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finding that failure to discuss state-agency doctor's opinion was harmless error when opinion supported ALJ's decision and was consistent with substantial evidence of record
Summary of this case from Willard v. ColvinOpinion
Case No. CV 07-4267 JC.
July 7, 2008
MEMORANDUM OPINION
I. SUMMARY
On July 2, 2007, plaintiff Madlyn M. Tibbs ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed.R.Civ.P. 78; L.R. 7-15; July 3, 2007 Case Management Order ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The decision of the Administrative Law Judge ("ALJ") is supported by substantial evidence and is free from material error.
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases).
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On July 28-29, 2004, plaintiff filed applications for supplemental security income benefits and disability insurance benefits. (Administrative Record ("AR") 74-81). Plaintiff asserted that she became disabled on May 12, 2004, due to irreversible brain damage. (AR 74, 78, 117). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on June 29, 2006. (AR 13, 334-81).
On October 27, 2006, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 13-33). Specifically, the ALJ found: (1) plaintiff suffered from the severe impairment of hypoxic brain damage (AR 14, 32); (2) plaintiff's impairment did not meet or medically equal one of the listed impairments (AR 14, 32); (3) plaintiff retained the residual functional to mentally understand, carry out and remember short and simplistic instructions, to make simplistic work-related decisions without special supervision, and to interact appropriately with supervision, co-workers and peers (AR 32); (4) plaintiff had no exertional limitations (AR 33); (5) plaintiff could not perform her past relevant work (AR 26, 33); (6) plaintiff could perform other work that exists in significant numbers in the national economy (AR 27, 33); and (7) plaintiff's allegations regarding her limitations were not totally credible. (AR 15-17, 32).
Plaintiff sought review of the ALJ's decision and submitted additional materials for consideration by the Appeals Counsel. (AR 8, 332-33). The Appeals Council denied plaintiff's application for review. (AR 5-8).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
Residual functional capacity is "what [one] can still do despite [ones] limitations" and represents an "assessment based upon all of the relevant evidence." 20 C.F.R. §§ 404.1545(a), 416.945(a).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
A. The ALJ's Residual Functional Capacity Determination Is Supported By Substantial Evidence
Plaintiff argues that the ALJ's assessment of plaintiff's residual functional capacity is defective because, inter alia, it is not supported by substantial evidence in the record. This Court disagrees.
As noted above, the ALJ found that plaintiff had no exertional limitations and had the residual functional capacity to "mentally understand, carry out and remember short and simplistic instructions, make simplistic work-related decisions without special supervision, and interact appropriately with supervision, coworkers and peers." (AR 32, 33). Based upon a review of the record as a whole, these findings are supported by substantial evidence.
On February 24, 2005, neurologist Sarah Maze, M.D. conducted a neurological evaluation of plaintiff. (AR 252-56). As part of the evaluation, Dr. Maze interviewed plaintiff, reviewed plaintiff's medical records and conducted a neurological examination that included multiple tests. (AR 252-56). Dr. Maze determined plaintiff was "able to lift and carry without restriction," and would be able to "stand, sit, and walk for six hours of an 8-hour workday" and "perform fine motor activities with all extremities." (AR 256). The ALJ properly relied on Dr. Maze's determinations in finding that plaintiff has no exertional limitations. (AR 20, 23, 33). As a result, the ALJ's determination regarding plaintiff's exertional limitations is supported by substantial evidence. Robbins, 466 F.3d at 882.
On September 24, 2004, psychologist Rosa Colonna, Ph.D, conducted a psychological evaluation of plaintiff. (AR 227-32). As part of the evaluation, Dr. Colonna interviewed plaintiff, reviewed plaintiff's medical records and conducted a mental status examination that included multiple tests. (AR 227-32). Dr. Colonna determined plaintiff "will be able to understand, remember, and carry out short and simplistic instructions without difficulty. She presents with a slight inability to understand, remember, and carry out detailed instructions. The claimant will be able to make simplistic work related decisions without special supervision." (AR 231). Dr. Colonna's opinion, upon which the ALJ relied, constitutes substantial evidence to support the ALJ's assessment of plaintiff's residual functional capacity. (AR 19, 23, 32). Robbins, 466 F.3d at 882.
B. The ALJ's Residual Functional Capacity Determination Is Free From Material Error
1. The ALJ Properly Considered the Opinion of Plaintiff's Treating Physician
Plaintiff contends that the ALJ failed to give legally sufficient reasons for rejecting the opinion of plaintiff's treating physician — Dr. Antoine Mitri. (Plaintiff's Motion at 4-5). This Court disagrees and finds the ALJ properly considered the opinion of plaintiff's treating physician and gave legally sufficient reasons for rejecting such opinion.
a. Pertinent Law
In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians"). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion. See id. In general, the opinion of a treating physician is entitled to greater weight than that of a non-treating physician because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).
Cf. Le v. Astrue, ___ F.3d ___, 2008 WL 2074355 *1 (9th Cir. May 16, 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of point on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted).
The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 n. 7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). The ALJ can reject the opinion of a treating physician in favor of a conflicting opinion of another examining physician if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.Id. (citation and internal quotations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted);Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite "magic words" to reject a treating physician opinion — court may draw specific and legitimate inferences from ALJ's opinion). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id. "Broad and vague" reasons for rejecting the treating physician's opinion do not suffice.McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).
If there is "substantial evidence" in the record contradicting the opinion of the treating physician, the opinion of the treating physician is no longer entitled to "controlling weight." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). In that event, the ALJ is instructed to consider certain specified factors in determining the weight to accord the opinion of the treating physician. See 20 C.F.R. §§ 404.1527(d)(2)-(6), 416.927(d)(2)-(6). Even when contradicted by an opinion of an examining physician that constitutes substantial evidence, the treating physician's opinion is "still entitled to deference." SSR 96-2p, Orn, 495 F.3d at 632. "In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." Orn, 495 F.3d at 632 (citation omitted).
Those factors include the "[l]ength of the treatment relationship and the frequency of examination" by the treating physician, and the "[n]ature and extent of the treatment relationship" between the patient and the treating physician. 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii).
Orn instructs: "When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not `substantial evidence.'" Orn, 495 F.3d at 632.
b. Analysis
One of plaintiff's treating physicians, neurologist Antoine Mitri, completed a Residual Functional Capacity Questionnaire on May 2, 2006 reflecting his opinion regarding limitations caused by plaintiff's mental impairments ("Dr. Mitri's RFC opinion"). (AR 281-85). Plaintiff contends that the ALJ failed to set forth legally sufficient reasons for rejecting such opinion. (Plaintiff's Motion at 4) (citing AR 20-21, 281-85). The ALJ found that Dr. Mitri's RFC opinion was contradicted by other medical reports in the record, including those of examining physicians, Drs. Maze and Colonna. (AR 21, 23). As discussed below, the reasons given by the ALJ for rejecting Dr. Mitri's RFC opinion are specific and legitimate and are supported by substantial evidence in the record. Thomas, 278 F.3d at 957. (AR 20-21). Although the Court discusses only the reasons articulated below, it notes that the ALJ's extremely detailed decision is replete with other references and reasons to discount Dr. Mitri's RFC opinion, all of which constitute specific, legitimate, legally permissible reasons supported by substantial evidence in the record. (AR 20-23).
First, the ALJ rejected Dr. Mitri's RFC opinion regarding matters predating March 2004 because, in light of the fact that he first examined plaintiff in March 2004, his only basis for offering opinions regarding plaintiff's condition prior to that date were plaintiff's subjective complaints. (AR 20). The ALJ extensively discussed plaintiff's lack of credibility throughout her decision and expressly gave no weight to any assessment that relied on plaintiff's subjective complaints and self-assessed limitations because her complaints and statements were not credible — a finding plaintiff does not here challenge. (AR 21). A treating doctor's opinion can be discounted if the opinion is based on a claimant's subjective complaints which are unsupported or properly discredited by the ALJ. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). The record reflects that Dr. Mitri first evaluated plaintiff on March 3, 2004. (AR 178). The record does not reflect that Mitri consulted any prior medical records regarding plaintiff's mental impairments. (AR 178-80, 215-16, 281-85). Accordingly, the ALJ's rejection of Dr. Mitri's RFC opinion on the first articulated basis is supported by substantial evidence and is free from legal error.
As no objective clinical findings supported Dr. Mitri's RFC opinion (AR 281), it is reasonable to infer that he relied on plaintiff's subjective complaints more heavily than on his own clinical observations. See Ryan v. Commissioner of Social Security Administration, ___ F.3d ___, 2008 WL 2440560 *4 (9th Cir. June 18, 2008).
Second, the ALJ rejected Dr. Mitri's RFC opinion because said doctor did not conduct a mental status examination or investigation into plaintiff's actual memory, concentration, attention, cognitive or related deficits and how they actually affect her functioning, and therefore, Dr. Mitri's only basis for opining that plaintiff has a constant interference with concentration and attention is plaintiff's assertion to that effect. (AR 20). As noted above, an ALJ may properly reject a treating physician's opinion to the extent it is based solely on a claimant's discredited subjective complaints. An ALJ may also properly discount a treating physician's opinion if it is not supported by objective medical findings. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004). Here, the record reflects that Dr. Mitri never performed a mental status examination, ordered a mental status examination, or consulted mental status examinations performed by others. (AR 178-80, 215-16, 281-85). Accordingly, the ALJ's second articulated reason for rejecting Dr. Mitri's RFC opinion is legally permissible and is supported by substantial evidence in the record.
Third, the ALJ rejected Dr. Mitri's RFC opinion based upon such physician's admission that there are no objective findings. (AR 20). The ALJ concluded that there therefore was "no objective basis of support for [Dr. Mitri's] contention that [plaintiff] is limited to sedentary work." (AR 20). As noted above, an ALJ may properly reject treating physician opinions that are unsupported by objective medical findings. Batson, 359 F.3d at 1195. Here, Dr. Mitri's RFC opinion reflects that "no objective findings" support his diagnoses. (AR 281). Therefore, the ALJ's third articulated reason for discrediting Dr. Mitri's RFC opinion is legally permissible and is supported by substantial evidence in the record.
Fourth, the ALJ rejected Dr. Mitri's RFC opinion because Dr. Mitri's records show no foundation for his opinion that plaintiff would be absent from work more than three times a month because of her impairments or treatments. (AR 20, 285). The only treatment ordered by Dr. Mitri was daily vitamin E supplements, and there is no indication in the record that taking a daily oral supplement would require missing work. (AR 180, 216). Also, as noted above, there is no objective evidence supporting Dr. Mitri's listed limitations. An ALJ may properly discredit treating physician opinions that are not supported by the record or by objective medical findings. Batson, 359 F.3d at 1195. Therefore, the ALJ's fourth reason for discrediting Dr. Mitri's opinion is legally permissible and is supported by substantial evidence in the record.
Fifth, the ALJ noted that Dr. Mitri's records provide no foundation or basis for Dr. Mitri's RFC opinion that plaintiff is unable to withstand any work stress. (AR 20, 282-83). As noted above, Dr. Mitri's RFC opinion reflects that no objective findings support his diagnoses therein. Nor do Dr. Mitri's treatment records support this conclusion. (AR 178-80, 215-16, 281-85). See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (treating physician's opinion properly rejected where treating physician's treatment notes "provide no basis for the functional restrictions he opined should be imposed on [the claimant]"). Further, as the ALJ discussed, Dr. Mitri's RFC opinion in this regard is inconsistent with plaintiff's conduct, as plaintiff returned to work and was able to perform her job properly despite work pressure. (AR 20). The ALJ's fifth articulated reason for rejecting Dr. Mitri's RFC opinion is supported by substantial evidence and is free from legal error.
Sixth, the ALJ discounted Dr. Mitri's opinion because of internal inconsistencies in his documentation, suggesting that he is not always an accurate reporter of information. (AR 20). More specifically, the ALJ noted that although Dr. Mitri's consultation letter reflects that plaintiff's EEG is abnormal, his official test report said that it was within normal limits. (AR 20). The record supports the ALJ's finding regarding the inconsistencies in such documentation. On March 24, 2004, Dr. Mitri conducted an electroencephalogram exam on plaintiff, which Dr. Mitri concluded was "within normal limits." (AR 177). On May 15, 2004, however, Dr. Mitri noted in a report that plaintiff "had an abnormal electroencephalogram." (AR 215). Variances between a physician's opinion and own treatment notes may be used to deem the opinion untrustworthy. Saelee v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996), cert. denied, 1997). Therefore, the ALJ's sixth reason for discrediting Dr. Mitri's opinion is legally permissible and is supported by substantial evidence in the record.
As the discussion above reflects, the ALJ had ample specific and legitimate reasons to reject the opinion of the treating physician which were based on substantial evidence in the record.Thomas, 278 F.3d at 957. Therefore, the Court rejects plaintiff's claim that the ALJ improperly rejected such opinions in her assessment of plaintiff's residual functional capacity.
2. The ALJ Did Not Materially Err in Her Consideration of One of the State Agency's Physician's Opinions
Plaintiff contends that the ALJ's decision cannot "withstand judicial scrutiny" because it is "silent as to the opinions of Dr. Ferrell, a state agency reviewing physician." (Plaintiff's Motion at 5). More specifically, plaintiff contends that the ALJ ignored Dr. Ferrell's opinion that plaintiff would have "moderate difficulties in maintaining concentration, persistence, and pace." (Plaintiff's Motion at 5-6) (citing AR 233-46). The Court finds that any error by the ALJ in failing expressly to mention Dr. Ferrell was harmless.
a. Pertinent Law
An ALJ is not bound by any findings by a state agency medical or psychological consultant. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). However, because these agency physicians and psychological consultants are highly qualified and are also experts in Social Security disability evaluations, the ALJ "must consider" findings of an agency physician. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). When the ALJ considers the findings of a state agency medical or psychological consultant, the ALJ evaluates the findings using factors such as medical specialty and expertise in social security rules, supporting evidence in the case record, supporting explanations provided by the physician or psychologist, and any other factors relevant to the weighing of the opinions. 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(i). Furthermore, the ALJ "must explain in the decision" the weight given to the agency physician's opinion. See SSR 96-6p (ALJ may not ignore state agency physician's opinions and must explain weight given to such opinions in their decisions).
Although an ALJ's failure to adhere to such procedures may be a sufficient ground for reversal or remand, such error may be harmless if the ALJ's opinion is nonetheless supported by substantial evidence. See Patrick v. Barnhart, 2004 WL 1618815, *8 (W.D. Tex.) (failure to discuss agency physician's opinion was error but was not prejudicial because opinion supported ALJ's decision and was consistent with claimant's testimony and substantial evidence of record).
b. Pertinent Facts
Dr. Ferrell, a state agency reviewing psychiatrist, completed a Psychiatric Review Technique ("PRT") on November 3, 2004. (AR 233-45) (Exhibit 7F). In the PRT, Dr. Ferrell checked a box indicating that plaintiff would have a moderate degree of difficulty in maintaining concentration, persistence or pace due to her functional limitations. (AR 243). In a section for notes, Dr. Ferrell indicates that plaintiff has no significant impairment. (AR 245).
Dr. Ferrell also completed a Mental Residual Functional Capacity Assessment ("MRFC") on November 3, 2004. (AR 247-50) (Exhibit 8F). In the "summary conclusions" section of the MRFC, Dr. Ferrell checked boxes indicating plaintiff was "moderately limited" in her ability to: (1) understand and remember detailed instructions; (2) carry out detailed instructions; (3) maintain attention and concentration for extended periods; and (4) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. (AR 247). However, Dr. Ferrell also checked boxes indicating plaintiff was not significantly limited in her ability to: (1) understand and remember very short and simple instructions; (2) carry out very short and simple instructions; (3) sustain an ordinary routine without special supervision; (4) work in coordination with or proximity to others without being distracted by them; (5) make simple work-related decisions; (6) complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; (7) accept instructions and respond appropriately to criticism from supervisors; (8) get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and (9) respond appropriately to changes in the work setting. (AR 247-48). In addition, in the "functional capacity assessment" section of the MRFC, Dr. Ferrell wrote that plaintiff was capable of simple, repetitive one to two step tasks. (AR 249).
In her decision, the ALJ did not mention Dr. Ferrell by name. She did, however, refer to Dr. Ferrell's PRT and MRFC, and Dr. Ferrell's opinion. (AR 23, 27, 29) (citing Exhibits 7-F, 8-F). First, as to Dr. Ferrell's PRT, the ALJ cited such document in support of her finding that plaintiff could mentally understand, carry out and remember short and simplistic instructions, make simplistic workrelated decisions without special supervision, and interact appropriately with supervision, co-workers and peers. (AR 23) (citing Exhibit 8-F). She also referred to "state agency psychiatric consultants" and cited the PRT in discussing a hypothetical question posed to the vocational expert. (AR 27) (citing Exhibit 8-F).
Second, as to Dr. Ferrell's opinion that plaintiff had moderate difficulties in maintaining concentration, persistence or pace, the ALJ adopted such finding, referring to assessments from "consulting doctors." (AR 23). The ALJ also expressly referred to the "state agency psychiatric consultant['s]" MRFC and the opinion therein that plaintiff suffered from "`moderate' difficulties in maintaining concentration, persistence or pace" in discussing a hypothetical question posed to the vocational expert by plaintiff's counsel. (AR 29) (citing Exhibit 7-F).
As noted above, the ALJ ultimately determined that plaintiff had the residual functional capacity to "mentally understand, carry out and remember short and simplistic instructions, make simplistic work-related decisions without special supervision, and interact appropriately with supervision, co-workers and peers." (AR 32).
c. Analysis
Here, although the ALJ does not refer to Dr. Ferrell by name, it is clear from the foregoing that the ALJ reviewed and considered Dr. Ferrell's opinion, and expressly adopted his opinion that plaintiff had moderate difficulties in maintaining concentration, persistence or pace. (AR 23). Even assuming, however, that the ALJ was required to mention such physician by name and to discuss further such opinion, any error was harmless.
First, as described above, Dr. Ferrell checked boxes indicating that plaintiff had moderate mental limitations with detailed instructions, but wrote that plaintiff was able to complete simple, repetitive one to two step tasks. These observations do not contradict the ALJ's determination that plaintiff could understand, carry out and remember simple instructions.
Second, Dr. Ferrell agreed with the ALJ's determination that plaintiff could "make simplistic work-related decisions without special supervision, and interact appropriately with supervision, co-workers and peers." (AR 32, 247-48).
Third, in addition to checking boxes indicating that plaintiff would have moderate difficulties maintaining attention and concentration for extended periods, performing tasks within schedule, maintaining regular attendance, and being punctual within customary tolerances, Dr. Ferrell also checked a box indicating plaintiff was not significantly limited in her ability to "complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods" and wrote that plaintiff had no significant mental impairment. These opinions are consistent with the ALJ's residual functional capacity assessment.
Finally, as discussed above, the ALJ's residual functional capacity determination is supported by substantial evidence in the record.
Therefore, the Court concludes that any error by the ALJ in failing further to address Dr. Ferrell's opinion was harmless.
3. The ALJ Properly Rejected Plaintiff's Offered Definition of "Moderate" Limitations
Plaintiff argues the ALJ erred by not concluding that a "moderate" impairment is an impairment that occurs up to one third of the time. (Plaintiff's Motion at 6-7). Plaintiff contends that the "Third Circuit has held that the definition of moderately limited in the context of a hearing before the Social Security Administration means that the claimant is unable to perform the task up to a third of the time," citing Morales v. Apfel, 225 F.3d 310, 314 n. 4 (3rd Cir. 2000), and urges the Court to adopt this alleged holding. (Plaintiff's Motion at 7). Plaintiff further argues that because of this alleged error, the ALJ's residual functional capacity determination was also in error. (Plaintiff's Motion at 6-7). Plaintiff's argument is unpersuasive.
a. Pertinent Facts
During cross-examination of the vocational expert near the end of the June 29, 2006 hearing, plaintiff's counsel posed a hypothetical question about an individual with "[m]oderate difficulties in maintaining concentration, persistence, or pace." (AR 377-78). Plaintiff's counsel defined moderate as "occurring up to one third of the time the person would not be able to maintain concentration, be persistent, or keep pace." (AR 378). Based on that definition, the vocational expert testified that such a person would be unable to perform any type of work. (AR 378).
After plaintiff's counsel finished questioning the vocational expert, the ALJ asked plaintiff's counsel about the one third definition of moderate. (AR 378-79). Plaintiff's counsel stated that the government did not define moderate but that "there is case law that has found that one third and moderate are consistent." (AR 379). Plaintiff's counsel acknowledged that the referenced case law was from the Third Circuit and therefore only persuasive, and that the Ninth Circuit had not adopted the Third Circuit's alleged holding. (AR 379-80).
The ALJ recounted this discussion in the decision, noting that plaintiff's counsel did not explain on what basis or provide evidence to support that a moderate limitation meant that a person would not be able to concentrate, or maintain persistence and pace for 1/3 of the time. (AR 29). The ALJ appears to have rejected such definition. (AR 31).
b. Analysis
Plaintiff's contention regarding the definition of "moderate" is unsupported by the record and is unpersuasive. As plaintiff has conceded, federal regulations do not define the term "moderate" with regards to limitations. (AR 379). Nor doesMorales do so. Rather, in Morales, the court merely noted that a vocational expert at the administrative hearing in issue himself/herself defined "moderately limited" to mean that the claimant therein was unable to perform a task up to a third of the time. Morales, 225 F.3d at 314 n. 4. The Morales court did not purport to adopt or approve of such definition. Moreover, plaintiff fails to demonstrate that any doctor who offered opinions regarding plaintiff's condition or functional limitations defined the term "moderate" in this fashion. Accordingly, the ALJ did not err in rejecting plaintiff's proffered definition of such term.
V. CONCLUSION
For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.
LET JUDGMENT BE ENTERED ACCORDINGLY.