Opinion
Case No. CV 13-3148-JPR
07-21-2014
JON DARYL MYLES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his application for supplemental security income ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed February 27, 2014, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.
II. BACKGROUND
Plaintiff was born on October 26, 1967. (Administrative Record ("AR") 86.) He completed 10th or 11th grade, in part through special-education coursework. (See AR 166, 198, 207, 294, 296, 301.) While in high school and for some time thereafter, he participated in a vocational training program, through which he was placed in warehouse jobs. (AR 294, 300-01.) He did not keep any of those jobs for more than a few months and had not worked since either the late 1990s or early 2000s. (AR 294, 296-97.)
On August 31, 2010, Plaintiff filed his fifth application for SSI, alleging that he had been unable to work since June 1, 1993, because of a right-hand deformity and illiteracy. (See AR 11, 13, 86, 99, 105.) After his application was denied initially and upon reconsideration, he requested a hearing before an ALJ. (AR 22-24.) A video hearing was held on July 17, 2012, at which Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE"). (AR 291-309.) In a written decision issued August 8, 2012, the ALJ determined that Plaintiff was not disabled. (AR 11-18.) Plaintiff requested Appeals Council review and submitted a letter challenging the ALJ's assessment of medical-opinion evidence concerning his physical and mental limitations. (AR 288-90.) On April 12, 2013, the Appeals Council denied his request for review. (AR 3-5.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (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 reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. § 416.920(a)(4)(ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. § 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, the claimant is not disabled and the claim must be denied. § 416.920(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis. § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
Plaintiff's four prior applications for SSI were denied without appeal, and the ALJ, finding "no good cause to reopen any of those applications," deemed them "final and res judicata." (AR 13.)
Thus, although Plaintiff alleged an onset date of June 1, 1993, the earliest possible onset date for his present application was the day after the denial of his most recent prior application, or January 1, 2009. (AR 13.) The ALJ instead used the application date, as recommended in Plaintiff's disability report (AR 144), and Plaintiff does not challenge that portion of the decision.
At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since the date of his application, August 31, 2010. (AR 13.) At step two, he concluded that Plaintiff had severe impairments of right-hand congenital deformity and borderline intellectual functioning. (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal a Listing. (Id.) At step four, he determined that Plaintiff retained the RFC to perform "medium work," except that he was limited to only occasional fine manipulation with his right hand and simple, repetitive tasks. (AR 15.) The ALJ found that Plaintiff had no past relevant work. (AR 17.) At step five, the ALJ determined that Plaintiff could perform jobs existing in significant numbers in the national economy. (Id.) He therefore found that Plaintiff was not disabled. (AR 17-18.)
"Borderline intellectual functioning" indicates that a person has below-average cognitive ability, that is, an IQ of 71 to 84, but the deficit is not as severe as "mental retardation" (now referred to as "intellectual disability"), which is defined as having an IQ of 70 or below. See Diagnostic and Statistical Manual of Mental Disorders 740 (revised 4th ed. 2000); Diagnostic and Statistical Manual of Mental Disorders 33 (5th ed. 2013).
"Medium work" involves "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." § 416.967(c).
V. DISCUSSION
Plaintiff contends that the ALJ erred in evaluating the medical-opinion evidence concerning Plaintiff's physical and mental impairments, assessing Plaintiff's credibility, and relying on the testimony of the VE.
A. Plaintiff's Claims Are Barred by Res Judicata
As an initial matter, because Plaintiff was found to be not disabled in prior administrative proceedings, he faced a presumption of continuing nondisability and was required to demonstrate "changed circumstances" since the prior ruling to overcome that presumption. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). For instance, a claimant can demonstrate a "changed circumstance" by showing a change in his age category under section 416.963, an increase in the severity of his impairments, the alleged existence of impairments not considered in the prior adjudication, or a change in the criteria for determining disability. See 62 Fed. Reg. 64038-01 (Dec. 3, 1997). Plaintiff, however, has shown none of these. Rather, he remained a younger person (see § 416.963(c)), he alleged the same impairments and resulting limitations, and the regulatory criteria remained unchanged. (Compare AR 157 (2006 complaint of right-hand deformity) and AR 165 (2006 complaints of right-hand deformity and illiteracy) and AR 177 (2007 complaint of right-hand deformity) with AR 184 (2011 complaint of right-hand deformity) and AR 206 (2011 complaint of illiteracy).) Indeed, Plaintiff's middle-finger deformity is a congenital condition that has apparently not changed since birth. (See, e.g., AR 157, 169, 184.)
Accordingly, his claims are subject to res judicata under Chavez. 844 F.2d at 693; cf. Thornsberry v. Colvin, 552 F. App'x 691, 692 (9th Cir. 2014) (ALJ properly applied res judicata to claimant's application when she did not present any evidence to suggest that her condition had deteriorated or that circumstances changed after initial denial of benefits). Because the ALJ chose to consider additional medical evidence, however, the Court addresses Plaintiff's challenges to the ALJ's interpretation of that evidence. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008); Alekseyevets v. Colvin, 524 F. App'x 341, 344 (9th Cir. 2013) ("Although the first ALJ's RFC findings are entitled to 'some res judicata consideration,' the Chavez presumption does not prohibit a subsequent ALJ from considering new medical information and making an updated RFC determination." (internal citation omitted)).
B. The ALJ Did Not Err in Assessing the Medical-Opinion Evidence
Plaintiff contends that the ALJ erred in assessing the medical opinions of examining physicians Homayoun Saeid and Barry Gwartz and state-agency physician Lucy Sauer concerning the limitations imposed by Plaintiff's right-hand deformity. (See J. Stip. at 4-5.) He further contends that the ALJ erred in discounting the opinion of examining psychologist Heike Ballmeier. (Id. at 9.)
1. Applicable law
Three types of physicians may offer opinions in Social Security cases: "(1) those who treat[ed] the claimant (treating physicians); (2) those who examine[d] but d[id] not treat the claimant (examining physicians); and (3) those who neither examine[d] nor treat[ed] the claimant (non-examining physicians)." Lester, 81 F.3d at 830. A treating physician's opinion is generally entitled to more weight than the opinion of a doctor who examined but did not treat the claimant, and an examining physician's opinion is generally entitled to more weight than that of a nonexamining physician. Id. The weight given a medical opinion is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. § 416.927(c)(2)-(6).
When an examining doctor's opinion is not contradicted by some evidence in the record, it may be rejected only for "clear and convincing" reasons. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When an examining physician's opinion is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. The ALJ need not, however, accept the opinion of any physician "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2001); accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
2. Medical-opinion evidence concerning Plaintiff's finger deformity
Plaintiff has apparently never sought treatment for his finger deformity, so the record contains no medical opinions from treating doctors.
On November 8, 2006, Dr. Gwartz completed an internal-medicine evaluation of Plaintiff. Plaintiff reported that in his 1990 warehouse job, he was "able to buck various shipments without difficulty" (AR 165), but he demonstrated right-hand grip strength of only 10 pounds versus left-hand grip strength of 60 pounds (AR 167). Dr. Gwartz noted that although Plaintiff's right-hand muscles appeared intact, his deformed right middle finger was tender and his right-hand grip strength was limited by his inability to flex the finger. (AR 168.) Dr. Gwartz found Plaintiff to be otherwise normal physically (AR 169) and opined that Plaintiff was capable of medium work but was "unable to perform fine manipulation with the right hand" (AR 170).
On January 26, 2011, Dr. Saeid performed an internal-medicine evaluation of Plaintiff. Plaintiff did not disclose his warehouse work and asserted that the "most that he can lift and carry is one pencil." (See AR 184-85.) Dr. Saeid found Plaintiff to be physically normal except for his right finger, whose deformity limited Plaintiff's right-hand strength to four out of five on a squeeze test. (AR 187.) Dr. Saeid opined that Plaintiff was capable of medium work but only "occasional fine and gross manipulative functions with the right hand and fingers." (AR 188.)
On March 21, 2011, Dr. Sauer reviewed Dr. Saeid's examination report and Plaintiff's incomplete written submissions and opined that he was capable of light work but only occasional fine manipulation with his right hand. (AR 242, 246.) Her findings were affirmed by Dr. F. Wilson upon review of the medical evidence. (AR 248, 250.)
