Opinion
Case No.: 6:16-CV-00021-AC
07-07-2017
KYLE DEAN PEARCE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION :
Kyle Pearce ("plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for Title XVI Supplemental Security Income ("SSI") and Title II Disability Insurance Benefits ("DIB") under the Social Security Act ("Act"). Because the Commissioner's decision is supported by substantial evidence, her decision should be AFFIRMED. \\\\\
Procedural Background
On March 12, 2013, plaintiff protectively filed a Title II application for a period of disability and DIB. (Tr. 17, 206-13.) On May 6, 2014, plaintiff protectively filed a Title XVI application for SSI. (Tr. 17, 221-27.) Both applications alleged disability beginning August 1, 2010. (Tr. 17, 207, 221.) His applications were denied initially and upon reconsideration. (Tr. 17, 82-87, 90-97.) A hearing was held August 4, 2015, before an Administrative Law Judge ("ALJ"); plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). (Tr. 54-81.) On August 7, 2015, the ALJ issued a decision finding plaintiff not disabled. (Tr. 17-27.) Plaintiff timely requested review of the ALJ's decision and, after the Appeals Council denied his request for review, filed a complaint in this Court. (Tr. 1-4, 103.)
Factual Background
Born on January 23, 1967, plaintiff was 43 years old on the alleged onset date of disability and 48 years old at the time of the hearing. (Tr. 59, 207, 221.) He completed the two years of college and has past work as a lathe operator at a plywood company, an off bearer at a lumber mill, and a construction worker, (Tr. 75, 243, 734.) He stopped working in August 2010 because of his physical and mental conditions, which he described as lower back pain and depression. (Tr. 60, 232.)
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140(1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520©, 416.920©. If the claimant does not have a medically determinable, severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet 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 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
The ALJ's Findings
At step one of the five-step process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 19.) At step two, the ALJ determined that plaintiff had the following medically determinable and severe impairments:
Since the alleged onset date of disability, August 1, 2010, the claimant has had the following severe impairments: a history of bipolar disorder with depression; and a history of degenerative disc disease of the cervical and lumbar spine with radiculopathy. Beginning on the established onset date of disability, June 6, 2014, the claimant has had the following severe impairments: mild obesity; history of bipolar disorder with depression and a history of degenerative disc disease of the cervical and lumbar spine with radiculopathy, status post anterior cervical discectomy and fusion; history of carpal tunnel syndrome with right tunnel release and right ulnar nerve transposition. (Tr. 20.)At step three, the ALJ found that since the alleged onset date of disability, August 1, 2010, plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. (Tr. 20-21.)
Accordingly, the ALJ continued the sequential evaluation process to determine how plaintiff's impairments affected his ability to work. The ALJ resolved that prior to December 31, 2011 (the plaintiff's date last insured) plaintiff had the residual functional capacity ("RFC") to perform " a range of light work as defined by 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b) except he is further limited to no more than occasional overhead reaching, and to performing only simple, repetitive, routine tasks." (Tr. 21-24.) The ALJ also found that beginning June 6, 2014, plaintiff had the RFC
to perform sedentary work as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R. § 416.967(a) except he is further limited to no more than occasional overhead reaching, and no more than occasional handling, grasping, fingering, and feeling on the right. He is limited to simple, repetitive, routine tasks. Due to chronic pain and severe depression, he would have serious restriction in his ability to respond appropriately to usual work situations and changes in a routine work setting. Consequently, he would be incapable of performing any work activity on a regular and continuous basis. (Tr. 24-25.)
At step four, the ALJ concluded that since August 1, 2010, plaintiff had no past relevant work. (Tr. 25.) At step five, the ALJ found, prior to June 6, 2014, there were jobs that existed in significant numbers in the national economy that plaintiff could have performed, but beginning June 6, 2014, there were no jobs that existed in significant numbers in the national economy that plaintiff could have performed. (Tr. 25-26.) Therefore, the ALJ determined that plaintiff was not disabled prior to June 6, 2014, but became disabled on that date and continued to be disabled through August 7, 2015, the date of his decision, and that plaintiff was not under a disability within the meaning of the Act at any time through December 31, 2011, the date last insured. (Tr. 27.)
Discussion
Plaintiff argues the ALJ erred by failing to: (1) credit the medical opinions of treating physician Dr. Layne Jorgensen and examining psychologist Dr. Gregory Cole; (2) give a clear and convincing reason to reject plaintiff's symptom testimony; and (3) the Commissioner failed to meet her burden of proving that plaintiff retains the ability to perform other work in the national economy. (Pl.'s Opening Br. 12-19, Pl.'s Reply Br. 1-9.) I. Medical Opinion of Treating Physician, Dr. Layne Jorgensen, and Examining Psychologist, Dr. Gregory Cole
Plaintiff argues the ALJ failed to give legally sufficient reasons for failing to credit the opinions of Dr. Layne Jorgensen, plaintiff's treating physician, and Dr. Gregory Cole, plaintiff's examining psychologist. (Pl.'s Opening Br. 12-14; Pl.'s Reply Br. 1-7).
An ALJ may reject the uncontradicted medical opinion of a treating or examining physician only for "clear and convincing" reasons supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a treating or examining doctor by providing "specific and legitimate reasons that are supported by substantial evidence." Id.
A. Medical Opinion of Dr. Layne Jorgensen
First, plaintiff argues the ALJ failed to give a legally sufficient reason to reject the opinion of Dr. Jorgensen who opined that plaintiff was unable to work since June 2009. (Pl.'s Opening Br. 12-14, Pl.'s Reply Br. 1-5.) Specifically, plaintiff cites Dr. Jorgensen's opinion that "[h]e did not believe Plaintiff could work more than a few hours at a time for more than 4 to 5 days a month, taking into account his mental and physical capabilities." (Pl.'s Opening Br. 12, citing Tr. 924.)
On March 19, 2015 Dr. Jorgensen wrote a letter addressing plaintiff's underlying medical conditions and his opinions on plaintiff's ability to work. (Tr. 923-24.) In the letter, Dr. Jorgensen wrote plaintiff's "inability to remain gainfully employed" began around June 2009 "when he began having weakness and numbness of his left hand and was diagnosed with cervical spinal stenosis" along with "increased problems with his mental health, ie his bipolar disorder." (Tr. 923.)
Here, the ALJ gave "less weight" to Dr. Jorgensen's written statement regarding the period prior to plaintiff's application for SSI. (Tr. 24.) Specifically, the ALJ found the doctor's opinion "conflicts with the claimant's actual work history," noting plaintiff's work as a construction laborer in 2010 and 2011. (Id.) Additionally, the ALJ found Dr. Jorgensen's treatment records were contradictory, highlighting that "[t]he physician himself noted in May 2011 that the claimant was capable of working." (Id., citing Tr. 568.) Overall, the ALJ opined "[w]hile the claimant's chronic pain symptoms may prevent him from performing past work in construction - he may still perform other less-strenuous jobs that would accommodate his particular limitations," specifically noting that the determination whether plaintiff's ability to work at other jobs in the national economy is an issue "outside the medical realm and is reserved by regulation to the Commissioner (20 C.F.R. 404.1527(e), 416.927(e))." (Id.)
The ALJ was required to give a specific and legitimate reason for discrediting the opinion of Dr. Jorgensen because it was inconsistent with plaintiff's actual work history and the medical opinion of Dr. Gregory Cole, who examined plaintiff in May 2014 and found plaintiff could perform "simple routine tasks" despite problems in concentration and attention caused by depression. (Tr. 229, 232, 737.) See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (the contradicted opinion of a treating or examining physician can be rejected with specific and legitimate reasons that are supported by substantial evidence.) As the ALJ denoted, despite plaintiff's alleged limitations he was able to work as a construction laborer during 2010 and 2011. (Tr. 60-62, 229, 232, 734.) Additionally, the ALJ found Dr. Jorgensen's treatment records were contradictory, noting the inconsistencies between the doctor's March 2015 letter where he found plaintiff was unable to work since June 2009 and a May 2011 treatment note where he opined plaintiff was "capable of working." (Tr. 568, 923.) See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (an ALJ may reject a physician's opinion when the opinion conflicts with the physician's other findings.) Accordingly, this court finds the ALJ provided specific and legitimate reasons for discrediting the opinion of Dr. Jorgensen and finds no error.
B. Medical Opinion of Dr. Gregory Cole
Next, plaintiff argues the ALJ erred in rejecting the medical opinion of examining psychologist, Dr. Cole who found plaintiff had "marked" impairment in his ability to respond appropriately to usual work situations and to changes in a routine work setting and "moderate limitations" in his ability to interact appropriately with the public, supervisors and coworkers. (Pl.'s Opening Br. 14-15, citing Tr. 741, Pl.'s Reply Br. 5-7.)
