Opinion
Civil No. 00-3123-KI
October 9, 2001
Robert W. Boyer, 980 S.W. 6th Street, Suite 28, Grants Pass, OR 97526; Attorneys for Plaintiff.
Michael W. Mosman, United States Attorney, Craig J. Casey, Assistant United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204-2902; Richard E. Buckley, Special Assistant United States Attorney, 701 Fifth Avenue, Suite 2900 MS/901, Seattle, WA 98104-7075; Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Lora D. Holmes brings this action for judicial review of a final decision of defendant Commissioner denying her concurrent applications for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 401-433, and supplemental security income ("SSI") payments under Title XVI of the Act, 42 U.S.C. § 1381-1383f . This court has jurisdiction under 42 U.S.C. § 405(g) and 1383(c)(3). The Commissioner's decision is affirmed.
BACKGROUND
Holmes filed applications for DIB and SSI on May 15, 1997 (protective filing date). The applications were denied initially and upon reconsideration. After a timely request, Holmes received a hearing before an Administrative Law Judge ("ALJ") on April 22, 1999.
On September 22, 1999, the ALJ issued a decision finding Holmes was not disabled within the meaning of the Act and denying her applications. This decision became the final decision of the Commissioner when the Appeals Council denied Holmes' request for review on September 14, 2000. 20 C.F.R. § 404.981, 416.1481; Russell v. Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988).
LEGAL STANDARDS
A person may be eligible for DIB if he or she has insured status under the Act and suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1). Persons who are age 65 or over, blind, or disabled, and who are without insured status under the Act, may be eligible for SSI. 42 U.S.C. § 1382(a).
Holmes had insured status through June 30, 1997. See 42 U.S.C. § 423(c)(1), 20 C.F.R. § 404.110, 404.130.
A claimant is disabled for purposes of the Act if he or she is unable to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423 (d)(1)(A), 1382c(a)(3)(A). A person can be disabled for these purposes only if his or her impairment is "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for DIB or SSI payments because he or she is disabled. 20 C.F.R. § 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999) (DIB); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989) (SSI).
First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity". If the claimant is so engaged, disability benefits are denied. If not, the Commissioner proceeds to step two and determines whether the claimant has a medical impairment that meets the regulatory definition of "severe". 20 C.F.R. § 404.1520(a), 416.920(a). If the claimant does not, disability benefits are denied. 20 C.F.R. § 404.1520(c), 416.920(c).
If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to any of a number of impairments that the Commissioner acknowledges to be so severe they are presumed to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d), 416.920(d). These are listed in 20 C.F.R. Part 404, Subpart P Appendix 1. If the claimant's condition meets or equals one in the regulatory listing, the claimant is presumed conclusively to be disabled.
If the impairment is not one that is presumed to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant has performed in the past. If the claimant is able to perform his or her former work, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. § 404.1520(e), 416.920(e).
If the claimant is unable to perform work which he or she has performed in the past, the Commissioner proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his or her age, education, and work experience. The claimant is entitled to disability benefits if he or she is not able to perform any other work. 20 C.F.R. § 404.1520(f), 416.920(f).
The claimant bears the initial burden of establishing his disability. In the five-step framework used by the Commissioner, the claimant has the burden of proof as to steps one through four. In step five, the burden shifts to the Commissioner to show there are a significant number of jobs in the national economy that the claimant can perform given his or her residual functional capacity and age, education and work experience. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996) (DIB); Andrews v. Shalala, 53 F.3d 1035, 1040 (9th Cir. 1995) (SSI). If the Commissioner cannot meet this burden, the claimant is disabled for the purposes of the Act. 20 C.F.R. § 404.1520(f)(1), 416.920(f)(1).
The Commissioner also has an affirmative duty to develop the record. 20 C.F.R. § 404.1512(d), 416.912(d); DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991). To that extent, the proceedings are not adversarial, and the Commissioner shares the burden of proof at all stages. Id.; Tackett v. Apfel, 180 F.3d at 1098 n. 3.
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d at 1098. Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion; it is more than a mere scintilla but less than a preponderance of the evidence. Tackett, 180 F.3d at 1098.
The court must weigh all of the evidence, whether it supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The Commissioner, not the reviewing court, must resolve conflicts in the evidence, and his decision must be upheld even if the evidence would support either outcome. Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1998). Even if the Commissioner's decision is supported by substantial evidence, it must be set aside if the proper legal standards were not applied in weighing the evidence and in making the decision. Id.
FACTS
I. Plaintiff's History
Holmes was born February 27, 1963. She was 36 years old when the ALJ issued his decision. She went to high school through the 11th grade and received a high school equivalency diploma. Holmes had work experience as a waitress and as a restaurant manager. She worked for a short time as a winery bottler. The ALJ found Holmes had not engaged in substantial work activity since the alleged onset of her disability in 1992.
Holmes testified that she had been physically unable to perform the requirements of the bottling job. Specifically, she said she was unable to stand long enough and could not hold objects well enough. Tr. 60.
"Tr." refers to the certified copy of the administrative transcript submitted by defendant pursuant to 42 U.S.C. § 405(g).
Holmes testified that her symptoms were mostly in the back of her neck and between her shoulder blades. She said her right hip was constantly out of place. She said she had trouble holding objects and dropped things often. Holmes claimed indigestion and abdominal cramping constantly, especially when lying on her back. Holmes said she had pain and cramping in her legs and feet. She said the cramps in her feet became so bad that her big toe sometimes separated from the rest of her foot "three or four inches." She testified that a podiatrist had recommended arch supports, but that muscle relaxers and anti-inflammatory injections were the only things that had helped. Tr. 61-62.
Holmes testified that her primary care doctor was Kathy Mechling, M.D. of Siskiyou Community Health Center. Tr. 63. She said the main diagnosis for her complaints was fibromyalgia. Dr. Mechling referred her to Dr. Kho, a neurologist. Holmes saw Dr. Kho several times, but stopped because she could not afford to pay him for further treatment. Tr. 78.
Holmes testified that she was taking a number of prescription medications including Rantadine (Zantac) for indigestion, Lodine, a nonsteroidal anti-inflammatory drug (NSAID), for pain and Flexeril, a muscle relaxant, for muscle spasms and cramps. She said she took Flexeril several times a day, but said "it knocks me out cold". Holmes said she had been receiving injections because oral medications had not been effective. Then she testified that she did not take Flexeril very often because it caused her to fall into deep sleep for 10 to 14 hours at a time. Tr. 64-65. In a questionnaire from August 1997, Holmes reported the side effects of Flexeril, Soma (another muscle relaxant) and Baclofen (another muscle relaxant) were that she felt "fuzzy", they made her sleep 10 to 12 hours and gave her nausea and headache. 149-152. Holmes testified that Lodine had no side effects. She said she takes four to six over-the-counter Tylenol tablets daily. Tr. 64-65.
Holmes said her other symptoms caused depression. She testified that Dr. Kho had prescribed Effexor, an anti-depressant, and tried "talk therapy". Tr. 70. She said she had quit taking Effexor because she felt it was making her act differently and she was afraid she might become chemically dependent. Tr. 64. She said she had never been to a psychologist or psychiatrist. Tr. 79.
Holmes testified that she often missed appointments with her doctors and her lawyer. She said she has good intentions, but skips the appointments to avoid thinking about her problems. She testified that she neglected to fill prescriptions for the same reason, and because taking medications made her feel like a guinea pig. Tr. 75, 79.
Holmes testified that her life had changed since the onset of her disability. She said she had been active in hobbies including cooking, gardening, crochet, sewing, writing, going to movies, dancing, swimming, hiking, biking and quilting. Tr. 67, 150. She testified that now, at most, she walks occasionally. She said she cannot sit long enough to watch a movie. She cannot cook anymore; she plans meals and supervises while others cook. Tr. 67. In an August 1997 Activities of Daily Living questionnaire, Holmes wrote that her hobbies were limited to watching her children grow, watching the seasons change, worrying and praying. Tr. 143-48. She wrote that on an average day, she did nothing but worry about others and hope their day was going well. Tr. 151.
Holmes testified that she now needs help buttoning her clothes, shaving her legs and getting in and out of the bathtub. She said she needs help washing and combing her hair because she cannot raise her arms. Tr. 75. She said her condition prevents her from lifting her small children or holding them in her lap. Tr. 67, 143-48. She said she reclines, sleeps and naps almost all day every day. Tr. 76.
Holmes testified that she stays home all the time. She said she is rarely able to go out to visit, but sometimes accompanies her husband grocery shopping. She said she cannot do household chores. She said she cannot do the dishes; she can only run the dishwater. Holmes said if she tried to do more, she would become incapacitated by pain and unable to move for three to four days afterwards. She said her children now must do all the household chores. Holmes testified that if she tried to do any work with her dominant right hand, a chain reaction beginning with tight muscles in her forearm would cause muscle tightness in her back, where "the muscles pull so tight that it literally pulls the bones out of place." Tr. 67.
She testified at the hearing that she gave up her driver's license three years before. She said she could no longer look over her shoulder due to muscle tightness. Holmes said she was also concerned that side effects of medications made driving unsafe. Tr. 71.
Holmes said she could stand for about 15 to 20 minutes, then her knees would lock up. Tr. 68. If she were to stand longer, she would get cramps and a tension headache. She limited her walking ability to 10 to 15 minutes, but on some days, she could not walk at all. She said that for three weeks in every month, she is able only to hobble short distances. Tr. 69. She testified she was able to sit for approximately 10 to 20 minutes if she could change positions to keep her legs from falling asleep. She said that she was unable to sit or ride in vehicles for any length of time. Tr. 61. Holmes testified that she could lift no more than five pounds. She said if she tried to do more, she would get severe tightness with sharp, shooting pain under the rib cage. Tr. 70. She testified she could not do even sedentary work for eight hours because she could not stay out of bed for eight hours. Tr. 75.
In a Pain and Fatigue questionnaire from August 1997, Holmes wrote that she first experienced fatigue while working as a waitress. She wrote that she must now take two or more naps of three to four hours every day. She wrote she can perform activities for one or two hours in the morning before she needs rest. Tr. 149-152.
Holmes wrote that she has difficulty sleeping. She said her medications make her sleep 10 to 14 hours during the day, but at night she wakes up every 2 hours or so and cannot make herself go back to sleep. During the day, she said, she sleeps from mid morning to late afternoon, wakes to eat dinner and then goes to bed at 7:30 to 8:00 p.m. Tr. 151.
In August 1997, she said she could walk for 15 to 30 minutes, stand 5 to 10 minutes, sit 10 to 15 minutes and bend occasionally. She said she could not lift anything, even her purse. She said she could reach occasionally with extreme pain. She wrote that her mental disposition was fine emotionally, except for a feeling of dependence on others. Tr. 149-152.
II. Medical Records
Holmes sought treatment for a job injury in the 1980's. Tr. 229. On March 17, 1995, Holmes sought treatment at Siskiyou Community Health Clinic for a vaginal infection and postpartum check up 15 months after giving birth to her fourth child. Tr. 229, 281.
In September 1995, Holmes began regular prenatal care check ups from the Siskiyou clinic. On February 7, 1996, she sprained her ankle walking down some stairs. X-rays were negative for fractures and her pregnancy was not affected. Tr. 271-72, 288-89. Holmes had her last prenatal care visit on April 4, 1996. Tr. 267-277. She gave birth to her fifth child at Three Rivers Hospital on April 8, 1996. Tr. 267.
On May 13, 1996, Holmes returned to the Siskiyou clinic for examination of a suspicious skin lesion on her upper anterior chest. On May 16, 1996, she saw Dr. Mechling for a biopsy of her lesions. On May 23, 1996, Dr. Mechling told her she had basal cell carcinoma at multiple sites. She referred Holmes to Richard Rasmussen, M.D., a specialist in skin diseases, for removal of the lesions. Tr. 265-66.