Plaintiff contends that the ALJ failed to give specific and legitimate reasons for excluding from the RFC certain limitations recommended by Drs. Saeid, Gwartz, and Sauer. (See J. Stip. at 4-5.) Plaintiff notes that the RFC provides for "medium work" but only "occasional fine manipulation with the right hand" (AR 15) and thus excludes Dr. Saeid's restriction to only "occasional gross manipulative functions" (AR 188), Dr. Gwartz's complete exclusion of "fine manipulation" (AR 170), and Dr. Sauer's limitation to "light" work (AR 246).
Contrary to Plaintiff's contention, the ALJ gave specific and legitimate reasons for weighing the doctors' opinions as he did. First, he noted that Drs. Saeid and Gwartz examined Plaintiff and their opinions were not contradicted by any treating source. (AR 14.) As examining physicians in a record devoid of evidence from treating doctors, Drs. Saeid and Gwartz provided not only substantial evidence upon which the ALJ could rely but presumptively controlling opinion evidence. See § 416.927(c)(1), (e); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) ("[G]reater weight is accorded to the opinion of an examining physician than a non-examining physician."); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding examining physician's opinion "alone constitutes substantial evidence, because it rests on his own independent examination of [claimant]"). The ALJ thus reasonably adopted the examining doctors' mutually held opinion that Plaintiff could perform medium work over the light-work restriction recommended by Dr. Sauer, who had no opportunity to examine Plaintiff.
Second, the ALJ noted that Plaintiff's failure to disclose to Dr. Saeid his past jobs as a warehouse worker not only undermined Plaintiff's credibility (see infra Section V.C) but also might "have affected Dr. Saeid's opinion." (AR 16.) Indeed, Plaintiff not only failed to disclose his previous work but reported to Dr. Saeid that "he has difficulty . . . lifting and carrying . . . heavy objects." (AR 184.) Yet when examined by Dr. Gwartz, Plaintiff confirmed that "he was able to buck various shipments without difficulty" when employed as a warehouse laborer. (AR 165.) This discrepancy in Plaintiff's reports to his examining doctors may well account for Dr. Saeid's limitation to only occasional gross manipulation, a restriction contradicted not only by Dr. Gwartz but also by Plaintiff's ability to heft large shipments and operate a car. (See AR 16.) Because the ALJ legitimately - and specifically - surmised that Dr. Saeid's limitation on gross manipulation may have been based on statements that were not credible as well as on material omissions, the ALJ properly excluded that restriction from Plaintiff's RFC. See Andrews, 53 F.3d at 1040 (noting that "an ALJ may properly consider a claimant's lack of credibility and the extent to which his physician's opinion is influenced by the claimant's own information"); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding ALJ's rejection of physician's opinion legitimate when dependent on clamant's properly discredited statements).
It is solely the ALJ's duty to resolve conflicts in medical-opinion evidence. See Andrews, 53 F.3d at 1041. Here, the RFC is largely consistent with the opinions of Drs. Saeid, Gwartz, and Sauer, which overlap significantly and which the ALJ expressly "acknowledged." (AR 14.) The RFC not only reflects the examining physicians' finding of medium-work capacity but also the mutual finding of Drs. Saeid and Sauer that Plaintiff can do occasional fine manipulation with his right hand and the agreement of Drs. Gwartz and Sauer that Plaintiff can do unlimited gross manipulation with that hand. Where, as here, the ALJ's findings are supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).
As the Commissioner notes (J. Stip. at 6 n.1), Dr. Ballmeier also found that Plaintiff appeared to have "no gross motor limitations" (AR 200).
Moreover, even if the ALJ had incorporated the most restrictive of the doctors' limitations into the RFC, it would not likely have altered the ultimate disability determination. The medical opinions concerning Plaintiff's right hand varied little, and none of the doctors opined that Plaintiff's finger deformity rendered him unable to work. As discussed infra, the ALJ propounded four hypotheticals to the VE, altering the restrictions in each according to the slight variations in the opinions of Drs. Saeid, Gwartz, and Sauer. (See Section V.D.) In each case, the VE identified available jobs that the hypothetical individual could perform. Thus, Plaintiff has not shown that any error prejudiced him. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (party attacking determination normally carries burden of showing error harmful).
