(SS) Gillespie v. Commissioner of Social Security, No. 1:2010cv01796 - Document 22 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis L. Beck on 10/7/2011 recommending that 1 Social Security Complaint filed by Betty Gillespie be DENIED and that Judgment be entered for Defendant. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/17/2011. (Lundstrom, T)
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(SS) Gillespie v. Commissioner of Social Security Doc. 22 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 BETTY GILLESPIE, 10 11 12 13 14 15 ) ) Plaintiff, ) ) ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner of ) Social Security, ) ) Defendant. ) ___________________________________ ) 1:10cv01796 LJO DLB FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT 16 BACKGROUND 17 Plaintiff Betty Gillespie (“Plaintiff”) seeks judicial review of a final decision of the 18 Commissioner of Social Security (“Commissioner”) denying her application for Disability Insurance 19 Benefits (“DIB”) and Supplemental Security Income (“SSI”) pursuant to Titles II and XVI of the 20 Social Security Act. The matter is currently before the Court on the parties’ briefs, which were 21 submitted, without oral argument, to the Magistrate Judge for findings and recommendations to the 22 District Court. 23 FACTS AND PRIOR PROCEEDINGS1 24 On October 1, 2003, Plaintiff protectively filed for DIB and SSI. AR 353-59. She alleged 25 26 1 References to the Administrative Record will be designated as “AR,” followed by the appropriate page number. 27 28 1 Dockets.Justia.com 1 disability since October 20, 2003, due to bipolar disorder, mental illness, lack of concentration and 2 memory loss. AR 138. After being denied initially and on reconsideration, Plaintiff requested a 3 hearing before an Administrative Law Judge (“ALJ”). AR 78-81, 84-89, 90. On February 16, 2006, 4 ALJ James Ross held a hearing. AR 649-72. ALJ Ross denied benefits on May 16, 2006. AR 360- 5 69. On September 14, 2007, the Appeals Council vacated the decision and remanded the case for 6 further proceedings. AR 370-73. 7 On March 6, 2008, ALJ James Berry postponed a second hearing to obtain additional medical 8 evidence. AR 673-78. On September 30, 3008, ALJ Berry convened a hearing. AR 679-719. ALJ 9 Berry denied benefits on November 4, 2008. AR 26-39. On July 28, 2010, the Appeals Council 10 denied review. AR 7-11. 11 Hearing Testimony 12 1. 13 ALJ Ross held a hearing on February 16, 2006, in Fresno, California. Plaintiff appeared with 14 February 16, 2006 her attorney, Charles Oren. AR 651. 15 Plaintiff testified that she lives alone in an apartment. She doesn’t go out a lot and doesn’t 16 drive. A friend takes her grocery shopping. Plaintiff does her own laundry and cooks meals. She 17 sometimes has a hard time concentrating. AR 654-55. 18 Plaintiff sees Dr. Callado and visits the behavioral center in Madera. She takes Zoloft, 19 Abilify, Klonopin, a sleep medication and three pain medications. AR 655. She gets panic/anxiety 20 attacks throughout the day. Her medications cause side effects of weight gain and blurred vision. 21 AR 656-58. She does not read the newspaper or watch TV. She can concentrate for 10 minutes, sit 22 about 15 minutes and stand about 15 minutes. She has restless leg syndrome and takes Vicodin. AR 23 658-59. 24 25 Plaintiff’s anxiety and depression date back to 1986. She had a nervous breakdown and started mental health counseling. AR 660. 26 She tried to work a couple months before the hearing providing in-home care for her sister. 27 The job included laundry, housecleaning, grocery shopping and taking her sister to the doctor. She 28 2 1 worked 40 hours for one month. She couldn’t drive her sister to appointments because of anxiety 2 attacks and her sister “gently” fired her. AR 660-61. 3 Plaintiff was hospitalized in 2004 for suicidal thoughts. AR 661-62. 4 Plaintiff has carpal tunnel and takes Vicodin, Tylenol with codeine and Soma for pain. AR 5 662. She tried to work as a cocktail waitress in 2004, but quit after two weeks. She kept dropping 6 things and couldn’t deal with the customers. AR 662. 7 Plaintiff received a GED and almost completed college. AR 664. 8 In response to questions from the ALJ, Plaintiff clarified that she had a breakdown in 1986. 9 10 She went to counseling and to a psychiatrist. She has been receiving mental health treatment intermittently since she was 21. AR 666. 11 In 1998 or 1999, Plaintiff stopped working because of her carpal tunnel and mental issues. 12 She started seeing Dr. King for carpal tunnel. She was tested and provided medication, including 13 Tylenol with Codeine. No one proposed surgery. AR 668. 14 Plaintiff applied for disability shortly before she was hospitalized in 2003. At the time, they 15 were having a hard time finding the right medications for her depression and anxiety attacks. She 16 was feeling suicidal and her panic attacks worsened. AR 668-69. She sees Dr. Callado once every 17 eight weeks for medication, but has not gone to counseling for six months. AR 670. 18 The ALJ left the hearing open to obtain additional medical records. AR 671-72. 19 2. 20 ALJ Berry postponed the March 2008 hearing to obtain additional records. AR 676-78. 21 3. 22 ALJ Berry held a hearing on September 30, 2008, in Fresno, California. Plaintiff appeared 23 March 6, 2008 Hearing September 30, 2008 Hearing with her attorney, Sengthiene Bosavanh. Vocational Expert Judith Najarian also appeared. AR 681. 24 In response to questions from her attorney, Plaintiff reported that she had not worked since 25 she last testified. Her impairments were about the same, but better because she takes her medicine 26 and she stays at home. Plaintiff clarified that she still hears voices, but they are better. AR 682-83. 27 28 During the day, Plaintiff lies down for two or three hours. For the rest of the day, she sits and 3 1 watches TV. She can concentrate about 15-20 minutes at time. Since the last hearing, DMV took 2 her driver’s license because of her medications. AR 684-85. 