Opinion
Case No. 04cv1824 JM(AJB).
September 27, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This is an action for judicial review of a final administrative decision of the Commissioner of Social Security ("Commissioner") denying Phoung T. Doan ("Plaintiff") a period of disability and disability insurance benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1382c. On February 11, 2002, the administrative law judge ("ALJ") issued a decision finding that plaintiff was not disabled and denying her application. On January 3, 2000, the Appeals Council denied plaintiff's request for review. Therefore, the ALJ's decision became the final decision of the Commissioner. See McCarthy v. Apfel, 221 F.3d 1119, 1122 (9th Cir. 2000). Plaintiff then filed this action pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the court grants Commissioner's motion for summary judgment and denies Plaintiff's cross motion for summary judgment.
ANALYSIS
Plaintiff raises four essential challenges to the Commissioner's determination: (1) Plaintiff met the disability listing of Listing 12.04 and 12.06; (2) the ALJ erred by rejecting the opinions of the treating physicians; (3) the ALJ's decision is not supported by substantial evidence; and (4) changed circumstances with respect to Plaintiff's ability to communicate in English. Each argument is discussed in turn.General Legal Standards
Plaintiff has the burden of establishing that she is disabled.Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). This court reviews the Commissioner's decision to determine whether it is supported by substantial evidence and is free of legal error.Hermes v. Secretary, 926 F.2d 789, 790 (9th Cir. 1991). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996). The court independently reviews the record to determine whether the Commissioner's decision is supported by substantial evidence.Id.
In determining whether a claimant is disabled, the Commissioner engages in a five-step inquiry. Key v. Heckler, 754 F.2d 1545, 1548 (9th Cir. 1985). First, the Commissioner considers whether the claimant is currently working. Id. If so, the claimant is not disabled. Id. Second, the Commissioner determines whether the claimant's impairment is "severe." Id. If the impairment is not severe, the claimant will be denied disabled status regardless of the claimant's age, education, and work experience.Id. Third, the Commissioner determines whether the claimant suffers from an impairment listed in the Listing of Impairments of Appendix 1, Subpart P, Regulations No. 4 ("Listing of Impairments") or that is equal to an impairment in the Listing of Impairments. Id. If so, the claimant is presumptively disabled.Id. If the claimant has a severe impairment that is not enumerated in Appendix 1, the Commissioner determines whether the claimant can perform his or her past work. Id. If so, the claimant is not disabled. Id. If a severe impairment precludes a claimant from "doing past relevant work," the Commissioner determines whether the claimant can perform other work. Id. If so, the claimant is not disabled. Id. In determining whether the claimant can perform other work, the Commissioner may in appropriate circumstances apply the Commissioner's Medical-Vocational Guidelines ("the grids") to match the claimant with appropriate work. Reddick v. Chater, 157 F.3d 715, 728 (9th Cir. 1998).
The Commissioner's decision to deny benefits must be affirmed if it is free of legal error and supported by substantial evidence. Bates v. Sullivan, 894 F.2d 1059, 1061 (9th Cir. 1990). As the Ninth Circuit has explained:
Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988) (quoting Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).Bates, 894 F.2d at 1061.
Listings 12.04 and 12.06
Plaintiff contends that her impairments fall withing Listings 12.04 (affective disorders) and 12.06 (anxiety disorders) and therefore the ALJ erred by concluding that she was not disabled as a matter of law. See 20 C.F.R. § 404.1520(d). For both listings, a plaintiff must establish, among other things, both the presence of a mental disorder and functional limitations which are incompatible with the ability to work. See 20 C.F.R. pt. 404, subpt. P, App. 1, § 12.00(A).
Here, Plaintiff has come forward with evidence to show the presence of a mental disorder. Several treating physicians and psychiatrists have identified that Plaintiff suffers from "major depression . . . mood disorder due to cancer, and a GAF of 45." (TR 468). Plaintiff also received numerous antidepressant and antipsychotic medications, including Prozac, Zyprexa, Luvox, Ambien, Rmeron, Serzone, Seroquel and Paxil. (TR 519).
Even assuming that Plaintiff has adequately demonstrated the presence of a mental disorder, the court concludes that Plaintiff fails to satisfy the "B criteria." To satisfy the B criteria, Plaintiff must show that her mental impairment resulted in at least two of the following functional limitations:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence or pace; or
4. Repeated episodes (three within one year) of decompensation, each of extended duration.See 20 C.F.R. pt. 404, subpt P, App. 1, §§ 12.00(C), 12.04(B), 12.06(B). While the term "marked" is specifically not defined, in reviewing the functional requirements, "[d]eficiencies that are apparent only in performing complex procedures or tasks would not satisfy the intent of this paragraph B criteria" with regard to defining a "marked" limitation. 20 C.F.R. pt. 404, subpt. P, App 1, § 12.00(C)(3). In light of these standards, the ALJ concluded:
the claimant exhibits moderate restrictions of activities of daily living; marked difficulties maintaining social functioning; moderate-to-marked difficulties maintaining concentration, persistence, or pace with regard to complex or detailed tasks; mild difficulties maintaining concentration, persistence, or pace with regard to simple repetitive tasks; and one or two episodes of decompensation.
(TR 44). The court concludes that the ALJ's findings with respect to the B criteria are supported by substantial evidence and therefore Plaintiff fails to satisfy the listing requirements of §§ 12.04(B) and 12.06(GB).
The court notes that Plaintiff analyzes the B criteria in an awkward fashion. Instead of analyzing each B criterion separately, Plaintiff reviews the evidentiary record (i.e. the testimony or records prepared by various physicians) without indicating to the court the relevance of the testimony with respect to the particular criterion at issue. Such an approach requires the court to second-guess which evidence supports the B criteria and undermines the court's ability to throughly analyze Plaintiff's arguments.
With respect to activities of daily living, Plaintiff told her UPAC therapist on November 24, 1998, she was "[d]oing OK overall. Able to do housework, visit with parents regularly. Doesn't feel comfortable socializing yet in spite of family and friends." (TR 470). She also indicated that she could satisfactorily perform such activities as budgeting, eating, grooming, laundry, shopping, etc. (TR 471). Dr. Chang, one of her treating physicians noted that Plaintiff was able to perform housework and visit with her parents regularly. While the testimony of Dr. Henderson indicates that Plaintiff's daily activities were more restrictive than noted by other physicians, the ALJ reasonably considered the opinion of Dr. Bolton that Plaintiff's activities were only moderately limited.See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (testimony of medical expert may be substantial evidence when consistent with other evidence of record). The court concludes that the ALJ's determination with respect to daily activities is supported by substantial evidence.
Plaintiff does not challenge the ALJ's finding that she maintains marked difficulties in maintaining social functioning.
With respect to maintaining concentration, persistence, or pace, the ALJ's finding that Plaintiff has moderate to marked difficulties with complex tasks and mild to moderate difficulties with respect to simple tasks is supported by substantial evidence. Dr. Hall testified that Plaintiff's memory was intact, (TR 502); Drs. Skopec and Williams opined that Plaintiff only seldom experienced deficiencies in concentration, persistence or pace, (TR 505-07, 509); Dr. Bolton opined that Plaintiff had mild difficulties with respect to simple tasks and moderate to marked difficulties with complex tasks, (TR 757). In large part, Plaintiff contends that the ALJ misstated and improperly disregarded a medical expert's testimony. In response to the questioning of the ALJ, Dr. Bolter testified:
Q. [Does Plaintiff have] difficulties in maintaining concentration persistence or pace?
A. That would be for the marked for simple, repetitive tasks, but moderate to marked for complex or detailed tasks. And there's just the one episode that we're dealing with that is continuous-continually treated.
(TR 756). The court concludes that Dr. Bolter's testimony means, in context and consistent with the ALJ's interpretation of this testimony, that for simple repetitive tasks Plaintiff's concentration, persistence, or pace was either moderate or mild. This interpretation makes sense because the conjunction "but" contrasts "simple, repetitive tasks" with "complex or detailed tasks" that are "moderate to marked." This is the only logical interpretation as one would anticipate that difficulties with concentration, persistence, or pace would increase with the degree of complexity, and not decrease (as Plaintiff's proposed construction necessarily requires). Moreover, upon questioning by the ALJ, Dr. Bolton clarified his response when he testified that Plaintiff had "moderate to marked [difficulties] for complex detailed tasks and other tasks, but for simple repetitive tasks, it would be mild." (TR 757). The court also affords the ALJ's interpretation of the testimony some weight. Often a transcript of testimony does not reveal pauses, inflections, non-verbal communications, or other insights to meaning readily apparent in the presentation of live testimony.
With respect to episodes of decompensation, the ALJ's finding of one or two episodes is supported by substantial evidence. While Drs. Williams and Skopec opined that Plaintiff never decompensated, TR 505-07, 509), the ALJ cited Dr. Bolter's testimony that Plaintiff had two episodes of decompensation. (TR 33).
Finally, the ALJ considered Plaintiff's impairments both singly and in combination and concluded that Plaintiff's disability did not meet the listing impairments. The testimony of Dr. Bolter, (TR 752), Dr. William and Dr. Vargas, (TR 362-63), supports the ALJ's findings. This evidence, from state agency physicians, is substantial evidence that could be relied upon the ALJ. See 20 C.F.R. § 416.926(b).
In sum, the court concludes that the ALJ's determinations that Plaintiff does not satisfy the listing requirements are supported by substantial evidence.
The Physician Opinions
Plaintiff contends that the opinions of Drs. Henderson, Zappone, Lessner, Ishaque, Grisolia, Sidrick and Morgan demonstrated that she met the listing criteria of 12.04 and 12.06. An ALJ must present "specific, legitimate reasons" for rejecting a treating physician's opinion where, as here, that opinion is contradicted by the opinion of an examining physician.See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (as amended). "This burden can be met by providing a detailed summary of the facts and conflicting clinical evidence, along with a reasoned interpretation thereof." Rodriguez v. Bowen, 876 F.2d 759 (9th Cir. 1989). The court notes that the medical record, as noted by Dr. Bolter, contains "lots of conflicts" regarding the various treating physicians' diagnoses, clinical examination findings and conclusions. (TR 743-48, 750-51). The court notes that the ALJ did a thorough and thoughtful analysis of ostensibly conflicting evidence. The ALJ addressed the medical record and determined that certain treating physician disability opinions were not entitled to controlling weight. Where, like here, the ALJ articulates specific reasons for rejecting medical opinions, the nontreating physician's opinions may itself be substantial evidence. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th cir. 1995). Resolving conflicting testimony based upon articulable evidence is within the providence of the ALJ.
Plaintiff's treating physicians include Drs. Sony Vo, Tuc Nguyen, Henderson, Sidrick, Morgan, Greenwald, Hall, Grisolia, Zappone, Ishaque, Chang, Lessner, and Zappone. Plaintiff's consulting physicians include Drs. Eric Yu, Klein, Karamati, Williams, Skopec, and Bolter.
The court rejects Plaintiff's argument that the ALJ improperly rejected or, alternatively, accepted the opinions of various physicians. For example, with respect to Dr. Lessner's opinions, the ALJ found that his opinions were unsupported because his interpretation of test results were inconsistent with Dr. Hall's mental status examination findings. (TR 34; 522-25). Dr. Hall made specific findings and noted that Plaintiff maintained an organized thought process, normal speech, and intact memory, concentration and judgment. (TR 502). With respect to Dr. Zappone's opinion, the ALJ noted that it was inconsistent with Dr. Ishaque's treatment findings and not supported by the UPAC treatment records. With respect to Dr. Henderson's opinion, the ALJ found that it was not supported by the brief treatment records and was inconsistent with other medical opinions and the UPAC treatment records. (TR 33-34). Further, the ALJ noted that Dr. Ishaque's opinion did not reflect Plaintiff's debilitating symptoms and showed that Plaintiff was oriented and had intact memory and insight, normal speech and cognitive functioning. (TR 41). Further, with respect to the opinions of Dr. Chang, the treatment notes indicate that Plaintiff stated that she was "doing fine" with medication, her depression was "improved overall" she felt stable on her medications, she was able to sleep regularly, and had increased ability to cope with stress. (TR 470-01; 484-85; 489).
Furthermore, one of Plaintiff's treating physicians, Dr. Chang observed that Plaintiff demonstrated a brighter mood and affect and was more talkative and animated. (TR 474, 476, 480, 484, 488). During these sessions, Plaintiff represented that she was doing OK with medications and that her depression had improved, she felt stable on medications, slept regularly, she had increased ability to cope with stress, she could perform daily activities, including visiting her parents, managing her own finances, caring for her personal needs, performing housework, washing laundry and shopping. (TR 470-71, 484-85, 489). Buttressing Dr. Chang's testimony, Dr. Bolter testified that Dr. Chang was able to better administer the numerous medications used by Plaintiff. (TR 751). The ALJ also found that various physicians' opinions were influenced by Plaintiff's subjective statements regarding her mental limitations and therefore not entitled to controlling weight. See Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 603 (9th Cir. 1999). For example, Dr. Grisolia concluded that Plaintiff was totally disabled due to her mental impairment and memory loss yet this was undermined by other evidence, particularly that of Drs. Chang and Bolter. Further, the ALJ gave less weight to the testimony of Dr. Lessner that Plaintiff was totally disabled because, in part, Dr. Lessner reached this conclusion after only one appointment and it was based largely on Plaintiff's own representations.
In sum, the court concludes that the ALJ articulated specific reasons, supported by substantial evidence, in resolving issues of conflicting medical opinions.
Pain Testimony
Plaintiff also alleges that she suffers from sever and chronic pain and that the ALJ failed to consider Plaintiff's objective and subjective testimony in evaluating her physical impairments. With respect to evaluating a claimant's pain testimony, the Ninth Circuit has explained:
Because pain is a subjective phenomenon . . . it is possible to suffer disabling pain even where the degree of pain, as opposed to the mere existence of pain, is unsupported by objective medical findings. Referring to such pain as `excess pain,' our cases have established a clear rule regarding its assessment: Once a claimant submits objective medical evidence establishing an impairment that could reasonably be expected to cause some pain, `it is improper as a matter of law for an ALJ to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings.' Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (per curiam).Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). To reject excess pain testimony, the ALJ "must make specific findings justifying that decision." Id. at 602. Importantly, it is not enough that an ALJ give reasons for discrediting the claimant's testimony. These reasons must be supported by the record. See Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) ("If the ALJ wished to reject [the claimant's] pain testimony, he was required to point to specific facts in the record which demonstrate that [the claimant] is in less pain than she claims.") Moreover, where, as here, a claimant produces "medical evidence of underlying impairments consistent with his complaints and there is no affirmative evidence that he is malingering, the ALJ's reasons for rejecting [the claimant's] testimony must be clear and convincing." Regennitter v. Commissioner, 166 F.3d 1294, 1296 (9th Cir. 1999). See also Lester, 81 F.3d at 834.
As further explained in Fair v. Bowen, at 602:
If the claimant runs marathons, as an extreme example, an ALJ could reasonably assume that the claimant's pain is not so debilitating as to prevent him from working. More realistically, if, despite his claims of pain, a claimant is able to perform household chores and other activities that involve many of the same physical tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that the claimant's pain does not prevent the claimant from working. This line of reasoning clearly has its limits: The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, see, e.g., Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (claim of pain-induced disability not gainsaid by capacity to engage in periodic restricted travel); Gallant, 753 F.2d at 1453 (ordering award of benefits for constant back and leg pain despite claimant's ability to cook meals and wash dishes), and many home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication. Yet if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation of disabling excess pain.
At the outset, the court notes that it is unclear whether Plaintiff has ever claimed that she was disabled on account of excess pain (either singly or in combination with Plaintiff's other ailments). Plaintiff notes that she suffers from degenerative disc disease of the lumbar spine, from head injury following an automobile accident about 20 years ago in Vietnam, and carpal tunnel disorder. The court notes that Plaintiff fails to cite portions of the record wherein Plaintiff testified about excess disabling pain. The record does reflect that Plaintiff suffered "chronic slight neck pain for one year becoming severe on lifting greater than 10 pounds . . . constant moderate bilateral knee pain and . . . chronic constant low back pain." (TR 559). While the medical record indicates that Plaintiff suffers from pain associated with several ailments, there is substantial evidence to support the ALJ's determination that Plaintiff is not disabled on account of excess pain. See Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (the mere existence of impairments, without more, is insufficient to prove disability). While there is evidence in the record that Plaintiff suffered from chronic slight neck pain, knee pain, and chronic low back pain there is no evidence that the pain reached the severity required to establish excess disabling pain. Plaintiff's pain conditions were described as mild. (TR 559). Further, Plaintiff has failed to establish that the pain symptoms were so functionally limiting as to prevent her from performing work activity. The record demonstrates that Plaintiff is able to conduct daily activities, including visiting her parents, managing her own finances, caring for her personal needs, performing housework, washing laundry and shopping. (TR 470-71, 484-85, 489). These activities are inconsistent with a claim of excess disabling pain.
Further, in assessing Plaintiff's credibility, the ALJ properly concluded that the objective findings show that Plaintiff has impairments but that those impairments did not cause disabling symptoms and limitations. The court notes that Plaintiff had negative findings on examining her neck, knee, and lower back. However, the examinations also revealed that Plaintiff had normal ranges of joint motion, motor strength and no swelling in her joints, negative straight leg raising test, normal deep tendon reflexes, normal gait, sensation and muscle strength with no muscle atrophy, full range of motion, with no complaints of pain in her neck, and no pain or spasm with range of motion testing in her back or extremities. (TR 498, 499, 502-03, 526, 557, 617, 630, 498). Further, the court notes that Plaintiff was prescribed relatively minor pain control medications such as Tylenol with Codeine, Motrin and Ibuprofen and Plaintiff did not require additional aids such as ambulatory devices, hospitalization or surgery for her pain. (TR 598, 601).
Finally, the ALJ's determination that Plaintiff was not fully credible is supported by substantial evidence. Plaintiff provided inconsistent information regarding her health history, provided conflicting information regarding her work history, and was characterized as being non-compliant with physical and mental examinations and attempting to make herself seem disabled. (TR 46).
In sum, the court finds that substantial evidence supports the ALJ's determination that Plaintiff is not disabled within the meaning of the Social Security Act.
English Language Skills
Plaintiff also claims that she is illiterate and cannot speak English. In 1998, the ALJ determined that Plaintiff was able to communicate in English and that decision became final when Plaintiff failed to appeal that decision. Absent a showing of changed circumstances, res judicata prevents Plaintiff from challenging the prior determination. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Here, the ALJ's determination that Plaintiff had failed to show any material changed circumstance is supported by substantial evidence. The ALJ took administrative notice of the fact that Plaintiff, a naturalized citizen, cannot obtain naturalization unless they demonstrate the ability to understand, read, write and speak English in ordinary usage and pass an English literacy test. (TR 24). Accordingly, the ALJ properly concluded that the literacy issue had already been adjudicated and Plaintiff had not demonstrated changed circumstances.
In sum, the court grants Defendant's motion for summary judgment and denies Plaintiff's motion for summary judgment.
IT IS SO ORDERED.