Opinion
No. C 00-01798 MMC
December 3, 2001
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S CROSSMOTION FOR SUMMARY JUDGMENT
Plaintiff Janice Powell ("Powell") brings the above entitled action pursuant to 42 U.S.C. § 405 (g) and 1683(c)(3) for judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). Before the Court is plaintiff's motion for summary judgment and the Commissioner's cross-motion for summary judgment.
Larry Massanari is substituted for his predecessor, William A. Halter, as Commissioner of the Social Security Administration. See Fed.R.Civ.P. 25(d)(1).
Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
BACKGROUND
Powell was born on February 16, 1945. (Certified Transcript of Administrative Proceedings ("Tr") at 24.) On June 20, 1997, Powell applied for a period of disability and DIB under Title II of the Act, alleging that she has been unable to work since April 3, 1996, due to pain and tingling in her arms, back, neck, and left knee. (Tr. at 14.) After the Social Security Administration ("SSA") denied the application initially and on reconsideration Powell filed a request for hearing on January 15, 1998. (Tr. at 14.) A hearing was held before an Administrative Law Judge ("ALJ") on October 22, 1998, at which time Powell, represented by her attorney, and a vocational expert testified. (Tr. at 20.)
On February 26, 1999, the ALJ issued a decision, denying Powell's application. (Tr. at 11-19.) The ALJ found that Powell suffered from "overuse syndrome of the arms and hands," that she had "a history of left meniscal tear," and that she was unable to perform her past relevant work as a nurse's aide. (Tr. at 18.) The ALJ further found that Powell was "approaching advanced age," had a tenth grade education, and had the residual functional capacity ("RFC") to perform light work, which was reduced by the fact that she must avoid strenuous grasping and gripping, repetitive twisting, or torque-like motions with the arms and hands. (Tr. at 18.) Finding that Powell could perform such light work as parking lot attendant, mail clerk, and general office worker, and that there are a significant number of such jobs in both the local and national economy, the ALJ determined that Powell was not disabled. (Tr. at 18-19.)
The Regulations define "advanced age" as 55 or older. See 20 C.F.R. § 404.1568.
Powell requested review of the ALJ's decision by the Appeals Council, which denied the request on March 30, 2000. (Tr. at 4-6.) On May 18, 2000, Powell commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Commissioner's determination that benefits are not warranted will be ""disturbed only if it is not supported by substantial evidence or it is based on legal error."" See Brawner v. Secretary of Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1987) (quoting Green v. Heckler, 803 F.2d 528, 529 (9th Cir. 1986)). "Substantial evidence, considering the entire record, is relevant evidence which a reasonable person might accept as adequate to support a conclusion." Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). The district court's review "must consider the record as a whole, " both that which supports as well as that which detracts from the decision. Desrosiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). An ALJ's decision must be upheld where the evidence is susceptible to more than one rational interpretation. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).
DISCUSSION
In her motion for summary judgment, Powell asserts that the ALJ erred by: (1) failing to find a severe medical impairment with respect to her alleged chronic lumbar strain despite the opinion of her treating physician Henry L. Edington, M.D.; (2) discounting the credibility of her subjective pain testimony; (3) assessing her RFC incorrectly; and (4) presenting an incomplete hypothetical to the vocational expert.
A. Back Injury as Severe Medical Impairment
Determination of "whether the claimant has a medically severe impairment or combination of impairments" is the second step of the five-step sequential inquiry under the Social Security Regulations. This second step is a "de minimis screening device to dispose of groundless claims." See Smolen v. Charter, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54, 107 S.Ct. 2287, 2297-98 (1987)). Powell contends that she met the "de minimis" burden of establishing that her back injury is a severe medical impairment on the basis of her treating physician Dr. Edington's diagnosis dated April 1, 1996. Upon examination of Powell, Dr. Edington observed tenderness over the lumbar spine, and of the left buttock, and diagnosed her as having, inter alia, chronic lumbar strain. (Tr. at 188-89.) Having considered that impairment, as well as other impairments that he diagnosed, Dr. Edington recommended that Powell no longer perform her past work as a nurse's aide, that she be considered a candidate for vocational rehabilitation, and that she avoid heavy lifting, any strenuous grasping or gripping, or repetitive twisting or torque-like motions with either upper extremity. (Tr. at 190.)
The five steps are: (1) whether the claimant is gainfully employed; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairments meet or equal an impairment deemed to be conclusively disabling; (4) whether the impairments prevent the claimant from performing past relevant work; (5) where the claimant shows she is unable to perform past relevant work, the burden shifts to the Commissioner to show that the claimant can perform other work that exists within the national economy. See 20 C.F.R. § 404.1520.
Dr. Edington limited Powell to "category C" of the workers' compensation guidelines (Tr. at 190), which indicates a preclusion from heavy lifting. See Glass v. Workers' Compensation Appeals Board, 105 Cal.App.3d 297, 303, n. 1 (1980).
Dr. Edington re-examined Powell on September 16, 1996, and reiterated his opinion that while Powell should not work as a nurse's aide, she was a candidate for vocational rehabilitation. (Tr. at 183.)
Powell argues that the ALJ erred by improperly rejecting the opinions of the treating physicians Dr. Edington and Aubrey A.Swartz, M.D., with respect to Powell's back condition. Contrary to Powell's argument, however, the ALJ did not reject Dr. Edington's opinion concerning her impairments; rather the ALJ "concurred with the recommendations of Dr. Edington." (See Tr. at 16.) Although in a report written June 2, 1997, Dr. Swartz noted that Powell had "residual pain in her . . . low back," he also noted "no real tenderness" and that her range of motion was "reasonably good and only mildly limited." (Tr. at 263-64.) The ALJ likewise noted this report in his decision. (Tr. at 15.) Accordingly, the record demonstrates that the ALJ gave proper consideration to Powell's back condition.
Not every physician was in accord with Dr. Edington's diagnosis of chronic lumbar strain. After a consultative examination in November 1996, Burton Brody, M.D., found that Powell had no apparent limitations with respect to her back or otherwise. (Tr. at 208.) In a report dated May 3, 1996, Jonathan Francis, M.D., noted a "history of lumbar myofascitis, now seemingly in remission." (Tr. at 197.) Upon examination of Powell's lumbar spine, Dr. Francis found "fairly good mobility" and "no tenderness of [sic] spasm." (Tr. at 197.)
B. Credibility of Powell's Testimony
Much of Powell's claim of disability is predicated on her allegations of pain, especially in her arms, back, neck and left knee. (Tr. at 14.) At the hearing, Powell testified that she cannot, among other things, type, sit, or stand "too long" (Tr. at 32, 36) because of associated pain and! or "numbness" in various parts of her body. (See, Z Tr. at 29-30, 31, 34-35.) Powell argues that the ALJ erred in his determination that Powell's testimony about the extent of her pain was not credible.
The determination by an ALJ as to whether to accept a claimant's subjective testimony as to her pain and symptoms involves a two-step analysis. See Smolen, 80 F.3d at 1281. The first step, known as the Cotton test, is satisfied if the claimant produces objective medical evidence of an impairment and shows that the impairment could reasonably be expected to produce some degree of the alleged symptoms. See id. at 1281-82 (citing Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). If the first step is satisfied and there is no evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of symptoms only if the ALJ makes specific findings stating clear and convincing reasons therefor. See id. at 1283-84.
In the instant case, the ALJ implicitly found that Powell made a showing sufficient to satisfy the Cotton test. In his decision, the ALJ found that Powell suffered from various ailments, thus indicating that he deemed the objective medical evidence sufficient to establish an impairment. (Tr. at 18.) Moreover, in addition to concurring with Dr. Edington, the ALJ in reaching his decision concurred in the findings made on behalf of the SSA. (Tr. at 16.) By doing so, the ALJ accepted the SSA's determination that Powell's symptoms were attributable to a medically determinable impairment, although not to the degree or severity she alleged. (Tr. at 283.) Thus, only the second step of the two-step credibility analysis is at issue here.
