Martin v. Commissioner Social Security Administration, No. 6:2012cv02306 - Document 22 (D. Or. 2014)
Court Description: OPINION & ORDER: The Commissioner's final decision denying Martin's application for disability insurance benefits is Affirmed. Signed on 6/18/14 by Magistrate Judge Paul Papak. (gm)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JIM E. MARTIN, Plaintiff, 6:12-CV-2306-PK OPINION AND ORDER v. CAROLYN W. COLYIN, Acting Commissioner of Social Security,. Defendant. PAPAK, Magistrate Judge: Plaintiff Jim E. Martin filed this action December 20,2012, seeking judicial review of the Commissioner of Social Security's final decision denying his applications for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"). This comt has jurisdiction over plaintiffs action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). Mattin argues that by erroneously rejecting medical evidence and erroneously rejecting Page 1 - OPINION AND ORDER Martin's testimony regarding the extent of his impairments, the Commissioner failed properly to assess his residual functional capacity after completing step three of the five-step sequential process for analyzing a Social Security claimant's entitlement to benefits, and for that reason failed to cany her burden at step five of the process. I have considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set fotih below, the Commissioner's final decision is affitmed. DISABILITY ANALYSIS FRAMEWORK To establish disability within the meaning of the Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically detetminable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S. C. § 423(d)(l)(A). The Commissioner has established a five-step sequential process for detetmining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.P.R.§ 404.1520(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the Administrative Law Judge considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.P.R.§ 404.1520(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.P.R.§§ 404.1520(a)(4)(i), 404.1520(b). Otherwise, the evaluation will proceed to the second step. At the second step, the ALJ considers the medical severity of the claimant's impairments. Page 2 - OPINION AND ORDER See Bowen, 482 U.S. at 140-141; see also 20 C.P.R.§ 404.1520(a)(4)(ii). An impahment is "severe" if it significantly limits the claimant's ability to perf01m basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.P.R. § 404.1520(c). The ability to perf01m basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.P.R.§ 404.152l(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impahments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.P.R.§§ 404.1520(a)(4)(ii), 404.1520(c). If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ dete1mines whether the claimant's impairments meet or equal "one of a number of listed impahments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.P.R.§§ 404.1520(a)(4)(iii), 404.1520(d). If the claimant's impahments are equivalent to one of the impahments enumerated in 20 C.P.R.§ 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.P.R.§§ 404.1520(a)(4)(iii), 404.1520(d). If the claimant's impairments are not equivalent to one of the enumerated impairments, the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.P.R.§ 404.1520(e). The RFC is an estimate of the claimant's capacity to perf01m sustained, work-related, physical and mental activities on a regular and continuing basis, 1 despite the limitations imposed by the 1 "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." S.S.R. No. 96-8p, 1996 SSR LEXIS 5. Page 3 - OPINION AND ORDER claimant's impairments. See 20 C.F.R. § 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5. At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 404.1520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bawen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof is, for the first time, on the Commissioner. At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether the claimant can perf01m any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. If the Commissioner meets its burden to demonstrate that the claimant is capable ofperf01mingjobs existing in significant numbers in the national economy, the claimant is conclusively found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. A claimant will be found entitled to benefits if the Commissioner fails to meet its burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g). LEGAL STANDARD A reviewing court must affitm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supp01ied by substantial evidence in the record. Page 4 - OPINION AND ORDER See 42 U.S.C. § 405(g); see also Batson v. Comm'rfor Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to supp01t a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035.(9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." !d., citing Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See id., citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); see also Edlund v. kiassanari, 253 F.3d 1152, 1156 (9th Cir. 2001 ). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational inte1pretation." 1viagallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). BACKGROUND Mmtin was bornApri128, 1971. Tr. 31,113,125.2 He attended school through the eleventh grade, received a General Educational Development high school equivalency diploma in 1992, and has received no subsequent fo1mal education or vocational training. Tr. 32-33, 136143. According to the evidence of record, prior to his claimed disability onset date of March 1, 2009, Martin worked part-time as a fast-food cook in the summers of 1986 and·l987, worked full-time as a woodworker from January 1988 through May 2005, worked more than full time as 2 Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 12. Page 5 - OPINION AND ORDER a tow-truck driver from April 1998 through May 2005, and worked more than full time as a cabinet builder from May 2005 through March 2009. Tr. 58, 115-124, 128-133, 138, 144-156, 157-164. Following his claimed disability onset date, from April2009 through Februmy 2011 Martin worked as a gas-station attendant, at first full-time for a period of a few weeks and subsequently part-time. Tr. 33-34,48-53, 115-124, 128-133, 138, 144-156, 157-164. The earliest medical record appearing in the administrative record is a letter opinion signed by Martin's treating physician Paul G. Curtin, M.D., on July 6, 2009 (more than four months after Mmiin's claimed disability onset date), stating, apparently for purposes of refenal, that "Mr. Martin has advanced osteoarthritis of the hips." Tr. 213. On July 23,2009, apparently also for purposes of referral, Dr. Curtin fmiher wrote that: Mr. Martin has spent the last several years under my care for severe hip pain. If he were not of such a young age, he would have received a hip replacement by now, but orthopedics is delaying that until some number of years goes by. As a result of this he can no longer stand in one place and walk all day as he used to do as a cabinetmaker, and hence he has returned to school for futiher training. Tr. 212. The administrative record contains no other medical records dating from prior to Martin's application for disability insurance benefits. On September 15, 2009, Matiin protectively filed an application for disability insurance benefits, claiming a disability onset date of March I, 2009. Tr. 136-143, 113-114, 125-127. In connection with his application, Martin claimed to be disabled by atihritis of the hip and patiial deafness. Tr. 136-143, 113-114, 125-127. Martin characterized the impairments caused by those conditions as follows: Artlu·itis in my hips limits my ability to walk without pain. Sitting for more than an hour in most cases causes pain as well, bending and stooping are at times almost impossible. Medications help but do not take all the pain away. [T]he deafness limits my hearing and makes people have to repeat themselves for me. Page 6 - OPINION AND ORDER *** Sitting is painful[], [s]tanding is painful, walking is painful, [l]ifting the proper way without using my back is impossible because my hips can[']t move properly to do the lifting, unable to hear instructions at times unable to hear some people because the the [sic] tones of their voice. It is painful to walk, sit, bend, lift, even basic relaxation is uncomfmiable. Tr. 136-143. Martin repmied that his daily activities included making breakfast for his children and getting them ready for school, perfmming minor household chores when possible in consequence of his pain symptoms, collecting his children from school, feeding and caring for his family's pets, and sometimes preparing dinner for himself and for his family. Tr. 165-172. Mmiin repmied that he was unable to bend or squat, that he sometimes needed his children's help to put on his socks and shoes, and that he was usually able to walk less than a quarter of a mile before needing to rest. Tr. 165-172. Martin described the pain caused by his atihritis of the hips as "aching to piercing" and as present when he walked, stood, sat, or bent. Tr. 173. Mmiin's wife, Lisa, provided a repoti consistent with Mmiin's own self-report of his symptoms and activities of daily living. Tr. 174-181. On October 19,2009, Dr. Curtin's offices provided a "Patient Health Summary" indicating that Martin's significant diagnoses were of asthma, reflux esophagitis, and morbid obesity. Tr. 214-216. On November 19, 2009, consultative examining physician DeWayde C. Peny, M.D., reported that Martin complained of bilateral hip arthritis, recording that: The claimant's hip pain began gradually in 2005 in his right hip, but eventually the pain was felt in both hips. His pain is nearly constant, increased by walking more than thitiy minutes, cold weather, cold water, squatting or bending. His pain is decreased by using prescription medications. He has had x-ray examinations perfmmed of his hips, but he has not undergone any therapeutic intervention, such as cortisone injections or othetwise. Tr. 221-225. Dr. Perry observed that Mmiin "d[id] not have difficulty getting on or off the Page 7 - OPINION AND ORDER examination table." Tr. 221-225. Regarding Mattin's hip flexibility, Dr. Peny rep01ted that Martin was capable of "[B]ackward extension 30 degrees bilaterally. Flexion (knee flexed) 80 degrees, flexion (knee extended) 80 degrees bilaterally with bilateral hip pain associated with movement. Adduction 20 degrees bilaterally, abduction 40 degrees bilaterally." Tr. 221-225. Dr. Peny fmther observed that "claimant had tenderness to palpation at the left greater trochanter. There was no crepitus or effusions noted. He also exhibited severe pain with minimal internal and external rotation of the bilateral hips." Tr. 221-225. Dr. Peny opined that Mattin could stand and walk for up to four hours, that there was no limit on Mattin's capacity to sit, that Mattin needed no assistive devices for purposes of locomotion, that Martin could carry up to 20 pounds occasionally and 10 pounds frequently, that Martin should not climb, kneel, crouch, or crawl, but could occasionally stoop, that Martin had no limitations in balance or manipulation, and that Mattin should avoid working at heights, around heavy machinery, or under extremes of temperature. Tr. 221-225. An X-ray study ofMattin's left hip dated the same day as Dr. Perry's examination indicated "[m]ild degenerative change," with the femoral head "well positioned within the acetabulum," no fractures, and "some degree of osteopphyosis involving the superior acetabulum." Tr. 226. Largely on the basis ofPeny's examination and opinion, on December 10, 2009, the Administration detennined that Mattin's health condition caused pain, fatigue, weakness, shortness of breath, and other symptoms, Tr. 185-186, and that Mattin was capable of light exettional work with appropriate postural and environmental limitations, Tr. 182-184. The Administration futther determined that Martin could therefore perform a natmw range oflight work, including jobs such as "eyeglass frame polisher, paper & pulp weight tester, and glove & Page 8 - OPINION AND ORDER mitten puller through." Tr. 182-184. On December 18, 2009, Administration consulting physician Richard Alley, M.D., assessed Mmiin's physical residual functional capacity, opining that Mmiin's primary diagnosis was of morbid obesity, and that his secondary diagnosis was of degenerative joint disease of the bilateral hips. Tr. 227-234. Dr. Alley opined that Mmiin could cany up to 20 pounds occasionally and 10 pounds frequently, could stand or walk at least 2 hours out of an 8-hour workday, could sit with nmmal breaks for about 6 hours of an 8-hour workday, was limited to occasional pushing or pulling with his lower extremities, could occasionally climb a ramp or stairs, but could never climb a ladder, could frequently balance, could occasionally stoop, and could never kneel, crouch, or crawl. Tr. 227-234. Dr. Alley opined that Mmiin had no manipulative, visual, or communicative limitations, and should avoid concentrated exposure to wetness, humidity, noise, vibration, machinery, and heights. Tr. 227-234. Dr. Alley opined that Matiin's hearing problems were not at a "listing" level, and that Mmiin's statements regarding his own limitations were "pmiially credible." Tr. 227-234. On the basis of Dr. Alley's assessment of Martin's physical RFC, the Administration found Mmiin not disabled by his morbid obesity and degenerative joint disease of the bilateral hips. Tr. 61. The Administration advised Martin of its decision that he was not disabled for purposes of the Act on December 21,2009. Tr. 62,65-68. On December 29, 2009, repotiing increased pain and more limited mobility since the autumn of 2009, Tr. 187-192, Martin requested reconsideration of the Administration's finding of non-disability, Tr. 69. On Februmy 24, 2010, on reconsideration ofMmiin's medical records, Administration consulting physician Sharon B. Eder, M.D., opined that Dr. Alley's assessment ofMmiin's Page 9 - OPINION AND ORDER physical RFC should be "affirmed as written." Tr. 241. On Februmy 25, 2010, in consequence, the Administration dete1mined on reconsideration that Martin was not disabled by his conditions of morbid obesity and degenerative joint disease of the bilateral hips. Tr. 63. The Administration notified Mmiin of its decision on reconsideration on February 26,2010. Tr. 64, 70-71. On March 20,2010, Mmiin requested a hearing before an Administrative Law Judge. Tr. 76-77. In connection with that request, Martin reported no changes in his condition since the increase in the severity of his symptoms that he had previously repmied as having occmTed in the autumn of2009. Tr. 197-202. On April 7, 2011, Martin repmied that he had received no medical treatment since the last medical records he had submitted in support of his DIB application. Tr. 207-209. On April14, 2011, Matiin consulted for the first and apparently only time with a new treating physician, Thomas Hasbach, M.D. Tr. 247-249. Dr. Hasbach ordered a11d reviewed new X-ray studies of Martin's bilateral hips, interpreting those studies as follows: The degenerative changes seen at the left hip in 2009 have not significantly progressed, but are present in a similar fashion with in fact greater loss of joint space in the weightbearing area at the right hip. Marginal osteophytes and bony buildup at the femoral head-neck junction as well as at the acetabular margins, superiorly and inferiorly, are present bilaterally. Soft tissue shadows within the pelvis appear normal. No acute bony injuries are noted. Tr. 251. Dr. Hasbach further opined that, by comparison with the X-ray studies of2009, the new studies indicated "mild progression of his degenerative changes at both hips, which show altered femoral heads with increasing marginal osteophytes at the head/neck junction and some asymmetric nmTowing of the joint space, pmiicularly towards the superior lateral edge." Tr. 24 7249. Dr. Hasbach fmiher opined that: Page 10- OPINION AND ORDER [H]is clinical exam is consistent ... with a short stride in his gait, a mild gluteus lurch to both sides walking ... and it is presumed that when he would fatigue this would worsen. . . . He has very limited range of motion, although he can still don on and off his shoes on his own, he has gone to an elevated toilet seat. He only has about 45 degrees of extemal rotation of both hips, flexion is slightly less than 90 degrees at both hips and intemal rotation is impossible, he cannot even get back to about 10 degrees of external rotation contracture and his abduction is also limited bilaterally with pain at the extremes of all motion. Tr. 247-249. Dr. Hasbach recommended surgical intervention to bring about weight loss, and total bilateral hip mihroplasties, opining that without hip replacement, "[he] th[ought] [Martin] [wa]s facing a life in a motorized scooter sooner rather than later." Tr. 247-249. On July 18, 2011, Dr. Hasbach filled out a form provided by Martin's counsel, indicating that Martin's bilateral hip osteoatihritis and morbid obesity could be expected to last at least 12 months, that Martin suffered pain in the hips which altered his gait, did not require him to lie down during the day or to elevate his legs, and would require him to miss two days of full-time work per month if he were on a full-time work schedule. Tr. 253-256. On August 1, 2011, a hearing was conducted before an ALJ in connection with Martin's DIB application. Tr. 25-60. Appearing at the hem·ing were Matiin and his counsel. Tr. 25-60. No vocational expert was present. Tr. 25-60. At the hearing, Martin testified in relevant part that he was unable to walk more than half a block before needing to stop for rest, Tr. 38, that to navigate the five steps leading to the front porch of his home he needed to take them one step at a time, and could do so no more than five times in one day, Tr. 40, that he could not stand and walk for more than two hours of an eight-hour period, and for not more than one hour at a time, Tr. 42, that Dr. Hasbach recommended he use crutches but that he has not complied with that recommendation because he cannot afford to purchase crutches, Tr. 43, that he believed he could perf01m part-time work but not full-time work, due to his pain symptoms and the effects of his Page 11 - OPINION AND ORDER medications, Tr. 43, that he typically spends about three-qumters of his waking hours in a recliner chair with armrests, Tr. 45-46, that approximately two days per week he is unable to leave his home due to the intensity of his pain symptoms, Tr. 48, and that his pain symptoms were aggravated by sitting, standing, walking, pushing, pulling and "almost anything," and were relieved only through medication, Tr. 58-59. On August 19, 2011, the ALJ denied Mmtin's application for disability insurance benefits. Tr. 9-11, 12-19. Martin timely requested review of the ALJ's decision, Tr. 8, and the Appeals Council denied his request on October 24,2012, Tr. 2-4. In consequence, the ALJ's decision of August 19,2011, became the Administration's final order for purposes of judicial review. See 20 C.F.R. § 422.210(a); see also, e.g., Sims v. Apfel, 530 U.S. 103, 107 (2000). This action followed. SUMMARY OF ALJ FINDINGS At the first step of the five-step sequential evaluation process, the Administrative Law Judge found that Martin did not engage in substantial gainful activity at any time following his claimed disability onset date of March 1, 2009, finding that Martin's earnings in 2009 and 2010 did not rise to the level of substantial gainful activity. Tr. 14. He therefore proceeded to the second step of the analysis. At the second step, the ALJ found that Mmtin's medical impahments of "degenerative joint disease of the bilateral hips and obesity" were "severe" for purposes of the Act. Tr. 14. The ALJ further found that Martin's "alleged hearing lost" caused no "medically detetminable impairment," noting that there was no medical record suggesting any problem with Martin's hearing, and that Martin appeared able to hear and understand spoken language without Page 12 - OPINION AND ORDER difficulty. Tr. 15. Because the impairments caused by Martin's degenerative joint disease of the bilateral hips and obesity were deemed severe, the ALJ properly proceeded to the third step of the analysis. At the third step, the ALJ found that none of Martin's impairments was the equivalent of any of the impairments enumerated in 20 C.F.R. § 404, subpt P, app. I. Tr. 25. The ALJ therefore properly conducted an assessment of Martin's residual functional capacity. Specifically, the ALJ found that at all material time: [Maliin had] the residual functional capacity to lift and carry 10 pounds. He c[ould] stand or walk for 2 hours in an 8-hour workday and sit for 6 hours in an 8hour workday. Tr. 15. In reaching this finding, the ALJ considered all of the material objective medical evidence in the record, as well as Mattin's own statements and those of his wife regarding his symptoms. Tr. 15-18. At the fomih step of the five-step process, the ALJ found that Maliin was unable to perfmm his past relevant work. Tr. 18. At the fifth step, the ALJ found in light ofMaliin's age, education, work experience, and RFC that there were jobs existing in significant numbers in the national and local economy that he could perform. Tr. 18-19. Because the ALJ had determined that Matiin could perform "all or substantially all of the exeliional demands of work at a given level of exe1tion," namely the "full range of sedentaty work," the ALJ found that pursuant to Medical-Vocational Rule 201.28, a finding of"not disabled" was required without fmther consideration ofMatiin's limitations. Tr. 19. On that basis, the ALJ concluded that Martin was not disabled as defined in the Act at any time between March I, 2009, and August 19,2011. Tr. 19. Page 13 - OPINION AND ORDER ANALYSIS Mmiin challenges the Commissioner's assessment of his residual functional capacity. Specifically, Mmiin argues that the Administrative Law Judge improperly rejected the April2011 and July 2011 opinions of treating physician Hasbach and improperly failed to credit Martin's own testimony regarding the severity of his symptoms. Mmiin further argues that, in light of the alleged errors in the ALJ's assessment of Mmiin's RFC, the Commissioner failed to cany her burden at the fifth step of the five-step process. I address each of Martin's m·guments in turn. I. Residual Functional Capacity A. Medical Opinion of Treating Physician Hasbach As noted above, Dr. Hasbach examined Martin on April14, 2011, and compared X-ray radiographs of Martin's bilateral hips taken that same day with the X-ray radiograph of Martin's left hip taken on November 19, 2009. Hasbach opined that comparison of the two studies indicated "mild progression of [Matiin's] degenerative changes at both hips, which show altered femoral heads with increasing marginal osteophytes at the head/neck junction and some asymmetric natTowing of the joint space, pmiicularly towards the superior lateral edge." Tr. 247249. Dr. Hasbach futiher opined that Martin had a short stride, that his gait was marked by a mild gluteus lurch to both sides, that Matiin had a vety limited range of motion, and that Martin's pain symptoms altered his gait but did not require him to lie down during the day or to elevate his legs. Tr. 247-249, 253-256. Dr. Hasbach further opined that Martin's pain symptoms would require him to miss two days of full-time work per month if he were on a full-time work schedule, but did not explain the medical basis for the purpotiedly necessmy absences from work. Tr. 253-256. Matiin argues that the Administrative Law Judge improperly rejected Dr. Page 14- OPINION AND ORDER Hasbach's medical opinion that without hip replacement, "[he] th[ought] [Mmiin] [wa]s facing a life in a motorized scooter sooner rather than later," that Matiin's pain symptoms altered his gait, giving him a shmt stride and a gluteal lurch that would presumably worsen with fatigue, that Martin had a limited range of motion in his hips, and that Matiin's impairments would require him to miss two days of full-time work per month if he were on a full-time work schedule. Tr. 247-249,253-256. An ALJ may properly reject a treating physician's uncontradicted medical opinion only for "clear and convincing reasons." Lester v. Chafer, 81 F.3d 821, 830-831 (9th Cir. 1995). When the treating physician's opinion has been contradicted, however, it may be rejected for "specific and legitimate reasons that are suppotied by substantial evidence in the record." Carmickle v. Comm'r Soc. Sec. Admin., 533 F. 3d 1155, 1164 (9th Cir. 2008). This can be done by setting out a detailed and thorough summmy of the facts, providing an appropriate interpretation thereof, and making findings. See ,1,;/egallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Here, the ALJ found in relevant pati as follows: As for the claimant's hip impairment, medical records show that he was diagnosed with osteomihritis of the hips .... Medical records are very limited, and show little treatment for his hip condition. There is no evidence of physical therapy or injections. An X-ray noted that the claimant had mild progression of his degenerative changes at both hips, with altered femoral heads with increasing marginal osteophytes at the head-neckjunction and some asymmetric narrowing of the joint space, pmiicularly towards the superior lateral edge .... The claimant's clinical exam was consistent with the short stride in his gait, and it was noted that the claimant had a limited range of motion .... *** ... Dr. Has bach stated that the claimant was "facing a life in a motorized scooter sooner rather than later" but he did not state that the claimant was unable to Page 15- OPINION AND ORDER ambulate effectively cun·ently .... *** The claimant's treating physician, Thomas Hasbach, MD ... opined that the claimant had osteoatthritis of the bilateral hips and morbid obesity, and that he would miss 2 days of work per month .... Dr. Hasbach did not explain why he believed the claimant would miss 2 days per month, and he did not attach any objective medical evidence to suppot1 his opinion. Dr. Hasbach also did not opine any functional limitations, but he noted that the claimant did not need to lie down or rest periodically during the day, and he had no side effects from his medication . . . . Dr. Hasbach basically found no limitations, but opined that the claimant would miss 2 days of work per month. Because Dr. Hasbach did not explain his opinion or attach any objective medical evidence, his opinion is given little weight. Tr. 16-18. As to Dr. Hasbach's opinion regarding Martin's altered gait and limited range of motion in his hips, it therefore appears that the ALJ fully credited that pot1ion of Dr. Hasbach's opinion, and correctly noted that the opinion did not suggest any functional limitations inconsistent with Mattin's physical residual functional capacity as described in the ALJ's findings. Similarly, as to Dr. Hasbach's opinion that, absent weight loss and hip replacement surgery, Mattin would require a motorized scooter to move around "sooner rather than later," the ALJ did not reject the opinion but correctly noted that it was without bearing on Mattin's current physical limitations. By contrast, the ALJ did in fact reject Dr. Hasbach's opinion that Martin's impaitments would require him to miss two days of full-time work per month if he were on a full-time work schedule. It is well established that "an ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by ... objective medical findings." Batson v. Comm 'r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004), citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), citing }vfatney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also, e.g., klorgan Page 16- OPINION AND ORDER v. Commissioner of the SSA, 169 F.3d 595, 601 (9th Cir. 1999). The ALJ conectly observed that nothing in Dr. Hasbach's notes or records suggests any medical basis for his opinion that Martin would be