Opinion
No. C 00-2158 MMC
February 14, 2002
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Gavin P. McKinney ("McKinney") brings the above-entitled action pursuant to 42 U.S.C. § 405(g) and 1683(c)(3) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act") and Disability Insurance Benefits ("DIB") under Title II of the Act.
Before the Court is plaintiff's motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
BACKGROUND
McKinney was born on March 16, 1959. (Certified Transcript of Administrative Proceedings ("Tr") at 176.) McKinney filed his current applications for SSI and DIB on, respectively, July 25, 1996 and August 28, 1996. (Tr. at 13.) McKinney alleged that he was unable to work as of February 2, 1989. (Id.) Both applications were denied initially and on reconsideration by the Social Security Administration ("SSA"), and McKinney requested a hearing before an Administrative Law Judge ("ALJ"). (Id.) A hearing was held on April 29, 1998 and July 21, 1998. (Id. at 13.)
On August 25, 1998, the ALJ issued his decision. The ALJ analyzed McKinney's claims under the five-step sequential evaluation process of the Social Security Regulations. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ found that (1) McKinney has not engaged in substantial gainful activity since February 2, 1989 (id. at 14, 19); (2) McKinney has a "severe" impairment, specifically "chronic lower back pain secondary to borderline first degree spondylolisthesis" (id. at 14-15, 19); (3) McKinney's lower back impairment did not meet or equal a listed, or conclusively disabling, impairment (id. at 15, 19); (4) McKinney has "no work-related restrictions" from depression, pancreatitis, hyperlipidemia and sleep apnea (id. at 16); (5) McKinney retained the "residual functional capacity" to perform "light work, or work which requires maximum lifting of twenty pounds and frequent lifting often pounds" (id. at 17); (6) McKinney is unable to perform his past relevant work as an auto painter, fork-lift driver, laborer, pool installer, warehouseman or metal fabricator (id. at 18, 19); and (7) McKinney "retains the capacity of making an adjustment to work which exists in significant numbers in the national economy." (Id. at 18.) Accordingly, the ALJ concluded that McKinney was not disabled. (Id. at 18-19.)
The five steps are: (1) whether the claimant is gainfully employed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairments meet or equal an impairment deemed to be conclusively disabling; (4) whether the impairments prevent the claimant from performing past relevant work; (5) where the claimant shows he is unable to perform past relevant work, the burden shifts to the Commissioner to show that the claimant can perform other work that exists within the national economy. See 20 C.F.R. §§ 404.1520(a) (DIB), 416.920(a) (SSI).
Conclusively disabling impairments are set forth at 20 C.F.R. Pt. 404, Subpt. P, App. 1. Where an ALJ finds that a claimant's impairments meet or equal a listed impairment, the claimant is found disabled. See 20 C.F.R. §§ 404.1520(d) (DIB), 416.920(d) (SSI).
A vocational expert testified that a claimant with McKinney's age, educational background, employment history and specific work limitations could work as an electronic assembler, medical records clerk, hotel clerk, or customer service clerk. (See id. at 18, 68-69.)
McKinney requested review of the ALJ's decision by the SSA's Appeals Council, and offered additional evidence. (Id. at 8, 386-88.) On April 14, 2000, the Appeals Council denied McKinney's request for review. (Id. at 5-6.) On June 16, 2000, McKinney filed the instant action for judicial review pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
STANDARD OF REVIEW
The Commissioners determination that benefits are not warranted will be "disturbed only if it is not supported by substantial evidence or it is based on legal error." See Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986). "Substantial evidence, considering the entire record, is relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). The court's review "must consider the record as a whole," both that which supports as well as that which detracts from the decision.See Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). An ALJ's decision must be upheld "where the evidence is susceptible to more than one rational interpretation." See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
DISCUSSION
In an administrative proceeding to determine whether a claimant is entitled to benefits under the Act, the claimant has the burden of proving disability within the meaning of the Act. See Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, a claimant is considered disabled when he becomes unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A) (DIB), 1382c(a)(3)(A) (SSI). Where the claimant establishes a prima facie case of disability by showing his inability to perform past relevant work, the burden shifts to the Commissioner to prove that the claimant can engage in other gainful work that exists in significant numbers in the national economy. See Maounis, 738 F.2d at 1034.
