc. is highly suspect and suggests a failure to cooperate rather than mental deficits." The ALJ was correct that plaintiff failed to name the number of weeks in a year but wrong with respect to the colors of the flag and the current president.
Plaintiff's third complaint about the ALJ's rejection of Ratto's opinion is that the ALJ impermissibly substituted his own impressions of plaintiff's abilities for Ratto's impressions. It is clear that the "ALJ must not substitute his own opinion for those of physicians." Yang v. Apfel, 2000 WL 342669 * 6 (N.D. Cal. 2000) (citing Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)) At the same time, "[w]hen there is conflicting medical evidence, the ALJ is required to resolve such conflicts." Id. (citing Morgan v. Apfel, 169 F.3d 595, 602 (9th Cir. 1999))
While it is a close question which of the two the ALJ did here, the court concludes that it was the latter. The ALJ certainly noted the inconsistency between Ratto's test scores and the ALJ's impression of plaintiff's intelligence at the hearing. See Tr. 31. But. The ALJ also explicitly stated that he found Ratto's test results to be inconsistent with Drs. Johnson and Kullman's findings. Plaintiff argues that Kullman's conclusion that plaintiff was "in the low end of the Low Average range" of intelligence was consistent with Dr. Ratto's findings.
It is not abundantly clear whether Dr. Kullman's "low end of low average" is consistent or inconsistent with Ratto's "borderline intellectual functioning" and "mild mentally retarded" (verbal IQ) findings. Dr. Kullman's observation that plaintiff had a tendency to exaggerate and his functional capacity findings, however, make it more clear that Dr. Ratto found a greater impairment than Dr. Kullman did. With respect to Dr. Johnson's findings, the court cannot discern any intellectual function findings made by Dr. Johnson for the ALJ to accept over Dr. Ratto's findings.
In sum, of the reasons the ALJ gave for rejecting Dr. Ratto's findings, the court can only accept one as legitimate: that Dr. Kullman's findings were more convincing. But since Dr. Ratto was an examining physician whose opinion was controverted, the ALJ did not have to give specific, legitimate reasons for rejecting her opinion. Instead, the ALJ could weigh Dr. Ratto's opinion and Dr. Kullman's and choose to credit Dr. Kullman's. This is at bottom what the ALJ did. Thus, it was not legal error for the ALJ to reject Dr. Ratto's findings.
C
Plaintiff's final contention is that the ALJ failed to consider how plaintiff's severe mental impairments affected his ability to work as a busboy. Plaintiff appears to argue that the ALJ needed to seek more information about the mental requirements of work as a busboy. The Dictionary of Occupational Titles (Dot) that the ALJ relied upon states that the occupation of busboy is at the medium exertional level, requires low general learning ability and low aptitudes, and is repetitive short-cycle work. Tr. 39. At the same time, based on the entire record, the ALJ concluded: "The claimant retains the physical residual functional capacity for a full range of substantial gainful activity at all exertional levels. He is mentally able to perform at least simple repetitive work." Tr. 41.
This RFC assessment is actually more limited than Dr. Kullman's in that it limits plaintiff to simple tasks. It is supported by Dr. Kullman's opinion as well as Drs. Sharma's and Mr. Swanson's. With respect to the requirements of being a busboy, the court sees no reason to think the occupation involves anything more than simple tasks. Plaintiff has presented no evidence to the contrary and the DOT does not so indicate. With respect to whether the ALJ considered plaintiff's mental impairments, it appears that the ALJ fully considered plaintiff's mental impairments in crafting his RFC assessment. He reached his RFC conclusion after a discussion of the RFC assessments given plaintiff by Drs. Johnson and Kullman, both of whom diagnosed plaintiff's mental health impairments. Furthermore, the RFC assessment itself makes reference to mental impairment limit. There is just no reason to conclude that the ALJ's RFC assessment did not incorporate plaintiff's mental impairments or that the ALJ did not consider these impairments in determining that plaintiff could work as a busboy.
In sum, the court concludes that substantial evidence supports the ALJ's determinations that plaintiff did not suffer from severe seizures, migraines or cognitive impairment. Furthermore, the ALJ did not erroneously reject the opinions of Drs. Ratto and Johnson. Finally, the ALJ considered plaintiff's mental impairments in deciding that he could work as a busboy. For these reasons, plaintiff's motions to summary judgment (Doc. #9-1) and to remand (Doc. #9-2) are DENIED. Defendant's motion for summary judgment (no Doc. #) is GRANTED.
IT IS SO ORDERED.
This action came on for decision before the court, the Honorable Vaughn R. Walker, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered.
IT IS ORDERED AND ADJUDGED that plaintiff's motion for summary judgment and to remand is DENIED and defendant's cross-motion for summary judgment is GRANTED, that plaintiff take nothing, that the action be dismissed on the merits, and that defendant recover of plaintiff, his costs of action.