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finding the limitation to "work of a repetitive (i.e., simple) nature that does not require meeting fast-paced quotas (i.e. low-stress)" reflected the doctor's opinion that the claimant's anxiety and depression "could interfere with his ability to deal with ordinary work stresses
Summary of this case from Coats v. ColvinOpinion
Case No. CV 12-11053 SS
04-25-2014
TRAVIS WILLIAM SUITER, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of the Social Security Administration Defendant.
MEMORANDUM DECISION AND ORDER
I.
INTRODUCTION
Travis William Suiter ("Plaintiff") seeks review of the final decision of the Commissioner of the Social Security Administration (the "Commissioner" or the "Agency") denying him Disability Insurance Benefits and Supplemental Security Income. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11 & 12). For the reasons stated below, the decision of the Commissioner is AFFIRMED.
II.
PROCEDURAL HISTORY
Plaintiff Travis William Suiter applied for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") on April 10, 2007. (Administrative Record ("AR") 107-14). In both applications, Plaintiff alleged a disability onset date of December 31, 2003. (AR 109). The Agency initially denied Plaintiff's applications on August 31, 2007. (AR 60-61, 64-68). Plaintiff requested reconsideration on September 24, 2007, (AR 69), and the Agency denied his claims again on December 10, 2007. (AR 62-63, 70-79). Thereafter, Plaintiff filed a Request for Hearing by Administrative Law Judge on January 29, 2008. (AR 80-81). Plaintiff testified before the ALJ on October 21, 2008 and January 12, 2009. (AR 22-59). The ALJ subsequently denied Plaintiff's applications on September 8, 2009. (AR 9-21). On November 12, 2009, Plaintiff requested review of the ALJ's decision. (AR 6-8). The Agency denied Plaintiff's request on May 18, 2010, (AR 1-3), and Plaintiff filed an action in this Court on July 22, 2010 seeking review of the Agency's non-disability determination. (AR 467).
On July 28, 2011, this Court reversed the ALJ's decision and remanded Plaintiff's case for further proceedings. (AR 464). Specifically, the Court found that the ALJ (1) improperly rejected the medical opinions of Plaintiff's treating physician Dr. Mehri McKellar, (2) failed to provide clear and convincing reasons for rejecting Plaintiff's credibility, (3) failed to consider the combined effects of Plaintiff's impairments when determining his residual function capacity ("RFC"), and (4) erred by finding Plaintiff's depression "non-severe" at step two of the five-step inquiry that the ALJ must undertake. (AR 471-82).
On September 26, 2011, the Appeals Council issued an order vacating the ALJ's September 8, 2009 decision and remanding the case for further proceedings consistent with the district court's Order. (AR 459-63). Plaintiff testified before the ALJ on October 4, 2012, (AR 437-58), and the ALJ denied Plaintiff's applications, for a second time, on October 24, 2012. (AR 413-33). Plaintiff filed the instant action on January 8, 2013.
III.
FACTUAL BACKGROUND
Plaintiff was born on December 28, 1972. (AR 179). He was thirty-one years old on the date that he allegedly became disabled and thirty-nine years old at the time of his most recent hearing before the ALJ. Plaintiff graduated from high school and completed approximately two years of college. (AR 453). Plaintiff alleged that could not engage in substantial gainful activity after December 31, 2003 due to his HIV, neurosyphilis, hearing problems and depression. (AR 12). Plaintiff also claimed that since 2006, he had experienced "severe headaches and complications from [] neurosyphilis" that prevented him from working. (AR 24-25). Other conditions that allegedly interfered with Plaintiff's ability to engage in substantial gainful employment include chronic diarrhea, nausea, fatigue and bipolar disorder. (AR 25, 52, 440, 442). A. Medical History and Treating Doctors' Opinions
1. Physical and Mental Condition
Plaintiff was diagnosed with HIV in 1997. (AR 17, 293, 647). From July 2000 to September 2004, Plaintiff was a regular patient at Denver Health Medical Center ("DHMC"), where he underwent HIV-related treatment and testing. (AR 183-227). It appears that Plaintiff actively used crystal methamphetamine throughout 2004. (AR 188-89, 194, 197). Although Plaintiff's medical records from DHMC are predominantly handwritten and somewhat difficult to understand, there is no indication that Plaintiff suffered from neurosyphilis, severe headaches, hearing loss, or any chronic physical condition other than HIV between July 2000 and September 2004. Indeed, when Plaintiff left the care of his primary physician at DHMC, Dr. Jeff Logan, his immune status was "acceptable" with a CD4 count of 430 and an HIV viral load of 2,350. (AR 261). Furthermore, Plaintiff was not taking medication to control his HIV and was not "suffering from any functional limitations." (Id.).
In 2006, Plaintiff began to frequently visit the AIDS Health Foundation Clinic ("AHF") in Hollywood, CA. (AR 241). In June 2006, an AHF nurse practitioner referred Plaintiff to clinical audiologist Susan J. Frugone, who performed audiological tests on Plaintiff on June 12, 2006. (AR 765). Ms. Frugone concluded that Plaintiff suffered from asymmetric sensorineural hearing loss, mild high frequency loss in the left ear and profound to moderate loss in the right ear. (Id.). Plaintiff's speech recognition scores were also asymmetric (poor in the right ear and excellent in the left ear). (Id.). Ms. Frugone did not recommend amplification (i.e., a hearing aid) for Plaintiff's right ear due to his "poor speech discrimination score on the right." (Id.).
On June 13, 2006, Plaintiff visited AHF and reported feeling "run down" and "stressed." (AR 241). Plaintiff's medical chart reflected his history of HIV, anxiety, depression, syphilis and hearing loss. (Id.). At the time of his visit, Plaintiff did not report severe headaches. (Id.). He appeared well-nourished and well-developed, and he registered a Karnofsky Score of 90, which indicated that he was able to carry out normal activity. (AR 242).
On February 23, 2007, Plaintiff underwent a follow-up examination at AHF. (AR 244-47). Plaintiff reported feeling sick for over a week, as well as severe headaches, a sore throat and sinus issues. (AR 244). He also admitted to methamphetamine use. (Id.). Nevertheless, Plaintiff's Karnofsky Score remained a 90. Plaintiff was prescribed amoxicillin for possible sinusitis, but was not prescribed any medication for his headaches. (Id.).
On March 19, 2007, Plaintiff visited AHF for a routine examination. (AR 248-51). Plaintiff expressed concern that he had contracted neurosyphilis. (AR 248). He also stated that he was suffering from painful headaches. (AR 249). Although Plaintiff's HIV viral load had climbed to 10,000, he was not taking medication to control his HIV, and he remained generally asymptomatic and able to function normally. (AR 248-49).
On April 10 2007, Plaintiff's treating physician at AHF, Dr. Mehri McKellar, diagnosed Plaintiff with neurosyphilis. (AR 236-38). (AR 293-97). However, Dr. McKellar found that Plaintiff was not markedly restricted in his ability to engage in daily activities or function socially. (AR 238). Similarly, Plaintiff faced no marked difficulty in timely completing tasks due to deficiencies in concentration, persistence, or pace. (Id.).
Dr. McKellar subsequently examined Plaintiff on May 11, 2007. Plaintiff reported ringing in his ears, headaches and depression. (AR 293). Dr. McKellar's notes indicated that Plaintiff was taking Ibuprofen and Midrin for his headaches. (AR 294).
On November 1, 2007, Plaintiff visited AHF complaining of acute diarrhea lasting three to four days. (AR 298). Plaintiff denied nausea, vomiting, fever, chills, or blood in his stool. (Id.). He reported no pain, denied fatigue and remained capable of normal activity. (AR 293-300). Plaintiff was prescribed Flagyl and Lomotil for his diarrhea and received re-fills for his Midrin and Ibuprofen prescriptions. (AR 301-02).
On November 7, 2007, Dr. McKellar completed a physician statement section of an HIV Questionnaire setting forth his opinion regarding Plaintiff's capacity to work. (AR 156-57). Although Dr. McKellar stated that Plaintiff was chronically ill and visibly fatigued due to his chronic headaches, low CD4 count, diarrhea, depression and hearing loss, he nevertheless concluded that Plaintiff was able to lift twenty pounds for two hours per day, lift ten pounds for six hours per day, walk for two to four hours per day, and sit for unlimited periods of time. (Id.).
On November 21, 2007, Plaintiff returned to AHF for a follow-up appointment with Dr. McKellar. Dr. McKellar noted Plaintiff's chronic "tension headaches," but found that Plaintiff was still able to carry out normal activity. (AR 304, 306). On December 20, 2007, Dr. McKellar examined Plaintiff, who complained of a cough, nasal congestion and headaches. (AR 309-313). By April 2008, Dr. McKellar reported that Plaintiff was taking antitretroviral medications to mitigate the effects of his HIV. (AR 346).
From January 25, 2007 to November 7, 2008, it appears that Plaintiff received treatment from a chiropractor for, inter alia, his chronic headaches. (AR 318-412). As part of this treatment, Plaintiff filled out a Headache History form detailing the nature and frequency of his headaches. (AR 411). Plaintiff indicated that his headaches occurred daily and typically interfered with his ability to function at home "at the end of the day[.]" (AR 412). He also stated that his headaches generally manifested in the "late afternoon." (Id.).
After 2007, Plaintiff continued to receive routine treatment for his HIV from Dr. Thomas Biddison at the Los Angeles Gay & Lesbian Center. (AR 341-44, 616-717). On September 22, 2008, Dr. Biddison completed a form entitled "Medical Opinion Re: Ability to Do Work-Related Activities (Physical)" in which he opined regarding Plaintiff's work-related limitations. (AR 385-87). Dr. Biddison concluded that Plaintiff could occasionally lift and carry fifty pounds, frequently lift and carry twenty- five pounds, and sit without limitation. (AR 385). Plaintiff was able to twist, stoop, crouch, bend and climb without limitation. (AR 386). He could also reach, feel, engage in fine and gross manipulation and push and pull without limitation. (Id.). However, Dr. Biddison determined that Plaintiff should avoid prolonged exposure to humidity, fumes, odors, dusts, gases and poor ventilation due to his chronic sinusitis. (AR 387). Aside from this limitation, Plaintiff was able to work in all other environments, including noisy environments. (Id.).
After 2008, Plaintiff continued to receive treatment at AHF for conditions including "whooshing" eye movements, oral thrush, various skin problems and tinnitus. (AR 421) (citing AR 751-64, 768-801). On June 30, 2011, Plaintiff returned to AHF complaining of, inter alia, hearing loss and chronic headaches. (AR 755). However, during an August 23, 2011 examination, Plaintiff denied experiencing headaches. (AR 782). Similarly, during a December 7, 2011 neurology examination performed by Dr. Miguel Valdes-Sueiras at AHF, Plaintiff reported no headache pain and claimed that his headaches had mostly "resolved." (AR 773). B. Examining and Non-Examining Consultative Doctors' Opinions
1. Physical Condition
a. Dr. Bryan H. To
On June 27, 2007, examining physician Dr. Bryan H. To provided the Agency a summary report of an independent internal medicine evaluation of Plaintiff performed at S&L Medical Group in Echo Park, CA. (AR 262-66). Dr. To found that Plaintiff had a grip strength of fifty-five pounds in both hands, appeared neat and clean, ambulated with a normal gait and required no assistance to walk. (AR 263). Plaintiff's hearing "appear[ed] to be adequate" and his muscle tone and mass were normal. (AR 264). Plaintiff was oriented to time, place, person and purpose. (AR 265). His memory was intact and he displayed no problem with coordination, motor function, or motor strength. (Id.).
Based on his examination of Plaintiff, Dr. To concluded that Plaintiff could occasionally push, pull, lift and carry fifty pounds; frequently push, pull, lift and carry twenty-five pounds; stand and walk for six hours per day; and sit without limitation. (Id.). Plaintiff could walk on uneven terrain, climb ladders and work at heights frequently. (Id.). He could use his hands for fine and gross manipulation and was able to bend, kneel, stoop, crawl and crouch frequently. (AR 266). Dr. To concluded that Plaintiff experienced no hearing and seeing limitations, but could not work with heavy or moving machinery. (Id.).
b. Dr. Padma A. Talcherkar
On November 14, 2007, non-examining physician Dr. Padma A. Talcherkar completed a physical RFC assessment for the Agency based on her review of Plaintiff's medical records. (AR 287-92). Dr. Talcherkar concluded that Plaintiff could occasionally lift and carry fifty pounds, frequently lift and carry twenty-five pounds, stand and walk for six hours per day, sit for six hours per day, and push and pull without limitation. (AR 288). Plaintiff faced no limitations reaching, handling, feeling, communicating, seeing, hearing or working in different environments. (AR 289-90). Although Dr. Talcherkar found evidentiary support for Plaintiff's claims regarding the nature of his symptoms, she concluded that Plaintiff's "contentions regarding the severity of, and the related functional restrictions are not supported." (AR 291). For example, Dr. Talcherkar found that Plaintiff's ability to hear and understand her without the use of an amplification device during their phone conversations contradicted the purported severity of his hearing loss. (AR 291-92).
c. Dr. Azizollah Karamlou
On October 6, 2011, examining physician Dr. Azizollah Karamlou submitted a summary report of an internal medicine consultation of Plaintiff performed at S&L Medical Group in Los Angeles, CA. (AR 726-29). During the consultation, Plaintiff appeared well-developed and well-nourished. (AR 727). He was not under any acute distress, and he was able to generate sixty-five pounds of force using his right hand and thirty pounds of force using his left hand. (Id.). Although Plaintiff experienced decreased hearing acuity in his right ear, his hearing in his left ear was "within normal limits." (Id.). Based on the foregoing, Dr. Karamlou concluded that Plaintiff experienced "no restrictions with standing, walking, bending, lifting or carrying." (AR 729) Furthermore, he had no difficulty with gross or fine hand manipulation. (Id.). (AR 729).
The Administrative Record also contains a December 15, 2009 summary report of an internal medicine consultation performed at S&L Medical Group in Echo Park, CA. (AR 613-15). However, this report does not identify the physician who examined Plaintiff. Moreover, the report lacks any conclusions regarding Plaintiff's physical limitations, if any. Accordingly, the Court has omitted a discussion of this report's contents.
d. Dr. Nancy Armstrong
On September 29, 2011, non-examining physician Dr. Nancy Armstrong completed a RFC physical assessment of Plaintiff based on her review of his medical records. Dr. Armstrong concluded that Plaintiff could occasionally lift and carry ten pounds, frequently lift and carry less than ten pounds, stand and walk for two hours per day, sit for six hours per day, and push and pull without limitation. (AR 746). Plaintiff could occasionally climb, balance, stoop, kneel, crouch and crawl. (AR 747). Plaintiff could engage in fine and gross manipulation and feel without limitation, but could reach overhead on a limited basis only. (Id.). Dr. Armstrong found that Plaintiff could see, hear and communicate without limitation. (AR 747-48). However, he should avoid working in environments with excessive noise, fumes, odors, dusts, gases, or poor ventilation. (AR 748).
