Opinion
For Steve James Newman, Plaintiff: Erika Bailey Drake, Roger David Drake, LEAD ATTORNEY, Drake and Drake, Calabasas, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Kevin Gregory Gill, LEAD ATTORNEY, SAUSA - Social Security Administration, San Francisco, CA.
ORDER AFFIRMING DECISION OF ADMINISTRATIVE LAW JUDGE
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Newman challenges the denial of his application for Social Security disability insurance benefits. The Administrative Law Judge (ALJ) found that Plaintiff was not disabled and denied benefits.
On appeal, Plaintiff challenges the ALJ's rejection of. (a) the opinion of a treating psychiatrist; and (b) Plaintiff's testimony regarding the severity of his symptoms. Plaintiff also argues that the ALJ presented an incomplete hypothetical to the vocational expert based on the omission of limitations from his residual functional capacity (RFC).
However, the Court concludes that the ALJ identified lawful reasons to support the adverse decisions regarding the psychiatrist's opinion and Plaintiff's credibility. As a result, there was no error in the questioning of the vocational expert. The Court therefore affirms the ALJ's decision to deny benefits.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for benefits based on various physical and mental conditions. Following an administrative hearing, the ALJ found that several of Plaintiff's conditions (including back pain, vertigo, and mental health conditions) constituted " severe impairments" as that term is used under federal regulations. (AR 40.)
The ALJ determined that Plaintiff had the RFC to perform medium work with additional limitations. (AR 43.) In establishing the RFC, the ALJ expressly rejected the more restrictive limitations that a treating psychiatrist recommended. (AR 44.) The ALJ also disbelieved Plaintiff's testimony regarding the extent of his pain and symptoms. (AR 45.)
A vocational expert testified that that an individual with Plaintiff's RFC could perform several jobs in the local and national economies. (AR 46, 74.) From this, the ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 47.)
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). A court must uphold the ALJ's conclusion even if the evidence in the record " is susceptible to more than one rational interpretation." Ludwig v. Astrue, 681 F.3d 1047, 1052 (9th Cir. 2012) (quotation omitted). A reviewing court must consider " the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Hill, 698 F.3d at 1159 (quotation omitted).
A reviewing court " leave[s] it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). If the evidence " can reasonably support either affirming or reversing the decision, " this Court " may not substitute [its] judgment for that of the Commissioner" or the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
IV. DISCUSSION
A. Rejection of Treating Psychiatrist's Opinion (Claim 1)
Plaintiff contends that the ALJ improperly rejected limitations that a treating psychiatrist in setting Plaintiff's RFC.
1. Facts and Decision Below
The psychiatrist, Dr. Huffman, treated Plaintiff for his mental conditions for several years. In connection with Plaintiff's disability application, Dr. Huffman filled out a mental impairment questionnaire. (AR 340-48.) The psychiatrist diagnosed Plaintiff with: psychotic disorder not otherwise specified; recurrent major depression; and polysubstance dependence in remission.
Dr. Huffman opined that Plaintiff essentially was unable to work. Specifically, the psychiatrist checked the boxes indicating the Plaintiff was " seriously limited" in several areas of mental functioning in the workplace. (AR 342.) Dr. Huffman also opined that Plaintiff was " unable to meet competitive standards" in his ability to maintain attention, regular attendance, or other job-related tasks. (Id.) More broadly, Dr. Huffman checked the boxes indicating the Plaintiff was markedly limited in his activities of daily living and in maintaining concentration, persistence, and pace. (AR 344-45.) In explaining these limitations, Dr. Huffman wrote that " severe anxiety in response to outside stressors seems to worsen concentration/attention and impairs his ability to follow through on completing tasks." (Id.)
In the written decision, the ALJ explicitly rejected Dr. Huffman's opinions as " internally inconsistent with progress notes [ ] reflecting vague complaints and good response to medication." (AR 44.) In a summary of the medical evidence earlier in the decision, the ALJ referred to several sections of Dr. Huffman's notes that indicated that Plaintiff's condition improved with prescribed medication. (AR 42.) The records to which the ALJ cited corroborated those statements, including Plaintiff's perceived improvement with treatment. (AR 372-73, 376.)