In June and July 1996, Holmes returned to the Siskiyou clinic for postpartum check ups and to follow up the procedure to remove lesion. Tr. 229, 262-64. In August 1996, she was treated for eye pain, which was diagnosed as conjunctivitis. Tr. 261-62.
Between November 22 and December 11, 1996, Holmes received treatment from Valley Chiropractic Center. She reported a low back ache that kept her from sleeping. She also reported difficulty turning her head. On December 6, 1996, she said she had been feeling great, but re-injured her low back when she suddenly turned to answer the phone. On December 11, 1996, Holmes reported riding in a truck to go shopping. This reportedly resulted in a back ache that lasted about 5 hours. Tr. 223-26.
On February 6, 1997, Holmes reported to Dr. Mechling for a biopsy of a lesion on her thigh. Holmes also said she had some back pain, but that complaint was put off to another appointment. On February 13, 1997, Dr. Mechling told Holmes the biopsy was benign. Dr. Mechling agreed to give Holmes an excuse from job searching for one month; she deferred further disability determination pending evaluation by a specialist. Tr. 258-260.
On February 21, 1997, Holmes reported for the first time that she had a long history of back pain when living in San Diego. Holmes said the back pain had resolved for several years before suddenly returning in November 1996. She told Dr. Mechling her pain was mostly in the sacrum with secondary pain in the left shoulder and at the base of the cervical spine. Holmes said the pain made it difficult to move, but Dr. Mechling noted Holmes could move her neck easily during the consultation. Dr. Mechling prescribed Flexeril and Naprosyn and recommended range of motion exercises. Tr. 257.
On March 13, 1997, Holmes called the clinic to report her back pain was much worse. Dr. Mechling referred Holmes to see Dr. Yung Kho for a neurological evaluation. Tr. 256.
On March 25, 1997, Dr. Kho examined Holmes for her complaint of back pain. She reported a history of back pain for 16 years, increased since the birth of her fifth child. She also reported restless leg symptoms, headaches and locking of the right hip. She said she had no history of irritable bowel. She told Dr. Kho she did a lot of sewing and writing and got cramps in her hands when doing these kinds of activities. Dr. Kho's impression was fibromyalgia with chronic mechanical low back pain from obesity and disuse. He prescribed Lodine for back pain, Trazadone for restless leg symptoms and sleep difficulties, and Flexeril for muscle spasms. Tr. 229, 314-17, 234.
On March 27, 1997, Holmes reported to Dr. Mechling that the Lodine prescription had really helped her and that she was happy with the results. Holmes said she did not like the side effects of Flexeril and had not noticed any improvement from taking Trazodone. Holmes said Dr. Kho had told her to walk more and to do light exercises and stretching. Dr. Mechling's impression was that Holmes' back pain was much improved. Tr. 255.
On August 14, 1997, Dr. Kho reported his impression that Holmes had the clinical presentation of fibromyalgia, with waxing and waning pain, restless legs and trigger points. He said she was being treated with Trazodone and Flexeril. He wrote:
From a neurological standpoint, she should be able to be released for light work as defined in the Dictionary of Occupational Titles with a 20 lb. weight lift restriction and no repetitive pushing or pulling with the upper extremities. Tr. 313.
On August 16, 1997, Holmes reported increased frequency of back pain and abdominal pain with bloating. She said her abdominal symptoms were made worse by pain medication, but relieved by over-the-counter Zantac. Dr. Mechling noted the abdominal symptoms were consistent with gastritis, ulcer disease or hiatal hernia. She prescribed a trial of Baclofen in place of the Flexeril that Holmes did not tolerate. Tr. 252.
On August 21, 1997, Dr. Rasmussen wrote to a state agency reporting his removal of a basal cell carcinoma lesion from Holmes' shoulder. He opined that the condition he treated was not disabling and imposed no restrictions on her ability to do any work related activity. Tr. 305-307.
On September 11, 1997, Holmes told Dr. Mechling that Baclofen was "helping her back a lot and not wiping her out." She was not getting relief for her abdominal symptoms. Dr. Mechling prescribed Ranitidine for her stomach pain. Tr. 251.
On September 30, 1997, Charles Spray, M.D., an internist for Disability Determination Services (DDS), prepared a residual functional capacity assessment ("RFC") based on Holmes' medical records. His conclusions were reviewed and affirmed by a DDS reviewing physician on February 8, 1998. Dr. Spray opined that Holmes could lift 20 pounds occasionally and 10 pounds frequently. He said she could stand and/or walk about six hours in an eight hour workday, with normal breaks. He thought Holmes could sit for six hours with normal breaks. He limited her RFC by precluding repetitive pushing or pulling with the upper extremities. Dr. Spray noted that the criteria for fibromyalgia had been established. They noted that Holmes was five foot six inches tall and weighed 242 pounds, which placed her approximately 30 pounds under the listing for obesity. Tr. 227-234.
DDS is a federally-funded state agency that makes eligibility determinations on behalf and under the supervision of the Social Security Administration pursuant to 42 U.S.C. § 421(a) and 20 C.F.R. § 404.1503 and 416.903.
On September 29, 1997, Paul Rethinger, Ph.D., a DDS psychologist, prepared a Psychiatric Review Technique Form. Dr. Rethinger concluded Holmes had no medically determinable psychological condition. His analysis was also reviewed and affirmed. Tr. 235-36.
On October 2, 1997, Holmes complained to Dr. Mechling of foot pain, which she said she had not experienced before. She reported that it was so severe that she had to remain in bed for a week and could not bear weight. She also complained of carpal tunnel syndrome. Holmes told Dr. Mechling her abdominal pain was much better on Ranitidine. Dr. Mechling noted that a test for helicobacter pylori had been negative. Dr. Mechling gave Holmes a heel lift to use for foot pain and wrist splints for carpal tunnel symptoms. Tr. 249.
On November 17, 1997, Holmes told Dr. Mechling she had not improved. Dr. Mechling referred Holmes to a podiatrist and prescribed Prozac for situational stress. Tr. 247. On December 8, 1997, Holmes returned to Dr. Mechling complaining of fibromyalgia with foot pain. Her situational stress had improved, and she had stopped taking Prozac after three days. Tr. 246.
On December 15, 1997, Holmes began podiatry treatment with Mark Simchuk, D.P.M. This continued until June 1998. Tr. 318-321. On February 20, 1998, Holmes underwent an evaluation at the Siskiyou clinic for the insertion of an IUD. The insertion was performed on March 26, 1998.
In April 1998, she returned for a post-insertion check up. She reported a history of transient abdominal pain but had no current complaints. During these visits, Holmes did not report back, foot or hip pain. Tr. 239-243.
On April 28, 1998, Holmes told Dr. Kho she was getting relief from Lodine and tolerating it well. She had not acute symptoms. Dr. Kho gave her Serzone for mild to moderate depression. Tr. 312.
On May 6, 1998, Cory Fawcett, M.D., wrote to Dr. Mechling proposing to perform an upper endoscopy to determine whether Holmes had peptic ulcer disease. Tr. 296. On May 21, 1998, Dr. Fawcett performed the endoscopy and observed that the duodenum, pylorus, gastroesophagal junction and esophagus looked normal with no signs of ulcers or hiatal hernia. He found some diffuse gastritis in the antrum and stomach. The next day, biopsy results from Holmes' stomach mucosa were negative for helicobacter pylori. Tr. 297-301.
On May 14, 1998, Dr. Rasmussen found no recurrence of basal cell carcinoma. He found scattered Actinic Keratoses which he treated with liquid nitrogen. Tr. 302.
On June 8, 1998, Holmes told Dr. Kho she did not tolerate Serzone well. Dr. Kho changed her anti-depressant to Effexor. Holmes also reported hand numbness and Dr. Kho did EMG and nerve conduction studies to rule out carpal tunnel syndrome. The results were essentially normal. Tr. 309-311.
On October 6, 1998, Holmes saw Dr. Mechling with complaints of transient, recurrent abdominal swelling and pain. Holmes reported that she had stopped taking all her medications because she thought they were interfering or contributing to her health problems. Dr. Mechling found no etiology for the abdominal pain, but scheduled fasting lab tests and an ultrasound of the gall bladder. Tr. 327-28. The remaining medical records contain no significant findings. Tr. 322-26.
III. Vocational Evidence
The ALJ called upon Daniel Hutson, a certified rehabilitation counselor, to testify as an impartial vocational expert. Mr. Hutson was asked to describe Holmes' relevant work experience in terms of the exertional capability and skill level required. He classified Holmes' work as a waitress in the light exertional category and semiskilled. He classified her work as a restaurant manager as light and skilled. Mr. Hutson did not believe Holmes had worked as a bottler long enough to make that experience relevant. The ALJ then posed a series of hypothetical questions. First he asked Mr. Hutson:
I'm assuming at least in 1997 an individual of similar age, education, work experience as the claimant. Let's assume that this individual could perform work at the light exertional level. That would be lifting up to 20 pounds, but there would be no repetitive or prolonged pushing or pulling with the upper extremities.
Tr. 81.
Mr. Hutson opined that such a person could perform sedentary unskilled work, including such occupations as information clerk and office assistant. Mr. Hutson said there were at least 1.4 million information clerk positions in the national economy. He said over one million position as office assistant existed nationally. The ALJ then asked Mr. Hutson to assume these additional hypothetical limitations:
Let's assume the ability to work at the light exertional level, no repetitive or prolonged use of the upper extremities for pushing or pulling activities, no repetitive or prolonged bending from the waist. There should be no working overhead. Any walking should be slow and deliberate walking on even surfaces, and this individual would have a deficit in concentration that would preclude them from skilled work, nothing complex. Tr. 81-82.
Mr. Hutson said these additional limitations would not preclude the two jobs he had identified.
Finally, the ALJ posed this hypothetical question.
[T]he claimant has indicated that the deficit in concentration may be greater, or the pain may be greater creating a greater deficit in concentration. But there may be severe pain and may be some fatigue. There may be a need to lie down. If an individual was distracted from attending to work on a regular basis, wasn't consistently productive and had marked restrictions as far as persistence, pace, and concentration is concerned, what impact would that have on the jobs or types of jobs you've indicated here today? Tr. 82.
Mr. Hutson testified that any job, including those he had identified, would be in jeopardy if the worker was not able to perform it. Id.
IV. ALJ's Decision
In the first three steps of the five-step evaluation process, the ALJ found that (1) Holmes had not engaged in substantial gainful activity since the alleged onset of disability on December 15, 1992; (2) Holmes had fibromyalgia and situational stress/depression that were "severe" within the meaning of the regulations; and (3) none of her impairments, or any combination of them, was equivalent in severity to any in the regulatory listing of presumptively disabling impairments. Tr. 46.
The ALJ then determined that Holmes retained the residual functional capacity to perform a limited range of light work. The range of light work was reduced because Holmes could only walk slowly and deliberately and on even surfaces. She could not bend from the waist, reach overhead or push and pull with her hands on a repetitive or prolonged basis. The ALJ also excluded work involving skilled or complex tasks to accommodate Holmes' alleged concentration difficulties due to pain. Tr. 45.
In step four, the ALJ determined that Holmes could not perform any of her former work. In the fifth and final step, the ALJ found that Holmes retained the residual functional capacity to perform work available in the national economy. He found she could work as an office assistant or as an information clerk and he applied the Medical-Vocational grids. The ALJ applied Medical-Vocational Rule 202.21 which directs a finding of "not disabled." Tr. 46-47.
DISCUSSION
Holmes contends the ALJ did not accurately assess her impairments because he improperly rejected her assertions of subjective symptoms without giving legally sufficient reasons for doing so.
In evaluating a claimant's assertions regarding subjective symptoms, the ALJ performs a two-step analysis. First, the ALJ must determine whether the claimant has produced objective medical evidence of an underlying impairment which could reasonably be expected to produce the symptoms alleged. 20 C.F.R. § 404.1529, 416.929; Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986). If the medical evidence meets this threshold and there is no affirmative evidence of malingering, the second part of the analysis requires the ALJ to assess the credibility of the claimant regarding the severity of symptoms.
The ALJ should apply the following factors in assessing the credibility of the claimant.
(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; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities . . . The ALJ must also consider the claimant's work record and the observations of treating and examining physicians and other third parties. Smolen, 80 F.3d at 1284 (citations omitted).
The ALJ can reject a claimant's testimony about his or her limitations only by offering clear and convincing reasons supported by specific facts in the record that demonstrate an objective basis for his disbelief. Regennitter v. Commissioner, 166 F.3d 1294, 1296-97 (9th Cir. 1999); Lester v. Chater, 81 F.3d at 834. General findings are insufficient. The ALJ must identify specific testimony that is not credible and offer specific, cogent reasons for disbelieving it. Lester, 81 F.3d at 834; Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). The ALJ cannot reject a claimant's symptom testimony solely because it is not fully corroborated by objective medical findings. Cotton v. Bowen, 799 F.2d at 1408.
Here, the Commissioner does not challenge the first part of the analysis; he contends the ALJ gave clear and convincing reasons for rejecting Holmes' assertions. The ALJ gave the following reasons.
1. The ALJ found Holmes' assertions of disabling symptoms since December 1992 were not credible because she did not seek treatment or complain to any medical provider until November 1996 or later. Tr. 41-42, 44.
Holmes testified that her worst symptom was pain, mostly in the back of her neck and between her shoulder blades. Tr. 60. The record shows that Holmes was seen regularly and frequently at the Siskiyou clinic for postpartum check ups after delivery of her fourth child, prenatal visits for her pregnancy with her fifth child, a sprained ankle, treatment and removal of skin lesions, eye pain and postpartum checkups after the birth of her fifth child. Holmes did not complain of her present symptoms during any of those visits. She first sought treatment for back pain when she went to the chiropractic clinic on November 22, 1996. Even then, she complained of low back pain, which apparently resolved. Tr. 223-26. She did not complain of pain in the cervical or thoracic regions until late February 1997. Tr. 257.
The treatment history of Holmes' other symptoms supports the ALJ's conclusion, as well. Holmes testified that her right hip was constantly out of place. Tr. 60. This complaint first appeared in the medical record when she told Dr. Kho that her right hip "may lock up" in March 1997. Tr. 314. Holmes testified that she had trouble holding or gripping objects and dropped things often. Tr. 61. Yet there is no record of any report of this symptom to a medical source. At most, she told Dr. Kho that her hands `may cramp up" when she did too much sewing or writing. Tr. 314.
Holmes testified that she had constant indigestion and cramping. Tr. 61. She reported to Dr. Kho in March 1997 that she had no history of irritable bowel, although she was then having abdominal pain and cramping. Tr. 314-15. Holmes testified that she had pain and cramping in her legs and feet. Tr. 61-62. Holmes reported this as a new experience to Dr. Mechling in October 1997. Tr. 249.
The ALJ is correct that the inconsistency between Holmes' treatment history and the asserted duration of her disabling symptoms damages her credibility.
2. The ALJ found it inconsistent with Holmes' assertions of total disability that her treating physicians opined she could perform the requirements of light work. Tr. 42, 44. Dr. Kho took into account all of Holmes' symptoms and complaints, gave them the medical significance they deserved and opined that she could do light work. Tr. 315. Dr. Rasmussen said her basal cell carcinoma imposed no restrictions on work activities. Tr. 305-307. Dr. Mechling agreed to give Holmes a temporary (one month) excuse from searching for a job in February 1997, but declined to make a determination of disability beyond that. Tr. 258-260.
Holmes objects that the ALJ gave too much weight to the opinion of Dr. Kho in finding she could perform light work. However, Dr. Kho is the only basis for her fibromyalgia diagnosis. Holmes cannot reasonably assert Dr. Kho's opinion to establish her impairment and also reject it because it does not go as far as she would like. The court concludes this was a reasonable basis for the ALJ to question Holmes' credibility regarding the degree to which her symptoms caused work related impairments.
3. The ALJ found that the objective medical tests were inconsistent with Holmes' assertions. Tr. 44. For example, her claimed inability to grip objects without dropping them appeared to be overstated in light of EMG and nerve conduction studies that were completely normal. Tr. 309-311. Her abdominal symptoms appeared to be overstated in light of the results of Dr. Fawcett's endoscopy results. He found no evidence of peptic ulcer disease, hiatal hernia or any abnormality in the duodenum, pylorus or esophagus. He found only "some diffuse gastritis" in the stomach and a biopsy showed no helicobacter pylori in the stomach mucosa. Tr. 297-301. These provide a reasonable basis for the ALJ to question Holmes' credibility regarding the severity of her symptoms.
4. The ALJ found it significant that no physician placed limits on her daily activities. Tr. 44. In fact, both her primary treating physicians recommended that she get more exercise. Dr. Mechling recommended range of motion exercises. Tr. 257. Dr. Kho told her to walk more, do more light exercises and stretch.
Dr. Kho attributed her mechanical back pain to "obesity and disuse" as opposed to fibromyalgia or any other condition. Tr. 255. It does not appear that any physician thought Holmes should try to limit her activities.
5. The ALJ found it significant that Holmes repeatedly reported getting relief from her medications. Tr. 44. On March 27, 1997, Holmes told Dr. Mechling that Lodine had really helped her back pain and that she was happy with the results. Her report gave Dr. Mechling the impression that Holmes' back pain had improved. Tr. 255. She reported the same results from Lodine to Dr. Kho over a year later. Tr. 312. In September 1997, Holmes said that Baclofen was "helping her back a lot and not wiping her out." Tr. 251.
Her medications for stomach upset were also effective. In August 1997, Holmes told Dr. Mechling that her stomach symptoms were relieved with over-the-counter Zantac. Tr. 252. In October 1997, she reported relief from abdominal symptoms from prescription Ranitidine. Tr. 249.
6. The ALJ found her pain complaints were not credible because she followed no pain regimen other than taking anti-inflammatory medications. Holmes' pain did not require narcotic pain killers or surgical intervention to treat spinal degeneration or foot deformities. Holmes apparently did not like the side effects of muscle relaxants and did not consistently take them. She admitted that she often neglected to fill her prescriptions. In October 1998, she quit taking all her medications. Tr. 327-28.
The court also notes that Holmes was inconsistent in reporting her medications. For example, she alternatively reported not taking Flexeril, taking it rarely and taking it several times a day.
7. Holmes treatment history suggested she overstated her depression symptoms. The record shows that she never sought treatment for depression and never saw a mental health provider. She quit taking Prozac after three days. Tr. 246. She quit taking Serzone after one month or less. Tr. 309-311. She testified that she chose not to refill her Effexor prescription. Tr. 64-65.
Each of the foregoing reasons supports the ALJ's conclusion that Holmes overstated the severity and duration of her symptoms, as well as the extent to which her reported reduction in daily activities can be attributed to those symptoms.
The ALJ concluded that Holmes' assertions of disabling impairment were not credible. This court must agree with that assessment. The ALJ apparently viewed the evidence in the light most favorable to Holmes. Despite the meager medical record, he limited her occupational base to accommodate her claims of impaired ability to bend, reach and grip and her claims of deficits in attention and concentration due to pain. To the extent the ALJ rejected Holmes' assertions of subjective symptoms, I find he provided a sufficient basis for doing so. In any event, the limitations articulated by the ALJ fairly summarize the conclusions that can reasonably be drawn from her testimony.
Holmes does not challenge any aspect of the ALJ's decision other than his assessment of her residual functional capacity. Accordingly, the court does not address the ALJ's treatment of the vocational testimony or his application of the Medical-Vocational guidelines.
CONCLUSION
The findings of the Commissioner are based upon substantial evidence in the record and the correct legal standards, and therefore the court affirms the decision of the Commissioner.
IT IS SO ORDERED.