Opinion
CV 01-215-BR
September 10, 2001
Attorney for Plaintiff: PHIL STUDENBERG, Attorney at Law, Kiamath Falls, Oregan.
Attorneys for Defendant: MICHAEL W. MOSMAN, United States Attorney, CRAIG J. CASEY, Assistant United States Attorney, Portland, OR., AMY M. GILEROUGH, Special Assistant United States Attorney, Seattle, WA.
OPINION AND ORDER
Plaintiff Shirley Fagundes seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) denying her application for disability insurance benefits under the Social Security Act (Act). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough and careful review of the record, the Court concludes the Commissioner's decision to deny benefits is AFFIRMED. ADMINISTRATIVE HISTORY
Fagundes filed her application for benefits on June 11, 1999. Tr. 16. She alleged she is disabled due to pain from an injury to both knees that occurred in 1997. Tr. 123. Her application was denied initially and upon reconsideration. Tr. 82-85, 88-91. Fagundes requested a hearing before an Administrative Law Judge (ALJ). Tr. 92. At a hearing held before an ALJ on June 13, 2000, Fagundes was represented by an attorney. Tr. 43. Fagundes and a vocational expert (VE) testified at the hearing. Tr. 50-63, 63-67.
On August 23, 2000, the ALJ issued a decision denying Fagundes's application. Tr. 13-31. Fagundes timely requested review of the ALJ's decision and submitted additional argument to the Appeals Council for the SSA. Tr. 11, 333-36. The ALJ's decision became the final decision of the Commissioner on January 6, 2001, when the Appeals Council denied Fagundes's request. Tr. 8-9. See Russell v. Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988)
FACTUAL BACKGROUND
Fagundes was born on January 30, 1944, and was 56 years old at the time of the hearing. She has an Associates Degree in Business. Tr. 17. Her past relevant work consists of employment as a funeral customer service representative, a family service counselor, a service representative, a secretary, an administrative assistant, and a farmer. Tr. 17, 124, 140.
Fagundes claims a disability onset date of September 24, 1998. Tr. 123. In his decision, the ALJ noted evidence in the record suggested Fagundes engaged in work after the alleged onset date, and that work met the definition of substantial gainful activity. Tr. 17-18. He also noted, however, this issue was not specifically addressed at the hearing. Id. He reasoned he did not want to delay proceedings to further explore this issue because he already had determined Fagundes is not disabled based on other factors. Id. Accordingly, the ALJ found Fagundes had not engaged in substantial gainful activity after the alleged onset date. Tr. 22.
In addition to knee pain, Fagundes alleged at the hearing that she has migraine headaches, temporomandibular joint dysfunction, and high blood pressure. She also asserted she possibly had experienced strokes. (Tr. 52-62)
The Court has reviewed Fagundes's medical records; the transcript of the June 13, 2000, hearing; and other evidence of record. Tr. 1-336. Fagundes does not challenge the ALJ's summary of the evidence, but only his interpretation and application of the evidence.
STANDARDS
A claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The initial burden of proof rests upon the claimant to establish his or her disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995) , cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991)
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "Substantial evidence means 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. The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Id. The Commissioner's decision must be upheld, however, even if "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40.
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 121 S.Ct. 628 (2000)
SUMMARY OF ALJ'S FINDINGS
The ALJ must engage in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520. Below is a summary of the five steps, which also are described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)
Step One. The Commissioner determines whether claimant is engaged in substantial gainful activity. If so, claimant is not disabled. If claimant is not working in a substantially gainful activity, the Commissioner proceeds to evaluate claimant's case under Step Two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether claimant has one or more severe impairments. If not, claimant is not disabled. If claimant has a severe impairment, the Commissioner proceeds to evaluate claimant's case under Step Three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether claimant's impairment "meets or equals" one of the impairments listed in the SSA regulations, 20 C.F.R. Part 404, Subpart P. Appendix 1. If so, claimant is disabled. If claimant's impairment does not meet or equal one listed in the regulations, the Commissioner's evaluation of claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520 (d).
Step Five. The Commissioner determines whether claimant is able to perform work he or she has done in the past. If so, claimant is not disabled. If claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(e).
Step Five. The Commissioner determines whether claimant is able to do any other work. If not, claimant is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show there are a significant number of jobs in the national economy that claimant can do. The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates a significant number of jobs exists in the national economy that claimant can do, claimant is not disabled. If the Commissioner does not meet this burden, claimant is disabled. 20 C.F.R. § 404.1520(f)(1). See also Tackett, 180 F.3d at 1099.
The burden of proof is on the claimant as to Steps One through Four.Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that claimant can perform. Id.
As noted above, the ALJ in this matter determined Fagundes had not engaged in substantial gainful activity since September 24, 1998, the alleged onset date of disability. Tr. 22. The ALJ also found Fagundes has an impairment or combination of impairments considered severe for the purpose of Step Two. Id. The ALJ, however, concluded Fagundes's impairments, alone or in combination, did not meet or medically equal the criteria for any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ found Fagundes retained the following residual functional capacity:
[T]he claimant is limited to a reduced range of light exertional work. Climbing, balancing, stooping, kneeling, crouching, and crawling are each limited to an occasional basis.
Tr. 23. The ALJ concluded such residual functional capacity, together with Fagundes's other vocational characteristics, did not prevent her from performing past relevant work. Tr. 22 23. In addition, he found Fagundes could perform past relevant work even if she were limited to sedentary work. Id. Thus, the ALJ found Fagundes was not under a "disability" as defined by the Act at any time prior to the date of his decision. Id.
In support of his finding that Fagundes was capable of at least some of her past relevant work, the ALJ credited the opinions of Fagundes's treating physician, James Billys, M.D., and examining physician, Donald Schwartz, M.D. Dr. Billys initially found Fagundes would be capable of light work, but he subsequently concurred with Dr. Schwartz's conclusion that Fagundes should be "prophylactically limited to sedentary work." Tr. 21, 287, 331. The ALJ found Fagundes's allegations of more serious functional limitations were not credible. Tr. 22.
DISCUSSION
Fagundes challenges the ALJ's finding as to her lack of credibility. Fagundes raises no other issue and does not specify how her testimony, if credited, would establish her disability within the framework of the five-step sequential process.
When considering a claimant's subjective symptom testimony, the ALJ is required to engage in the two-pronged analysis outlined in Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). As a threshold to the first prong, the claimant must satisfy the Cotton test by producing objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged. Id. (citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). If the claimant satisfies the Cotton test and there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's symptoms only by making "specific findings stating clear and convincing reasons for doing so." Smolen, 80 F.3d at 1283-84. The ALJ may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). Clear and convincing reasons for discrediting a claimant's testimony include consideration of inconsistencies between testimony and conduct, daily activities, type and dosage of medication, failure to seek treatment or to follow prescribed treatment, and reports from physicians. 20 C.F.R. § 404.1529. See also Bunnell, 947 F.2d at 346.
As noted above, the ALJ rejected Fagundes's testimony that she had functional limitations beyond the residual functional capacity set forth in the ALJ's decision. Specifically, the ALJ noted Fagundes's claim that she possibly suffered small strokes was not supported by medical evidence. Tr. 19. The ALJ cited the findings of Lawrence Cohen, M.D., who, based on test results, found it unlikely Fagundes had a stroke and concluded her "emotional state plays a great role in her symptoms and presentation." Tr. 19, 328. There is no other objective medical evidence in the record to support a finding that Fagundes suffered a stroke or that the strokelike symptoms alleged by Fagundes were caused by a medically-determinable impairment. Fagundes, therefore, did not meet the Cotton test with regard to these symptoms, and the ALJ properly discounted this part of her testimony in his disability determination.
With regard to Fagundes's allegations of disabling pain, the ALJ apparently accepted there was objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms. The ALJ, however, found the level of severity alleged by Fagundes was inconsistent with medical reports in the record. Tr. 19, 21. The ALJ noted Fagundes reported she took only Tylenol for pain and also reported doing light housework and driving her own car. Id. The ALJ also noted Fagundes's statement that her driving was limited ("I can't keep my legs in one position very long." Tr. 156) was contradicted by her testimony at hearing that she experienced her stroke-like symptoms over an hour-and-a-half period while driving from California to her home in Oregon on the day before. Id.