Instead, the ALJ gave " significant weight" to the opinions -- and less restrictive RFC limitations -- of examining and non-examining mental health professionals. The examining psychologist opined, among other things, that Plaintiff could perform " simple and repetitive" tasks in the workplace without limits on interactions with others. (AR 287.) That practitioner also opined that Plaintiff could maintain regular attendance and " complete a workday and workweek without interruption from a psychiatric condition." (Id.)
Even so, the ALJ included several considerable mental health limitations in Plaintiff's RFC. The RFC limited Plaintiff to jobs in which he performed " no greater than simple repetitive tasks requiring only occasional interaction with coworkers and supervisors and only incidental contact with the general public." (AR 43.)
2. Relevant Law
" In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record." Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (quotations omitted). In addition, an ALJ's findings " must be supported by specific, cogent reasons." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). " The ALJ must set out in the record his reasoning and the evidentiary support for his interpretation of the medical evidence." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the ALJ rejects significant probative evidence, the ALJ must explain why. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).
An ALJ generally gives the most weight to medical evidence from a claimant's treating physician, and progressively less weight to the opinions of examining and nonexamining physicians. Under agency regulations, a treating physician's opinion as to the nature and severity of an impairment will be given controlling weight if it is " well-supported by medically acceptable clinical and laboratory diagnostic techniques and it not inconsistent with the other substantial evidence in [the] case record." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (quoting 20 C.F.R. § 404.1527).
When a treating physician's opinion is contradicted by another professional's evaluation, the ALJ " must provide specific and legitimate reasons supported by substantial evidence" for rejecting the treating physician's opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quotation omitted). The ALJ satisfies this burden by detailing and summarizing the facts and conflicting medical evidence and stating the ALJ's interpretations and findings. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ may also satisfy this burden by pointing to a doctor's own treatment notes that are inconsistent with his or her opinion. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009); Tommasetti, 533 F.3d at 1041 (" incongruity" between a treating physician's opinion and medical records is a specific and legitimate reason for rejecting the treating physician's opinion of a claimant's limitations); Moua v. Colvin, 563 F.App'x 545, 546 (9th Cir. 2014) (same).
3. Analysis
The ALJ rejected the opinion of Plaintiff's treating psychiatrist regarding Plaintiff's mental condition in establishing his RFC. Because that opinion was contradicted by the opinions of other practitioners, the ALJ was required to identify a specific and legitimate reason supported by substantial evidence to reject the opinion. Lester, 81 F.3d at 830.
The ALJ did so here. In the written decision, the ALJ found Dr. Huffman's dour opinion of Plaintiff's condition and the strict work-related limitations he recommended to be inconsistent with the psychiatrist's contemporaneous notes. Dr. Huffman's notes are replete with positive comments regarding Plaintiff's status, attitude, and progress during treatment. Those notes also reflect the vagueness of some of Plaintiff's self-reported symptoms. As the trier of fact, the ALJ was entitled to conclude that the practitioner's opinions on the questionnaire diverged from the real-time observations during treatment.
The ALJ determined that Dr. Huffman's treatment notes did not support the dire limitations that he recommended, and did not accurately reflect Plaintiff's condition. That conclusion provided a specific and acceptable basis for rejecting Dr. Huffman's opinion and proposed RFC. Valentine, 574 F.3d at 693; Tommasetti, 533 F.3d at 1041. Moreover, although there clearly was evidence in the notes supporting Plaintiff's need for ongoing mental health treatment --proof that may have been " susceptible to more than one rational interpretation" -- substantial evidence supported the ALJ's analysis of that evidence. Ludwig, 681 F.3d at 1052; Hill, 698 F.3d at 1158. Further, the Court observes that, despite rejecting Dr. Huffman's opinion, the ALJ nevertheless included several important mental-health-related conditions (particularly regarding Plaintiff's inability to work with and around others) when establishing Plaintiff's RFC. The Court affirms the ALJ's determination regarding Dr. Huffman's opinion.
Buried in Plaintiff's argument section is his contention that the ALJ erred by not expressly analyzing a single-page, handwritten letter from Plaintiff's counselor. (Docket # 17 at 7.) The Court summarily rejects this argument. The only aspect of the counselor's letter that supports Plaintiff's claim is the observation that Plaintiff reported that he continued to hear voices. (AR 339.) However, that evidence was cumulative to the other psychiatric evidence, and merely established an aspect of Plaintiff's condition that the ALJ did not dispute or reject. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ not required to discuss every piece of cumulative evidence regarding Plaintiff's symptoms). If the ALJ erred by omitting any discussion of this evidence in the written decision, Plaintiff failed to convincingly demonstrate that it was reversible (and not harmless) error by the agency. McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).
B. Adverse Credibility Determination (Claim 2)
Plaintiff argues that the ALJ improperly rejected Plaintiff's testimony regarding his symptoms and limitations. (Docket # 17 at 17.)
1. Facts and Decision Below
Plaintiff testified that his anxiety, vertigo, and back pain prevented him from working. (AR 50.) Plaintiff testified that he could not work because of severe vertigo triggered by changing positions. (AR 60.) He also claimed that his back pain prevented him from performing a " job where [he's] sitting down, " noting that a 90-minute drive to the administrative hearing " just killed me" due to his back condition. (AR 69.)
The ALJ did not believe Plaintiff's symptom testimony. In the written decision, the ALJ provided several specific reasons why she found that Plaintiff's testimony was not credible. The ALJ determined that Plaintiff was not believable because " he is no longer taking prescribed medication for vertigo, despite his documented admission that prescribed medicine improved this condition in Exhibit 1F, and testimony at the hearing." (AR 45.) The ALJ also made a conservative care finding; the ALJ wrote that Plaintiff's testimony was " undermined by his use of only over-the-counter ibuprofen for alleged back pain." (Id.)
2. Relevant Law
Certain disability decisions require an evaluation of a claimant's subjective symptomatic complaints. An ALJ may not " arbitrarily discredit a claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). If an ALJ determines that there is objective medical evidence of an underlying impairment that reasonably could cause the alleged pain or symptoms, the ALJ may disregard the individual's statements regarding the severity of those symptoms if, in the absence of evidence that the claimant is malingering, the ALJ provides " specific, clear and convincing reasons" for rejecting the claimant's testimony. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citation omitted).
An ALJ may consider a variety of factors in weighing a claimant's believability, including ordinary techniques of credibility evaluation (including testimony by the claimant that " appears less than candid"), " unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, " and the claimant's daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quotations omitted). An ALJ may specifically consider inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct" and statements to others. Thomas, 278 F.3d at 958-59 (brackets in original).
An ALJ may discredit a claimant's testimony for " lack of consistent treatment" or because the claimant " did not seek any treatment or evaluation" for the condition. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). An ALJ may also determine that a claimant lacks credibility based on evidence of conservative treatment. Parra, 481 F.3d at 750-51. A claimant's favorable response to conservative treatment can undermine the claimant's testimony and reports of disabling pain. Tommasetti, 533 F.3d at 1040. Numerous judges of this Court have concluded that the use of anti-inflammatory or pain medications that are relatively low on the " analgesic ladder" may constitute conservative treatment. Medel v. Colvin, No. ED CV 13-2052 JPR, 2014 WL 6065898 at *8 (C.D. Cal. 2014) (ALJ properly discounted credibility based on Plaintiff's conservative treatment of only Vicodin and Tylenol); Stephenson v. Colvin, No. CV 13-8303 AGR, 2014 WL 4162380 at *9 (C.D. Cal. 2014) (same); Morris v. Colvin, No. CV 13-6236 OP, 2014 WL 2547599 at *4 (C.D. Cal. 2014) (plaintiff received conservative treatment consisting of physical therapy, use of TENS unit, chiropractic treatment, Vicodin, and Tylenol).
3. Analysis
To reject Plaintiff's symptom testimony, the ALJ was required to identify at least one clear and convincing reason that was supported by substantial evidence. Burrell, 775 F.3d at 1136. The ALJ provided several such reasons that were amply supported.
The ALJ was entitled to doubt Plaintiff's testimony about his anxiety and vertigo-related symptoms based on Plaintiff's failure to follow his recommended course of treatment. Multiple records (as identified in the written decision) indicate that Plaintiff did not regularly take his prescribed medication for vertigo and his other conditions. (AR 243, 245, 375.) He failed to do so even though he reported that he had " no vertigo" when he took his medication as directed. (AR 249.) From this, the ALJ could permissibly conclude that Plaintiff's failure to follow his " prescribed course of treatment" undercut his testimony regarding the severity of his anxiety and vertigo. Ghanim, 763 F.3d at 1163.