3 In response to questions from the ALJ, Plaintiff testified that she is divorced and has two 4 children ages 23 and 29. She received her GED in 2001. She worked as a waitress in September and 5 October 2003. As a waitress, she had to lift more than 20 pounds, but less than 50 pounds. AR 686- 6 88. She stopped working because she was dropping plates, could not focus on the orders and was 7 hearing voices. AR 688. She went to a doctor and he diagnosed her as bipolar. It took a year to get 8 the right medication. With her medication, the voices slowed down. She was seeing a psychiatrist 9 for medication. She also started receiving counseling and therapy about eight months before the 10 hearing. She currently takes Abilify, Wellbutrin and Xanax. She has been taking these medications 11 for four years with side effects of weight gain, sleepiness, and lack of concentration. AR 688-92. 12 Plaintiff explained that during the first year of taking medication she was manic. She 13 couldn’t concentrate and couldn’t sleep. They lowered the dose and she started to level off. After 14 the medications were stabilized, she knew she was better because the voices slowed down. The rest 15 of the symptoms were still there–the anxiety and the lack of concentration. She still hears voices 16 about three times a week. The voices say that she doesn’t want to live and to hurt herself because 17 she is not able to do things. Her counselor encouraged her to write and draw again, but she cannot 18 concentrate. AR 692-96. 19 Plaintiff testified that her voice interferes with her ability to work. She has a condition that 20 paralyzes the left vocal cords. She had surgeries to remove protein deposits. She has check ups 21 every year and it will always be the same. AR 698. 22 Back in 2003, Plaintiff had physical problems that interfered with her ability to lift, carry, 23 stand, walk and sit. She had carpal tunnel in her right hand, arthritis and leg pain. Her carpal tunnel 24 is better. She is able to pick up items with her hands, but cannot lift over 10 pounds. She can carry 25 10 pounds. She has arthritis in her fingers and she takes Norco and Naproxen. AR 700. 26 Plaintiff testified that at the time she stopped working, she could probably stand two hours 27 and walk seven hours. Now she can walk 20 minutes and sit 2 hours in an eight-hour period. AR 28 4 1 700-02. During the day, she will take a bath, do dishes, get dressed, comb her hair and talk to her 2 sister. AR 702-03. 3 Plaintiff tried walking, jogging and bicycling, but it was too painful. She stopped about eight 4 months before the hearing. Plaintiff believed that the biggest thing stopping her from working is her 5 agoraphobia, the voices and the anxiety attacks. AR 703-04. 6 In response to additional questions from her attorney, Plaintiff reported that she could use her 7 hands for about 20 minutes before needing an hour break. Her medications reduce the pain about 50 8 percent, but she has side effects of drowsiness and lack of concentration. She does not have any 9 difficulties doing dishes for 20 minutes, but cannot stand longer because of her back, legs and hands. 10 Her back hurts most of the day. With her pills, she gets 50 percent relief. AR 704-08. 11 12 13 Plaintiff also reported that she can talk for three hours and then needs an hour break. AR 707. Plaintiff clarified that she tried riding a bicycle for half an hour three times a week for six 14 weeks. She stopped because of pain. She also tried to jog twice, but stopped because of pain in her 15 legs and back. She tried walking three times a week for six weeks, but stopped because of pain in 16 her back and legs. AR 710-11. 17 The VE reported that Plaintiff’s past work as a waitress was in the DOT as light and semi- 18 skilled, but was sometimes performed at the medium level. AR 714. For the first hypothetical, the 19 ALJ asked the VE to assume an individual 46 years of age with a GED certificate and Plaintiff’s past 20 relevant work. This individual also had a combination of severe impairments and retained the 21 residual functional capacity to lift and carry 100 pounds occasionally, 50 pounds frequently. This 22 individual also retained the ability to stand, walk and sit six to eight hours each, could perform 23 simple, repetitive tasks and could maintain attention, concentration, persistence and pace. This 24 individual also could relate to and interact with others, could adapt to usual changes in the work 25 setting and could adhere to safety rules. The VE testified that this individual could not perform 26 Plaintiff’s past relevant work, but could perform other jobs in the national economy, such as hand 27 packer, equipment cleaner, and production assembler. AR 715-16. 28 5 1 For the next hypothetical, the ALJ asked the VE to assume an individual with the same 2 vocational parameters and a combination of severe impairments. This individual retained the ability 3 to stand two hours, sit two hours, walk approximately 20 minutes total and lift and carry 10 pounds. 4 This individual also would need to lie down two to three hours per day during workday, would have 5 difficulty concentrating on any single task more than 15 to 20 minutes at a time and could not 6 perform sustained gripping and grasping bilaterally more than 15 to 20 minutes. This individual also 7 would have difficulty relating to and interacting with others and would have difficulty adjusting to 8 usual changes in work settings. The VE testified that such an individual could not perform 9 Plaintiff’s past work or any other jobs in the national economy. AR 716-17. 