2. Mental Condition
a. Dr. Steven J. Brawer
On November 7, 2007, examining physician Dr. Steven J. Brawer provided the Agency a summary report of a psychological evaluation of Plaintiff conducted at S&L Medical Group in Echo Park, CA. (AR 279-84). Dr. Brawer described Plaintiff as somber, responsive, receptive, expressive, compliant in performing various tasks and adequately motivated. (AR 279). Plaintiff denied suicidal ideation and explained that he could not obtain employment because of his hearing loss, headaches, diarrhea and feeling of hopelessness. (AR 280). Plaintiff denied any past or present use of street drugs. (AR 281).
Dr. Brawer observed that Plaintiff successfully completed memory tests and his remote memory appeared grossly intact. (AR 282). Plaintiff "demonstrated an adequate attention span for answering interview questions and following test instructions. During performance tasks, [he] was able to sustain concentration and work without distraction." (Id.). Plaintiff yielded a Full Scale IQ score of 88, placing him in the Low Average Range of general intelligence. (AR 282).
Based on the foregoing, Dr. Bawer concluded that Plaintiff had the capacity to learn simple repetitive tasks and could perform detailed varied or complex tasks. (AR 283). Plaintiff's capacity for extended periods of sustained concentration and attention "may [have been] mildly diminished, primarily due to emotional factors." (Id.). However, during testing, Plaintiff "demonstrated adequate attention, concentration, persistence and pace in completing tasks." (Id.). Plaintiff also displayed symptoms of anxiety and depression, which could adversely impact his ability to deal with ordinary work stresses. (Id.). Accordingly, Dr. Brawer opined that Plaintiff might "function most optimally in a semi-isolated work setting" despite his general ability to relate appropriately with supervisory authority figures. (AR 284).
b. Dr. Melvin D. Morgan
On December 7, 2007, non-examining physician Dr. Melvin D. Morgan completed a mental RFC assessment of Plaintiff based on his review of Plaintiff's medical records. (AR 338-40). Dr. Morgan concluded that Plaintiff was not significantly limited in his ability to remember locations and work-like procedures or understand and remember even detailed work instructions. (AR 338). Similarly, Plaintiff could carry out simple and detailed instructions, maintain concentration and attention for extended periods, perform activities within a fixed schedule, sustain a routine, and work with or in proximity to others without being distracted by them. (Id.). Although Plaintiff was moderately limited in his ability to interact appropriately with the public and work without taking unreasonable rest periods, he was able to interact socially and adapt to his work environment. (AR 339). In sum, Dr. Morgan opined that Plaintiff could "sustain adequate pace and persistence" and "adapt and relate to coworkers and supervisors." (AR 340). However, Plaintiff would be most effective in a setting involving limited contact with the public. (Id.).
c. Dr. Ernest A. Bagner III
On August 23, 2011, examining physician Dr. Ernest A. Bagner III provided the Agency with a summary report of a complete psychiatric evaluation of Plaintiff performed at S&L Medical Group in Los Angeles, CA. (AR 720-23). Dr. Bagner found Plaintiff well-developed and well-nourished, neatly dressed and cooperative throughout the evaluation. (AR 720). Plaintiff reported a history of depression, anxiety, bipolar disorder, hopelessness and low motivation. (Id.). He also indicated that his chronic headaches were negatively affecting his memory and ability to concentrate. (Id.).
Dr. Bagner observed that Plaintiff's "thought processes [were] tight. There [was] no flight of thought, looseness of association, thought blocking or distractability." (AR 722). Based on the foregoing, Dr. Bagner concluded that Plaintiff "would have mild limitations interacting with supervisors, peers and the public, maintaining concentration and attention, completing simple tasks and completing complex tasks." (AR 723). Plaintiff would also experience moderate limitation handling ordinary stresses associated with employment due to depression, low motivation and anxiety. (Id.).
d. Dr. Alvin Smith
On September 28, 2011, Dr. Alvin Smith completed a mental RFC Assessment of Plaintiff based on a review of his medical records. (AR 742-44). Dr. Smith found that Plaintiff was not significantly limited in his ability to remember locations, work procedures, or short and simple instructions. (AR 742). Plaintiff was, however, moderately limited in his ability to understand and remember detailed instructions. (Id.). Similarly, Plaintiff was moderately limited in his ability to carry out detailed instructions and maintain concentration and attention for extended periods. (Id.). He faced no significant limitations in other concentration-related categories, such as the ability to sustain an ordinary work routine, perform activities within a fixed schedule, be punctual, and work in coordination or in proximity with others without being distracted by their presence. (Id.). Dr. Smith concluded that Plaintiff experienced no significant limitations with respect to adapting to his work environment, interacting socially with others, or completing a normal workday or workweek without unreasonable periods of rest due to psychological symptoms. Accordingly, Dr. Smith opined that Plaintiff could "perform simple work related tasks in a routine work environment; attend and concentrate for extended periods without significant interruption; exercise reasonable judgment with tasks at his cognitive level; and interact appropriately with co-workers, supervisors, and the general public." (AR 744). C. Vocational Expert Testimony
Vocational Expert ("VE") Frank Corso testified at Plaintiff's October 4, 2012 hearing regarding the existence of jobs in the national economy that Plaintiff could perform given his physical and mental limitations. (AR 452-57). After confirming that the VE reviewed the exhibits provided to him in connection with this case and was present for Plaintiff's testimony before the ALJ, the ALJ asked the VE to consider an individual with Plaintiff's age, education and work experience who is limited to: (1) lifting ten pounds frequently and twenty pounds occasionally; (2) standing and/or walking for four hours during an eight hour work day; and (3) engaging in work that (a) does not require meeting fast paced quotas, (b) is limited to repetitive tasks, (c) does not require contact with the general public, (d) requires only occasional peer contact, (e) does not call for overhead reaching with the left upper extremity, and (f) requires only occasional stooping, kneeling, crouching, and crawling. (AR 454).
The VE testified that an individual sharing Plaintiff's age, education, experience and limitations would be able to perform work as a document preparer at the sedentary level of physical exertion, a final assembler at the sedentary level of physical exertion, and a sorter at the sedentary level of physical exertion. (AR 454-55). The VE opined that these jobs exist in significant numbers in the national economy and in Plaintiff's local economy, and he provided specific job numbers for each occupation. (Id.). The ALJ then asked the VE whether jobs would exist in significant numbers in the national economy for a person with the additional limitation of not being able to perform work in a loud environment. (AR 455). The VE testified that a person with this additional limitation would not be able to work as a sorter because that job "may take place in an environment where the sound level might be more than moderate[,]" but would still be able to perform work as a document preparer or final assembler (Id.). D. Plaintiff's Testimony
1. October 21, 2008 Hearing
Plaintiff testified at the first hearing that he had been unable to work since 2006 due to severe, daily headaches and complications from neurosyphilis. (AR 24-25). He was also unable to work due to diarrhea, nausea and hearing loss. (AR 25). The ALJ noted that Plaintiff was able to hear and understand his (the ALJ's) comments during the hearing, and Plaintiff responded that he was only able to hear the ALJ because there were no other sounds in the courtroom. (Id.). He explained "if there were more noises going on, I wouldn't be able to differentiate, in a restaurant I couldn't tell if it was the person across the table or someone across the restaurant talking." Plaintiff testified that if his hearing were not an issue, his recurring headaches would still prevent him from engaging in substantial gainful activity. (AR 31-32). Plaintiff explained that he had taken numerous medications to treat his headaches, but none had proved effective. (AR 32).
Plaintiff claimed that his depression also rendered him incapable of working because it impaired his ability "to do most things." (AR 33). Plaintiff took Wellbutrin for six months to treat his depression but, as of the date of the hearing, was no longer taking that medication. (AR 33-34).
