Opinion
No. C 03-03652 SI.
June 30, 2004
JUDGMENT
The Court has denied plaintiff's motion for summary judgment and granted defendant's cross-motion for summary judgment. Judgment is entered accordingly.
IT IS SO ORDERED. AND ADJUDGED
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In his motion for summary judgment, plaintiff Paul Turover challenges the denial of Social Security Disability Insurance benefits by defendant Joanne B. Barnhart, Commissioner of Social Security. Specifically, plaintiff asserts that the Administrative Law Judge (ALJ) committed legal error in (1) considering evidence adverse to plaintiff's credibility; (2) rejecting Dr. Dubinski's opinion regarding plaintiff's residual functional capacity; and (3) not including all limitations from Dr. Dubinski's opinion in the hypothetical question posed to the vocational expert. Defendant has responded with a cross-motion for summary judgement.Having reviewed all the relevant documents, the Court hereby DENIES plaintiff's motion for summary judgment, and GRANTS defendant's cross-motion for summary judgment.
BACKGROUND
On July 23, 2001, plaintiff Paul Turover filed for Social Security Disability Insurance benefits. Tr. at 61. Plaintiff alleged he became disabled on June 22, 2000 due to pain in his hands, wrists, back and neck. Id. Plaintiff underwent surgery seven times for his hands and arms; five times in 1992, and two times in November 2001. Tr. at 16. Plaintiff alleges ongoing symptoms from carpal tunnel syndrome, cubital tunnel syndrome, Type II diabetes, degenerative joint disease, and degenerative disc disease of the lumbar spine. Id.
On September 20, 2001, the Social Security Administration denied benefits to plaintiff. Tr. at 27. Plaintiff then filed for reconsideration. Tr. at 31. Plaintiff was granted a hearing in front of ALJ Catherine R. Lazuran, which took place on October 1, 2002. Tr. at 12-25. After reviewing the record and hearing plaintiff's testimony, the ALJ denied Disability Insurance benefits to plaintiff. Tr. at 24. On May 8, 2003, plaintiff filed a request for review of the ALJ's decision. Tr. at 7-11. Plaintiff's request for review was denied by the Social Security Administration Appeals Counsel. Tr. at 5-6.
On August 5, 2003, Plaintiff filed for judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g). Pl.'s Compl. at 2. Now before the Court is plaintiff's motion for summary judgment, and defendant's cross-motion for summary judgment.
LEGAL STANDARD
The Social Security Act authorizes judicial review of final decisions made by the Commissioner. 42 U.S.C. § 405(g). Here, the decision of the ALJ stands as the final decision of the Commissioner because the Appeals Council declined review. 20 C.F.R. § 416.1481. The Court may enter a judgment affirming, modifying or reversing the decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g).
Factual findings of the Commissioner are conclusive if supported by substantial evidence. Id. The Court may set aside the Commissioner's final decision when that decision is based on legal error or where the findings of fact are not supported by substantial evidence in the record taken as a whole. Tacket v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla but less than a preponderance." Id. at 1098. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the Court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion. Tacket, 180 F.3d at 1098.
An ALJ's decision to reject a treating doctor's opinion must always be supported by substantial evidence. The ALJ must set forth specific, legitimate reasons when rejecting a treating doctor's opinion. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). Where the evidence is susceptible to more than one rational interpretation, the Court may not substitute its judgment for the Commissioner's. Tacket, 180 F.3d at 1098.
Even if substantial evidence supports the Commissioner's factual findings, the decision must be set aside if improper legal standards were applied in weighing the evidence and reaching the decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).
DISCUSSION
1. The ALJ's finding of credibility is supported by the evidence in the record
Plaintiff alleges the ALJ improperly considered and improperly evaluated evidence of plaintiff's credibility. Pl.'s Mot. for Summ. J. at 9-10. The ALJ found that plaintiff's allegations were not totally credible. Tr. at 23. On review, a court will not disturb a reasonable credibility finding that was supported by substantial evidence. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). "In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997). The ALJ's findings "must be sufficiently specific to allow a reviewing court to conclude the [ALJ] rejected the claimant's testimony on permissible grounds."Rollins v. Massanari, 261 F.3d at 856-857.
