Summary
finding clear and convincing reason to reject plaintiff's testimony based upon the inconsistency between her admission that she could perform her past relevant work and her allegations of disability
Summary of this case from Argueta v. ColvinOpinion
Case No. EDCV 07-1065 JC.
July 7, 2008
MEMORANDUM OPINION
I. SUMMARY
On August 22, 2007, plaintiff Sophia Salajan ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed.R.Civ.P. 78; L.R. 7-15; August 27, 2007 Case Management Order, ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases).
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On October 14, 2005, plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 13). Plaintiff asserted that she became disabled on November 8, 2000, due to pain and headaches. (AR 62). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on April 24, 2007. (AR 208-32).
On May 3, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 13-17). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: myofascial strain of the cervical and lumbar spine, and posttraumatic cephalgia (AR 15); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 15); (3) plaintiff could perform light work and could occasionally bend, stoop, lift, push, pull and climb (AR 15); and (4) plaintiff could perform her past relevant work as a file clerk (AR 17).
The Appeals Council denied plaintiff's application for review. (AR 4).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
ALJs routinely rely on the Dictionary of Occupational Titles ("DOT") "in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy." Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. § 416.966(d)(1) (DOT is source of reliable job information). The DOT is the presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
A. The ALJ Did Not Commit Reversible Error in Evaluating the Medical Evidence
Plaintiff alleges that the ALJ failed properly to consider treating physician opinions reflected on a Medical Opinion Re: Ability to Do Work Related Activities form and erroneously rejected such opinions without providing specific and legitimate reasons therefor which are supported by substantial evidence in the record. (Plaintiff's Motion at 2-5) (citing AR 17, 175-77). Plaintiff also contends that the ALJ rejected such opinions based in part on an ambiguity in the record which triggered the ALJ's obligation to develop and clarify the record. (Plaintiff's Motion at 4). Defendant contends that the ALJ's rejection of such opinions and his conclusion regarding plaintiff's residual functional capacity is supported by substantial evidence, and adequate findings, and that further development of the record is unnecessary. (Defendant's Motion at 3-8).
Defendant also argues that there is no evidence that the person who offered the opinions reflected on the form is a physician, let alone a treating physician. (Defendant's Motion at 4). Defendant further suggests that the form may have been completed by a chiropractor who is not an acceptable source of medical evidence. (Defendant's Motion at 4). However, the ALJ did not question that the forms were completed by an "unknown physician" whom he referred to as a "general practitioner." (AR 17). The Administration's decision must stand or fall with the ALJ's reasoning. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (district court cannot affirm on the basis of evidence the ALJ failed to discuss); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision").
1. Pertinent Facts
a. Medical Records/Opinions
Plaintiff alleges that she became disabled on November 8, 2000 when a heavy box fell on her at work, causing her to fall and lose consciousness. (AR 143). She was thereafter examined and treated by multiple physicians.
In November 2000, James Mitchner, M.D., diagnosed plaintiff with contusion of the face, scalp, and neck, with a mild left knee contusion. (AR 137). He provided a lumbar support and medication, and directed her to commence physical therapy. (AR 137). A few days later, plaintiff presented with complaints of pain in her neck, chest wall, and lower back. (AR 137). She was advised to continue with physical therapy and medication. (AR 138).
In December 2000, Neal S. Archer, D.O., saw plaintiff on three occasions. (AR 138). She presented with persistent pain in her head and neck. Dr. Archer diagnosed her with cervical strain, referred her to a chiropractor, and directed her to continue physical therapy. (AR 138).
Between December 2000 and at least March 2004, plaintiff saw her primary treating physician Edward G. Stokes, M.D., an orthopaedic surgeon/qualified medical examiner. (AR 75-157). Dr. Stokes examined plaintiff over 25 times during such time frame, evaluated various tests (e.g., x-rays, MRIs), and referred her to other consulting physicians whose reports and tests he reviewed. (AR 75-157). He treated or caused plaintiff to be treated with physical therapy, acupuncture, and chiropractic treatments, and prescribed a Tens unit and Swiss ball for home use. (AR 75-157). In August 2002, Dr. Stokes prepared a lengthy report summarizing plaintiff's condition and treatment course, and reflecting his diagnoses, and the basis therefor. (AR 97-108). He diagnosed plaintiff with myofascial strain of the cervical spine with small disc bulges and myofascial strain of the lumbar spine with a 2 mm. disc bulge at L4-5 and a 2-3 mm. disc bulge at L5-S1 region. (AR 104). Dr. Stokes also offered opinions regarding plaintiff's work restrictions: (1) plaintiff is precluded from repetitive motions of the neck, having lost 50% of her pre-injury capacity for flexing, extending, bending and rotating her neck; and (2) plaintiff is precluded from heavy work, having lost 50% of her pre-injury capacity for performing such activities as bending, stooping, lifting, pushing, pulling, climbing, and other activities involving comparable physical effort. (AR 106).
On June 27, 2001 an MRI of plaintiff's lumbar spine reflected: (1) evidence of a 2 mm. posterior disc protrusion at the L4-5 level with the presence of disc dessication, bilateral hypertrophic facet changes and lateral recess stenosis; and (2) a 2 to 3 mm. disc protrusion at the L5-S1 level, with the presence of disc dessication, bilateral hypertrophic facet changes, and mild neural foramina narrowing. (AR 102, 181-82).
On February 15, 2002 an MRI of plaintiff's cervical spine reflected: (1) evidence of a 2 mm. central disc protrusions at the C5-6 level with the presence of hypertrophic changes anteriorly and posteriorly and the patent presence of neural foramina; (2) a 2 to 3 mm. right posterolateral disc protrusion at the C6-7 level with narrowing in the AP and tight lateral recess diameter — the possibility of subligamentous disc herniation could not be excluded; and (3) the relative straightening of the cervical spine. (AR 103, 179-80).
On at least four occasions between February 2001 and April 2001, Dr. Amini, a neurologist, examined and evaluated plaintiff relating to her headache complaints. (AR 103-04). Dr. Amini diagnosed plaintiff with post-traumatic headaches and prescribed medication. (AR 103). He also referred her for an MRI of the brain, which was normal, and performed other tests (e.g., an electroencephalogram) which were normal. (AR 103-04). On April 17, 2001, Dr. Amini diagnosed plaintiff with posttraumatic head syndrome and probable cervicogenic cephalgia, and recommended that she continue taking medications. (AR 104).
On June 30, 2004, Robert A. Dickman, DC, reviewed plaintiff's medical file and recommended no further treatment. (AR 183-85).
On November 22, 2005, J. Pierce Conaty, M.D., a consulting orthopaedic surgeon, performed a physical examination of plaintiff. (AR 158-62). Dr. Conaty diagnosed plaintiff with lumbosacral strain, resolved clinically but with subjective complaints of neck and low back pain. (AR 161). He opined that plaintiff has some impairment restrictions, noting that she could: (1) lift 50 pounds occasionally, and 25 pounds frequently; (2) stand and walk for six hours in an eight-hour work day; and (3) sit for six hours in an height-hour work day. (AR 161).
The record contains two completed forms dated August 15, 2006, entitled "Medical Opinion Re: Ability to Do Work-Related Activities." dated August 15, 2006 (respectively the "first form opinion" and the "second form opinion"; collectively the "form opinions"). (AR 172-77). The form opinions are in different handwriting and bear different signatures. (AR 172-77). Neither signature is legible. (AR 174, 177). The authors of the form opinions cannot otherwise be discerned from such documents. Nor does the record otherwise definitively reflect the identity of the authors. Both forms were part of "Exhibit 4F" in the administrative proceedings.
(i) The First Form Opinion
The author of the first form opinion checked boxes indicating that plaintiff: (i) could carry less than ten pounds both occasionally and frequently; (ii) could stand and walk less than two hours and sit for two hours in an eight-hour day; (iii) could sit for 30 minutes and stand for 15 minutes before changing positions; (iv) must walk every 60 minutes for 15 minutes; (v) must be able to shift at will from sitting to standing or walking; and (v) must lie down at unpredictable intervals, probably every two hours. (AR 172-73). He/she opined that medical findings of "severe back pain, neck pain, [and] shoulder pain" supported these limitations. (AR 173).
Said author also checked boxes indicating that plaintiff could occasionally twist, stoop (bend), crouch, climb stairs, and climb ladders but did not complete the portion of the form which called for medical findings in support of this conclusion. (AR 173). The author also checked boxes indicating that plaintiff's ability to reach (including overhead) and push and pull were affected by her impairments and wrote that these functions were affected by plaintiff's pain in her neck and shoulders. (AR 174). He/she indicated that diffuse tenderness was the medical finding in support of this conclusion. (AR 174).
The author also checked boxes indicating that plaintiff should avoid even moderate exposure to extreme cold, extreme heat, wetness, humidity and hazards (machinery, heights, etc.), but did not describe how plaintiff's activities were limited by these environmental factors, further identify the hazards to be avoided or explain the medical findings that supported these limitations. (AR 174). Finally, the author indicated that plaintiff did not require assistive devices, and that her impairments would cause her to be absent from work about twice a month. (AR 174).
(ii) The Second Form Opinion
The author of the second form opinion checked boxes or otherwise indicated that plaintiff: (i) could carry ten pounds occasionally and less than ten pounds frequently; (ii) could stand and walk for two hours and sit for four hours in an eight-hour day; (iii) could sit for ten minutes and stand for ten minutes before changing positions; (iv) must walk every ten minutes for five minutes; (v) must be able to shift at will from sitting to standing or walking; (vi) must lie down at unpredictable intervals; (vii) could occasionally twist, stoop (bend), and climb stairs; (viii) could never crouch or climb ladders; and (ix) should avoid all exposure to extreme cold and heat, even moderate exposure to wetness, humidity and hazards, and concentrated exposure to noise and fumes. (AR 175-77). He/she also checked a box and hand wrote a notation indicating that plaintiff's ability to reach, including overhead, was sometimes affected by her impairments. (AR 177).
The author did not complete the portions of the form which called for medical findings in support of any of the foregoing limitations. (AR 175-77). The author also checked a box indicating that plaintiff's impairments would cause her to be absent from work more than three times a month. (AR 177). Finally, the author wrote that "at this time [plaintiff] is precluded from prolonged standing, walking, bending, stooping, work over the shoulders, and repetitive work [with] bilateral hands, wrists." (AR 177).
b. Pertinent ALJ Findings
The ALJ's residual functional capacity assessment does not correspond to any one physician's medical opinion. It incorporates more restrictions/limitations than suggested by Dr. Conaty in 2005, arguably less restrictions/limitations than suggested by Dr. Stokes in 2002, and definitely less restrictions/limitations than suggested by the "unknown physician(s)" who completed the form opinions in 2006.
The ALJ found plaintiff to have the residual functional capacity to perform at least light work, and that she could occasionally bend, stoop, lift, push, pull and climb. (AR 15).
Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, one must have the ability to do substantially all of these activities. If someone can do light work, she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time. See 20 C.F.R. § 416.967(b).
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. See 20 C.F.R. § 416.967(a).
The ALJ rejected the forms opinions, stating:
The Medical Opinion Re: Ability to Do Work Related Activities dated August 15, 2006, by an unknown physician shows a sedentary residual functional capacity. The conclusionary forms are not supported by or accompanied by any objective evidence. A conclusion regarding the ability to work is partially a vocational judgment which is clearly beyond the expertise of the general practitioner completing the forms. Additionally, the forms provide no specific limitations on the claimant's ability to perform work activity. There is no indication that the claimant was seen by this physician at any other time than for this evaluation.
(AR 17).
Although the ALJ refers to "forms" in the plural, he appears to assume that both form opinions were completed by a single physician — a general practitioner.
2. Analysis
Plaintiff contends that the ALJ (i) erroneously found that the physician who authored the form opinions did not have sufficient expertise to render an opinion regarding plaintiff's ability to work; (ii) incorrectly suggested that the form opinions provided no specific limitations on plaintiff's ability to work when in fact virtually the entirety of the form opinions provide such specific limitations; and (iii) improperly rejected the form opinions based upon the ambiguous lack of indication in the record as to whether plaintiff previously had been seen by the authoring physician. As noted above, defendant contends that the ALJ's rejection of the form opinions and his conclusion regarding plaintiff's residual functional capacity is supported by substantial evidence. Although the Court finds that the ALJ erred in multiple respects relative to the form opinions, the Court finds such errors to be harmless.
The Court recognizes that the ALJ's rejection of the form opinions is based in part on an incorrect reading of the record and on incorrect assumptions which are not currently borne out by the record.
First, although the ALJ states that the form opinions provide no specific limitations on plaintiff's ability to work, the form opinions, as summarized above, extensively set forth such specific limitations.
Second, although the ALJ expressly stated that he did not know which physician authored the form opinions, he nonetheless rejected the opinions in part based on unsupported assumptions regarding the expertise of the physician and the infrequency of such physician's interactions with the plaintiff. Specifically, the ALJ indicating that the unknown physician lacked expertise to render a vocational judgment because he/she was a general practitioner — a fact which cannot be inferred from the record. The ALJ also noted that there is no indication in the record that the plaintiff was seen by the authoring physician at any other time than for this evaluation, apparently inferring that plaintiff saw such physician only once. While the ALJ's statement is itself accurate, it does not support the inference which the ALJ appears to have drawn. Rather, as plaintiff suggests, it illuminates the ALJ's failure to develop the record regarding the identity of the authoring physician — an inquiry which may have confirmed the ALJ's belief, or may have yielded evidence that such physician was a treating physician, such as Dr. Stokes, who had seen plaintiff on multiple occasions over an extended period of time and whose opinion was entitled to great weight.
The ALJ did not state that he was rejecting the form opinions because he viewed "vocational judgments" to be solely within his own purview.
An ALJ may consider the length of a physician's treatment relationship with a claimant in determining how much weight to give the physician's opinion. 20 C.F.R. § 416.927(d)(2)(i) (generally more weight given to opinion of source with lengthier treatment relationship).
The ALJ in a social security case has an independent duty fully and fairly to develop the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citations omitted). This duty extends to the represented as well as to the unrepresented claimant. Id. "Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to `conduct an appropriate inquiry.'" Id. (citation omitted). "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Id. (citations omitted).
In light of the ALJ's foregoing errors, this Court assumes, for purposes of harmless error analysis that the author of the form opinions was in fact a treating physician whose opinion generally may not be rejected absent clear and convincing reasons, and may not be rejected in favor of a conflicting opinion of another examining physician absent specific and legitimate reasons based on substantial evidence in the record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (where treating physician's opinion not contradicted by another doctor, it may be rejected only for clear and convincing reasons; ALJ can reject opinion of treating physician in favor of conflicting opinion of another examining physician if ALJ makes findings setting forth specific, legitimate reasons for doing so based on substantial evidence in record) (citation and internal quotations omitted). The ALJ's first articulated reason for rejecting the form opinions is that they were conclusionary and were not supported or accompanied by any objective evidence. This is a clear and convincing reason which is supported by substantial evidence. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by record as a whole or by objective medical findings); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (ALJ need not accept treating physician's opinion if it is conclusory and brief and unsupported by clinical findings); Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ properly rejected treating physicians' opinion which was unsupported by medical findings, personal observations or test reports); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly could reject three evaluations because they were check-off reports that did not contain any explanation of the bases of their conclusions) (citation omitted). The only medical findings articulated in support of the first form opinion are that plaintiff has "severe back pain, neck pain, [and] shoulder pain" and "diffuse tenderness." (AR 173-74). Such "findings" do not constitute "objective evidence." No medical findings are articulated in support of the second form opinion. Accordingly, even assuming that the form opinions were authored by treating physicians, any error by the ALJ in failing to develop the record regarding or in rejecting such opinions was harmless.
B. The ALJ Did Not Commit Reversible Error in Concluding that Plaintiff Was Capable of Performing Her Past Relevant Work
Plaintiff argues that the ALJ's determination that plaintiff was capable of performing her past relevant work is materially defective in two respects: (1) the ALJ failed to make findings of fact regarding the physical and mental demands of her past job as required by SSR 82-62; and (2) the ALJ's finding was based, at least in part, on the incorrect assertion that plaintiff stated that she could perform this work. (Plaintiff's Motion at 5-9). As to plaintiff's first contention, defendant asserts that the ALJ properly relied on the vocational expert's testimony and that no more was required. (Defendant's Motion at 9). Defendant further asserts that the ALJ's statement regarding plaintiff's admission constitutes a reasonable inference from the evidence in the record.
1. Pertinent Law
The Administration may deny benefits when the claimant can perform the claimant's past relevant work as "actually performed," or as "generally" performed. Pinto v. Massanari, 249 F.3d 840, 845 (2001). Although the claimant has the burden of proving an inability to perform her past relevant work, "the ALJ still has a duty to make the requisite factual findings to support his conclusion." Id. at 844. "To determine whether a claimant has the residual capacity to perform [her] past relevant work, the [Administration] must ascertain the demands of the claimant's former work and then compare the demands with [her] present capacity." Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). In finding that an individual has the capacity to perform a past relevant job, the determination or decision must contain the following specific findings of fact: (1) a finding of fact as to the individual's residual functional capacity; (2) a finding of fact as to the physical and mental demands of the past job/occupation; and (3) a finding of fact that the individual's residual functional capacity would permit a return to her past job or occupation. SSR 82-62.
2. Pertinent Facts
At the hearing in this matter, plaintiff testified to the following: After her injury in the year 2000, she did very light paperwork in an office, maybe for a couple of months, three or four hours a day. She arranged files and shredded paper. She mostly sat down when she did the job, except for the little while she did shredding. She could not do that job now because [her employer] does not have that job for her. If she was told that such a job was available, she could do very light work — maybe arranging files or shredding paper. (AR 217, 221-28).
A vocational expert was also present and testified at the hearing. See 20 C.F.R. § 416.960(b)(2) ("A vocational expert or specialist may offer relevant evidence within his or her expertise or knowledge concerning the physical and mental demands of a claimant's past relevant work, either as the claimant actually performed it or as generally performed in the national economy."). The vocational expert stated: The DOT described plaintiff's office work as semi-skilled. It would take a four week time frame to learn the job. Plaintiff, who worked essentially half time for two months at such a job did the job long enough to learn how to do it. A hypothetical claimant with the work limitations assigned to plaintiff by Dr. Stokes, could do the semi-skilled light job of file clerk. If, however, the claimant could lift no more than ten pounds, she could not do the file clerk job according to the DOT. His testimony was consistent with the DOT. Although the DOT lists the file clerk position as light, there are positions as a file clerk that fall in the sedentary range. (AR 224-25, 230-31).
As noted above, the ALJ found plaintiff to have the residual functional capacity to perform at least light work, and that she could occasionally bend, stoop, lift, push, pull and climb. (AR 15). He further determined that plaintiff could perform her past relevant work as a file clerk, and that the work does not require the performance of work-related activities precluded by her residual functional capacity. (AR 17). In support of his conclusion regarding plaintiff's ability to perform her past relevant work as a file clerk, the ALJ found: (1) this work is semi-skilled, taking about 4 weeks to learn; (2) the claimant performed this job long enough to learn it; (3) plaintiff stated that she could perform this work; and (4) in comparing plaintiff's residual functional capacity with the physical and mental demands of this work, plaintiff is able to perform the job as actually and generally performed. (AR 17).
3. Analysis
Plaintiff argues that the ALJ erred in failing to make the required findings of fact as to the physical and mental demands of plaintiff's past relevant work and in mischaracterizing plaintiff's testimony regarding her ability to perform her past relevant work as a file clerk. While the Court agrees that the ALJ erroneously failed to make the required findings regarding the physical and mental demands of plaintiff's past relevant work (except to the extent he characterized it as semiskilled), the Court concludes that such error was harmless. The Court further finds that the ALJ's characterization of plaintiff's testimony is not materially erroneous and does not warrant remand or reversal.
First, in concluding that plaintiff could return to her past relevant work, the ALJ relied upon the testimony of the vocational expert who, as noted above, stated that, according to the DOT (i.e., as generally performed), plaintiff's job as a file clerk was semi-skilled and that a hypothetical claimant with the work limitations assigned to plaintiff by Dr. Stokes, could do such job. (AR 14, 224-25, 230-31). A vocational expert's testimony constitutes substantial evidence upon which an ALJ may properly rely. See Magallanes, 881 F.2d at 756-57.
Although the ALJ did not expressly state that he was relying on the testimony of the vocational expert, it can be reasonably inferred from the contents of the ALJ's decision, that he relied upon such testimony.
Second, the vocational expert's testimony itself is supported by substantial evidence as he expressly relied upon the DOT in assessing whether the hypothetical individual in issue could perform plaintiff's past job as a file clerk. See supra note 2. Plaintiff does not contend that the vocational expert erred in classifying plaintiff's past relevant work according to the DOT (or the functional demands attributed to such work). As the ALJ's findings were based on the testimony of the vocational expert which was itself consistent with the DOT — the presumptive authority on how jobs are generally performed — and as the Administration may deny benefits when the claimant can perform the claimant's past relevant work as generally performed, any error by the ALJ in failing to make adequate findings regarding the physical and mental demands of plaintiff's past relevant work is harmless.
Finally, the Court finds no material error in the ALJ's characterization of plaintiff's testimony. As noted above, plaintiff testified that her prior job as a file clerk, as actually performed, involved arranging files and shredding paper. Plaintiff further testified that she could do very light work — maybe arranging files or shredding paper. Accordingly, the ALJ's finding that plaintiff stated that she could perform this work is a reasonable inference and is not erroneous. Even assuming, however, that the ALJ mischaracterized such testimony, any such error is harmless, in light of the fact that substantial evidence otherwise supports the ALJ's finding that plaintiff could perform her past work as generally performed.
For these reasons, the Court concludes that the ALJ's failure to provide specific findings of fact as to the physical and mental demands of plaintiff's past relevant work and the ALJ's characterization of plaintiff's testimony do not warrant reversal or remand.
C. The ALJ Did Not Commit Reversible Error in Evaluating Plaintiff's Credibility
Plaintiff contends that the ALJ materially erred by failing to discuss and to provide clear and convincing reasons for rejecting specific portions of plaintiff's testimony. (Plaintiff's Motion at 9-11) (citing AR 16, 218-221). Defendant contends that the ALJ permissibly rejected plaintiff's testimony based upon the inconsistency between her admission that she could perform her past relevant work and her allegations of disability. (Defendant's Motion at 10). This Court finds no material error in the ALJ's assessment of plaintiff's credibility.
1. Pertinent Law
An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Unless an ALJ makes a finding of malingering based on affirmative evidence thereof, the ALJ may reject a claimant's testimony regarding the severity of her symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. Id. (citations omitted). The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). The ALJ must "specifically identify the testimony [the ALJ] finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F. 3d 1195, 1208 (9th Cir. 2001).
To find the claimant not credible, an ALJ must rely on (1) reasons unrelated to the subjective testimony (e.g., reputation for dishonesty); (2) internal contradictions in the testimony; or (3) conflicts between the claimant's testimony and the claimant's conduct (e.g., engaging in daily activities inconsistent with the alleged symptoms, maintaining work inconsistent with the alleged symptoms, failing, without adequate explanation, to take medication, to seek treatment or to follow prescribed course of treatment). Lingenfelter v. Astrue, 504 F.3d 1028, 1035-40 (9th Cir. 2007); Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883;Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is also a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.
Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
2. Pertinent Facts
During the hearing, plaintiff testified: She does things around the house but is not working because she is in a lot of pain. She does her own laundry and prepares her own food. She likes to cook for herself. Sometimes she calls a friend to help. In Romania, she went to college to be a kindergarten teacher. She received a Romanian Masters Degree in 1970. She came to the United States in 1983. She never worked as a teacher in the United States, other than volunteer teaching. In 1994, she attended ROP College in the United States to obtain a license to teach children but never got a license. For the last fifteen years, she has done warehouse work and custodian work. She can read and write English but is not good at spelling. She stopped doing the custodian warehouse work because she had hernia and gall stone surgery in 1995. Her doctor told her that after the surgery, she could not lift more than ten pounds. Although the surgery was in 1995, she continued to do part time warehouse work through 1999/2000. When she did warehouse work in 1999 and 2000, she was lifting more than 20 pounds. She got better and better and tried to work because she had three children and had to go back to work in the warehouse. After her children grew up, she went back to work. She does not remember why she stopped working in 1999 — it may have been because it was temporary work at that point and they no longer needed her. After she was injured in the year 2000, she did very light paperwork in the office for a couple of months, three or fours hours a day — she arranged files and did shredding. She mostly sat down for the job except to stand for a little while to do shredding. She would sometimes stand up to walk around when she got a headache. She took medication for the headaches. They do not have the file clerk job for her now. If they did now have that job for her she could do very light work — maybe arranging files and shredding paper. She is 57. She last applied for a job in 2005. She can't stand "like, like on the chair . . . a lot, maybe two minutes" after which pain starts. She may have a pinched nerve. She has problems with headaches, especially at night. The headaches last 45 minutes to an hour, disappear when she takes medicine, but then appear again until she takes medicine again. The headaches wake her up so she that she walks around in the middle of the night. She feels exhausted in the evening. She sometimes get confused with streets and finding addresses. She sometimes walks around the block and forgets to shut the stove. She thinks she has problems with depression. She has not seen or been sent to a psychiatrist or psychologist. She can stand on her feet for 20 minutes and then has to move around. If she walks for 30 minutes, she needs to lie down or to stop and sit for 10 minutes before walking again. She takes Ibuprofen, Motrin, and Alleve for her headaches during the daytime. (AR 210-28).
The ALJ summarized plaintiff's testimony as follows:
At the hearing, the claimant testified that she has a master's degree from college in Romania. She was not able to get a license to teach in the U.S. She worked at warehouse and custodial work until she had back surgery in 1995. After surgery she could not lift more than 10 pounds. She did light paper work until that work ran out, and in 1999 and 2000 did temporary filing work. She has a pinched nerve now and can stand for about 30 minutes. She walks 20 — 30 minutes for exercise. She has headaches which last 45 minutes and she has upper and lower back pain. She takes Motrin or Tylenol for headaches. She stated she could still do the file clerk work, if offered.
The ALJ then determined that plaintiff's statements concerning "the intensity, persistence and limiting effects of [her] symptoms [were] not entirely credible[,]" noting that plaintiff "admitted she could perform light work she did in the past." (AR 16).
3. Analysis
As noted above, an ALJ may properly reject the credibility of a claimant based upon internal contradictions in the claimant's testimony. Here, the ALJ rejected plaintiff's testimony regarding the intensity, persistence and limiting effects of her symptoms because, to the extent such testimony suggested that plaintiff could not arrange files and shred papers (i.e., do the work of a file clerk), it was inconsistent with plaintiff's own testimony that she could or "maybe could" do such light work. This constitutes a clear and convincing reason to reject plaintiff's testimony. Although plaintiff correctly notes that the ALJ did not reference every single detail of plaintiff's testimony (e.g., her inability to stand on a chair more than two minutes, her confusion with streets, her need to lie down or sit after walking for 30 minutes), the ALJ was not required to do so. Plaintiff does not demonstrate that the omitted details of plaintiff's testimony render her unable to perform her past work as a file clerk. Accordingly, even assuming the ALJ was required to provide more detail than he did, such error was harmless.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.