2. January 13, 2009 Hearing
Plaintiff reiterated that he was unable to work due to headaches, syphilis, diarrhea, nausea, hearing loss, depression and fatigue. (AR 43-44). Although Plaintiff claimed that he was receiving treatment for his mental health problems, it was unclear from the Administrate Record whether this statement was accurate. (AR 44-47). Plaintiff testified that his general physical condition was deteriorating due to wasting associated with his HIV, headaches and hearing loss. (AR 52). He described his chronic diarrhea as "scary" and explained that medications such as Immodium AD were unsuccessful in treating this condition. (Id.). Plaintiff classified his headaches as "severe" and occurring daily. (Id.). He also explained that medication did not meaningfully alleviate his headaches. (Id.). Plaintiff testified that his headaches were so painful that they interfered with his memory and ability to complete simple tasks, such as remembering and attending appointments. (AR 57).
Plaintiff further testified that he experienced "residual fatigue" due to his HIV and could not lift twenty-five pounds frequently. (AR 52-53). His chronic diarrhea also prevented him from sitting in one place because he frequently needed to take bathroom breaks. (AR 56).
Finally, Plaintiff testified that he was beset by feelings of depression and worthlessness, which often left him at "a total loss for everything." (AR 57). Plaintiff felt hopeless, suffered from insomnia, generally lacked motivation and occasionally experienced suicidal thoughts. (AR 57-58).
3. December 4, 2012 Hearing
Plaintiff testified that he was diagnosed with bipolar disorder with rapid recycling and no recovery between intermittent cycles of depression. (AR 440). This mental disorder "affect[ed] [him] in all kinds of ways from [his] inability to focus and concentrate on tasks[.]" (Id.). Plaintiff reported feelings of hopelessness, worthlessness and crippling sadness during bouts of depression, which occurred two to three days per week. (AR 441).
Plaintiff explained that he suffered from hearing loss, but could maintain a conversation to the extent there was only one sound and/or voice in the room. (AR 442). However, "if there is any kind of background noise or the radio or television is on[, he] can't differentiate what the noises are or what the sounds are." (AR 442). Moreover, the use of a hearing aid would "just compound [the] problem." 9AR 442-43).
Plaintiff's headaches started in 2006 due to neurosyphilis and have persisted since that time. (AR 443). The headaches no longer occured daily, but Plaintiff still experienced them four to five times per week. (Id.). Each headache lasted anywhere from five to fifteen hours. (Id.). Plaintiff reported experiencing a "whooshing sensation" in his right eye since 2006, which is painful, "throws [his] balance off and . . . affects [his] vision" sporadically. (AR 448-50).
Plaintiff allegedly experienced a recurrence of neurosyphilis in 2011. (AR 448). Starting in 2011, Plaintiff started to suffer numbness in his hands and feet, which limited his mobility and made it difficult for him to write and walk. (AR 450).
IV.
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he 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)).
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 404.1520(b)-(g)(1) & 416.920(b)-(g)(1).
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of the specific impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found
disabled. If not, proceed to step four.
(4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante, 262 F.3d at 953-54. Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, taking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids"). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). When a claimant has both exertional (strength-related) and non-exertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).
V.
THE ALJ'S DECISION
The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not under a disability within the meaning of the Social Security Act from December 31, 2003 through the date of the ALJ's decision on October 24, 2012. (AR 426). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful employment since December 31, 2003. (AR 419). At step two, the ALJ found that Plaintiff had the severe impairments of HIV infection with a history of neurosyphilis and a depressive disorder. (Id.). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.). The ALJ then found that Plaintiff had the following RFC:
[Plaintiff] has the residual functional capacity to perform light work as defined in 20 C.F.R. 404.1567(b) except for any work involving standing or walking for more than four hours in an eight hours workday; more than occasional stooping, kneeling, crouching or(AR 420). In making this finding, the ALJ first addressed, at length, the disconnect between the alleged severity and frequency of Plaintiff's symptoms and the evidence in the Administrative Record. To begin, the ALJ detailed Plaintiff's medical history from April 2006 to June 2011. (AR 421-22). The ALJ explained that although Plaintiff was treated in 2006 and 2007 for neurosyphilis resulting in hearing loss, "progress notes from AIDS Healthcare Foundation show that [Plaintiff] continued to do relatively well into 2007: his T-Cell was 420 and viral load was 4000; he was still not taking any medications; and he was 'asymptomatic.''" (AR 421). Moreover, as of June 2007, Plaintiff did not report taking any medications for his headaches and in November 2007, he "voiced no further complaint of headache, and he was still not taking antiretroviral medications." (Id.). By 2008, Plaintiff commenced antiretroviral treatment, causing his CD4 count to increase and his viral load to decrease to undetectable levels. (Id.). The ALJ noted that Plaintiff continued to receive routine treatment for his HIV thereafter, although Plaintiff occasionally sought treatment for "urgent" symptoms such as oral thrush, "whooshing" eye movements, skin abscesses and tinnitus. (Id.).
crawling; any work involving overhead reaching with the left upper extremity; any work involving more than simple repetitive tasks; any fast-paced quotas; any public contact; and more than occasional contact with peers.
The ALJ noted that in Plaintiff's various progress reports from the AIDS Healthcare Foundation between June 2006 and August 2011, Plaintiff was "consistently described as either Kanofsky scale 80 (normal activity with effort; some signs or symptoms of disease) or 90 (able to carry on normal activity; minor signs or symptoms of disease)." (Id.). According to the ALJ, Plaintiff's 2010 and 2011 medical records from the Gay & Lesbian Center reflect routine HIV treatment and monitoring, but do not corroborate the severely limiting symptoms that Plaintiff alleged. (AR 422). Although Plaintiff was treated for acute diarrhea in November 2007, the ALJ explained that this single documented instance of severe diarrhea did not support Plaintiff's allegation of consistent diarrhea occurring four to five times per day. (Id.). Similarly, "the record [did] not demonstrate weight loss consistent with wasting syndrome." (Id.). The ALJ observed that "there have been significant periods of time since the alleged onset date during which [Plaintiff] has not taken prescribed medications for the allegedly disabling symptoms, undermining [his] allegation that he has tried but been unable to find a way to remedy his headaches[.]" (Id.).
After his detailed review of Plaintiff's medical history, the ALJ addressed the opinions of Plaintiff's treating, examining and non-examining physicians. First, the ALJ acknowledged the opinions of examining consultative physicians Drs. To and Karamlou. Dr. To examined Plaintiff in June 2007 and concluded that Plaintiff could perform "medium exertion with physical functions requiring agility and postural functions to be performed on a frequent basis." (Id.). More recently, in August 2011, Dr. Karamlou examined Plaintiff and determined that he "did not have any physical restrictions whatsoever." (Id.).
Next, the ALJ gave "great weight" to the opinion of Dr. Biddison, Plaintiff's treating physician at the Los Angeles Gay & Lesbian Center. (Id.). In September 2008, Dr. Biddison opined that Plaintiff had "normal clinical examination findings and that he retained the ability to lift 50 pounds occasionally and 25 pounds frequently, stand and walk about 4 hours (with normal breaks) during an 8-hour day, sit without limitation, frequently perform all postural activities) and use the upper extremities . . . without limitation, but he should avoid concentrated exposure to humidity and respiratory iritants[.]" (Id.). The ALJ noted that Dr. Biddison's assessment was more restrictive, i.e., more favorable to Plaintiff, than the opinions of non-examining physician Dr. Talcherkar and Plaintiff's treating physician from DHMC, Dr. Logan. (AR 423).
Next, the ALJ discussed the opinion of Plaintiff's treating physician at AHF, Dr. McKellar. (Id.). In November 2007, Dr. McKellar opined that Plaintiff could "lift/carry 20 pounds occasionally and 10 pounds frequently, stand/walk up to 4 hours in an 8-hour workday, and sit without limitation." (Id.). The ALJ acknowledged that Dr. McKellar's assessment was "more restrictive" than Dr. Biddison's "insofar as lifting is limited to the 'light' level of exertion[,]" but explained that none of Dr. McKellar's findings were inconsistent with the conclusion that Plaintiff had the capacity to perform light work at the sedentary level of exertion. (Id.). The ALJ further noted that although Dr. McKellar stated that Plaintiff's "biggest problems" were headaches, diarrhea, hearing loss, anxiety and depression, the medical evidence did not support a finding that these problems were disabling within the meaning of the Social Security Act. (Id.). An April 2007 report from Dr. McKellar did not indicate that Plaintiff was markedly limited in his ability to function socially, maintain concentration, or conduct activities daily life activities. (Id.). A May 2007 progress note signed by Dr. McKellar described Plaintiff's headaches as severe, but occurring only intermittently, i.e., not daily, as Plaintiff alleged. (Id.). Moreover, Dr. McKellar diagnosed Plaintiff with "tension" headaches, "as opposed to a more serious condition such as migraines," in November 2007. (Id.). Finally, the ALJ cited a December 2011 medical record from AHF indicating that Plaintiff reported that he was no longer suffering from headaches. (Id.).
As to Plaintiff's hearing loss, the ALJ stated that the only medical opinion addressing any limitations resulting from Plaintiff's hearing issues was Dr. Talcherkar's November 2007 physical RFC assessment, which indicated that Plaintiff had unlimited communicative abilities. (Id.).
The ALJ gave "little weight" to the statement from Michael Barrett, Plaintiff's case manager at AIDS Project L.A., who claimed that Plaintiff's conditions rendered him "disabled." (Id.) (citing AR 348). The ALJ dismissed Mr. Barrett's opinion on the grounds that Mr. Barrett is not a physician and "his conclusory statement represent[ed] a determination on an issue that is reserved to the Commissioner[.]" (Id.). The ALJ also explained that Mr. Barrett's opinion was "sharply" at odds with the other opinion evidence in the record.
With respect to Plaintiff's mental health, the ALJ noted that examining consulting physician Dr. Brawer found that Plaintiff "had only a mild depressive disorder which 'may' result in mildly diminished abilities to sustain attention and concentration, handle work stresses, and sustain motivation and stamina." (AR 424). The ALJ concluded that the absence of a diagnosed depressive order in Plaintiff's copious treatment records "cast additional doubt" on the alleged severity of Plaintiff's depressive order. In the same vein, the ALJ stated that Plaintiff's treatment records show, at best, intermittent and short-term use of psychotropic medications designed to alleviate the symptoms of depression and/or anxiety. (Id.).
The ALJ appears to have given significant weight to the opinion of examining consulting physician Dr. Bagner, who performed a psychiatric evaluation of Plaintiff in August 2011. (AR 424). During his examination with Dr. Bagner, Plaintiff reported mood swings, feelings of helplessness and hopelessness, low motivation, difficulty with memory and concentration, and panic attacks. (Id.). Dr. Bagner diagnosed Plaintiff as bipolar with no additional specification. (Id.). Dr. Bagner concluded that Plaintiff had "moderate limitations in his ability to handle work stresses and complete a normal work week, but only mild limitations in his ability to interact with others, maintain concentration and attention, and complete simple and complex tasks." (Id.). The ALJ described Dr. Bagner's findings as "unremarkable other than showing some mild limitations in memory and concentration." (Id.).
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. (AR 425). At step five, the ALJ considered Plaintiff's age, education, work experience and RFC. (Id.). Plaintiff was thirty-one years old on the alleged disability onset date, and he was therefore a "younger individual" pursuant to 20 C.F.R. 404.1563. (Id.). Plaintiff has at least a high school education and is able to communicate in English. (Id.). The ALJ also concluded that transferability of job skills was not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is "not disabled" whether or not he has transferable job skills. (Id.).
Next, based on the testimony of VE Frank Corso, the ALJ found that, considering Plaintiff's age, education, work experience and RFC, there were jobs existing in significant numbers in the national economy that Plaintiff could perform. (AR 425-26). The ALJ concluded that Plaintiff could perform the work of a document preparer, a final assembler, or a sorter. (AR 426). The ALJ further determined that such jobs existed in significant numbers in the national economy. (Id.).
VI.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)).
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). To determine whether substantial evidence supports a finding, the court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).
VII.
DISCUSSION
Plaintiff challenges the ALJ's decision on four grounds. First, Plaintiff contends that the ALJ erred in assessing Plaintiff's credibility and discrediting his subjective symptoms. (Memorandum in Support of Plaintiff's Complaint ("MSPC") at 3-9). According to Plaintiff, the ALJ "failed to make specific, clear, or convincing findings regarding [Plaintiff's] credibility, and instead improperly states that basis of the credibility determination is a lack of objective evidence to support [Plaintiff's] alleged symptoms and limitations." (Id. at 8). Second, Plaintiff argues that the ALJ erred in failing to find that Plaintiff's headaches and hearing loss were "severe impairments" at step two of the five-step sequential process. (Id. at 9-12). Third, Plaintiff claims that the ALJ failed to properly consider the combined effects of his impairments when determining the appropriate RFC. (Id. at 12-16). Fourth, Plaintiff asserts that the ALJ's non-disability finding at step five was not supported by substantial evidence. (Id. at 17-18).
The Court disagrees with Plaintiff on each proffered ground for reversing the ALJ's ruling. Accordingly, for the reasons discussed below, the Court AFFIRMS the ALJ's decision. A. The ALJ Cited Clear And Convincing Reasons For Finding Plaintiff's Statements Less Than Fully Credible
Plaintiff contends that the ALJ erred by failing to articulate specific, clear, or convincing reasons for finding Plaintiff's subjective statements less than fully credible. (MSPC at 8). The Court disagrees. The ALJ's decision contains extensive citation to and discussion of clear and convincing reasons for rejecting Plaintiff's statements.
When assessing the credibility of a claimant, the ALJ must engage in a two-step analysis. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. (Id.). Then, if there is, in order to reject the testimony, the ALJ must make specific credibility findings. (Id.). In assessing the claimant's testimony, the ALJ may use "ordinary techniques of credibility evaluation." Turner, 613 F.3d at 1224 (internal quotations omitted). The ALJ may also consider any inconsistencies in the claimant's conduct and any inadequately or unexplained failure to pursue treatment or follow treatment. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Additionally, the ALJ may discredit the claimant's testimony where his normal activities can transfer to the work setting. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The Court notes that it is improper for an ALJ to reject subjective testimony based "solely" on its inconsistencies with the objective medical evidence presented. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citing Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)). However, an ALJ may consider such inconsistencies as one factor, among many, bearing on the credibility of a plaintiff's subjective testimony. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-60 (9th Cir. 2002) (ALJ properly considered the lack of objective medical evidence, as well as other factors, in evaluating the credibility of a plaintiff's subjective testimony regarding the severity of her impairments and pain); Morgan, 169 F.3d at 599-600 (same).
Here, there was ample medical evidence of Plaintiff's underlying impairments. However, the ALJ articulated specific, clear and convincing reasons for discounting Plaintiff's testimony about the severity of his physical and mental symptoms. First, the ALJ cited extensively to the Administrative Record to demonstrate that the objective medical evidence in this case directly contradicted Plaintiff's statements. To begin, Plaintiff reported headaches and hearing loss throughout 2007 after contracting neurosyphilis in 2006. However, "an internal medicine consultative examination performed on June 27, 2007" indicated that Plaintiff "was not reportedly taking any medication for either headaches or HIV." (AR 421). Plaintiff did not complain of headaches during his November 1, 2007 visit to AHF. (Id.) (citing AR 299). Although Plaintiff complained of headaches during other visits to AHF and was prescribed Ibuprofen and Midrin, his headaches were never diagnosed as migraines or anything more severe than "tension headaches." (AR 421, 423). Despite Plaintiff's claim that his headaches adversely impacted his mobility and ability to function, Plaintiff's Karnofsky scale was typically 90 and never dropped below 80, a fact that indicates Plaintiff, at his worst, retained the ability to engage in normal activity with effort. (AR 421). In treatment notes from May 2008, there is no mention of Plaintiff's headaches, (AR 344), and in December 2011, Plaintiff informed a neurologist at AHF that his headaches were "mostly" resolved. (AR 423).
In addition to focusing on treatment records contradicting Plaintiff's claim of daily, crippling headaches, the ALJ also discussed, at length, the opinions of Plaintiff's treating physicians, Drs. Biddison and McKellar. (AR 422-23). The ALJ gave "great weight" to Dr. Biddison's conclusion that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently, stand and walk for four hours per workday, sit without limitation, and frequently perform all postural activities. (AR 422). The ALJ found that this opinion was partially confirmed by Dr. McKellar, who concluded that although Plaintiff could stand and walk for four hours per workday, he was limited to carrying and lifting twenty pounds occasionally and ten pounds frequently. (AR 423). The opinions of Plaintiff's examining consulting physicians, Drs. To and Karamlou, also undermined Plaintiff's credibility, as neither doctor concluded that Plaintiff suffered from significant, much less severe, physical limitations due to any physical impairment. (AR 422).
With respect to Plaintiff's diarrhea and hearing loss, the ALJ correctly noted that the objective medical evidence belied Plaintiff's claims that these conditions were so extreme as to render him incapable of substantial gainful activity. The ALJ explained that the Administrative Record contained a single verified example of Plaintiff suffering from acute diarrhea - that is, there was nothing in the medical evidence corroborating what Plaintiff described as "chronic" and "scary" diarrhea. (AR 422) (citing AR 298). Moreover, the "only medical opinion to address any potential hearing limitation indicate[d] that [Plaintiff] ha[d] unlimited communicative abilities." (AR 423) (citing AR 290). Although there is little doubt that Plaintiff suffered from hearing loss, the ALJ found that the objective medical evidence did not substantiate Plaintiff's allegations regarding the effects of this hearing loss on his ability to work.
In addition to Dr. Talcherkar's opinion regarding Plaintiff's communicative limitations, Dr. To found that Plaintiff's hearing appeared to be "adequate." (AR 264). Although the ALJ failed to acknowledge this medical opinion addressing Plaintiff's hearing loss, Dr. To's opinion nevertheless supports the ALJ's conclusion that the objective medical evidence in this case is inconsistent with Plaintiff's statements regarding the severity and frequency of his symptoms.
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Because the objective medical findings discussed above directly contradicted Plaintiff's claims regarding the severity, frequency and consequences of his physical symptoms, the ALJ properly weighed this evidence as one factor, among many, in determining the credibility of Plaintiff's statements.
As to Plaintiff's mental impairments, the ALJ found that Plaintiff's statements regarding the severity of his mental impairments not credible to the extent they directly conflicted with the objective medical evidence. The ALJ noted that the absence of a diagnosed depressive order in Plaintiff's extensive treatment notes "cast doubt on the alleged severity of his depressive symptoms" given Plaintiff's frequent contact with medical professionals from 2006 to 2011. (AR 424). Further, there was no evidence that Plaintiff consistently took psychotropic medication to reduce the effects of his mental impairments. (Id.).
The ALJ also relied on Plaintiff's physicians' opinions in determining the credibility of his statements. The ALJ cited the opinion of examining consulting physician Dr. Brawer, who found that Plaintiff had a "mild depressive disorder which 'may' result in mildly diminished abilities to sustain attention and concentration, handle work stresses, and sustain motivation and stamina." (AR 424). The ALJ also relied on the opinion of Dr. Bagner, who examined Plaintiff in 2011 and concluded that Plaintiff had "moderate limitations in his ability to handle work stresses and complete a normal work week, but only mild limitations in his ability to interact with others, maintain concentration and attention, and complete simple tasks." (Id.). These medical opinions, as well as inconsistencies in the medical evidence regarding the frequency and severity of Plaintiff's mental impairments, were relevant factors in the ALJ's determination that, contrary to Plaintiff's claims, Plaintiff's depressive disorder was not disabling.
Second, the ALJ properly cited Plaintiff's failure to pursue and follow treatment as an indication that his subjective statements were unreliable. (AR 422); see Tommasetti, 533 F.3d at 1039 (an ALJ may consider many factors in weighing a claimant's credibility, including "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment[]") (internal quotation marks omitted). Despite an alleged disability onset date of December 31, 2003, Plaintiff, contrary to his doctor's recommendations, continued using crystal methamphetamine throughout 2004, resisted attending rehab in 2006, remained dependent on amphetamines in 2007, and did not commence antiretroviral treatment for his HIV until late 2007 or early 2008. (AR 188-89, 194, 197, 233, 244, 248, 261, 421). Although Plaintiff started visiting AHF in or around June 2006, he did not seek or receive anti-headache medication until May 2007. (AR 294).
With respect to Plaintiff's mental health, Plaintiff was prescribed psychotropic medication in November 2007, (AR 299), but stopped using it shortly thereafter. (AR 33-34). Moreover, Plaintiff's most recent medical records failed to show any formal mental health treatment despite his allegedly severe bipolar disorder and chronic depression. (AR 424).
The Court agrees with the ALJ's finding that, taken together, Plaintiff's unexplained delay in seeking treatment, ongoing drug use, and failure to continue treatment render his allegations of debilitating physical and mental impairments dubious. Were Plaintiff's symptoms as severe as he claimed, it seems likely that he would have consistently sought treatment, heeded his doctors' advice and made the necessary lifestyle changes to improve his overall wellbeing. Accordingly, the ALJ's citation to and reliance on Plaintiff's treatment history was proper.
Thus, after reviewing the ALJ's decision and based on the foregoing, the Court finds that the ALJ provided sufficiently clear and convincing reasons for discounting Plaintiff's subjective statements. B. The ALJ Properly Found That Plaintiff's Headaches And Hearing Loss Were Not Severe Impairments
At step two of the five-step sequential process, a claimant must make a threshold showing that his medically determinable impairment or combination of impairments is "severe," i.e., that it "significantly limits his ability to do basic work activities[.]" Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting 20 C.F.R. § 404.1521(b)). By its terms, step two is a "de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). Once a claimant meets his burden of demonstrating that he suffers from an impairment "significantly limiting" his ability to perform basic work activities - which include the "abilities and aptitudes necessary to do most jobs[,]" Ramirez v. Astrue, 803 F. Supp. 2d 1075, 1085 (C.D. Cal. 2011) (citing 20 C.F.R. §§ 404.1521(a), 416.921(b)) - the impairment is considered "severe" and the ALJ must proceed to the next step in the sequential evaluation process. See Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001).
However, an impairment or combination of impairments is not "severe" if the evidence establishes only a "slight abnormality that has no more than a minimal effect on an individual's ability to work." Smolen, 80 F.3d at 1290 (internal quotations and citations omitted); see also Webb, 433 F.3d at 686 ("An impairment is not severe if it is merely "a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities."). Thus, the mere existence of an impairment is insufficient proof of a severe or disabling condition.
Here, as discussed above, the Administrative Record lacks reliable medical evidence concerning the impact of Plaintiff's diagnosed headaches and hearing loss on his ability to engage in basic work activities. Although Plaintiff claimed that he was unable to engage in substantial gainful employment due, in part, to these physical impairments, neither his treating nor examining physicians concluded that Plaintiff faced any prohibitive exertional or communicative limitations due to his headaches or hearing loss. In April 2007, Dr. McKellar declined to indicate that Plaintiff suffered from marked restrictions on his ability to engage in daily activities or social functioning, or to timely complete tasks. (AR 238). In November 2007, Dr. McKellar opined that despite Plaintiff's chronic illness, including his headaches and hearing loss, he was able to occasionally lift twenty pounds, frequently lift ten pounds, walk for up to four hours per day and sit without limitation. (AR 156-57).
In 2008, Plaintiff's other treating phyician, Dr. Biddison, opined that Plaintiff was capable of engaging in an even greater range of exertional activities, including lifting up to fifty pounds occasionally, stooping, crouching, bending and climbing without limitation, engaging in fine and gross manipulation without limitation and working in different work environments, except those involving exposure to humidity and concentrated airborne irritants (such as fumes and dusts). (AR 385-87).
Dr. To examined Plaintiff in June 2007 and concluded that his hearing was "adequate" and Plaintiff could engage in a range of activities generally consistent with those described by Drs. McKellar and Biddison. (AR 262-66). Finally, Dr. Karamlou examined Plaintiff in October 2011 and found that despite his headaches and decreased hearing acuity in the right ear, Plaintiff was under "no restrictions with standing, walking, bending, lifting, or carrying" and he had no difficulty with gross and fine manipulation. (AR 729). Moreover, although there was ample proof in the record that Plaintiff suffered from a hearing impairment, (AR 765), the only medical opinions addressing the effects of Plaintiff's hearing loss on his ability to function do not support a finding of a "severe" impairment. (AR 264, 290). Accordingly, there is no basis to conclude that these impairments in fact interfered with his ability to engage in basic work activities. Indeed, a finding to the contrary would cut directly against the weight of the clear and specific findings of every doctor that treated or examined Plaintiff from 2006 to 2011.
However, even if the ALJ erroneously failed to find Plaintiff's headache and hearing loss "severe" at step two, this error was "inconsequential to the ultimate non-disability determination" in this case and therefore harmless. See Molina, 674 F.3d at 1115 (discussing the applicability of the harmless error rule to Social Security cases). An ALJ's failure to identify an impairment as severe at step two is harmless error if the ALJ adequately considers that impairment at step four. See Johnson v Colvin, 949 F. Supp. 2d 1025, 1039 (S.D. Cal. 2013) (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)).
At step four, the ALJ conducted an in-depth review of the subjective testimony and objective medical evidence concerning Plaintiff's headaches and hearing loss. (AR 420-25). Based on his review of the relevant evidence, including the opinions of Plaintiff's treating and examining physicians, the ALJ concluded that "it is apparent that [Plaintiff's] headaches, to whatever frequency and degree he experiences them, have not been shown to result in any actual physical limitations." (AR 423). Furthermore, "whatever limitations (if any) the [Plaintiff's] headaches impose were clearly taken into account" by Plaintiff's physicians in their conclusions regarding his physical functional limitations. (Id.). With respect to Plaintiff's hearing loss, the ALJ acknowledged the existence of this impairment, but correctly noted the absence of any medical evidence indicating that Plaintiff's hearing interfered with his ability to effectively communicate or understand instructions. (Id.).
Plaintiff may disagree with the ALJ's conclusions regarding his headaches and hearing loss and the weight assigned each impairment in determining Plaintiff's RFC. However, this disagreement does not negate the ALJ's full consideration of Plaintiff's headaches and hearing loss at step four. Thus, any failure at step two to identify Plaintiff's headaches and hearing loss as "severe" was harmless. See Lewis , 498 F.3d at 911. C. The ALJ Properly Considered The Combined Effects Of Plaintiff's Impairments When Determining Plaintiff's RFC
"A residual functional capacity is a measure of the physical ability the claimant possesses despite his limitations." Frost v. Barnhart, 314 F.3d 359, 366 (9th Cir. 2002) (citing 20 C.F.R. § 416.945). A RFC assessment requires the ALJ to consider a claimant's impairments and any related symptoms that may "cause physical and mental limitations that affect what [he] can do in a work setting." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant's RFC, the ALJ considers all relevant evidence, including residual functional capacity assessments made by consultative examiners, State Agency physicians and medical experts. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). See also 20 C.F.R. §§ 404.1513(c), 416.913(c). If a physician's RFC assessment is not contradicted by another physician, the ALJ must provide clear and convincing reasons for rejecting that opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended) ("[T]he Commissioner must provide 'clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician.").
"The ALJ is required to consider all of the limitations imposed by the claimant's impairments, even those that are not severe . . . . Even though a non-severe impairment[] standing alone may not significantly limit an individual's ability to do basic work activities, it may - when considered with limitations or restrictions due to other impairments - be critical to the outcome of a claim." Carmickle v. Comm'r of the Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting SSR 96-8p (1996)) (internal quotation marks omitted) (citations omitted).
Here, the functional limitations contained within the ALJ's RFC adequately accounted for all of Plaintiff's severe and non-severe impairments. Plaintiff claimed that he was unable to engage in substantial gainful activity due to neurosyphilis, headaches, hearing loss, diarrhea, HIV-related wasting, depression, bipolar disorder and fatigue. He also alleged that he suffered from a sporadic "whooshing" sensation in his eye that was painful and upset his sense of balance. As discussed above, the ALJ addressed Plaintiff's subjective testimony and the medical evidence in the record concerning all of Plaintiff's impairments and alleged symptoms. The ALJ concluded that the medical evidence did not support a finding of any headache-related limitations other than those already incorporated into Dr. McKellar's November 2007 assessment of Plaintiff's functional limitations. (AR 423). Similarly, the ALJ found scant evidence that Plaintiff's hearing loss adversely impacted his ability to engage in substantial gainful employment. (AR 423). The ALJ noted that despite Plaintiff's claim of chronic diarrhea occurring four to five times daily, the Administrative Record contained only one example of Plaintiff being treated for acute diarrhea lasting several days. (AR 422) (citing AR 298-302). To the extent Petitioner suggested that his health was deteriorating because of HIV-related "wasting," the ALJ correctly noted that "the record does not demonstrate weight loss consistent with wasting syndrome." (AR 422).
The ALJ lent "great weight" to the opinion of treating physician Dr. Biddison concerning Plaintiff's physical limitations. (AR 422-23). He also considered the opinion of treating physician Dr. McKellar, and it appears that the ALJ assigned Plaintiff a more restrictive, i.e., more favorable RFC based, in part, on Dr. McKellar's findings. For example, the ALJ's RFC limits Plaintiff to "light work" with additional limitations - this RFC is at odds with Dr. Biddison's finding that Plaintiff could lift fifty pounds occasionally and twenty-five pounds frequently, but consistent with Dr. McKellar's opinion. (Id.). In limiting Plaintiff to light work with additional limitations, the ALJ also departed, to Plaintiff's benefit, from the opinions of the consulting physicians who examined Plaintiff in 2007 and 2011. (AR 422).
With respect to Plaintiff's mental limitations, the ALJ undertook a lengthy discussion of the opinions of Drs. Brawer and Bagner, the examining physicians who performed psychiatric evaluations of Plaintiff in 2007 and 2011. (AR 423-24). Dr. Brawer concluded that Plaintiff had the capacity to learn simple repetitive tasks, although he may experience "mildly" diminished concentration and attention due to emotional factors. (AR 281). Because Plaintiff displayed symptoms of anxiety and depression that could interfere with his ability to deal with ordinary work stresses, Dr. Brawer concluded that Plaintiff would function "optimally in a semi-isolated work setting." (AR 284). Roughly four years later, Dr. Bagner found that Plaintiff's thought processes were "tight," but that he would have "mild limitations interacting with supervisors, peers and the public, maintaining concentration and attention, completing simple tasks and completing complex tasks." (AR 722-23). The ALJ's RFC adequately reflected the limitations recommended by Drs. Brawer and Bagner - the RFC limited Plaintiff to light work of a repetitive (i.e., simple) nature that does not require meeting fast-paced quotas (i.e., low-stress) or interaction with the general public (i.e., semi-isolated). (AR 420). Indeed, the ALJ's RFC closely tracks the precise mental limitations that Plaintiff's examining physicians identified.
Based on the foregoing, there is no reason to conclude that the ALJ failed to properly consider all of Plaintiff's medically determinable impairments, both severe and non-severe, in assigning Plaintiff a RFC. Plaintiff's RFC reflects his physical and mental impairments and, as a general matter, represents a reading of the medical evidence generally favors Plaintiff. D. Substantial Evidence Supported The ALJ's Non-Disability Determination
"Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson, 112 F.3d at 1066). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). Here, the objective medical evidence in the record, coupled with the opinions of Plaintiff's physicians and Vocational Expert Frank Corso, was more than sufficient to support the ALJ's decision.
First, the objective medical evidence supported the RFC that the ALJ assigned to Plaintiff. The ALJ correctly noted that Plaintiff's treatment records "contain relatively few references to symptoms[]" and Plaintiff inconsistently reported his allegedly disabling impairments to medical professionals between 2003 and 2011. (AR 422). Although Plaintiff complained of headaches frequently, his headaches were attributed to "tension" and were treated conservatively with Ibuprofen and Midrin. (AR 421, 423). In treatment notes from May 2008, there is no mention of Plaintiff's headaches, (AR 344), and in December 2011, Plaintiff informed a neurologist at AHF that his headaches were "mostly" resolved. (AR 423). In November 2007, Dr. McKellar opined that despite his headaches and hearing loss, Plaintiff was able to occasionally lift twenty pounds, frequently lift ten pounds, walk for up to four hours per day and sit without limitation. (AR 156-57). Moreover, in 2008, Dr. Biddison found that Plaintiff could engage in an even wider range of exertional activities notwithstanding his headaches and other impairments. (AR 385-87). The opinions of examining Drs. To and Karamlou supported Plaintiff's treating physicians' conclusions. (AR 262-66, AR 726-29). For example, Dr. To concluded that Plaintiff's hearing was "adequate," (AR 264), a finding that non-examining physician Dr. Talcherkar confirmed. (AR 290) (finding that Plaintiff suffered no communicative limitations).
Although non-examining physician Dr. Armstrong assigned Plaintiff a RFC more restrictive than the ALJ's, (AR 746-48) her opinion, without more, is an insufficient basis for discrediting the opinions of Plaintiff's treating and examining doctors. See Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (ALJ can reject opinions of examining physician, contradicted by a non-examining physician, only for "specific and legitimate reasons that are supported by substantial evidence in the record") (internal quotations omitted); Morgan, 169 F.3d at 600 ("When a nontreating physician's opinion contradicts that of the treating physician - but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician - the opinion of the treating physician may be rejected only if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record.") (internal quotations omitted). Plaintiff also complained of chronic, severe diarrhea, but the medical evidence contains only one example of Plaintiff experiencing acute diarrhea requiring treatment. (AR 298).
With respect to Plaintiff's depressive disorder, the ALJ noted that the medical records indicate that Plaintiff inconsistently reported his mental impairments, continued to use methamphetamine despite his doctors' recommendations and discontinued use of psychotropic medication designed to improve his mental functioning. (AR 33-34, 244, 424). Moreover, Plaintiff's extensive treatment notes failed to indicate any diagnosed mental disorder, and Plaintiff's most recent records contained no indication that he was receiving mental health care. (AR 425).
The ALJ also relied on the opinions of Plaintiff's examining physicians, Drs. Brawer and Bagner. In 2007, Dr. Bawer concluded that Plaintiff had the capacity to learn simple repetitive tasks and could perform detailed varied or complex tasks. (AR 283). Plaintiff's capacity for extended periods of sustained concentration and attention "may be mildly diminished, primarily due to emotional factors[]" and Plaintiff displayed symptoms of anxiety and depression, which could adversely impact his ability to deal with ordinary work stresses. (Id.). Accordingly, Dr. Brawer opined that Plaintiff "may function most optimally in a semi-isolated work setting" despite his ability to relate appropriately with supervisory authority figures. (AR 284). In 2011, Dr. Bagner observed that Plaintiff's "thought processes [were] tight. There [was] no flight of thought, looseness of association, thought blocking or distractability." (AR 722). Dr. Bagner concluded that Plaintiff "would have mild limitations interacting with supervisors, peers and the public, maintaining concentration and attention, completing simple tasks and completing complex tasks." (AR 723). Plaintiff would also experience moderate limitation handling ordinary stresses associated with employment due to depression, low motivation and anxiety. (Id.). Although these assessments suggest that Plaintiff in fact experienced mild to moderate cognitive limitations due to his depressive order, there is no evidentiary support for the extreme and disabling mental impairment that Plaintiff has alleged. The ALJ's RFC clearly takes into account Plaintiff's mental limitations to the extent it limits him to simple tasks in low-stress, semi-isolated work environments. (AR 420).
Second, the testimony of VE Frank Corso supported the ALJ's determination that there were jobs in significant numbers in the national economy that Plaintiff could perform considering his age, education, work experience and RFC. An ALJ may properly rely on the testimony of a VE where the ALJ poses a hypothetical "contain[ing] all the limitations the ALJ found credible and supported by substantial evidence in the record." Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Moreover, an ALJ may rely on a VE's testimony regarding the number of relevant jobs in the national economy, as "[a]n ALJ may take administrative notice of any reliable job information, including information provided by a VE." Id. at 1218 (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
Here, the ALJ asked the VE whether jobs existed in the national economy for an individual with Plaintiff's age, education, work experience and RFC. (AR 452-57). Moreover, the ALJ confirmed that the VE had access to the medical records in Plaintiff's case and was present for Plaintiff's testimony regarding his symptoms. (AR 452-53). The VE testified that an individual sharing Plaintiff's age, education, experience and limitations would be able to perform work as a document preparer at the sedentary level of physical exertion, a final assembler at the sedentary level of physical exertion, and a sorter at the sedentary level of physical exertion. (AR 454-55). He also testified these jobs existed in significant numbers in the national economy and in Plaintiff's local economy, and he provided specific job numbers for each occupation. (Id.). The ALJ asked the VE whether jobs would exist in significant numbers in the national economy for a person with the additional limitation of not being able to perform work in a loud environment. (AR 455). The VE testified that a person with this additional limitation would not be able to work as a sorter, but would still be able to perform work as a document preparer or final assembler. (Id.). Accordingly, even if substantial evidence supported including this additional limitation in Plaintiff's RFC, the ALJ's failure to do so was harmless error because Plaintiff could still perform work as a document preparer or final assembler.
In sum, based on the foregoing, there was substantial evidence supporting the ALJ's non-disability finding in this case. No remand is necessary.
VIII.
CONCLUSION
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.
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SUZANNE H. SEGAL
UNITED STATES MAGISTRATE JUDGE