A. Reports of non-compliance with prescribed diet
Plaintiff argues the ALJ improperly considered reports of non-compliance with his prescribed diabetic diet, as evidence bearing on credibility. Pl.'s Mot. for Summ. J. at 10. Plaintiff contends that the ALJ exaggerated the evidence of non-compliance.Id. Furthermore, plaintiff contends that even if non-compliance was established, it would have no bearing on the plaintiff's credibility. Id. at 10-11.
Plaintiff argues that the finding of non-compliance with the diabetic diet was supported by only one piece of evidence, Exhibit 3F (Tr. at 148), and therefore, was insufficiently supported. Pl.'s Mot. for Summ. J. at 10. Plaintiff dismisses a second report of non-compliance, Exhibit 22F (Tr. at 276), as evidence Turover made some improvements to his diet since the initial report. Pl.'s Mot. for Summ. J. at 10.
There was substantial evidence supporting the ALJ finding that plaintiff failed to comply with his prescribed diet. Both reports tend to support that plaintiff was not in full compliance with the prescribed diet. Tr. at 148; Tr. at 276. Furthermore, plaintiff stated during the administrative hearing he had made some changes, but was still "working on" the diet and medication regiment. Tr. at 319-20. Plaintiff argues that the ALJ improperly considered his non-compliance with the prescribed diet when evaluating his credibility. Pl.'s Mot. for Summ. J. at 10-11. However, the Ninth Circuit has held that non-compliance with prescribed treatment is proper evidence relating to the credibility of the patient. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) ("Another such form of [credibility] evidence is an unexplained, or inadequately explained, failure to . . . follow a prescribed course of treatment."). Here, the ALJ properly considered plaintiff's non-compliance to his prescribed diet while inquiring into plaintiff's credibility.
B. Dr. Sommer's opinion
Plaintiff argues that the ALJ improperly considered parts of Dr. Sommer's opinion as evidence relating to credibility. Pl.'s Mot. for Summ. J. at 11-12. Plaintiff contends it was inappropriate for the ALJ to consider Dr. Sommer's opinion that plaintiff had "some emotional involvement in his symptoms" and may have overstated his symptoms. Id.; Tr. at 244. Plaintiff argues this single comment was not sufficient to impeach plaintiff's credibility. Pl.'s Mot. for Summ. J. at 10-11. Furthermore, plaintiff contends that Dr. Sommer's opinion on plaintiff's limitations already took into account the overstatement of symptoms, and therefore no consideration of the comment was necessary. Id.
Dr. Sommer's statement was not the only evidence considered while evaluating plaintiff's credibility. Tr. at 21. In addition to Dr. Sommer's finding, Dr. Wheeler questioned whether plaintiff gave full effort to the grip strength test. Tr. at 21, 231. The ALJ cited numerous pieces of evidence used in the credibility evaluation, including diet, daily activities, sleep habits and failure to pursue rehabilitation. Tr. at 21. The Court finds it appropriate that the ALJ considered Dr. Sommer's opinion. Furthermore, the ALJ could consider Dr. Sommer's opinion for both credibility and plaintiff's limitations. These were separate inquiries, and Dr. Sommer's opinion was proper evidence of both.
C. Advice of Attorney Not to Pursue Vocational Rehabilitation
Plaintiff argues that the ALJ improperly considered his choice not to pursue vocational rehabilitation as evidence of credibility. Pl.'s Mot. for Summ. J. at 12. Plaintiff contends that the ALJ failed to consider his explanation that his body was still "changing" and that he was still suffering from pain. Id. Additionally, plaintiff argues the decision was made on advice of counsel, and plaintiff should not be faulted for following legal advice. Id.
It is proper for an ALJ to consider a claimant's work record.Light, 119 F.3d at 792. Furthermore, the ALJ may consider efforts to re-employ after an injury, as this is part of the work record. See Fountain v. RRB, 88 F.3d 528, 531 (8th Cir. 1996). Plaintiff's choice not to pursue vocational rehabilitation was relevant to his credibility, especially in light of Dr. Dubinsky's opinion that he was ready for vocational rehabilitation, and other medical opinions stating that he was capable of employment. Tr. at 18-19. Furthermore, plaintiff's testimony states he had no future plans to attend vocational rehabilitation, even after all doctors believed he was capable of some employment. Tr. at 302. It was proper for the ALJ to consider plaintiff's choice not to pursue vocational rehabilitation in evaluating plaintiff's credibility.
Plaintiff cites three cases in support of his argument that taking advice of counsel cannot be detrimental to credibility. Pl.'s Mot. for Summ. J. at 12. All three fail to address the factual situation at hand In Arres v. IMI Cornelius Remcor, 333 F.3d 812, 814 (7th Cir. 2003), the advice by counsel was legal advice, not medical advice as given here. In Wade v. Harris, 509 F. Supp. 19, 20 (N.D. Cal. 1980), the plaintiff was unable to attend a government examination, but was given another opportunity. In Brown v. Gardner, 249 F. Supp. 968, 969-970 (N.D. Ala. 1965), the district court remanded the case for plaintiff to undergo the examination he had refused initially, on counsel's advice. The facts at hand are dissimilar to any of these cases. Additionally, none of the cases addresses the issue of credibility.
There is no support for plaintiff's argument that the ALJ's use of evidence was inappropriate. Furthermore, plaintiff has not stated why his attorney advised him not to pursue vocational rehabilitation. The ALJ properly considered plaintiff's failure to pursue vocational rehabilitation as evidence detrimental to plaintiff's credibility.
D. Plaintiff's sleeping habits
Plaintiff argues that the ALJ improperly made an adverse credibility inference from his sleeping habits. Pl.'s Mot. for Summ. J. at 12-13. The ALJ suggested that plaintiff exaggerated his pain because despite the alleged pain, plaintiff was able to sleep ten hours a night. Tr. at 21. Plaintiff contends the ALJ did not consider that the pain from his hands would subside when not in use at night, and that plaintiff's hands were his principal disability. Pl.'s Mot. for Summ. J. at 13. Furthermore, plaintiff testified that "sometimes" he awakened at night. Id.
Plaintiff testified that his back gives him substantial pain. Tr. 307-8. On a scale from one to ten his back pain reached a seven occasionally and was a five or six the rest of the time.Id. Plaintiff also testified that his hand pain which could reach a seven during activity, but was a four and a half to a five without activity. Tr. 317-18. Plaintiff testified that his back pains were, in fact, greater than his hand pains. And both plaintiff's hands and back caused him substantial discomfort, even during inactivity. Plaintiff testified that he "sometimes" awakened at night, but nonetheless he averaged ten hours of sleep a night. There was substantial evidence to conclude that there was a discrepancy between the claimed pain, and the amount that the plaintiff slept. The ALJ drew a permissible inference that if plaintiff's pain was as great as he alleged, he would have more problems sleeping. There was substantial evidence supporting this conclusion.
E. Dr. Wheeler's opinion
Plaintiff argues the ALJ unfairly considered Dr. Wheeler's opinion that plaintiff may not have made full effort to the grip test. Pl.'s Mot. for Summ. J. at 13. Plaintiff contends that had the ALJ considered all of the evidence she would have found Dr. Wheeler's opinion in error. Id. Plaintiff correctly points out the ALJ must consider all evidence in the record. 20 C.F.R. § 416.920. The Court finds that the ALJ did just that. The ALJ considered all of the evidence, including all medical opinions, and their contents. In toto, the evidence provides a substantial basis for the ALJ's conclusion on plaintiff's credibility.
2. The ALJ correctly weighted the medical opinions
Plaintiff argues that the ALJ failed to comply with SSR 96-2p. Pl.'s Mot. for Summ. J. at 14. Plaintiff alleges the ALJ did not provide specific reasons for discounting the opinion of the treating doctor, Dr. Dubinsky.
[T]he notice of the determination or decision must contain specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.
SSR 96-2p.
Plaintiff correctly points out that a treating doctor's opinion is generally given more weight. Sprague, 812 F.2d at 1230. But, the ALJ does not have to treat that opinion as conclusive.Morgan v. Commissioner of the SSA, 169 F.3d 595, 601 (9th Cir. 1999). Plaintiff overlooks the substantial analysis each of the medical opinions was given before the ALJ's final decision. The ALJ gave more weight to the doctors that actually examined plaintiff: Dr. Gordon, Dr. Dubinsky, and Dr. Sommer. Tr. at 21. The ALJ gave Dr. Gordon and Dr. Sommer more weight because their opinions were consistent with each other, and Dr. Gordon was a hand specialist. Tr. at 20-21.
Dr. Sommer was the agreed medical expert ("AME").
Dr. Dubinsky was given less weight because his opinion was not consistent with the other examining doctors. Tr. at 20. Furthermore, Dr. Dubinsky found plaintiff unable to perform any sitting or standing work, and reported this condition had been present since March 2000. Id. The ALJ questioned Dr. Dubinsky's opinion because plaintiff had been employed and working until at least June 22, 2001. Id. Plaintiff's employment from March 2000 to June 2001 contradicted Dr. Dubinsky's opinion.
Plaintiff argues that the ALJ incorrectly considered Dr. Dubinsky's issuance of a temporary disabled placard to plaintiff. Pl.'s Mot. for Summ. J. at 14. Plaintiff alleges that the ALJ discredited Dr. Dubinsky because of the placard, and did not consider that the temporary placard was for the recently diagnosed foot lesion, and not plaintiff's other conditions.Id. The ALJ may draw inferences logically flowing from the evidence. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). Here the ALJ considered the application for a disabled placard to weigh the strength of Dr. Dubinsky's medical opinion. The placard was informative both as to when it was applied for, and the duration applied for.
The placard was applied for on May 29, 2002, long after Dr. Dubinsky had declared plaintiff disabled. Tr. at 21. Furthermore, the application was for a temporary placard, not permanent. The placard application included foot lesions as a disability, but also included degenerative disc disease and degenerative joint disease. Tr. at 223. The latter two conditions Dr. Dubinsky opined were chronic and unlikely to improve. Tr. at 19. A reasonable inference to draw from this evidence was that plaintiff's pain may not have started when Dr. Dubinskireported, the pain may have been less than reported and the anticipated duration may have been less than reflected in Dr. Dubinski's opinion.
The ALJ cited the evidence behind her decision, including the evidence discussed above. There was substantial evidence cited to support the ALJ's decision to give more weight to Dr. Gordon's and Dr. Sommer's opinions and less to Dr. Dubinshy's opinion. The ALJ fairly considered this evidence, along with the record in toto in weighing the medical opinions.
3. The hypothetical question posed to the vocational expert included all relevant limitations
Plaintiff argues that the ALJ's hypothetical question to the vocational expert did not contain all the functional limitation set fourth in the evidence. Pl.'s Mot. for Summ. J. at 16. For a vocational expert to render an opinion of value, all limitations must be considered. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). However, an ALJ may reject limitations that are not supported by substantial evidence. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).
Here, the ALJ did consider the evidence, and she concluded that Dr. Sommer and Dr. Gordon gave the most credible opinions on plaintiff's condition. There was substantial evidence for this conclusion, and for rejecting some of the limitations of Dr. Dubinsky's opinion. Furthermore, the final limitations posed to the vocational expert were based on all medical opinions, not just Dr. Gordon's opinion or some other single opinion. This is demonstrated by the fact that the ALJ found plaintiff was not able to return to his prior occupation, contrary to Dr. Gordon's opinion. Tr. at 20. Furthermore, the ALJ found that plaintiff was limited in his gripping and fingering, limitations not found in Dr. Gordon's opinion. Tr. at 334-35. The ALJ's conclusion was well supported by the doctors' opinions and other evidence. No additional limitations were required to the hypothetical question to the vocational expert.
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff's motion for summary judgment and GRANTS defendant's cross-motion for summary judgment. [Docket #4 and #9.]