Opinion
NO. CV 11-9069-E
07-16-2012
MARIA DE LA CRUZ YANES, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION
PROCEEDINGS
Plaintiff filed a Complaint on November 1, 2011, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on February 3, 2012.
Plaintiff filed a motion for summary judgment on April 23, 2012. Defendant filed a cross-motion for summary judgment on May 23, 2012. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed November 4, 2011.
BACKGROUND
Plaintiff, a former single needle sewing machine operator, asserted disability since February 27, 2007, based primarily on alleged "T.K.R. [total knee replacement], lower back, hip, legs, knees, and heels pain, chondromalacia grade 4, fatigue, [and] osteoarthritis on right knee" (Administrative Record ("A.R.") 52, 141-47, 161, 173). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from Plaintiff and a vocational expert (A.R. 12-210, 217-703).
The ALJ found that Plaintiff suffers from severe "degenerative disc disease of the lumbar spine, diabetic neuropathy, and osteoarthritis of the right knee," but retains the residual functional capacity to perform "the full range of light work" (A.R. 14-20). The ALJ found not credible Plaintiff's testimony regarding the alleged severity of her physical problems (A.R. 16-19). The ALJ also found that a person having the capacity to perform the full range of light work could perform Plaintiff's past relevant work as a single needle sewing machine operator, as that work is generally performed (A.R. 20 (adopting vocational expert testimony at A.R. 43 (describing exertional requirements for the job as "light"))). Accordingly, the ALJ denied disability benefits (A.R. 12, 20-21). The Appeals Council denied review (A.R. 1-3).
20 C.F.R. § 416.967(b) (emphasis added).
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.
Plaintiff argues that the ALJ: (1) erred in rejecting the opinion of Plaintiff's treating rheumatologist; (2) erred in discounting Plaintiff's credibility; and (3) lacked substantial evidence to support the finding that Plaintiff can perform her past relevant work See Plaintiff's Motion, pp. 3-10.
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 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) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).
This Court "may not affirm [the Administration's] decision simply by isolating a specific quantum of supporting evidence, but must also consider evidence that detracts from [the Administration's] conclusion." Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) (citation and quotations omitted); see Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007) (same). However, the Court cannot disturb findings supported by substantial evidence, even though there may exist other evidence supporting Plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).
DISCUSSION
After consideration of the record as a whole, Defendant's motion is granted and Plaintiff's motion is denied. The Administration's findings are supported by substantial evidence and are free from material legal error. Plaintiff's contrary contentions are unavailing.
The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
I. Substantial Evidence Supports the Conclusion Plaintiff Can Work.
Substantial medical and vocational evidence supports the ALJ's conclusion that Plaintiff is not disabled. The ALJ properly relied on this evidence to deny disability benefits.
A. Summary of the Medical Record
Plaintiff's primary care physician, Dr. Gary Brown, treated Plaintiff since 1996 for hypertension, high cholesterol, diabetes mellitus, and degenerative joint disease in Plaintiff's knees. See A.R. 259-68, 271-78, 283, 290-93, 296-308, 311-66, 557-58, 606-07 (treatment notes). Lab work for Plaintiff showed high triglycerides, high glucose, and some high cholesterol readings (A.R. 367-74, 378-86, 389-90, 393-94, 398-415, 420-23, 425-27, 429, 436, 438-39, 441-45, 450). A treatment note from March 2006 indicates Plaintiff's blood sugar is "controlled when checked at home" (A.R. 298).
On March 19, 2007, Plaintiff reportedly told Dr. Brown that Plaintiff thought she needed to be disabled (A.R. 283). Dr. Brown observed Plaintiff using a cane on August 21, 2008, when Plaintiff asked the doctor to fill out disability forms (A.R. 259). On January 30 and May 28, 2009, Dr. Brown noted that Plaintiff continued to believe she is disabled (A.R. 557, 606). Dr. Brown never opined that Plaintiff is disabled.
Dr. Brown referred Plaintiff to rheumatologist Dr. Thomas Romano in 2006 for an evaluation of Plaintiff's right knee pain (A.R. 295). Dr. Romano had seen Plaintiff for her right knee in 2004, and had diagnosed osteoarthritis (A.R. 295; see also A.R. 309-10 (earlier treatment records); A.R. 463 (x-ray report from 2004 showing mild degenerative changes to the right knee)). Plaintiff reported to Dr. Romano on June 29, 2006, that Plaintiff had fallen seven or eight weeks ago and had been experiencing increased pain and swelling in her right knee (A.R. 295). Dr. Romano once again diagnosed osteoarthritis in the right knee (id.). Dr. Romano recommended physical therapy, corticosteroid injections, and daily medication (Orudis). (Id.). Dr. Romano gave Plaintiff injections on August 8, 2006, February 14, 2007, March 1, 2007, and March 8, 2007 (A.R. 287-89, 294).
On January 30, 2008, orthopaedic surgeon Dr. Luigi Galloni performed arthroscopic surgery on Plaintiff's right knee to treat Plaintiff's osteoarthritis, chondromalacia Grade IV medial femoral condyle and medial tibial plateau, and a tear of the medial meniscus (A.R. 221-23). After the surgery, Dr. Galloni started Plaintiff on physical therapy (A.R. 220). On March 24, 2008, Dr. Galloni reported that Plaintiff had not been improving since the surgery and that nothing more could be done, except Plaintiff should continue with exercises and physical therapy (A.R. 219). Dr. Galloni indicated that Plaintiff eventually would require a total knee arthroplasty, but that Plaintiff was overweight and too young for a total knee replacement (A.R. 219). By May 5, 2008, Dr. Galloni reported "some minimal improvement" by Plaintiff post-surgery (A.R. 218). Plaintiff was to continue with her exercises (A.R. 218). By August 4, 2008, Dr. Galloni reported that Plaintiff "eventually" had some improvement with the arthroscopy, but was still having "some problems and pain" (A.R. 217).
On initial examination in July 2007, Dr. Galloni reported that Plaintiff had decreased range of motion in the right knee with tenderness to palpation of the medial and lateral joint line and some crepitus at range of motion (A.R. 230). X-rays showed a collapse of the medial compartment of the right knee, and an MRI showed a tear to the medial meniscus of the right knee with degeneration of the cartilage of the medial compartment (A.R. 231; see also A.R. 458-59 (MRI report from June 12, 2007)). Dr. Galloni diagnosed osteoarthritis of the right knee and indicated that Plaintiff may be in need of a right knee replacement (A.R. 231).
An MRI of Plaintiff's lumbosacral spine dated December 4, 2007, showed mild-to-moderate hypertrophy of the facet joints, which Dr. Galloni opined "does not seem to be the situation that is causing the patient such problems" (A.R. 225-27, 231). Earlier x-rays of the lumbar spine dated February 14 and August 20, 2007, showed only evidence of "spasm" and a normal lumbar spine, respectively (A.R. 229, 457).
Plaintiff underwent consultative examinations, which found no disabling impairments. Consultative examiner Dr. A. Rahman Khaledy Sultan prepared a Complete Internal Medicine Evaluation of Plaintiff dated December 2, 2008 (A.R. 520-25). Plaintiff reported a history of back pain, high blood pressure, diabetes, high cholesterol, and right knee pain, and Plaintiff also reported her January 2008 knee surgery (A.R. 520-21). Dr. Sultan stated that Plaintiff drove herself to the office, and the doctor observed that Plaintiff had no difficulty getting into and out of a chair (A.R. 520-21).
On examination, Dr. Sultan found moderate limitation of back movement, with "no loss of lordosis," "no paralumbar muscle spasm," "no tenderness to palpation," and negative straight leg raising tests (A.R. 523). Dr. Sultan also found Plaintiff's right knee had osteoarthritis, but range of motion was intact (A.R. 524). Dr. Sultan noted no other issues (A.R. 520-24). Dr. Sultan ordered lumbar spine and right knee x-rays, which revealed mild disc degeneration at the L2-L3 vertebrae and generalized osteopenia, and mild to moderate osteoarthritis in the right knee (A.R. 524, 526).
Osteopenia is a reduction in bone volume to below normal levels. See Medline Plus Medical dictionary entry for "osteopenia," available online at www.merriam-webster.com/ medlineplus/osteopenia (last visited July 5, 2012).
Dr. Sultan opined that Plaintiff could perform medium work, i.e., she could lift and carry 50 pounds occasionally, 25 pounds frequently, could stand or walk six hours in an eight-hour day, and could sit for six hours in an eight-hour day with normal breaks (A.R. 525). Dr. Sultan imposed no postural, manipulative, visual, communicative or environmental limitations (A.R. 525). Dr. Sultan stated that Plaintiff would not need a cane for short distances, but Plaintiff told Dr. Sultan she uses a cane for long distances (A.R. 525).
Consultative psychologist Rosa Colonna examined Plaintiff and prepared a Psychological Evaluation of Plaintiff dated January 7, 2009 (A.R. 529-33). Dr. Colonna observed that Plaintiff was overweight/obese, and ambulated with a cane (A.R. 529, 533). On examination, Plaintiff's intellectual functioning fell in the borderline to low-average range (A.R. 531-32). Dr. Colonna assigned plaintiff a GAF score of 65. Dr. Colonna opined that Plaintiff would be able to understand, remember, and carry out short and simplistic instructions without difficulty. She would have a mild inability to understand, remember, and carry out detailed instructions. Plaintiff could make simplistic work-related decisions without special supervision. Dr. Colonna found no other limitations. See A.R. 533.
Clinicians use the GAF scale to report an individual's overall level of functioning. "A GAF of 61-70 indicates 'some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.'" Siegel v. Astrue, 2009 WL 2365693, at *6 n.6 (E.D. Cal. July 31, 2009) (quoting from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. 1994)).
Plaintiff thereafter returned to Dr. Romano with complaints of bilateral knee pain (A.R. 596, 598, 603, 608, 611). Dr. Romano examined Plaintiff on March 9, 2009, and found marked crepitus and decreased range of motion in the right knee, a fairly normal range of motion in the left knee, and some discomfort in Plaintiff's right heel (A.R. 611). Dr. Romano opined that Plaintiff has severe osteoarthritis in her right knee and probable Achilles tendinitis in her right heel (A.R. 611). Dr. Romano stated that Plaintiff's arthroscopic surgery did not help Plaintiff's right knee, nor did treatment with multiple NSAIDS, physical therapy, injections of corticosteroids and injections of Euflexxa (A.R. 611). Dr. Romano agreed with Dr. Galloni that Plaintiff was too young for a right total knee replacement (A.R. 611). Dr. Romano prescribed Lyrica, a Flector Patch, and additional Euflexxa injections (A.R. 611). Dr. Romano injected Plaintiff's right knee with Euflexxa on April 23 and May 7, 2009, and her left knee with Euflexxa on July 10, 20, and 27, 2009 (A.R. 603-05, 608-09).
A week later, podiatrist Dr. Stanley Mathis diagnosed tendinitis (A.R. 610). Dr. Mathis prescribed physical therapy and heel lifts for both of Plaintiff's feet (A.R. 610).
On September 23, 2009, Plaintiff reported that her right heel was swollen with pain, but that Euflexxa injections had helped her left knee (A.R. 598). Dr. Romano noted right patellar tendinitis helped by a patch (A.R. 598). On January 26, 2010, Plaintiff reported that the injections had helped, she was happy with Celebrex, and she did not need additional injections at that time (A.R. 596). Plaintiff reported worse pain when bending her knees for an extended time and pain moving up her leg when walking, however (A.R. 596).
B. Analysis
In determining that Plaintiff retains the residual functional capacity to perform the full range of light work, the ALJ gave weight to Dr. Sultan's internal medicine evaluation, but ultimately assigned Plaintiff a more restrictive capacity than Dr. Sultan found to exist. See A.R. 16, 19 ("The undersigned gives significant weight to the above opinions; however, notes that the residual functional capacity finding contained herein is more restrictive than any other opinion throughout the record."). The ALJ stated, "the undersigned finds in light of the claimant's medical history she is limited in her ability to lift and/or carry, and these limitations are reflected in the [residual functional capacity] identified above" (A.R. 18).
The ALJ assigned no mental restrictions, citing Dr. Colonna's assessment that Plaintiff would have only mild limitations in her ability to carry out detailed instructions (A.R. 15). The ALJ deemed Plaintiff's mental condition non-severe because the condition would cause no more than a minimal limitation on Plaintiff's ability to perform basic mental work activities. See A.R. 15; see also 20 C.F.R. §§ 404.1521, 416.921 (defining non-severity). Plaintiff does not appear to dispute this conclusion.
The consultative examiners' findings constitute substantial evidence supporting the ALJ's decision. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consulting examiner's opinion is substantial evidence that can support an ALJ's finding of nondisability); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (examining physician's independent clinical findings are substantial evidence).
Additional support for the ALJ's decision is found in the opinions of the non-examining State agency physician. See Tonapetyan v. Halter, 242 F.3d at 1149 (non-examining physician's opinion may constitute substantial evidence when opinion is consistent with independent evidence of record); Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (same). State agency physician P.N. Ligot completed a Physical Residual Functional Capacity Assessment form for Plaintiff dated January 26, 2009 (A.R. 548-52). Like Dr. Sultan, Dr. Ligot found that Plaintiff has the capacity to perform medium work. Id.
To the extent the record contains conflicting medical evidence, it was the prerogative of the ALJ to resolve the conflicts. See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001). Where, as here, the evidence "is susceptible to more than rational interpretation," the Court must uphold the administrative decision. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (1995); accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
Having found that Plaintiff retains the residual functional capacity to perform the full range of light work, the ALJ properly relied on the Dictionary of Occupational Titles ("DOT") and vocational expert testimony to conclude that Plaintiff can perform her past relevant work as a single needle sewing machine operator as generally performed (A.R. 20). The DOT listing for lockstitch-machine operator (garment) (alternatively titled "single-needle operator") describes the job as requiring light exertion. See DOT 786.682-170; see also A.R. 43 (vocational expert testifying that the normal exertional level for a sewing machine operator is light). This evidence supports the ALJ's conclusion that Plaintiff can work. See Social Security Ruling ("SSR") 82-62 ("The [residual functional capacity] to meet the physical and mental demands of jobs a claimant has performed in the past (either the specific job a claimant performed or the same kind of work as it is customarily performed throughout the economy) is generally a sufficient basis for a finding of 'not disabled.'. . . Determination of the claimant's ability to do [past relevant work] requires a careful appraisal of . . . in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy."); see also Kennedy v. Astrue, 2012 WL 2131870, at *12 (D. Nev. May 4, 2012), adopted, 2012 WL 2131458 (D. Nev. June 11, 2012) (DOT listing and vocational expert testimony that past relevant work required light exertion amply supported ALJ's determination that a claimant who could perform a full range of light work was capable of performing the claimant's past relevant work).
Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
II. The ALJ Did Not Materially Err in Evaluating Dr. Romano's Opinions.
Plaintiff argues that the ALJ erred in rejecting the opinions of treating rheumatologist Dr. Romano. See Plaintiff's Motion, pp. 3-7. Dr. Romano provided Plaintiff with a letter dated January 26, 2010, urging that Plaintiff's MediCal not be taken away (A.R. 584). Dr. Romano also completed a Multiple Impairment Questionnaire dated February 10, 2010 (A.R. 586-93). Dr. Romano diagnosed severe osteoarthritis in both knees and status post-arthroscopic debridement of the right knee, and gave Plaintiff a "poor" prognosis (A.R. 586). Dr. Romano reported clinical findings supposedly showing severe crepitus and decreased range of motion in both knees with positive McMurray in her right knee, and marked quadricep atrophy in her thighs bilaterally, and laboratory testing showing grade IV chondromalacia in both knees from x-rays, assertedly confirmed by the arthroscopic surgery (A.R. 586-87). Dr. Romano opined that Plaintiff's condition causes severe pain in her knees, stiffness, and locking and buckling of the knee (A.R. 587). The pain reportedly is severe and constant, worsened by prolonged rest and prolonged walking (A.R. 587). Dr. Romano ranked Plaintiff's pain and fatigue at nine on a scale of zero to ten (A.R. 588).
Dr. Romano opined that Plaintiff would be able to sit one hour a day and stand and walk less than one hour a day, and indicated that it would be "necessary or medically recommended" that Plaintiff not sit continuously or stand/walk continuously in a work setting (A.R. 588-89). Every 30 minutes, Plaintiff reportedly would need to get up and move around for 15 minutes (A.R. 588-89). Dr. Romano further opined that Plaintiff could occasionally lift and carry less than five pounds, and would have moderate upper extremity limitations (A.R. 589-90). Plaintiff was taking tramadol for her pain, which supposedly causes drowsiness, and also was taking Celebrex (A.R. 590). Dr. Romano indicated that Plaintiff's symptoms would increase if she worked, and that her condition would interfere with her ability to keep her neck in a constant position (A.R. 590). Dr. Romano opined that Plaintiff would need to take unscheduled breaks every 15 minutes for 30 minutes or more, and would be absent from work more than three times each month (A.R. 591-92). Dr. Romano indicated that Plaintiff would need a job that permits ready access to a restroom (A.R. 592). Dr. Romano stated, "Pt has failed numerous therapies. She will require bilateral total knee arthroplasties soon" (A.R. 592).
The ALJ considered, but gave "limited weight" to Dr. Romano's opinion (A.R. 19-20). The ALJ explained:
Dr. Romano opined that the claimant suffers from extreme limitations; however, his own progress reports fail to reveal the type of significant clinical and laboratory abnormalities one would expect if the claimant did, in fact, have such limitations and the doctor did not specifically address this weakness. While Dr. Romano noted on examination in March 2009 that the claimant had decreased range of motion with crepitus, the remainder of progress notes until September 2009 consist only of reports that the claimant received injections to her knees. In September, Dr. Romano asserted that the injections and pain patches "did help her knee." The claimant did not return until January 2010, when Dr. Romano noted only mildly swollen and tender knees with joint space narrowing. Furthermore, as noted above, the claimant admitted that the "injections helped and she is happy with the [anti-inflammatory] and does not need injections at this time." The undersigned also finds that there is no medical evidence supporting limitations related to keeping the neck in a constant position, sitting for only [one] hour in an 8-hour workday; and requiring a job that permits ready access to the restroom. Given the lack of objective support, Dr. Romano's assessment apparently relied quite heavily on the subjective report of symptoms and limitations provided by the claimant, and seemed to uncritically accept as true most, if not all,(A.R. 19-20 (internal citations omitted)).
of what the claimant reported. Yet, as explained elsewhere in this decision, there exist good reasons for questioning the reliability of the claimant's subjective symptoms.
The ALJ's stated reasons adequately support the rejection of Dr. Romano's contradicted opinions regarding the severity of Plaintiff's limitations. See Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009) (an ALJ must provide "specific, legitimate reasons" based on substantial evidence in the record for rejecting a treating physician's contradicted opinion); Orn v. Astrue, 495 F.3d at 631-33 (same). First, the ALJ properly rejected Dr. Romano's opinions regarding severity as unsupported by progress notes or clinical findings. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating physician's assessment and clinical notes justifies rejection of assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) ("an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by the record as a whole . . . or by objective medical findings"); 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].").
Second, the ALJ properly rejected Dr. Romano's opinions as reliant on Plaintiff's subjective complaints. An ALJ is free to disregard a treating physician opinion that is based on a claimant's subjective complaints where the ALJ has properly discounted those subjective complaints. See Tonapetyan v. Halter, 242 F.3d at 1149; Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (disregarding opinion premised on claimant's properly-discounted subjective complaints is a specific, legitimate reason for rejecting a treating physician's opinion); see also Mattox v. Commissioner of Social Security, 371 Fed. App'x 740, 742 (9th Cir. 2010) ("a physician's opinion of disability premised to a large extent upon the claimant's own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted") (internal quotations and citations omitted). As discussed below, the ALJ properly discounted Plaintiff's subjective complaints.
The Court may cite to unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b).
III. The ALJ Did Not Materially Err By Deeming Plaintiff's Testimony Less Than Fully Credible.
Plaintiff argues that the ALJ did not properly assess Plaintiff's testimony regarding her alleged limitations. See Plaintiff's Motion, pp. 7-9. An ALJ's assessment of a claimant's credibility is entitled to "great weight." Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The discounting of a claimant's testimony regarding subjective symptoms must be supported by specific, cogent findings. See Lester v. Chater, 81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (reaffirming same); Varney v. Secretary of Health and Human Serv., 846 F.2d 581, 584 (9th Cir. 1988) (generally discussing specificity requirement); but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must offer "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering). Contrary to Plaintiff's argument, the ALJ stated sufficient reasons for deeming Plaintiff's testimony less than fully credible.
In the absence of evidence of "malingering," most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d at 693; Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ's findings are sufficient under either standard, so the distinction between the two standards (if any) is academic.
Plaintiff testified that she has problems walking. Plaintiff said that she could walk only 10 minutes before needing rest (A.R. 46). Plaintiff began using a cane in 2006, although a cane has never been prescribed for her (A.R. 47). Plaintiff said she could sit for 20 to 30 minutes before having to get up, and stand for five minutes at most (A.R. 47-48). Plaintiff said she lies down during the day when she takes her medication (A.R. 48). Plaintiff testified that Dr. Romano told her that with the knee injections she would be able to walk and feel well, but she supposedly was not able to do so (A.R. 49).
In an undated Disability Report - Adult form, Plaintiff reported that she stopped working because she was limited to standing no more than three minutes and walking only with a cane or crutches (A.R. 173). Plaintiff reported severe pain in her hip, low back, knees, and heels, allegedly making it "very difficult and painful to walk" (A.R. 174).
Yet, in an Exertion Questionnaire dated October 28, 2008, Plaintiff reported that she spends her days cleaning her house (A.R. 169). Plaintiff reportedly could clean for about 15 minutes before needing to rest for at least 30 minutes due to pain in her hip, lower back, and knees (A.R. 171). Plaintiff reported that her Tramadol, which she takes four times a day for pain, makes her sleepy (A.R. 169, 171). Plaintiff reported that she slowly walks 30 to 40 minutes to a bus stop when she has doctor appointments (A.R. 169). Plaintiff also reported that she "sit[s] mostly all day" (A.R. 170). Plaintiff indicated that she drives a manual car, but claimed that she does not have a license and cannot drive anymore because of her knee pain (A.R. 170). Plaintiff reported taking one nap per day for 15 to 30 minutes (A.R. 171). Plaintiff reported using a cane "every day; every where" and a wheelchair when she goes to the market (A.R. 171). Plaintiff reported that her condition had gotten worse since her surgery (A.R. 171).
The ALJ found that Plaintiff's medically determinable impairments could reasonably cause Plaintiff's alleged symptoms (A.R. 16). The ALJ found Plaintiff's testimony concerning the extent of her limitations less than fully credible, however. Id. The ALJ explained that Plaintiff's testimony concerning her need for a cane and her other exertional limitations are "notably without support from the medical record, which are conspicuously absent severe medical abnormalities that would account for consistent significant problems with standing and/or walking" (A.R. 16-17). The ALJ observed that the cane was not prescribed, the medical record was devoid of any evidence that Plaintiff uses her cane on a daily basis or brought her cane to her doctors' visits, and Dr. Sultan observed that Plaintiff could get into and out of a chair without difficulty, get on and off the examination table without difficulty, and walk across the room without difficulty (A.R. 17). The ALJ also stated that Plaintiff's allegations were not fully credible in light of the evidence showing Plaintiff's eventual knee improvement with arthroscopy and injections, the relatively mild findings with respect to Plaintiff's lumbar spine, and the lack of medical treatment one would expect for allegedly disabling pain (A.R. 17-18). Although a claimant's credibility "cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor. . . ." Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) ("lack of medical evidence" can be "a factor" in rejecting credibility, but cannot "form the sole basis").
The only regular doctor visit at which Plaintiff reportedly used a cane occurred on August 21, 2008, when Plaintiff asked Dr. Brown to fill out disability forms. See A.R. 259. Plaintiff also used a cane for her psychological consultative examination (A.R. 529).
See A.R. 521, 524 (Dr. Sultan's observations).
The ALJ cited Plaintiff's "fairly limited" daily activities as not "objectively verified with any reasonable degree of certainty," and as difficult to attribute to Plaintiff's medical condition, "as opposed to other reasons" (A.R. 18-19). This reasoning does not add any appreciable support to the ALJ's credibility determination. A claimant's alleged limitations on daily activities need not be subject to independent verification. Cf. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) ("claimant need not . . . produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom"). If error, however, this part of the ALJ's credibility analysis was harmless error. See Carmickle v. Commissioner, 533 F.3d 1155, 1162-63 (9th Cir. 2008) (invalid reason given for credibility determination harmless where ALJ stated other, valid reasons for the determination).
The ALJ also cited Plaintiff's failure to follow up on recommendations made by treating doctors, such as recommendations for additional physical therapy (A.R. 18). Plaintiff testified that she did not receive physical therapy apart from therapy for one month after her knee surgery in 2008, notwithstanding the recommendation for physical therapy a year later by her treating podiatrist (A.R. 40; see also A.R. 610 (podiatrist's recommendation)). Failure to seek medical treatment can justify an adverse credibility determination. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) ("ALJ may consider. . . unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment" in evaluating claimant's credibility).
Finally, the ALJ also discounted Plaintiff's credibility based on inconsistencies (A.R. 19). The ALJ cited, inter alia, Plaintiff's testimony that she stopped driving in 1995, and Dr. Sultan's report that Plaintiff drove herself to the appointment in 2008 (A.R. 19; see also A.R. 37-39 (ALJ questioning Plaintiff re same during administrative hearing); A.R. 520 (Dr. Sultan noting that Plaintiff was able to drive herself to the office)). An inconsistency between a claimant's testimony and conduct can support the rejection of a claimant's credibility. See Molina v. Astrue, 674 F.3d at 1112 (in evaluating a claimant's credibility, an "ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct"); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (same); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (same).
Because the ALJ's credibility findings were sufficiently specific to allow this Court to conclude that the ALJ rejected Plaintiff's testimony on permissible grounds, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004), the Court defers to the ALJ's credibility findings. See Lasich v. Astrue, 252 Fed. App'x 823, 825 (9th Cir. 2007) (court will defer to ALJ's credibility determination when the proper process is used and proper reasons for the decision are provided); accord Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).
IV. The ALJ Did Not Materially Err in Finding that Plaintiff Can Perform Her Past Relevant Work.
Plaintiff argues that the ALJ erred in finding that Plaintiff could perform her past relevant work because the ALJ supposedly failed to account for the fact that the sewing machine operator job requires the use of a pedal or knee lever. See Plaintiff's Motion, p. 9 (citing DOT 786.682-070 [sic]); see also DOT 786.682-170 (DOT listing for Plaintiff's past relevant work incorporates by reference duties described under "Sewing-machine operator, regular equipment (any industry) Master Title," which include "using a pedal or knee lever"). Plaintiff argues that the ALJ should have made separate findings regarding whether Plaintiff is able to perform each of the activities that Plaintiff's past relevant work requires.
As discussed above, substantial evidence supports the ALJ's finding that Plaintiff is capable of performing the full range of light work, without any further limitations regarding the use of her lower extremities. Therefore, the ALJ need not have parsed the particular requirements of the light work job of sewing machine operator as generally performed. See, e.g., Dodd v. Astrue, 2012 WL 1438684, at *6 (D. Or. April 24, 2012) (affirming ALJ's finding that claimant could perform past relevant work classified as "unskilled, light" where Plaintiff retained residual functional capacity to perform the full range of light work; claimant did not establish any greater limitations, and the ALJ was not required further to develop the demands of the claimant's past relevant work pertaining to alleged limitations; the DOT and vocational expert's testimony provided sufficient detail to support the ALJ's decision).
CONCLUSION
For all of the reasons discussed herein, Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted.
The Court has considered and rejected each of Plaintiff's arguments. Neither Plaintiff's arguments nor the circumstances of this case show any "substantial likelihood of prejudice" resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 634 F.3d 516, 522-23 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice).
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LET JUDGMENT BE ENTERED ACCORDINGLY.
_________________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE