Opinion
Civil No. 00-6150-KI
January 26, 2001.
Ralph Wilborn, Etta L. Wilborn, Ralph Wilborn Etta L. Wilborn, P.C., Tucson, Arizona, for Plaintiff.
William W. Youngman, Assistant U.S. Attorney, Portland, Oregon, Lucille Gonzales Meis, Special Assistant U.S. Attorney Office of General Counsel, Seattle, Washington, for Defendant.
OPINION
Plaintiff Charles Williams brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB"). I affirm the decision of the Commissioner.
BACKGROUND
Charles Williams initially applied for DIB in 1988 and was denied by the decision of an ALJ on April 19, 1988. Williams filed a second application for DIB with a protected filing date of May 28, 1996. The second application is at issue in this case. The application was denied initially and upon reconsideration. After a timely request for a hearing, Williams, represented by counsel, appeared and testified before an Administrative Law Judge (ALJ) on July 23, 1998. On January 27, 1999, the ALJ issued a decision finding that Williams was not disabled within the meaning of the Act through the expiration of his insured status on March 31, 1992, and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
LEGAL STANDARDS
The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).
The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996) (DIB); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (SSI). To meet this burden, the claimant must demonstrate an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A) and 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A) and 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. 20 C.F.R. § 404.1520 and 416.920; Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996) (DIB); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989) (SSI). First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the Commissioner proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c) and 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.
If the impairment is severe, the Commissioner proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(d) and 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the Commissioner proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work which he or she performed in the past, a finding of "not disabled" is made and disability benefits are denied. 20 C.F.R. § 404.1520(e) and 416.920(e). If the claimant is unable to perform work performed in the past, the Commissioner proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his or her age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Distasio v. Shalala, 47 F.3d 348, 349 (9th Cir. 1995) (DIB); Drouin, 966 F.2d at 1257 (SSI). The claimant is entitled to disability benefits only if he is not able to perform other work. 20 C.F.R. § 404.1520(f) and 416.920(f).
When an individual seeks either DIB or SSI because of disability, judicial review of the Commissioner's decision is guided by the same standards. 42 U.S.C. § 405(g) and 1383(c)(3). This court must review the case to see if the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). It is more than a scintilla, but less than a preponderance, of the evidence. Id.
Even if the Commissioner's decision is supported by substantial evidence, it must be set aside if the proper legal standards were not applied in weighing the evidence and in making the decision. Id. The court must weigh both the evidence that supports and detracts from the Commissioner's decision. Id. The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the Commissioner. Id. at 720-21.
FACTS
Williams, who was 55 at the time of the hearing, had a high school education. He had previously worked as a boat dock worker, police officer, and police investigator. Williams claims that he became disabled on May 21, 1986, due to anxiety and depression. He was also diagnosed with post traumatic stress disorder associated with his police work.
Williams testified about his condition between 1986 and March 31, 1992, when his insured status ended. His partner and sister did all of the household chores, grocery shopping, cleaning, etc., prior to the partner moving out shortly after his insured status ended. Williams' personal hygiene also deteriorated during that period. He kept little contact with family and friends, which was a change for him. Williams would travel to property he owned in central Oregon but the work of getting organized to go was such an effort that he spent most of the trip sleeping or sitting in a lawn chair. Williams attended classes at Lane Community College as part of his therapy to get him in contact with people. He kept up with the homework and received high grades but the classes made him feel anxious and stressed. Recurring nightmares interrupted Williams' sleep for many hours each night. Williams was on various prescription medicines over the years to treat his emotional problems. He started a resume writing business but the effort he put into it varied from a few afternoons a month up to 100 hours a month.
The ALJ determined that Williams had severe impairments of depression and anxiety disorder. She found that Williams was not entirely credible and that although his mental functional capacity was reduced, he was able to perform unskilled to lower semiskilled work that did not involve more than limited contact with the general public. The ALJ also noted that by the time of the hearing, Williams' mental condition had worsened and that he was having cardiac problems, but neither situation began before Williams' insured status expired on March 31, 1992. Based on the testimony of a vocational expert, the ALJ concluded that Williams could have performed several jobs and thus was not disabled under the Act between April 19, 1988, and March 31, 1992.
This date differs from the alleged start of Williams' disability for res judicata reasons arising from his first application.
DISCUSSION
I. Rejection of Williams' Subjective Testimony
Williams contends that the ALJ improperly rejected his subjective testimony about the effect of his impairments on his ability to work.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. In the first stage, the claimant must (1) produce objective medical evidence of one or more impairments; and (2) show that the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). The claimant is not required to produce objective medical evidence of the symptom itself, the severity of the symptom, or the causal relationship
between the medically determinable impairment and the symptom. The claimant is also not required to show that the impairment could reasonably be expected to cause the severity of the symptom, but only to show that it could reasonably have caused some degree of the symptom. Id. at 1282. In the second stage of the analysis, the ALJ must assess the credibility of the claimant's testimony regarding the severity of the symptoms. If there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony only if the ALJ makes specific findings stating clear and convincing reasons for the rejection, including which testimony is not credible and what facts in the record lead to that conclusion. Id. at 1284.
The ALJ discounted Williams' credibility for several reasons: (1) his testimony on the reason for dropping the college classes, the start of his hygiene problems, and the start of withdrawal from his family and friends are contradicted by his treating psychiatrist's chart notes; (2) the chart notes show a decline after the breakup with his partner, which occurred a few months after Williams' insured status ended; (3) Williams testified at the hearing in 1998 about his condition over six years earlier; and (4) reported difficulties with social interactions and daily living activities are contradicted by the chart notes concerning the help and pleasure Williams was getting from the business he started.
The ALJ's reasons are clear and convincing, are supported by the record, and are a fair reading of the record. One of the difficulties is that Williams, his mother, and his treating physician are discussing his condition five or more years earlier. Even the ALJ acknowledges that his conditioned deteriorated in mid-1992 and had not improved up to the time of the hearing. It would be difficult for anyone to differentiate their own or anothers symptoms over time without confusion. Reliance on the contemporaneous chart notes is a reasonable course. The ALJ did not err in finding Williams not credible.
II. Rejection of Dr. Carter's Opinions
Williams contends that the ALJ improperly rejected the opinion of his treating psychiatrist, Dr. Carter.
The weight given to the opinion of a physician depends on whether the physician is a treating physician, an examining physician, or a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). More weight is given to the opinion of a treating physician because the person has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If a treating or examining physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and convincing reasons. Even if it is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830.
Dr. Carter treated Williams from May 1986 until 1997, which includes substantial periods of time before and after the period at issue in this application. Dr. Carter's opinion that Williams is unable to work is directly contradicted by Dr. Turco, who examined Williams several times for his workers compensation claim.
The ALJ gave several reasons for not crediting Dr. Carter's eventual opinion. In a letter dated June 7, 1988, Dr. Carter stated that Williams was unable to work at any job that he has the skill or expertise to do. He is referring to law enforcement work, and thus does not say that Williams is unable to work at any job. Williams contends that this is an unfair interpretation of the letter when read in context of other letters from Dr. Carter. The problem, however, is that many of the letters from Dr. Carter stating that he was unable to work at all during the time at issue were written four or more years after the fact. This was also noted by the ALJ when she compared Dr. Carter's more recent letters with the symptoms described in his contemporaneous chart notes, which show improvement throughout the relevant period.
Williams also objects that the ALJ mischaracterized the opinion of Dr. Colbach, another examining psychiatrist, as believing along with Dr. Turco that Williams could work in a job outside of law enforcement. Dr. Colbach did not expressly state whether Williams could work in another type of job. He was concerned that Williams had not accepted the possibility of a change in job direction, compounded with the fact that his type of illness can become self-perpetuating when people give up their adult responsibilities and let others care for them. Even ignoring Dr. Colbach's opinion, however, the ALJ has given specific and legitimate reasons supported by substantial evidence in the record for not accepting Dr. Carter's opinion.
III. Adequacy of Vocational Hypothetical
Williams contends that the vocational hypothetical was legally inadequate because it did not consider the limitations assessed by Dr. Carter and did not incorporate the limitations alleged by Williams. Because both of these were properly discounted by the ALJ, this was not error. Williams also contends that the hypothetical did not incorporate the ALJ's own finding from the Psychiatric Review Technique Form ("PRTF") that Williams experienced deficiencies of concentration, persistence, or pace often resulting in failure to complete tasks in a timely manner. Hypothetical questions posed to a vocational expert must specify all of the limitations and restrictions of the claimant. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). If the hypothetical does not contain all of the claimant's limitations, the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy. Id.
The possible answers on the PRTF question on completing tasks in a timely manner were: never, seldom, often, frequent, constant, and insufficient evidence. The PRTF states that an answer of "frequent" is part of the requirement to meet the listings discussed above in step three of the analysis.
ALJs complete the PRTF to assist in determining if a mental impairment is severe at step two of the evaluation, resulting in a finding of disability at that step. See 20 C.F.R. § 416.920a. The PRTF's categories are considered broader than the "detailed assessment" required in the residual functional capacity finding and vocational hypothetical, in steps four and five. See S.S.R. 96-8p. A hypothetical limiting the claimant to do only simple routine repetitive work, which does not require close attention to detail and no work at more than a regular pace was found to properly state the limitations for a finding of often in this PRTF question. Brachtel v. Apfel, 132 F.3d 417 (8th Cir. 1997) (also, the PRTF question is in the disjunctive so it is not a finding that the claimant had all three limitations in concentration, persistence, or pace).
The Commissioner notes that the choices of "often" and "frequent" are terms of art when used on the PRTF because the two words are synonymous in lay language but have a significant difference on the PRTF. I agree. See New World College Dictionary at 539 (1996) (second definition for frequent is "occurring often; happening repeatedly at brief intervals"). The ALJ gave a limitation in the hypothetical that Williams would be limited to unskilled or semi-skilled work due to difficulties with concentration and attention. That limitation satisfies the ALJ's finding on the PRTF.
IV. Discrepancy with the DOT
Williams points out that two of the possible jobs identified by the vocational expert, animal caretaker and buffing machine operator, have different characteristics defined in the Dictionary of Occupational Titles than were explained by the expert. Ignoring those jobs, however, the expert also identified the jobs of industrial cleaner and dump truck driver, which both fall within the hypothetical. There was testimony that these jobs are found in adequate numbers in the economy. This argument is not persuasive.
CONCLUSION
The findings of the Commissioner are based upon substantial evidence in the record and the correct legal standards, and therefore the court affirms the decision of the Commissioner.