The Commissioner also cites the ALJ's finding of inconsistencies with regard to Fagundes's claimed work history as support for the ALJ's finding that Fagundes's symptom testimony was not fully credible. Tr. 17-18. Other testimony and statements by a claimant that appear less than candid are an acceptable basis for discrediting a claimant's symptom testimony even when those statements and testimony are not related directly to his or her symptoms. Smolen, 80 F.3d at 1284. It is not clear from his decision, however, that the ALJ relied on Fagundes's apparently inconsistent statements regarding her work history as a basis for discrediting her symptom testimony.
The reasons given by the ALJ for finding Fagundes's symptom testimony not fully credible are sufficiently clear and convincing under the criteria set forth in Smolen. Although the ALJ was not permitted to discredit Fagundes's symptom testimony based merely on objective medical findings, he could properly rely, at least in part, on information and observations provided by medical sources such as Dr. Billys and Dr. Schwartz. Smolen, 80 F.3d at 1284. Reports from these sources indicated Fagundes suffered limitations less severe than those asserted by her at the hearing.
For example, the ALJ noted Dr. Schwartz described Fagundes's subjective symptoms as "constant moderate pain in her right knee and constant slight-to-moderate pain in the left knee." Tr. 20, 287. Similarly, the ALJ cited Dr. Billys's report of June 4, 1999, which rated Fagundes's pain in her left knee as "intermittent slight to mild" and in her right knee as "intermittent slight to mild, increasing to moderate to severe with squatting, bending, and stooping activities, and when walking on uneven ground." Tr. 19-21, 230. These observations and findings contradict Fagundes's assertion that her knee pain prevents her from doing even sedentary work.
The fact that Fagundes was taking only Tylenol for pain medication is also a legitimate ground for the ALJ to discredit Fagundes's symptom testimony. Smolen, 80 F.3d at 1284. See also Bunnell, 947 at 346. When a claimant provides a good reason for not taking medication or seeking treatment, such as lack of insurance or money to cover medical costs, her symptom testimony may not be rejected for that conduct. Id. Here, however, Fagundes provided no explanation for failing to take stronger pain medication. Also, Fagundes reported taking prescription medication for other medical problems; thus, the record contains evidence to support an inference that she had the means to obtain stronger medication for her pain. Tr. 160.
Fagundes's admission that she did light housekeeping and drove her own car is not, in isolation, a convincing reason to reject her symptom testimony. While evidence regarding a claimant's daily activities can be used to discredit symptom testimony, the Act does not require a claimant to be completely incapacitated to receive benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Also, performance of home activities does not necessarily reflect on a claimant's capabilities in the workplace where it might not be possible to periodically rest or take medication. Id. Nevertheless, the ordinary techniques of credibility evaluation apply in SSA disability hearings, including consideration of evidence that rebuts or contradicts a claimant's pain testimony. Fair, 885 F.2d at 604 n. 5. Thus, when he determined whether to accept as true Fagundes's claim of disabling pain, the ALJ was permitted to take into account the apparent inconsistency between Fagundes's assertion that she could not keep her legs in one position for very long and her testimony that she took a lengthy car trip the day before the hearing.
The Court concludes the ALJ's reasons for discrediting Fagundes's symptom testimony are clear and convincing. As stated in Fair:
It may well be that a different judge, evaluating the same evidence, would have found [the claimant's] allegations of disabling pain credible. But, as we reiterate in nearly every case where we are called upon to review a denial of benefits, we are not triers of fact. Credibility determinations are the province of the ALJ. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988). Where, as here, the ALJ has made specific findings justifying a decision to disbelieve an allegation of excess pain, and those findings are supported by substantial evidence in the record, our role is not to second-guess that decision.
885 F.2d at 604. Here, the ALJ made specific findings regarding Fagundes's credibility that are supported by substantial evidence in the record. Fagundes claims no other error with regard to the ALJ's characterization of her functional limitations; therefore, the Court upholds the ALJ's determination that Fagundes is capable of performing at least her sedentary past relevant work.
CONCLUSION
Based on the foregoing, the Commissioner's decision that Fagundes was not disabled under the Act between the time of her alleged onset date and the hearing before the ALJ is AFFIRMED. Accordingly, Fagundes's Complaint is DISMISSED.