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declining to find issue waived where plaintiff "raised the issue with sufficient specificity" even though the plaintiff did not specifically explain her argument
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No. C 08-04071 JSW.
October 21, 2009
ORDER GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Now before the Court is the motion for summary judgment filed by Plaintiff Dorothy J. Littman ("Littman") and the cross-motion for summary judgment filed by Defendant Commissioner of Social Security, Michael J. Astrue ("Defendant"). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the administrative record and having considered the parties' papers and the relevant legal authority, the Court hereby DENIES Littman's motion for summary judgment and GRANTS the Defendant's cross-motion for summary judgment.
BACKGROUND
A. Factual Background.
Littman brings this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the Defendant's final decision denying her request for Social Security benefits. Littman is a forty-five year-old female, approximately five feet and five inches tall, and weighing approximately 200 pounds. (Administrative Transcript ("Tr.") at 23, 245.) She graduated high school and completed some college course work. (Tr. at 126, 181.) Littman previously worked as a cleaner, an escrow secretary, a receptionist, and a case manager. (Tr. at 29, 72-77.)
Littman has not engaged in substantial gainful activity since April 1, 2003. (Tr. at 23, 120.) Littman claims disability on the basis of lumbar spine pain, right upper extremity pain and depression. (Tr. at 120.) She alleges that these injuries have limited her ability to sit or stand for long periods of time, made it difficult for her to bend or reach, caused muscle spasms in her back, made performing household chores and ascending stairs more difficult for her, and caused mental strain. ( Id.) According to Littman, her back pain began in 1999 after she received epidural anesthesia during the birth of her second child. (Tr. at 83.)
Littman first sought treatment for her back from Dr. Dirk Van Meurs, a doctor at the Richmond Health Center, on February 10, 2003. (Tr. at 160). Dr. Van Meurs prescribed Vicodin for Littman's pain. (Tr. at 160.) Littman failed to keep two follow up appointments with Dr. Van Meurs in the spring of 2003. (Tr. at 159.) Dr. Van Meurs next treated Littman on July 26, 2004 for exacerbation of her back pain. Dr. Van Meurs again prescribed Vicodin for Littman's pain. (Tr. at 159.)
On February 21, 2006, a consulting physician, Dr. Jaskaran Momi, examined Littman. (Tr. at 165-66.) Dr. Momi noted that Littman's spinal curves were normal, however he also noted that Littman complained of "severe tenderness on gentle touch to the skin and the upper thoracic area, all over the lumbar area, sacral area, sacroiliac joint area . . . and the muscles in the suprascapular region and gluteal region." (Tr. at 165.) Littman denied "any tenderness in the paraspinous muscles in the thoracic or lumbar spines." ( Id.) During Dr. Momi's examination, Littman refused to do any bending and claimed to have suffered from a muscle spasm. ( Id.) Based on the objective findings of his examination of Littman, Dr. Momi found that there were no limitations on sitting, standing, walking, lifting, carrying, reaching, handling, fingering, gripping or feeling, "and there [were] no workplace[] or environmental limitations." (Tr. at 166.)
An X-ray of Littman's lumbosacral spine was taken on February 21, 2006, which showed "a slight increase in the lumbosacral angle and lumbar lordosis," "[t]he disc space at L5-S1 [was] borderline narrowed," and "[n]o sclerotic degenerative changes . . . present." (Tr. at 166, 168.)
On April 25, 2006, Littman was examined by consultative psychologist Ahmed El-Sokkary. (Tr. at 28, 181-84.) After he administered several intelligence tests, Dr. El-Sokkary found Littman's general cognitive ability to be in the borderline range of intellectual functioning. (Tr. at 183.) Dr. El-Sokkary diagnosed Littman as having an "adjustment disorder, with mixed anxiety and depressed mood." (Tr. at 184.) However, Dr. El-Sokkary found that Littman was "capable of maintaining the minium level of concentration, persistence, and pace to do basic work in an environment that her health condition would allow," was able "to understand, remember, and perform simple tasks," and was "able to appropriately interact with supervisors and co-workers." ( Id.)
Littman did not seek further treatment for her back pain until May 2006, when she was examined by Dr. Hai Nguyen. (Tr. at 26, 214.) She visited Dr. Nguyen several times over the next few months, and Dr. Nguyen prescribed pain medication for her. (Tr. at 26, 210-17.)