required to miss two days of full-time work per month if on a full-time work schedule.' In consequence, the ALJ did not en· in rejecting that p011ion of Dr. Hasbach's opinion, without regard to whether the opinion was consistent or inconsistent with other medical evidence of record. In the alternative, Martin argues that the ALJ erred by failing to further develop the record, suggesting that if Dr. Hasbach's opinion is insufficient to mandate award of benefits, it is insufficient only to the extent that it is incomplete. "In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Smolen v. Chafer, 80 F.3d 1273, 1288 (9th Cir. 1996), quoting Brown v. Heckler, 713 F.2d 441,443 (9th Cir. 1983). "This duty exists even when the claimant is represented by counsel." !d., citing Brown, 713 F.2d at 443. However, the "ALI's duty to develop the record futiher is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." }viayes v. lvlassanari, 276 F.3d 453, 459-460 (9th Cir. 2001), citing Tonapetyan, 242 F.3d at 1150. Where the medical record before the ALJ is "neither ambiguous nor inadequate to allow for proper evaluation of the evidence," the ALJ does not err by failing to solicit additional medical evidence beyond that offered into the record by the 3 Although as noted above Martin testified at the hearing before the ALJ that he is unable to leave his house approximately two days per week due to the intensity of his pain symptoms, there is no suggestion in Dr. Hasbach's records that he relied on any such report in issuing his opinion. Moreover, Martin's lay opinion would not constitute an objective medical finding, and as discussed below, the ALJ in any event adduced specific and legitimate reasons for discounting Matiin's credibility to the extent his testimony was inconsistent with the physical residual functional capacity described in the ALI's findings. Page 17 - OPINION AND ORDER claimant and/or the claimant's counsel. !d. Contrary to Matiin's implicit contentions, the medical record at issue here, while not extensive, is neither ambiguous nor inadequate to allow for proper evaluation. In particular, Dr. Hasbach did not fail to opine as to the functional limitations caused by Matiin's osteoarthritis of the bilateral hips, but rather provided a detailed medical opinion that Martin's bilateral hip osteoarthritis and morbid obesity altered his gait in specified ways and limited his range of motion in a precisely quantified manner with resulting specified postural limitations, and futiher expressly opined that Martin's conditions did not require him to lie down during the day or to elevate his legs when seated. Dr. Hasbach's opinion is unambiguous and sufficient to permit appropriate evaluation of the impact of Matiin's symptoms on his residual functional capacity. In consequence, the ALJ was under no duty to further develop the medical record. Because the ALJ did not err in his findings regarding Dr. Hasbach's medical opinion, Martin's assignments of error in connection with that opinion provide no grounds for disturbing the Commissioner's final decision. B. Martin's Lay Opinion Testimony As noted above, in connection with his disability insurance benefits application Martin characterized the impairments caused by his hip pain as follows: Arthritis in my hips limits my ability to walk without pain. Sitting for more than an hour in most cases causes pain as well, bending and stooping are at times almost impossible. Medications help but do not take all the pain away. *** Sitting is painful[], [s]tanding is painful, walking is painful, [l]ifting the proper way without using my back is impossible because my hips can[']t move properly to do the lifting, unable to hear instructions at times unable to hear some people because the the [sic] tones of their voice. It is painful to walk, sit, bend, lift, even Page 18- OPINION AND ORDER basic relaxation is uncomfortable. Tr. 136-143. Martin repotied that he was unable to bend or squat, that he sometimes needed his children's help to put on his socks and shoes, and that he was usually able to walk less than a quarter of a mile before needing to rest. Tr. 165-172. Martin characterized the pain caused by his artln·itis as "aching to piercing" and as present when he walked, stood, sat, or bent. Tr. 173. At the hearing before the ALJ, Mmiin testified that he was unable to walk more than half a block before needing to stop for rest, Tr. 38, that to navigate the five steps leading to the front porch of his home he needed to take them one step at a time, and could do so no more than five times in one day, Tr. 40, that he could not stand and walk for more than two hours of an eight-hour period, and for not more than one hour at a time, Tr. 42, that Dr. Hasbach recommended he use crutches but that he has not complied with that recommendation because he cannot afford to purchase crutches, Tr. 43, that he believed he could perform part-time work but not full-time work, due to his pain symptoms and the effects of his medications, Tr. 43, that he typically spends about tln·ee-quarters of his waking hours in a recliner chair with armrests, Tr. 45-46, that approximately two days per week he is unable to leave his home due to the intensity of his pain symptoms, Tr. 48, and that his pain symptoms were aggravated by sitting, standing, walking, pushing, pulling and "almost anything" he does, and were relieved only tln·ough medication, Tr. 58-59. Mmiin argues that the Administrative Law Judge improperly failed to credit his testimony that he is unable to endure the rigors of full-time employment and that approximately two days per week he is unable to leave his home due to the intensity of his pain symptoms. When a claimant's medical record establishes the presence of a "medically detetminable impairment" that "could reasonably be expected to produce the [claimant's alleged] pain or other Page 19- OPINION AND ORDER symptoms," the ALJ must evaluate the claimant's credibility in describing the extent of those symptoms. 20 C.P.R.§ 404.1529. In the event the ALJ determines that the claimant's repoti is not credible, such determination must be made "with findings sufficiently specific to pennit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002), citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en bane). In weighing a claimant's credibility, the ALJ may consider, inter alia, the "claimant's reputation for truthfulness, inconsistencies either in claimant's testimony or between h[is] testimony and h[is] conduct, claimant's daily activities, h[is] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which claimant complains." Id. (internal modifications omitted), citing Light v. SSA, 119 F.3d 789, 792 (9th Cir. 1997). While a finding that a claimant lacks credibility cannot be premised solely on a lack of medical support for the severity of his pain, see Light, 119 F.3d at 792, citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), where the ALJ's credibility finding is suppotied by substantial evidence in the record, the finding will not be disturbed, Thomas, 278 F.3d at 959, citing lvforgan v. Commissioner of the SSA, 169 F.3d 595, 600 (9th Cir. 1999). Here, the ALJ found Martin's testimony regarding his impairments partly credible, discussing Matiin's testimony and credibility as follows: The claimant alleged that he is unable to work, due to atihritis in his hips . . . . He alleged that his arthritis limited his ability to walk without pain, sitting for more than an hour in most cases caused pain, and at times he was unable to bend or stoop .... He alleged that medications helped, but did not take away all the pain . . . . He later alleged that he has increased pain and more limited mobility .... After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to Page 20 - OPINION AND ORDER cause some of the alleged symptoms; however, the claimant's statements conceming the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment. *** At the hearing, the claimant testified that he was not able to walk a full block before resting, and he had been unable to do so since March 2009. However, this testimony is inconsistent with a statement he submitted in November 2009, in which he stated that he could walk usually less than a quarter of a mile . . . . The claimant alleged that his children sometimes had to help him put on his socks and shoes, but his own doctor recently noted that the claimant was still able to don and doff his shoes . . . . . . . At the hearing, the claimant testified that he thought he could work part-time but not full-time, and he could stand or walk for 2 hours in an 8-hour workday, but only for one hour at a time. The claimant testified that when he sits he needs atm rests, and he spends his days sitting in a recliner with his feet parallel to his hips. However, when Dr. Hasbach completed the medical evaluation f01m, he answered the question of how often would the claimant need to elevate his legs in an 8-hour workday by noting this question was "not relevant to his hip atiluitis" . . . . This indicates that he did not believe it was necessaty for the claimant to sit with his legs elevated. The claimant's credibility is undermined by his work after the alleged onset date, and his receipt of unemployment benefits. The claimant testified that he worked from the alleged onset date in March 2009, tlu·ough Febmary 2011. As discussed above, the claimant did not perform work at substantial gainful activity levels, but he did eam significant wages. Although the claimant alleged he was disabled in March 2009, records show he eamed $7,509.79 in 2009, and his wages went up to $8,008.99 in 2010 .... The claimant also claimed unemployment benefits in 2009 and 2010 .... Generally, in order to collect unemployment benefits, the recipient must certifY that [he is] ready, willing and able to work. This is not consistent with the claimant's allegations of total disability. * ** ... The opinions of Dr. Alley and Dr. Eder [regarding Martin's functional limitations] are consistent with the medical records, which show that [Martin] does have some limitations because of his bilateral hip impairment and obesity, but that he has had ve1y little treatment for this condition. However, the claimant testified that he is more limited tha[n] Dr. Alley and Dr. Eder have opined, and he is given the benefit of the doubt that he is unable to stand or walk for 6 hours in an 8-hour workday, due to his hip impairment. Therefore, the opinions of Dr. Alley and Dr. Eder are given limited weight. Page 21 -OPINION AND ORDER Tr. 16-17. Thus, the ALJ did not merely fully credit Matiin's testimony that his medical condition caused him to experience frequent pain symptoms, but indeed credited Mmiin's testimony regarding the limitations on his ability to stand or walk for extended period of time to the point of relying on it to reject a potiion of the medical opinion offered by consulting physicians Alley and Eder. It is therefore only the ALI's determination that Matiin was not credible in characterizing his pain symptoms as so debilitating as to prevent him from perfotming full-time work and as to prevent him from leaving his house on approximately two days a week that is at issue here. The ALJ provided specific and legitimate reasons for discrediting Matiin's testimony to that extent. First, the ALJ correctly noted that Matiin provided inconsistent characterizations of the limitations caused by his medical conditions. In October 2009, Martin advised the Administration that he could "usually" walk less than a quatier mile before needing to stop and rest, with the implication that sometimes he was capable of walking a quatier mile or futiher without a rest break, Tr. 170, whereas at the hearing of August 2011 he reported that he was unable to walk further than half a city block before he needed to rest, Tr. 37-38. Although Matiin characterizes his two statements as "consistent," in that half a block is in fact less than a qumier mile, Matiin's characterization fails to take into account his use of the modifier "usually" in the first statement, which if given its ordinmy meaning renders the two statements ineconcilable.< The ALJ did not en in interpreting Martin's statements in that manner, and even 4 The ALJ also found it inconsistent that Martin testified at the hearing that "sometimes" his children had to help him put on or remove his shoes, notwithstanding Dr. Hasbach's repoti that he was still able to perform this function himself without assistance. I agree with Martin that, because he testified only that "sometimes" he required such assistance, the apparent inconsistency of the two statements does not provide legitimate grounds for discounting his Page 22 - OPINION AND ORDER if Martin's statements were subject to an altemative interpretation which did not undetmine his credibility, this court is not authorized to substitute its judgment of Martin's credibility for the ALJ's, or to reject the ALJ's finding simply because it is premised on evidence subject to more than one reasonable interpretation. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). Second, the ALJ found Mmiin's testimony regarding his inability to sustain full-time work inconsistent with the evidence of Matiin's employment as a gas-station attendant for a period of nearly two years following his alleged disability onset date. Performance of job duties on a part-time basis, while not sufficient to establish capacity to work full time, can constitute a legitimate reason for discounting a claimant's assertion of disability. See, e.g., Bray v. Comm'r of SSA, 554 F.3d 1219, 1227 (9th Cir. 2009); Goffv. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005); Berger v. Astrue, 516 F.3d 539, 546 (7th Cir. 2008). The ALJ did not et1' in finding that Matiin's work experience undermined the credibility of his assetiion of inability to work full time. Third, the ALJ found some of Mmiin's testimony regarding his functional limitations to be inconsistent with some of the medical evidence and medical opinions of record. Specifically, the ALJ found Matiin's testimony at the August 2011 hearing that he needed to sit in a reclining chair with his feet elevated for six hours of a given eight-hour period to be inconsistent with Dr. Has bach's opinion that he did not need to raise his feet when sitting and that elevation of his feet was "itTelevant" to his hip atihritis. The ALJ did not et1' in finding that the conflict between Matiin's testimony and Dr. Hasbach's opinion undermined Martin's credibility in some degree. While the proffered reasons discussed above are not sufficient to establish conclusively that Mmiin had a propensity to exaggerate his symptoms, they do constitute specific and credibility. Page 23 - OPINION AND ORDER legitimate reasons supp01ted by evidence in the record that are sufficient to permit the conclusion that the ALJ did not arbitrarily reject Martin's testimony. Indeed, the record establishes that the ALJ afforded Martin's testimony significant weight, and discredited it only in pmi, based on legitimate concems arising out of evidence in the record. Because the ALJ's credibility dete1mination is supp01ted by substantial evidence in the record and was made pursuant to proper legal standards, this comt will not disturb his credibility findings. II. Step Five: Existence of Jobs the Claimant Could Perform in the National Economy As discussed above, Martin argues that the Administrative Law Judge erred in his assessment of Martin's residual functional capacity. On that basis, Martin argues that the Commissioner failed to meet her burden at the fifth step of the five-step process to demonstrate that, in light of his residual functional capacity, Mmtin was capable of performing jobs existing in significant numbers in the national economy. Specifically, Mmtin argues that because of the ALJ's purported errors in rejecting Dr. Hasbach's opinion and in discounting Mmtin's lay opinion testimony, the Commissioner was not entitled to rely on Medical-Vocational Rule 201.08 in lieu of consulting a vocational expert to determine whether Mmtin was capable of performing such jobs. However, as discussed above, the ALJ did not err in his assessment of Mmtin's RFC. In consequence, the Commissioner was entitled to rely on Medical-Vocational Rule 201.08 for that Ill Ill Ill Ill Ill Page 24 - OPINION AND ORDER purpose. See 20 C.P.R. pt. 404, subpt P, app. 2. It follows that the Commissioner met her burden at the fifth step of the five-step sequential process. CONCLUSION For the reasons set forth above, the Commissioner's final decision denying Martin's application for disability insurance benefits is affirmed. A final judgment shall be prepared. Dated this 18th day of June, 2014. Honorable Paul Papak United States Magistrate Judge Page 25 - OPINION AND ORDER
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