Opinion
No. C-O1-00687 CRB
December 21, 2001
MEMORANDUM AND ORDER
Plaintiff appeals from defendant's denial of' his applications for disability insurance benefits and supplemental security income ("SSI"). Now before the Court are the parties' cross-motions for summary judgment. After carefully considering the papers filed by the parties, plaintiff's motion is DENIED and defendant's motion is GRANTED.
BACKGROUND
Plaintiff was born on March 19, 1945 and was 51 years old when he initially applied for benefits. He had previously worked for approximately 28 years as a cement mason. He has not worked since November 1, 1993. He alleged disability because of seizures, carpel tunnel syndrome, alcoholism, a hearing impairment. depression, and dizziness.
On February 3, 1997, plaintiff filed concurrent applications for disability insurance benefits under Title II of the Social Security Act and SSI benefits under Title XVI of the Act. In his application he claimed he had been disabled since November 1, 1993. Defendant denied the applications. Plaintiff filed a second application for SSI benefits on January 28, 1998. Defendant also denied this application. initially and on reconsideration. Plaintiff requested a hearing by an Administrative Law Judge ("ALJ").
The hearing was held on April 12, 1999. Plaintiff, who appeared and testified, was represented by an attorney. The ALJ also heard testimony from Richard Hinks, a vocational expert. The ALJ subsequently issued a decision finding defendant "not disabled" and affirming the denial of plaintiff's February 3, 1997 application. The Appeals Council denied plaintiff's timely request for review and this lawsuit followed.
STANDARD OF REVIEW
The Court's jurisdiction is limited to determining whether defendant's denial of benefits is supported by substantial evidence in the administrative record. 42 U.S.C. § 405(g). A district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Ninth Circuit defines substantial evidence as "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony and all other ambiguities are to be resolved by the ALJ. See id; Magallenes, 881 F.2d at 750. The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040.
DISCUSSION
To qualify for social security disability benefits a claimant must establish that he was unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 416(i)(1)(A). The claimant has the burden of proving that he is entitled to benefits. See 20 C.F.R. § 404.1512(a).
In considering whether a claimant is entitled to benefits, an ALJ conducts a five-step sequential inquiry. 20 C.F.R. § 416.920. At the first step. the ALJ considers if the claimant is engaged in substantial gainful activity: if the claimant is not engaged in substantial gainful activity, the second step asks if the claimant has a severe impairment (i.e. an impairment that has a significant effect on the claimants ability to function); if the claimant has a severe impairment, the third step asks if the claimant has a condition which meets or equals the conditions outlined in the Listings of Impairments in Appendix 1 of the Regulations (the "Listings"); if the claimant does not have such a condition, the fourth step asks if the claimant is capable of performing his past relevant work; if the claimant is not capable of performing his past relevant work, the fifth step asks if the claimant is capable of performing other work which exists in substantial numbers in the national economy. 20 C.F.R. §§ 404.1520(b)-404.1520(f)(1).
A. The ALJ's Findings
Here the ALJ found at step one that plaintiff had not performed substantial gainful activity since November 1, 1993. At step two he found that plaintiff's "only medically determinable impairments which prevent him from performing basic work-related activities are generalized osteoarthritis; chronic alcoholism, currently in remission; and slowed intellectual functioning." The ALJ specifically found that plaintiff's alleged carpel tunnel syndrome was not a severe impairment because of a lack of objective medical evidence. He also found that plaintiff did not have a severe seizure disorder and that his depression was not severe because it was situational to either alcohol withdrawal or complaints of chronic pain. At step three he found that the generalized osteoarthritis, chronic alcoholism — currently in remission — and slowed intellectual functioning impairments do not meet or equal the criteria of any impairment in the Listings.
The ALJ found at step four that plaintiff could not perform his past work experience as a cement mason. He nonetheless found at step five, based on the testimony of the vocational expert, that plaintiff could still perform a significant number of jobs on the local and national levels. In particular, the ALJ found that plaintiff has the residual functional capacity to perform work at the light exertional level. Accordingly, he concluded that plaintiff was not under a "disability" at any time prior to the date of the ALJ's decision.
Plaintiff makes two challenges to the ALJ's findings. First he contends that the finding that plaintiff's depression was not a severe impairment was made on the basis of improper legal standards and was not supported by substantial evidence. Second. he argues that the finding that plaintiff has the capability to perform work at the "light" exertional level was also made on the basis of improper legal standards and not supported by substantial evidence. Plaintiff's motion thoroughly describes the evidence in the record and defendant does not dispute plaintiff's summary. Accordingly. the Court will not repeat plaintiff's recitation of the evidence here.
B. The Depression Finding
The ALJ found that plaintiff's depression was not severe because "[t]reating records from Merrithew Hospital indicated that [plaintiff's] depression was situational to either alcohol withdrawal or complaints of chronic pain. An impairment or combination of impairments is not severe if it does not significantly limit one's physical or mental ability to do basic work activities. See 20 C.F.R. § 404.1521; 416.920(c). In other words, an impairment is severe if it has more than a minimal effect on an individual's ability to do basic work activities. See Smolen v. Clutter, 80 F.3d 1272, 1290 (9th Cir. 1996).
Plaintiff contends that the ALJ erred at step two because "[t]he medical evidence overwhelmingly supports the conclusion that plaintiff's depression has on its own more than a `slight or minimal' impact on his ability to perform work related activities." Plaintiff's Motion at 19.
There is no dispute that plaintiff suffered from depression; indeed, the ALJ did not find that plaintiff did not suffer from depression. Rather, the ALJ found that plaintiff's depression was not a severe impairment, that is. that it did not have more than a minimal effect on plaintiff's ability to perform basic work activities. This finding is supported by substantial evidence. First, the notes from plaintiff's December 16, 1997 outpatient visit at the Martinez Health Center support the ALJ's finding that plaintiff's depression was situational, and, in particular, related to his chronic pain. The notes reflect that plaintiff stated he was feeling depressed about his pain and the fact that he cannot work. Tr. 341. This statement is consistent with plaintiff's own testimony at the hearing before the ALJ. He testified that he wants to do things that he simply cannot physically do "and it's just depressing as hell." Tr. 46: see also Tr. 396 (consulting psychiatrist noting that plaintiff's depression is apparently related to his inability to pursue his usual line of work).
Second, the two consulting psychologists concluded that plaintiff's depression or adjustment disorder would not significantly restrict his ability to work. Tr. 311 (May 16, 1996 exam concluding that while plaintiff "does demonstrate symptoms consistent with an adjustment disorder, these difficulties are not regarded as limiting for employment"); Tr. 366 (April 26, 1997 exam concluding that "[w]hile the claimant does demonstrate symptoms consistent with an Adjustment Disorder, these difficulties are not regarded as limiting for employment"). A consulting psychiatrist concluded in a report dated March 8, 1998 that plaintiff's ability "to withstand the stress and pressures associated with an eight hour work day and day to day work activities" was "somewhat questionable" and therefore the psychiatrist recommended that plaintiff be slowly reintegrated into the work force, "perhaps beginning with part time work and/or retraining for a new type of work that would be less physically demanding." Tr. 396. Thus, all three mental health professionals concluded that plaintiff's depression did not significantly impair his ability to perform basic work skills.
Third, and most importantly. nothing in the record contradicts the findings of the consulting mental health professionals. None of the records of the treating physicians — or any other evidence identified by plaintiff — suggests that plaintiff's depression impaired his ability to perform basic work skills. Thus. the ALJ did not disregard the finding of plaintiff's treating physicians in concluding that plaintiff's depression was not a "severe" impairment.
Even if the ALJ did err. however. the error was harmless. The ALJ did not stop at step two in the evaluation process. Instead. because he found that plaintiff had other impairments or combination of impairments that were severe he continued with the five step sequential process. At step five the ALJ inquired whether plaintiff is capable of performing other work which exists in substantial numbers in the national economy. In deciding this issue, the ALJ assumed that plaintiff has an affective impairment described as dysthymia or depression and a mild concentration deficit. Tr. 58, 63. In other words, although the ALJ found that plaintiff's depression was not "severe." he took all the evidence in the record, including the evidence as to plaintiff's mental state. into consideration when deciding whether plaintiff could work. Accordingly. any error in the severity finding was immaterial and harmless. See Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990).