In September 2006, Littman began to see Dr. Bernard Herring at the William Byron Rumford Medical Center. (Tr. at 26, 238.) Over the next year, Littman visited Dr. Herring at least seventeen times for numerous issues including "hypertension concerns, urinary urgency, a chronic cough, allergies, a flu shot, a tuberculosis test . . . a hurt toe, a quarter-sized tender area on her left buttock, congestion, right shoulder pain, sinus problems, and lower back pain." (Tr. at 26, 219-38.)
On September 11, 2007, Dr. Herring completed a medical source statement for Littman. (Tr. at 26, 240.) Dr. Herring diagnosed Littman with hypertension, degenerative joint disease, low back pain, and right shoulder pain. ( Id.) Relying on several X-ray reports and Littman's subjective complaints, Dr. Herring noted significant physical limitations on Littman's ability to sit or stand for prolonged periods of time, her ability to work without taking breaks, and her ability to lift, twist, stoop, crouch, climb ladders or stairs, reach and manipulate with her fingers. (Tr. at 26-27, 242-43.)
Littman's hearing before the Administrative Law Judge ("ALJ") occurred on September 13, 2007. (Tr. at 261.) Also present at the hearing was Gerald D. Belchick, Ph.D., a vocational expert. ( Id.) Dr. Belchick testified that past work as an escrow secretary and a case manager was not consistent with a full scale IQ score of seventy-seven. (Tr. at 295). Littman testified at length about her back injury and the pain associated with it. (Tr. at 278-81.) Littman testified that she takes Tylenol with Codeine and Vicodin for her back pain. (Tr. at 281). She also testified that she experiences pain in the area around her upper arm and underarm. ( Id.)
The Court shall discuss additional facts as necessary in its analysis of the motions.
B. Procedural Background.
Littman filed applications for supplemental security income ("SSI") and disability insurance benefits ("DIB") on October 21, 2005, alleging that on April 1, 2003 she became unable to work because of her disabling condition. (Tr. at 21, 66.) Littman previously had applied for SSI but had been denied. (Tr. at 66, 141, 245.) Along with her October 21, 2005 application, Littman requested that the Social Security Administration reopen her previously denied application. (Tr. at 66, 141.)
On June 12, 2006, the Social Security Administration denied Littman's claims. (Tr. at 56.) Littman requested that the Social Security Administration reconsider her application. (Tr. at 55.) On March 1, 2007, after reconsidering Littman's claims, the Social Security Administration again denied Littman's claims for SSI and DIB. (Tr. at 50.) Littman then filed a timely written request for a hearing before an ALJ. (Tr. at 49.)
On December 12, 2007, the ALJ issued his decision denying Littman's disability claims. (Tr. at 21.) This appeal followed.
ANALYSIS
A. Standard of Review of Commissioner's Decision to Deny Social Security Benefits.
A federal district court may not disturb the Commissioner's final decision unless it is based on legal error or the findings of fact are not supported by substantial evidence. 42 U.S.C. § 405(g); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). To determine whether substantial evidence exists, courts must look at the record as a whole, considering both evidence that supports and undermines the ALJ's findings. Reddick, 157 F.3d at 720. The ALJ's decision must be upheld, however, if the evidence is susceptible to more than one reasonable interpretation. Id. at 720-21.
B. Legal Standard for Establishing a Prima Facie Case for Disability.
The plaintiff has the burden of establishing a prima facie case for disability. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). The ALJ follows a five-step process in determining whether the claimant is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); see 20 C.F.R. § 404.1520. First, the claimant must not be engaging in substantial gainful activity. § 416.920(b). Second, the claimant must have a severe impairment. § 416.920(c). Third, if the claimant's impairment meets or equals one of the impairments listed in Appendix 1 to the regulation (a list of impairments presumed severe enough to preclude work), the claimant will be found disabled without consideration of age, education, or work experience. § 404.1520(d). Fourth, if the claimant's impairments do not meet or equal a listed impairment, the ALJ will assess and make a finding about the claimant's residual functional capacity based on all relevant medical and other evidence in the claimant's case record. § 416.920(e). If the claimant can still perform her past relevant work, she will not be found disabled, otherwise the ALJ will go to step five. § 416.920(f). At the fifth step, if the claimant's impairments prevent her from making an adjustment to any other work in the national economy, she will be found disabled. § 404.1520(g). The claimant has the burden of proof at steps one through four; the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
In Littman's case, the ALJ found, at step one, that Littman had not engaged in substantial gainful activity since April 1, 2003. (Tr. at 23.) At step two, the ALJ found that Littman's obesity was a severe impairment but that she did not suffer from any other severe physical or mental impairments. (Tr. at 23-28.) In determining that Littman's back and shoulder pain were not severe impairments, the ALJ rejected the limitations imposed by Dr. Herring because the ALJ found no "objective basis" for them. (Tr. at 27.) Instead, the ALJ relied on the findings of Dr. Momi and noted that "there are no objective findings that lead to the conclusion that the claimant's condition has worsened since Dr. Momi's examination of her." ( Id.) The ALJ also found Littman's "allegations of disabling pain" not "to be fully credible or reliable." ( Id.) With regard to Littman's mental state, the ALJ noted inconsistencies between Littman's IQ scores and her past work experience, and he found there to be no evidence that Littman "has had more than a very mild mental impairment." ( Id.)
At step three, the ALJ found that Littman's impairment or combination of impairments did not meet or equal a listed impairment. (Tr. at 28.) At step four, the ALJ found that Littman had the residual functional capacity to perform the full range of medium work and again stated that he did not find Littman "credible to the extent that her back pain has been demonstrated to describe a `severe' impairment." (Tr. at 29.) The ALJ found that Littman could perform her "past relevant work as a cleaner, escrow secretary, receptionist" or case manager and that this work was not precluded by her residual functional capacity. ( Id.) The ALJ concluded that Littman was not disabled and denied her applications for SSI and DIB. ( Id.)
Littman argues that the ALJ's decision should be reversed, because the ALJ committed legal error and his decision was not supported by substantial evidence. Specifically, Littman contends that the ALJ: (1) improperly dismissed the opinion of her treating physician in favor of the opinion of her examining physician; (2) erred in finding that she did not suffer from a "severe" mental impairment; and (3) improperly rejected her subjective complaints. The Court will address each of these arguments in turn.
C. The ALJ Did Not Err by Rejecting the Treating Physician's Opinion in Favor of the Examining Physician's Opinion.
Littman argues that the ALJ erroneously rejected the opinion of her treating physician, Dr. Herring, in favor of the opinion of the examining physician, Dr. Momi. For the reasons discussed herein, despite the fact that Dr. Herring's opinion was "well-supported by medically acceptable clinical and laboratory diagnostic techniques," his opinion was "inconsistent with the other substantial evidence" in the record and was not entitled to controlling weight. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (quoting 20 C.F.R. § 404.1527(d)(2)). Therefore, the ALJ offered sufficient "`specific and legitimate reasons'" for favoring Dr. Momi's opinion over Dr. Herring's. See Reddick, 157 F.3d at 725 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Further, even if the ALJ was required to give Dr. Herring's opinion controlling weight, the ALJ properly favored Dr. Momi's opinion, because Dr. Momi provided the ALJ with findings from objective medical tests that Dr. Herring had not considered. See Orn, 495 F.3d at 632.
1. Legal Standard.
As a matter of law, "the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Id. at 631; see 20 C.F.R. § 404.1527(d). The treating physician's opinion is given controlling weight when it is "`well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record. . . .'" Orn, 495 F.3d at 631 (alteration in original) (quoting 20 C.F.R. § 404.1527(d)(2)). If it is given controlling weight, the treating physician's opinion can be rejected only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 830.
If the treating physician's opinion is not given controlling weight, "the ALJ may not reject this opinion without providing `specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725 (quoting Lester, 81 F.3d at 830). However, if the examining physician provides the ALJ with "`independent clinical findings that differ from the findings of the treating physician,'" then "such findings are `substantial evidence'" from which an ALJ may favor an examining physician's opinion over the opinion of a treating physician. Orn, 495 F.3d at 632 (citation omitted). Independent clinical findings consist of either "(1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence," or "(2) findings based on objective medical tests that the treating physician has not herself considered. . . ." Id. Even if the ALJ favors the examining physician's opinion, the treating physician's opinion is still entitled to deference, and the ALJ must consider the factors listed in 20 C.F.R. § 404.1527(d)(2)-(6) to determine what weight to accord that opinion. See Orn, 495 F.3d at 633-34.
2. Analysis.
From September 2006 through September 2007, Dr. Herring treated Littman for numerous ailments. (Tr. at 26, 219-38.) On September 11, 2007, Dr. Herring completed a medical source statement relying on three X-ray reports and on Littman's subjective complaints. (Tr. at 240.) Dr. Herring diagnosed Littman with hypertension, degenerative joint disease, low back pain, and right shoulder pain. ( Id.) Based on these findings, Dr. Herring opined that Littman could only sit or stand for fifteen minutes at a time and for less than two hours each work day; that she would need the ability to shift positions from sitting to walking or standing throughout the day; that she would need to take unscheduled breaks of ten to fifteen minutes throughout the day; that she would need to elevate her legs six to eight inches for fifty percent of the day; that she rarely lift items weighing ten pounds and never lift items weighing twenty pounds; that she never twist, stoop, crouch, climb ladders or climb stairs; that she not reach with her right arm at all during an eight-hour working day; that she only manipulate with her right fingers fifty percent of the day during an eight-hour day, and that she only grasp with her right hand twenty percent of the day during an eight-hour working day. (Tr. at 242-43.)
The Court is unable to locate the X-ray reports dated February 13, 2007, and June 21, 2007 anywhere within the record. ( See Opening Brief ("Br.") at 14, n. 119.) Furthermore, though Littman is correct that the ALJ had a duty to develop the record, the ALJ did not err by failing to require that the missing X-ray reports be included in the record. See Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). An ALJ's duty to develop the record is triggered only "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). In Littman's case, the record before the ALJ was neither ambiguous, nor inadequate to allow for proper evaluation of the evidence. Despite the fact that the X-ray reports themselves are absent from the record, Dr. Herring summarized their results within his report. (Tr. at 26-27). Specifically, Dr. Herring noted that one X-ray showed "mild disc and facet degeneration," another X-ray "reveal[ed] no fracture or subluxation" and the last X-ray was reported by Dr. Herring to be "negative." (Tr at 26.) Because Dr. Herring summarized the findings of the X-ray reports, the record was neither ambiguous nor inadequate to allow for proper evaluation of the evidence. As a result, the ALJ did not have a duty to further develop the record. Mayes, 276 F.3d at 460.
Dr. Herring's assessment of Littman's functional capacity is in stark contrast to that of Dr. Momi, the examining physician. Dr. Momi examined Littman and performed a number of functional capacity tests. (Tr. at 165.) Based on his examination and functional capacity tests, Dr. Momi found that there was no limitation on Littman's ability to sit, stand or walk. (Tr. at 166.) Dr. Momi also found that there was no limitation on Littman's ability to reach, handle, finger, grip, or feel, and that there were no workplace or environmental limitations. ( Id.)
Although Dr. Herring was Littman's treating physician, and the opinions of treating physicians are typically given controlling weight, his opinion was clearly contradicted by Dr. Momi's opinion. See Orn, 495 F.3d at 631. When "the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing `specific and legitimate reasons'" for doing so. Reddick, 157 F.3d at 725 (quoting Lester, 81 F.3d at 830). Here, the ALJ gave "specific and legitimate reasons" for rejecting Dr. Herring's opinion and for not giving it controlling weight. Lester, 81 F.3d at 830. First, the ALJ stated that he could not "find any objective basis for the claimant's limitations as outlined by Dr. Herring," and he noted that "[t]he very X-rays [Dr. Herring] cited are benign or at most mild." (Tr. at 27.) Second, the ALJ noted that Dr. Herring had "not recommended any treatment, other than pain medications, to alleviate the claimant's alleged pain." ( Id.) Furthermore, the ALJ noted that there were "no objective findings that lead to the conclusion that the claimant's condition has worsened since Dr. Momi's examination of her." ( Id.) Accordingly, the Court concludes that the ALJ did not err by favoring Dr. Momi's opinion over Dr. Herring's and did not err by not giving Dr. Herring's opinion controlling weight.
Moreover, even if Dr. Herring's opinion was entitled to controlling weight, the ALJ was permitted to give greater weight to Dr. Momi's opinion because that opinion was based on "independent clinical findings that differ from the findings of the treating physician," including "objective medical tests that the treating physician has not herself considered. . . ." Orn, 495 F.3d at 632 (citation omitted). "[S]uch findings [constitute] `substantial evidence.'" Id. Although Dr. Herring saw Littman at least seventeen times, the record does not describe the kind or quality of these examinations. (Tr. at 219-38.) As the ALJ pointed out, Dr. Herring's treatment records do not reflect, "any X-Ray [sic], MRI, or CT reports, recommendations for surgery, epidural steroid injections, anti-inflammatory medications, physical therapy, exercise, orders to apply heat or cold, or any other therapies for back pain one would expect were there medical concerns about any underlying injury or disease process." (Tr. at 26.) As best as the Court can discern, and as the ALJ found, Dr. Herring based his opinion of Littman's impairments on: (1) Littman's own subjective complaints of pain; (2) the results of three X-rays of Littman's back and shoulder, which Dr. Herring characterized as "mild," revealed no fracture, and as "negative;" and (3) on positive straight leg raises. (Tr. at 27, 240-41.)
Dr. Momi, on the other hand, performed a series of functional capacity tests and physical examinations. (Tr. at 164-66.) He conducted thorough examinations of Littman's neck, abdomen, back, and her extremities. (Tr. at 165-66.) He measured her range of movement, muscle strength, grip strength, reflexes and the level of her discomfort throughout testing. ( Id.) Dr. Momi noted that Littman could walk without the help of a walking device. (Tr. at 166.) Dr. Momi conducted straight leg raise tests and tests measuring Littman's extension and rotation. (Tr. at 165.) Dr. Momi performed an array of different objective medical tests that Dr. Herring had not performed, and thus did not consider. Therefore, the ALJ's rejection of Dr. Herring's opinion, in favor of Dr. Momi's, was supported by substantial evidence. See Orn, 495 F.3d at 632.
Although the ALJ properly favored Dr. Momi's opinion, Dr. Herring's opinion still is entitled to deference. See id. at 633. To determine what weight to give Dr. Herring's opinion, the ALJ is permitted to consider the nature and extent of the treatment relationship, the "supportability" of the opinion, and its consistency with the record as whole. 20 C.F.R. § 404.1527(d)(2)-(4); see Orn, 495 F.3d at 633. The treating source is typically given weight, especially if that physician "has seen [the patient] a number of times and long enough to have obtained a longitudinal picture of [her] impairment. . . ." § 404.1527(d)(2)(i). Using these factors, the ALJ's decision to favor Dr. Momi over Dr. Herring still is supported by substantial evidence. As noted, Dr. Herring was Littman's primary treating physician and he had seen Littman for approximately one year. (Tr. at 26.) However, Dr. Herring's treatment consisted of little more than prescribing pain medications. (Tr. at 26-27.) Dr. Momi, on the other hand, based his findings on a considerable amount of objective medical testing and explained his opinion in detail. (Tr. at 164-66.) Dr. Herring did not explain his opinion, or support it with relevant objective evidence. (Tr. at 27.) Therefore, the ALJ could justify affording less weight to Dr. Herring's opinion. See e.g. § 404.1527(d)(3).
In this case, the ALJ was permitted to favor the opinion of the examining physician, Dr. Momi, because it was better supported by and consistent with the record. § 404.1527(d)(2)-(6). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Accordingly, the Court affirms the ALJ's decision because it is supported by substantial evidence and free from legal error. 42 U.S.C. § 405(g).
D. Substantial Evidence in the Record Supports The ALJ's Conclusion That Littman's Mental Impairment Was Not "Severe."
Littman argues that the ALJ erred in concluding that her mental impairment was not severe. A non-severe mental impairment is an impairment that "does not significantly limit [a claimant's] . . . mental ability to do basic work activities." 20 C.F.R. § 404.1521(a). Examples of basic work activities include "[u]nderstanding, carrying out, and remembering simple instructions," "[u]se of judgment," and "[r]esponding appropriately to supervision, co-workers and usual work situations." 20 C.F.R. § 404.1521(b).
1. The consulting psychologist's report supported the ALJ's conclusion that Littman did not suffer from a severe mental impairment.
Contrary to Littman's assertions, the report by the examining psychologist, Dr. El-Sokkary, supported the ALJ's conclusion that Littman suffered from a non-severe mental impairment. An examining physician's report alone can constitute substantial evidence supporting an ALJ's determination regarding an impairment. Allen, 749 F.2d at 579-80 (holding that an examining physician's opinion that is based on a thorough examination and objective clinical tests, rather than simple "check marks in boxes on a form supplied by the Secretary" will constitute substantial evidence).
Here, the ALJ found that Littman suffered from a non-severe mental impairment. (Tr. at 28.) In so finding, the ALJ cited to the report of Dr. El-Sokkary. ( Id.) Dr. El-Sokkary is a clinical psychologist, and he examined Littman at the request of the Department of Social Services. (Tr. at 181-84.) He diagnosed Littman with an "adjustment disorder, with mixed anxiety and depressed mood." (Tr. at 184.) Dr. El-Sokkary found that Littman "demonstrat[ed] a capacity to understand, remember, and perform simple tasks." ( Id.) Although Dr. El-Sokkary found Littman's "overall cognitive ability, as estimated by the Full Scale IQ," to be in the borderline range, he also found that Littman "was capable of maintaining the minimum level of concentration, persistence, and pace to do basic work in an environment that her health condition would allow." ( Id.) He also noted that Littman "was cooperative throughout the evaluation" and that she "would be able to appropriately interact with supervisors and co-workers. . . ." ( Id.) Overall, Dr. El-Sokkary's description, diagnosis and prognosis present ample evidence to support the ALJ's finding that Littman's mental impairments did not significantly limit her ability to do basic work activities and thus that Littman's mental impairment was not severe. See Perez Torres v. Sec'y of Health and Human Servs., 890 F.2d 1251, 1255 (1st Cir. 1989) (finding similar evidence supported an ALJ's conclusion that a claimant's mental impairment was non-severe). Thus, the ALJ's conclusion that Littman did not suffer from a severe mental impairment was supported by substantial evidence.
2. The ALJ gave the proper weight to Dr. El-Sokkary's opinion, and properly relied on statements made by the vocational expert, Dr. Belchick.
Littman also claims that the ALJ wrongly relied on statements by the vocational expert, Dr. Belchick, and wrongly rejected Dr. El-Sokkary's findings. Though it does not appear to the Court that the ALJ rejected Dr. El-Sokkary's opinion, as Littman contends he did, the ALJ nevertheless was obligated to "explain in the decision the weight given to the opinions of a State agency . . . psychological consultant. . . ." 20 C.F.R. § 404.1527(f)(2)(ii); Soc. Sec. Ruling 96-6P (1996); see also Holohan v. Massanari, 246 F.3d 1195, 1203 n. 1 (9th Cir. 2001) (finding that Social Security Rulings do not have the force of law but are binding on all components of the Social Security Administration and are given "some deference" by the court).
The Commissioner's regulations state that the ALJ will determine the severity of the claimant's mental impairment after he rates the degree of functional limitations resulting from that impairment. 20 C.F.R. § 404.1520a(d). The four areas of functional limitation are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of decomposition. 20 C.F.R. § 404.1520a(c)(3). If the ALJ rates the limitations in the functional areas as "mild" or "none," he generally will conclude that the claimant's impairment is not severe. 20 C.F.R. § 404.1520a(d)(1). If the ALJ finds the claimant has a severe mental impairment that neither meets nor is equivalent in severity to any listing, he then will assess the claimant's residual functional capacity. 20 C.F.R. § 404.1520a(d)(3).
Here, Dr. El-Sokkary found that Littman had the "capacity to understand, remember and perform simple tasks." (Tr. at 184.) He also found that Littman "was capable of maintaining the minimum level of concentration, persistence, and pace to do basic work." ( Id.) Dr. El-Sokkary also found that Littman "was capable of adequately communicating and therefore would be able to appropriately interact with supervisors and co-workers." ( Id.) Implicit in Dr El-Sokkary's findings is that, in his opinion, Littman did not suffer from a severe mental impairment.
Although the ALJ was required to address the opinion of the state agency physician, Dr. El-Sokkary, the ALJ adequately explained the weight that he gave to Dr. El-Sokkary's opinion. In his decision, the ALJ cited to Dr. El-Sokkary's report, and summarized its findings. (Tr. at 28.) Although the ALJ agreed with Dr. El-Sokkary's overall conclusion that the claimant did not suffer from a severe mental impairment, the ALJ pointed out an inconsistency between the IQ scores, as reported by Dr El-Sokkary, and Littman's past relevant work. ( Id.) The ALJ noted that "Dr. El-Sokkary does not appear to have considered this inconsistency in his report, but I have considered whether this inconsistency could be due to less than optimal effort, in an attempt to secure benefits." ( Id.) Contrary to Littman's assertions, the ALJ did not reject Dr. El-Sokkary's opinion, but instead merely pointed out this inconsistency while agreeing with Dr. El-Sokkary's finding of a non-severe mental impairment. ( Id.) Thus, the ALJ did discuss the weight he gave to the opinion of the non-examining physician, Dr. El-Sokkary. 20 C.F.R. § 404.1527(f)(2)(ii)
Littman further argues that, the ALJ erred in considering the vocational expert's testimony regarding Littman's IQ scores being inconsistent with her past relevant work. However, a vocational expert "may offer relevant evidence within his or her expertise or knowledge concerning the . . . mental demands of a claimant's past relevant work." 20 C.F.R. § 404.1560(b)(2). Here, the vocational expert, Dr. Belchick, gave his testimony, based on his experience and knowledge as a vocational expert about the mental demands of Littman's past relevant work. (Tr. at 295-96.) Dr. Belchick's opinion was that Littman's IQ scores, as reported by Dr. El-Sokkary, were not consistent with her past work as an escrow secretary and as a case manager. ( Id.) Dr. Belchick said that he would have expected Littman's IQ scores to have been higher given her past relevant work, and the mental demands typically associated with that work. ( Id.) He also stated that his opinion was based on his expertise as a vocational expert, and not as a psychologist. ( Id.) Discussing the mental requirements of a claimant's past relevant work is a subject matter fully within the acceptable scope of a vocational expert's opinion. 20 C.F.R. § 404.1560(b)(2) Thus, the ALJ neither erred in questioning Dr. Belchick on this topic, nor erred in taking into consideration Dr. Belchick's opinion on the matter. ( Id.)
E. The ALJ Properly Considered Littman's Subjective Complaints of Pain.
Littman claims that the ALJ improperly disregarded her testimony regarding her severe pain. An ALJ must engage in a two-step analysis in order to make a determination of credibility. Lingenfelter v. Astrue, 504 F.3d 1028, 1036-37 (9th Cir. 2007). First, the ALJ must decide whether there is objective medical evidence of an underlying impairment "`which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1037 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). To meet this standard, a claimant must show that her impairments " could reasonably be expected to (not that it did in fact) produced some degree of symptom." Smolen, 80 F.3d at 1282 (emphasis in original). Second, if the first test is satisfied and there is no evidence of malingering, "the ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so." Id. at 1284. The ALJ cannot use general conclusions but must "specify what testimony is not credible and identify the evidence that undermines the claimant's complaints." Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Orn, 495 F.3d at 635 (noting that an ALJ may not "discredit a claimant's testimony when a medical impairment has been established" without providing "`specific, cogent reasons for the disbelief'") (citation omitted).
Defendant argues that Littman has failed to address this argument and, as a result, it should be deemed waived. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (noting that "we will not consider any claims that were not actually argued in appellant's opening brief" and that "we `review only issues which are argued specifically and distinctly in a party's opening brief'") (quoting Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994)). However, the Court does not believe that Littman has failed support her argument to such a degree that it should be deemed waived. Although Littman did not specifically state why the ALJ's stated reasons for rejecting her subjective complaints were not "specific, clear and convincing," by calling into question the legitimacy of the ALJ's stated reasons for rejecting her subjective complaints, Littman has raised the issue with sufficient specificity that this Court will not deem it waived. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996).
In determining the credibility of a claimant's complaints of pain, an ALJ is permitted to consider a number of factors including: "(1) [t]he nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) [p]recipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) [t]ype, dosage, effectiveness, and adverse side-effects of any pain medication; (4) [t]reatment, other than medication, for relief of pain; (5) [f]unctional restrictions; and (6) [t]he claimant's daily activities." Burch, 400 F.3d at 680 (quoting Bunnell, 947 F.3d at 346). An ALJ also may consider any inconsistencies in the claimant's testimony, a claimant's unexplained "failure to seek treatment or to follow a prescribed course of treatment," or "observations of treating and examining physicians and other third parties regarding, among other matters, the nature, onset, duration, and frequency of the claimant's symptom[s]." Smolen, 80 F.3d at 1284. If the ALJ supported his credibility determination with substantial evidence in the record, it is not the Court's role "`to second-guess that decision.'" Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (quoting Fair v. Bowen; 885 F.2d 597, 603 (9th Cir. 1989).
Here, the ALJ found that Littman's medically determinable impairment could reasonably be expected to produce some of the alleged symptoms. (Tr. at 25.) The ALJ did not cite any specific evidence of malingering and was therefore required to give "`specific, clear and convincing reasons'" for rejecting Littman's testimony about the severity of her pain. Vasquez v. Astrue, 547 F.3d 1101, 1105 (9th Cir. Cal. 2008) (quoting Lingenfelter, 504 F.3d at 1036). As discussed herein, the ALJ gave "`specific, clear and convincing reasons'" for rejecting Littman's subjective complaints of pain, and thus he did not err in rejecting her testimony. Id.
First, the ALJ stated that he found Littman's excessive pain testimony not credible based on the "lack of objective medical findings that support a conclusion that she is disabled for work." (Tr. at 25.) While a "lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis." Burch, 400 F.3d at 681. The ALJ noted that the X-rays in the record "are benign or at most mild," and did not constitute objective evidence supporting Littman's assertions of pain. (Tr. at 27.) Specifically, the ALJ noted that Dr. Herring, the treating physician, summarized the three X-rays that he relied on as "reveal[ing] mild disc and facet degeneration . . . reveal[ing] no fracture or subluxation." and as "negative." ( Id. at 26.) Another X-ray, ordered by the examining physician, Dr. Momi, was similarly mild, and revealed "a slight increase in the lubosacral angle and . . . [n]o sclerotic degenerative changes." ( Id. at 27.) See Burch, 400 F.3d at 681 (discounting a claimant's complaints of pain based on X-rays and an MRI showing "mild degenerative disc disease . . . and mild dextroscoliosis").
Second, the ALJ stated that he found Littman's excessive pain testimony not credible based on the the "lack of medical treatment for her back pain." (Tr. at 27.) "[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) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). The ALJ noted that "Dr. Herring has not recommended any treatment, other than pain medications, to alleviate the claimant's alleged pain," and that Littman's medical history was devoid of any treatments or therapies "one would expect were there medical concerns about any underlying injury or disease process." (Tr. at 25, 27.) See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting a claimant's subjective complaints of pain because her complaints were inconsistent with the "minimal, conservative treatment" that she received); Parra, 481 F.3d at 751 (rejecting a claimant's subjective complaints of pain because his "physical ailments were treated with an over-the-counter pain medication").
Third, the ALJ found inconsistencies in Littman's "statements and conduct." ( Id. at 25.) An ALJ may consider "inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct," in making a credibility determination. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Here, the ALJ pointed out specific inconsistencies between Littman's testimony and that of her friend, Ms. Woods. (Tr. at 25.) Specifically, the ALJ noted inconsistencies in Littman's testimony concerning her ability to stay focused, as well as her ability to finish tasks. ( Id.) The ALJ also pointed out inconsistencies between Littman's reported IQ scores, and her past relevant work. (Tr. at 27.)
The three reasons given by the ALJ for rejecting Littman's subjective complaints of pain are "specific, clear and convincing." As a result, the ALJ did not err in rejecting Littman's complaints of pain.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES Littman's motion for summary judgment and GRANTS the Defendant's cross-motion for summary judgment. A separate judgment shall be entered, and the Clerk is directed to close the file.