Opinion
Case No. CV 15-4412 SS
07-07-2016
TINA MESHELL HAYES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM DECISION AND ORDER
I.
INTRODUCTION
Plaintiff Tina Meshell Hayes ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying her application for Disability Insurance Benefits and Supplemental Security Income. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Commissioner is AFFIRMED.
II.
PROCEDURAL HISTORY
On June 11, 2012, Plaintiff filed applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI"). (Administrative Record ("AR") 10). In both applications, Plaintiff alleged a disability onset date of October 24, 2010. (Id.). The Agency denied Plaintiff's applications on November 8, 2012. (AR 67, 71). On January 3, 2013, Plaintiff filed a written request for a hearing before an Administrative Law Judge ("ALJ"). (AR 76). On July 25, 2013, Plaintiff appeared and testified at the hearing held before ALJ David J. Agatstein. (AR 23). Vocational expert Ms. Kristan V. Sagliocco and medical experts Glenn E. Griffin, PH.D., and Ronald Kendrick, M.D., also testified at the hearing. (AR 10). On September 9, 2013, the ALJ issued a decision denying benefits. (AR 9).
Plaintiff requested review of the ALJ's decision, which the Appeals Officer denied on April 10, 2015. (AR 1-4). Plaintiff filed this action on June 10, 2015. (Dkt. No. 1). \\ \\ \\ \\
III.
FACTUAL BACKGROUND
Plaintiff was born on August 20, 1964 and was forty-eight (48) years old at the time of the 2013 hearing. (AR 31). Plaintiff was forty-six (46) years old at the time of her alleged disability onset date. (AR 43). Plaintiff testified that she dropped out of high school in tenth grade and later obtained a G.E.D. (AR 31, 148). Plaintiff speaks and understands English. (AR 25). Plaintiff previously worked as a customer service representative at a grocery store and as a security guard. (AR 148). Plaintiff alleges that she suffers from pain in her neck, back, left leg, and right wrist. (AR 33, 43, 56). Plaintiff also alleges that she suffers from depression, but that her depression does not interfere with her ability to work. (AR 33). A. Medical Records
From October 25, 2010 to July 11, 2013, Plaintiff underwent a series of physical and psychiatric evaluations. (AR 268, 327). Plaintiff was diagnosed with pain stemming from her neck, back, and right wrist. (AR 178-246, 296-300, 326-334).
1. Physical Evaluations And Treatments
Specifically, between October 25, 2010 to February 29, 2012, Plaintiff visited Advanced Care Specialists for the evaluation and treatment of her back in connection with a worker's compensation claim. (AR 15, 251, 268). On March 24, 2011, physician Dr. Randy S. Higashi, D.C., examined Plaintiff. (AR 178). On April 16, 2011, Dr. Amjad Safvi, M.D., conducted an MRI of Plaintiff's lumbar spine and found mild degenerative disc disease. (AR 205-06).
According to John M. Caridi, M.D., Matthias Pumberger, M.D., and Alexander P. Hughes, M.D., cervical radiculopathy is "a syndrome of pain and/or sensorimotor deficits due to compression of a cervical nerve root." John M. Caridi, M.D., et al., Cervical Radiculopathy: A Review, NIH (Sept. 9, 2011), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3192889/.
On April 26, 2011, physician Dr. Ronald M. Schilling, M.D., diagnosed Plaintiff with myofascial "low back pain[, which] radiat[ed] to both legs with numbness and tingling to both feet." (AR 245-46). On November 8, 2011, Dr. Higashi prescribed medications for Plaintiff, including "Vicodin, Naproxen, Gabapentin and Prilosec[.]" (AR 191). On January 10, 2012, Dr. Edward Opoku, D.O., confirmed Dr. Higashi's diagnosis of radiculopathy and continued Plaintiff's treatment. (AR 191-92). On February 29, 2012, Dr. Higashi treated Plaintiff with LSO-Flexible to support her back. (AR 251).
According to Jacek Cholewicki, PH.D., Angela S. Lee, B.Sc., N. Peter Reeves, PH.D., and David C. Morrisette, PT, PH.D., an LSO or a Lumbar-sacral Orthosis is a "class I medical device[] that [is] used in conservative and postoperative management of low back pain." Jacek Cholewicki, PH.D., et al., Comparison of trunk stiffness provided by different design characteristics of lumbosacral orthoses, NIH (Dec. 9, 2009), http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2887766/.
From October 13, 2012 to July 11, 2013, Plaintiff visited Medpro Services, Inc., UC Family Medicine Center, and Beverly Tower Wilshire for the evaluation and treatment of her wrist and neck. (AR 296, 310-34). Specifically, on October 13, 2012, Plaintiff went to Medpro Services, Inc., where Dr. Curtis Kephart, M.D., diagnosed Plaintiff with "mild wrist arthritis secondary to a non-displaced fracture[, and] cervical spondylosis with myofascial neck pain[.]" (AR 296-300). Dr. Kephart concluded that Plaintiff "could lift and carry 50 pounds occasionally and 25 pounds frequently[,] . . . push and pull frequently[,] . . . sit, walk and stand for six hours out of an eight-hour day[ ]" without an assistive device. (AR 300). Dr. Kephart also concluded that "[t]here were no manipulative or postural limitations[]" and that "the right hand can do fine and gross manipulations frequently[.]" (Id.). Plaintiff "was treated with pain management, acupuncture and physical therapy." (AR 190).
On January 10, 2013, Plaintiff went to the U.C. Family Medical Center where Dr. Uche Chukwudi, M.D., x-rayed Plaintiff's right wrist and found a fracture of the distal navicular bone. (AR 311-12). In addition, Dr. Chukwudi found Plaintiff's cholesterol level to be out of range and poorly controlled. (AR 316-17). From March 22, 2013 to July 11, 2013, Plaintiff sought treatment at Beverly Tower Wilshire for her wrist and back. (AR 326-34). From March 22, 2013 to May 10, 2013, Dr. Siamak Dardashti, M.D., took an MRI of Plaintiff's back and found "broad based disc osteophyte, moderate left lateral recess and foraminal narrowing." (AR 329-31). On July 11, 2013, Dr. Tinoosh Zand, M.D., took an MRI of Plaintiff's right wrist and found "a chronic non[-]union fracture of the distal pole of the scaphoid without evidence for osteonecrosis." (AR 326-27). Dr. Zand also found "[p]robable chronic injury to the radial collateral ligament with abnormal signal at the radial styloid[.]" (Id.).
According to Atul Goel, osteophytes "are commonly referred to as bone spurs that form along the joint margin." Atul Goel, M.D., Is it necessary to resect osteophytes in degenerative spondylotic myelopathy, NIH (Jan.-June 2013) http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3872653/.
According to Marsh D, a non-union is "the cessation of both the periosteal and endosteal healing responses without bridging." Marsh D, Concepts of fracture union, delayed union, and nonunion., NIH, (Oct. 1998), http://www.ncbi.nlm.nih.gov/pubmed/9917623.
According to the National Institute of Arthritis and Musculoskeletal and Skin Diseases, an osteonecrosis "is a disease caused by reduced blood flow to bones in the joints." What is Osteonecrosis? Fast Facts: An Easy-to-Read Series of Publications for the Public, NIH, (Nov. 2014), http://www.niams.nih.gov/health_info/osteonecrosis/osteonecrosis_ff.asp. --------
2. Psychiatric Evaluation
On October 10, 2012, Plaintiff visited Medpro Services, Inc., where Dr. Nina Kapitanski, M.D., conducted a psychiatric evaluation and diagnosed Plaintiff with "a depressive disorder secondary to general medical condition." (AR 269-73). Dr. Kapitanski noted that Plaintiff "was well kept, well nourished and in no apparent distress." (AR 271). Plaintiff acknowledged to Dr. Kapitanski that she had a prior use of "street drugs" but stopped such usage in 1999. (AR 270). Dr. Kapitanski also found that Plaintiff had "no difficulty maintaining composure and even temperament." (Id.). Dr. Kapitanski then noted that Plaintiff "exhibited no evidence of auditory or visual hallucinations, delusions, or illusions[]" and that Plaintiff "denied current suicidal or homicidal ideations, plan, or intent." (AR 269). Dr. Kapitanski reported that Plaintiff worked as a security guard for six years. (AR 270).
In addition, Dr. Kapitanski "opined that [Plaintiff] had no past psychiatric history." (AR 272). Dr. Kapitanski also noted that "if [Plaintiff] received [psychiatric] treatment, her symptoms would significantly improve[.]" (Id.). Dr. Kapitanski continued that Plaintiff "had no difficulties in maintaining social functioning[]" and had "mild difficulties focusing and maintaining attention[] . . . concentration, persistence, and pace." (Id.). According to Dr. Kapitanski, Plaintiff "would have no difficulties performing work activities on a consistent basis without special or additional supervision[]" and "no limitations accepting instructions from supervisors and interacting with coworkers and with the public." (Id.). Furthermore, Dr. Kapitanski found that Plaintiff "was intellectually and psychologically capable of performing activities of daily living[]." (Id.). Dr. Kapitanski concluded that Plaintiff "would have no limitations performing simple and repetitive tasks and mild limitations performing detailed and complex tasks." (Id.). Dr. Kapitanski also concluded that Plaintiff "would have mild difficulties handling the usual stresses, changes and demands of gainful employment." (Id.). B. Plaintiff's Testimony
On July 25, 2013, Plaintiff testified about her background, including her education level, work history, and medical history. (AR 31-34). Plaintiff stated that she "dropped out [of high school] in 10th grade and [] went back to school in 2000 and got [her] high school diploma." (AR 31). Plaintiff stated that she was currently unemployed and that in the fifteen years before the date of her testimony, she was employed as a security guard and a grocery store employee. (AR 31-32). Plaintiff also testified that her previous employment ended because of "a fall down[,]" which precipitated pain in her neck and eventually in her back and right wrist. (AR 32-33).
Furthermore, Plaintiff stated that she did not have a mental impairment that would interfere with her ability to work. (AR 33). Plaintiff concluded by explaining that her right wrist became problematic after "couple of fall downs" notwithstanding an untreated non-union fracture that occurred twenty years ago. (AR 33-34).
IV.
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
(4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).
In between steps three and four, the ALJ must determine the claimant's residual functional capacity ("RFC"). (20 CFR 416.920(e)). To determine the claimant's RFC, the ALJ must consider all of the claimant's impairments, including impairments that are not severe. 20 CFR § 416.1545(a)(2).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. "Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry." Id. at 954. If, at step four, the claimant meets her burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's RFC, age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).
V.
THE ALJ'S DECISION
The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff "has not been under a disability, as defined in the Social Security Act, from October 24, 2010, through the date of this decision[.]" (AR 19). At step one, the ALJ found that Plaintiff "[had] not engaged in substantial gainful activity since October 24, 2010, the alleged onset date[.]" (AR 12).
At step two, the ALJ found that Plaintiff " [had] severe impairments including degenerative disc disease and osteoarthritis in the cervical and lumbar spine, osteoarthritis of the right wrist and a depressive disorder secondary to her general medical condition[.]" (Id.). The ALJ found, however, that Plaintiff's "medically determinable impairments considered singly and in combination, do not cause more than minimal limitation in the [Plaintiff's] ability to perform basic work activities." (AR 13).
At step three, the ALJ found that Plaintiff "[did] not have an impairment or combination of impairments that [met] or medically [equaled] one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1[.]" (Id.). Notwithstanding evidence of Plaintiff's physical impairments, the ALJ concluded that Plaintiff's physical impairments "[did] not approach the severity of an impairment listed in sections 1.00 or 12.04 of the Listings." (Id.).
Furthermore, the ALJ found that "[Plaintiff's] mental impairments, considered singly and in combination, [did] not meet or medically equal the criteria of listing 12.04." (Id.). In order to meet or medically equal the criteria of listing 12.04, "the mental impairments must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration." (Id.). The ALJ stated that Plaintiff had no restrictions in activities of daily living and moderate difficulties in social functioning. (Id.). With regard to concentration, persistence or pace, the ALJ found that Plaintiff had mild difficulties. (Id.). The ALJ also found that the Plaintiff "[had] experienced no episodes of decompensation, each of extended duration." (Id.). Thus, the ALJ concluded that Plaintiff's mental impairments did not meet or medically equal the criteria of listing 12.04. (AR 15-16).
Next, the ALJ found that "[Plaintiff had] the residual functional capacity to perform a range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a)." (AR 13-14). In assessing Plaintiff's RFC, the ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence" and opinion evidence. (Id.). The ALJ found that "[Plaintiff's] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the [plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms [were] not entirely credible[.]" (AR 15).
According to the ALJ, although Plaintiff's significant work history enhanced her credibility, the medical record and testimony of the medical experts undermined her credibility because Plaintiff was found to be "capable of performing work at the sedentary level." (AR 17). Specifically, Dr. Kephart and Dr. Kendrick each found that Plaintiff was able to "lift and carry 10 pounds occasionally and frequently." (AR 14, 17). In addition, Dr. Kephart and Dr. Kendrick found that Plaintiff was able to sit for six hours out of an eight-hour day, stand and walk for at least four hours out of an eight-hour day with normal breaks, "frequently, but not constantly use her right arm[] . . . [and] frequently, but not constantly interact with supervisors, co-workers and the public." (Id.).
Furthermore, regarding Plaintiff's mental health, the ALJ found that "when [Plaintiff] follows her prescribed medication, her symptoms are reduced." (AR 17). In addition, although Plaintiff was not receiving mental health treatment, Dr. Kapitanski testified that Plaintiff's symptoms would significantly improve if she did receive treatment. (Id.). Plaintiff also "admitted that she did not have a psychiatric/mental disorder that would interfere with work activity[]" and the record demonstrated that she did not have a history of mental health treatment. (Id.).
At step four, the ALJ determined that Plaintiff could not perform her past relevant work as a security guard, bus driver, bagger, home attendant, and food sales clerk. (AR 18). At step five, the ALJ considered Plaintiff's age, education, work experience, and RFC to determine whether jobs existed in significant numbers in the national economy that Plaintiff was able to perform. (Id.). Based on the Vocational Expert's testimony, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform, even though Plaintiff could not perform work at all exertional levels because of some nonexertional limitations. (AR 18-19). Potential available jobs included assembler, inspector, or lens inserter. (AR 18-19). The ALJ further determined that such jobs existed in significant numbers in both the local and national economy. (Id.).
VI.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)); see also Simon v. Colvin, 749 F.3d 1106, 1106 (9th Cir. 2014) (citing Smolen 80 F.3d at 1279).
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." (Id.) (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). To determine whether substantial evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).
VII.
DISCUSSION
Plaintiff contends that the ALJ erred by improperly finding Plaintiff's testimony less than credible. (See generally Memorandum in Support of Plaintiff's Complaint ("MSPC") at 2-7). The Court disagrees. For the reasons discussed below, the ALJ's decision is AFFIRMED. A. The ALJ Provided Clear And Convincing Reasons To Reject Plaintiff's Pain Testimony
1. Legal Standard For The Assessment Of Credibility
When assessing a claimant's credibility, the ALJ must engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vazquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). The ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. (Id.). If there is, the ALJ must make specific credibility findings to reject the testimony. (Id.). The ALJ may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).
In assessing the claimant's testimony, the ALJ may consider many factors, including:
(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and
other testimony by the claimant that appears less than candid;Smolen, 80 F.3d at 1284. Additionally, the ALJ may discredit the claimant's testimony where the claimant's normal activities can transfer to the work setting. Burch, 400 F.3d at 681 (noting that the ALJ may discredit the claimant's allegations by making specific findings related to daily activities involving skills that are transferrable to the workplace); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001).
(2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and
(3) the claimant's daily activities.
2. The ALJ Provided Clear and Convincing Reasons
The ALJ provided five specific grounds for rejecting Plaintiff's pain testimony: (1) the consulting psychiatrist's finding that Plaintiff was able to perform simple and repetitive tasks; (2) Plaintiff's lack of psychiatric treatment; (3) the psychologist medical expert's testimony of Plaintiff's limitations; (4) efficacy and lack of side effects from the use of medication; and (5) findings that Plaintiff was able to work at the sedentary level. (AR 17).
First, in rejecting Plaintiff's contentions regarding her mental limitations, the ALJ considered the fact that the psychiatrist, Dr. Kapitanski, found Plaintiff able to perform simple and repetitive tasks. (Id.). According to Dr. Kapitanski, Plaintiff "was able to perform simple, repetitive tasks; would have no difficulties performing work activities on a consistent basis without special or additional supervision and would have mild limitations completing a normal workday or workweek due to her mental condition." (Id.). Thus, the ALJ found that the medical evidence was inconsistent with Plaintiff's contention that she could not perform any work due to pain, to the extent the pain allegedly impacted her concentration or mental condition. (AR 15-17). See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that "[w]hile subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects").
Second, the ALJ took note of Plaintiff's lack of psychiatric treatment history and failure to undergo mental health treatment, again to reject Plaintiff's testimony regarding her mental impairments. (AR 17, 272). An ALJ may find that a plaintiff's failure to take prescribed medications or pursue treatment that would alleviate the alleged symptoms supports a finding that plaintiff is not credible. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007)(citing Fair, 885 F.2d at 603); Bunnell, 947 F.2d at 346; 20 CFR § 404.1530(a); 416.930(a) ("In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work."); 20 CFR § 404.1530(b), 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled.").
Here, Plaintiff claimed that she felt "depressed sometimes because of [her] neck, back, and leg." (AR 269). However, according to Dr. Kapitanski, despite Plaintiff's alleged mental health problem, Plaintiff did not manifest disabling symptoms and exhibited "no difficulty interacting with [people and] . . . maintaining composure and even temperament." (AR 272). Moreover, Plaintiff did not seek psychiatric treatment nor was there any evidence of prior psychiatric treatment. (AR 15). Accordingly, the ALJ properly used this finding to determine that Plaintiff's testimony was less than fully credible.
Third, the ALJ used testimony from psychologist medical expert, Dr. Glenn Griffin. (AR 16-17). Dr. Griffin testified that the Plaintiff had "moderate difficulty in social functioning[]" and "mild difficulty in concentration, persistence and pace[.]" (AR 36). In addition, Dr. Griffin observed in the medical record that Plaintiff would have mild problems with detail and complex instructions and mild limitation in interacting with the public and co-workers. (AR 37). Dr. Griffin's observations were clear and convincing reasons to reject Plaintiff's subjective testimony.
Although non-examining physicians were not given as much weight as a treating physician, an ALJ may consider the opinion of non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)); CFR § 404.1527(e). If an ALJ rejected an examining physician's opinion in favor of a non-examining physician's opinion, the ALJ "must provide clear and convincing reasons." See Lester, 81 F.3d at 830 (citation omitted). Here, although there were minor inconsistencies between Dr. Kapitanski's and Dr. Griffin's conclusions regarding Plaintiff's limitations, the ALJ did not compare and reject either of the mental health professional's conclusions.
Instead, the ALJ used Dr. Griffin's opinion, which favored Plaintiff by finding a more severe limitation, to support the ALJ's ultimate findings. (AR 17). For example, the ALJ noted that Dr. Griffin found Plaintiff to have "moderate limitations in maintaining social functioning and maintaining concentration, persistence and pace[]" despite Dr. Kapitanski's finding that Plaintiff "had no difficulties in maintaining social functioning[]" and had "mild difficulties focusing and maintaining attention[] . . . concentration, persistence, and pace." (AR 17, 272). Moreover, the ALJ used Dr. Griffin's opinion in conjunction with Dr. Kapitanski's finding, which formed a consensus that Plaintiff's "symptoms [did] not preclude her from performing simple, repetitive to complex work with some minor limitations." (AR 17). Therefore, the ALJ properly considered the opinion of Dr. Griffin regarding Plaintiff's mental health in determining that Plaintiff's testimony was less than fully credible.
Fourth, the ALJ noted that Plaintiff would likely improve her symptoms with treatment. (Id.). Specifically, Dr. Kapitanski reported that Plaintiff's mental health would "significantly improve" if Plaintiff underwent treatment. (AR 272). Again, Plaintiff's failure to seek treatment suggests that her symptoms were not as severe as she alleged. (Id.).
Lastly, in rejecting Plaintiff's subjective pain testimony, the ALJ noted that the orthopedic medical expert, Dr. Kendrick, found Plaintiff able to perform at the sedentary level. (AR 17). Specifically, the ALJ used Dr. Kendrick's opinion "that the [Plaintiff's] residual functional capacity is for light to sedentary work [because] [s]he can frequently use her right hand[,] . . . lift and carry 20 pounds occasionally and 10 pounds frequently[]" and "is limited to standing and walking for 4 hours out of an 8 hour day and sitting for 6 hours out of an 8 hour day with normal breaks." (AR 16-17, 35).
Despite Plaintiff's subjective pain testimony that her physical impairments undermine her ability to work, Dr. Kendrick's testimony and review of the medical evidence demonstrates that Plaintiff is able to work with limitations. Thus, the ALJ properly relied on Dr. Kendrick's testimony to reject Plaintiff's testimony regarding her orthopedic limitations. Moreover, the ALJ properly concluded that all of the medical evidence undermines Plaintiff's testimony regarding the intensity, persistence and effects of her symptoms. Accordingly, the ALJ provided clear and convincing reasons for rejecting Plaintiff's pain testimony. B. The ALJ's Findings Are Subject To A Harmless Error Standard
The ALJ's rejection of Plaintiff's testimony is subject to a harmless error standard. "The burden is on the party claiming error to demonstrate not only the error, but also that it affected his 'substantial rights,' which is to say, not merely his procedural rights." Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Therefore, in deciding whether to remand for error, a reviewing court must consider "an estimation of the likelihood that the result would have been different." (Id. at 1055).
ALJ errors in social security cases are harmless if they are "inconsequential to the ultimate nondisability determination." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). The court will set aside a denial of social security benefits "only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error." Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015). Even where the ALJ reaches a nondisability finding for invalid reasons, the court will not reverse the ALJ's decision if the error was harmless. See Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (reviewing adverse credibility finding for harmless error, citing Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). "[T]he relevant inquiry in this context is not whether the ALJ would have made a different decision absent any error, . . . it is whether the ALJ's decision remains legally valid, despite such error." (Id.); see also Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (court "must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record").
Even though courts apply the harmless error doctrine cautiously in social security cases, no "rigid rule" applies to the degree of certainty required to conclude that an ALJ's error was harmless. Marsh, 792 F.3d at 1173. Although remand is appropriate where "the circumstances of the case show a substantial likelihood of prejudice" from the error, remand is not appropriate where the error's harmlessness is clear. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2010).
Here, the ALJ's error, if any, is harmless because the error is related to the overall clarity, not substance, of the ALJ's opinion. The ALJ's decision may not have specifically labeled the reasons he rejected Plaintiff's testimony, but it does not reflect a failure to provide reasons, as Plaintiff contends. (MSPC at 2-7). The clarity issue in this case is "inconsequential to the ultimate nondisability determination" because the grounds for the ALJ's decision are present in the opinion, regardless of any alleged difficulty in identifying those grounds. Brown-Hunter, 806 F.3d at 492. (AR 17). Furthermore, the ALJ grounded his decision with substantial evidence from the medical record and medical expert testimony. (AR 17). As evident from the discussion of the ALJ's decision above, the reasons provided are supported by substantial evidence in the record and are legitimate grounds to reject Plaintiff's testimony.
In sum, the ALJ offered clear and convincing reasons supported by substantial evidence for finding Plaintiff's subjective testimony less than fully credible. Moreover, any error in the description of those reasons, if any, is harmless.
VIII.
CONCLUSION
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties. DATED: July 7, 2016
/S/_________
SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN LEXIS, WESTLAW OR OTHER LEGAL DATABASE.