Opinion
No. C-00-3743 MMC
September 8, 2003
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY
Plaintiff Steven L. Salter ("Salter") brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II of the Social Security Act ("Act"). Before the Court are Salter's motion for summary judgment and the Commissioner's cross-motion for summary judgment. 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.
Jo Anne B. Barnhart is substituted for her predecessor, Larry G. Massanari, as Commissioner of the Social Security Administration.See Fed.R.Civ.P. 25(d)(1).
I. BACKGROUND
On June 3, 1996, Salter, who was then 42 years old, filed an application for disability benefits. (Certified Transcript of Administrative Proceedings ("Tr") at 126-129.) Salter alleged he had been unable to work since January 11, 1995, as a result of work-related neck and back injuries, arthritis, anxiety, stress, and depression due to chronic pain. (Tr. at 141.), After the application was denied initially and on reconsideration by the Social Security Administration ("SSA"), (Tr. at 102-105, 108-111), Salter requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 112.) At a hearing on September 14, 1998, the ALJ heard testimony from Salter, appearing with counsel, and a vocational expert. (Tr. at 21.)On January 29, 1999, the ALJ issued a Notice of Decision, analyzing Salter's claims under the five-step sequential evaluation process set forth in the Code of Federal Regulations. The ALJ denied Salter's application at the fifth step, concluding that Salter was not disabled within the meaning of the Act because he had the residual functional capacity to work at a light exertional level with "only occasional climbing, crawling, and stooping," (Tr. at 33), and, based on the testimony of the vocational expert, could perform jobs existing in significant numbers in the national economy. (Tr. at 32.) Salter requested review of the ALJ's decision by the Appeals Counsel, which denied the request on July 19, 2000. (Tr. at 9-10.) Salter thereafter filed the instant action for judicial review.
"The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled.
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a `severe' impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled." McCartey v. Massanari 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
II. STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Chater. 157 F.3d 715, 720 (9th Cir. 1998). "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 administrative record as a whole and weigh both the evidence supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the court will uphold the decision of the ALJ. See id.
III. DISCUSSION
In an administrative proceeding to determine whether the claimant is entitled to benefits, the claimant has the burden of proving disability within the meaning of the Act. See Maounis v. Heckler. 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, a claimant is considered disabled when he becomes unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A). Where the claimant establishes a prima facie case of disability by showing an inability to perform past relevant work, the burden shifts to the Commissioner to show that the claimant can engage in other types of substantial gainful work existing in the national economy. See Gallant v. Heckler. 753 F.2d 1450, 1452 (9th Cir. 1984).In his motion for summary judgment, Salter argues the ALJ's decision should be reversed with directions to award benefits, or, in the alternative, the matter should be remanded for further proceedings, because the ALJ's finding that Salter has the residual functional capacity to perform substantial gainful activity is not supported by substantial evidence. Specifically, Salter argues the ALJ erred by: (1) ignoring and misquoting the opinion of Salter's treating physician as to Sailer's residual functional capacity; (2) posing incomplete and improper hypothetical questions to the vocational expert; and (3) making findings regarding Salter's credibility that were not supported by substantial evidence.
A. Treating Physician
Salter argues the ALJ improperly ignored and misconstrued the opinion of his treating physician, Kenneth I. Light, M.D. ("Dr. Light"), that Salter "currently is totally disabled and unable to return to work" due to degenerative disc disease, osteoarthritis of the hip and low back pain. (Tr. at 352.) The ALJ instead relied on the contrary opinions of another treating physician, DeWitt Gifford, M.D. ("Dr. Gifford"), and several examining physicians in determining that Salter retains the residual functional capacity to work at the light exertional level with some restrictions. (Tr. at 31.)