Another reason that the ALJ gave for disbelieving Plaintiff's testimony about his pain and symptoms was the conservative and infrequent treatment he sought for his allegedly disabling back condition. Plaintiff testified that he took only over-the-counter ibuprofen (Advil) for his back pain and had not seen a doctor about his back " in a while." (AR 69.) The ALJ was entitled to conclude that Plaintiff's minimal treatment undermined his testimony about the alleged severity of his back pain. Parra, 481 F.3d at 750-51; Medel, 2014 WL 6065898 at *8. Moreover, the ALJ could permissibly conclude that Plaintiff's back pain testimony was not believable because he infrequently sought treatment for it. Burch, 400 F.3d at 681. This aspect of the ALJ's decision was clear, convincing, and adequately supported by sufficient evidence. Burrell, 775 F.3d at 1136.
The Court will not take up the remaining reasons that the ALJ identified for rejecting Plaintiff's believability as a basis for affirming the decision. Some of the reasons (Plaintiff's nominal household activities, inconsistencies in Plaintiff's explanations for the termination of previous jobs, et al.) are too trifling to support an adverse credibility determination. Orn, 495 F.3d at 639 (daily activities must relate to job-related tasks). Others (Plaintiff's alleged conservative treatment for his mental health conditions, continued smoking despite occasional asthma) may run afoul of widespread judicial holdings regarding their adequacy. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (claimant's continued smoking likely did not adversely impact her credibility because it was " certainly possible that [claimant] was so addicted to cigarettes that she continued smoking even in the face of debilitating shortness of breath and acute chemical sensitivity"); Childress v. Colvin, ED CV 14-9 MAN, 2015 WL 2380872 at *14 (C.D. Cal. 2015) (collecting cases; use of prescription antidepressants, antipsychotics, and other behavior altering medication " is not properly characterized as conservative treatment").
However, if an ALJ impermissibly relies " on one of several reasons in support of an adverse credibility determination, " the error is considered harmless if " the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citation and emphasis omitted). That is surely the case here, as the ALJ identified other legitimate reasons to disbelieve Plaintiff's testimony about his conditions.
C. Incomplete Hypothetical Question to Expert (Claim 3)
Plaintiff's remaining claim does not articulate a basis for reversing the ALJ's determination. Plaintiff contends that the hypothetical question the ALJ presented to the vocational expert regarding Plaintiff's RFC was deficient because it did not include " limitations relative to [Plaintiff's] concentration defects as identified by Dr. Huffman, or his additional limitations stemming from his asthma and vertigo." (Docket #17 at 24.)
The ALJ was not required to include those limitations in the hypothetical. An ALJ must present a vocational expert with all of the claimant's limitations, physical and mental, that are " supported by the record." Thomas, 278 F.3d at 956. However, an ALJ " is free to accept or reject restrictions in a hypothetical question that are not supported by substantial evidence." Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001).
Here, the ALJ included a restriction in Plaintiff's RFC to address his vertigo (no climbing ladders or working at unprotected heights) despite evidence indicating that the condition could be controlled with medication. However, the ALJ was not obligated to include additional, more extreme limitations based on Plaintiff's testimony and Dr. Huffman's recommendations, which, as discussed above, the ALJ properly rejected. Further, there is no evidence that plaintiff's asthma affected his ability to work. Plaintiff testified that that he wheezed " once a month or so" and made no claim that the condition was disabling or otherwise interfered with his ability to work. Because substantial evidence did not support an asthma-related restriction, the ALJ was " free to [ ] reject it" in the hypothetical. Osenbrock, 240 F.3d at 1164-65. The ALJ did not err by presenting the vocational expert with a hypothetical question that included all of claimant's limitations in the RFC that she found to be " supported by the record." Thomas, 278 F.3d at 956.
V. CONCLUSION
The ALJ's denial of Plaintiff's application for Social Security benefits was supported by substantial evidence in the record and contained no legal error. Therefore, the Court AFFIRMS the decision.
IT IS SO ORDERED.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is AFFIRMED. Judgment is hereby entered in favor of Defendant.
The Court also disregards Plaintiff's cursory claim of error regarding the ALJ's finding that Plaintiff did not meet the criteria for a listed impairment (that is, a per se finding of disability). (Docket # 17 at 5.) The written decision adequately applied the regulatory sequential analysis to Plaintiff's claim (AR 42-43.) Plaintiff's non-specific challenge is insufficient to warrant remand.