3. Medical-opinion evidence concerning Plaintiff's mental impairment
On November 7, 2006, psychologist Mark Pierce completed a psychological evaluation of Plaintiff. Dr. Pierce reported that Plaintiff "under-perform[ed] with all administered testing," including a test for malingering. (AR 159.) Dr. Pierce noted that Plaintiff obtained a verbal IQ score of 61, a performance IQ score of 59, and a full-scale IQ score of 56, but he cautioned that Plaintiff's behavior at the examination indicated "stronger cognitive ability." (AR 160.) Dr. Pierce's diagnoses included malingering and "estimated" borderline intellectual functioning. (AR 161.) Dr. Pierce opined that Plaintiff might have "difficulty working effectively with others" because of his demonstrated lack of cooperation during the exam. (AR 162.) Dr. Pierce added, however, that Plaintiff could "remember and comply with simple one and two part instructions" and was "capable of concentrating adequately for a regular work schedule for a full workweek." (Id.)
On December 5, 2007, Dr. Pierce again evaluated Plaintiff, with similar findings. Dr. Pierce noted Plaintiff's "under-performance with most administered tests" and "significant failure of a malingering-sensitive memory test." (AR 179.) Plaintiff obtained a verbal IQ score of 56, performance IQ score of 51, and full-scale IQ score of 49, but Dr. Pierce again noted "indications of stronger cognitive capability." (AR 180.) He "estimated" that Plaintiff was a "[h]igher functioning mildly developmentally delayed individual." (AR 181; see AR 179.) Dr. Pierce again opined that Plaintiff might have difficulty working with others but could manage simple instructions and concentrate adequately during a regular work schedule. (AR 181.)
On January 11, 2011, Dr. Ballmeier performed a psychological evaluation in connection with Plaintiff's application for services from the North Los Angeles County Regional Center. Dr. Ballmeier found that Plaintiff was not easily distracted but had "difficulty processing formal instructions." (AR 198.) Plaintiff "articulated clearly," demonstrated "appropriate" "thought content" and "intact" "basic judgment," and showed no "disordered thinking." (Id.) Dr. Ballmeier opined that Plaintiff's testing efforts were sufficient to establish valid test scores. (Id.) Plaintiff was unable to complete some of the tests administered, consistently scored in the "extremely low range," and showed "mild deficit" on those tests he finished. (AR 198-200 (noting scores of 56, 58, and 50 on completed tests).) Dr. Ballmeier diagnosed borderline intellectual functioning and opined that Plaintiff would need help finding work opportunities and might do best in a "workshop-type facility" akin to the vocational program he was previously enrolled in. (AR 201.)
The Regional Center "is one of 21 private, non-profit organizations under contract with the California Department of Developmental Services (DDS) to coordinate and provide community-based services to persons with developmental disabilities." North Los Angeles County Regional Center, http://www.nlacrc.org/index.aspx?page=2 (last visited June 23, 2014).
On November 12, 2011, Dr. Ballmeier completed a Medical Source Statement of Ability to Do Work-Related Activities (Mental), in which he indicated that Plaintiff suffered marked restrictions in his ability to understand, remember, and carry out instructions and extreme limitations in his ability to make judgments on simple, work-related decisions, interact appropriately with others, and respond to work pressures and changes in work environment. (AR 284-85.) Dr. Ballmeier cited his January 2011 evaluation in support of this opinion, emphasizing Plaintiff's "cognitive skills . . . in the mild deficit range," illiteracy, and inability to do simple math. (AR 285.)
On February 26, 2011, Dr. Stephan Simonian performed a complete psychiatric evaluation of Plaintiff. (AR 206.) Dr. Simonian found Plaintiff to have normal speech, coherent thought processes, appropriate affect, and "intact and average" intellectual functioning, memory, comprehension, and abstract thinking. (AR 208-09.) Plaintiff demonstrated "poor" capability with calculations, but Dr. Simonian attributed this to a lack of effort. (AR 209.) Dr. Simonian diagnosed adjustment disorder and "[l]earning disability by history." (Id.) He opined that Plaintiff suffered moderate limitations in his ability to maintain concentration and adapt to workplace stresses. (AR 209-10.) Plaintiff demonstrated no limitations in his ability to manage simple or complex instructions, interact with others, maintain attendance and perform work activities consistently, or work without supervision. (Id.)
On March 16, 2011, state-agency psychologist Jon Etienne Mourot opined that the record showed "Developmental Delay, mild, higher functioning," mood disorder not otherwise specified, and adjustment disorder with mixed emotional features. (AR 212, 214.) Dr. Mourot assessed only mild and moderate functional limitations. (AR 221.) On June 9, 2011, state-agency psychiatrist Dr. Samuel Gold assessed borderline intellectual functioning but noted that there were no valid IQ scores in Plaintiff's file. (AR 261.) Dr. Gold found only mild functional limitations. (AR 268.)
Although Plaintiff contends that the ALJ "rejected" Dr. Ballmeier's opinion (J. Stip. at 10), the ALJ in fact explicitly accepted his diagnosis of borderline intellectual functioning "despite credibility issues" (AR 15; see infra Section V.C). The ALJ thus found that Plaintiff should be "limited to simple, repetitive tasks." (AR 15.)
Relatedly, Plaintiff objects to the ALJ's refusal to accept his IQ scores as valid. (J. Stip. at 11 (citing AR 16).) Given that Plaintiff's malingering interfered with Dr. Pierce's two efforts to test his IQ, Plaintiff failed to complete IQ testing with Dr. Ballmeier, and Dr. Ballmeier did not conduct any test for malingering, the ALJ reasonably questioned the validity of Plaintiff's IQ-test results. (AR 16); cf. Clay v. Barnhart, 417 F.3d 922, 929 (8th Cir. 2005) (holding that ALJ may disregard low IQ score when evidence shows substantial malingering); Soto v. Secretary, 795 F.2d 219, 222 (1st Cir. 1986) (holding that ALJ need not accept IQ score if substantial basis existed for believing that plaintiff feigned results). Indeed, not only were both doctors forced to estimate Plaintiff's actual results (see AR 161, 181, 199), but both diagnosed him with borderline intellectual capacity rather than the "mental retardation" his scores would seem to suggest (compare AR 160 (IQ scores of 61, 59, and 56) and AR 180 (IQ scores of 56, 51, and 49) and AR 198 (IQ scores of 56, 58, and 50) with supra n.3 ("borderline intellectual capacity" describes IQ between 71 and 85)). In any event, because the ALJ accepted Dr. Ballmeier's diagnosis of borderline intellectual functioning and incorporated it into Plaintiff's RFC, any error in rejecting the IQ scores was harmless. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (finding error harmless when "the mistake was nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion").
The ALJ rejected Dr. Ballmeier's specific findings of marked and extreme limitations because "he stated no basis for such severe limitations" (AR 15), which is a specific and legitimate basis upon which to reject a medical opinion. See § 416.927(c)(3); Thomas, 278 F.3d at 957; Batson, 359 F.3d at 1195. Dr. Ballmeier cited his January 2011 examination of Plaintiff in support of his later report of marked and extreme limitations, but his findings upon examination were not so severe. For instance, although he found upon examination that Plaintiff was not easily distracted but appeared to have difficulty with "formal instructions" (AR 198), Dr. Ballmeier indicated in his later assessment that Plaintiff would have marked difficulty with even short, simple instructions (AR 284). Similarly, Dr. Ballmeier noted in his report that Plaintiff "articulated clearly," demonstrated "appropriate" "thought content" and "intact" "basic judgment," and showed no "disordered thinking" (AR 198), but he later indicated that Plaintiff's ability to make work-related decisions was extremely limited (AR 284). Although he purported to rely on his earlier examination, Dr. Ballmeier's finding of "cognitive, functional academic, and general adaptive skills . . . in the mild deficit range" (AR 201) did not support his later opinion that Plaintiff suffered marked and extreme functional limitations. Cf. Tommasetti, 533 F.3d at 1041 (finding that "incongruity" between doctor's questionnaire responses and her medical records provided specific and legitimate reason for rejecting her opinion of claimant's limitations). Nothing in the record indicates that Plaintiff suffered any kind of worsening of his mental state in the relatively short span between Dr. Ballmeier's initial assessment and his later opinion. Indeed, Dr. Ballmeier apparently had no contact with Plaintiff during that time. (See, e.g., AR 300 (Plaintiff testifying that he had not had any contact with Dr. Ballmeier other than "testing").)
As noted above, although Dr. Ballmeier reported that Plaintiff's scores were "extremely low" in much of the January 2011 testing, the doctor found only "mild deficits" in Plaintiff's functioning. (See AR 198-200.)
Notably, although Dr. Pierce also "estimated" a diagnosis of borderline intellectual functioning following his first examination of Plaintiff (AR 161), he opined that Plaintiff was capable of a job requiring simple one- and two-step instructions (AR 162). Dr. Pierce confirmed that finding on his second examination of Plaintiff. (AR 181.) And his opinion was consistent with those of Dr. Simonian, who performed the most recent complete evaluation, in February 2011 (AR 209 (noting no significant limits with respect to simple or complex instructions)), and the state-agency physicians, who reviewed Plaintiff's file (AR 225 (noting no significant limits with respect to short, simple instructions); AR 261, 270 (noting borderline intellectual function and opining Plaintiff capable of simple, repetitive tasks)). Moreover, as the ALJ noted, at the time of the hearing, Plaintiff had again enrolled at the Regional Center through which he obtained warehouse work after high school (AR 15, 287, 294), in which, he testified, he was being provided vocational and other training (AR 299). Thus, aside from Dr. Ballmeier's November 2011 opinion, the record consistently suggested that Plaintiff was capable of work despite his mental impairments.
The ALJ also noted that Dr. Ballmeier was not a treating doctor. (AR 15.) This is not itself a basis upon which to reject his opinion, see § 416.927(c)(1), particularly given Dr. Ballmeier's opportunity to examine Plaintiff, Tonapetyan, 242 F.3d at 1149. Because Dr. Ballmeier is one of three examining mental-health practitioners, however, and did not have any greater or additional opportunity to examine Plaintiff than the others, his November 2011 opinion was not only unsupported by his own findings but an outlier among presumptively equally weighted medical opinions. It was the ALJ's duty to resolve the conflict among the medical opinions, and because he gave a specific, legitimate reason for discounting Dr. Ballmeier's extreme findings, any error was harmless. Cf. Harlow v. Soc. Sec. Admin., Comm'r, 12-36011, 2014 WL 2505173, at *1 (9th Cir. June 4, 2014) (reliance on erroneous basis for discounting medical opinion harmless when ALJ provided independent specific and legitimate reason for doing so).
C. Any Error in Evaluating Plaintiff's Credibility Was Harmless
Plaintiff contends that the ALJ erred in rejecting Plaintiff's assertions regarding his subjective symptoms and functional limitations. (J. Stip. at 17.)
Plaintiff did not challenge the ALJ's credibility finding in his letter to the Appeals Council. (AR 288-90.)
1. Applicable law
An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). "[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina, 674 F.3d at 1112 (internal quotation marks omitted).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal quotation marks omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (emphasis in original). When the ALJ finds a claimant's subjective complaints not credible, the ALJ must make specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010).
Absent affirmative evidence of malingering, those findings must provide "clear and convincing" reasons for rejecting the claimant's testimony. Lester, 81 F.3d at 834. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.
2. Analysis
Plaintiff's contention that his performance on tests for determining malingering was not a valid basis upon which to discount his credibility (J. Stip. at 18) is inaccurate. The law is clear that an ALJ may rely on affirmative evidence of a Plaintiff's malingering to discount his credibility; indeed, such evidence relieves the ALJ of the burden of providing clear and convincing reasons for discounting a plaintiff's credibility. See Lester, 81 F.3d at 834; Bagoyan Sulakhyan v. Astrue, 456 F. App'x 679, 682 (9th Cir. 2011). Although Plaintiff contends that under the Agency's Program Operations Manual System (POMS) DI 22510.007(D)(2), his performance on malingering tests should not be considered, the POMS is an internal SSA document that "does not have the force of law," Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006), and is not binding on the ALJ, see Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) ("POMS constitutes an agency interpretation that does not impose judicially enforceable duties on either this court or the ALJ."). Moreover, the provision cited by Plaintiff appears to have been withdrawn. See Office of the Inspector Gen., SSA, A-08-13-23094, Congressional Response Report: the Social Security Administration's Policy on Symptom Validity Tests in Determining Disability Claims 3-4 (Sept. 2013), available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/ A-08-13-23094.pdf.
In any event, the evidence of Plaintiff's malingering is not limited to his results on two malingering tests. Dr. Pierce twice diagnosed malingering, in 2006 and 2007, based on his complete psychological evaluations of Plaintiff. (AR 159, 179.) And Dr. Simonian similarly noted a lack of effort in testing, attributing to that Plaintiff's only poor performance during his examination. (AR 209.) Accordingly, the ALJ reasonably relied on evidence of Plaintiff's malingering in discounting his credibility.
In addition, and although Plaintiff's malingering eliminated the need to do so, Lester, 81 F.3d at 834, the ALJ provided clear and convincing reasons for not fully crediting Plaintiff's allegations regarding his symptoms and limitations.
The ALJ noted Plaintiff's "inconsistencies," including his "failure to honestly state" to Dr. Saeid that Plaintiff had worked as a warehouse laborer, likely affecting the accuracy of the doctor's assessment of Plaintiff's right-hand limitations. (AR 16.) Plaintiff objects that he was placed in warehouse-laborer positions solely as part of the vocational program in which he was enrolled (J. Stip. at 17), but that has no bearing on whether Plaintiff could complete the work, nor does it explain why he did not disclose those positions in response to Dr. Saeid's inquiry about whether Plaintiff had "worked for gainful purposes outside of home" (AR 185). Indeed, Plaintiff identified his warehouse work in response to similar inquiries, suggesting that his failure to mention it to Dr. Saeid was not a product of mere misunderstanding or oversight. (See AR 139 (noting on disability report that Plaintiff had worked through vocational program); AR 157 (disclosing to Dr. Pierce past jobs, noting that they were "school-connected and supported"); AR 165 (Dr. Gwartz noting Plaintiff "rarely employed during his adult life," "usually in a warehouse"); AR 198 (Dr. Ballmeier noting Plaintiff's participation in "paid workshop program"); AR 207 (Dr. Simonian noting that Plaintiff "worked in a warehouse" until 2001); AR 296-97 (Plaintiff testifying to "warehouse job" obtained "through the workshop").) The ALJ properly considered Plaintiff's lack of candor with Dr. Saeid in discounting his credibility. See Tommasetti, 533 F.3d at 1039 (noting that "many factors" ALJ may consider in weighing claimant's credibility include "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid" (internal quotation marks omitted)).
The ALJ also noted Plaintiff's possession of a driver's license, indicating "the use of both hands." (AR 16.) Plaintiff emphasizes his testimony that he obtained his driver's license "a long time ago," when "right out of school," and had not driven since then. (J. Stip. at 17 (citing AR 302).) It is undisputed, however, that Plaintiff's finger had been deformed since he was a child (see, e.g., AR 157, 169, 184), and Plaintiff has submitted no evidence that his finger impairment had worsened since the unspecified time when he actively drove. Although Plaintiff objects that the ALJ did not explain how the use of both hands for driving undermined Plaintiff's claimed "functional limitations on lifting, handling and fingering" (J. Stip. at 17), the ALJ reasonably determined that Plaintiff's ability to operate a motor vehicle contradicted his allegations that his right hand was useless for such activities. Tommasetti, 533 F.3d at 1039; Molina, 674 F.3d at 1112 (noting that ALJ may consider "inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct" in assessing credibility).
Although the ALJ referred to a "valid" driver's license, it is unclear from Plaintiff's testimony whether his license remained current. (See AR 298-99.)
Similarly, Plaintiff has not explained how his alleged inability to read road signs (see AR 99), which did not prevent him from obtaining a license and driving, later prevented him from operating a car.
The record reflects other inconsistencies in Plaintiff's statements, although the ALJ did not expressly rely on them. For instance, Plaintiff reported to Dr. Pierce in 2007 that he had two children (AR 178 (December 2007, two children, ages 9 and 12)) but reported elsewhere that he had only one (see AR 158, 198, 206, 303; see also AR 158 (November 2006, no children)). And although Plaintiff otherwise reported that he wrote with his impaired right hand (see AR 157-58, 184) and likely had to write to complete high-school coursework, he claimed in his 2007 examination that "he cannot hold a pencil to write" (AR 177). As Dr. Pierce noted, Plaintiff's failure to seek treatment for his deformed finger or to learn to use his left hand for writing suggests that his right-hand impairment was not as limiting as alleged. (AR 158; see also AR 198 (Dr. Ballmeier noting lack of treatment)); cf. Molina, 674 F.3d at 1112 (ALJ may consider "unexplained or inadequately explained failure to seek treatment").
The ALJ also found Plaintiff's regular activities of daily living to be inconsistent with his allegations of disabling impairments. (AR 16.) Although Plaintiff testified that he did some chores in the home he shared with his mother (see AR 297), that did not support the ALJ's finding that Plaintiff helped care for her (AR 16), as Plaintiff notes (J. Stip. at 18; see also AR 299.) Moreover, given Plaintiff's limited other activities, the ALJ's finding was probably erroneous. (See AR 253, 255-56, 261, 263); cf. Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (holding that ALJ erred in finding reading, watching television, and socializing to be consistent with light level of exertion). Any error was harmless, however, given the ALJ's identification of other, valid grounds for discounting Plaintiff's credibility. See Carmickle, 533 F.3d at 1162-63 (finding error harmless when ALJ cited other reasons to support credibility determination).
On appellate review, this Court is limited to determining whether the ALJ properly identified reasons for discrediting Plaintiff's credibility. Smolen, 80 F.3d at 1284. Plaintiff's malingering and inconsistent statements were proper and sufficiently specific bases for discounting his claims of disabling symptoms, and the ALJ's reasoning was in any event clear and convincing. See Tommasetti, 533 F.3d at 1039-40; Houghton v. Comm'r Soc. Sec. Admin., 493 F. App'x 843, 845 (9th Cir. 2012). Because the ALJ's findings were supported by substantial evidence, this Court may not engage in second-guessing. See Thomas, 278 F.3d at 959; Fair, 885 F.2d at 604. Remand is not warranted.
D. The ALJ Was Entitled to Rely on the VE's Testimony
Plaintiff contends without elaboration that the ALJ presented an incomplete hypothetical to the VE and that the VE's testimony therefore was not substantial evidence. (J. Stip. at 24 (citing AR 305).)
Plaintiff did not raise this issue in his letter to the Appeals Council. (AR 288-90.)
At step five, the Commissioner must show that the claimant can engage in substantial gainful activity other than his past work, a burden she can meet by propounding to a VE a hypothetical based on medical assumptions supported by substantial evidence in the record and reflecting all the claimant's limitations. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989); Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). If the ALJ's hypothetical "contain[s] all of the limitations that the ALJ found credible and supported by substantial evidence in the record," the ALJ may properly rely on the testimony the VE gives in response to the hypothetical in formulating an RFC assessment. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). If, however, the hypothetical does not reflect all the claimant's limitations, "then the 'expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.'" Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)).
Here, the ALJ proposed four hypothetical individuals to the VE: (1) an illiterate person capable of medium work but limited to occasional fine manipulation with the right hand and simple, repetitive tasks (AR 305); (2) an illiterate person capable of light work but limited to occasional fine manipulation with the right hand and simple, repetitive tasks (id.); (3) an illiterate person capable of light work but limited to occasional handling and fingering with the right hand and simple, repetitive tasks (AR 306); and (4) an illiterate person capable of medium work but limited to occasional handling and fingering with the right hand and simple, repetitive tasks (AR 307). The ALJ thus propounded hypotheticals that assumed varying combinations of the limitations identified by the medical sources with the exception of those he had explicitly discounted. The ALJ thereby satisfied his obligation to present a complete hypothetical. See Bayliss, 427 F.3d at 1217 (when hypothetical included "all of the limitations that the ALJ found credible and supported by substantial evidence in the record," reliance on VE's testimony in response was proper); Magallanes, 881 F.2d at 756 ("The limitation of evidence in a hypothetical question is objectionable 'only if the assumed facts could not be supported by the record.'" (quoting Sample v. Schweiker, 694 F.2d 639, 643-44 (9th Cir. 1983) (as long as hypothetical question posed by ALJ is properly based on all relevant evidence, testimony of vocational expert is valuable))).
Moreover, in each instance, the VE testified that there were jobs available regionally and nationally that the hypothetical individual could perform. (See AR 305-08.) Although the VE testified in response to questioning by Plaintiff's counsel that the third hypothetical individual would be unable to do the identified jobs of usher and crossing guard if "socially" "limited" (AR 308), the sole medical source to suggest that Plaintiff was so restricted was Dr. Ballmeier, whose extreme findings the ALJ properly discounted as unsupported. As such, the ALJ was entitled to rely on the VE's responsive testimony as substantial evidence. See Bayliss, 427 F.3d at 1217; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ not required to include rejected limitations).
Reversal is not warranted on this basis.
VI. CONCLUSION
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties.
This sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."
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JEAN ROSENBLUTH
U.S. Magistrate Judge