10 For the third hypothetical, Plaintiff’s counsel asked the VE to assume a person with a poor 11 ability to understand, remember and carry out a variety of technical and/or complex job instructions 12 and a poor ability to maintain concentration and attention for at least two hours. The VE testified 13 that this person could not perform Plaintiff’s past relevant work. If this person could not maintain 14 attention and concentration for two hours at a time, there were no other jobs this person could 15 perform. AR 717. If this person had deficiencies of concentration, persistence or pace that resulted 16 in a failure to complete tasks in a timely manner, this person could not do Plaintiff’s past work and 17 would not keep a job. If this person had a poor ability to withstand the stress and pressures of an 18 eight-hour day, there would be no work. AR 718. 19 20 21 Medical Record 1. Physical Impairments Between April 2003 and February 2005, Plaintiff regularly complained to Dr. Henry Ho Kang 22 of cervical and lumbar pain. Among other medications, she was prescribed Naprosyn, Tylenol and 23 Klonopin. AR 198-214, 216-25, 275-90, 583-92. Between August 2004 and February 2006, 24 Plaintiff also received treatment from Dr. H. William Hawkins for low back pain, arthritis, COPD 25 and asthma. Among other medications, she was prescribed Vicodin and Soma. AR 301-07, 312-21, 26 327-28, 330, 333-37. 27 28 On June 22, 2004, Dr. Jagdev Singh summarized Plaintiff’s treatment for her hoarse voice. 6 1 Plaintiff had a benign condition called amyloidosis and was a chronic smoker. She required multiple 2 biopsies of her larynx over the years. Plaintiff claimed that she could not work as a waitress because 3 she was unable to raise her voice over the background noise to communicate with customers. Dr. 4 Singh last saw Plaintiff in November 2003. At that time, he diagnosed her with chronic hoarseness 5 secondary to benign amyloidosis in the laryngeal vocal cords. There were no other positive findings 6 from an “ENT point of view.” AR 245-46. 7 On August 5, 2004, Dr. Tahir Hassan completed a consultative internal medicine evaluation. 8 On physical examination, Plaintiff’s spine range of motion was within normal limits. She had “mild 9 crepts” in both knee joints. Dr. Hassan diagnosed back pain/knee pain secondary to possible 10 degenerative joint disease. She also had controlled hypertension and stable asthma, along with 11 migraine headaches, depression/anxiety and vocal cord paralysis with hoarseness. Dr. Hassan opined 12 that Plaintiff could lift 50 pounds occasionally, 25 pounds frequently, and could stand and walk with 13 normal breaks for less than 6 hours in an 8-hour workday. She had no limitations for pushing and 14 pulling in her extremities. She had postural limitations for climbing, balancing, stooping, kneeling, 15 crouching and crawling due to back and knee pain. She had some limitations for communication 16 over the phone due to hoarseness. She had environmental limitations of fumes, dust and gasses due 17 to asthma. She had no manipulative or visual limitations. AR 247-49. 18 19 20 21 22 Dr. Hassan also completed a Medical Source - Vendor Questions form. He opined that Plaintiff experienced exertional dyspnea after ½ block. AR 250. Chest x-rays completed on December 25, 2004, and on September 25, 2005, showed no evidence of acute disease. AR 323, 308. Plaintiff saw Dr. Singh on September 21, 2005. On examination, Plaintiff’s left vocal cord 23 was slightly hypertrophic, but the remainder of the examination was normal. AR 296. 24 X-rays of Plaintiff’s right elbow dated May 31, 2006, were negative. AR 600. 25 A lumbar spine x-ray completed on July 13, 2006, showed a questionable hairline fracture in 26 27 28 the para interarticularis of L5 on the right side. There were no changes of arthritis. AR 427. From September 2006 through August 2008, Plaintiff periodically received treatment from 7 1 2 3 4 5 Dr. Kang for cervical and lumbar back pain and shoulder. AR 568-82, 638-43. In August 2008, Plaintiff’s low back syndrome was fairly controlled with medications. However, she was to have an x-ray of her lumbar spine because of pain. AR 629. 2. Mental Impairments On August 2, 2002, Joe Torres, LCSW, assessed Plaintiff at Kings View Counseling Center. 6 Plaintiff complained of insomnia, mood swings, a depressed mood, fatigue and hearing voices. On 7 mental status exam, Plaintiff’s affect was appropriate, but her mood was depressive and her memory 8 and insight were impaired. She had psychomotor retardation. Mr. Torres diagnosed depressive 9 disorder NOS, alcohol dependence in full remission and rule out bipolar disorder. He also indicated 10 that Plaintiff was socially isolated and worked part time. She was referred for a medical evaluation, 11 but did not want psychotherapy. AR 459-61. 12 In September 2002, Plaintiff reported auditory hallucinations to Dr. Jocelyn Aquino, a 13 psychiatrist at Kings View Counseling Centers. Plaintiff identified voices telling her self- 14 deprecatory remarks. She also reported racing thoughts. However, she continued her schooling 15 despite the symptoms. AR 456. 16 On October 17, 2002, Dr. Shireen R. Damania completed a consultative psychiatric 17 evaluation. On mental status examination, Plaintiff’s mood was depressed and her affect was 18 appropriate. There was no evidence of hallucinations, delusions or a thought disorder. Dr. Damania 19 diagnosed Plaintiff with depressive disorder not otherwise specified and assigned her a Global 20 Assessment of Functioning (“GAF”) of 55. Dr. Damania noted no difficulties in memory, 21 concentration, persistence or pace, but Plaintiff appeared clinically depressed. She was able to 22 understand, carry out, and remember simple as well as one- and two-step job instructions. She was 23 able to respond appropriately to coworkers, supervisors and the public, but would have difficulty 24 responding appropriately to usual work situations and dealing with changes in a routine work setting 25 because of subjective allegations of fatigue and her clinical depression. AR 462-65. 26 In February 2003, Plaintiff reported to Dr. Herbert A. Cruz, a psychiatrist at Kings View 27 Counseling Centers, that this was the best she had felt in years. Dr. Cruz indicated that Plaintiff had 28 8 1 been tolerating her Abilify well and they would continue to pursue the lowest optimal dosing, 2 especially since it had been of “such great benefit.” AR 242. 3 On May 5, 2003, Dr. Cruz noted that Plaintiff ran out of medications for three weeks and 4 began to re-experience anxiety and depression. Dr. Cruz indicated that Plaintiff would be given 5 Klonopin for one week, while her Abilify “kicks in.” AR 241. 6 7 8 9 10 On July 7, 2003, Dr. Cruz discussed termination and transfer of care. Plaintiff appeared to be stable except for difficulty sleeping. Dr. Cruz prescribed Ambien. AR 240. On August 4, 2003, Dr. Orlando T. Collado, a psychiatrist at Madera County Behavioral Health Services, opined that Plaintiff was compliant with her medication and her progress was stable. AR 239. 11 On October 16, 2003, Plaintiff was admitted to Community Behavioral Health Center on a 12 5150 hold. She was making statements that she was depressed and could take pills in an overdose 13 and suicide attempt. A mental status examination on admission showed a depressed mood, 14 dysphoric affect, and suicidal ideation. During her hospital stay, Abilify and Lexapro were started. 15 She had a short hospital stay with “notable quick improvements.” AR 153. On October 19, 2003, 16 Plaintiff requested discharge. Her 5150 was expiring. She denied dysphoria or any self harm 17 ideation. Her final diagnosis was bipolar disorder, depressed, with a GAF of 45. She was to 18 continue Lexapro and Abilify. AR 152, 154. 19 On October 21, 2003, Plaintiff reported to Dr. Collado that she had been released from the 20 hospital. She was non-compliant with her medication and her mood was anxious. She was to 21 continue Abilify and increase Klonopin. AR 237-38. 22 On November 24, 2003, Plaintiff told Dr. Collado that she was feeling more depressed with 23 no motivation. On mental status exam, her affect was blunted, her mood was depressed and her 24 behavior was hostile. AR 235. 25 26 27 28 On December 29, 2003, Dr. Collado noted that Plaintiff was anxious with a blunted affect and reports of depression. Her progress was unchanged. AR 233. On February 23, 2004, Dr. Collado reported that Plaintiff continued to do well with her 9 1 2 medications. AR 231. On March 20, 2004, Dr. Ekram Michiel conducted a consultative psychiatric evaluation. 3 Plaintiff complained of anxiety attacks, depression, suicidal thoughts, inability to sleep and anger. 4 She could take care of her personal hygiene and household chores. On mental status examination, 5 her mood was depressed and her affect was slightly restless. Her thought process was goal-directed 6 and her thought content was not delusional. Dr. Michiel diagnosed Plaintiff with an anxiety 7 disorder, NOS, and assigned her a GAF of 60-65. He opined that Plaintiff could maintain attention 8 and concentration and carry out one or two step simple job instructions. She also was able to relate 9 and interact with co-workers, supervisors and the general public. She was unable to carry out an 10 11 extensive variety of technical and/or complex instructions. AR 178-80. On April 21, 2004, Dr. Middleton, a state agency consultant, completed a Psychiatric Review 12 Technique form. Dr. Middleton diagnosed Plaintiff as bipolar, with anxiety not otherwise specified 13 and post traumatic stress disorder. She had mild to moderate restriction of activities of daily living, 14 mild to moderate difficulties in maintaining social functioning and mild to moderate difficulties in 15 maintaining concentration, persistence or pace. AR 251-64. 16 Dr. Middleton also completed a Mental Residual Functional Capacity Assessment form. Dr. 17 Middleton opined that Plaintiff had moderate limitations in the ability to understand and remember 18 detailed instructions and in the ability to carry out detailed instructions. She had no other significant 19 limitations. AR 268-69. 20 21 22 On April 27, 2004, Plaintiff showed good response to her current medications, but reported occasional episodes of anxiety and depression. AR 229-30. On June 22, 2004, Dr. Collado noted “marked improvement” in Plaintiff’s progress. She was 23 to continue Klonopin, Abilify, and Zoloft, along with Restoril for insomnia. AR 227. In August 24 2004, Dr. Collado again noted “marked improvement.” AR 351. 25 On September 2, 2004, Dr. Collado opined that Plaintiff was not mentally and/or physically 26 fit for gainful employments as a result of her bipolar disorder and PTSD. Dr. Collado believed this 27 inability would continue for 6 months to 1 year. Plaintiff had a depressive syndrome characterized 28 10 1 by anhedonia or pervasive loss of interest in almost all activities, sleep disturbance, psychomotor 2 agitation or retardation and thoughts of suicide. She also had a manic syndrome characterized by 3 hyperactivity, easy distractability and hallucinations, delusions or paranoid thinking. Plaintiff also 4 had a bipolar syndrome with a history of episodic periods of both manic and depressive syndromes, 5 along with mood swings. Dr. Collado opined that Plaintiff had slight restriction of her activities of 6 daily living and slight difficulties in maintaining social functioning. She often had deficiencies of 7 concentration, persistence or pace resulting in a failure to complete tasks in a timely manner. She 8 had episodes of deterioration or decompensation once or twice. Dr. Collado further opined that 9 Plaintiff had a poor ability to understand, remember and carry out an extensive variety of technical 10 and/or complex job instructions, a poor ability to maintain concentration and attention for at least 11 two hour increments due to hallucinations and a poor ability to withstand the stress and pressures 12 associated with an eight-hour work day and day-to-day work activity. Dr. Collado indicated that 13 Plaintiff had an onset date of August 2, 2002. AR 291-95. 14 In October 2004, Dr. Collado indicated that Plaintiff showed marked improvement. She was 15 to continue her medications. AR 349. On December 7, 2004, Plaintiff reported that things were 16 going well and her mood was stable. AR 347. In February and April 2005, Plaintiff’s progress 17 remained stable. AR 345-46. On June 13, 2005, Plaintiff reported that her medications were 18 working fine and her mood was stable. AR 344. 19 On October 6, 2005, Plaintiff again reported doing fine and her medications working fine. 20 Her progress was stable. AR 341. Dr. Collado also noted that Plaintiff was stable as of December 2, 21 2005. AR 342. 22 On March 2, 2006, Dr. Collado described Plaintiff’s progress as worse. She had a manic 23 episode the prior month and Restoril was not helping her sleep. Dr. Collado increased Plaintiff’s 24 Klonopin and changed her insomnia medication to Halcion. AR 339. 25 In April 2006, Plaintiff indicated that her medications were working and her mood was more 26 stable. She admitted to occasional anxiety. On mental status exam, her mood was normal and her 27 affect appropriate. Her thought process was intact and she had no hallucinations or delusions. AR 28 11 1 455. 2 3 In July 2006, Plaintiff reported that her medications were working and her mood was fairly stable. She had no hallucinations or delusions. AR 453. 4 5 On November 27, 2006, Dr. Collado indicated that Plaintiff was stable. Her affect was appropriate and her mood was normal. She had no hallucinations or delusions. AR 449. 6 In January 2007, Plaintiff reported that her medications continued to help. Although she 7 claimed mood swings, they did not cause her problems. Dr. Collado described her condition as 8 stable. AR 447. 9 10 On March 21, 2007, Plaintiff reported that her medications were working fine and her mood was stable. She had no complaints of side effects. AR 445. 11 In May 2007, Plaintiff told Dr. Collado that she had been walking and hoping to lose weight. 12 She was sleeping and her mood was stable. Dr. Collado described her progress as stable. AR 443. 13 Plaintiff’s progress continued to be stable in July, September and November 2007. AR 437, 439, 14 441. 15 16 On January 4, 2008, Plaintiff told Dr. Collado that she had heard voices three weeks prior, but they went away. Dr. Collado described her progress as “stable.” AR 435. 17 On February 12, 2008, Plaintiff reported to Dr. Collado that she had been without medication 18 for a week and was beginning to be irritable and angry. Her progress as “worse” and she was to start 19 back on her medications, including Abilify, Wellbutrin, Xanax and Restoril. AR 433. 20 21 On March 13, 2008, Plaintiff appeared anxious and reported again hearing voices. Dr. Collado noted minimal improvement in Plaintiff’s progress. AR 636. 22 On the same date, Dr. Collado completed a Psychiatric Review Technique form. He stated 23 that Plaintiff had hallucinations, a depressive syndrome and a manic syndrome. He opined that she 24 had mild functional limitations with one or two repeated episodes of decompensation. AR 593-97. 25 He further opined that Plaintiff had a fair ability to relate and interact with supervisors and co- 26 workers, a fair ability to understand, remember and carry out an extensive variety of technical and/or 27 complex job instructions, a good ability to understand, remember and carry out simple one-or-two- 28 12 1 step job instructions, a fair ability to deal with the public, and a fair ability to maintain concentration 2 and attention for at least two hour increments. However, she had a poor ability to withstand the 3 stress and pressures associated with an eight-hour work day and day-to-day work activity. Dr. 4 Collado commented that Plaintiff’s response to treatment was good, but she had occasional episodes 5 of hallucinations and agitation when under stress. AR 598. 6 7 8 9 In May 2008, Plaintiff reported that her medications were working and she was not having mood swings. Dr. Collado noted “marked improvement.” AR 634. In July 2008, Plaintiff reported that she was less anxious, was feeling good and was not worried. Dr. Collado again noted “marked improvement” in Plaintiff’s progress. AR 632. 10 ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirements through December 31, 2003, 12 and had not engaged in substantial gainful activity since October 20, 2003. The ALJ further found 13 that Plaintiff had bipolar disorder, a severe mental impairment. Despite this impairment, Plaintiff 14 retained the residual functional capacity (“RFC”) to perform work without exertional limitations. 15 She could lift up to 100 pounds occasionally, 50 pounds frequently, could sit, stand or walk for 6 16 hours in an 8-hour day. She also had the mental capacity to understand, remember, and carry out 17 simple routine tasks, to maintain attention, concentration, persistence, or pace, to relate to and 18 interact with others, to adapt to the usual changes in work settings and to adhere to safety rules. 19 With this RFC, the ALJ concluded that Plaintiff could not perform any past relevant work, but she 20 could perform other jobs in the national economy. AR 32-38. 21 SCOPE OF REVIEW 22 Congress has provided a limited scope of judicial review of the Commissioner’s decision to 23 deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the 24 Court must determine whether the decision of the Commissioner is supported by substantial 25 evidence. 42 U.S.C. 405 (g). Substantial evidence means “more than a mere scintilla,” Richardson 26 v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 27 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might 28 13 1 accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole 2 must be considered, weighing both the evidence that supports and the evidence that detracts from the 3 Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the 4 evidence and making findings, the Commissioner must apply the proper legal standards. E.g., 5 Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the 6 Commissioner’s determination that the claimant is not disabled if the Commissioner applied the 7 proper legal standards, and if the Commissioner’s findings are supported by substantial evidence. 8 See Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). 9 REVIEW 10 In order to qualify for benefits, a claimant must establish that she is unable to engage in 11 substantial gainful activity due to a medically determinable physical or mental impairment which has 12 lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 13 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such 14 severity that she is not only unable to do her previous work, but cannot, considering her age, 15 education, and work experience, engage in any other kind of substantial gainful work which exists in 16 the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden 17 is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 In an effort to achieve uniformity of decisions, the Commissioner has promulgated 19 regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. 20 §§ 404.1520(a)-(g); 416.920(a)-(g). Applying the process in this case, the ALJ found that Plaintiff: 21 (1) had not engaged in substantial gainful activity since October 23, 2003; (2) has an impairment or a 22 combination of impairments that is considered “severe” (bipolar disorder) based on the requirements 23 in the Regulations (20 C.F.R. §§ 404.1520(c); 416.920(c); (3) does not have an impairment or 24 combination of impairments which meets or equals one of the impairments set forth in Appendix 1, 25 Subpart P, Regulations No. 4; (4) cannot perform her past relevant work; but (5) can perform other 26 jobs in the national economy. AR 32-39. 27 Here, Plaintiff contends that the ALJ erred by: (1) rejecting the opinion of her treating 28 14 1 psychiatrist, Dr. Collado; (2) rejecting the opinion of the consultative examiner, Dr. Hassan; and (3) 2 discounting her credibility. 3 4 5 6 7 DISCUSSION A. Treating Physician Opinion - Mental Impairment Plaintiff first argues that the ALJ failed to provide specific and legitimate reasons for rejecting the opinion of her treating psychiatrist, Dr. Collado. Treating physicians are owed considerable deference. Edlund v. Massanari, 253 F.3d 1152, 8 1157 (9th Cir.2001). However, their opinions can “be rejected for specific and legitimate reasons 9 that are supported by substantial evidence in the record.” Id. (internal quotation marks omitted). The 10 “reasons must be sufficiently specific to make clear to any subsequent reviewers the weight the 11 adjudicator gave to the treating source's medical opinion and the reasons for that weight.” Id. 12 (internal quotation marks omitted). “The ALJ is responsible for determining credibility, resolving 13 conflicts in medical testimony, and resolving ambiguities.” Id. at 1156. 14 Here, the ALJ gave limited weight to Dr. Collado’s statement in August 2004 that Plaintiff 15 would have difficulty maintaining attention and concentration for 2-hour increments or withstanding 16 work stress because the statement was unsupported by his treatment records. AR 36. Plaintiff 17 contends that this reason is not specific or legitimate primarily because of Dr. Collado’s treatment 18 relationship with her. However, a lack of supporting clinical findings is a valid reason for rejecting a 19 treating physician’s opinion. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); see also 20 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly 21 discounted or assigned minimal weight to treating physician opinions that were unsupported by 22 objective evidence and that lacked substantive medical findings); Holohan v. Massanari, 246 F.3d 23 1195, 1202 n. 2 (9th Cir. 2001) (stating that a physician's opinion may be “entitled to little if any 24 weight” where the physician “presents no support for her or his opinion”). In discounting the 25 statement, the ALJ explained that Dr. Collado based his 2004 opinion on Plaintiff’s history of 26 hallucinations, but contemporaneous treatment records showed that Plaintiff was doing fine and was 27 stable on medications. AR 231, 227, 344-47, 349, 351. The ALJ further noted that with one 28 15 1 exception in 2008, Plaintiff’s treatment records did not show that she had auditory hallucinations.2 2 AR 36. Plaintiff does not cite any contradictory evidence. Indeed, Plaintiff admits that Dr. Collado 3 “successfully treated” her “most extreme” mental impairments and symptoms. Opening Brief, pp. 9- 4 10. 5 Plaintiff attempts to argue that Dr. Collado’s successful treatment was not inconsistent with a 6 caution that Plaintiff could not withstand the stresses and pressure of an 8-hour workday because of 7 her bipolar disorder. Plaintiff provides no support for this argument. According to the record, Dr. 8 Collado opined in 2008 that Plaintiff had a poor ability to withstand the stress and pressures 9 associated with an eight-hour work day and day-to-day work activity because of occasional episodes 10 of hallucinations and agitation when under stress. AR 598. As discussed above, however, Dr. 11 Collado’s treatment records did not identify repeated episodes of hallucinations. Dr. Collado also 12 opined that Plaintiff only had mild functional limitations with one or two repeated episodes of 13 decompensation. She also had a fair ability to relate and interact with supervisors and co-workers, a 14 fair ability to understand, remember and carry out an extensive variety of technical and/or complex 15 job instructions, a good ability to understand, remember and carry out simple one-or-two-step job 16 instructions, a fair ability to deal with the public, and a fair ability to maintain concentration and 17 attention for at least two hour increments. 18 AR 593-97. The ALJ did not reject Dr. Collado’s opinion in its entirety. Rather, the ALJ assigned greater 19 weight to Dr. Collado’s 2008 assessment that Plaintiff had a good capacity to carry out simple tasks 20 and a fair capacity to interact with others. AR 36. Plaintiff fails to acknowledge the ALJ’s 21 determination that Dr. Collado’s assessment was consistent with the consultative examiner, Dr. 22 Michiel, and the state agency medical consultants. AR 36, 178-80, 268-69. The ALJ gave 23 substantial weight to Dr. Michiel’s opinion that Plaintiff could perform one or two step simple job 24 instructions and relate to and interact with coworkers, supervisors, and the general public. AR 36. 25 An examining physician’s opinion constitutes substantial evidence. Tonapetyan v. Halter, 242 F.3d 26 2 27 The record contains two reports of auditory hallucinations in 2008. AR 434-35, 636. This additional episode does not substantially alter the ALJ’s determination. 28 16 1 1144, 1149 (9th Cir. 2001) (consultive examiner’s opinion is substantial evidence). 2 The ALJ also assigned substantial weight to the opinions of the state agency medical 3 consultants. AR 36. The reports of non-examining advisors “need not be discounted and may serve 4 as substantial evidence when they are supported by other evidence in the record and are consistent 5 with it.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The state agency consultants 6 found that Plaintiff could perform simple repetitive tasks, which was consistent with the conclusions 7 of Plaintiff’s treating physician and the consultative examiner. 8 9 10 11 Based on the above, the ALJ’s analysis of the medical opinions regarding Plaintiff’s mental impairment is supported by substantial evidence and free of legal error. B. Opinion of Consultative Examiner - Physical Impairments Plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for rejecting Dr. 12 Hassan’s limitations on lifting, sitting, standing and walking. Contrary to Plaintiff’s assertion, an 13 ALJ need not believe everything a physician sets forth, and may accept all, some, or none of the 14 physician's opinions. See Magallanes, 881 F.2d at 753-754. Here, the ALJ gave weight to Dr. 15 Hassan’s findings that Plaintiff had normal range of movement in her neck, back and the joints of her 16 extremities, and only slight crepitus in her knees during range of movement testing. AR 356. 17 However, the ALJ assigned little weight to Dr. Hassan’s opinion that Plaintiff could stand or walk 18 less than 2 hours, sit less than 6 hours and walk less than one block without knee pain and shortness 19 of breath. The ALJ first explained that these limitations were based on Plaintiff’s self-reported 20 symptoms. An ALJ may properly disregard a physician’s opinion that is premised on a claimant’s 21 properly discounted subjective complaints. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989). As 22 discussed more fully below, the ALJ properly discounted Plaintiff’s subjective complaints. 23 The ALJ also discounted the standing, walking and sitting limitations because they were 24 contradicted by Dr. Hassan’s own examination findings. AR 35. As stated above, the lack of 25 supporting clinical findings is a valid reason for rejecting a physician’s opinion. See Magallanes, 26 881 F.2d at 751; see also Batson, 359 F.3d at 1195 (affirming ALJ’s rejection of physician opinion 27 that was unsupported by substantive medical findings). In particular, the ALJ cited Dr. Hassan’s 28 17 1 contradictory findings that Plaintiff had normal range of movement in her neck, back and joints of 2 her extremities and only slight crepitus in her knees during range of movement testing. AR 35, 247- 3 49. Plaintiff counters that Dr. Hassan’s opinion was not based solely on clinical observations, but 4 also on a review of records from her treating physicians demonstrating back and knee pain. Opening 5 Brief, p. 10. Plaintiff’s argument is based on supposition and is not supported by the administrative 6 record. Although Dr. Hassan stated that he reviewed Plaintiff’s records, there is no identification of 7 those records. Moreover, Dr. Hassan clearly stated that Plaintiff’s “assessment [was] based on the 8 physical exam” he performed. AR 249. 9 Accordingly, the ALJ provided specific, legitimate reasons supported by substantial evidence 10 for discounting Dr. Hassan’s standing, walking and sitting limitations. 11 C. 12 Credibility Determination Plaintiff argues that the ALJ failed to provide good reasons to discount her credibility. The 13 Commissioner counters that the ALJ properly considered Plaintiff’s subjective complaints. The 14 Court agrees. 15 In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), the Ninth Circuit summarized the 16 pertinent standards for evaluating the sufficiency of an ALJ’s reasoning in rejecting a claimant’s 17 subjective complaints: 18 19 20 21 An ALJ is not “required to believe every allegation of disabling pain” or other non-exertional impairment. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989). However, to discredit a claimant’s testimony when a medical impairment has been established, the ALJ must provide “‘specific, cogent reasons for the disbelief.’” Morgan, 169 F.3d at 599 (quoting Lester, 81 F.3d at 834). The ALJ must “cit[e] the reasons why the [claimant's] testimony is unpersuasive.” Id. Where, as here, the ALJ did not find “affirmative evidence” that the claimant was a malingerer, those “reasons for rejecting the claimant’s testimony must be clear and convincing.” Id. 22 23 27 Social Security Administration rulings specify the proper bases for rejection of a claimant’s testimony. . . An ALJ’s decision to reject a claimant’s testimony cannot be supported by reasons that do not comport with the agency’s rules. See 67 Fed.Reg. at 57860 (“Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases.”); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ’s decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that an ALJ may 28 18 24 25 26 1 3 consider in weighing a claimant’s credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and “unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59. 