Opinion
Civil No. 99-821-FR
October 31, 2000
Tim Wilborn, Portland, Oregon, Attorney for Plaintiff.
Kristine Olson, United States Attorney and William W. Youngman, Assistant United States Attorney, Portland, Oregon; Norman M. Barbosa, Special Assistant United States Attorney, Seattle, Washington; Attorneys for Defendant.
JUDGMNET
Based on the record,
The decision of the Commissioner is hereby AFFIRMED.
OPINION
The plaintiff, George Harris, brings this action pursuant to section 205(g) of the Social Security Act (the Act), as amended, 42 U.S.C. § 1383(c)(3), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying his application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act.
BACKGROUND
George Harris filed an application for a period of disability on May 21, 1996, with a protective filing date of April 11, 1996, alleging that the date of the onset of his disability was January 15, 1995. The application was denied initially and upon reconsideration. After a timely request for a hearing, Harris, represented by counsel, appeared and testified before Administrative Law Judge Riley J. Atkins (the ALJ) on October 1, 1997, as did a vocational expert.
On November 4, 1997, the ALJ issued a decision finding that Harris was not disabled within the meaning of the Act. The ALJ found that Harris has impairments which are severe, but which do not meet or equal any of the impairments listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ found that Harris has the residual functional capacity to perform a full range of light work, diminished only by his inability to interact appropriately with members of the public, but that he is able to interact more than occasionally and briefly with co-workers and supervisors, and to perform more than simple tasks in a routine work setting. Based upon the testimony of the vocational expert, the ALJ concluded that Harris is capable of making an adjustment to work which exists in significant numbers in the national economy.
The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
George Harris was 48 years old at the time of the hearing before the ALJ. He has a high school equivalency degree, but no past relevant work experience. Harris applied for SSI disability benefits shortly after being released from prison in 1996.
Harris reported chronic back pain as early as October of 1992 when he went to the Burnside Health Clinic to obtain pain medication. TR 320.
On December 13, 1995, Harris was seen by the medical staff at the Oregon Department of Corrections. He reported that his left shoulder was hit by a door. The following day, Harris saw J. Felder, M.D. Harris told Dr. Felder that prior to October of 1995, he had had little or no problems with his health. Harris reported to Dr. Felder that he had been in a bus accident on October 17, 1995, and that thereafter he was hit by a heavy steel door on October 30, 1995. Dr. Feldman reported that Harris suffered from:
1. Anxiety with somatization. 2. Probable strains of multiple joints secondary to his injuries. 3. Cephalgia most likely due to strain of the cervical muscles. . . . 4. Thrombose hemorrhoid in anal canal. 5. Probably mild congestive prostatitis. 6. No evidence of any significant joint disease going on at the present time.
TR 279. X-rays were largely normal. TR 278.
On April 19, 1996, Harris was examined by Robert A. Berselli, M.D. for the longstanding pain he had had in his low back and in both posterior thighs. Dr. Berselli was concerned that Harris might have a chronic central disc herniation and ordered an MRI. The MRI showed Grade 1 spondylolisthesis of L-5 and S-1 with degenerative disc disease. TR 298. Dr. Berselli discussed corrective surgery with Harris. TR 297.
On April 25, 1996, Harris was examined by Caleb Burns, Ph.D. Harris was referred to Dr. Burns for an evaluation by the North Portland Disability Services Office. After an extensive examination, Dr. Burns concluded that Harris suffered from signs of a mixed Bipolar Disorder and mild to moderate depression, but that these psychological problems would not necessarily preclude employment. TR 307.
In June of 1996, Harris went to the Burnside Health Clinic complaining of neck pain. TR 318. X-rays showed mild degenerative disc disease at C5-C7. TR 316.
On July 25, 1996, Harris returned to the Burnside Health Clinic reporting low back pain and depression. He requested a refill of his medications. TR 314-15.
On September 26, 1996, counsel for Harris requested that Dr. Berselli complete a form addressing whether Harris' condition met the requirements in the Listing of Impairments for Verterbrogenic Disorders. Dr. Berselli found that Harris' combined impairments were not medically equivalent to the severity of the conditions in the Listings of Impairments. TR 325.
On July 24, 1997, Harris was seen by Jeffrey Weih, P.A., L.Ac. at Kaiser Permanente for an evaluation of his chronic back pain. Weih recommended stretching and strengthening exercises, but noted that Harris resisted doing anything that would cause any pain. TR 349.
On August 20, 1997, Harris was seen by Peter M. Feldman, M.D. to determine if there was a vascular cause for Harris' complaints of pain in his legs. In a section titled "Personal," Dr. Feldman wrote that Harris was "currently disabled because of his back problem." TR 350. Dr. Feldman concluded that Harris' complaints of back pain were not related to vascular disease, but that Harris suffered from intermittent claudication. Dr. Feldman recommended conservative therapy including an exercise program. TR 350-51. Claudication is defined as a complex of symptoms characterized by the absence of pain or discomfort in a limb when at rest, the commencement of pain, tension and weakness, after walking is begun, intensification of the condition until walking becomes impossible, and the disappearance of the symptoms after a period of rest. Dorland's Illustrated Medical Dictionary, p. 325.
In October of 1997, Harris was seen by Earl Kono, D.O. for back pain. Dr. Kono prescribed Tylenol III.
In December of 1997, Harris was seen by Kevin S. Brown, M.D. for moderate to moderately severe pain in multiple locations. Dr. Brown declined to prescribe pain medication, noting that Harris was being monitored for substance abuse and drug seeking behavior and that pain killers were not medically indicated. TR 83.
At the hearing before the ALJ on October 1, 1997, Harris testified that he has had problems with his back for as long as he could remember; that he had pain in his knees; side effects of dizziness, constant drowsiness, and headaches from numerous medications; migraine headaches; and pain in his elbow. Harris testified that he felt overwhelmed and unable to cope on a daily basis.
At the hearing, the ALJ posed a hypothetical to the vocational expert incorporating limitations as follows: limited to light work; difficulty interacting with the general public; somewhat limited in interacting with supervisors and co-workers; cannot understand detailed instructions or perform complex duties; and limited to short, simple tasks and routines. In response to this vocational hypothetical, the vocational expert opined that such a person could perform the packing, sorting, and assembly jobs such as handpacker, electronics worker, agricultural produce sorter, hardware assembler, and small products assembler. TR 139.
On August 20, 1998, after the decision of the ALJ, the medical questionnaire of Dr. Berselli dated August 12, 1998 was submitted to the Appeals Council.
CONTENTIONS OF THE PARTIES
George Harris contends that the ALJ failed to fully and fairly develop the record, and that this court should remand to the Commissioner with instructions to consider the report of Dr. Berselli which was submitted to the Appeals Council. Harris contends that the ALJ improperly rejected his testimony regarding pain and failed to consider a psychological basis for his reports of pain. Finally, Harris contends that the ALJ failed to provide clear and convincing reasons for rejecting the opinion of his treating physician, Dr. Feldman, and improperly ignored the assessment of the state agency doctor, Dick Wimmers, Ph.D.
The Commissioner contends that Harris' argument regarding the development of the record by the ALJ is precluded by the rule of administrative waiver, and that the report of Dr. Berselli does not merit remand. The Commissioner contends that there is substantial evidence in the record to support the decision of the Commissioner; that the Commissioner applied the proper standards for the evaluation of evidence; and that the decision of the Commissioner should be affirmed.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must show that (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment in the national economy. 42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520. The burden of proof is on the claimant as to steps one through four. As to step five, the burden shifts to the Commissioner. If the claimant is found to be disabled or not disabled at any step in the sequence, there is no need to consider the subsequent steps. Id.
At the first step, the claimant must prove that he has not engaged in substantial gainful activity after the alleged onset of disability. At the second step, the claimant must prove that he has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If, at the third step, the claimant proves that his impairment or combination of impairments meets or equals a listed impairment, he is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he must proceed to the fourth step, where he must prove that he is unable to perform his past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the claimant can perform. If the Commissioner establishes that the claimant can perform other work, then he is found "not disabled" and is not entitled to disability benefits. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The findings of the Commissioner are conclusive [ 42 U.S.C. § 405 (g)], and the decision of the Commissioner to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. _Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but is "less than a preponderance," Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997).
In evaluating the evidence, this court looks at the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. Richardson, 402 U.S. at 400; Tackett, 180 F.3d at 1098.
ANALYSIS The Record and the Report of Dr. Berselli
Harris contends that the regulations mandate that the ALJ request medical source statements from the claimant's medical sources. Harris further contends that the court should remand to the Commissioner because the Appeals Council failed to consider the medical questionnaire dated August 12, 1998 from Dr. Berselli.
The Commissioner contends that Harris has waived his right to seek reversal of the Appeals Council's decision because he failed to notify the ALJ or the Appeals Council that any medical source statements were missing from the record.
In Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), the court explained that "appellants must raise issues at their administrative hearings in order to preserve them on appeal." Harris was represented before the ALJ by an attorney with extensive experience in Social Security litigation. Through his counsel, Harris did not object to the state of the record or the absence of any medical source statements at any point during the administrative review of this case. This court concludes that Harris has waived any argument that the ALJ failed to properly develop the record. In addition, there is no evidence in this record to support his claim that the administrative record was deficient in any significant manner.
On July 14, 1998, eight months after the decision of the ALJ, counsel for Harris sent a letter to Dr. Berselli with a series of yes or no questions regarding Harris' impairments. On August 12, 1998, Dr. Berselli returned the letter with his responses. Counsel for Harris then forwarded Dr. Berselli's letter to the Appeals Council for its consideration. On April 10, 1999, the Appeals Council declined to grant the request of Harris for review.
Dr. Berselli had evaluated Harris on April 19, 1996 and had referred Harris at that time for an MRI. TR 295. On September 26, 1996, Dr. Berselli responded to an inquiry from counsel for Harris by stating that Harris' combined impairments do not meet or equal the Listing of Impairments for Verterbrogenic Disorders. TR 323. On August 12, 1998, Dr. Berselli responded that Harris has continuously been unable to work for the past thirty years; Dr. Berselli relied on Harris' reports of pain and other symptoms to support his conclusions as to treatment; and he indicates that the absence of muscle spasm, sensory loss, motor loss, or muscle weakness causes him to disbelieve Harris' allegations of pain and other complaints. See Exhibit A to Plaintiff's Opening Brief. The court finds that Dr. Berselli's report does not merit remand to the Commissioner in light of the substantial evidence in the record to support the decision of the Commissioner.
Harris' Testimony and Psychological Basis for Pain
Where a claimant produces "objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged,'" Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (quoting _Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)), the ALJ may reject the claimant's testimony about the severity of the alleged pain or other symptoms "only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281.
The ALJ explained, in part:
The claimant's statements concerning his impairments and their impact on his ability to work are not entirely credible in light of his own description of his activities and life style, discrepancies between the claimant's assertions and information contained in the documentary reports, the claimant's demeanor at the hearing, and the reports of the treating and examining practitioners. . . . I particularly note, in this regard, the multiple instances of the claimant's behavior which suggest the possibility more of secondary financial gain than of bona fide disability.
For instance, on May 21, 1996 when seen by a claims representative as part of his application for Supplemental Security Income payments, the claims representative noted the claimant complained of back, shoulder, neck, and arm problems, including pain, and appeared to walk bent over with a grim face. The claims representative believed the claimant behaved in a manner which would call attention to his back pain. When the claimant left the claim[s] representative's direct view, however, she continued to watch him and observed the claimant's pain symptoms immediately appeared to cease. . . .
In this regard, I observed the claimant and found no objective problems with his ambulation. Rather, his behavior appeared to be quite jovial and pleasant. The claimant looked younger than his chronological age and, at the hearing, behaved in a manner which was anything but "immobile," as he once described himself. . . .
I also note the claimant's testimony about the plethora of his physical problems substantially lacks support in the clinical evidence of record. For example, although the claimant testified he was born with back problems and has physically been limited ever since he can remember, when he was still incarcerated on December 14, 1995, he stated he had been doing very well with no problems until the occurrence of then-recent injuries in a motor vehicle accident and, later, the affects of being struck by a heavy steel door. . . . Further, the claimant alleged injuries on these two occasions while in prison and brought unsuccessful civil actions before a court. These claims demonstrate a pattern on the claimant's part to allege physical injury for secondary financial gain and reflect poorly on claimant's credibility generally.
I further note on direct questioning by counsel the claimant's denial of any use of street drugs such as cocaine and heroin for at least two years. However, after I questioned him the claimant conceded he had just completed a drug treatment program on August 7, 1997, after a relapse only six or seven months before. The claimant explained he had last used street drugs at that time after he "had a revelation" he should stop all but prescriptive drugs for his "pain". . . . Further, when asked how he supported himself when not in prison without actually working since his youth, the claimant responded "some say crime pays". I also note in this regard the claimant's statements to Dr. Burns [that] he has several convictions for cocaine "possession". . . .
Further, despite testimony he "doesn't like people," has "no respect for authority," and is generally an unpleasant person, the claimant's testimony actually established he is quite acceptably sociable. The claimant testified, for instance, he maintained a common law relationship for 20 years until 1995, and still has a decent relationship with his 30 year old son. I note further the claimant could not have been more pleasant, friendly, and outgoing at the hearing. He laughed and joked repeatedly throughout the proceedings. He often interacted with me with his good-natured humor, and he repeatedly interspersed his pain testimony with smiles and occasional laughter such as when he described his alleged limitations. This made his exaggerated testimony all the more unbelievable. The claimant, however, testified correctly so far as the record is concerned when he reported no physician has ever said that he should not work at all.
TR 136-38.
Harris presented objective evidence of an impairment that could reasonably be expected to produce some level of symptoms including pain. The ALJ evaluated the medical evidence and offered clear and convincing reasons for discrediting the testimony of Harris regarding the severity of his symptoms. The reasons stated by the ALJ are specific, reasonable, and supported by substantial evidence in the record.
Testimony of Treating Physician and State Agency Doctor
Harris contends that the ALJ failed to provide the required clear and convincing reasons for rejecting the opinion of Dr. Feldman at TR 350 that he is disabled by his back pain.
Dr. Feldman noted in a section of his consultation report dated August 20, 1997 entitled "Personal" that Harris "is currently disabled because of his back problems." TR 350. This appears to be a note of Harris' report to Dr. Feldman of his condition recorded by Dr. Feldman. Dr. Feldman concludes in this report that Harris suffered from "intermittent claudication," and Dr. Feldman recommended a "conservative therapy . . . including exercise program, the avoidance of nicotine, serum lipid management and perhaps the addition of Trental." TR 350-51. There is no indication in the report that the note by Dr. Feldman that Harris "is currently disabled because of his back problems" is a medical opinion offered by Dr. Feldman.
The court has reviewed the ALJ's hypothetical question to the state agency's vocational expert. The court concludes that the ALJ adequately accounted for the opinion of the state agency's vocational expert in reaching his decision. TR 251.
CONCLUSION
There is substantial evidence in the record as a whole to support the decision of the Commissioner that Harris retains the residual functional capacity to perform work which exists in significant numbers in the national economy. The decision of the Commissioner is not based on legal error. The decision of the Commissioner is affirmed.
ORDER
IT IS HEREBY ORDERED that there is substantial evidence in the record as a whole to support the decision of the Commissioner, and therefore the decision of the Commissioner is affirmed.