Opinion
Case No. EDCV 09-1153-MLG.
January 15, 2010
MEMORANDUM OPINION AND ORDER
Plaintiff Lorrie Flores seeks judicial review of the Social Security Commissioner's denial of her application for Supplemental Security Income benefits ("SSI") pursuant to Title XVI of the Social Security Act. For the reasons stated below, the decision of the Commissioner is affirmed.
I. Facts and Procedural Background
Plaintiff was born on May 10, 1958. She has a high school education and has worked as an assembly worker and fruit sorter. (Administrative Record ("AR") at 116, 129, 132.) Plaintiff filed an application for SSI on December 6, 2005, alleging disability as of April 1, 1984, due to injuries and arthritis on the right side of her body. These injuries were caused by a car accident on the alleged disability date. (AR at 128.) Plaintiff's application was denied initially and upon reconsideration. (AR at 52, 58.) An administrative hearing was held on November 4, 2008, before Administrative Law Judge ("ALJ") Barry S. Brown. Plaintiff was represented by counsel and testified on her own behalf. (AR at 25-41.)
ALJ Brown issued an unfavorable decision on April 10, 2009. The ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date of December 6, 2005, and suffered from the following severe impairment: "history of right hip fracture, status post open reduction internal fixation, with removal of internal fixation." (AR at 11.) Plaintiff's severe impairment did not meet the requirements of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ concluded that Plaintiff had no past relevant work, but retained the residual functional capacity ("RFC") to perform light work with the following modifications:
Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects up to 10 pounds . . . [A] job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b).
[L]ifting and/or carrying 10 pounds frequently and 20 pounds occasionally; sitting for six hours total in an eight-hour workday; standing and/or walking for six hours total in an 8-hour workday; no squatting, kneeling, crouching, crawling, or walking on uneven ground; and [] some restriction [in] motion of right hip.
(AR at 11.) Finally, the ALJ determined that Plaintiff was not disabled because there were a significant number of jobs in the national and local economy that Plaintiff could perform based on interrogatories propounded to Vocational Expert ("VE") Alan Boroskin and use of the Medical Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201 ("the grids"), as a framework for decision. (AR at 14-15, 235.)
The Appeals Council denied review on May 20, 2009, (AR at 1-3), and Plaintiff commenced this action on June 19, 2009. Plaintiff argues the ALJ erred by (1) failing to properly consider a consultative physician's opinion; (2) failing to develop the record regarding Plaintiff's depression; (3) failing to properly consider the severity of Plaintiff's depression; (4) erroneously concluding that Plaintiff can work as a cashier II, photocopy machine operator, and survey worker; and (5) failing to propound a hypothetical to the VE. (Joint Stip. ("JS") at 2-3.) Plaintiff asks the Court to reverse and order an award of benefits, or, in the alternative, remand for further proceedings. The Commissioner requests that the ALJ's decision be affirmed.
II. Standard of Review
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.
III. Discussion
A. The ALJ Properly Considered the Consultative Examining Physician's Report
Plaintiff contends that the ALJ improperly "ignored without explanation" the opinion of a consultative examining physician, Dr. Bunsri T. Sophon. Specifically, Plaintiff takes issue with the ALJ's rejection of a single functional limitation listed in Dr. Sophon's report: that Plaintiff could "stand and walk for four hours out of an eight hour day." (JS at 3; AR at 223.)
Plaintiff had no medical records for any impairment after 1994, (AR at 230-31), and she underwent two consultative medical examinations related to her application for SSI. On February 7, 2006, Dr. Ibrahim Yashruti conducted an orthopaedic evaluation of Plaintiff. Dr. Yashruti reviewed Plaintiff's medical records, took a patient history, and conducted a complete orthopaedic examination. His examination revealed a shortening of the right leg by approximately one inch and a right-sided limp, and Plaintiff stated she was unable to walk on toes and heels or squat. (AR at 196-200.) Dr. Yashruti found no abnormalities in Plaintiff's cervical spine, shoulders, elbows, wrists, hands, and feet, and found mildly decreased range of motion in the lumbosacral spine, hips, and knees. Plaintiff's right knee was mildly enlarged. Based on the examination and Plaintiff's history, Dr. Yashruti concluded that Plaintiff could, inter alia, stand and walk for six hours out of an eight-hour day, but could not squat, kneel, crouch, or crawl or walk on uneven ground. (AR at 196-200.) On March 6, 2006, a nonexamining state agency physician reviewed Plaintiff's medical record and Dr. Yashruti's opinion and adopted it without significant modification. (AR at 211-18.)
Dr. Bunsri T. Sohon conducted Plaintiff's second consultative medical examination. On June 12, 2007, Dr. Sophon reviewed Plaintiff's medical records, took a patient history, and conducted a complete orthopaedic examination. He noted that Plaintiff was able to sit and stand with normal posture, walked with a normal gait, and showed no signs of weakness or difficulty walking on tiptoes and heels. (AR at 221.) Dr. Sophon found no abnormalities in Plaintiff's cervical, thoracic, and lumbar spine. Plaintiff had normal range of motion and no abnormalities in her shoulders, arms, elbows, forearms, wrists, hands, thighs, knees, lower legs, ankles, and feet. Range of motion in Plaintiff's right hip was mildly decreased. Based on the examination and Plaintiff's history, Dr. Sophon concluded that Plaintiff could, inter alia, stand and walk for four hours out of an eight-hour day, and could occasionally squat, kneel, climb, and walk on uneven ground. On June 18, 2007, a non-examining state agency physician, Dr. A.S. Wong, reviewed Plaintiff's medical history, including the functional limitation conclusions of Dr. Yashruti and Dr. Sophon. (AR at 226-28.) Dr. Wong concluded that a full range of light work was appropriate based on the medical findings. (AR at 228.)
Plaintiff mischaracterizes the record when she states that the ALJ "ignored without explanation" the opinion of Dr. Sophon. Instead, the ALJ explicitly considered and rejected Dr. Sophon's conclusion that Plaintiff could stand and walk for only four hours out of an eight-hour workday in favor of Dr. Yashruti's opinion that Plaintiff could stand and walk for six hours during an eighthour workday. (AR at 12-13.) After thoroughly reviewing Dr. Sophon's medical findings, the ALJ concluded that Dr. Sophon's opinion was "overly restrictive in light of [Dr. Sophon's] minimal objective findings." (AR at 13.)
The Court notes that neither consultative examining physician opinion is more or less "favorable" to Plaintiff regarding functional limitations. Instead, Dr. Yashruti's opinion contains more functional restrictions on posturals (e.g. squatting), and Dr. Sophon's opinion is more restrictive regarding the amount of time Plaintiff can stand and walk during an eighthour workday.
"The ALJ is responsible for resolving conflicts in the medical record." Carmikle v. Comm'r, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Meanal v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). Here, Dr. Sophon's opinion regarding Plaintiff's ability to stand for only four hours was controverted by the opinions of Dr. Yashruti's and the two state agency non-examining physicians. The ALJ was required to resolve that conflict.
In order to reject the controverted opinion of an examining physician, an ALJ must provide "specific and legitimate reasons supported by substantial evidence in the record." Carmickle, 533 F.3d at 1164. In Plaintiff's case, ALJ Brown met his burden. As described above, and specifically discussed in the ALJ's opinion, Dr. Sophon's objective medical findings were limited: Plaintiff had no difficulty and showed no weakness walking and tiptoeing. (AR at 13, 219-23.) The orthopaedic examination revealed no abnormalities aside from slight decrease in the range of motion of Plaintiff's right hip. ( Id.)
