Opinion
EDCV 07-850-OP.
March 2, 2009
MEMORANDUM OPINION AND ORDER
The Court now rules as follows with respect to the six disputed issues listed in the Joint Stipulation ("JS").
Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 7, 9.)
As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record ("AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
I. DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:
1. Whether the ALJ properly considered Plaintiff's credibility;
2. Whether the ALJ properly considered the treating physician's opinion of disability;
3. Whether the ALJ properly considered the nurse practitioner's opinion of disability;
4. Whether the ALJ properly developed the record;
5. Whether the ALJ properly considered the type, dosage, effectiveness, and the side effects of Plaintiff's medications; and
6. Whether the ALJ posed a complete hypothetical to the vocational expert ("VE").
(JS at 2-3.)
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971);Desrosiers v. Sec'y of Health Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld.Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
III. DISCUSSION
A. The ALJ Properly Considered Plaintiff's Credibility .
The ALJ found that Plaintiff had the medically determinable severe impairments of obesity, hypertension, diabetes mellitus, alcoholism, depressive disorder not otherwise specified, and alcohol-induced anxiety disorder not otherwise specified. (AR at 13.) He also found that Plaintiff had the residual functional capacity to perform a range of light work, including lifting and/or carrying up to twenty pounds occasionally and ten pounds frequently; sit without restrictions and be on his feet for six hours during an eight-hour workday; was capable of moderately complex tasks; was capable of object-oriented work with no public contact; cannot operate hazardous machinery, be responsible for safety operations, perform fast-paced work such as rapid assembly line work; and must lie down during the lunch hour. (Id. at 14.) Plaintiff also was able to type thirty-five words per minute. (Id.)
At the hearing, Plaintiff testified that he has problems with fatigue and feeling tired. (Id. at 343.) He stated there are days he does not want to get out of bed, does not want to do yard work, or even the dishes, and days where he just watches TV and dozes off. (Id.) He testified that he takes medications to curb his craving for alcohol (id. at 331-32), for anxiety and depression (id. at 344), and for fluid retention (id. at 345). He also takes medication for back pain and type II diabetes. (Id. at 152, 344.) If he stands for a "real long" period of time, he gets a sciatica-type pain in his right leg and has to bend over to relieve the pain. (Id. at 345.) Sitting is also a problem because of fluid retention. (Id.) He gets cold sweats and his hands shake in stressful situations. (Id. at 346.) He also testified that he has had a problem with anxiety his whole life. (Id.)
With respect to Plaintiff's testimony, the ALJ found as follows:
The claimant and his wife did not credibly establish any conclusions different than those established herein. The claimant testified his diabetes is not well-controlled, that he is fatigued, and does little during the day. He also discussed his problems with alcohol, depression, and anxiety, but admitted he had worked despite these problems in the past. The claimant's wife also discussed the claimant's anxiety and his aversion to leaving the house unless she encourages him to do so. She also acknowledged, however, that she has been married to the claimant for 30 years, that the claimant has had problems with anxiety since she met him, and that he was able to work for many years despite his anxiety.
(Id. at 15.)
An ALJ's credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ may properly consider "testimony from physicians . . . concerning the nature, severity, and effect of the symptoms of which [claimant] complains," and may properly rely on inconsistencies between claimant's testimony and claimant's conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (citation omitted). An ALJ also may consider "[t]he nature, location, onset, duration, frequency, radiation, and intensity" of any pain or other symptoms; "[p]recipitating and aggravating factors"; "[t]ype, dosage, effectiveness, and adverse side-effects of any medication"; "[t]reatment, other than medication"; "[f]unctional restrictions"; "[t]he claimant's daily activities"; "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment"; and "ordinary techniques of credibility evaluation," in assessing the credibility of the allegedly disabling subjective symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff's daily activities, and on conflict between claimant's testimony of subjective complaints and objective medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily activities inconsistent with total disability, and helpful medication); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant's daily activities and the lack of side effects from prescribed medication).
Plaintiff contends the ALJ failed to properly indicate which portions of Plaintiff's testimony were found not credible. (JS at 5.) He also contends that the ALJ failed to provide specific evidence that undermined Plaintiff's testimony. (Id.) The Court notes, however, that the ALJ specifically stated only that he found Plaintiff's statements did not any establish any conclusions different from those he had reached in arriving at his decision for the relevant period. With respect to Plaintiff's problems with alcohol, depression, and anxiety, the ALJ agreed with the medical expert, Dr. Malancharuvil, that Plaintiff's mental impairments, including his alcoholism, cause no more than a moderate restriction in activities of daily living, mild difficulties in maintaining social functioning, and moderate to marked difficulties in maintaining concentration, persistence, or pace. (AR at 14.) Plaintiff admitted these were long-standing problems and that he had worked in the past despite them. (Id. at 14-15.) See Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (claimant not disabled where condition was unchanged and did not prevent her from working in the past). Plaintiff's wife confirmed the longstanding nature of the problems and also noted they did not prevent him from working in the past. (AR at 348-49.) In July 2004, Plaintiff reported to a consultative examiner that his depression worsened when he had to move in with his brother-in-law but that he "did continue to work . . . with his brother in law." (Id. at 250.) He made that same report to his doctor in December 2003. (Id. at 171.) As noted by the ALJ, the records indicate that even when drinking, Plaintiff remains "fairly high functioning and capable of performing work activities." (Id. at 14.)
Moreover, the ALJ did credit Plaintiff's testimony in part in finding that Plaintiff could perform light, moderately complex, object-oriented work, not requiring public contact or fast pace, and with the ability to lie down during the lunch hour. (Id.) Based on the vocational expert's testimony, the ALJ also found that Plaintiff could not do his past relevant work as a data processor. (Id. at 15.) The ALJ also took into account Plaintiff's claim that his diabetes was not under control and that he was often fatigued but again noted that he had previously worked despite these problems. (Id.) The medical records indicate that Plaintiff's diabetes was being monitored but that he was not following the advice of his doctors with respect to diet and exercise. (Id. at 171-72.) There were no records that stated that Plaintiff's complications from diabetes would have precluded him from working during the relevant period. (Id. at 15.)
With respect to Plaintiff's testimony about his sitting/standing limitation due to his disability, his sciatica, or the need to elevate his legs, there was no indication of such limitations during the relevant period. (Id.) In fact, as the ALJ noted, the treating records from the Veterans Administration failed to reveal any limitations inconsistent with the RFC or disability finding, and the results of a number of physical examinations were largely normal. (Id. at 14, 138, 145, 162, 174-75, 261-62.) See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (medical evidence is a factor the ALJ can consider in his credibility analysis); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (it is probative that no physician specifically opined that Plaintiff was unable to perform any work).
Based on the foregoing, the Court finds the ALJ's credibility finding was supported by substantial evidence and was sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit Plaintiff's subjective testimony.
B. The ALJ Properly Considered the Treating Physician's Opinions .
Plaintiff contends that the ALJ failed to properly consider the January 15, 1998, report of Celeste B. Waters, M.D., of the Employment Development Department ("EDD"), who diagnosed Plaintiff with depression and a panic disorder. (AR at 106.) Dr. Waters also stated that Plaintiff's depression and panic states impair his concentration, leading to embarrassment and acute self-consciousness, in turn exacerbating the panic syndrome. (Id.) She opined that it takes one to two years to reach complete recovery for these impairments and to return to a level of ability to function on the job. (Id.) On that date, she estimated that Plaintiff would be able to return to his regular or customary work on May 1, 1998. (Id.)
Plaintiff also contends the ALJ failed to properly consider the October 9, 2002, report of Ali Aziz, M.D., also from the EDD, who diagnosed Plaintiff with depression, not otherwise specified, and who also noted that Plaintiff has anxiety and insomnia. (Id. at 112.) Dr. Aziz noted that these conditions are treated with medication and psychotherapy. (Id.)
Specifically, Plaintiff contends that the ALJ failed to discuss these opinions, especially the fact that they show Plaintiff suffered from a longitudinal history of a mental impairment, and failed to provide specific and legitimate reasons for disregarding those opinions. (JS at 8, 9, 11.)
It is well-established in the Ninth Circuit that a treating physician's opinions are entitled to special weight, because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual.McAllister v. Sullivan, 880 F.2d 1086, 1089 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 n. 7 (9th Cir. 1989)). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The same standards apply to examining physicians. See, e.g., Lester, 81 F.3d at 830-31.
In this case, the ALJ relied on the testimony of the medical expert, Dr. Malancharuvil, who reviewed the relevant medical records and opined, in particular, that Plaintiff could perform moderately complex work with no public contact. (AR at 332-38.) The ALJ's finding was also supported by the July 2004 opinions and consultative examinations of psychiatrist Linda Smith, M.D., and Jamshid Tamiry, M.D., both of whom found Plaintiff capable of an even greater range of work than that ultimately assessed by the ALJ. (Id. at 250-55, 257-63.) See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (the opinion of a nontreating source based on independent clinical findings may itself be substantial evidence); see also Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (specialist's opinions entitled to greater weight when related to area of specialization). Both Dr. Smith and Dr. Tamiry also had the opportunity to review Plaintiff's medical history and to perform examinations close in time to the relevant period. (AR at 250-55, 257-63.)
The ALJ also concluded that the medical reports prior to the alleged onset date of October 1, 2003, shed little light on Plaintiff's RFC during the relevant period of October 1, 2003, to March 31, 2004. (Id. at 14.) He also noted that the relevant treating records contained no information to suggest Plaintiff was incapable of performing work within the RFC assessment during the relevant period. (Id.) Evidence must relate to the relevant period to be probative. See Bates v. Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990), overruled on other grounds by Bunnell, 947 F.2d at 341. The Ninth Circuit has found that medical reports that are most recent are highly probative. Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)) (medical evaluations even prepared several months before the hearing in a case where the claimant had a worsening condition were not substantial evidence sufficient to rebut more recent conclusions by a treating doctor). Moreover, the ALJ's finding that Plaintiff suffered from depressive disorder and an anxiety disorder is not inconsistent with the opinions of Drs. Waters and Aziz.
Thus, there was no error in the ALJ's failure to further discuss these records.
C. The ALJ Properly Considered the Nurse Practitioner's Opinion .
Plaintiff contends that a September 7, 2006, note made by a nurse practitioner, to the effect that Plaintiff was "unemployable," was not properly considered by the ALJ as a note by a treating source. (JS at 11; see AR at 294.) The Court disagrees.
As noted by the ALJ, this medical record was written "after [Plaintiff's] date last insured . . . and therefore shed[s] little light on the claimant's residual functional capacity during the period of adjudication." (AR at 14.) He also noted:
Subsequent treating records do show a significant increase in the claimant's use of alcohol in the past year (he reportedly drank three five-liter boxes of wine in seven days in September 2006 . . .) with an associated decrease in functioning . . ., but such findings do not change my assessment of the claimant's ability to function from October 1, 2003 through March 31, 2004.
(Id. at 15.)
The contents of the nurse practitioner's progress note reflect that Plaintiff had been drinking heavily on the weekends around the time of the note and had experienced some rather unpleasant withdrawal-type symptoms, including cold sweats and a panic attack, which caused him to stop drinking in July 2006. (Id. at 293.) Again, the disability period at issue was October 1, 2003, through March 31, 2004. The nurse practitioner's comment as to Plaintiff's employability, more than two years after the relevant period of October 2003 through March 2004, simply is not probative of that period.
Moreover, a nurse practitioner is not generally an acceptable medical source. See 20 C.F.R. § 404.1513(d) (including nurse practitioner as an "other" medical source). The ALJ may, but is not required to, use evidence from these other sources to show the severity of an impairment. Id. Where a nurse practitioner works in conjunction with a medical physician, this may be considered an "acceptable medical source," while a nurse practitioner working on her own is not. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996); see also Benton ex. rel. Benton v. Barnhart, 331 F.3d 1030, 1039 (9th Cir. 2003). While Plaintiff contends the nurse practitioner was working in conjunction with treating physician, Dr. Tan (JS at 14), it actually appears to this Court that Dr. Tan and the nurse practitioner were in completely different departments and the only interaction they had was through a nurse mediary regarding the question of who should fill out Plaintiff's temporary disability form. (AR at 294-95.) Even if probative, the Court does not find the nurse practitioner in this case to be at the level of an acceptable medical source.
Thus, there was no error in the ALJ's discounting these later medical records of the nurse practitioner.
