Opinion
No. C 00-1904 CRB
April 25, 2001
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT
Now before the Court is the plaintiff's motion for summary judgment. The plaintiff is appealing the administrative law judge's denial of his supplementary security income claim. The defendant opposes the plaintiff's motion and has counter-moved for summary judgment. Having carefully considered the parties' papers, the plaintiff's motion for summary judgment is hereby DENIED, and the defendant's cross-motion for summary judgment is GRANTED.
BACKGROUND
A. Procedural History
On April 4, 1994, the plaintiff Stephen Nicklas filed his current application for supplementary security income ("SSI"). That application was denied both initially and on reconsideration. Nicklas then requested an administrative law judge ("ALJ") hearing. On August 24, 1998, the ALJ determined that the plaintiff was not disabled. On March 27, 2000, the Appeals Council denied the plaintiff's request for review. Nicklas then commenced the instant action pursuant to 42 U.S.C. § 416.1325(g) and 1383(c)(3).
B. Personal History
Stephen Nicklas was born August 3, 1951. Nicklas never completed high school, having dropped out in 10th grade to join the Army. Nicklas worked sporadically at various odd jobs after an honorable discharge from the Army, but he never developed a steady occupation. During this time Nicklas had a series of brushes with the law, including two burglary convictions, two forgery convictions, a contempt conviction, and a vehicle theft conviction.
The plaintiff ceased working and began receiving SSI in 1974 due to alleged back problems and ulcers. He remained on SSI until September 1989, when he was convicted and sentenced to prison for possession of a controlled substance with intent to distribute and for inflicting injury upon a child. His eligibility for SSI was terminated due to this incarceration.
The plaintiff worked in a warehouse keeping track of canned goods while in prison. He remained in prison until July 1993, when he was released on parole. Nicklas has since been engaged in the process of trying to resume his SSI payments.
C. Medical History
The plaintiff has an extensive recent history of medical problems. The majority of his problems seem to stem from his obesity, including diabetes and back pain. For the purposes of SSI eligibility, only the plaintiff's medical records from 1988 onward were considered.
In April 1988, the plaintiff was diagnosed with diabetes. In September 1988, he was treated at Los Medanos Community Hospital for a fall on his left hip. In December 1988, he was treated at the same hospital for a fall on his right shoulder. The x-rays were negative for both injuries.
In November 1993, the plaintiff had x-rays taken at the VA Medical Center that revealed minor skeletal abnormalities, including mild spinal wedging at T12-L1, sinusitis, and mild degenerative changes in the right knee. He also had a borderline electrocardiogram.
In December 1993, the plaintiff had a medical examination for General Assistance ("GA"). He was diagnosed with obesity, chronic back pain, and hypertension. On June 23, 1994, he had another GA examination at Contra Costa County Health Services ("CCCHS"). He was diagnosed with non-insulin dependent diabetes mellitus, obesity, chronic low back pain, and elevated blood pressure.
On August 12, 1994, consulting internist Eugene McMillan, M.D., examined the plaintiff and reviewed his medical records. The plaintiff complained of pain in his lower back when getting out of chairs, but was able to do so. His gait was normal. He had normal grip strength. Dr. McMillan observed Nicklas flex his back in order to remove his sock; however, when formally tested, the plaintiff indicated that he could not flex his back that far. An x-ray showed mild degenerative changes in the lumbar, and an old anterior wedge compression at T12. The final diagnosis was adult onset diabetes and chronic low back pain due to obesity. At that time, the plaintiff weighed about 308 pounds.
On October 8, 1994, the plaintiff was referred for a mental health evaluation by the Department of Corrections. Psychologist James Gavan, Ph.D., noted that Nicklas presented as physically ill, helpless, and passive. The diagnosis was adult anti-social behavior and mixed personality disorder.
In late 1994, Dr. Richard Sander of the Social Security Administration ("SSA") reviewed the plaintiff's medical records. He noted that the plaintiff's true range of motion in his back was near normal. Dr. Sander opined that the plaintiff appeared capable of at least light level activity, e.g., lifting ten to twenty pounds, sitting, standing, or walking for six hours in an eight-hour day.
On February 8, 1995, the plaintiff was examined by consulting psychiatrist Marshall Blatt, M.D. Dr. Blatt concluded that Nicklas could maintain attention, comprehension, and memory necessary to carry out simple one or two-step jobs. However, Dr. Blatt opined that it was difficult to say whether Nicklas could withstand the stresses and pressures of an eight-hour workday but that he apparently had little motivation to do so. The diagnosis was somatoform pain disorder.
In March 1995, Dr. Bernard Levinson of the SSA affirmed Dr. Sander's opinions. SSA psychiatrist Dr. Irwin Lyons reviewed Dr. Blatt's report and concluded that the somatoform disorder was not severe and caused only slight functional limitations. He further opined that the plaintiff could perform substantial gainful activity.
In September 1995, electro-diagnostic studies revealed neuropathy at both of the plaintiff's wrists and peripheral polyneuropathy. In February 1996, Nicklas visited CCCHS and stated that he felt fine, except for hand numbness, tingling, and joint discomfort. On May 6, 1996, the plaintiff returned to CCCHS and again complained of numbness and pain in his hands, but he was not in acute distress. In July 1996, Nicklas returned to complete another GA form, and the clinician noted diabetes without complications but also stated that Nicklas was permanently disabled.
On March 21, 1997, the plaintiff returned to CCCHS for a routine follow up. He stated that he felt good and had been traveling frequently. The diagnoses were diabetes, obesity, and hypertension.
On September 20, 1997, the plaintiff was examined by consulting neurologist Dr. Daniel Katzenberg. Dr. Katzenberg reported that Nicklas had diabetic neuropathy manifesting itself as decreased sensation and weakness of the distal arms, and decreased sensation of the distal legs. He concluded that the plaintiff could do light duty work, but his impaired coordination limited his capacity to do desk work. He also opined that Nicklas could carry ten to twenty pounds, sit, stand, and walk unimpaired, but reaching, handling, feeling, pushing, and pulling were impaired by weakness and wasting of hand muscles.
On October 22, 1997, the plaintiff underwent a consultative psychological examination. The examiners deferred diagnosis but opined that Nicklas had no mental impairment. They concluded that his capacity for work and performance adjustments were good to very good.
In October and November 1997, clinicians at CCCHS prescribed Nicklas the narcotic painkiller Vicodin. In January 1998, a CCCHS clinician reported that the plaintiff had puffy hands, poor grip, decreased sensation.
On February 25, 1998, three non-physician therapists evaluated the plaintiff's functional capacity. The summary indicated that he had limited ability to perform functional tasks. He had fair to good strength and limited range of motion with pain. He could lift twenty pounds and carry it for forty feet. The therapists opined that Nicklas might benefit from physical therapy.
D. ALJ Hearing Testimony
On January 20, 1998, the plaintiff testified at an ALJ hearing that he could not work because of constant hand pain, forearm pain, and foot pain. He indicated that he could lift twenty-five pounds. He alleged that he could walk no more than three or four blocks, that he could stand only twenty or thirty minutes, and that he could not sit through a movie. On the other hand, the plaintiff admitted that he normally sat most of the day at the Pittsburgh Marina, that he fished once or twice monthly, and that he could hold a pen and drive his car.
On June 24, 1998, Nicklas offered additional testimony about his alleged impairments at a supplemental ALJ hearing. He stated that he had pain after the functional capacity tests held in February. Vocational expert ("VE") John Elton testified that a hypothetical person who could lift ten to twenty pounds, with bilaterally weak grip, could perform several jobs. Assuming as an additional limitation that the hypothetical person could sit or stand continuously for only thirty minutes, and sit or stand at will, he could work as a Cashier II, provided that his grip was strong enough to hold a pen and male change. The VE identified 3,000 such jobs in the regional economy and 120,000 jobs in the national economy.
The ALJ determined that the plaintiff had diabetes mellitus with peripheral neuropathy and obesity. He also determined that any mental impairments were non-severe. He concluded that the plaintiff's impairments did not meet or equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ determined that Nicklas had the ability to perform light duty work which allowed for alternate sitting and standing. The ALJ decided that the plaintiff was not credible in regard to his testimony about severe pain in his hands. The ALJ relied on the VE's testimony and concluded that Nicklas could work as a cashier and was therefore not eligible for supplementary security income. The ALJ supported his decision with specific findings.
Besides the VE's testimony, the ALJ also relied on the evidence in the plaintiff's medical records in reaching the conclusion that he retained the residual functional capacity for light work. Specifically, the ALJ relied on Dr. Katzenberg and the physical therapist who conducted the general functional capabilities evaluation. They found that although the plaintiff cannot perform heavy work, he remains capable of performing light work. In fact, Nicklas testified that he can lift twenty-five pounds. The ALJ also reached this conclusion based on his evaluation of the credibility of the plaintiff's testimony regarding his hand pain. The ALJ enumerated several specific factors that led to his determination that Nicklas was not entirely credible regarding his alleged hand pain:
(1) He has an extensive criminal record for crimes including forgery and burglary, which indicates he has been a dishonest person; (2) he has alleged an onset date of 1974, but he was not even diagnosed as having diabetes until 1994, and he currently only has mild degenerative changes in his back; (3) he faked the range of motion in his back when he saw Dr. McMillan; (4) he claimed severe leg limitations in January 1998, but in September 1997, he conceded that he had no leg-related limits; (5) as noted by Dr. Blatt, he lacks any motivation to work, as evidenced by his lack of honest work since the Army in 1969 (he has done some drug selling); and (6) his responses to questions at the hearing were evasive and inconsistent, with some long pauses as he appeared to construct an answer. For example, when asked "Where do you eat?" Nicklas paused for a long time before answering. He also testified that he goes to the Marina and fishes once or twice a month and drives his van, which is inconsistent with his testimony that he is virtually unable to do anything because of hand pain. In addition, he takes care of his own personal needs, fixes meals, goes shopping, and drives.
ALJ Hearing Record at 15.
DISCUSSION
The plaintiff claims that the ALJ's conclusion that he is not disabled is not supported by substantial evidence. First, he contends that the ALJ erred in finding his subjective complaints were not credible. Second, he contends that the ALJ erred in finding that his impairments did not meet any of the Listings. Third, he contends that the ALJ improperly interpreted the VE's testimony in concluding that he could perform cashier's duties.
I. STANDARD OF REVIEW
The Commissioner's determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and if the Commissioner applied the proper legal standards. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990). "Substantial evidence is "more than a scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citations omitted).
II. WHETHER THE ALJ PROPERLY EVALUATED THE PLAINTIFF'S CREDIBILITY
The plaintiff contends that the ALJ's finding that his subjective complaints lacked credibility was erroneous. "For the ALJ to reject a claimant's subjective complaints, he must provide `specific, cogent reasons for the disbelief.'" Morgan v. Commissioner of SSA, 169 F.3d 595, 599 (9th Cir. 1999) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). Questions of credibility and resolutions of conflicts in the testimony are solely the function of the ALJ and not of the reviewing court. See Yuckert v. Bowen, 841 F.2d 303, 307 (9th Cir. 1988).
Here, the ALJ gave several specific reasons for his conclusion that the plaintiff lacked credibility. The ALJ noted, inter alia: (1) the plaintiff's criminal record; (2) his inconsistent statements regarding his grip limitations; and (3) his lack of motivation to work.
The ALJ properly considered the plaintiff's criminal record. A criminal record is relevant to a determination of credibility if it involves crimes of dishonesty. See Fair v. Bowen, 885 F.2d 597, 604 n. 5 (1989); cf. Fed.R.Evid. 609(a)(2). Nicklas had several convictions for crimes of dishonesty, including forgery. Such crimes have an indelible effect upon one's credibility.
The ALJ also noted that the plaintiff was inconsistent in his testimony regarding his inability to grip objects. Nicklas claimed that he did not have the grip strength or sensitivity necessary to do the work of a cashier, such as making change or handing a pen to a customer to write a check. However, the plaintiff also specifically testified that he could hold a pen. In addition, the plaintiff's own testimony indicated that he could hold a steering wheel to drive long distances and hold a rod to go fishing. That evidence contradicted his assertion that he could not perform cashier's duties.
Finally, the ALJ concluded that the plaintiff's lack of motivation to work affected his credibility. The psychiatrist Dr. Blatt had specifically noted that Nicklas had little motivation to withstand an eight-hour workday. This is supported by the fact that Nicklas has not held down a steady job since leaving the Army, even before any possible effects from his diabetes on gripping ability. The ALJ properly evaluated the plaintiff's lack of credibility and supported it with specific, substantial evidence from the record.
III. WHETHER THE PLAINTIFF MET ANY OF THE LISTINGS
The plaintiff contends that his impairments meet Listing 9.08. This listing includes diabetes resulting in: "A. Neuropathy demonstrated by significant and persistent disorganization of motor function in two extremities resulting in sustained disturbance of gross and dextrous movements or gait and station (see 11.00C)." Listing 11.00C indicates: "Persistent disorganization of motor function in the form of . . . ataxia and sensory disturbances (any or all of which may be due to . . . peripheral nerve dysfunction). The assessment of impairments depends upon the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms." 20 C.F.R. § 404, App. 1, Sub. P, Reg. No. 4. Nicklas has the burden of proving that he meets this Listing. See Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987).
The plaintiff asserts that reports by Drs. McMillan and Katzenberg demonstrate that his impairment meets Listing 9.08. He points to findings of insensitivity in his lower extremities and weakness in his hand muscles. He also notes the finding that he has limited reaching, handling, feeling, pushing, and pulling abilities. Nicklas also cites the physical capacity evaluation results and the nurse practitioner's report. These reports indicated that Nicklas has poor grip strength and impaired fine motor abilities. He claims that these findings fulfill the Listing.
However, there is contradictory medical evidence that indicates that the plaintiff's impairments are not nearly as severe as he asserts. Nicklas argues that Dr. McMillan's findings support his claim, yet Dr. McMillan also found that Nicklas had normal grip strength. Also, Dr. Katzenberg stated that the plaintiff could do light duty work and that his sitting, standing, and walking were unimpaired. This hardly demonstrates a significant and persistent disorganization of motor function or a significant degree of interference with locomotion.
Moreover, there are numerous other findings that indicate that the plaintiff has not met the Listing. Dr. Sander's noted that the plaintiff's range of motion in his back was normal and Dr. Blatt found that he could perform two-step jobs. Many of the reports also indicate that Nicklas could lift and carry ten to twenty pounds.
Finally, the plaintiff's own testimony contradicts the requirements of the Listing. Nicklas stated that he travels frequently, drives long distances, and can hold a pen. These activities hardly seem consistent with the extreme motor skill impairments described by the Listing. Thus, substantial evidence supported the ALJ's finding that the plaintiff does not meet Listing 9.08.
IV. WHETHER THE ALJ PROPERLY APPLIED THE VE'S TESTIMONY
The plaintiff contends that the VE's testimony did not support the ALJ's determination that he could perform cashier's duties. He points to the hypothetical posed by his counsel. His counsel wanted to know whether a person unable to hold onto a writing implement could work as a cashier, and the VE responded that if his grip was so weak that he couldn't hold on to a pen or make change, then he could not be a cashier. Nicklas posits that this hypothetical undermines the ALJ's conclusion that he could work as a cashier.
The plaintiff's contention is unfounded. The hypothetical that he employs is based on a premise that was already rejected by the ALJ. As previously noted, the ALJ did not believe the plaintiff's allegations of gripping ability. The ALJ had made findings on the plaintiff's impairments, and the lack of motor skills to grasp pens or make change was not one of them. These findings were supported by the record, including the plaintiff's own testimony that he could hold a pen, drive, and go fishing.
Nicklas cannot point to a hypothetical based on a premise that was found unbelievable. The ALJ was justified in not considering the VE's testimony in this regard. He was not bound to accept as true limitations propounded by the plaintiff's attorney. See Magallanes v. Bowen, 881 F.2d 747, 756. Here, the VE's testimony that Nicklas could perform the job of cashier is based upon limitations that are supported by the record.
Therefore, the ALJ's determination the Nicklas is not disabled is supported by substantial evidence.
CONCLUSION
Based on the foregoing reasons, the plaintiff's motion for summary judgement is DENIED, and the defendant's cross-motion for summary judgement is GRANTED.