Opinion
No. C-00-0425-CAL
January 5, 2001
ORDER FOR SUMMARY JUDGMENT
Andrea M. McKenzie brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405 (g), for judicial review of the final decision of the defendant Commissioner of Social Security that plaintiff does not qualify for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Plaintiff has filed a motion for summary judgment. Defendant opposes plaintiff's motion, and has filed a counter motion for summary judgment.
I.
On April 30, 1997 plaintiff filed an application for disability insurance benefits under Title II, alleging disability since May 26, 1995. The application was denied on June 4, 1997. Plaintiff's request for reconsideration was denied on September 16, 1997. After an administrative hearing, the Administrative Law Judge, Hon. Catherine R. Lazuran, ("ALJ") denied plaintiff's application on May 15, 1998. The Appeals Council affirmed the ALJ's decision on January 14, 2000. Thereafter, plaintiff commenced this action for judicial review.
The medical evidence before the ALJ established that plaintiff had impairments of degenerative disc disease of the cervical spine and the thoracic spine (Tr. 15). The ALJ found that plaintiff has not performed substantial gainful activity since the alleged onset date of her disability (Tr. 15). However, the ALJ also found that the medical evidence failed to show that plaintiff's impairments were attended by clinical findings that met or equaled in severity the criteria required by Social Security Regulations (Tr. 15).
The ALJ then proceeded to determine plaintiff's residual functional capacity to perform past relevant work, or plaintiff's ability to do other work that exists in significant numbers in the national economy (Tr. 15). Plaintiff was 51 years old at the alleged onset date. Plaintiff has a high school education and has past relevant work experience as a travel consultant and administrative assistant (Tr. 15). After conducting a hearing, the ALJ found that plaintiff could have performed her past relevant work as an administrative assistant despite her functional limitations. (Tr. 21).
II.
The jurisdiction of this court on review is not to reweigh the evidence before the ALJ or to substitute its own judgment for that of defendant; but rather, it is limited to determining whether there is substantial evidence to support the decision. See Hall v. Secretary of Health. Education. and Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979). The Commissioner's final decision must be affirmed if it is supported by substantial evidence and free of legal error. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Substantial evidence is more than a mere scintilla, but less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). The court's review is directed to the record as a whole and not merely to the evidence tending to support a finding. See Cox v. Califano, 587 F.2d 988, 990 (9th Cir. 1978).
III.
Plaintiff alleges that defendant's decision was not supported by substantial evidence and used incorrect legal standards. Specifically, plaintiff raises the following issues: (1) Whether the ALJ properly disregarded the opinion of plaintiff's treating physician sources; (2) whether the ALJ properly found that plaintiff possesses residual function capacity; (3) whether the ALJ properly disregarded plaintiff's subjective complaints, for lack of credibility; and (4) whether the ALJ properly found that plaintiff could have performed her past relevant work.
IV. The ALJ Properly Disregarded the Opinions of Plaintiff's Treating Physicians
Plaintiff contends that the ALJ improperly disregarded the opinion of Dr. John W. Ward, plaintiff's treating physician. Dr. Ward opined that plaintiff's residual function capacity is permanently restricted (Tr. 294). The ALJ declined to adopt Dr. Ward's opinion, because the conclusion of disability was not corroborated by clinical findings and was primarily based upon plaintiff's reporting of her subjective complaints, which the ALJ found to be not fully credible (Tr. 18). The record establishes that the ALJ properly rejected the opinion of the treating physician, with specific and legitimate reasons.
More weight is usually given to the opinion of a treating source than a non-treating source. See 20 C.F.R. § 404.1527 (d)(2) (1999). However, the treating physician's opinion may not be given controlling weight if it is not supported by medically acceptable clinical and laboratory diagnostic techniques, and is inconsistent with the other substantial evidence in the record. See 20 C.F.R. § 404.1527 (d) (1999); Social Security Ruling 96-2p. If the treating physician's opinion is contradicted by another doctor, the ALJ may reject the opinion of a treating physician based on specific, legitimate reasons. See Magallanes, 881 F.2d at 751. Further, "the ALJ need not accept a treating physician's opinion which is brief and conclusionary in form with little in the way of clinical findings to support [the] conclusions." Id.
In rejecting Dr. Ward's opinion, the ALJ concluded that the treatment records did not reflect severe limitations and severe symptoms as of the onset date (Tr. 18). The ALJ noted that plaintiff reported feeling better, with "little if any neck pain," in a November 1, 1996 visit to Dr. Ward (Tr. 253); and that during a follow-up examination a week later, Dr. Ward noted that plaintiff's symptoms of cervical pain were improved (Tr. 254). The ALJ noted that plaintiff's low frequency of treatment with Dr. Ward indicated that plaintiff's symptoms were not as bad as she claims (Tr. 18). The ALJ also cited plaintiff's ability to play nine holes of golf as suggesting physical functioning that was inconsistent with her complaints of disabling pain. Plaintiff argues that one incident of playing golf is insufficient to discredit Dr. Ward's diagnosis. This argument in itself may be correct, but the golfing incident was merely one of the factors that led the ALJ to her decision.
The ALJ also found that many of Dr. Ward's statements appeared to be based on plaintiff's subjective complaints that were not supported by objective evidence (Tr. 18). Dr. Ward's opinion that plaintiff's residual functional capacity was limited derived from a "check-the-box" questionnaire administered on June 30, 1997 (Tr. 292-294). However, Dr. Ward's own clinical records did not support that opinion.
Further, the opinion was contradicted by a medical expert Dr. Lewis Lesko, and by a state agency physician. Dr. Lesko opined that plaintiff had no significant physical limitations (Tr. 67-71). The state agency physician recommended restrictions generally compatible with light work (Tr. 282-289). Plaintiff is now essentially arguing that the ALJ improperly relied on the opinions of those medical experts over that of her treating physician. That argument incorrectly states the record, because the ALJ did not rely solely on their opinions to conclude that Dr. Ward's opinion was not entitled to controlling weight. Their opinions were just some of the factors considered by the ALJ.
Finally, plaintiff argues that neither the ALJ nor Appeals Council credited the statement of plaintiff's other physician, Dr. John Grollmus. He stated that Dr. Lesko's opinion regarding the lack of an organic basis for plaintiff's impairments was ludicrous. Plaintiff contends that the ALJ's lack of consideration of this statement was legal error. But the ALJ specifically disagreed with Dr. Lesko that there was no organic basis to plaintiff's impairments. Instead, the ALJ found that while plaintiff's impairments were severe and organic in nature, but that plaintiff nevertheless retained a residual functional capacity for sedentary work (Tr. 19-20).
In considering all of the medical evidence, including the opinions of Drs. Ward, Lesko, and Grollmus as well as the state agency physician, and by providing specific, legitimate reasons, the ALJ entitled to find that Dr. Ward's opinion of disability was not to given controlling weight. That finding was supported by substantial evidence.
V. The ALJ's Residual Function Capacity Was Proper
The ALJ found that plaintiff retains residual functional capacity for sedentary work, with additional non-exertional limitations (Tr. 20). The ALJ also concluded that plaintiff could have performed her past relevant work (Tr. 20). Plaintiff argues that the ALJ's finding was not supported by substantial evidence. Plaintiff asserts that the ALJ improperly focused on plaintiff's activities and attempted to equate them with an ability to engage in substantial gainful activity.
These activities included: working part-time at a travel agency for 14 months after the onset date, traveling to China, walking up to a mile a time, doing grocery shopping, cooking and dishwashing, driving, seeing friends weekly, flying to Kentucky to visit family, flying to Massachusetts to visit family, occasionally playing golf, taking the ferry to San Francisco, and exercising on a treadmill.
However, plaintiff fails to draw a distinction between residual functional capacity and substantial gainful activity. Plaintiff objects to the ALJ's use of the list of plaintiff's activities to show that plaintiff was able to engage in substantial gainful activity, because activities like taking care of oneself or doing household tasks are not considered substantial gainful activity. See C.R.R. § 404.1572(c) (1997). Plaintiff's objection is misplaced, because the ALJ did not find that these activities were equivalent to substantial gainful activity; but instead used them to assess plaintiff's residual functional capacity.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545 (a) (1996). This concept focuses on the claimant's ability to tolerate a sustained daily work routine. See Cox, 587 F.2d at 988, Social Security Ruling 86-8. All factors that bear upon a claimant's employability in a competitive marketplace and ability to perform on a sustained basis are important.See Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980). The issue of residual functional capacity is the ability of the claimant, whereas the issue of substantial gainful activity is the appropriateness of a particular job.
Plaintiff also argues that the ALJ improperly took into account plaintiff's part-time work as a travel agent after the onset date in assessing plaintiff's residual functional capacity. Plaintiff characterizes the work as an unsuccessful work attempt. However, an unsuccessful work attempt is a work effort limited to six months and must have ended or been reduced to the non-substantial gainful activity level due to the impairment or the removal of special considerations that are essential to the performance of work. SeeSocial Security Ruling 84-25. Here, plaintiff's work was not an unsuccessful work attempt; the ALJ found it to be not at the substantial gainful activity level. It was proper for the ALJ to consider her work, consisting of several days a week for over a year, in assessing plaintiff's residual functional activity.
Based on plaintiff's activities and the ALJ's conclusions regarding the medical evidence, there is substantial evidence to support the ALJ's finding that plaintiff retains residual functional capacity to perform her past relevant work despite her functional limitations.
VI. The ALJ's Credibility Finding
Plaintiff argues that the ALJ's reasons for discrediting plaintiff's allegations of disabling pain were legally insufficient and evidenced a biased attitude. However, the record shows that the ALJ made a proper credibility finding based on the totality of the circumstances and offered specific, legitimate reasons for the assessment.
Once the claimant produces objective medical evidence of an underlying impairment, the ALJ may not reject the claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain. See Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Further, the ALJ must specifically make findings that support a conclusion that the claimant's allegations of severity are not credible. See id. Questions of credibility are the province of the ALJ and the court should not attempt to "second guess" such determinations.See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).
Here, the ALJ found that plaintiff's activities (see footnote 1) during the relevant period to be fairly extensive and thus they reflect significant physical functioning (Tr. 19). The ALJ also found that plaintiff's medications and use of a cervical pillow were effective in improvement of her pain symptoms (Tr. 18). Further, acupuncture treatment had significant effect on plaintiff's symptoms (Tr. 37, 302). Additionally, the ALJ took into account several of plaintiff's inconsistent statements in evaluating her credibility. See Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (ALJ may rely upon inconsistencies to discredit a claimant's subjective statements). Finally, the ALJ found that plaintiff's infrequent medical treatment to be inconsistent with her allegation of disabling pains (Tr. 18).
Plaintiff testified that her symptoms decreased after she left her job in mid-1995 because she "did nothing," while she later acknowledged that she began working as a travel agent under limited hours for over a year after quitting her previous job (Tr. 19, 32, 40). Plaintiff testified that she worked as a travel agent until April 1997, but on her disability report she stated that she stopped working in July 1996. Plaintiff testified that she had been unable to work since April 1997, while she indicated in her application for disability benefits that she had been unable to work since May 26 1995.
VII. The ALJ's Finding That Plaintiff Could Perform Her Past Relevant Work Was Proper
Plaintiff essentially argues that the ALJ's finding that plaintiff retains residual functional capacity is erroneous because the vocational expert, Robert Raschke, testified otherwise. This argument takes Mr. Raschke's testimony out of context. As a part of Mr. Raschke's testimony, the ALJ asked him a series of hypothetical questions regarding plaintiff's ability to perform her past relevant work (Tr. 78-81). The ALJ varied the hypothetical questions by changing the relevant factors, such as the time interval between sitting and standing. Some of the questions included assumptions consistent with Dr. Ward's opinion and with plaintiff's subjective complaints. Mr. Raschke's answers to the hypothetical questions, using factors from Dr. Ward's opinion and plaintiff's subjective complaints, were consistent with a conclusion that plaintiff does not possess the residual functional capacity to perform her relevant past work. However, this does not mean that the ALJ's finding to the contrary was erroneous. It merely shows that if the ALJ had adopted Dr. Ward's opinion and plaintiff's complaints, which the ALJ did not, the finding could be in plaintiff's favor.
As discussed above, the ALJ properly disregarded Dr. Ward's opinion and plaintiff's subjective complaints. Thus, the ALJ properly relied on Hr. Raschke's full testimony (testimony based on the medical opinions adopted by the ALJ) to find that plaintiff retains residual functional capacity to perform her past relevant work despite her functional limitations.
VIII.
The court finds no legal error committed by the ALJ. And while the evidence was contradictory and might have produced a different result, there is substantial evidence to support the findings and conclusions of the ALJ. Since there is such substantial evidence, this court is required to defer to the decision of the ALJ.
IT IS THEREFORE ORDERED that judgment will be entered in favor of defendant and against plaintiff.
IT IS SO ORDERED.