Opinion
No. C 99-4146 VRW
February 27, 2001
JUDGMENT
This action came on for decision before the court, the Honorable Vaughn R. Walker, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered.
IT IS ORDERED AND ADJUDGED that plaintiff's motion for summary judgment or for remand is DENIED and defendant's cross-motion for summary judgment is GRANTED, that plaintiff take nothing, that the action be dismissed on the merits, and that defendant recover of plaintiff, his costs of action.
ORDER
Plaintiff Perez filed this action under 42 U.S.C. § 405(g) seeking judicial review of defendant's denial of her application for Supplemental Social Security Income (SSI) benefits under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383(d), and the denial of reconsideration by the Appeals Counsel. Pending before the court are cross-motions for summary judgment. Plaintiff requests that this court reverse the decision of the Commissioner of Social Security (Commissioner) denying her SSI benefits, or, in the alternative, remand the case to the Commissioner for a new hearing. For the reasons described below, defendant's motion for summary judgment (Doc #12-1) is GRANTED and plaintiff's motions (Doc #10-1 10-2) are DENIED.
I A
On November 23, 1992, plaintiff applied for 551 benefits based on disability. On December 10, 1992, plaintiff applied for disability insurance benefits. Both applications were denied. Administrative Transcript (Tr) 137. On July 1, 1994, upon reconsideration, an administrative law judge (ALJ) found that plaintiff was "not disabled" since plaintiff retained an ability to perform light work. Tr 19. On January 13, 1995, the Appeals Counsel denied further administrative review and the ALJ's ruling became the Commissioner's final decision. Tr 153.
On February 15, 1995 and March 1, 1995, plaintiff filed a second application for SSI and disability insurance benefits, respectively, claiming the same onset date of June 1, 1992. Plaintiff alleged back problems as the cause of her disabling condition stating, "spine is off 1/2 [and] hips are off 3/4". Tr 18, 155. Both application were denied initially and on reconsideration. Tr 18.
The ALJ stated that his prior denial of all benefits for the period through July 1, 1994, was conclusively determined by the prior ruling on July 1, 1994. The Appeal Counsel's denial of review on January 13, 1995, made the ALJ's decision final. Tr 20. Thus, the ALJ reasoned, if an award of benefits was granted it would only be granted for that period after July 1, 1994. Id.
The ALJ determined that "the [plaintiff] has failed to show changed circumstances in her condition since the time of [ALJ's] July 1, 1994 decision and she continues to be "not disabled' within the meaning of the Social Security Act." Tr 24. The ALJ held that plaintiff would be able to perform light work without heavy lifting, bending or reaching repetitively. Id. The ALJ's decision became administratively final when the Appeals Council declined review on July 15, 1999. Tr 6-7. Plaintiff filed this action seeking judicial review of defendant's denial of her application for SSI benefits and the denial of reconsideration by the Appeals Counsel.
B
Plaintiff was born June 10, 1953, and has twelve years of education and two years of vocational training as a security guard. Tr 19. Plaintiff has worked as a security guard, a janitor, a machine operator, an office manager, a post office clerk and a manual laborer. Id. From November 1995 to July 1996, plaintiff worked 40 hours a month as an in-home care provider. Tr 38-39. Plaintiff has not worked since July, 1996. Tr 39.
During the hearing on December 17, 1997, plaintiff testified to having sharp pain in her shoulder, back and arm. Tr so. She also complained of constant pain in her lower back and stated that she could not sit for long periods and spends most of the day lying down. Tr 51, 52.
According to the medical evidence submitted subsequent to the ALJ's ruling on July 1, 1994, plaintiff was examined by Dr. John Welsh, MD, on May 30, 1995 for her complaints of lower back pain. Dr. Welsh's diagnosis was that plaintiff suffered from mechanical neck and lower back pain without any signs of radiculopathy. Tr 204. Dr. Welsh stated that he could not adequately assess plaintiff's functional capacity due to plaintiff's "over reaction" during examination. Tr 205.
On April 21, 1995, George Reese, DC, diagnosed plaintiff with a lower back sprain and "left leg radiculitis." Tr 200. The state later sought additional information from Mr. Reese including x-rays, consultations and office notes. Tr 201. Mr. Reese never disclosed the requested information. Tr 202.
On July 11, 1995, plaintiff was examined by a state agency physician. Tr 188. The physician diagnosed plaintiff with "musculoskelatal pain" but opined that plaintiff could walk, stand and sit for 6-8 hours in a workday. Tr 189. Moreover, the physician stated that plaintiff could occasionally stoop, kneel, crouch or crawl, thus retaining the ability to do light work. Tr 190.
On May 15, 1997, Dr. Clarke completed a "Verification of Physical or Mental Disability" form in support of plaintiff's receipt of food stamps. Tr 212. Dr. Clarke stated that plaintiff was unable to work for up to one year due to "diffuse arthritis; arm numbness due to cervical radiculopathy; back pain due to arthritis." Id.
Dr. Clarke completed a "Medical Assessment of Employability Status" on June 13, 1997 and stated that plaintiff had "lumbar disc disease" and "degenerative arthritis." Tr 213. Dr. Clarke now opined that plaintiff was permanently disabled. Id.
In December 1997, Dr. Clarke completed a "Medical Assessment of Ability To Do Work Related Activities" form whereby he identified various functional capacity limitations of the plaintiff due to pain and muscle weakness. Tr 222-224. No objective findings were identified. Id.
On September 14, 1997, plaintiff was evaluated by Dr. Sandusky at the request of the state. Willbrand Decl, Exh 1. Dr. Sandusky's report was not in the record for the December 15, 1997, ALJ hearing nor considered by the ALJ in his decision. Plaintiff's Notice of Motion And Motion For Summary Judgement or For Remand (Pl Br) at 10; see Tr 20-26.
Dr. Sandusky found that plaintiff suffers from, among other problems, a "noticeable mild cervical kyphosis" and symptoms consistent with "ankylosing spondylitis." Willbrand Decl, Exh 1 at 1. Dr. Sandusky noted plaintiff's limited range of motion in her neck, shoulders, back and hip. Id at 1-2. Dr. Sandusky stated, however, that she was unable to give work limitations. Id at 2. One week later, Dr. Dowdell issued a report stating that plaintiff suffered from "chronic neck and low back pain with subjective radicular findings." Tr 210. Dr. Dowdell noted that plaintiff seemed to exaggerate her pain and that the range of motion of her upper and lower extremities were within normal limits. Id. He identified plaintiff's functional capacities as frequently being able to lift and carry 10-15 pounds with the ability to walk, stand and sit for 8 hours with breaks every 2 hours. Tr 211.
After the hearing before the ALJ, psychologist Dwight R Murray, PhD examined and evaluated plaintiff on January 23, 1998. Tr 226. Dr. Murray administered a series of psychological and intellectual functioning tests on plaintiff and diagnosed the plaintiff with "Dysthymic Disorder, Dementia due to Multiple Etiologies and a Pain Disorder Associated with a General Medical Condition — a non-psychiatric diagnosis." Tr 230. He also stated that plaintiff was within the "[b]orderline [r]etarded" range. Id. Dr. Murray concluded that plaintiff was incapable of supporting herself and recommended disability benefits. Id.
Plaintiff testified that she was currently under the care of Dr. Clarke for the pain in her back and arthritis and that she was involved in a car accident in 1985, but returned to work for her brother as a janitor from 1986-1991. Tr 40, 43-44. Moreover, plaintiff stated that she worked 40 hours a month for an "in-home service" from approximately November 1995 to July 1996, caring for a nine year-old child. Tr 38-39. Plaintiff claimed she unsuccessfully attempted to seek employment. Tr 39. She stated that she spends most of her days lying around, but has trouble sleeping at night. Tr 41-42, 52.
Plaintiff's brother, John Perez, also testified that plaintiff had worked part-time for him as a janitor from 1986-1991. Tr 56-57. He testified that "she was doing minimal work, because of her back problem," and was "constantly complaining" about her back. Tr 57-59.
II A
The ALJ's decision to deny disability benefits will not be disturbed unless (1) the findings of fact are not supported by substantial evidence on the record or (2) the decision is based on a legal error. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "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). The reviewing court must consider the record as a whole and review evidence both supporting and detracting the ALJ's decision. Desrosiers v. Secretary of Health Human Serv, 846 F.2d 573, 576 (9th Cir. 1988). It is a well-settled role of the ALJ to make credibility determinations and to resolve conflicts in medical testimony. Andrews, 53 F.3d at 1039. If the evidence is "susceptible to more than one rational interpretation," the court will uphold the decision of the ALJ. Id at 1040. Nevertheless, a decision supported by substantial evidence must be set aside if improper legal standards were applied in reaching the decision. See Brawner v. Secretary of Health and Human Serv, 839 F.2d 432, 433 (9th Cir. 1987).
To collect disability insurance under the Social Security Act, plaintiff must establish that she suffers from a "disability." 42 U.S.C. § 423(a)(1)(D). "Disability" means "inability to engage in any substantial gainful activity by reasons of any medically determinable physical or mental impairment * * * which has lasted and can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Administration has implemented a five-step sequential analysis to determine whether or not a claimant is disabled. 20 C.F.R. § 404.1520; SSR 86-8. Five questions are posed in sequence until a finding of disability is affirmatively rejected or mandated by the rule.
The five questions are: (1) Is the claimant engaging in significant gainful activity (SGA)?; (2) If not, does the claimant have a severe impairment?; (3) If yes, does the claimant's impairment meet or equal an impairment on the List?; (4) If not, does the impairment nevertheless prevent the claimant from doing past relevant work (PRW)?; and (5) If not, is the claimant, in light of her age, education, job experience and residual functional capacity, still capable of performing other types of work that exist in the national economy? Id. At Step Four, the claimant bears the burden of establishing that she is unable to perform her PRW. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). If she meets this burden, then the burden of proof shifts to the Administration to demonstrate that the claimant can perform other types of work existing in the national economy. Id. The Administration can satisfy the burden in Step Five by either using the Grids when appropriate or taking a testimony from a vocational expert. Id.
Plaintiff argues that reversal of the ALJ's decision or, in the alternative, remand to the Commissioner of the Social Security Administration is appropriate because: (1) the ALJ improperly rejected the testimony of John Perez, plaintiff's brother; (2) Dr. Sandusky's report was improperly excluded from the evidence of record; (3) the ALJ improperly rejected the opinions of Dr. Clarke, plaintiff's treating physician; and (4) the ALJ improperly rejected the opinions of Dr. Murray, plaintiff's examining psychologist. The court will address each argument in turn.
Plaintiff cites Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996), and Regennitter v. Commissioner of Social Security, 166 F.3d 1294, 1298 (9th Cir. 1999), for the principle that testimony from a family member provides an important source of information about the plaintiff's disability and can only be rejected "by giving specific reasons germane to each witness." Regennitter, 166 F.3d 1298. Plaintiff argues that the ALJ's only acknowledgment of John Perez's testimony was that statement that "both she and her brother testified that she was then employed by her brother and that she stopped working because he lost his office cleaning contract." Tr 24. Plaintiff contends that this constituted an implicit rejection of Mr. Perez's testimony and was, therefore, improper. Pl Brief at 16-17.
Mr. Perez's testimony, however, differs from the rejected lay testimony in Smolen and Regennitter in two vital ways. First, in both cases cited by plaintiff, the lay witness testified to the plaintiff's symptoms that were material to plaintiff's disability during the relevant period at issue. Smolen, 80 F.3d at 1288; Regennitter, 166 F.3d at 1298. The testimony could, therefore, be used to corroborate plaintiff's testimony regarding her disability.
Here, the relevant period for judicial review is from June 2, 1991, (the date of claimed disability) through April 2, 1998 (the date of defendant's final decision). The only portion of Mr. Perez's testimony regarding plaintiff during the relevant period of June 2, 1991, to April 2, 1998, was testimony about plaintiff's substance addiction. Tr 59-60. Plaintiff's disability due to a back problem is at issue, not plaintiff's substance abuse problem. Thus, unlike the lay testimony in Smolen and Reginnitter, the lay testimony here is not probative of plaintiff's disability. Smolen, 80 F.3d at 1289; Regennitter, 166 F.3d at 1298.
Second, the lay testimony in Smolen and Regenniter identified specific limitations within the relevant period for the ALJ to accept or reject. Smolen, 80 F.3d at 1289; Regennitter, 166 F.3d at 1298. Here, Mr. Perez's testimony did not identify any specific functional limitations for the ALJ to accept or reject. Tr 55-60.
Plaintiff asserts that Mr. Perez testified "as to [plaintiff's] current limitations and activities." Pl B.R. at 7. The court is unable to find any such testimony within the record. The ALJ properly rejected the testimony of John Perez.
2
Plaintiff contends that Dr. Sandusky's September 14, 1997, medical report was improperly excluded from the record. Plaintiff contends that there was "good cause" for failing to submit the report during the administrative hearing because plaintiff only became aware of the report after the present action was filed. Pl B.R. at 18-19. In addition, plaintiff argues that the report was "material" to determining disability because it was consistent with other reports favorable to plaintiff that were rejected by the ALJ. Id at 18. Plaintiff contends that there is a "reasonable possibility" that the findings and opinions of Dr. Sandusky may have changed the outcome of the ALJ's determination had it been before him. Id.
New evidence can provide a basis for remand, but not for summary judgment. 42 U.S.C. § 405(g). To support remand, the new evidence must be "material" and there must be "good cause" for the failure to introduce the evidence during the administrative hearing. Id; Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). If new evidence is obtained after the Commissioner's final decision and "the [plaintiff] could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied." Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) New evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome of the Commissioner's determination had it been before him. Booz v. Secretary of Health Human Services, 734 F.2d 1378, 1380-81 (9th Cir. 1984).
Plaintiff meets the "good cause" requirement. At the request of the California State Department of Disability, plaintiff was examined by Dr. Sandusky. Decl Willbrand at 1. The report remained in the possession and control of the state agency until plaintiff obtained a copy of the exhibits in plaintiff's claim file for her subsequent application filed on April 28, 1998. Id at 1-2. Dr. Sandusky's report was not submitted into evidence by the plaintiff during the administrative hearing on December 15, 1997, because the plaintiff did not have possession or control of the report until June 7, 1999. Willbrand Decl at 2; see Tr 20-26. Next, the court must determine whether there is a reasonable possibility that the Sandusky report would have changed the outcome of the ALJ's determination had it been before him. In 1980, Congress amended 42 U.S.C. § 405(g) to add a materiality requirement. Booz, 734 F.2d at 1380. The purpose of the amendment was "at least in part to limit the court's ability to remand cases for consideration of new evidence." Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir. 1982) (citing Carter v. Schweiker, 649 F.2d 937, 942 (2d Cir. 1981)).
Dr. Sandusky diagnosed plaintiff with multiple pain stating, "[s]he was low back pain since 1991 and multiple joint pain also since 1991 which has progressively worsened over the years." Willbrand Decl, Exh 1 at 2. The report did not establish an underlying medical impairment as a cause for the pain. Id. Indeed, Dr. Sandusky recommended an X-ray of the hips, pelvis, shoulders, knees and C-spine to assist in finding a medical impairment. Finally, Dr. Sandusky's report did not include work limitations of the plaintiff.
In order for the ALJ to find disability based due to back pain, plaintiff must first present "complete and detailed objective medical reports of her condition from licensed medical professionals." Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995); see 42 U.S.C. § 423 (d)(5)(A). Moreover, the report should include a statement of the claimant's functional capacity based on the medical source's findings. 20 C.F.R. § 416.913(b)(6). Dr. Sandusky's report did not contain objective medical reports of plaintiff's condition. Neither did the report include work limitations of the plaintiff. Thus, the court cannot find a reasonable possibility that the Sandusky report would have changed the outcome of the ALJ's determination.
3
Plaintiff argues that the opinions of Dr. Clarke, her primary treating physician, were given insufficient weight by the ALJ. A treating doctor's opinion should be given more weight than that of a non-treating physician. Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993). When another doctor's opinion contradicts the opinion of a treating physician, the Commissioner can reject the treating physician's opinion only by setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. But if the contradictory medical opinion rests on independent clinical findings that differ from those of the treating physician, the ALJ may reject the treating physician's testimony without giving specific, legitimate reasons. In this situation, "it is solely the province of the ALJ to resolve the conflict." Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Id at 1039. In this case, the court's review of the record reveals that the ALJ clearly stated his reasons for rejecting the opinion of Dr. Clarke and that these reasons were supported by substantial evidence.
The ALJ noted that plaintiff saw Dr. Clarke in 1993, but received no treatment thereafter for any musculoskeletal symptoms until February, 1997. Tr 22. The ALJ stated that in February, 1997, Dr. Clarke reported some decreased range of motion and muscle strength, but reported no other positive objective findings. Id. Because Dr. Clarke reported few positive findings, the ALJ gave little credence to Clarke's conclusions regarding plaintiff's disability and functional capacity limitations. Tr 22. The ALJ also discredited Clarke's opinion because Clarke "qualified his conclusion with the remark that it was "pending full evaluation and there is no evidence that such an evaluation was ever done." Tr 22.
These reasons provide substantial evidence supporting the ALJ's decision to reject Dr. Clarke's opinion in favor of the opinion of other doctors. It is not the province of the court to reweigh the factual and credibility determinations of the ALJ de novo. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). If the decision appears to be supported by substantial evidence, it must be upheld. Id.
Plaintiff argues that the ALJ improperly rejected Dr. Murray's findings regarding plaintiff's cognitive and intellectual functioning capabilities. Plaintiff claims that the ALJ cites no clear and convincing reason for rejecting Dr. Murray's opinions. Plaintiff further asserts that the ALJ's reasons for rejecting Dr. Murray's opinions amounts to the ALJ "substituting his own medical opinion for that of Dr. Murray." Pl B.R. at 21.
The ALJ rejected the opinion of Dr. Murray for three reasons. Tr 21. First, the ALJ reasoned that Dr. Murray's findings of plaintiff's intellectual functioning within the retarded range and his conclusion that plaintiff has probably never functioned "higher than the Borderline Retarded range" are inconsistent with the record as a whole.
When reviewing factual determinations of the ALJ regarding an individual's disability, the court must determine whether "substantial evidence" supports the ALJ's decision. Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). If the evidence supports more than one rational interpretation, the court must uphold the decision of the ALJ. Sandgathe, 108 F.3d at 979.
Here, the record indicates that plaintiff obtained a high school education and received 2 years of specialized training as a security officer. Tr 19. Moreover, plaintiff's own description of her responsibilities as a security officer and an office manager are not consistent with a finding of intellectual functioning within the retarded range. Tr 97, 101. Plaintiff's responsibilities in her previous employment included writing reports, supervising and training 20-30 employees and conducting other administrative tasks. Tr 101. Such responsibilities do not indicate intellectual functioning within the borderline retarded range. Thus, the ALJ's conclusion that Dr. Murray's findings are inconsistent with the record as a whole is supported by substantial evidence.
Second, the ALJ observed that plaintiff saw Dr. Murray after the hearing at the request of her attorney for the purpose of supporting her claim of disability. Tr 21. The ALJ determined that this circumstance casts doubt on the credibility of the psychological report. Tr 21.
The untrustworthiness of a solicited medical report is a valid consideration in rejecting a report. Saelee, 94 F.3d at 522. In Lester v. Chater, 81 F.3d 821 (9th Cir. 1996), the court stated that "[t]he purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them." Id at 832. The Ninth Circuit has allowed, however, an ALJ to question the credibility of a report when, as here, the report was requested by plaintiff's attorney. Saelee, 94 F.3d at 523 (citing Burkhart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988)).
The court should not attempt to second guess the ALJ's credibility determination regarding Dr. Murray's report. Bunnel v. Sullivan, 947 F.2d at 345; Sample v. Schweiker, 694 F.2d at 642. The court finds that the ALJ's conclusion that Dr. Murray's report was untrustworthy was a permissible credibility determination.
Finally, the ALJ observed that even if plaintiff suffered from "severe" mental impairment, the disability did not last or was not reasonably expected to last for twelve continuous months as required by 42 U.S.C. § 423(d)(1)(A). Dr. Murray's report indicates that plaintiff was fatigued, depressed, intellectually impaired and impaired in terms of motor skills. Tr 230. Based on these findings, Dr. Murray recommended disability benefits. Id. The ALJ determined that this did not satisfy the duration requirement for disability. If the evidence supports more than one rational interpretation, the court must uphold the decision of the ALJ. Sandgathe, 108 F.3d at 979. Thus, the ALJ elucidated valid reasons for rejecting the opinions of Dr. Murray.
Plaintiff's arguments in favor of her motion for summary judgment lack merit. The court finds the decision of the ALJ that plaintiff was not disabled to have been supported by substantial evidence. Accordingly, the court DENIES plaintiff's motion for summary judgment (Doc #10-1) and motion to remand (Doc #10-2) and GRANTS defendant's cross-motion for summary judgment (Doc #12-1).
IT IS SO ORDERED.