Opinion
NO. CV 13-4314-E
01-17-2014
MICHELLE M. ELAM, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION
PROCEEDINGS
Plaintiff filed a Complaint on June 20, 2013, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on August 6, 2013.
Plaintiff filed a motion for summary judgment on December 10, 2013. Defendant filed a motion for summary judgment on January 9, 2014. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed June 24, 2013.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff asserted disability based on a variety of alleged impairments (Administrative Record ("A.R.") 9-327). The Administrative Law Judge ("ALJ") examined the record and heard testimony from Plaintiff and a vocational expert (see id.).
The ALJ found Plaintiff has certain severe impairments, but retains the residual functional capacity to perform a limited range of sedentary work (A.R. 15-19). Applying the Medical-Vocational Guidelines, the ALJ found Plaintiff disabled beginning May 8, 2012, Plaintiff's 50th birthday (A.R. 19-20). However, the ALJ also found that, prior to May 8, 2012, Plaintiff could perform the sedentary job of "order clerk" (A.R. 19-21). The ALJ deemed not fully credible Plaintiff's contrary testimony (A.R. 18-19). The ALJ also rejected the conclusory opinions of Plaintiff's treating physician, who had opined, inter alia, that Plaintiff lacked the sitting capacity required for sedentary work (A.R. 16-18, 308-09). The Appeals Council denied review (A.R. 1-3).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used proper legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 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) (citation and quotations omitted); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
DISCUSSION
After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The Administration's findings are supported by substantial evidence and are free from material legal error. Plaintiff's contrary arguments are unavailing.
The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
The Court has considered all of Plaintiff's arguments and has found those arguments unpersuasive. The Court discusses Plaintiff's principal arguments herein.
I. The ALJ Did Not Materially Err in Evaluating Plaintiff's Credibility.
Although Plaintiff testified to subjective symptoms of allegedly disabling severity, the ALJ found this testimony less than fully credible (A.R. 18-19, 30-35). Contrary to Plaintiff's arguments, the ALJ did not thereby materially err.
An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The discounting of a claimant's testimony regarding subjective symptoms must be supported by specific, cogent findings. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (reaffirming same); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must offer "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering). As discussed below, the ALJ stated sufficient reasons for deeming Plaintiff's testimony less than fully credible.
In the absence of an ALJ's reliance on evidence of "malingering," most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ's findings are sufficient under either standard, so the distinction between the two standards (if any) is academic.
As the ALJ properly observed, Plaintiff failed to seek any regular, ongoing treatment for Plaintiff's allegedly disabling hand problems (A.R. 19). Plaintiff testified she has pain in her hands and, when she picks up objects, the objects fall out of her hands "a lot of times" (A.R. 30-31). Although the medical record is replete with "Adult Progress Notes" reporting various complaints Plaintiff made to her treating physician regarding other alleged problems, these notes fail to reflect any complaints or ongoing treatment regarding any alleged hand pain or any alleged inability to grasp and hold objects in Plaintiff's hands (A.R. 225-29, 231-32, 234-35, 270-71, 279, 282-88, 290, 295-300, 302-304, 310-11, 317-27). In evaluating a claimant's credibility, an ALJ properly may consider "unexplained or inadequately explained failure to seek treatment. . . ." Molina v. Astrue, 674 F.3d at 1112 (citations and quotations omitted); accord Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989); see Fagundes v. Commissioner, 2001 WL 34043749 at *4 (D. Or. Sept. 10, 2001) ("[c]lear and convincing reasons for discrediting a claimant's testimony include . . . failure to seek treatment . . ."); see also McCawley v. Astrue, 423 Fed. App'x 687, 689-90 (9th Cir. 2011) (upholding ALJ's discounting of a claimant's credibility on the basis that the claimant visited a treating physician a number of times without making complaints concerning her alleged symptoms).
As the ALJ also properly observed, Plaintiff's "subjective complaints and alleged limitations are not consistent with her activities of daily living" (A.R. 19). Plaintiff testified that when she sits she suffers pain and must lean to one side because her back problem allegedly prevents her from being able to sit straight (A.R. 34-35). Plaintiff also testified that pain allegedly prevents her from standing or walking more than ten minutes (A.R. 34). Yet, the record reflects that Plaintiff engages in activities a trier of fact reasonably could infer to be inconsistent with the functional limitations she claims. Plaintiff drives a car, takes care of a child, cooks meals, does housework, reads, shops, plays cards, and sits through movies (A.R. 197, 199-201). Such inconsistences between a claimant's activities and the claimant's testimony can support the rejection of the claimant's credibility. See, e.g., Molina v. Astrue, 674 F.3d at 1112; Burch v. Barnhart, 400 F.3d at 680-81; Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).
Plaintiff appears to argue that a claimant's daily activities are "not typically grounds to discredit" a claimant's credibility (Plaintiff's Motion at 11). In support of this argument, Plaintiff cites only Lewis v. Apfel, 236 F.3d 503, 516 (9th Cir. 2001). The cited portion of the Lewis v. Apfel opinion concerns whether daily activities can constitute "substantial gainful activity" so as to qualify as "past relevant work." The opinion does not address the issue of whether daily activities are relevant to the assessment of a claimant's credibility. The Ninth Circuit repeatedly has reaffirmed that daily activities are relevant to the assessment of a claimant's credibility. See Burch v. Barnhart, 400 F.3d at 680-81; Thomas v. Barnhart, 278 F.3d at 958-59; see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (extensive daily household activities found to constitute "clear and convincing reasons" for discounting the claimant's credibility); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) ("[a]n ALJ is clearly allowed to consider the ability to perform household chores").
Notably, however, the Lewis v. Apfel opinion does uphold the ALJ's rejection of lay witnesses' credibility based in part on the claimant's daily activities. See Lewis v. Apfel, 236 F.3d at 512.
II. The ALJ Did Not Err in Rejecting the Opinions of Plaintiff's Treating Physician.
An ALJ must provide "specific, legitimate reasons" based on substantial evidence in the record for rejecting a treating physician's contradicted opinion. See Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d 625, 631-33 (2007). Contrary to Plaintiff's arguments, the ALJ stated sufficient specific, legitimate reasons for rejecting the contradicted opinions of Plaintiff's treating physician, Dr. Stakley.
The ALJ correctly observed that Dr. Stakley's conclusory assessment that Plaintiff could not tolerate even sedentary work was unsupported "by the treatment records and objective findings" (A.R. 18). In particular, nothing in the records or findings supported the sitting restriction assessed by Dr. Stakley. To the contrary, Dr. Bleecker, a consultative examiner, found Plaintiff manifested an ability to sit comfortably (A.R. 243; see also A.R. 245). "[A]n ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings." Batson v. Commissioner, 359 F.3d at 1195; see Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected where the physician's treatment notes "provide no basis for the functional restrictions he opined should be imposed on [the claimant]"); accord Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988); Young v. Heckler, 803 F.2d 963, 967-68 (9th Cir. 1986).
Plaintiff argues that "Dr. Stakley's treatment record . . . clearly documented [Plaintiff's] complaints" (Plaintiff's Motion at 7). Dr. Stakley's records did document some of Plaintiff's subjective complaints, but the ALJ was not obligated to accept a functional assessment predicated on those subjective complaints. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (ALJ is free to disregard a treating physician's opinion that is predicated on the properly discounted subjective complaints of the claimant); accord Mattox v. Commissioner, 371 Fed. App'x 740, 742 (9th Cir. 2010); Fair v. Bowen, 885 F.2d at 605.
Plaintiff also argues the ALJ erred in preferring Dr. Bleecker's functional assessments to those of Dr. Stakley, citing Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) and Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (Plaintiff's Motion at 7-8). These citations are inapt. Both Pitzer and Gallant concern an ALJ's error of preferring the unsupported opinion of a non-examining physician over the opinion of the treating physician. Dr. Bleecker is an examining physician whose opinions are fully supported in the medical record.
The record contains some conflicting medical evidence, but it was the prerogative of the ALJ to resolve such conflicts. See Lewis v. Apfel, 236 F.3d at 509. Where, as here, the evidence "is susceptible to more than one rational interpretation," the Court must uphold the administrative decision. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v. Barnhart, 278 F.3d at 954; Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
CONCLUSION
For all of the reasons discussed herein, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted.
The Court has considered and rejected each of Plaintiff's arguments. Neither Plaintiff's arguments nor the circumstances of this case show any "substantial likelihood of prejudice" resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice).
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LET JUDGMENT BE ENTERED ACCORDINGLY.
__________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE