Nancy Jakobs v. Michael J Astrue, No. 5:2008cv01024 - Document 26 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See document for details. (hr)
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Nancy Jakobs v. Michael J Astrue Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NANCY JAKOBS, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 08-1024 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On August 7, 2008, plaintiff Nancy Jakobs (“plaintiff”) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; August 8, 2008 Case Management Order ¶ 5. /// Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On July 7, 2005, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record (“AR”) 21). 8 Plaintiff asserted that she became disabled on January 1, 2002, due to depression, 9 fibromyalgia, insomnia, mood swings, pain, memory loss and confusion. (AR 10 167). The ALJ examined the medical record and heard testimony from plaintiff 11 (who was represented by counsel) on July 23 and September 12, 2007. (AR 5212 115). 13 On September 24, 2007, the ALJ determined that plaintiff was not disabled 14 from January 1, 2002, through the date of the decision. (AR 30). Specifically, the 15 ALJ found: (1) plaintiff suffered from the following severe impairments: 16 fibromyalgia and depression2 (AR 23); (2) plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled one of the listed 18 impairments (AR 24-25); (3) plaintiff could perform a full range of light work, 19 that is, she could lift and/or carry 20 pounds occasionally and ten pounds 20 frequently, push and pull within the limitations for lifting and carrying, and climb, 21 22 1 The harmless error rule applies to the review of administrative decisions regarding 23 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 24 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of 25 application of harmless error standard in social security cases). 26 27 28 2 The ALJ also noted that plaintiff suffered from joint pain and chronic fatigue which were considered “non-severe impairments.” (AR 23). Although plaintiff also claimed to suffer from mercury poisoning, the ALJ declined to find that mercury toxicity was a severe impairment. (AR 24). 2 1 balance, stoop, crouch and crawl on an occasional basis (AR 25); (4) plaintiff 2 could perform her past relevant work as an administrative clerk or property 3 manager (AR 30); and (5) plaintiff was not fully credible. (AR 26). 4 The Appeals Council denied plaintiff’s application for review. (AR 1-3). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 8 engage in any substantial gainful activity by reason of a medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of at least twelve 11 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 12 § 423(d)(1)(A)). The impairment must render the claimant incapable of 13 performing the work she previously performed and incapable of performing any 14 other substantial gainful employment that exists in the national economy. Tackett 15 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 16 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 17 sequential evaluation process: 18 (1) 19 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 21 her ability to work? If not, the claimant is not disabled. If so, 22 proceed to step three. 23 (3) Does the claimant’s impairment, or combination of 24 impairments, meet or equal an impairment listed in 20 C.F.R. 25 Part 404, Subpart P, Appendix 1? If so, the claimant is 26 disabled. If not, proceed to step four. 27 /// 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform her past relevant work?3 If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant’s residual functional capacity, when 5 considered with the claimant’s age, education, and work 6 experience, allow her to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 /// 26 27 28 3 Residual functional capacity is “what [one] can still do despite [ones] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 4 1 To determine whether substantial evidence supports a finding, a court must 2 “‘consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 A. 10 11 Plaintiff Is Not Entitled to a Remand To Permit the ALJ to Consider New Evidence Submitted to the Appeals Council Plaintiff argues that she is entitled to remand because the ALJ failed to 12 consider a disability opinion from one of her treating physicians which she 13 submitted to the Appeals Council after the ALJ issued his decision. (Plaintiff’s 14 Motion at 2-3). This Court disagrees. 15 16 1. Pertinent Facts In a decision dated September 24, 2007, the ALJ found plaintiff not 17 disabled. (AR 21-30). In connection with plaintiff’s request for review to the 18 Appeals Council, plaintiff submitted a Residual Functional Capacity Assessment 19 dated January 9, 2008 (“January 9 Report”) from treating physician David 20 Mitzner, D.O. (“Dr. Mitzner”). (AR 4, 557-58). 21 In the January 9 Report, Dr. Mitzner stated that plaintiff: (i) was diagnosed 22 with “PTSD, depression, anxiety, fibromyalgia with chronic fatigue;” (ii) had 23 symptoms including breathlessness, carpal tunnel syndrome, chronic fatigue, 24 depression, irritable bowl syndrome, multiple tender points, muscle weakness, 25 nonrestorative sleep, numbness and tingling, panic attacks, subjective swelling, 26 and “cognitive impairment (esp. with stress/pressure situations of even a minor 27 degree), . . . frequently distraught, [with] crying if PTSD activated;” (iii) could sit 28 or stand only 30 minutes at a time, but could do so for only two hours in an eight5 1 hour workday; (iv) would need to walk and/or lay down every 45 minutes and 2 would need to elevate her legs six hours during an eight-hour work day; (v) could 3 not lift or carry weight even less than ten pounds in an eight-hour work day; 4 (vi) could never push, pull or finely manipulate with either hand, with only 5 occasional grasping; (vii) experienced pain in almost every part of her body; and 6 (viii) would likely miss more than three days of work a month due to her medical 7 problems. (AR 557-58). 8 In denying review, the Appeals Council considered new evidence plaintiff 9 submitted, including Dr. Mitzner’s January 9 Report, but determined that the 10 additional evidence “[did] not provide a basis for changing the Administrative 11 Law Judge’s decision.” (AR 2). The Appeals Council noted that its denial of 12 review made the ALJ’s decision “the final decision of the Commissioner.” (AR 1, 13 2). 14 15 2. Analysis Since the Appeal’s Council considered the January 9 Report, this Court also 16 considers such evidence. Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th 17 Cir. 2007); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). To warrant 18 a remand, plaintiff must show that the new evidence is material to determining her 19 disability. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). To be 20 material, the new evidence must bear directly and substantially on the matter in 21 dispute, and there must be a reasonable possibility that the new evidence would 22 have changed the outcome of the administrative hearing. Id. (citations omitted). 23 In this case, plaintiff fails to demonstrate a reasonable possibility that any 24 opinions expressed in the January 9 Report (that were not already accounted for in 25 the ALJ’s decision) would have changed the outcome of the administrative 26 hearing even if the evidence had been timely presented to the ALJ. 27 First, many of the impairments, symptoms and limitations identified in the 28 January 9 Report appear to be drawn solely from treatment notes that themselves 6 1 are based on plaintiff’s own accounts. (AR 477 (plaintiff’s reported symptoms 2 include “stress and poor sleep” and “mentally tired”); 479 (“[symptoms include] 3 some anxiety, [increased] stress, edgy/sweaty, feeling exhausted, pains neck, 4 knees, back, . . . mood swings”); 481 (plaintiff complains of “cognitive function 5 prob[lems], stress, exhaustion”); 482-84 (plaintiff’s self history)). The ALJ noted 6 that treatment records from Dr. Mitzner (“Vintage Medical Group”) include 7 “forms and lists which [plaintiff] herself completed regarding her symptoms.” 8 (AR 27). The ALJ would have been justified in rejecting any medical opinions 9 based solely on plaintiff’s own accounts of her impairments, symptoms and 10 limitations which the ALJ had already rejected as “not fully credible” (AR 26). 11 Flaten, 44 F.3d at 1464 (“[a]n opinion of disability premised to a large extent upon 12 a claimant’s own accounts of his symptoms and limitations may be disregarded 13 where those complaints have been ‘properly discounted’”). 14 Second, Dr. Mitzner’s findings are not supported by the doctor’s own 15 treatment notes or objective medical evidence.4 The ALJ did consider Dr. 16 Mitzner’s notes from his treatment of plaintiff, but found them immaterial to his 17 residual functional capacity determination because the records “[did] not contain 18 any objective evidence to show [plaintiff] has any significant limitations from her 19 mental condition or would be physically unable to meet the demands of light work 20 (Exhibit 20-F [AR 474-500]).” (AR 27). There is no reasonable possibility the 21 ALJ would be persuaded to change his mind based on the January 9 Report which 22 is based on those same treatment notes. See Connett v. Barnhart, 340 F.3d 871, 23 875 (9th Cir. 2003) (treating physician’s opinion properly rejected where treating 24 25 26 27 28 4 While the January 9 Report contains Dr. Mitzner’s diagnosis of “PTSD,” the treatment notes show such a diagnosis to be questionable. (AR 481 (treatment note reads “anxiety (?PTSD)”). In addition, Dr. Mitzner reports that plaintiff has very significant limitations on her ability to lift weight, grasp, push & pull, and finely manipulate (AR 558), yet there is no evidence that the doctor conducted any significant objective testing to assess plaintiff’s range of motion or strength. (AR 475, 477, 479, 480, 481). 7 1 physician’s treatment notes “provide no basis for the functional restrictions he 2 opined should be imposed on [the claimant]”); see Tonapetyan v. Halter, 242 F.3d 3 1144, 1149 (9th Cir. 2001) (ALJ need not accept treating physician’s opinions that 4 are conclusory and brief, or unsupported by clinical findings, or physician’s own 5 treatment notes). Finally, none of the other medical opinions the ALJ found 6 credible, nor any other objective medical findings in the record, support a finding 7 that plaintiff was unable to perform light work for a sustained period of 12 8 months. (AR 28). As discussed below, the ALJ correctly noted that there is no 9 evidence in the record documenting that plaintiff had any “ongoing valid medical 10 or mental health issues.” (AR 29). The ALJ would properly have rejected Dr. 11 Mitzner’s opinions on that basis as well. Batson, 359 F.3d at 1195 (ALJ may 12 discredit treating physicians’ opinions that are unsupported by objective medical 13 findings or record as a whole). 14 Plaintiff has not demonstrated that the January 9 Report was material to the 15 ALJ’s determination of disability. Accordingly, a remand on this basis is not 16 warranted. 17 B. 18 Plaintiff contends that the ALJ improperly rejected the opinions of Dr. The ALJ Properly Evaluated Medical Opinion Evidence 19 Brigid Freyne (an internal medicine physician and rheumatologist who was one of 20 plaintiff’s treating physicians) expressed in a mental disorder questionnaire form 21 dated September 16, 2005 (AR 28, 242-46).5 (Plaintiff’s Motion at 4). This Court 22 disagrees. 23 /// 24 /// 25 /// 26 27 28 5 In the September 16 mental disorder questionnaire, Dr. Freyne indicated that plaintiff was “severely depressed,” and that plaintiff indicated she had memory and concentration problems, isolated herself, had mood swings, and was too fatigued to shop, cook or clean. (AR 242-46). 8 1 2 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 3 opinions depending on the nature of the services provided. Courts distinguish 4 among the opinions of three types of physicians: those who treat the claimant 5 (“treating physicians”) and two categories of “nontreating physicians,” namely 6 those who examine but do not treat the claimant (“examining physicians”) and 7 those who neither examine nor treat the claimant (“nonexamining physicians”). 8 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 9 treating physician’s opinion is entitled to more weight than an examining 10 physician’s opinion, and an examining physician’s opinion is entitled to more 11 weight than a nonexamining physician’s opinion.6 See id. In general, the opinion 12 of a treating physician is entitled to greater weight than that of a non-treating 13 physician because the treating physician “is employed to cure and has a greater 14 opportunity to know and observe the patient as an individual.” Morgan v. 15 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 16 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 17 The treating physician’s opinion is not, however, necessarily conclusive as 18 to either a physical condition or the ultimate issue of disability. Magallanes v. 19 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 20 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not 21 contradicted by another doctor, it may be rejected only for clear and convincing 22 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 23 quotations omitted). The ALJ can reject the opinion of a treating physician in 24 favor of a conflicting opinion of another examining physician if the ALJ makes 25 26 27 28 6 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 9 1 findings setting forth specific, legitimate reasons for doing so that are based on 2 substantial evidence in the record. Id. (citation and internal quotations omitted); 3 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by 4 setting out detailed and thorough summary of facts and conflicting clinical 5 evidence, stating his interpretation thereof, and making findings) (citations and 6 quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite 7 “magic words” to reject a treating physician opinion – court may draw specific 8 and legitimate inferences from ALJ’s opinion). “The ALJ must do more than offer 9 his conclusions.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). “He 10 must set forth his own interpretations and explain why they, rather than the 11 [physician’s], are correct.” Id. “Broad and vague” reasons for rejecting the 12 treating physician’s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 13 602 (9th Cir. 1989). These standards also apply to opinions of examining 14 physicians. See Andrews v. Shalala, 53 F.3d 1035, 1042-44 (9th Cir. 1995). 15 16 2. Analysis The ALJ rejected Dr. Freyne’s opinions for clear, convincing, specific and 17 legitimate reasons supported by substantial evidence. 18 First, Dr. Freyne was not a mental health specialist, and appeared to have 19 treated plaintiff primarily for fibromyalgia. (AR 28, 253). As the ALJ noted, the 20 mental health findings in Dr. Freyne’s mental disorder questionnaire were 21 contradicted by other medical evidence in the record.7 “[T]he ALJ was entitled to 22 consider the doctor’s area of specialty when weighing conflicting medical 23 24 25 26 27 28 7 The ALJ’s finding that plaintiff could perform a full range of light work with no psychological limitations was consistent with the opinion of examining psychiatrist Dr. Rodriguez who found plaintiff had few significant mental limitations (AR 28, 275, 269-76), and the consistent report from Dr. Skopec, a non-examining, state-agency psychiatrist who found plaintiff “does not have any significant impairment-related mental limitations”) (AR 229, 307, 297-310). 10 1 opinions.” See Kennelly v. Astrue, 313 Fed. Appx. 977, 978 (9th Cir. 2009)8 (ALJ 2 properly credited nonexamining psychiatrists over examining internal medicine 3 practitioner) (citing 20 C.F.R. § 404.1527(d)(5)); cf. Lester, 81 F.3d at 833 (the 4 ALJ could not discount treating physician’s testimony solely because he was not a 5 mental health specialist where physician who specialized in treating patients with 6 chronic pain, nonetheless, provided treatment for the plaintiff’s psychiatric 7 impairment). 8 Second, Dr. Freyne’s mental health findings seem to rely substantially on 9 plaintiff’s subjective reporting.9 The ALJ properly rejected Dr. Freyne’s opinions 10 to the extent they were based upon plaintiff’s own account of symptoms and 11 limitations that the ALJ otherwise found lacking in credibility. Flaten, 44 F.3d at 12 1464 (“[a]n opinion of disability premised to a large extent upon a claimant’s own 13 accounts of his symptoms and limitations may be disregarded where those 14 complaints have been ‘properly discounted’”). 15 Third, as the ALJ correctly noted, other than such references to plaintiff’s 16 own description of her symptoms, Dr. Freyne’s mental health opinions find no 17 other support in the doctor’s treatment notes. (AR 247-56). The ALJ properly 18 rejected Dr. Freyne’s mental health opinions on that basis. Connett, 340 F.3d at 19 875 (treating physician’s opinion properly rejected where treating physician’s 20 treatment notes “provide no basis for the functional restrictions he opined should 21 be imposed on [the claimant]”); see Tonapetyan, 242 F.3d at 1149 (ALJ need not 22 23 24 25 26 27 28 8 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 9 In Dr. Freyne’s mental disorder questionnaire, the entry for “Present Illness” describes plaintiff’s symptoms in her own words as “‘severely depressed, exhausted, in pain.’” (AR 242). Similarly, the entry for “Intellectual Functioning” reads “patient describes memory [and] concentration problems.” (AR 243 (emphasis added)). The entry for plaintiff’s “Affective Status” states only that “PT describes depression, anxiety, and history of suicidal attempts.” (AR 244). 11 1 accept treating physician’s opinions that are conclusory and brief, or unsupported 2 by clinical findings, or physician’s own treatment notes). 3 Finally, an ALJ may properly reject a treating physician’s opinion that is 4 unsupported by the record as a whole. Batson, 359 F.3d at 1195 (ALJ may 5 discredit treating physicians’ opinions that are conclusory, brief, and unsupported 6 by record as a whole or by objective medical findings). As the ALJ correctly 7 noted, there is no evidence in the record documenting that plaintiff has any 8 “ongoing valid . . . mental health issues.” (AR 29). Again, the ALJ’s finding that 9 plaintiff could perform a full range of light work with no significant psychological 10 limitations was consistent with the opinions of examining psychiatrist Dr. 11 Rodriguez and state-agency psychiatrist Dr. Skopec. (AR 28, 229, 269-76, 29712 310). Thus, the ALJ also properly rejected Dr. Freyne’s opinions as inconsistent 13 with the overall medical record. 14 Accordingly, a remand or reversal on this basis is not warranted. 15 C. 16 17 The ALJ Did Not Materially Err In Determining that Plaintiff Could Perform Her Past Relevant Work Plaintiff contends that the ALJ erred by failing properly to consider and 18 discuss the mental and physical demands of plaintiff’s past relevant work. 19 (Plaintiff’s Motion at 7-10). This Court finds that any error in the ALJ’s failure 20 more thoroughly to discuss the mental and physical demands of plaintiff’s past 21 relevant work was harmless. 22 23 1. Relevant Facts The ALJ, in pertinent part, stated the following regarding plaintiff’s ability 24 to perform her past relevant work: 25 The claimant is capable of performing past relevant work as an 26 administrative clerk or property manager. These jobs do not require 27 the performance of work-related activities precluded by the 28 claimant’s residual functional capacity. 12 1 In comparing the claimant’s residual functional capacity with 2 the physical and mental demands of these jobs, the undersigned finds 3 that the claimant is able to perform them as she actually performed 4 them in the past. This finding is supported by the testimony of the 5 vocational expert. 6 (AR 30) (internal citation omitted). 7 The vocational expert testified that plaintiff’s past relevant work as an 8 administrative clerk was “semiskilled and sedentary,” and her work as a property 9 manager was “skilled employment at the light level.” (AR 73). 10 11 2. Relevant Law At step four of the sequential evaluation process, the Administration may 12 deny benefits when the claimant can perform the claimant’s past relevant work as 13 “actually performed,” or as “generally” performed. Pinto v. Massanari, 249 F.3d 14 840, 845 (2001). ALJs routinely rely on the Dictionary of Occupational Titles 15 (“DOT”) in determining the skill level of a claimant’s past work. Terry v. 16 Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 17 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1) (DOT is source of reliable job 18 information). The DOT is the presumptive authority on job classifications. 19 Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). 20 Although the claimant has the burden of proving an inability to perform her 21 past relevant work, “the ALJ still has a duty to make the requisite factual findings 22 to support his conclusion.” Id. at 844. To determine whether a claimant has the 23 residual capacity to perform her past relevant work, the ALJ must ascertain the 24 demands of the claimant’s former work and then compare the demands with her 25 present capacity. Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). In 26 finding that an individual has the capacity to perform a past relevant job, the 27 determination or decision must contain the following specific findings of fact: 28 (1) a finding of fact as to the individual’s residual functional capacity; (2) a 13 1 finding of fact as to the physical and mental demands of the past job/occupation; 2 and (3) a finding of fact that the individual’s residual functional capacity would 3 permit a return to her past job or occupation. SSR 82-62. 4 5 3. Analysis Plaintiff properly notes, and defendant has not disputed, that the ALJ erred 6 in failing to make findings of fact as to the physical and mental demands of 7 plaintiff’s past relevant work, as required by SSR 82-62. See Pinto, 249 F.3d at 8 844. The Court concludes, however, that this error was harmless and does not 9 warrant a reversal of the ALJ’s decision. 10 First, the ALJ expressly relied upon the testimony of the vocational expert 11 in concluding that plaintiff could return to her past relevant work and took 12 measures to ensure that such testimony was consistent with the DOT and that any 13 inconsistency was clearly expressed on the record. (AR 30, 73). A vocational 14 expert’s testimony constitutes substantial evidence upon which an ALJ may 15 properly rely. See Magallanes, 881 F.2d at 756-57. 16 Second, the record reflects that the vocational expert’s testimony was 17 consistent with the DOT, which described the specific physical and mental 18 demands of plaintiff’s past jobs as generally performed. Notably, plaintiff does 19 not contend that the vocational expert erred in classifying plaintiff’s past relevant 20 work according to the DOT (or the functional demands attributed to such work). 21 Furthermore, review of the DOT shows that plaintiff was capable of performing 22 her past relevant work. The DOT sections which correspond to plaintiff’s past 23 relevant jobs as a property manager and administrative clerk reflect that such jobs 24 involve light work.10 As the ALJ properly determined that plaintiff had the 25 residual functional capacity to perform a full range of light work, his assessment 26 27 10 See DOT §§ 186.117-042 (manager, land development; alternative titles include 28 property manager); 219.362-010 (administrative clerk). 14 1 that plaintiff could perform her past relevant jobs is consistent with the DOT and 2 supported by the record. 3 For these reasons, the Court concludes that the ALJ’s failure to provide 4 specific findings of fact as to the physical and mental demands of plaintiff’s past 5 relevant work does not constitute reversible error. 6 D. The ALJ’s Residual Functional Capacity Determination Is 7 Supported by Substantial Evidence and Is Free from Material 8 Error 9 Plaintiff contends that the ALJ’s residual functional capacity determination 10 fails to consider all of plaintiff’s limitations and restrictions. (Plaintiff’s Motion at 11 8-9). This Court disagrees. 12 The ALJ considered and summarized in detail the medical evidence of 13 record. (AR 26-29). Based upon such consideration, the ALJ determined that 14 plaintiff could lift and/or carry 20 pounds occasionally and ten pounds frequently, 15 can push and pull within the limitations for lifting and carrying, and can climb, 16 balance, stoop, crouch and crawl on an occasional basis. (AR 25). The ALJ 17 thereafter adopted a residual functional capacity assessment for plaintiff which 18 reflected the practical ramifications that flowed from the foregoing limitations. 19 The ALJ concluded plaintiff had the residual functional capacity to perform work 20 at the light exertional level, with no psychological limitations. 21 The ALJ’s residual functional capacity is consistent with and reasonably 22 encompasses any limitations identified by the medical doctors who treated, 23 examined and/or evaluated plaintiff’s physical and mental condition. The ALJ 24 gave considerable weight to the findings of Dr. Holmes, a non-examining state25 agency consulting physician, who stated that plaintiff “was capable of performing 26 essentially a full range of light work, consistent with the limitations assessed by 27 the existing medical evidence.” (AR 28). Dr. Holmes’ assessment “considered 28 [plaintiff’s] medical impairments, exacerbations, expected response to treatment, 15 1 medication effects, pain and fatigue issues and the expectation that there would be 2 no continuous 12 month period since [plaintiff’s] alleged onset date during which 3 she would be unable to function with the [assessed] limitations.” (AR 28, 2614 68). Similarly, none of the other medical records the ALJ found credible reflected 5 a sustained 12 month period during which plaintiff was unable to perform work at 6 a light exertional level. (AR 29). Dr. Holmes’ opinion serves as substantial 7 evidence supporting the ALJ’s residual functional capacity determination. Cf. 8 Morgan, 169 F.3d at 600 (“Opinions of a nonexamining, testifying medical 9 advisor may serve as substantial evidence when they are supported by other 10 evidence in the record and are consistent with it.”). 11 The ALJ also found that there was no credible medical evidence that 12 plaintiff suffered any “ongoing valid . . . mental health issues.” (AR 29). The ALJ 13 relied in part on a consultative examination by psychiatrist, Dr. Romualdo 14 Rodriguez, which found that plaintiff suffered from “major depressive disorder,” 15 but had “no more than slight limitations in any area of mental functioning.”11 (AR 16 28, 275). These records do not identify any sustained functional limitations from 17 plaintiff’s impairments. “The mere existence of an impairment is insufficient 18 proof of a disability.” Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 19 (citation omitted). 20 Plaintiff’s contention that the ALJ failed to consider all of plaintiff’s 21 limitations and restrictions is unavailing. As noted above, Dr. Mitzner’s January 9 22 Report which found plaintiff suffered from greater mental and physical limitations 23 was not presented to the ALJ, and the Appeals Council was not required to make 24 any particular evidentiary findings regarding such report. See Gomez v. Chater, 25 74 F.3d 967, 972 (9th Cir. 1996) (Appeals Council not required to make any 26 27 11 The ALJ also relied on similar findings from the state agency medical consultant who 28 found that plaintiff suffered “no severe mental impairment” at all. (AR 29, 297-310). 16 1 particular evidentiary finding in rejecting evidence presented after ALJ issued 2 decision), cert. denied, 519 U.S. 881 (1996). Similarly, as discussed above, the 3 ALJ properly rejected Dr. Freyne’s opinions for clear, convincing, specific and 4 legitimate reasons supported by substantial evidence. Therefore, the ALJ did not 5 err in failing to include the findings from this medical evidence in his residual 6 functional capacity determination. 7 Accordingly, a remand or reversal on this basis is not warranted. 8 E. 9 10 The ALJ’s Failure to Consider Lay Witness Evidence Was Harmless Error Plaintiff contends that the ALJ failed properly to consider statements 11 provided by plaintiff’s daughter, and failed to provide sufficient reasons for 12 disregarding her statements. (Plaintiff’s Motion at 10-11). This Court concludes 13 that any error in this respect was harmless. 14 15 1. Pertinent Facts On July 29, 2005, plaintiff’s daughter, Jennifer Jakobs, who lived with 16 plaintiff at the time, completed a function report that reflects her observations 17 regarding plaintiff’s alleged impairments and their asserted impact on plaintiff’s 18 daily activities. (AR 176-83). Plaintiff’s daughter stated that plaintiff: (i) was 19 “tired all the time,” “in pain” and did “very little” (AR 176); (ii) could care for 20 pets with her daughter’s help (AR 177); (iii) had insomnia, muscle and joint pain, 21 and depression (AR 177); (iv) cooked “rarely” due to fatigue and difficulty with 22 concentration and memory (AR 177, 178); (v) could go out for “fast food” (AR 23 177); (vi) needed reminders to take medicine (AR 178); (vii) could do cleaning 24 and laundry “when capable,” but would move slowly due to fatigue (AR 178); 25 (viii) would not do other housework due to fatigue, depression, and pain, and 26 would not do yard work due to “joint and muscle pain” (AR 179); (ix) could drive 27 a car and go out on her own (AR 179); (x) would not shop in stores except for 28 food/necessities because she would get “confused” (AR 179); (xi) was not able to 17 1 handle money responsibly other than counting change because she would get 2 disoriented/confused, forget what was owed, and make “many mistakes” (AR 1793 80); (xii) was “a recluse,” spent no time with others, and did not leave the house 4 for social activities (AR 180); (xiii) had problems getting along with family 5 members because she was “very [depressed], irritable . . . a recluse, [and] ashamed 6 of her limitations (AR 181); (xiv) “used to be very outgoing and social and very 7 physical” (AR 181); (xv) was affected by her illness, injuries or conditions in her 8 ability to lift, squat, bend, stand, reach, walk, kneel, climb stairs, see, remember, 9 complete tasks, concentrate, understand, follow instructions, use hands, and get 10 along with others (AR 181); (xvi) had a hard time opening things due to joint pain 11 and pain in her hands (AR 181); (xvii) tired very easily when walking (AR 181); 12 (xviii) had “cognative [sic] problems” and got “confused easily” (AR 181); 13 (xix) did not finish what she started due to “short term memory loss” and fatigue 14 (AR 181); (xx) could not follow instructions well because she was “confused 15 easily” and would forget what she was told (AR 181); (xxi) did not handle stress 16 well and had a lot of fears (AR 182); and (xxii) used an electric cart at the store 17 when she was in pain (AR 182). 18 The parties do not dispute that the ALJ did not discuss these statements 19 made by plaintiff’s daughter. 20 21 2. Pertinent Law Lay testimony as to a claimant’s symptoms is competent evidence that an 22 ALJ must take into account, unless he expressly determines to disregard such 23 testimony and gives reasons germane to each witness for doing so. Stout, 454 24 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 25 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 26 witness testimony in discussion of findings) (citation omitted); Regennitter v. 27 Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999) (testimony by lay witness 28 who has observed claimant is important source of information about claimant’s 18 1 impairments); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (lay witness 2 testimony as to claimant’s symptoms or how impairment affects ability to work is 3 competent evidence and therefore cannot be disregarded without comment) 4 (citations omitted); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (ALJ 5 must consider observations of non-medical sources, e.g., lay witnesses, as to how 6 impairment affects claimant’s ability to work). The standards discussed in these 7 authorities appear equally applicable to written statements. Cf. Schneider v. 8 Commissioner, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ erred in failing to 9 consider letters submitted by claimant’s friends and ex-employers in evaluating 10 severity of claimant’s functional limitations). 11 In cases in which “the ALJ’s error lies in a failure to properly discuss 12 competent lay testimony favorable to the claimant, a reviewing court cannot 13 consider the error harmless unless it can confidently conclude that no reasonable 14 ALJ, when fully crediting the testimony, could have reached a different disability 15 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 16 17 3. Analysis To the extent the ALJ erroneously failed to discuss the statements contained 18 in the function report plaintiff’s daughter completed, any error was harmless. 19 First, the ALJ determined that plaintiff suffered from the severe 20 impairments of depression and fibromyalgia, and the non-severe impairments of 21 joint pain and chronic fatigue. (AR 23). To the extent statements by plaintiff’s 22 daughter about plaintiff’s depression, fatigue, and pain simply corroborated 23 limitations the ALJ already accounted for in his residual functional capacity 24 findings, any error in failing to address those statements was harmless. See Zerba 25 v. Commissioner of Social Security Administration, 279 Fed. Appx. 438, 440 (9th 26 Cir. 2008) (failure to address husband’s cumulative lay testimony harmless error); 27 Rohrer v. Astrue, 279 Fed. Appx. 437, 437 (9th Cir. 2008) (rejecting claimant’s 28 contention that ALJ improperly rejected lay witness statement of claimant’s 19 1 girlfriend where such statement cumulative of statements by claimant which ALJ 2 accepted).12 3 Second, plaintiff’s daughter’s statements that plaintiff did “very little” and 4 cooked “rarely” due to fatigue, and that plaintiff was a “recluse” who spent no 5 time with others and did not leave the house, are belied by plaintiff’s and her 6 daughter’s own statements that plaintiff cares for pets, cleans and does laundry, 7 drives a car, is able to go out alone, shops, and goes out regularly for fast food.13 8 (AR 177-78, 186-88). Moreover, the conclusory statements do not reflect any 9 additional limitation in plaintiff’s ability to work not already accounted for in the 10 ALJ’s residual functional capacity determination. Similarly, the daughter’s 11 conclusory statement that plaintiff suffered from depression did not reveal any 12 additional limitations on plaintiff’s ability to perform basic work activities, and 13 could properly be disregarded.14 14 Third, the ALJ found that plaintiff’s medically determinable impairments 15 would not reasonably be expected to produce “all of her alleged symptoms.” (AR 16 17 18 19 20 21 22 23 12 As indicated in note 8, supra, the Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 13 Evidence that plaintiff’s daughter spends time at home with plaintiff only on her “two days off” and only “when [she] can,” and that plaintiff rarely prepares her own meals at home but prefers “fast food,” suggests that plaintiff leaves the house regularly on her own to eat. (AR 176, 177-78, 186-88). Also, in plaintiff’s own function report, she notes that she visits people “once in a while” and will “usually call and talk on the phone.” (AR 189). This contradicts her daughter’s conclusory and unsupported statement that plaintiff is a “recluse.” 14 In the “Information About Abilities” check-box section, plaintiff’s daughter checked all 24 but three boxes, indicating that plaintiff’s illnesses, injuries, or conditions affect her ability to lift, 25 squat, bend, stand, reach, walk, kneel, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, use hands, and get along with others. (AR 181). However, no 26 doctor has assessed limitations in plaintiff’s ability to see. Moreover, the daughter’s vague 27 explanation as to how plaintiff’s illnesses, injuries or conditions limit plaintiff with respect to each of the items checked is insufficient to establish any additional limitations on plaintiff’s 28 ability to work. Thus the probative value of these statements is questionable, at best. 20 1 26). Plaintiff’s daughter stated that plaintiff suffered from insomnia, cognitive 2 difficulties, memory/cognitive problems, confusion, irritability, inability to handle 3 stress, anti-social feelings and/or has “fears.” (AR 177-82). To the extent the 4 daughter’s statements reflect only symptoms unrelated to an existing medically 5 determinable impairment, any error in failing to address statements about those 6 symptoms was harmless. Ukolov v. Barnhart, 420 F.3d 1002, 1006 n.6 (9th Cir. 7 2005). 8 Accordingly, a remand or reversal on this basis is not warranted. 9 F. 10 11 The ALJ Did Not Fail Properly To Consider Possible Side Effects From Plaintiff’s Medication Plaintiff contends the ALJ failed properly to consider side effects from her 12 use of prescription medication (e.g., Prozac, Xanax and Trazadone). (Plaintiff’s 13 Motion at 11). This Court disagrees. 14 A claimant bears the burden of demonstrating that her use of medications 15 caused a disabling impairment. See Miller v. Heckler, 770 F.2d 845, 849 (9th 16 Cir.1985) (claimant failed to meet burden of proving medication impaired his 17 ability to work because he produced no clinical evidence). Plaintiff offers no 18 objective evidence that her medications affected her in the ways that she claims, 19 let alone that they interfered with her ability to work. See Osenbrock v. Apfel, 20 240 F.3d 1157, 1164 (9th Cir. 2001) (Side effects not “severe enough to interfere 21 with [plaintiff’s] ability to work” are properly excluded from consideration). The 22 only evidence plaintiff points to regarding alleged side effects is contained in Dr. 23 Mitzner’s January 9 Report which, as discussed above, was not presented to the 24 ALJ. It is also worth noting that in her own statements to the Administration, 25 plaintiff stated she suffered no side effects from the three identified medications. 26 (AR 173, 209). 27 Accordingly, plaintiff is not entitled to a reversal or remand on this basis. 28 21 1 2 3 G. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert Plaintiff contends that a reversal or remand is appropriate because the ALJ 4 erroneously omitted from his hypothetical question Dr. Freyne’s opinions 5 pertaining to plaintiff’s “panic attacks and other mental and cognitive 6 impairments,” and Dr. Mitzner’s opinion that plaintiff was precluded from 7 “pushing/pulling and fine manipulations with her right and left hands.” 8 (Plaintiff’s Motion at 13). This Court disagrees. 9 A hypothetical question posed by an ALJ to a vocational expert must set out 10 all the limitations and restrictions of the particular claimant. Light v. Social 11 Security Administration, 119 F.3d 789, 793 (9th Cir.), as amended (1997) (citing 12 Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995)); Embrey, 849 F.2d at 422 13 (“Hypothetical questions posed to the vocational expert must set out all the 14 limitations and restrictions of the particular claimant . . . .”) (emphasis in original; 15 citation omitted). However, an ALJ’s hypothetical question need not include 16 limitations not supported by substantial evidence in the record. Osenbrock, 240 17 F.3d at 1163-64 (citation omitted). 18 As discussed above, the ALJ properly rejected Dr. Freyne’s opinions as 19 unsupported and inconsistent with the overall medical record, and Dr. Mitzner’s 20 opinions were not before the ALJ. Accordingly, the ALJ properly omitted such 21 opinions from the hypothetical questions posed to the vocational expert. 22 A remand or reversal on this basis is not warranted. 23 V. CONCLUSION 24 For the foregoing reasons, the decision of the Commissioner of Social 25 Security is affirmed. 26 LET JUDGMENT BE ENTERED ACCORDINGLY. 27 DATED: September 15, 2010 28 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 22
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