D. The ALJ Did Not Fail to Properly Develop the Record .
Plaintiff contends that the ALJ should have obtained the September 2006 disability form that was filled out on behalf of Plaintiff by the nurse practitioner, as referenced in the prior issue. (JS at 14.) This Court disagrees.
The ALJ has an independent duty to fully and fairly develop a record in order to make a fair determination as to disability, even where, as here, the claimant is represented by counsel. See Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)); see also Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to "conduct an appropriate inquiry." See Tonapetyan, 242 F.3d at 1150 (citing Smolen, 80 F.3d at 1288).
Because this progress note was not probative of disability during the period at issue, there was no duty to obtain this record. Moreover, even if probative, the contents of the form are made fairly clear by the progress note, i.e., Plaintiff was requesting certification for a six-month period of temporary disability, indicating "no work," and that request was granted. (AR at 294-95.) There was no indication any relevant evidence was ambiguous or inadequate.
Thus, even if probative, there would have been no need to request this form, and there was no error in the ALJ's failure to obtain the disability form itself.
E. The ALJ Did Not Err with Respect to Consideration of Alleged Side Effects of Plaintiff's Medication .
In a Disability Report dated October 12, 2004, Plaintiff reported that he takes Citalopram for his depression, which causes him to be drowsy. (Id. at 90.)
Under Ninth Circuit law, the ALJ must "consider all factors that might have a `significant impact on an individual's ability to work.'" Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec'y of Health Human Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988)). Such factors "may include side effects of medications as well as subjective evidence of pain." Erickson, 9 F.3d at 818. When the ALJ disregards the claimant's testimony as to subjective limitations of side effects, he must support that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medications. See Varney, 846 F.2d at 545; see also Muhammed v. Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *6 (N.D. Cal. 1999).
In this case, the ALJ considered Plaintiff's testimony that he is fatigued and does little during the day. (AR at 15.) However, as discussed previously, the ALJ properly discounted Plaintiff's testimony. (See Part III.A, supra.) Moreover, the Court has been unable to find any evidence in the medical records to support Plaintiff's self-report that his medication caused drowsiness.See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ did not err in failing to "explicitly address the drowsiness side-effect of [the claimant's] medication" in making an RFC determination as "the ALJ took into account those limitations for which there was record support that did not depend on [the claimant's] subjective complaints"); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (alleged side effects need not be considered where no objective evidence supported allegations). In fact, there are indications that Plaintiff denied any side effects to the medications he was taking, including Citalopram. (See, e.g., AR at 156 ("no s/e from meds"); 160 (same).)
Accordingly, there was no error in the ALJ's failure to further mention the alleged side effect of the medication.
F. The Hypothetical Posed to the Vocational Expert Was Proper .
Plaintiff contends that the ALJ erred because the hypothetical questions posed to the VE failed to take into account any mention of the side effects Plaintiff experiences as a result of his medication, or the testimony offered by Plaintiff that his hands shake in stressful situations. (JS at 17; AR at 350-54.) The Court disagrees.
"In order for the testimony of a VE to be considered reliable, the hypothetical posed must include `all of the claimant's functional limitations, both physical and mental' supported by the record." Thomas, 278 F.3d at 956 (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical questions posed to a VE need not include all alleged limitations, but rather only those limitations which the ALJ finds to exist. See, e.g., Magallanes, 881 F.2d at 756-57; Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). Thus, an ALJ must propose a hypothetical that is based on medical assumptions, supported by substantial evidence in the record, that reflects the claimant's limitations.Osenbrock, 240 F.3d at 1163-64 (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995)); see also Andrews, 53 F.3d at 1043 (although the hypothetical may be based on evidence which is disputed, the assumptions in the hypothetical must be supported by the record).
As previously discussed, the record evidence did not support Plaintiff's claim that he suffered from side effects from his medications. While there was some evidence Plaintiff experiences shaky hands in stressful situations, and that he had experienced this condition and nervousness since grade school, there is also evidence that the shaking had significantly subsided, and that he was able to work despite that particular condition. (See AR at 156, 160, 346-47.)
Accordingly, there was no error in the ALJ's hypothetical questions to the VE which did not include these limitations.Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("Because the ALJ included all of the limitations that he found to exist, and because his findings were supported by substantial evidence, the ALJ did not err in omitting the other limitations that Rollins had claimed, but had failed to prove.").
IV. ORDER
IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.