4 Here, the ALJ questioned Plaintiff’s credibility for several reasons. First, the ALJ cited 5 evidence that Plaintiff had exaggerated symptoms and limitations. For example, the ALJ noted 6 medical evidence showing chronic hoarseness, but no opinion from her throat specialist or treating 7 physicians supporting Plaintiff’s claimed whispering limitation. AR 37, 697-98, 707. The ALJ also 8 noted that Plaintiff testified to “very restrictive physical limitations on sitting, standing, and 9 walking,” but the medical records did not establish any impairment that would cause these 2 10 restrictions. AR 37. An ALJ may properly consider exaggerated complaints in discounting a 11 claimant's credibility. Tonapeytan, 242 F.3d at 1148 (ALJ may use “ordinary techniques of 12 credibility evaluation,” including consideration of inconsistent statements). Smolen v. Chater, 80 13 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may consider ordinary techniques of credibility evaluation, 14 such as prior inconsistent statements and other testimony that appears less than candid). 15 Second, the ALJ found Plaintiff less than credible because she made inconsistent statements 16 and engaged in inconsistent activities. Despite her alleged physical impairments, Plaintiff was 17 walking, jogging and bike-riding eight months before the September 2008 hearing. Plaintiff also 18 told Dr. Collado in May 2008 that she was walking every day although she testified that she had 19 stopped exercising eight months prior to the September 2008 hearing. AR 37, 634, 703. 20 Additionally, Plaintiff testified to side effects from her medication, including sleepiness and 21 difficulty concentrating, but according to treatment notes she only complained of weight gain and 22 repeatedly denied any side effects. AR 37, 339-52, 433-55, 593-98, 632-37. The ALJ properly 23 determined that these inconsistencies diminished Plaintiff’s credibility. See Thomas v. Barnhart, 24 278 F.3d 947, 958-59 (9th Cir.2002); Morgan v. Comm'r, 169 F.3d 595, 600 (9th Cir.1999) 25 (claimant whose testimony was contradicted by medical records and admitted daily activities 26 properly found not credible); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 27 2009) (an ALJ may weigh inconsistencies between a claimant’s testimony and his or her conduct and 28 19 1 daily activities). 2 Third, the ALJ discounted Plaintiff’s allegations based on a lack of objective medical 3 evidence. “While subjective pain testimony cannot be rejected on the sole ground that it is not fully 4 corroborated by objective medical evidence, the medical evidence is still a relevant factor in 5 determining the severity of the claimant's pain and its disabling effects.” Rollins v. Massanari, 261 6 F.3d 853, 857 (9th Cir.2001). In addition to the examples above, the ALJ rejected Plaintiff’s 7 testimony regarding continued auditory hallucinations, because her mental health records showed 8 that she had been free of hallucinations except for an episode in January 2008 and an episode in 9 March 2008. AR 37, 434-35, 636. Plaintiff also testified to self-isolation and agoraphobia, but these 10 11 conditions were not identified in her mental health records. AR 37. Fourth, the ALJ considered records from Drs. Kang and Hawkins after May 2004, which 12 demonstrated that Plaintiff obtained prescriptions for narcotic medications from both physicians at 13 the same time and for the same complaints. AR 37. Plaintiff claims that the ALJ’s determination is 14 “an unsupported imputation of bad character” and, even if true, would not diminish the physicians’ 15 opinions that she could not sustain day-to-day-work. Opening Brief, p. 13. However, an ALJ may 16 properly consider drug-seeking behavior in assessing credibility. See Edlund, 253 F.3d at 1157. The 17 ALJ explained that Plaintiff’s course of action suggested a purposeful exaggeration of her pain 18 symptoms, which undermined her testimony about limitations secondary to pain. AR 37. 19 Fifth, the ALJ considered Plaintiff’s testimony that she could not maintain attention for more 20 than 15-20 minutes, but observed that she had no difficulty maintaining attention during her 50- 21 minute hearing. AR 37. An ALJ’s observations of a claimant’s functioning at the hearing are 22 permissible as part of the overall credibility assessment. See Orn, 495 F.3d at 639. 23 As a final matter, the ALJ noted that Plaintiff had “a poor work history,” which lessened her 24 credibility. AR 37. A poor work history is a relevant factor in a credibility determination. See 25 Thomas, 278 F.3d at 959 (finding a claimant’s “extremely poor work history” negatively affected her 26 credibility regarding her inability to work). 27 28 Based on the above, the ALJ has provided specific, cogent reasons for discounting Plaintiff's 20 1 credibility. 2 RECOMMENDATION 3 The Court finds that the ALJ’s decision is supported by substantial evidence and is based on 4 proper legal standards. Accordingly, the Court RECOMMENDS that Plaintiff’s appeal from the 5 administrative decision of the Commissioner of Social Security be DENIED and that JUDGMENT 6 be entered for Defendant Michael J. Astrue and against Plaintiff Betty Louise Gillespie. 7 These findings and recommendations will be submitted to the Honorable Lawrence J. O’Neill 8 pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30) days after being served 9 with these findings and recommendations, the parties may file written objections with the court. The 10 document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” 11 The parties are advised that failure to file objections within the specified time may waive the right to 12 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: 3b142a October 7, 2011 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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