Opinion
3:17-cv-01271-JR
12-19-2018
KENNETH K., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION :
Plaintiff Kenneth K. seeks judicial review of the Social Security Commissioner's final decision denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Plaintiff argues the Administrative Law Judge (ALJ) erred in (1) finding plaintiff has no severe physical impairments; (2) giving little weight to the lay testimony of plaintiff's nephew; and (3) failing to find that plaintiff's memory impairments limit him to sheltered work. The Commissioner's decision finding plaintiff not disabled should be affirmed.
BACKGROUND
Plaintiff was born in 1960 and is a member of the Coeur d'Alene Tribe. Tr. 564. When plaintiff was 4 years old, he and his siblings were taken from their home due to their parents' neglect. Tr. 505. For the next ten years, plaintiff lived in the St. Joseph's Children's Home in Spokane, Washington, and foster homes. Tr. 505. At age 14, he moved to Portland with his father and siblings. Tr. 403, 505. Because plaintiff had difficulty reading and writing, he received special assistance at school. Tr. 505. He left school before the tenth grade. Tr. 234; cf. Tr. 565 (plaintiff states he completed the seventh grade).
From age 14 until age 50, plaintiff drank heavily. Tr. 404, 738. He developed cirrhosis and esophageal varices, a potentially life-threatening condition causing blood vessels to swell and burst. Tr. 337, 367. Since 2010, after being told that continued drinking could kill him, plaintiff has abstained from alcohol. Tr. 68.
The ALJ found that plaintiff had a history of gastroesophageal reflux disease (GERD), Type II diabetes, obesity, and hyperlipidemia (high blood cholesterol), but that these conditions were under control or not severe. Tr. 24. The ALJ found plaintiff suffers from the severe mental impairments of low intellectual functioning, anxiety disorder, and depression. Tr. 24.
Plaintiff has worked as a bottle packager, warehouse worker, scrap sorter, and kitchen helper and dishwasher. He has not worked since 2014.
PROCEDURAL HISTORY
Plaintiff applied for disability insurance benefits and supplemental security income in 2013, alleging disability beginning in November 2008. Tr. 21. His applications were denied initially and on reconsideration. Plaintiff has now amended his claims, alleging his disability period runs from January 24, 2012 to August 31, 2013, and from October 13, 2014 to the present. Pl.'s Br. 2, ECF No. 23. The ALJ found that plaintiff's job as a bottle packager from September 2013 to June 2014 qualified as substantial gainful activity, precluding a finding of disability during that period. Tr. 23.
Plaintiff received a hearing before an ALJ in December 2015. The ALJ issued her decision finding plaintiff not disabled in March 2016. The Appeals Council denied plaintiff's request for review in July 2017, making the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review.
In a separate proceeding, plaintiff was awarded supplemental security income beginning August 2017. Pl.'s Br., Attach. (Notice of Award).
THE ALJ'S DECISION
To establish disability, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a claimant has established disability. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987). At the first four steps of the process, the claimant has the burden of proof; at the fifth step the burden of proof shifts to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step of the sequential process, the ALJ found that although plaintiff had engaged in substantial gainful employment during 2013 and 2014, he had not engaged in substantial gainful activity from November 15, 2008 to August 2013, or from September 2014 until the date of the hearing. Tr. 24.
At step 2, the ALJ considered the severity of plaintiff's physical and mental impairments. See Yuckert, 482 U.S. at 140-41. An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for twelve months or longer. See id., 482 U.S. at 141. Here, the ALJ found that plaintiff had the severe mental impairments of intellectual disability, anxiety disorder, and depression. Tr. 24. The ALJ found that plaintiff also suffered from the medical impairments of alcohol abuse, arthropathy, cirrhosis, GERD, Type II diabetes, obesity, and hyperlipidemia, but that these impairments were not severe.
In the third step, the ALJ determined plaintiff's severe mental impairments did not met or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141. Tr. 25.
The ALJ then assessed plaintiff's residual functional capacity (RFC). See 20 C.F.R. § 404.1520(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and mental activities on a regular and continuing basis, despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a). The ALJ found that plaintiff had the residual functional capacity "to perform a full range of work at all exertional levels except that he is: limited to performing simple, routine, repetitive tasks; limited to hearing and understanding simple oral instructions, and communicating simple information; limited to simple work-related decisions." Tr. 28 (bolding deleted).
In the fourth step, the ALJ considered plaintiff's RFC in relation to his past relevant work. See Yuckert, 482 U.S. at 141. With the assistance of a vocational expert who testified at the hearing, the ALJ found that plaintiff could perform his past relevant work as a kitchen helper and dishwasher, scrap sorter, bottle packer, and warehouse worker, and therefore found plaintiff not disabled. Tr. 33. Because the ALJ found plaintiff not disabled at the fourth step, the ALJ did not proceed to the fifth step, in which the ALJ considers whether the claimant could perform any jobs that exist in significant numbers in the national economy. See Yuckert, 482 U.S. at 142.
DISCUSSION
I. Severe Physical Impairments
Plaintiff contends the ALJ erred at step two of the sequential process by finding that although plaintiff suffers from arthropathy, causing back and knee pain; cirrhosis; GERD; Type II diabetes; obesity; and hyperlipidemia, none of these conditions are severe "because they do not significantly limit the claimant's abilities to do basic work activities." Tr. 24. Substantial evidence supports the ALJ's finding that plaintiff's physical impairments are not severe.
A. Arthropathy
1. Knee Pain
As to both knee and back pain, the ALJ relied on the report of examining physician Dr. Erik Maki, M.D., who performed a consultative examination of plaintiff on October 21, 2013. Tr. 442-44. The ALJ also relied on reports by two non-examining reviewing physicians, Dr. Linda Jensen, M.D., and Dr. Martin Kehrli, M.D. Tr. 84-85, 112-13.
Dr. Maki reported that plaintiff complained of bilateral knee pain, which was worse in his right knee. Plaintiff, who had been working as a bottle packager for about three months at the time of this examination, reported that "over the past couple of months the pain has not gotten worse or better." Tr. 439. Plaintiff also told Dr. Maki that the pain was reduced by wearing a knee brace, rest, and Tylenol. Tr. 439.
Dr. Maki noted that plaintiff's "anterior cruciate ligament (ACL), posterior cruciate ligament (PCL), and medial-lateral ligaments are intact." Tr. 442. Dr. Maki found that plaintiff's knee pain "is likely arthritic in nature," and that "[b]ased on objective exam findings, this is not a limiting condition." Tr. 442. A prior x-ray examination of plaintiff's knees in May 2013 showed no arthritis in the right knee, and a "slight degenerative spur" in the left knee with otherwise normal findings. Tr. 405.
The ALJ also gave "great weight" to the opinions of reviewing physicians Drs. Jensen and Kehrli. Tr. 32. Dr. Jensen found that plaintiff's ability to work in a warehouse "argues against more than mild limits from his knees." Tr. 85. Dr. Kehrli found that plaintiff's knee impairments were not severe. Tr. 112.
Plaintiff argues the ALJ erred when she stated plaintiff "testified that he has back and knee pain but has received no treatment for those complaints." Tr. 29. Plaintiff notes that he was examined for knee pain in May and June 2013. Tr. 405 (knee x-rays in May 2013); Tr. 411 (June 2013 medical report noting that plaintiff complained of knee pain). Plaintiff also argues that the Commissioner improperly discounted his use of a knee brace twice a week as a conservative treatment. Pl.'s Reply 2, ECF No. 29.
The ALJ's implication that plaintiff did not receive treatment for knee pain does not undermine the validity of her findings. An ALJ's error is harmless "where the ALJ provided one or more invalid reasons for disbelieving a claimant's testimony, but also provided valid reasons that were supported by the record." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). Here, the ALJ properly relied on the physicians' reports, especially that of examining physician Dr. Maki, in finding that plaintiff's knee impairment was not severe. The ALJ also properly relied on plaintiff's use of conservative treatment as evidence that the knee impairment was not severe. "[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment." Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation omitted). Plaintiff has not pointed to medical evidence that his knee impairment significantly limited his ability to work. The ALJ properly relied on the medical evidence in finding that plaintiff's knee impairment was not severe.
2. Back Pain
Plaintiff contends that medical evidence supports his claim of a severe impairment. In October 2015, Dr. Brian Wadley, M.D., reported that x-rays of plaintiff's lumbar spine showed "moderate anterior spurring at L4-L5 and L5-S-1," but no evidence of deformity or listhesis, and no gross facet arthrosis or pars defects. Tr. 559. During Dr. Maki's examination of plaintiff, he found that plaintiff's back was normal, with negative straight leg testing. Tr. 442. Dr. Maki observed that plaintiff "is easily able to transfer from the chair to the examination table. He sits comfortably and is able to take his shoes off without difficulty. He is able to walk to the examination room without difficulty. There is no evidence of poor effort or inconsistencies." Tr. 440. Dr. Maki also noted that plaintiff "walked with a normal gait. Tandem, toe-heel, hopping, and squatting are normal." Tr. 441. Dr. Maki found that plaintiff had no limitations in standing, walking, sitting, lifting, carrying, and postural and manipulative activities. Tr. 442-43. Plaintiff treated his back pain with over-the-counter analgesics. Tr. 431.
The ALJ properly relied on Dr. Maki's opinion that plaintiff's back pain was not a severe impairment. Plaintiff has not cited any contrary medical evidence that back pain significantly limited his ability to work. Substantial evidence supports the ALJ's finding that plaintiff's back pain was not a severe impairment.
B. Cirrhosis, GERD, and Hypertension
The ALJ found that plaintiff had a medical history of cirrhosis and GERD. Tr. 24. The ALJ found plaintiff's cirrhosis was "well controlled by the claimant's abstinence from alcohol." Tr. 25. The ALJ also found that plaintiff's GERD was controlled through medication. Tr. 25. Substantial evidence supports these findings.
Plaintiff also mentions hypertension as an impairment. Pl.'s Br. 6. However, plaintiff has not presented evidence that hypertension has significantly limited his ability to work.
C. Type II Diabetes, Obesity, and Hyperlipidemia
The ALJ found that plaintiff has Type II diabetes, obesity, and hyperlipidemia, but that these impairments were not severe. Tr. 25. As to diabetes, the ALJ found that plaintiff's diabetes "has consistently been described as controlled or stable." Tr. 25. For example, an optometrist, Dr. Brock Karben, O.D., examined plaintiff on May 8, 2015, diagnosing diabetes without retinopathy, "[c]urrently stable." Tr. 500. Similarly, Dr. Matthew David Barrett, M.D., reported in December 2015 that plaintiff's diabetes was "controlled." Tr. 697. "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits." Warre v. Comm'r, 439 F.3d 1001, 1006 (9th Cir. 2006).
Plaintiff testified that once or twice a month, he suffered a "real sharp" pain in his feet from diabetes, keeping him off his feet from two to five hours. Tr. 64. Because this symptom occurs infrequently, it is not evidence of a severe limitation. In light of the medical reports that plaintiff's diabetes is controlled, substantial evidence supports the ALJ's finding that diabetes was not a severe impairment.
As to obesity, the ALJ found that plaintiff was "mildly obese." Tr. 25. The record indicates that plaintiff stands five feet, seven inches, and weighs between 200 and 230 pounds. Tr. 607; Tr. 25. Because no medical reports in the record indicate that plaintiff's obesity has significantly limited his ability to work, I conclude that substantial evidence supports the ALJ's finding that plaintiff's obesity "does not cause more than a minimal limitation . . . and is therefore non-severe." Tr. 25.
As to hyperlipidemia, the ALJ found that plaintiff had an echocardiogram in 2015, and an EKG, and a chest x-ray in 2009. Tr. 25. The tests all showed normal findings. Tr. 328 (EKG and chest x-ray normal); Tr. 743 (stress echocardiogram normal). Substantial evidence supports the ALJ's finding that plaintiff's hyperlipidemia is not a severe impairment.
The ALJ also found that plaintiff showed "non-compliance regarding his obesity, diabetes, and hyperlipidemia," which indicated "a possible unwillingness to do what is necessary to improve his condition." Tr. 29. The ALJ found that this "lessens the claimant's credibility." Tr. 29. Plaintiff responds the ALJ failed to consider the difficult obstacles plaintiff faced, including poverty, near illiteracy, and depression, in trying to achieve a healthier lifestyle. Pl.'s Br. 6-7; see Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (when a claimant was "noncompliant with medication because she could not afford it," ALJ could not discount her credibility, but noncompliance unrelated to poverty "may properly be weighed against finding [the claimant's] testimony to be believable"). Assuming the ALJ erred in failing to consider why plaintiff failed to comply with advice on nutrition and exercise, I find the error harmless because the ALJ relied on other, valid reasons in finding plaintiff's diabetes, obesity, and hyperlipidemia were not severe impairments. Carmickle v. Comm'r, 533 F.3d 1155, 1162 (9th Cir. 2008) (ALJ's error is harmless if "inconsequential to the ultimate nondisability determination").
D. Dizziness, Fatigue, and Shortness of Breath
Plaintiff cites dizziness, fatigue, and shortness of breath as severe medical impairments. The ALJ did not address these symptoms as impairments.
As to dizziness, plaintiff argues the ALJ improperly failed to consider dizziness as a side effect of Nadolol, a drug plaintiff takes to treat esophageal bleeding. In a report on plaintiff dated May 19, 2015, Robert Titchener, a certified physician's assistant who treated plaintiff, stated, "Suspect the nadalol is responsible for the dizziness when changing bodily positions but given his risk for esophageal varices, will not d/c at this time." Tr. 524. In a prior report from March 2013, Titchener tentatively noted a different diagnosis, reporting "dizziness possible hypogly___." Tr. 417 (partly illegible handwritten note). Plaintiff contends that the ALJ's failure to consider dizziness is not harmless "because someone who becomes dizzy when changing positions would not be able to do the light and medium level work the ALJ identified at Step Four." Pl.'s Reply 3. Plaintiff cites Social Security Ruling (SSR) 16-3p(d)(4), which addresses symptoms that are side effects of medication:
(d) In addition to using all of the evidence to evaluate the intensity, persistence, and limiting effects of an individual's symptoms, we will also use the factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3). These factors include:Evaluation of Symptoms in Disability Claims, SSR 16-3p(d)(4), 2017 WL 5180304, at *7-*8.
. . . .
4. The type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms . . . .
The Commissioner responds that the ALJ is not required to find a severe impairment "just because a physician notes a side effect to medication." Def.'s Br. 10, ECF No. 25. The Commissioner cites Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). There, the plaintiff's treating osteopath opined, "'The medications to control [the plaintiff's] pain also cause[] decreased concentration skills.'" Id. (quoting physician's note). The Ninth Circuit held that the physician's "meager opinion provided no basis for concluding that Meanel was disabled. His statement was conclusory and unsubstantiated by relevant medical documentation." Id. at 1113-14 (citation and quotation marks omitted).
Here, the physician assistant suspected that Nadolol was causing plaintiff's dizziness, and had previously offered an alternate theory. In any event, assuming that Nadolol caused dizziness, plaintiff has not presented evidence to show that the dizziness was severe and frequent enough to "significantly interfere with [his] ability to work." Id. at 1114. The ALJ did not err in failing to consider dizziness as a severe impairment.
As to fatigue and shortness of breath, the Commissioner argues that "none of the symptoms Plaintiff identifies qualify as medically determinable impairments." Def.'s Br. 10. The Commissioner relies on Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005). There, the Ninth Circuit relied on SSR 96-4p, 1996 WL 374187, which states, "'[R]egardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings.'" Id. (quoting SSR 96-4p, 1996 WL 374187, at *1). The Ninth Circuit concluded, "Because none of the medical opinions included a finding of impairment, a diagnosis, or objective test results, Ukolov failed to meet his burden of establishing disability." Id. at 1006.
Plaintiff has failed to show evidence in the record, other than his own subjective testimony, of objective medical abnormalities that caused fatigue or shortness of breath. The ALJ therefore did not err in failing to consider fatigue and shortness of breath as severe impairments rather than symptoms.
Substantial evidence supports the ALJ's finding that plaintiff's physical impairments were not severe. In particular, plaintiff's ability to perform medium level work from September 2013 until August 2014 is substantial evidence supporting the ALJ's finding on this issue. See Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir.1988) (substantial evidence supported ALJ's finding that the plaintiff's lower back condition was not disabling because the back condition "had remained constant for a number of years and . . . back problems had not prevented her from working over that time").
II. Statement of Plaintiff's Nephew
A. Nephew's Statement
Plaintiff contends the ALJ erred in giving "little weight" to the statement of his nephew, Kenny S. (Kenny). Kenny, who has been living in the same house as plaintiff for several years, completed a questionnaire in July 2013 about plaintiff's mental and physical functionality. Tr. 262-68. Kenny stated that plaintiff's "memory is getting worse. I have to remind my uncle to take his meds." Tr. 261. Although plaintiff had been a good cook, he could prepare only "simple foods such as frozen dinners and basic meals." Tr. 263. Kenny explained, "He doesn't read very well. His memory is poor, so he can't remember how to cook things or to follow instructions." Tr. 266. Generally, Kenny stated that plaintiff's "memory is poor, so he doesn't retain and follow instructions well." Tr. 266.
As to plaintiff's physical impairments, Kenny stated that plaintiff's "knees are getting worse, so he is not very mobile. He gets tired easily, so walking, stair climbing are limited." Tr. 266. Plaintiff could walk five blocks, and then required a five-minute break. Plaintiff could not do yard work because "he doesn't have the endurance and strength." Tr. 263. Although, Kenny noted that plaintiff regularly did housework and took care of himself, needing no assistance dressing, bathing, washing dishes, or doing laundry. Tr. 262.
B. Discussion
"Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's ability to work is competent evidence that the ALJ must take into account." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987) ("Descriptions by friends and family members in a position to observe a claimant's symptoms and daily activities have routinely been treated as competent evidence."). Lay witnesses "can often tell whether someone is suffering or merely malingering," which "is particularly true of witnesses who see the claimant on a daily basis." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). To reject lay witness testimony, the ALJ must provide "reasons that are germane to each witness." Id.
Here, the ALJ found that Kenny's statements "were inconsistent with the objective medical evidence and medical opinions of record. Furthermore, he does not have the medical training necessary to make exacting observations as to dates, frequencies, types, and degrees of medical signs and symptoms or the frequency or intensity of unusual moods or mannerisms." Tr. 32. The ALJ properly found that the objective medical evidence conflicts with Kenny's description of plaintiff's physical abilities. Specifically, Dr. Maki found that plaintiff had no difficulty walking and that plaintiff's knee condition did not limit him. In addition, about two months after Kenny completed his questionnaire, plaintiff started a new job that he held successfully for nine months. Dr. Maki's opinion, as well as plaintiff's ability to work in a new job, are inconsistent with Kenny's statements as to the extent of plaintiff's impairments.
Plaintiff argues the ALJ should have cited specific evidence to support her findings as to the weight given Kenny's statement. However, "[e]ven when an agency explains its decision with less than ideal clarity, [the court] must uphold it if the agency's path may reasonably be discerned." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (citing Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004) (further citation and quotation marks omitted)).
As to plaintiff's mental impairments described in Kenny's statement, the ALJ included limitations in the RFC to account for plaintiff's severe impairments in cognitive ability. The ALJ therefore did not err in her consideration of Kenny's statement regarding plaintiff's mental impairments. The ALJ also found that Kenny's "relationship with the claimant" was a reason not to treat Kenny as "a disinterested third party witness whose statements would not tend to be colored by affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant alleges." Tr. 32. However, Kenny's relationship to plaintiff is not a germane reason for giving little weight to Kenney's statement. Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony."). Nevertheless, because the ALJ cited other, substantial evidence in support of her credibility finding as to Kenny's statement, the "error does not negate the validity of the ALJ's ultimate credibility conclusion." Carmickle v. Comm'r, 533 F.3d 1155, 1162 (9th Cir. 2008) (citation, quotation marks, and brackets omitted); see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (contradiction with the medical record is a germane reason to reject lay statements).
III. Memory Impairment
Plaintiff argues that because of his severe memory impairment, he would not be able to work in any job in the national economy. Plaintiff relies on the vocational expert's testimony that if plaintiff's working memory was in the 0.1% of the population, he could work only in a sheltered workplace. Tr. 75.
A. Dr. Moran's Report
Plaintiff relies on the August 2015 report of psychologist Patrick Moran, Ph.D., as to the extent of his memory impairment. Tr. 503-19. During testing using the Wechsler Memory Scale (WMS-IV), plaintiff scored in the 0.1 percentile on working memory. Tr. 507. Dr. Moran found, "On tasks specific to memory, [plaintiff's] performance fell in the Borderline to Extremely Low range. His scores suggest that he does slightly better demonstrating recently learned visual information after a time delay when working memory demands are less. . . . [Plaintiff] performed better on tasks of auditory memory." Tr. 517.
Dr. Moran estimated a full-scale IQ score of 59 based on plaintiff's performance on the Wechsler Adult Intelligence Scale (WAIS-IV). Dr. Moran noted,
However, there was a significant discrepancy between his scores on several indices (Verbal Comprehension Index and Perceptual Reasoning Index, Perceptual Reasoning Index and Working Memory Index, as well as Perceptual Reasoning Index and Processing Speed Index). Therefore, in order to gain a more accurate picture of [plaintiff's] functioning, it is recommended that each index be considered separately. In fact, the General Ability Index (GAI) may be a better indicator of his overall ability as it is less sensitive to working memory and processing speed. [Plaintiff's] GAI is 68 which also falls in the Extremely Low range and at the 2nd percentile range.Tr. 506-07.
Dr. Moran diagnosed neurocognitive disorder, not otherwise specified; major depressive disorder, recurrent, moderate; and persistent depressive disorder. Tr. 518. Dr. Moran opined that plaintiff would benefit from assistance with daily medication management, attending medical appointments, and following guidelines for diet management. Tr. 518. Dr. Moran stated that plaintiff would "perform best in environments that he is actively engaged in," and "would benefit from a consistent routine that includes a consistent organizational system to aid with appointments and other organizational tasks." Tr. 519.
The ALJ gave Dr. Moran's opinion "moderate weight," finding that although his opinion "is consistent with his own examination, it is somewhat inconsistent with the record as a whole." Tr. 31. The ALJ found that plaintiff's treatment at the Native American Rehabilitation Association (NARA) for mental impairments "was rather mild." Tr. 31. In addition, the ALJ found that "it appears that Dr. Moran relied somewhat heavily on the claimant's own reporting as the record shows that the claimant usually did not display or denied symptoms from his depression or anxiety." Tr. 31. The ALJ did not include the 0.1% WMS memory test score in the RFC.
B. Dr. Wicher's Report
Plaintiff also received a psychological evaluation in October 2013, almost two years before Dr. Moran's evaluation. Plaintiff was examined by psychologist Dr. Donna C. Wicher, Ph.D., to determine "any mental, cognitive, or emotional difficulties which would interfere with [plaintiff's ability] to sustain full-time, gainful employment." Tr. 430. Dr. Wicher used many of the same tests as Dr. Moran, including WAIS-IV and WMS-IV.
Dr. Wicher stated that plaintiff "was alert throughout the interview. No gross deficits in memory or concentration were noted during the interview, but testing raised some questions about his abilities in these areas." Tr. 432. Dr. Wicher stated:
[Plaintiff] reported that he has been experiencing symptoms of cognitive inefficiency increasingly over time. His test results reveal a very modest level of intellectual ability and significant impairment in memory functioning, but his test results are somewhat discrepant with his report of his ability to perform activities of daily living, such as being able to travel independently, handle his finances, and work on a full-time basis. Consequently, there are some questions as to whether he may have been attempting to present himself as more cognitively impaired than is likely to be the case. More detailed cognitive testing with validity testing is recommended in order to clarify this possibility.Tr. 435. Dr. Wicher concluded that plaintiff's "mild deficits in his ability to perform activities of daily living, moderate deficits in social functioning, and moderate deficits in concentration, persistence, and pace represent the primary psychological barriers to his ability to sustain full-time, gainful employment." Tr. 435. Dr. Wicher, noting that plaintiff was then working full-time, opined that if plaintiff's difficulties could be addressed more effectively through medication management and possible cognitive behavioral techniques, then plaintiff would be more likely to continue working full-time. Tr. 435. Dr. Wicher diagnosed cognitive disorder NOS; major depressive disorder, recurrent, moderate; and panic disorder without agoraphobia. Tr. 434.
[Plaintiff] described only mild deficits in his ability to perform activities of daily living, based on his need for assistance with tasks requiring literacy skills. He appears to have moderate deficits in his ability to perform activities of daily living, based on some degree of difficulty controlling anger and some social isolation. He complained of problems with concentration, although no gross concentration deficits were evident during his evaluation. His persistence appeared to be limited by a tendency to give up quickly in response to challenging tasks. His pace was slow. His overall deficits in concentration, persistence, and pace are estimated to be moderate. He did not report a history of any episodes of psychological decompensation.
Plaintiff argues that Dr. Wicher's findings support a conclusion that plaintiff can work only in a sheltered workplace environment. Pl.'s Br. 9. But as the Commissioner points out, plaintiff was working full-time when Dr. Wicher evaluated him, and Dr. Wicher found evidence suggesting plaintiff had exaggerated the extent of his cognitive impairment. Def.'s Br. 14.
The ALJ gave Dr. Wicher's opinion "some weight," finding that the record as a whole indicated that plaintiff "has a modest level of intellectual disability." Tr. 30. In addition, the ALJ noted that Dr. Wicher gave her opinion in her area of expertise after she had examined plaintiff. Plaintiff does not contest the weight that the ALJ gave Dr. Wicher's opinion.
The Commissioner argues that plaintiff "does not challenge the weight given to Dr. Wicher's opinion or the ALJ's finding of malingering." Def.'s Br. 14 (emphasis added). I agree with plaintiff, however, that neither Dr. Wicher nor the ALJ made a finding of malingering. --------
C. Reviewing Psychologists' Opinions
The ALJ also considered the opinions of two reviewing psychologists, Dr. Bill Hennings, Ph.D., and Joshua Boyd, Psy.D., giving their opinions "great weight." Tr. 32. Both physicians opined that plaintiff "has moderate difficulties with detailed instructions but is able to remember and carry out simple work procedures and instructions." Tr. 32. Additionally, they both opined that the claimant has a "severe anxiety disorder, but that he can be punctual, work with others, make simple work decisions, and sustain a routine and complete normal week." Id.
The ALJ found the opinions of Drs. Henning and Boyd were consistent with the record as a whole. In crediting these physicians' opinions, the ALJ stated, "The claimant did not receive the type of treatment for his impairments that one would expect from a disabled individual. The claimant's function report [shows] that his impairments are not as severe as he alleges. Lastly, the claimant was able to work over a year during the relevant time period, which is consistent with both doctors' opinions." Tr. 32.
D. The ALJ's RFC on Mental Impairments
The ALJ considered these psychological evaluations in assessing plaintiff's RFC for mental impairments. The ALJ found that plaintiff has
an intellectual disability, anxiety disorder, and depression. These severe impairments limit him to performing simple routine repetitive tasks. Additionally, they limit him to hearing and having to understand simple oral instructions, and communicating simple information. Lastly, his severe impairments limit him to simple work-related decisions.Tr. 33. Based on this RFC, the vocational expert determined that plaintiff could perform his past relevant work as a kitchen helper and dishwasher, scrap sorter, bottle packer, and warehouse worker. Tr. 33. The ALJ could properly exclude plaintiff's WMS-IV memory test results from the RFC, based on the record as a whole, including Dr. Wicher's finding that plaintiff may have exaggerated his impairments, and plaintiff's ability to work despite his severe mental impairments. The ALJ "is not bound to accept as true the restrictions presented in a hypothetical question propounded by a claimant's counsel." Magallanes, 881 F.2d 747, 756. Instead, "[a]n ALJ is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence." Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).
Regarding his ability to work despite his mental impairments, plaintiff testified while working as a bottle packager, a coworker helped him by writing numbers on boxes. Tr. 50 ("The other guy would -- I would stack the boxes and he'll write the numbers down and put them on the boxes."). However, plaintiff testified after about six months, he was transferred to a similar job where he no longer had assistance from a coworker. Tr. 51. Plaintiff testified, "I still had problems with the numbers, because they had numbers on the pallets and on the boxes -- I had to grab the right ones and put them on the line. And a couple of times I gave them the wrong ones." Tr. 51. Plaintiff left that job after three months not for poor performance but only due to a company-wide lay off which included all other employees. Tr. 51. Plaintiff's ability to continue working without his coworker's assistance supports the ALJ's findings that plaintiff could perform his past relevant work. Substantial evidence supports the ALJ's decision that plaintiff was not disabled.
CONCLUSION
The Commissioner's final decision denying plaintiff's applications for disability insurance benefits and supplemental security income should be AFFIRMED, and a final judgment dismissing this action should be prepared.
SCHEDULING ORDER
This Finding and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the findings and recommendation will go under advisement on that date. If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
NOTICE
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
Dated this 19th day of December, 2018.
/s/ Jolie A. Russo
Jolie A. Russo
U.S. MAGISTRATE JUDGE