Under the "Symptoms" portion of the Residual Physical Functional Capacity Assessment, Lois Lee Van Compernolle, M.D., on behalf of the SSA, circled two selections which read, respectively: "A. The symptom(s) is attributable, in your judgment, to a medically determinable impairment"; and "B. The severity or duration of the symptom(s), in your judgment, is disproportionate to the expected severity or expected duration on the basis of the claimant's medically determinable impairment(s)." (Tr. at 283.) The report contains the additional handwritten notation "B "which the Court understands to mean "B more than A." (Id.)
In that regard, Powell argues that the ALJ rejected her subjective pain testimony in contravention of SSR 96-7 because the ALJ "fail[ed] to discuss the plaintiffs Daily Activity Reports and Daily Activities Questionnaires" in his decision or compare them with her testimony at the hearing. (See P1's Mot. for Summ. J. at 5:17-18.) Powell, however, fails to elaborate on the significance of these items. Moreover, although the ALJ was required to consider Powell's daily activities as part of the credibility analysis, see SSR 96-7p, 1996 WL 374186, at *3, there is no specific requirement that he set forth in the decision his analysis as to each factor identified in SSR 96-7p. Rather, SSR 96-7p requires the ALJ to explain in his decision "specific reasons for the finding on credibility." See id. at *2; see also Smolen, 80 F.3d at 1284 (holding where ALJ rejects claimant's testimony, ALJ must make "specific findings stating clear and convincing reasons for doing so").
The factors to consider include:(1) the individual's daily activities; (2) the location, duration, frequency, and intensity of her pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication; (5) treatment, other than medication, for relief of pain or other symptoms; (6) any other measures to relieve pain or other symptoms; and (7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. See SSR 96-7p, 1996 WL 374186 at *3.
Here, the ALJ complied with SSR 96-7p by giving specific reasons for his decision not to afford full faith to Powell's testimony. The three reasons provided in his decision are: (1) Powell's testimony, as well as references in medical reports, that she was taking vocational rehabilitation classes during a period after she alleged she had become totally disabled; (2) her affirmation on February 12, 1997, to Dr. Swartz that she was capable of doing certain jobs other than her past job as a nurse's aide; and (3) her statement on that same date to Dr. Swartz that the reason she had not transferred to other jobs was primarily because none had been made available to her. (Tr. at 16.)
The first reason is clear and convincing. It is proper to reject a claimant's testimony where it is undermined by the existence of prior inconsistent statements. See Smolen, 80 F.3d at 1284. Here, although Powell asserts that she was disabled as of April 1996, her own statements, identified by the ALJ in his decision, establish that she was capable of working after that date. Furthermore, the medical evidence established that Powell could work after April 1996. Rather than completely precluding Powell from further work, physicians who examined her recommended either vocational rehabilitation for other types of work better suited to her limitations or that she be assigned to lighter jobs. (See Tr. at 183 (Dr. Edington), 190 (Dr. Edington), 198 (Dr. Francis), 266 (Dr. Swartz), 273 (Dr. Swartz).) Although Powell testified that she could not complete vocational rehabilitation training due to pain caused by "a pancreas problem" (Tr. at 25), that condition was not chronic. Until the onset of her "pancreas problem, " Powell was able to participate in the vocational rehabilitation program, despite her underlying impairments. (See Tr. at 25.) Powell's "pancreas problem, " diagnosed as acute pancreatitis secondary to hyperlipidemia, was properly treated, and she was discharged without any ongoing complications. (Tr. at 223.) Powell failed to explain to the ALJ why she could not have returned to the vocational rehabilitation training program upon her recovery from pancreatitis.
Further, another physician found her to have "no apparent limitations." (Tr. at 208 (Dr. Brody).)
Powell was admitted to a hospital for treatment of pancreatitis on July 11, 1997. (Tr. at 223.) She was discharged on July 18, 1997. (Tr. at 223.)
The second and third reasons are likewise clear and convincing as they are both based on evidence establishing that Powell's failure to work was caused by factors other than her impairments. Powell argues that the ALJ improperly considered her statements to Dr. Swartz because those statements were hearsay. The Ninth Circuit, however, has held that there is "no blanket rejection of administrative reliance on hearsay evidence." See Calhoun v. Bailar, 626 F.2d 145, 149 (9th Cir. 1980) (explaining Richardson v. Perales, 402 U.S. 389, 407-08 (1971), which dealt with hearsay in a Social Security hearing). Rather, it is the probative value, reliability, and the fairness of the use of the proffered evidence, not its hearsay nature per se, that are determinative. See id. at 148.
In Richardson, the Supreme Court held that a hearing examiner in a social security benefits case properly considered hearsay medical reports routimely prepared and submitted in disability cases, finding that such reports were reliable as well as probative. See Richardson, 402 U.S. at 402, 405. Here, the statements Powell challenges were part of a report prepared by her physician following a medical examination. Powell does not question the credibility or veracity of Dr. Swartz's report. Accordingly, the ALJ properly considered Powell's statements to Dr. Swartz, and the ALJ did not err in relying on those statements to discount Powell's credibility.
Indeed, Powell perceives Dr. Swartz's report as otherwise being favorable to her and cites to that report as evidence of the existence of a back impairment. (See P1's Met. for Summ. J. at 3.)
Moreover, Powell herself testified that she sought to be transferred to another, lighter job at the hospital, but that none was made available to her. (See Tr. at 29.)
Because the ALJ provided clear and convincing reasons for his determination that Powell was not entirely credible, and as there is substantial evidence in the record to support those reasons, his assessment of Powell's credibility will not be disturbed. See Smolen, 80 F.3d at 1281.
C. Assessment of Powell's RFC
Powell's third contention, that the ALJ erred in assessing her RFC by not considering her subjective pain testimony, is premised on her argument that the ALJ improperly rejected her subjective pain testimony. As noted, however, the ALJ did not improperly reject such testimony. Accordingly, the ALJ's assessment of Powell's RFC is not erroenous.
D. Completeness of Hypothetical Presented to the Vocational Expert
Lastly, Powell argues that the ALJ's decision must be overturned because the hypothetical the ALJ presented to the vocational expert at the hearing was incomplete.
At the hearing, the ALJ advised the vocational expert that the basis of the hypothetical was the October 1996 report by Dr. Edington (Tr. at 55), which, in relevant part, stated:
In addition to the Category C preclusion for the back and lower extremities, she is precluded from any strenuous grasping or gripping with either upper extremity. She is also precluded from any repetitive twisting or torque-like motions or repetitive use of the arms and hands.
Tr.at 182.
Each of the limitations set forth by Dr. Edington was presented in the hypothetical as ultimately posed to the expert. At the outset, the ALJ posed the hypothetical with all of the above limitations with the exception of the lifting restriction. (See Tr. at 55.) The lifting restriction was then added to the hypothetical by Powell's counsel. (See Tr. at 56.) The vocational expert, thus having been presented with a hypothetical containing all of the restrictions referenced by Dr. Edington, testified that a person with those restrictions could perform light unskilled jobs. (See Tr. at 55Z56.) Accordingly, Powell fails to demonstrate any error in this respect.
The vocational expert also testified that there were thousands of light unskilled jobs in the San Francisco Bay Area. (See Tr. at 51-52.)
In her reply, Powell for the first time argues that her "severe mental impairment" was improperly omitted from the hypothetical presented to the vocational expert. (See Pl's Reply at 3.) As noted, it is the claimant's burden, albeit a de minimus one, to prove the existence of a severe medical impairment. See Miller v. Heckler 770 F.2d 845, 849 (9th Cir. 1985); see also Smolen, 80 F.3d at 1290. Powell cites to no evidence to support the existence of a "severe mental impairment," nor did she mention that impairment at the hearing. The ALJ thus did not err by omitting from the hypothetical an impairment which Powell did not raise at the hearing, let alone prove existed.
CONLUSION
For the reasons expressed above, the Court hereby DENIES Plaintiff's Motion for Summary Judgment, and GRANTS Defendant's Cross-motion for Summary Judgment.
The Clerk shall close the file.
IT IS SO ORDERED.