Opinion
Case No. EDCV 12-311 JC
07-24-2012
ALINA RITCHIE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION
I. SUMMARY
On March 20, 2012, plaintiff Alina Ritchie ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 26, 2012 Case Management Order ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases).
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On January 20, 2009 plaintiff filed applications for Supplemental Security Income and Disability Insurance Benefits. (Administrative Record ("AR") 10, 111, 118). Plaintiff asserted that she became disabled on January 1, 2006, due to depression, fatigue and extreme exhaustion. (AR 145-46). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) on October 1, 2010. (AR 24-44).
On November 5, 2010, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 10-19). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: degenerative changes in the lumbar spine, obesity, and mood disorder (AR 12-13); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 13-14); (3) plaintiff retained the residual functional capacity to perform medium work (20 C.F.R. §§ 404.1567(c), 416.967(c)) with additional nonexertional limitations (AR 14); (4) plaintiff could not perform her past relevant work (AR 18); (5) there are jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically dishwasher, laundry worker, hand packager, cleaner and housekeeper (AR 18-19); and (6) plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment (AR 15).
The ALJ determined that plaintiff: (1) could lift and/or carry 25 pounds frequently and 50 pounds frequently [sic.]; (2) stand and/or walk for six hours out of an eight-hour workday; (3) sit for six hours out of an eight-hour workday; and (4) was limited to simple, routine, repetitive tasks in a non-public setting. (AR 14).
The Appeals Council denied plaintiff's application for review. (AR 1).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that the claimant is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
(2) Is the claimant's alleged impairment sufficiently severe to limit the claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow the claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
A. The ALJ Was Not Required to Obtain Testimony from a Vocational Expert at Step Five
1. Pertinent Law
At step five of the sequential evaluation process, the Commissioner has the burden to demonstrate that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity, age, education, and work experience. Tackett, 180 F.3d at 1100 (citing 20 C.F.R. § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). The Commissioner may satisfy this burden, depending upon the circumstances, by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Tackett, 180 F.3d at 1100-01 (citations omitted).
When a claimant suffers only exertional (strength-related) limitations, the ALJ must consult the Grids. Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir.), as amended (2006). When a claimant suffers only non-exertional limitations, the Grids (which are predicated solely on a claimant's exertional limitations) are generally inappropriate and the ALJ must rely on other evidence. Id. When a claimant suffers from both exertional and nonexertional limitations, the ALJ must first determine whether the Grids mandate a finding of disability with respect to exertional limitations. See Lounsburry, 468 F.3d at 1116; Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If so, the claimant must be awarded benefits. Cooper, 880 F.2d at 1155. If not, and if the claimant suffers from significant and sufficiently severe non-exertional limitations, not accounted for in the Grids, the ALJ must take the testimony of a vocational expert. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007).
An ALJ is required to seek the assistance of a vocational expert when the non-exertional limitations are at a sufficient level of severity such as to the make the Grids inapplicable to the particular case. Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007). The severity of limitations at step five that would require use of a vocational expert must be greater than the severity of impairments determined at step two. Id.
2. Analysis
Plaintiff essentially contends that the ALJ's non-disability finding at step five was not supported by substantial evidence because the ALJ relied on the Grids - specifically, 20 C.F.R. Part 404, Subpart P, Appendix 2 Section 203.29 ("Section 203.29") - rather than testimony from a vocational expert. (Plaintiff's Motion at 2-6). Plaintiff's argument lacks merit.
Here, substantial evidence supports the ALJ's finding that plaintiff's non-exertional limitation to simple, routine, repetitive tasks in a non-public setting "[had] little or no effect" on plaintiff's ability to do "unskilled medium work."(AR 15). As the ALJ noted, treatment records reflect that plaintiff received "routine, conservative, and non-emergency treatment" for her mental impairments. More specifically, although plaintiff had previously been treated for depression, treatment records for the period after plaintiff's alleged onset date reflect only that plaintiff reported "multiple stressors" in mid-2006 but stopped psychiatric treatment in June 2006. (AR 15-16) (citing Exhibit 3F [AR 220-322]). In addition, an examining psychiatrist found plaintiff's overall psychiatric limitations to be "none to mild." (AR 16) (citing Exhibit 7F [AR 345-46]). The ALJ noted that the state agency reviewing physicians found limitations from plaintiff's mental impairments to range only from non-severe to mild. (AR 17) (citing Exhibits 8F [AR 349-59], 9F [AR 360-62]; 12F [AR 382-92]; 13F [AR 393-94]; 18F [AR 432-33]). The ALJ also noted that a 2009 mental status examination for plaintiff was "fairly normal." (AR 18) (citing Exhibit 11F at 1 [AR 378]). Although plaintiff argues in a conclusory manner that the non-exertional limitations identified by the ALJ "have significant vocational ramifications" (Plaintiff's Motion at 4), the Court will not second-guess the ALJ's reasonable determination that they do not, even if the medical evidence could give rise to inferences more favorable to plaintiff. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (not court's role to second-guess ALJ's reasonable interpretation of the evidence) (citation omitted); cf. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1161 n.2 (courts "ordinarily will not consider matters on appeal that are not specifically and distinctly argued in an appellant's opening brief") (citation and internal quotation marks omitted).
Plaintiff does not challenge the ALJ's assessment that she has the residual functional capacity to perform the full range of work at the medium exertional level. (Plaintiff's Motion at 2-6).
Since the ALJ essentially concluded that the Grids accurately and completely accounted for all of plaintiff's impairments, the ALJ properly relied on Section 203.29 to find plaintiff not disabled. See, e.g., Hoopai, 499 F.3d at 1076-77 (holding that ALJ properly relied on the Grids where substantial evidence supported the ALJ's conclusion that the claimant's depression was not sufficiently severe to limit the range of work claimant could do); Prather v. Astrue, 2010 WL 2102824, *12 (E.D. Cal. May 24, 2010) (rejecting plaintiff's argument that ALJ erred by not consulting vocational expert at step five where ALJ determined that plaintiff's non-exertional limitations "had little or no effect on the occupational base of unskilled medium work").
Plaintiff correctly notes that at step five the ALJ identified specific representative jobs for plaintiff but did not provide the Dictionary of Occupational Titles ("DOT") codes for such jobs. (Plaintiff's Motion at 5; see AR 19). To the extent the ALJ erred in this respect, however, any error was harmless since the ALJ was not required to identify specific jobs in this case. See Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983) (courts need not identify "specific jobs" when Grids are applied) (citation omitted).
Accordingly, plaintiff is not entitled to a reversal or remand on this basis.
B. The ALJ Properly Evaluated Plaintiff's Credibility
Plaintiff contends that the ALJ inadequately evaluated the credibility of her subjective complaints. (Plaintiff's Motion at 6-7). The Court disagrees.
The argument plaintiff provides in support of this claim appears to pertain to an entirely different claimant. (Plaintiff's Motion at 6-8). Nonetheless, the Court has evaluated whether the ALJ's credibility evaluation in plaintiff's case was supported by substantial evidence and free from material error.
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1. Pertinent Law
Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins, 261 F.3d at 857.
An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle, 533 F.3d at 1160 (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).
To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.
2. Analysis
First, the ALJ properly discredited plaintiff's subjective complaints due to internal conflicts within plaintiff's own statements and testimony. See Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir.), as amended (1997) (in weighing plaintiff's credibility, ALJ may consider "inconsistencies either in [plaintiff's] testimony or between his testimony and his conduct"); see also Fair, 885 F.2d at 604 n.5 (ALJ can reject pain testimony based on contradictions in plaintiff's testimony). As the ALJ noted, plaintiff testified that she received unemployment benefits during her period of alleged disability, which required plaintiff "to repeatedly certify she was ready, willing and able to work." (AR 15) (citing AR 32-33). The ALJ could properly conclude that such evidence of plaintiff's apparent dishonesty eroded the credibility of plaintiff's other testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) ("In assessing the claimant's credibility, the ALJ may use 'ordinary techniques of credibility evaluation,' such as considering the claimant's reputation for truthfulness and any inconsistent statements in her testimony.").
Second, the ALJ properly discredited plaintiff's subjective complaints as inconsistent with plaintiff's daily activities. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant's testimony and the claimant's conduct supported rejection of the claimant's credibility); Verduzco v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant's testimony and actions cited as a clear and convincing reason for rejecting the claimant's testimony). For example, the ALJ noted that in spite of plaintiff's alleged exertional limitations, plaintiff acknowledged that she maintains a valid driver's license and continues to drive independently. (AR 15, 41).
Third, the ALJ properly discredited plaintiff's subjective complaints as inconsistent with plaintiff's conservative medical treatment. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly considered, as part of credibility evaluation, treating physician's failure to prescribe, and claimant's failure to request, medical treatment commensurate with the "supposedly excruciating" pain alleged, and the "minimal, conservative treatment") (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc)); see Fair, 885 F.2d at 604 (ALJ permissibly considered discrepancies between the claimant's allegations of "persistent and increasingly severe pain" and the nature and extent of treatment obtained). For example, as noted above, the medical records reflect that plaintiff received routine, conservative, and non-emergency treatment for her mental impairments, and stopped psychiatric treatment within six months after the alleged onset date (i.e., in June 2006). (AR 15-16, 220-322). In addition, as the ALJ noted, although plaintiff testified that she was unable to work due to pain in her back and hips, she also stated that she did not "like" narcotics, and took only over-the-counter pain medication (i.e. Tylenol, aspirin or Advil). (AR 15, 38-39); see Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may consider failure to "seek treatment or to follow a prescribed course of treatment" in assessing credibility). While an ALJ may not reject symptom testimony where a claimant provides "evidence of a good reason for not taking medication," Smolen, 80 F.3d at 1284 (citations omitted), plaintiff has not presented such a sufficient reason.
Finally, the ALJ properly discredited plaintiff's subjective symptom testimony due, in part, to the absence of supporting objective medical evidence. Burch, 400 F.3d at 681; Rollins, 261 F.3d at 857 ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.") (citing 20 C.F.R. § 404.1529(c)(2)). For example, as the ALJ noted, the report of a complete internal medicine evaluation of plaintiff reflected "no significant impairments in the range of motion despite [plaintiffs] subjective complaints of back pain." (AR 16) (citing Exhibit 4F at 5 [AR 327]). The ALJ also noted that plaintiff's treatment records do not reflect that in 2010 plaintiff complained of back pain, depression or anxiety, or received "actual treatment for any of [plaintiff's] alleged disabling impairments." (AR 16) (citing Exhibit 19F [AR 435-71]).
Accordingly, plaintiff is not entitled to a reversal or remand on this basis.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
_________________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE