SHARON BELL, Plаintiff, vs. JO ANNE B. BARNHART, Commissioner of Social Security, Defendant.
CASE NO. 1:04-cv-06217 OWW TAG
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
Filed 03/20/06
Theresa A. Goldner, United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS ON PLAINTIFF’S APPEAL FROM ADMINISTRATIVE DECISION
Pursuant to
JURISDICTION
On July 9, 1998, claimant filed an application for disability insurance benefits, alleging a Decembеr 6, 1996 disability onset date. (Administrative Record (“AR“) 20, 112-14). Claimant‘s application was denied initially and on reconsideration and, on November 23, 1999, Administrative Law Judge (“ALJ“) Laura Speck Havens found that claimant was not disabled. (AR 45-53).
On September 8, 2004, 62 days after the Appeals Council denied review, claimant filed an appeal with the district court pursuant to
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcript, the ALJ‘s decision, the briefs of both claimant and the Commissioner and will only be summarized here.
Claimant was born on September 24, 1949, making her 53 years old at the time of ALJ Havens‘s decision. (AR 35, 623). At the most recent administrative hearing on April 1, 2003, claimant testified that she had obtained a GED. (AR 623-24). Claimant testified that her disability onset date was December 6, 1996, and that she had last worked for two weeks in 1997 as an office helper. (AR 624). Prior to that, claimant had been in plant maintenance from 1990 to 1996; had been a will-call manager at a plant nursery from 1989 to 1990; had been a lawn and garden
As to her impairments, claimant testified that she suffers from рain in her knees, hips and back, that she has severe arthritis at the base of her right foot, and that she also suffers from depression and has difficulty sleeping. (AR 624, 628-29, 632). According to claimant, the only physician she sees, Rebecca Webber, M.D., is primarily for weight loss and for prescriptions. (AR 629). These prescriptions are Elavil, Mobic, Lotrel, Bacloven (a muscle relaxant for twice-weekly leg spasms), Prevacid, Prempro, Allegra, Flonase (for allergies) and Amitriptyline (for pain as needed). (AR 630, 633). With these impairments, claimant testified that she can walk for about five to ten minutes, can sit for an hour, but not comfortably, and can lift ten pounds of groceries. (AR 631).
As to her daily life and activities, claimant testified that she lives alone, dresses and bathes without assistance, does most household chores, cоoks, washes dishes, mops and vacuums, does laundry and occasional yard work in a small front yard. (AR 625-26). She can drive a car for forty five minutes, watches television four hours a day, listens to the stereo and reads about an hour a day. (AR 626, 628). For exercise, claimant testified that she does aerobics about twice a week and also works out on a weight machine. (AR 626-27).
SEQUENTIAL EVALUATION PROCESS
The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any 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 not less than twelve months.”
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled.
If claimant does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compаres claimant‘s impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity.
The initial burden of proof rests upon a claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). In terms of the five step sequential evaluation process, the Ninth Circuit has held that “[t]he burden of proof is on the claimant as to steps one to four,” while at the same time noting that an ALJ‘s “affirmative duty to assist a claimant to develop the record . . . complicates the allocation of burdens” such that “the ALJ shares the burden at each step.” Tackett v. Apfel, 180 F.3d 1094, 1098 & n.3 (9th Cir. 1999)(italics in original). The initial burden is met once a claimant establishes that a physical or mental impairment prevents her from engaging in her previous occupation. The burden then shifts to the Commissioner to show (1) that the claimant can perform other substantial gainful activity and (2) that a “significant number of jobs exist in the national economy” which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
Congress has provided a limited scope of judicial review of a Commissioner‘s decision. See,
It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court must uphold the decision of the ALJ. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Moreover, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987).
///
Step One
The ALJ found at step one that claimant had not engaged in any substantial gainful activity since the alleged onset of her disability. (AR 24, 33). As noted abovе, the alleged disability onset date was December 6, 1996. (AR 624).
Step Two
At step two, the ALJ found that claimant suffered from osteoarthritis, which she concluded was a “severe” impairment. (AR 24, 33).
Step Three
At step three, the ALJ assessed whether claimant‘s impairments, while severe, were among those acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. See
Step Four
While a vocational expert testified that claimant was able to perform her past relevant work as an Assistant Office Manager (AR 32), the ALJ gave claimant the benefit of the doubt, found that she could not perform such work, and proceeded to step five of the sequential analysis. (AR 32, 34).
Step Five
The ALJ determined that claimant had the residual functional capacity to “carry up to 50 pounds occasionally and 25 pounds frequently; stand and walk for 2 hours in an 8-hour workday; and sit for 6 hours in an 8-hour workday.” (AR 33). The ALJ also noted postural limitations insofar as claimant was “precluded from stooping, kneeling, crouching or crawling.” (AR 33). With these limitations, the ALJ determined that claimant was able to do a “significant” range of sedentary work (AR 34) and that there were “a significant number of jobs in the national economy that claimant could perform,” including receptionist and appointment clerk. (AR 34). Based upon these findings, the ALJ determined that claimant was not disabled. (AR 34).
///
Claimant‘s Opening Brief raised the following issues for consideration:
A. Whether the ALJ‘s findings are supported by substantial evidence.
B. Whether the vocational expert‘s testimony was deficient.
C. Whether the ALJ complied with the Appeals Council‘s order to use a medical expert.
D. Whether the ALJ properly developed and evaluated the mental health record.
E. Whether the ALJ properly considered claimant‘s credibility.
This Court must uphold the Commissioner‘s determination that claimant is not disabled if the Commissioner applied the proper legal standards and there is substantial evidence in the record as a whole to support the decision.
DISCUSSION
I. The Propriety of the ALJ’s Findings
Claimant asserts various errors in the ALJ‘s review of the records and findings. These include the following:
a. Opinion of Gregory Caronis, M.D.
Claimant contends that the ALJ “ignores the opinion of specialist Caronis” and that she “must explain why the opinion is ignored or rejected.” (Doc. 14 at p. 3).
The courts distinguish among the opinions of three types of physicians: treating physicians, physicians who examine but do not treat the clаimant (“examining physicians“) and those who neither examine nor treat the claimant (“nonexamining physicians“). Lester v. Chater, 81 F.3d 821, 839 (9th Cir. 1996). A treating physician‘s opinion is given special weight because of his or her familiarity with a claimant‘s physical condition. Fair v. Bowen, 885 F.2d 597, 604-605 (9th Cir. 1989). In order to reject a treating physician‘s ultimate conclusions, the ALJ must supply “clear and convincing” reasons. Fair, 885 F.2d at 604-605. However, when contradicted by another doctor, the ALJ may reject a treating physician‘s opinion upon giving “‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The same test applies to examining physicians: The ALJ must give clear and convincing reasons for rejecting uncontradicted opinions, or “specific and legitimate
In the instant case, and consistent with these authorities, ALJ Havens considered and properly accounted for the degree to which she adopted (in part) and rejected (in part) Dr. Carоnis‘s consultative report. Specifically, as is required when discounting consultative opinions of examining physicians, the ALJ gave “specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31. As the ALJ wrote:
“In a Consultative Examining Orthopedic physician‘s report that was completed by Gregory Caronis, M.D. on July 17, 1999, the claimant was noted to retain a normal range of motion in her cervical spine, lumbar spine, upper extremities, and lower extremities, except in her right knee, which showed a specifically reduced range of motion of 0-150 degrees, and genu valgus (Ex. 13F, pp. 1-5). Additionally, Dr. Caronis noted that the claimant retained intact motor strength, normal muscle tone, intact reflexes, and intact sensory capacity throughout her upper and lower extremitiеs; he noted that she was negative upon straight leg raise testing, bilaterally; and he noted that she retained ‘excellent’ grip strength bilaterally. Ultimately, Dr. Caronis assessed the claimant with having the capacity for lifting 10 pounds occasionally; standing and walking for up to 1 hour at a time; and sitting for up to 6 hours in an 8-hour workday, with a preclusion from bending or kneeling. The undersigned finds that Dr. Caronis’ findings, with regard to claimant‘s capacity for sitting and with regard to the claimant‘s preclusion from kneeling are well supported by his findings and are consistent with the rest of the evidence within the files; therefore, those findings are adopted herein. However, the undersigned finds that the rest of Dr. Caronis’ findings, with regard to lifting and carrying and standing and walking are overly restrictive, given his own findings, that the claimant retains a full range of motion throughout her cervicаl spine, lumbar spine, and upper and lower extremities (with the exception of the right knee, which is slightly reduced); that the claimant retains intact motor strength, reflexes, and sensation throughout her upper and lower extremities.”
(AR 28)(emphasis added).
b. Opinion of Kenneth R. Koskella, M.D.
Claimant contends that “Dr. Kaskella‘s opinion is rejected without proper explanation.” (Doc. 14 at pp. 3-4).
Once again, the Court finds, contrary to claimant‘s statement, that ALJ Havens considered and properly accounted for the degree to which she adopted (in part) and rejected (in part) the examination of Kenneth R. Koskella, M.D., again with “specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31. As the ALJ wrote:
“In a Qualified Medical-Legal Evaluation that was completed by Kenneth R. Koskella, M.D. in connection with the claimant‘s wоrker‘s compensation claim on February 23, 1998, Dr. Koskella noted that recent x-rays were ‘essentially negative, except for the genu valgum deformity and small osteophytes at the superior and inferior poles of the patella and lateral edge of the femur and tibia’ bilaterally (consistent with osteoarthritis)(Ex. 3F, pp. 1-17). He also noted that a rheumatoid blood panel returned with negative results. Furthermore, upon testing, Dr. Koskella noted that while the claimant exhibited some tenderness and pain in her knees, bilaterally, overall, she showed a good range of motion in both knees. He also noted that both knees were generally stable. Additionally, he noted that the claimant retained full motor strength, reflexes, and sensation throughout both her upper
and lower extremities bilaterally аnd that she tested negative upon straight leg raise testing. Based upon his thorough review of the claimant‘s treatment records and his very thorough physical examination of the claimant, Dr. Koskella diagnosed the claimant with being status-post medial and lateral meniscus tears in the right knee with subsequent arthroscopy; having osteoarthritis in both knees, right greater than left; and having ‘mild’ chronic lower back pain syndrome. Ultimately, Dr. Koskella assessed the claimant with having limitations which preclude her from kneeling, crawling, heavy lifting, or standing for more than 1 hour. The undersigned carefully took Dr. Koskella‘s findings into consideration in determining the claimant‘s physical residual functional capacity herein. Therefore, the claimant is limited to lifting and carrying a maximum of 50 pounds occasionally and 25 pounds frequently (which corresponds to a medium exertional level of lifting and carrying, rather than a ‘heavy’ exertional level, which is precluded by Dr. Koskella‘s assessment) and the undersigned finds that she should be precluded from kneeling and crawling. While the undersigned took Dr. Koskella‘s recommendation with regard to the claimant‘s standing limitations into consideration in determining the claimant‘s physical residual functional capacity, I find that this finding by Dr. Koskella is overly restrictive, given his own objective findings, that the claimant experiences only ‘mild’ chronic lower back pain; retains full motor strength, intact reflexes, and intact sensation throughout her lower extremities; and a ‘good’ range of motion in her knees; therefore, the undersigned finds that a finding that the claimant can stand and walk for up to 2 hours in an 8-hour workday (a slightly less restrictive findings) is justified.”
(AR 26).
As notеd above, ALJ Havens accepted Dr. Koskella‘s findings vis-a-vis claimant‘s kneeling, crawling and lifting limitations, but found only his standing limitation (one hour) to be slightly too restrictive. The ALJ then stated specific, legitimate reasons for slightly discounting Dr. Koskella‘s findings. Elsewhere in her written determination, the ALJ synopsized a series of other medical opinions that were consistent with this slightly less restrictive finding. These include the opinions of Dr. Madireddi (AR 28-29)(opining that claimant could stand and walk for six hours) and Dr. Han (AR 29)(opining that claimant could stand and walk for 2-4 hours), as well as the assessment of claimant‘s treating physicians, Dr. Cahill (AR 27)(opining that claimant could walk for up to 3 hours in an 8-hour workday). The undersigned therefore concludes that ALJ Havens properly limited the opinion of Dr. Koskella with respect to the limitations he found, e.g., claimant‘s standing limitation and thаt her decision was supported by substantial evidence in the record.
///
///
Claimant asserts that she suffers from “severe degenerative lumbar disc disease,” an impairment which she alleges was not appropriately considered by the ALJ. (Doc. 14 at p. 4).
The Court finds that this assertion is unfounded. ALJ Havens parsed and reported upon claimant‘s medical records in considerable detail. (AR 26-31). As to claimant‘s alleged spinal impairments, the ALJ noted multiple orthopedic opinions to the effect that such impairment had no exertional impact whatsoever. (AR 28-29)(reporting findings of Gregory Caronis, M.D., Lakshmi Neena Madireddi, M.D. and Michael Y. Han, M.D.). Indeed, the various orthopedic physicians who examined claimant repeatedly repоrted that she retained a “full range of motion” in her cervical and lumbar spine. (Id.). The undersigned therefore finds that the ALJ appropriately considered claimant‘s alleged lumbar impairment and that her determination not to deem it “severe“- or to deem it equivalent to a Listed impairment when combined with other of claimant‘s complaints - was well supported by substantial evidence in the record. Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005)(“[R]egardless of how many symptoms an individual alleges, or how genuine the individual‘s complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings“); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999)(“[s]ince we find that there was substantial evidence to support the ALJ‘s finding that [claimant‘s] impairments were not severe, we do not reach the question of whether those impairments equaled a listed impairment either“).
d. Sufficiency of Consideration of a Closed Period of Disability
In a single sentence argument, claimant states that “[d]espite the surgery in 1977, there was no consideration of a closed period of disability.” (Doc. 14 at p. 4).
The undersigned finds no error in this regard and that the law with respect to closed end periods of disability is clear. Unless an impairment is expected to result in death, it must have lasted or be expected to last for a continuous period of at least twelve months in order to be considered disabling.
II. Compliance with Appeals Council Order Regarding Vocational Expert Testimony
Claimant asserts that the ALJ failed to comply with the Appeals Council‘s order regarding the use of vocational еxpert testimony. (Doc. 14 at pp. 3-4). That order by the Appeals Council was as follows:
“Obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant‘s occupational base (Social Security Ruling 83-14), and to determine whether the claimant has acquired any skills that are transferable to other occupations under the guidelines in Social Security Ruling 82-41. The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 CFR 404.1566).”
(AR 91).
The ALJ complied with each of these rеquirements. First, the ALJ asked the vocational expert (“VE“) to identify the skill and exertional levels of claimant‘s prior jobs, an inquiry that developed claimant‘s occupational base. (AR 635).2 Second, again consistent with the remand order issued by the Appeals Council, the ALJ elicited from the VE whether and to what extent claimant had skills that were transferable to other occupations, and specifically to occupations reflecting
III. Compliance with Appeals Council Order regarding Medical Expert
Claimant asserts that the ALJ ignored the Appeals Council‘s order to use a medical expert “to evaluate the case at Steps 3 and 5 of the Sequential Evaluation.” (Doc. 14 at p. 6).
The Appeals Council order, which was dated June 20, 2002, required the ALJ on remand to do the following:
“Obtain evidence from a medical expert qualified in orthopedics, if available, to clarify the nature and severity of the claimants impairments (20 CFR 404.1527(f) and Social Security Ruling 96-6p).”
(AR 91).
As ordered by the Appeals Council, evidence was obtained from a medical expert qualified in orthopedics, one Michael Y. Han, M.D. (AR 438-442). As ALJ Havens‘s stated:
“In another Consultative Examining Orthopedic physician‘s report that was completed by Michael Y. Han, M.D. on November 2, 2002 (and thus after the Appeals Council issued its Order to obtain a consultative examination by a medical expert specializing in orthopedics), Dr. Han noted that the claimant continued to retain fully intact range of motion in her cervical spine, upper extremities, lumbosacral spine, and lower extremities, with the exception of her right knee, which showed a continuing, slightly rеduced range of motion and valgus laxity (Ex.
20F, pp. 1-10). He also noted that the claimant retained fully intact motor strength, reflexes, and sensations throughout her upper and lower extremities, bilaterally; that she retained intact fine finger movements and grip strength bilaterally; and that the claimant was negative upon straight leg raise testing, bilaterally. Based on his thorough physical examination of the claimant, Dr. Han found that the claimant would have ‘no restrictions’ with regard to lifting; found that she should be capable of standing and walking for a total of 2-4 hours in an 8-hour workday; and found that she should have no restrictions with regard to sitting. He also found that the claimant had postural limitations which restrict her capacity for kneeling, crouching, crawling, and squatting. Since the undersigned finds that Dr. Han‘s assessments, with regard to the claimant‘s capacity for standing and walking, sitting, and with regard to the claimant‘s postural limitations are well supported by his own objective findings, and since they are consistent with the rest of the evidence within the files, I adopt those findings herein. However, giving the claimant the benefit of doubt with regard to the level of pain that she subjectively alleges in her knees, and taking into consideration her continuing slightly reduced range of motion as well as valgus in her right knee, the undersigned finds that a slightly more restrictive lifting and carrying finding is justified; therefore, the undersigned limits the claimant to lifting and carrying up to 50 pounds occasionally and 25 pounds frequently herein.”
(AR 29)(emphasis added).
It is evident from the above recitation by ALJ Havens that the Appeals Council‘s mandate was followed: A medical expert qualified in orthopedics - Dr. Michael Y Han - did in fact clarify the nаture and severity of claimant‘s impairments. Consequently, the Court finds that the ALJ did not err.
IV. Evaluation of Claimant’s Mental Health Record
Claimant contends - without explanation - that the ALJ did not adequately develop and evaluate her mental health record. (Doc. 14 at p. 7). However, the undersigned finds no error in this regard.
When a colorable claim of mental impairment exists, the ALJ must follow a special evaluation process for such impairments as set forth in
The aforementioned rating process is necessary because, in performing step three of the sequential analysis, the ratings come into play in the ALJ‘s determination as to whether а severe mental impairment is or is not a “Listed” impairment. See, e.g.,
“(d) After we rate the degree of functional limitation resulting from your impairment(s), we will determine the severity of your mental impairment(s).
(1) If we rate the degree of your limitation in the first three functional areas as “none” or “mild” and “none” in the fourth area, we will generally conclude that your impairment(s) is not severe . . . .
(2) If your mental impairment(s) is severe, we must then determine if it meets or is equivalent in severity to a listed mental disorder. . . .”
V. Rejection of Claimant’s Credibility
According to claimant, the ALJ‘s one paragraph synopsis of her testimony was “insufficient,” and her rationale for discounting claimant‘s credibility was “minimаl” and “perfunctory.” (Doc. 14 at p. 7).
Under the law applicable to credibility assessments, it is evident that the ALJ did not err, claimant‘s protestations notwithstanding. A two step analysis applies at the administrative level when considering a claimant‘s subjective credibility. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the claimant must produce objective medical evidence of an impairment and show that the impairment could reasonably be expected to produce some degree of symptom. Id. at 1281-82. If claimant satisfies this test - and if there is no evidence of malingering - the ALJ can reject the claimant‘s testimony about the severity of his or her symptoms “only by offering specific, clear and
Here, ALJ Havens set forth a specific, clear and convincing reason for her determination to discount the subject impact of claimant‘s physical impairments. Specifically, the ALJ listed claimant‘s numerous daily and other activities and social interactions, all consistent with an ability to perform and maintain work at a mere sedentary exertional level, and all collectively inconsistent with claimant‘s subjective opinion to the contrаry. As the ALJ wrote:
“Apart from the objective evidence, there are also substantial subjective reasons pursuant to the guidelines of SSR 96-7p to conclude that the claimant‘s symptoms do not preclude the performance of substantial gainful activity within claimant‘s residual functional capacities listed above. While the claimant is clearly physically impaired, the undersigned notes that she testified at the hearing that she continues to be capable of performing many of her own activities of daily living, including driving a car, going to family outings, taking care of her own dressing and bathing, performing her own household tasks, such as cooking, doing the laundry, washing dishes, dusting, sweeping, mopping, vacuuming, and yard work. The claimant also testified at the hearing that she does aerobics at home and takes an аerobics class, that she lifts weights using machines for exercise, and that she reads newspapers. The undersigned also noted at the hearing that the claimant retained a normal demeanor and spoke coherently. Additionally, the undersigned notes that in various forms that she completed or that others completed for her [citations omitted], the claimant was noted to be capable of grocery shopping herself, once a week; managing her own bills; engaging in recreational activities, such as shooting pool, going swimming, thrift shop shopping, and feeding and grooming her pets. The undersigned notes that the physical and mental capabilities requisite for performing many of these tasks and social interactions replicate those necessary for obtaining and maintaining employment. For all of these reasons, the undersigned finds that the claimant is less than fully credible with regard to the impact of her physical impairment on her capacity for performing substantial gainful activity. (AR 31).
In light of the foregoing, the undersigned finds that ALJ Havens sufficiently articulated a legitimate reason for finding claimant to be “less than fully credible with regard to the impact of her
CONCLUSION AND RECOMMENDATION
For the reasons discussed above, this Court finds no error in the ALJ‘s analysis and that the ALJ properly concluded claimant is not disabled. This Court further finds the ALJ‘s decision is supported by substantial evidence in the record as a whole and based on proper legal standards.
Accordingly, this Court RECOMMENDS to DENY claimant‘s appeal from the administrative decision of the Commissioner of Social Security.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to
IT IS SO ORDERED.
Dated: March 20, 2006
/s/ Theresa A. Goldner
UNITED STATES MAGISTRATE JUDGE