Despite the fact that Dr. Sophon's objective medical findings were more limited than those found by Dr. Yashruti, Dr. Sophon recommended greater functional restrictions on Plaintiff's ability to stand. The ALJ identified this discrepancy and concluded that Dr. Sophon's limitations were "overly restrictive in light of [his] minimal objective findings." (AR at 13.) This was the same discrepancy identified and conclusion made by Dr. Wong, the nonexamining physician who reviewed and interpreted Plaintiff's entire medical record after her consultative examinations. (AR at 226-28.) The ALJ's reasons for rejecting Dr. Sophon's limitations on standing were supported by the record. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (ALJ can meet burden to reject examining physician opinion by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.") (internal citations omitted). The ALJ fulfilled his duty to resolve conflicts in the medical record, and Plaintiff is not entitled to relief on this claim.
B. The ALJ Properly Developed the Record
Plaintiff argues that the ALJ abrogated his duty to develop the record regarding Plaintiff's testimony that depression "severely" interferes with her life. In the Joint Stipulation, Plaintiff claims that she testified to having "trouble with memory and concentration," which triggered the ALJ's duty to develop the record. (JS at 7 (citing AR at 29-30).) It is important to note that this claim grossly misstates Plaintiff's testimony at the hearing.
At the administrative hearing, the ALJ questioned Plaintiff regarding her physical symptoms and then shifted focus to exploration of potential nonexertional limitations:
ALJ: [D]o you have a problem with depression?
Pl.: Yes.
ALJ: Now do you feel you're depressed all of the time, most of the time, or just occasionally?
Pl.: I'd say most of the time.
ALJ: Does your depression in and of itself interfere with your life severely, moderately, or slightly?
Pl.: I'd say severely.
ALJ: Do you have any trouble with your memory?
Pl.: No.
ALJ: Do you have any trouble concentrating?
Pl.: No.
(AR at 29.) Rather than testifying that she had difficulty with memory and concentration, Plaintiff unequivocally testified she did not. Upon further questioning by the ALJ, Plaintiff stated that she regularly cares for her personal needs, performs household maintenance and chores, does not socialize, has had thoughts of suicide but has never made an attempt, and has never been in therapy. (AR at 29-30, 33.)
Plaintiff points to no medical evidence of depression, and review of the entire record reveals that none exists. Indeed, Plaintiff's response to the ALJ's questioning is the first mention of depression during the entire disability determination process.
A disability applicant bears the burden of proving disability and must provide medical evidence demonstrating the existence and severity of an alleged impairment. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912(c). Nonetheless, an ALJ has a "duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel." Mayes, 276 F.3d at 459. An ALJ's duty to augment an existing record is triggered "only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Id. (citing Tonapetyen v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)). Plaintiff argues that her lone, conclusory statement that depression "severely" interferes with her life triggered this duty, and the ALJ should have, "requested additional treating or examining source records, ordered that the Plaintiff undergo psychological testing, continued the hearing, or kept the record open after the hearing to allow supplementation of the record." (JS at 8.)
Under the circumstances of Plaintiff's case, it was not necessary for the ALJ to take any of the suggested actions. First, by Plaintiff's own admission, there existed no treating or examining source records because Plaintiff never complained of and was not treated for depression. (AR at 33.) Thus, there were no "additional treating or examining source records" for the ALJ to request. Moreover, Plaintiff's counsel declined the ALJ's offer of more time for submission of additional documents, (AR at 26), so the ALJ had no reason to continue the hearing or keep the record open after the hearing closed.
Finally, there was no ambiguity or inadequacy that required the ALJ to order psychological testing because were no conflicting medical findings or ambiguous medical statements regarding the severity or existence of depression. Rather, there simply was no medical evidence suggesting such a mental impairment. See Orcutt v. Barnhart, 2005 WL 2387702, at *4 (C.D. Cal. Sept. 27, 2005) ("An ALJ does not fail in her duty to develop the record by not seeking evidence or ordering further examination or consultation regarding a physical or mental impairment if no medical evidence indicates that such an impairment exists."). Plaintiff has never asserted, either at the hearing or in this action, a theory upon which her alleged depression interferes with her ability to work. The ALJ had adequate evidence to evaluate Plaintiff's testimony regarding depression and did not abrogate his duty to develop the record. See Jimenez v. Astrue, 2009 WL 2567024, at *4 (C.D. Cal. Aug. 19, 2009) (ALJ not required to order psychiatric testing where no medical evidence existed and first mention of possible mental impairment occurred at administrative hearing); Grissom v. Astrue, 2009 WL 1309506, at *5 (C.D. Cal. May 8, 2009) (single reference to possible history of mental health treatment did not trigger duty to further develop record where claimant offered no other evidence of such treatment).
C. The ALJ Properly Considered the Severity of Plaintiff's Depression
Plaintiff argues that the ALJ erroneously concluded that her depression was not severe after she made a "colorable claim that her depression has more than a minimal effect [on] her ability to do basic work activities." (JS at 11.) As with her second argument, Plaintiff misstates the record by claiming to have testified that she has trouble with memory and concentration. (JS at 11 (citing AR at 29-30).) The unambiguous record reveals that she testified to just the opposite. More importantly, Plaintiff's subjective allegations of depression were insufficient to establish the existence of a mental impairment, let alone a severe mental impairment.
"A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms." 20 C.F.R. § 416.908; see also Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (interpreting regulations and Social Security Rulings and concluding that a disability claimant cannot establish an impairment based upon subjective symptom testimony, alone). As described in detail, above, there is not a scintilla of evidence in Plaintiff's record evidencing objective medical findings of depression. Furthermore, the cases Plaintiff relies on in support of her argument are inapposite because they involve claimants that presented at least some objective medical evidence of impairment. ( See JS at 11-12.) Plaintiff's conclusory testimony that she suffers from depression that "severely" interferes with her life did not and could not, alone, establish a mental impairment. Ukolov, 420 F.3d at 1005-06. Accordingly, the ALJ did not err in finding that Plaintiff did not suffer from a severe mental impairment.
D. The ALJ Properly Concluded that Plaintiff Can Perform Three Specific Jobs After Posing a Complete Hypothetical to the VE
In her fourth argument, Plaintiff claims that the ALJ erroneously concluded that she can perform the occupations of cashier II, photocopy machine operator and survey worker because those three jobs require standing in excess of four hours in an eight-hour workday. (JS at 14-15.) In her fifth argument, Plaintiff claims that the ALJ's hypothetical to VE Boroskin had no evidentiary weight because it did not include Plaintiff's "limited ability to only stand and walk for four hours out of an eight-hour day, as set forth above in Issue No. 1." (JS at 16.)
Plaintiff's last two arguments are intertwined with and foreclosed by the Court's finding regarding Plaintiff's first claim of error. Each argument depends on a finding by this Court that the ALJ erroneously rejected Dr. Sophon's opinion that Plaintiff can only walk for four hours in an eight-hour workday. As discussed in detail above, the ALJ did not err when he rejected Dr. Sophon's opinion in favor of Dr. Yashruti's opinion that Plaintiff can stand and walk for six hours in an eight-hour workday. Therefore, the ALJ's finding that Plaintiff could work in three jobs requiring more than four hours of standing did not run afoul of her RFC.
Similarly, although Plaintiff correctly asserts that a VE hypothetical must include all of a claimant's limitations, Bray v. Comm'r of Soc. Serv., 554 F.3d 1219, 1228 (9th Cir. 2009), Plaintiff is not limited to standing for a maximum of four hours in an eight-hour workday. Accordingly, the ALJ did not err by omitting that limitation from the VE hypothetical. Osenbrook v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001) (an ALJ need only include limitations in a hypothetical that are credible and supported by substantial evidence). For these reasons, Plaintiff's her fourth and fifth claims of error do not warrant relief.
IV. Conclusion
For the reasons stated above, the decision of the Commissioner is affirmed.