"[A]n ALJ may not reject treating physicians' opinions unless he makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Smolen v. Chater. 80 F.3d 1273, 1285 (9th Cir. 1996) (internal quotation and citations omitted). A lack of objective medical findings, treatment notes, and rationale to support a treating physician's opinion is a sufficient reason for rejecting that opinion. See Tonapetyan v. Halter 242 F.3d 1144, 1149 (9th Cir. 2001) (affirming ALJ's decision rejecting the opinion of a treating physician where such opinion "was unsupported by rationale or treatment notes, and offered no objective medical findings to support the existence of [plaintiffs] alleged conditions.") Moreover, "[w]here the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence." Andrews, 53 F.3d at 1041. In such a situation, "it is then solely the province of the ALJ to resolve the conflict." Id; see also Tonapetyan. 242 F.3d at 1149 (holding examining physician's opinion that claimant could lift and carry 20 to 50 pounds constituted "substantial evidence" in support of ALJ's finding that claimant could perform medium work, where examining physician's opinion was based on results of "his own independent examination").
Here, the ALJ gave sufficient reasons, supported by substantial evidence in the record, for rejecting the opinion of Dr. Light in favor of the opinion of other physicians. The ALJ stated that he did not "give significant weight to Dr. Light's conclusions" because there was "no indication in the treatment notes of Dr. Light of anything other than subjective complaints used to determine the claimant's functional capabilities." (Tr. at 31.) The ALJ noted that on June 17, 1998, Dr. Light "mentioned osteoarthritis of the hip, but there is no objective evidence that confirms this diagnosis. There is no mention of joint fluid analysis, nor is there radiographic evidence of osteoarthritis." (Tr. at 30 (internal citation omitted).)
The ALJ also found a lack of objective evidence to support the changes in Dr. Light's opinions about Salter's ability to work. (See Tr. at 30-31.) On February 25, 1998, Dr. Light stated Salter was incapable of performing work but predicted Salter would be able to return to work in six months. (Tr. at 345.) On April 22, 1998, Dr. Light wrote that Salter "probably will not be able to return to work as a mechanic," (Tr. at 343), from which the ALJ inferred that in Dr. Light's opinion, Salter is not "completely disabled for all work." (See Tr. at 30.) On December 14, 1998, Dr. Light estimated that Salter would not be able to return to work within the next twelve months. (Tr. at 346.) In his most recent opinion, dated January 20, 1999, Dr. Light stated Salter is unable to return to work. (Tr. at 352.) Dr. Light, however, did not explain the bases for his changing conclusions, nor is an explanation otherwise apparent.
Although Salter disagrees with the ALJ's interpretation of Dr. Light's opinion, the ALJ drew a reasonable inference from Dr. Light's April 22, 1998 statement. (See Tr. at 30.)
Contrary to Salter's contention that the ALJ "turned a blind eye" to Dr. Light's most recent opinion, (see Mot. at 17), the ALJ made explicit reference to the January 20, 1999, report. (See Tr. at 30-31) ("[Dr. Light] confirmed this opinion in a report dated 1/20/99.").
A review of the administrative record provides support for the ALJ's determination as to Dr. Light's opinion. Seven of the nine documents completed by Dr. Light. and contained in the administrative record, consist of either a pre-printed form containing a conclusory statement as to a diagnosis and checked-off boxes indicating Salter's ability to work, (see Tr. at 132, 313, 321, 345, 346), or a letter containing a brief conclusory statement as to Salter's medical condition and work status. (See Tr. at 342, 343.) Although two lengthier reports were also completed on form questionnaires, (see Tr. at 347-353, 354-357), neither of these reports explained Dr. Light's findings or detailed the results of any objective clinical assessment of Salter's condition or his residual functional capacity. On one form, for example, when Dr. Light was asked to explain the basis for his conclusions, he simply reiterated the language of the question and added a general reference to Salter's "medical records 8/6/87 to 12/9/88." (See Tr. at 353.) Although Salter points to references made by Dr. Light to an MRI and/or X-rays, such as an April 22, 1998 statement that Salter's "MRI scan demonstrates bony compression at several levels," (Tr. at 343), no dates or results of any such diagnostic tests are available in the administrative record. (See Tr. at 343, 353, 355.) Indeed, as defendant notes, the ALJ left the administrative record open for thirty days after the hearing so that Salter could submit "the additional report of the x-rays from Dr. Light." (See Tr. at 96.) The record contains no report of such x-rays.
The last page of the form instructs the doctor to "please describe the aspects of the (1) medical history; (2) clinical findings; (3) laboratory findings; (4) diagnoses (statement of disease or injury based on its signs and symptoms); and (5) treatment prescribed with response, and prognosis upon which you based your opinion of the referenced individual's functional limitations." Dr. Light's response was: "Medical records 8/6/97 to 12/9/98 previously sent. Records outline: medical history, clinical findings, laboratory findings, diagnoses and treatment prescribed w/ prognosis." (Tr. at 353.)
In light of the paucity of objective findings underlying Dr. Light's opinion, the ALJ found the more detailed opinions of treating physician Dr. Gifford and examining physicians Charles Miller, M.D. ("Dr. Miller"), Ernest Weitz, M.D. ("Dr. Weitz"), Ivan Andrew Fras, M.D. ("Dr. Fras"), and Joseph Karis, M.D. ("Dr. Karis") more probative of Salter's residual functional capacity. (Tr. at 30-31.) In Dr. Gifford's opinion, an MRI performed on April 8, 1997 showed "a decrease in the size of the . . . disk herniation previously discussed and no longer shows evidence of significant impingement on the cervical spinal cord." (See Tr. at 336.) On May 8, 1997, Dr. Gifford reported that despite Salter's "diffuse complaints of pain in his neck, shoulders, lower back, right shoulder and left arm," his examination on April 10, 1997 was "entirely normal." (Id.) Dr. Miller, who conducted flexibility, motor strength, neurologic, and reflex tests during an examination on November 18, 1996, found Salter capable of lifting and carrying up to 30 pounds, occasionally pushing and pulling up to 45 pounds, and standing and walking noncontinuously for up to six hours in a day. (Tr. at 281-85.) Dr. Miller limited Salter to occasional" climbing, crawling and stooping, though his ability to reach; handle and sit were not restricted. (Id) On September 24, 1997, Dr. Weitz conducted a physical examination that included tests of Salter's flexing ability, reflexes, and grip strength, and found that Salter was limited to light work and should be retrained for a position of interest to him, such as a locksmith or gunsmith. (Tr. at 328.) In a report dated November 16, 1996, Dr. Fras, a psychiatrist, determined that Salter did not have any "independent mood or thought disorder" that would prevent' him from handling an eight-hour work day. (Tr. at 280.) Dr. Karis, another psychiatrist, wrote a report on May 10, 1996 based both on his own examination of Salter as well as an examination conducted by a psychologist, Richard Landess, Ph.D. (Tr. at 242-253.) Dr. Karis found that Salter "has shown limited cooperation, belligerent trends, inconsistent and incomplete history, exaggerated behavior, and symptoms not consistent with objective findings." (Tr. at 250.)
The opinions of these physicians, supported by independent clinical examinations, constitute additional substantial evidence to support the ALJ's decision. Relying on Stone v. Heckler. 761 F.2d 530 (9th Cir. 1985), Salter argues that the ALJ erred by failing to give deference to Dr. Light's more recent assessments over the earlier-rendered opinions of the other physicians. This reliance is misplaced. In Stone, the court held that, where the claimant in question had a "progressively deteriorating" condition, the most recent medical report was "the most probative." See Stone. 761 F.2d at 532. Here, by contrast, it has not been established that Salter's condition is progressively deteriorating. Indeed, on September 24, 1997, Dr. Weitz, the last doctor to see Salter before he began treatment with Dr. Light, noted improvement in Salter's MRI results and grip strength. (Tr. at 327.) The Ninth Circuit has declined to applyStone where a claimant has not established his degenerative disc disease was progressively deteriorating, and the most recent medical report was "brief and conclusionary in form with little in the way of clinical findings." See Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1986). Here, as noted, Dr. Light's reports were brief, and provided no details as to clinical examinations or assessments used to reach his conclusions. Under such circumstances, the ALJ was not required to give greater deference to Dr. Light's more recent findings.
Dr. Weitz stated: "Re-examination of Mr. Salter at this time reveals encouraging news. His repeat MRI showed less problem than the previous study, and his examination showed a marked improvement in the grip strength on the left and a reversal of the diminished girth of his arm and forearm. This, of course, is significant." (Tr. at 327.)
Nor, contrary to Salter's argument, was the ALJ required to further develop the record by "recontacting" Dr. Light. (See Mot. at 16.) Although "ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence" will "trigger" the ALJ's duty to develop the record, see Tonapetyan v. Halter 242 F.3d 1144, 1150 (9th Cir. 2001), here there is no ambiguity or lack of sufficient evidence. Moreover, the duty to develop the record can be discharged in several ways, including "keeping the record open after the hearing to allow supplementation of the record." See id Here, the ALJ, as noted, did just that. He kept the record open for thirty days to allow Dr. Light to submit his x-ray reports.
Accordingly, the ALJ did not err in giving less weight to Dr. Light's opinion than to the opinions of the other physicians, both treating and examining, in making his determination that Salter retained the residual functional capacity to do light work with only occasional climbing, crawling, and stooping.
B. Vocational Expert's Testimony
At the hearing, the ALJ described Salter's residual functional capacity to the vocational expert as "a maximum exertional capacity of light work with additional non-exertional limitations of occasional-only climbing, crawling, and stooping." (Tr. at 85-86.) In response, the vocational expert testified that Salter could perform the jobs of mail clerk, general office worker, or parking lot cashier. (Tr. at 87.) Salter argues that because the hypothetical questions posed did not include Dr. Light's limitations on Salter's ability to work, the testimony of the vocational expert may not be considered.
The Commissioner can carry the burden of showing that the claimant is able to engage in substantial gainful work existing in the national economy by relying on the testimony of a vocational expert in response to hypothetical questions setting out all of the claimant's limitations and restrictions. See Magallanes v. Bowen. 881 F.2d 747, 756 (9th Cir. 1989). The assumptions in the hypothetical must be supported by the record. See id. "The limitation of evidence in a hypothetical question is objectionable only if the assumed facts could not be supported by the record." See id at 757 (internal quotation and citation omitted).
Here, the ALJ properly included in his hypothetical a description of Salter's limitations based on evidence in the record from Dr. Miller's November 18, 1996 examination of Salter. (Tr. at 84-85) Dr. Miller found Salter capable of lifting and carrying up to 30 pounds, pushing and pulling up to 45 pounds, standing and walking up to 6 hours noncontinuously, and occasional climbing, crawling, and stooping. (Tr. at 285.) As noted, Dr. Miller's conclusion was based on examination of Salter's flexibility, range of motion, motor strength, and reflexes. (See Tr. at 281-85.) Moreover, as discussed above, the ALJ properly discounted the opinion of Dr. Light. With substantial evidence in the record to support the restrictions set forth by Dr. Miller, the ALJ's hypothetical question was proper. (See Tr. at 75.)
ln addition, the ALJ stated at the hearing that there was no purpose in asking the vocational expert to consider what jobs were available for Salter with the restrictions imposed by Dr. Light, because Dr. Light believed Salter to be incapable of any kind of work. As the ALJ explained: "Now, I will not ask the vocational consultant to consider the opinion of [Dr. Light], because it [is] an opinion of total disability. And so that's pointless." (Tr. at 75.)
Accordingly, the ALJ did not err in his questioning of the vocational expert.
C. Credibility
Salter argues that the ALJ improperly used Salter's attempts to return to work and testimony about his daily activities to discredit his subjective complaints of pain.
An ALJ "cannot reject testimony of pain without making findings 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. 1994) (citation omitted). Factors the ALJ may consider when making a credibility determination include the claimant's "daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence." See id.
Here, the ALJ noted that on several occasions following the alleged onset of his disability, Salter returned to work for several months at a time. (Tr. at 23.) Salter argues his attempts to return to work were inaccurately characterized by the ALJ as lasting for "months at a time" and should not have had a bearing on Salter's credibility. The ALJ found evidence in the record showing that Salter returned to work on February 15, 1995, and "apparently worked until April 24, 1995," then returned to work again on June 13, 1995, "for an undetermined period." (Tr. at 23.) The ALJ also noted Salter "attempted to return to his old job during May 1997, but by September 1997 had decided that he was unable to perform satisfactorily." (Id.) To support his argument that the ALJ improperly relied on these attempts to return to work, Salter cites an administrative ruling that sets forth the type of unsuccessful work attempts that do not preclude a finding of disability. See SSR 84-25, 1984 WL 49799 at *2. The purpose of that ruling, however, is to describe situations in which a claimant's failed efforts to return to work would not be considered "substantial gainful activity" at the first step of the sequential evaluation. See id, at *1. The ruling does not preclude consideration of such work to the extent it may bear on a claimant's credibility. In any event, the ALJ did not rely solely, or even primarily, on Salter's work history.
The ALJ further noted that despite Salter's testimony about disabling neck, back, and hip pain and a loss of strength in his left arm, he assisted with household chores such as mowing the lawn, pulling weeds, washing dishes and doing the laundry. (Tr. at 31.) As noted by the ALJ, Salter also testified that he was able to drive a truck, albeit for short distances. (Id.) The ALJ also found it significant, (Tr. at 26), that during an examination by Morey A. Weingarten, M.D., on June 1, 1998, Salter admitted to rebuilding carburetors and performing auto repairs, after the doctor noticed callouses, grease and a blood blister on his hands. (Tr. at 316.) Similarly, Dr. Karis had noted at a February 7, 1996 examination that Salter's arms were symmetrical and "of above average muscularity-of a type consistent with heavy work or exercise." (Tr. at 251.)
Although the ALJ cited the portion of Dr. Karis' report wherein Dr. Karis described Salter as "trying to `figure out' the most favorable answer to give the examiner," (Tr. at 25, 246), the ALJ did not make specific reference to Dr. Karis' findings as to Salter's physical condition.
Salter argues that the ALJ's findings lacked substantial supporting evidence because the ALJ considered only selective portions of Salter's testimony regarding his
daily activities. For example, when questioned by his attorney at the administrative hearing, Salter stated that he mowed a small lawn with great difficulty on 10 occasions, that the weeds he pulled were tall, and that helping with the laundry is not difficult because the machine is at eye level. (Tr. at 69-70.) In Reddick, 157 F.3d 715, the Ninth Circuit held that claimants should not be penalized for attempting to carry on normal activities, and that "[o]nly if the level of activity were inconsistent with [the claimant's] claimed limitations would these activities have any bearing on [the claimant's] credibility." See id. at 722 (finding ALJ erred in credibility determination where claimant's self-described activities were "fully consistent" with her condition). InReddick, the nature of the claimed disability was chronic fatigue syndrome. See id. at 719. The court found the activities on which the ALJ erroneously relied were "sporadic and punctuated with rest," and thus not inconsistent with her inability to work for sustained periods due to fatigue. See id at 722. Here, by contrast, Salter claims to suffer from disabling pain, not fatigue, and the particular household activities in which he admittedly engages are not "fully consistent" with those claims. Moreover, of equal, if not more, significance, Salter's other admitted activities, in particular, rebuilding carburetors and performing other auto repairs, are not consistent with his claims of incapacitating pain. Consequently, the ALJ properly considered those activities in assessing Salter's credibility.
Accordingly, the ALJ did not err in discrediting Salter's subjective testimony regarding pain.
V. CONCLUSION
For the reasons stated above: 1. Plaintiffs motion for summary judgment is hereby DENIED. 2. Defendant's cross-motion for summary judgment is hereby GRANTED. The Clerk shall close the file and terminate all pending motions.IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED
1. Plaintiff's motion for summary judgment is hereby DENIED.
2. Defendant's cross-motion for summary judgment is hereby GRANTED.