In his motion for summary judgment, McKinney argues that the ALJ erred by (1) failing to give the opinion of McKinney's treating physician Glenn Thorp, M.D., "controlling weight" (see Pl.'s Mot. at 8:3-10:3), and (2) failing to consider the effects of McKinney's impairments in combination and, in particular, McKinney's alleged obesity. (See id. at 10:4-17.) In his reply brief, McKinney further argues that the ALJ erred in his assessment of McKinney's credibility.
In his reply, McKinney responds to the Commissioners argument that the ALJ did not err in his assessment of McKinney's credibility. McKinney explains that he did not raise the issue of the ALJ's assessment of his credibility in his moving papers because his original argument was that the ALJ erred by not giving Dr. Thorp's opinion "controlling weight," and that such a conclusion, in McKinney's view, "[does] not depend on the ultimate conclusion of the ALJ regarding Mr. McKinney's credibility." (See Pl.'s Reply at 3:4-11.)
A. Treating Physician
The opinion of a treating physician is generally entitled to greater weight than the opinions of non-treating physicians. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (observing that treating physicians have "greater opportunity to know and observe the patient as an individual"). Where the opinions of a treating and a non-treating physician differ, the ALJ may properly disregard the treating physician's opinion "only if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record." See Andrews, 53 F.3d at 1041. Where such a conflict exits and the opinion of the non-treating physician "is based on independent clinical findings that differ from those of the treating physician, the opinion of the non-treating [physician] may itself be substantial evidence." See id.
Here, McKinney's treating physician Dr. Thorp completed a medical assessment form on May 18, 1998, in which Dr. Thorp provided the opinion that McKinney could not tolerate walking, standing, or sitting more than 1 or 2 hours during an eight-hour work day. (See Tr. at 369.) Dr. Thorp's assessment also states that McKinney could not lift more than five pounds, except on an occasional basis. (See id. at 370.) Dr. Thorp further opined that McKinney could not perform "the full range of sedentary work," and could not work an eight-hour day five days a week. (See id.) These opinions were based on Dr. Thorp's "principal diagnosis" of chronic low back pain and "secondary diagnosis" of "probable facet osteoarthritis." (See id. at 369.) The ALJ found Dr. Thorp's opinion to be unsupported and inconsistent with other substantial evidence in the record, and thus deserving of little weight. (See id. at 16-17.)
First, the ALJ noted that Dr. Thorp had cited in support of his opinion an assessment made at the Kaiser Permanente Spine Clinic by Steven Orkand, M.D. Dr. Orkand conducted a physical examination on July 2, 1997, to evaluate McKinney's low back pain, and noted as "problems" both "probable facet osteoarthritis" and "chronic low back pain." (See id. at 325-26.) As the ALJ pointed out, however, Dr. Orkand concluded that McKinney's symptoms were made worse by forced back extension and prolonged standing, but did not state that McKinney's back "problems" were exacerbated by sitting. (See id. at 17,326.) Dr. Orkand also believed that McKinney would benefit from engaging in an exercise program (see id. at 326), a recommendation the ALJ noted "many of the other evaluators of the claimant" had likewise made. (See id. at 17.) Finally, Dr. Orkand noted that McKinney's x-rays were "reportedly normal" and that, on examination by Dr. Orkand, McKinney had no signs of "radiculopathy or myelopathy." (See id. at 326.) Consequently, the ALJ did not view Dr. Orkand's assessment as supporting Dr. Thorp's opinion that McKinney was unable to perform even sedentary work.
McKinney argues that if the ALJ believed that Dr. Orkand's assessment was ambiguous as to whether McKinney's back pain would be exacerbated by sitting, the ALJ had the duty to contact Dr. Orkand to supplement the record. An ALJ has "a special duty to fully and fairly develop the record," and to "conduct an appropriate inquiry" where the ALJ does not know the basis of a physician's opinion. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). Here, however, there is no indication the ALJ did not know the basis of Dr. Orkand's opinion. The ALJ merely observed that Dr. Orkand did not opine that sitting would exacerbate McKinney's back impairments and had recommended, inter alia, exercise.
Additionally, the ALJ relied on the opinion of Steven McIntire, M.D. Dr. McIntire examined McKinney on April 19, 1999, and conducted a "comprehensive orthopedic examination." (See id. at 354.) Moreover, unlike Dr. Thorp's report, the report by Dr. McIntire sets out in detail the basis of his findings, including x-rays, MRIs, and range of motion testing. Consistent with Dr. Orkand, Dr. McIntire noted no abnormalities on the x-rays or MRIs, "no radicular findings on examination," and "no findings to suggest pathology of the spinal cord, exiting nerve roots, peripheral nerves, or muscles." (See id. at 357.) After conducting his examination, Dr. McIntire found that McKinney "would have difficulty with tasks that require heavy labor or lifting or carrying of more than 50 pounds," and recommended that McKinney "should avoid work that requires repetitive flexion and extension in the lumbar region." (See id.) Dr. McIntire, however, opined that "no other limitations" were suggested by the examination results. (See id.) Accordingly, as even McKinney acknowledges, the opinions of Dr. McIntire and Dr. Thorp were contradictory. Because Dr. McIntire's opinion was based on independent clinical observations, it constitutes substantial evidence in support of the ALJ's finding that McKinney could perform light work. See Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (holding consultative physician's opinion, based on consultative physician's examination, that claimant was not precluded from sedentary work constituted substantial evidence supporting ALJ's finding that claimant was not disabled). Although McKinney argues that the ALJ should have rejected Dr. McIntire's opinion because Dr. McIntire acknowledged he did not have access to certain of McKinney's records, specifically that Dr. McIntire did not have McKinney's most recent MRIs or an "EMG/nerve conduction study" (see Tr. at 357), McKinney fails to state what information was provided in the records that Dr. McIntire did not review, and how Dr. McIntire's lack of access to such records cast sufficient doubt on his opinion such that the ALJ was obligated to reject it.
In sum, the ALJ provided specific and legitimate reasons for his decision to reject Dr. Thorp's opinion, and such reasons are supported by substantial evidence, including the opinion of Dr. McIntire. See Allen, 749 F.2d at 597. Accordingly, the ALJ did not err by failing to give Dr. Thorp's opinion controlling weight.
B. Combined Effect of Impairments
"In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under [the Act], the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity." 42 U.S.C. § 423(d)(2)(b).
The ALJ must evaluate the combined effect of any impairments when determining not only the severity of a claimant's impairments, but also when determining the claimant's residual functional capacity to work.See Smolen v. Chater, 80 F.3d 1273, 1290 (holding "at the step two inquiry" the ALJ "must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone was sufficiently severe"); Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (holding that "in determining whether a claimant equals a listing under step three," ALJ "must explain adequately his evaluation of alternative tests and the combined effects of the impairments"); Light v. Social Security Admin., 119 F.3d 789, 793 (9th Cir. 1997) ("In determining [the claimant's] residual functional capacity, the ALJ must consider whether the aggregate of [the claimant's] mental and physical impairments may so incapacitate him that he is unable to perform available work.")
Here, McKinney argues that the ALJ erred by failing to properly consider the combined effects of McKinney's impairments, and in particular his alleged obesity. In making this argument, McKinney fails to identify at which step in the ALJ's sequential evaluation such error allegedly occurred. Consequently, the Court will discuss both the step two and step three analyses and the determination of residual functional capacity at steps four and five.
With respect to step two, the ALJ stated, "It is necessary to establish whether the claimant has a `severe' impairment or combination of impairments." (See Tr. at 14.) The ALJ concluded that McKinney has a "severe" impairment, specifically "chronic lower back pain secondary to borderline first degree spondylolisthesis." (See id. at 14-15.) Although the ALJ did not expressly address whether a combination of McKinney's impairments also constitutes a "severe" impairment, any failure to do so was harmless. Cf. Smolen, 80 F.3d at 1290-91 (holding ALJ committed reversible error by not only failing to consider whether combination of impairments was "severe" at step two, but also failing to consider how combination of impairments affected residual functional capacity).
At step three, the ALJ concluded that "no treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." (See Tr. at 14-15.) Given the ALJ's recognition that a claimant may establish either "a `severe' impairment or combination of impairments" (see id. at 14), implicit in the above finding is the ALJ's consideration of McKinney's impairments in combination. In any event, McKinney fails to offer any theory that might establish that his combined impairments equal a listed impairment. An ALJ's failure to compare combined effects to a listed impairment is not error where the claimant does not offer a theory as to how the combined impairments might equal a listed impairment. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001) (holding where claimant "offered no theory, plausible or otherwise, as to how his [impairments] combined to equal a listed impairment," ALJ did not err by not discussing combined effects of impairments). Accordingly, the ALJ did not err by failing to conclude that McKinney's combined impairments do not equal a listed impairment.
With respect to steps four and five, residual functional capacity, the ALJ concluded: "After reviewing all of the evidence, the undersigned can find no work-related restrictions caused by the claimant's well-treated depression, pancreatitis, hyperlipidemia, and sleep apnea. Since all of these conditions are completely controlled by diet or medication, none are considered severe by the undersigned." (See Tr. at 16.) The ALJ's finding that those impairments are completely controllable by diet or medication are supported by the evidence, and McKinney does not argue to the contrary. Moreover, the finding is sufficient to establish that those impairments do not significantly limit McKinney's exertional capabilities. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (holding where claimant's multiple impairments were controllable by medication or other forms of treatment, ALJ did not err by finding impairments did not significantly limit claimant's exertional capabilities).
McKinney argues that his obesity was not explicitly considered by the ALJ. Although "obesity" was not specifically discussed by the ALJ, as noted, the ALJ stated that McKinney's "conditions" could be controlled by "diet or medication." (See Tr. at 16.) McKinney does not argue that his alleged obesity cannot be controlled by diet. Indeed, McKinney testified at the hearing that he lost one hundred pounds in the previous year, bringing his weight down to 250 pounds (see id. at 54), thus demonstrating that his weight is controllable.
Accordingly, the ALJ did not err with respect to consideration of the combined effects of McKinney's various ailments when determining McKinney's residual functional capacity.
C. Credibility Assessment
McKinney argues that the ALJ erred in his assessment of McKinney's credibility with respect to McKinney's testimony concerning the extent of pain caused by his impairments. If a claimant produces objective medical evidence of an underlying impairment reasonably likely to cause pain, the ALJ may not reject the claimant's subjective complaints of the severity of the pain based solely on a lack of objective corroborative medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). Rather, if the ALJ finds a claimant's allegations of severity to be not credible, the ALJ "must specifically make findings which support this conclusion." See id. at 345.
The Ninth Circuit has held that "the ALJ's assessment of credibility must be given great weight." See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990). "Factors that the adjudicator may consider when making such credibility determinations include the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995).
At the hearing, McKinney testified that he had "constant" pain in his right hip, pain in his low back, "shooting, burning pain" in his right leg, lower back spasms at least five days a week, and pain between the shoulders. (See Tr. at 47-48.) The ALJ found that "[t]he "claimant's statements concerning his impairment and its impact on his ability to work are not entirely credible." (See id. at 19.) In support of this finding, the ALJ cited the following factors: (1) McKinney testified that he drove daily, did shopping, cooking and some laundry, and had told his doctor that he was able to mow the lawn and perform all the activities of daily living; (2) McKinney had been untruthful in the past regarding his intravenous ("IV") drug use; (3) McKinney had failed to follow prescribed exercises for his back; (4) McKinney's demeanor at the hearing "was markedly evasive, particularly in response to questions about his prior work;" and (5) McKinney's complaints of pain appeared to be exaggerated in comparison with the findings of both "treating and consultative examiners." (See id. at 17.)
Of the above findings, the only one that McKinney specifically challenges is the ALJ's finding that McKinney had been untruthful in the past regarding drug use. The ALJ found that McKinney had been "untruthful to his doctors in the past regarding his drug use." (See id.) McKinney argues that the ALJ, to support that finding, cited to an exhibit that "does not exist." (See Pl.'s Reply at 4.) The exhibit cited by the ALJ, however, does exist. (See Tr. at 17, 277-78.) The exhibit is a March 1995 medical report, the second page of which states, under Social History, "IV drug use none." (See id. at 278.) Moreover, even if that particular determination is discounted, McKinney, as noted above, fails to explain why the other reasons offered by the ALJ do not provide a sufficient basis for finding his testimony not entirely credible.
By contrast, McKinney did admit to a "prior alcohol history," specifically, McKinney stated that he no longer drinks "a six pack" every two days "because of the G.I. symptoms he was developing." (See id. at 277-78.)
Because the ALJ set forth the requisite specific findings to support his credibility assessment, the ALJ did not err in his assessment that McKinney was not entirely credible.
CONCLUSION
For the reasons expressed above, the Court hereby DENIES plaintiff's motion for summary judgment, and hereby GRANTS defendant's motion for summary judgment.
The Clerk shall close the file.