C. The Step Five Finding
The ALJ Found that plaintiff has the residual functional capacity to perform work at the light exertional level, and in particular. that he can perform frequent handling, but can only occasionally perform fingering. "Light" work as defined by the regulations "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). The ALJ also found that plaintiff's slowed intellectual functioning limits him to performing unskilled jobs. After considering these findings, plus plaintiff's age. education and work experience, the ALJ found that plaintiff could still perform a significant number of jobs in the local and national economy, namely, hand packager and small parts assembler. Tr. 22-23.
Plaintiff contends this finding was not supported by substantial evidence for a variety of reasons. He argues that the ALJ erred by failing to consider the "effect of plaintiff's chronic leg pain, caused by his combination of varicose veins and degenerative joint disease of the right knee . . . on plaintiff's ability to walk or stand six hours of an eight hour day." Motion at 20-21. He also contends that the ALJ failed to consider the effect of plaintiff's depression and his inability to concentrate. Finally, plaintiff argues the ALJ erred by not factoring in the consultative examining psychiatrist's assessment that plaintiff would have difficulty withstanding the pressures of an eight hour day.
The Court disagrees. First, the ALJ's finding that plaintiff's varicose veins were not severe was supported by substantial evidence in the record. In particular, plaintiff's treating physician stated that "it is unclear and probably doubtful that [plaintiff's] discomfort is due to the varicosities." Tr. 264.
The ALJ's finding that plaintiff could engage in "a good deal of walking or standing" as required for light work was also supported by substantial evidence. Plaintiff was examined by a consulting physician one month before the hearing before the ALJ. Plaintiff presented with aches and pains in his elbows, wrists and low back; he did not present with pain in his legs or knees. Tr. 390. The physician also noted that plaintiff has "[n]ormal range of motion of all joints with no deformity, heat, swelling or redness." Tr. 392. He then concluded that plaintiff "has no limitations lying or sitting. He can walk and stand for 1-2 hours 2-3 times daily for a total of six hours." Id. Plaintiff points to nothing in the record that contradicts these findings. Accordingly, the ALJ's finding that plaintiff could perform light work, even assuming he has joint pain in his legs. is supported by substantial evidence in the record. The fact that the vocational expert apparently believed that being able to stand or walk two to six hours in an eight day does not meet the definition of light work, Tr. 66-67, is immaterial; the ALJ could reasonably conclude, based on all the evidence in the record, that plaintiff could perform light work. Moreover, the ALJ — not the vocational expert — is charged with determining whether a claimant has the physical ability to engage in a good deal of walking or standing, that is, whether he can engage in light work. See Baker v. Secretary of HHS, 882 F.2d 1474, 1480 (9th Cir. 1989) (holding that a vocational expert's opinion about what constitutes a significant number of jobs is irrelevant).
Second, as the Court stated above, the ALJ did not err in finding that plaintiff's depression was not severe, and, in any event, the ALJ considered plaintiff's concentration problems in rendering his ultimate findings, although not to the extent urged by plaintiff. Tr. 58, 20-21. The vocational expert opined that someone in plaintiff's position would be able to engage in all sorts of unskilled and skilled light work. Tr. 59, 63.
Third, the fact that the consulting psychiatrist concluded that plaintiff's "ability to withstand the stress and pressures associated with an eight hour work day and day to day work activities . . . is somewhat questionable," Tr. 396, does not render the ALJ's finding the plaintiff could engage in unskilled light work in error. The remainder of the psychiatrist's conclusion explains that the psychiatrist was concerned with plaintiff's physical, rather than mental, ability to work eight hours a day: "I would recommend that he slowly be reintegrated into the work force, perhaps beginning with part time work and/or retraining for a new type of job that would be less physically demanding." Id. (emphasis added). The psychiatrist also concluded that plaintiff is "able to perform most semi-skilled jobs." Id. As the other physicians did not opine that plaintiff could not physically perform light work, the ALJ's finding that plaintiff could do so was not in error.
CONCLUSION
On the record before the Court the ALJ might have reasonably concluded that plaintiff was disabled. However, the record also supports the finding that plaintiff could perform light unskilled work. Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Accordingly. plaintiff's motion for summary judgment is DENIED and defendant's motion is GRANTED.