On May 14, 2014 Dr. Cole performed a psychodiagnostic evaluation of plaintiff and completed a medical source statement concerning plaintiff's ability to do work-related activities. (Tr. 733-42.) Dr. Cole found plaintiff could complete simple multiple step tasks without error and had average immediate and delayed memory capabilities. (Tr. 736-37.) He also noted plaintiff was oriented, his mood was good, and his overall attitude was "engaged and cooperative" during the evaluation. (Tr. 735.) Additionally, Dr. Cole opined that plaintiff would have no limitations carrying out simple instructions, mild limitations with complex instructions, moderate limitations interacting appropriately with the public, supervisors, and coworkers, and marked limitations responding appropriately to usual work situations and changes in a routine work setting. (Tr. 740-41.) Overall, Dr. Cole diagnosed plaintiff with "Major Depressive Disorder, Recurrent Episode - Severe; and Unspecified Anxiety Disorder" and opined that if plaintiff "pursue[d] a vocational placement in the future, then it is presumed that his: claimed problems with pain, level of anxiety, and decreased motivation for tasks, would be the primary factors, which would impact his overall level of vocational success." (Tr. 737.)
Here, the ALJ gave "significant weight" to Dr. Cole's findings that plaintiff would "likely have some difficulty carrying out complex instructions," but gave "little weight" to Dr. Cole's recommended social limitations, specifically that plaintiff would have "moderate" difficulty interacting appropriately with other people. (Tr. 23.) In making this finding the ALJ noted that Dr. Cole's opinion that plaintiff would have "moderate" difficulty interacting appropriately with the public, supervisors, and coworkers was "not consistent with the claimant's own work history," specifically noting that plaintiff reported to Dr. Cole that "he got along with coworkers and supervisor" at the construction site. (Id., citing Tr. 734.) Additionally, the ALJ found that in early 2014, mental health treatment providers at Douglas County Mental Health wrote that plaintiff was "courteous and cooperative" during his evaluation. (Tr. 23-24, citing Tr. 767.)
As discussed above, the ALJ was required to give a specific and legitimate reason for discrediting the opinion of Dr. Cole because it contradicted the opinion of Dr. Jorgensen who opined that plaintiff was unable to work since June 2009. (Tr. 923.) Here, the court finds the inconsistency cited by the ALJ between Dr. Cole's medical opinion and the record is a specific and legitimate reason for discrediting the doctor's opinion. Indeed, despite plaintiff's alleged mental limitations he reported being able to get along with coworkers and supervisors, and was "courteous and cooperative," "easily engaged" and presented with a "pleasant mood" during medical examinations. (Tr. 530, 556, 734, 761, 767.) Therefore, there is no error. II. Plaintiff's Symptom Testimony
Next, plaintiff argues the ALJ failed to provide a clear and convincing reason for discrediting his symptom testimony. (Pl.'s Opening Br. 15-17, Pl.'s Reply Br. 7-9.) First, plaintiff essentially argues the ALJ misinterpreted his testimony concerning his ability to work, arguing that although he testified to working in 2010 and 2011 "[t]here is a difference between having a 40-hour a week job, and being able to attend that job consistently." (Pl.'s Opening Br. 15.) Next, plaintiff argues the reasons the ALJ cited to discredit plaintiff's symptom testimony were not legally sufficient because Dr. Jorgensen's report that plaintiff was feeling "a lot happier" and was doing "well" on his prescribed medications were only a "temporary improvement" because plaintiff was still having left hand numbness and weakness, and increased depression and suicidal ideations. (Pl.'s Opening Br. 16-17, Pl.'s Reply Br. 7-9)
If "there is no affirmative evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12F.3d915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ found plaintiff's statements concerning the "intensity, persistence and limiting effects of [his] symptoms [were] not entirely credible prior to June 6, 2014." (Tr. 22.) In making this finding the ALJ noted inconsistencies in plaintiff's testimony concerning his alleged disability onset date, where he claimed he was no longer capable of working, and subsequent construction work in 2010 and 2011, and medical evidence that showed plaintiff was doing well on his prescribed medications. (Id.)
First, the ALJ found inconsistencies in plaintiff's testimony concerning his ability to work. (Id.) Specifically, the ALJ found plaintiff's hearing testimony that his alleged disability onset date represented the date he was no longer able to work because of low back pain and depression failed to account for the construction work that plaintiff completed in 2010 and 2011. (Id.) The ALJ noted that although plaintiff described his construction work as being brief, the ALJ found "other evidence of record suggests his work activity was much more extensive." (Id.) Specifically, the ALJ found that plaintiff told consultative psychological examiner Dr. Cole that he worked forty hours a week in 2010 and 2011, and left this job only when it became physically too difficult. (Tr. 22, 734.) Next, the ALJ cited plaintiff's medical records from early 2012, during which time plaintiff requested to be medically excused from work. (Tr. 22, 305.) The ALJ opined that "[o]ne would not expect the [plaintiff] to seek a medical note if his duties were truly limited to sporadic work facilitated by an accommodating relative," overall finding that "[plaintiff]'s efforts to secure such a note . . . suggests he was engaged in a more conventional employment relationship, such as the one he described at Exhibit 8F." (Tr. 22.)
Exhibit 8F is Dr. Cole's May 14, 2014 Psychodiagnostic Evaluation of plaintiff, which contains the reference to plaintiff's report of working forty hours a week, (Tr. 733-42.) --------
Indeed, an independent review of the record shows evidence that plaintiff was working in 2010 and 2011, reported that he was working forty hours a week, and was requesting medical notes to excuse him from work. (See Tr. 60, 229, 734.) Although plaintiff disagrees with the ALJ's interpretation of the record, "[w]hen the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004.) Additionally, the ALJ provided another clear and convincing reasons for discrediting plaintiff's testimony, specifically that plaintiff was doing well on prescribed medications for his pain and was acknowledged his mental symptoms had improved. Again, an independent review of the record supports the ALJ's findings. (See Tr. 543, 546, 554-55, 558, 568.) Based on the following this court finds the ALJ provided a clear and convincing reason for rejecting plaintiff's symptom testimony. There is no error. III. Ability to Perform "Other Work" in the National Economy
Finally, plaintiff argues the Commissioner failed to meet her burden of proving that he retains the ability to perform "other work" in the national economy. (Pl.'s Opening Br. 17-19.) Essentially, plaintiff argues the ALJ's RFC finding and subsequent step five findings are not based on substantial evidence in the record because they did not include portions of plaintiff's testimony and the opinions of Dr. Jorgensen and Dr. Cole, whose limitations, if credited, would require a finding that plaintiff is disabled. (Pl.'s Opening Br. 17-19.)
A. Plaintiff's RFC
The RFC is the maximum a claimant can do despite his limitations. See 20 C.F.R. §§404.1545, 416.945. In determining the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments, even those that are not severe, and evaluate "all of the relevant medical and other evidence," including the claimant's testimony. SSR 96-8p. The ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations in the RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
As discussed above, the ALJ reasonably discredited plaintiff's testimony and the opinions of Dr. Jorgensen and Dr. Cole, and therefore was not required to include their more restrictive functional limitations in plaintiff's RFC. The ALJ reasonably determined plaintiff's RFC assessment with respect to the limitations supported by the medical records. (Tr. 21-24.) As plaintiff raises no other issues with the ALJ's RFC assessment, this court finds no errors in the ALJ's overall RFC assessment.
B. Step Five Findings
At step five, the burden of proof shifts to the Commissioner to demonstrate that the claimant can engage in some type of substantial gainful activity that exists in "significant numbers" in the national economy. Yuckert, 482 U.S. at 141-42. The step five analysis requires assessment of the medical evidence, the claimant's daily activities, prior work record, functional restrictions and limitations, medication and other treatment for relief of symptoms, and evidence from physicians and third parties. 20 C.F.R. §§ 404.1529, 416.929. Typically, the ALJ propounds a hypothetical question to the VE that is based on medical assumptions supported by the record and reflects all of the claimant's limitations. Osenbrock, 240 F.3d at 1163. If the claimant fails to present evidence that she suffers from certain limitations, the ALJ need not include those alleged impairments in the hypothetical question to the VE. Id.
Here, the ALJ propounded a hypothetical to the VE based on the RFC finding. (Tr. 74-76.) Under the hypothetical, the VE identified the positions of inspector of small products, small products salvager, and hand packager. (Tr. 26, 76.) As discussed above, the ALJ reasonably discredited plaintiff's testimony and the medical opinions of Dr. Jorgensen and Dr. Cole when assessing plaintiff's RFC. Therefore, the hypothetical propounded to the VE incorporated all of plaintiff's limitations, and there is no error.
Conclusion
Based on the foregoing discussion, the Commissioner's decision should be affirmed.
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due no later than fourteen days from service of the Findings and Recommendation. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District court's orders. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991). If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, any party may file a response within fourteen days after the date the objections are filed. Review of the Findings and Recommendation will go under advisement when the response is due or filed, whichever date is earlier.
IT IS SO ORDERED.
DATED this 7th day of July 2017.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge