Opinion
Case No. C 02-3763 SI
October 8, 2003
JUDGMENT
This Court has granted summary judgment in favor of defendant. Accordingly, judgment is hereby entered against plaintiff Anamaria Verduzco and in favor of defendant.
IT IS SO ORDERED AND ADJUDGED.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In her motion for summary judgment, plaintiff Anamaria Verduzco challenges the denial of plaintiffs application for Social Security Disability Insurance and Security Income benefits by defendant Commissioner of Social Security. Specifically, plaintiff asserts that the Administrative Law Judge (ALJ) committed legal error in (1) refusing to consider the impact of plaintiff s depression on her residual functional capacity; (2) rejecting the treating physician's opinion regarding plaintiffs residual functional capacity; and (3) holding that plaintiffs testimony was generally not credible.Having reviewed all the relevant documents, the Court hereby DENIES plaintiffs motion for summary judgment, and GRANTS defendant's cross-motion for summary judgment.
BACKGROUND
Plaintiff filed this action on August 7, 2002, seeking review of a final decision by defendant Jo Anne Barnhart, the Acting Commissioner of the Social Security Administration. Pl's Complaint at ¶ 1. Plaintiff applied for Social Security Disability Insurance and Security Income benefits, alleging that her severe medical impairments prevent her from being able to engage in substantial gainful employment. Pl's Complaint at ¶ 3. Plaintiffs initial application was denied, as was her request for reconsideration. Pl's Complaint at ¶ 4. An ALJ issued a decision denying the plaintiffs claims and on July 25, 2002 the Appeals Council denied review of the ALJ's decision. Pl's Complaint at ¶¶ 5-6. Now before the Court is plaintiffs motion for summary judgment and defendant's cross-motion for summary judgment.
LEGAL STANDARD
The Social Security Act authorizes judicial review of final decisions made by the Commissioner. 42 U.S.C. § 405(g) (2001). Here, the decision of the ALJ stands as the final decision of the Commissioner because the Appeals Council declined review. 20 C.F.R. § 416.1481 (2001). The Court may enter a judgment affirming, modifying or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g).
Factual findings of the Commissioner are conclusive if supported by substantial evidence. Id. The Court may set aside the Commissioner's final decision when that decision is based on legal error or where the findings of fact are not supported by substantial evidence in the record taken as a whole. Tacket v. Apfel, 180 F.3d 1094, 1097-98 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla but less than a preponderance." Id. at 1098. "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). To determine whether substantial evidence exists, the Court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion. Tacket, 180 F.3d at 1098.
An ALJ's decision to reject a treating doctor's opinion must always be supported by substantial evidence. Some courts have found this to mean that an ALJ must always set forth specific, legitimate reasons when rejecting a treating doctor's opinion. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). Other courts prefer the older standard of "where that [substantial] evidence consist[s] of other doctor's opinions that [rest] on independent, objective findings, there [is] no need for the ALJ to set out specific reasons for favoring them. Inferences are allowed." See Zlotnikov v. Apfel, 68 Soc. Sec. Rep. Service 522 (2000) (citing to Andrews v. Shalala, 53 F.3d 1035 (9th Cir. 1995) and Magallanes v. Bowen, 881 F.2d 747 (9th Cir. 1989)). Where the evidence is susceptible to more than one rational interpretation, the Court may not substitute its judgment for the Commissioner's. Tacket, 180 F.3d at 1098.
Even if substantial evidence supports the Commissioner's factual findings, the decision must be set aside if improper legal standards were applied in weighing the evidence and reaching the decision. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978).
DISCUSSION
A. Impact of plaintiff's symptoms of depression on her RFC
The Social Security Act imposes a duty on the ALJ to consider all relevant evidence in determining plaintiffs residual functional capacity ("RFC"). See 20 R.F.C. § 404.1529(e) (2003). Plaintiff argues that ALJ erred by failing to consider plaintiffs depression in determining her RFC. Pi's Memo in Support of Mot. at 3:11-14. In the administrative hearings, plaintiff testified that she was prescribed 10 mg of Elavil, an anti-depressant, because she could not sleep and was depressed. Pi's Memo in Support of Mot. at 2:21-23; Tr. 43. Plaintiff also testified that sometimes she could not sleep through the night even though she took the Elavil. Pl's Memo in Support of Mot. at 2:26-27. Plaintiff argues that there is "no evidence that the symptoms of crying and inability to effectively function are controlled by Elavil, therefore, the ALJ committed an error by failing to consider the extent to which these symptoms have an impact on plaintiffs ability to perform work activities." Pl's Memo in Support of Mot. at 2:27-3:1.
Defendant argues that plaintiff failed to meet her burden of showing that she has depression and that her depression is a severe impairment. The Social Security Act defines an impairment as severe only if it would significantly limit plaintiffs ability to perform basic work-related activities. See 20 C.F.R. § 404.1520-404.1521(a) (2002). A physical or mental impairment must be established by medical evidence comprised of signs, symptoms and laboratory findings and cannot be based solely on plaintiffs statements. See 20 C.F.R. § 404.1508, 404.1528(a) (2003). Defendant contends that because plaintiffs medical records did not contain the diagnosis of depression and plaintiff did not allege depression in any of her forms and reports for these Social Security Disability Insurance proceedings, she has failed to meet her burden of showing that her depression is a severe impairment. Def's Cross-Mot. at 3:8-13. Accordingly, defendant argues, the ALJ did not err in refusing to consider the impact of plaintiffs depression on her RFC. Def's Cross-Mot. at 3:9.
This Court agrees that plaintiff failed to meet her burden of showing that her depression is a severe impairment under the Social Security Act. The transcript from the Social Security administrative proceedings contains no evidence of visible signs, symptoms or laboratory findings to support plaintiffs claim that she suffers from depression. All that exists in the record is a vague reference by the plaintiff during the hearings that she is depressed and does not always sleep throughout the night. Tr. 43, 45. Given that a physical or mental impairment must be established by medical evidence comprised of signs, symptoms and laboratory findings and cannot be based solely on plaintiffs statements, the Court finds that the ALJ did not err in refusing to consider the impact of plaintiff s depression on her ability to work. See 20 C.F.R. § 404.1508, 404.1528(a).
B. Rejection of treating physician's opinion
Plaintiff further argues that the ALJ erred in rejecting the opinion of the treating doctor, Dr. Alan Jung, and favoring the opinion of the consultive vocational examiner, Dr. John Lavorgna. Pl's Memo in Support of Mot. at 8:5-6. Dr. Jung, who has provided ongoing treatment for plaintiffs right arm and neck pain, opined that plaintiffs impairment seemed "less compatible with tendonitis and more suggestive of either chronic myofacial pain syndrome or reflex sympathetic dystrophy." Tr. 208. According to Dr. Jung, plaintiff is unable to resume her previous work activities as a general office clerk given that she is limited to lifting five pounds occasionally and two pounds frequently and is limited in her ability to reach, handle, feel, push and pull. Id. It is unclear to Dr. Jung, however, whether there are other types of work which may be suitable for plaintiff. Id. Dr. Lavorgna, on the other hand, opined that, based on the objective portions of his examination, plaintiffs impairment is Bilateral Wrist Tendonitis and that no restrictions are necessary in regards to plaintiffs capacity to lift and carry. Tr. 156. Dr. Larvorgna opined that, at most, plaintiff should be precluded from rapid, repetitive motions with the upper extremities.Id.
Plaintiff argues that the ALJ "was required to accept the opinion of the treating physician unless that opinion could be rejected for specific and legitimate reasons that are supported by the substantial evidence in the record." Pl's Memo in Support of Mot. at 5:10-13, citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). Plaintiff contends that the ALJ failed to articulate "specific and legitimate" reasons for rejecting the opinion of the treating physician, and thus committed an error of law. Pl's Memo in Support of Mot. at 5:15-19.
Defendant relies on the legal standard articulated in Andrews v. Shalala and Magallanes v. Bowen, which held that, when an examining physician's opinion rests on independent objective tests and clinical findings, the opinion itself may be substantial evidence.See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Defendant contends that the ALJ properly rejected Dr. Jung's opinion and gave "specific and legitimate" reasons for doing so. See Lester v. Chater, 81 F.3d at 830-31 (requiring that the ALJ always provide "specific and legitimate" reasons for rejecting the treating physician's opinion). Defendant argues that the ALJ's specific and legitimate reasons were that Dr. Jung's opinion was based on plaintiffs own subjective complaints and was not supported by Dr. Jung's own records or by other objective evidence. Def's Cross-Mot. at 5:12-22. Defendant emphasizes that the ALJ referred to Dr. Jung's RFC assessment on February 9, 2000 where Dr. Jung indicated that plaintiffs reaching, handling, feeling, pushing/pulling were affected but failed to answer the portion that asked what medical findings supported his assessment. Def's Cross-Mot. at 5:4-5; Tr. 172-174. The ALJ also noted that Dr. Jung failed to report any significant clinical findings on any of the three occasions that he examined the plaintiff and that X-ray studies showed that plaintiff had no wrist abnormalities. Def's Cross-Mot. at 5:4-8; Tr. 12, 137. Defendant argues that because these specific references to Dr. Jung's records by the ALJ qualify as specific and legitimate reasons, the ALJ did provide substantial evidence for rejecting the treating physician's opinion.
Using the heightened standard of Lester v. Chater this Court finds that because the ALJ did cite specific and legitimate reasons for rejecting the treating physician's opinion, he did provide substantial evidence for his decision. The Court agrees that the ALJ's reference to Dr. Jung's record and to the lack of clinical evidence to support Dr. Jung's opinion constitute specific and legitimate reasons for rejecting Dr. Jung's opinion. Consequently, the Court finds that because the ALJ provided substantial evidence for his decision, he committed no legal error in rejecting the treating physician's opinion.
C. Assessment of plaintiffs testimony as not credible
The Social Security Act requires that the ALJ consider evidence other than the medical record because subjective symptoms may suggest a greater severity of impairment than can be shown by the objective medical record alone. See 20 C.F.R. § 404.1529(c)(3). Plaintiff argues that the ALJ erred in his assessment of plaintiffs credibility by failing to consider "other evidence" before making a determination of the extent to which symptoms limit the plaintiffs capacity to work, and thus erred in his decision.
Defendant argues that in making his decision, the ALJ considered a variety of factors outside of the objective medical findings. The ALJ emphasized that no physician, not even plaintiffs treating physician, corroborated plaintiffs contention that she is incapable of doing any type of work. Def's Cross-Mot. at 6:22-25; Tr. 208. The ALJ also took into account that plaintiffs treating physician himself found plaintiffs symptoms "puzzling." Def's Cross-Mot. at 5:8-9; Tr. 12, 201. Additionally, defendant illustrates that another factor the ALJ considered was that, while plaintiff alleged that she had problems with pain, numbness, and swelling since April 1996, there was no evidence of her seeking any treatment for her upper extremity complaints from April 1997 to February 1999. Def's Cross-Mot at 7:3-8, Tr. 12. See Brawner v. Secretary of HHS, 839 F.2d 432.433-34 (9th Cir. 1998) (when plaintiffs conduct undermines her credibility).
The Court is persuaded that the ALJ did not base his decision solely on the absence of corroborative, objective medical findings. The Court finds that the ALJ also based his decisions on the following factors: (1) that there has been no recommendation by any physician that plaintiff abstain from all work; and (2) that although plaintiff alleges that she has suffered from severe debilitating pain in her upper extremities since 1996, she did not seek treatment for this pain for a period of almost two years. The record also shows that the vocational expert, when asked by the ALJ whether someone with the plaintiffs age, education, work experience, and RFC could perform jobs in the national economy, testified that such a person could perform a number of jobs including lobby guard, gate guard, and information clerk. Tr. 13. Consequently, the Court finds that the ALJ did consider other evidence in addition to the objective medical record before making a determination of the extent to which symptoms limit the plaintiffs capacity to work, and thus did not err in his assessment of plaintiff s credibility.
In sum, there was no legal error and the ALJ's conclusions were supported by substantial evidence, so the Court must uphold the ALJ's decision as conclusive. See 42 U.S.C. § 405(g); see Tacket v. Apfel, 180 F.3d at 1097-98.
CONCLUSION
For the foregoing reasons, the Court DENIES plaintiffs motion for summary judgment and GRANTS defendant's cross-motion for summary judgment. [Docket ## 8 and 10.]