Opinion
CASE NO. 07-CV-0736 W (NLS).
August 15, 2008
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. No. 18)
Plaintiff Keyaun Stevenson ("Plaintiff") seeks judicial review of the Commissioner of Social Security's ("Commissioner" or "Defendant") determination denying him Social Security Disability Insurance ("SSDI") benefits under Title II of the Social Security Act. Plaintiff now moves for summary judgment reversing the Administrative Law Judge's ("ALJ") decision and ordering that payment of benefits be initiated forthwith. (Doc. No. 14.) Defendant opposes and has also filed a cross motion for summary judgment. (Doc. No. 15.)
On June 26, 2008, Magistrate Judge Nita L. Stormes ("Judge Stormes") issued a Report and Recommendation ("Report") advising this Court to grant Defendant's summary judgment motion and deny Plaintiffs motion for reversal and initiation of benefits. (Doc. No. 18.) Plaintiff timely objected to the Report. (Doc. No. 19.) The Court decides the matter on the papers submitted and without oral argument. See S.D. Cal. Civ. R. 7.1 (d. 1). For the reasons stated below, the Court ADOPTS the Report, GRANTS Defendant's summary judgment motion, and DENIES Plaintiff's motion for reversal and initiation of benefits.
I. BACKGROUND
The factual background of this case is more fully set forth in the Report and is incorporated herein by reference. (Doc. No. 18.)
A. Procedural History
On March 4, 2005, Plaintiff commenced an application for SSDI benefits alleging disability as of October 1, 2003. ( Administrative Record [hereinafter AR] 82-85.) Plaintiff claimed that recurrent seizures prevented him from working. ( Id. at 107.) On April 20, 2005, the Commissioner determined that Plaintiff was not disabled and denied him benefits. ( Id. at 31-35.) On June 22, 2005, Plaintiff requested reconsideration. ( Id. at 36-38.) On September 15, 2005, after reconsideration, the Commissioner again denied Plaintiff's claim. ( Id. at 39-43.)
On November 29, 2005, Plaintiff requested an administrative hearing before an ALJ. ( Id. at 44-46.) On May 9, 2006, the ALJ conducted a hearing to reconsider the merits of Plaintiffs application. (See id. at 441-86.) On June 18, 2006, the ALJ issued a written decision again denying Plaintiff's application. ( Id. at 21-28.) On August 15, 2006, Plaintiff requested an Appeals Counsel review of the ALJ's decision. ( Id. 16-18.) On March 22, 2007, the Appeals Council denied Plaintiff's request and affirmed the ALJ's decision. ( Id. at 10-12.) On July 20, 2007, after setting aside its original determination and considering additional information, the Appeals Council again denied Plaintiffs request for review. ( Id. at 5-7.) Accordingly, the ALJ's decision became the Commissioner's final decision on Plaintiff's application. ( Id.)
On April 23, 2007, having exhausted all administrative remedies, Plaintiff commenced this action challenging the Commissioner's final decision. (Doc. No. 1.) Pending before the Court are the parties' opposing motions for summary judgment. (Doc Nos. 14, 15.)
B. Plaintiff's Administrative Hearing on Disabled Status
At the May 9, 2006 administrative hearing, the ALJ heard testimony from vocational expert Gloria Lasoff ("Lasoff"), medical expert Dr. Judith Willis ("Dr. Willis"), and Plaintiff. ( AR 441-86.)
Plaintiff testified that he last worked in February of 2005 as a retail clerk. ( Id. at 447.) Prior to that, Plaintiff worked as a forklift operator and general laborer for various retail stores and companies. ( Id. at 445-47.)
Plaintiff states that he began having petit seizures when he was twelve years old and had his first grand mal seizure in January of 2003. ( Id. at 447.) Plaintiff had six grand mal seizures during 2003, remained seizure-free for over a year, and had eight grand mal seizures in the approximately eighteen months leading up to his administrative hearing. ( Id. at 451-53.) Plaintiff also testified that he generally had three petit seizures per day during the same period, often during work hours and following periods of concentration. ( Id. at 453-55, 462-63.) Of note, Plaintiffs seizures continued to occur despite the fact that his seizure disorder was being treated with the anti-convulsant medications Dilantin and Trileptal. ( Id. at 455-56.)
Plaintiff also apparently experienced two types of headaches: normal headaches, which occurred two to three times per week; and more severe headaches — classified by Plaintiff as "head pains" — which occurred after his petit seizures. ( Id.) Plaintiff treated his "head pains" by smoking marijuana approximately four times per week. ( Id. at 459-61.) Additionally, Plaintiff stated that his anti-convulsant medications caused a variety of side effects, including nausea, fatigue, and dizziness. ( Id. at 466.) Plaintiff testified that the grand mal seizures, petit seizures, headaches caused by petit seizures, and medication side effects prevented him from working. ( Id. at 458-60, 462-63.)
The ALJ also heard testimony from Dr. Willis regarding her review of Plaintiff's medical records. ( Id. at 474-81.) Dr. Willis noted that the pattern of seizures to which Plaintiff attested failed to meet the requirements of Listing 11.02 (grand mal seizures). ( Id. at 474.) Furthermore, Dr. Willis opined that Plaintiff did not suffer from petit mal seizures and thus could not meet the requirements of Listing 11.03 (petit mal seizures). ( Id. at 475.) Dr. Willis observed that Plaintiffs statements regarding the onset of seizures following periods of concentration and his normal diagnostic electroencephalogram ("EEG") pattern were inconsistent with an individual suffering from petit mal seizures. ( Id. at 475-76.)
Unless otherwise noted, all references to "Listing" refer to the "Listing of Impairments" contained at 20 C.F.R. pt. 404, subpart P, app. 1.
Dr. Willis also testified that nearly every sample of Plaintiff's blood taken during the relevant period showed subtherapeutic levels of anti-convulsant medication. ( Id. at 476.) Because Plaintiff exhibited normal liver function, Dr. Willis concluded that Plaintiffs subtherapeutic medication levels were most likely secondary to noncompliance with the prescribed treatment regimen. ( Id. at 476-77.) Dr. Willis also noted that the medication side effects that Plaintiff complained of were highly unlikely at subtherapeutic medication levels, and that Plaintiffs marijuana use decreased the effectiveness of his medication. ( Id. at 476-78.)
"Secondary to" is a medical phrase of art meaning "caused by" or "resulting from." See Webster's Third New International Dictionary 2050.
In response to Plaintiffs attorney's questioning, Dr. Willis testified that approximately one in one-hundred patients metabolized medication more rapidly, resulting in subtherapeutic medication levels without noncompliance. ( Id. at 479.) She also stated that, at therapeutic medication levels, side effects of the type Plaintiff complained of were possible, albeit uncommon. ( Id. at 481.)
Finally, the ALJ heard testimony from Lasoff regarding Plaintiff's ability to perform work. ( Id. at 481-85.) Lasoff concluded from the relevant evidence that Plaintiff could not return to his prior occupation as a forklift operator. ( Id. at 482.) Under hypothetical conditions requiring avoidance of ropes, ladders, scaffolds, and moderate exposure to hazards, Lasoff testified that out of 2,500 job titles in the applicable grid, Plaintiff could perform approximately 1,800. ( Id.) Lasoff gave specific examples of general laborer, plastics products; counter clerk; and laundry laborer — positions available in substantial numbers in both the local and national economy. ( Id. at 482-84.) Lasoff further testified that Plaintiff's ability to perform these occupations would not be affected by seizure precautions requiring avoidance of dangerous machinery, motor vehicles, and heights. ( Id. at 484.) However, when the ALJ modified the hypothetical to include all of the limitations claimed by Plaintiff — seizures, seizure recovery periods, medication side effects, and headaches — Lasoff concluded that Plaintiff would be unable to work. ( Id.)
C. The ALJ's Decision
After reviewing the relevant record evidence and administrative hearing testimony, the ALJ concluded that Plaintiff was not entitled to SSDI benefits. (See id. at 19-28.) The ALJ relied substantially on Dr. Willis's testimony, which indicated that Plaintiffs grand mal seizures did not meet the requirements of Listing 11.02 and that Plaintiff did not exhibit true petit mal seizures under Listing 11.03. ( Id. at 24.) The ALJ concurred with Dr. Willis's conclusion that Plaintiffs low medication levels were secondary to noncompliance with the prescribed treatment regimen. ( Id. at 25.) The ALJ also agreed with Dr. Willis's findings regarding the lack of objective evidence to credit Plaintiffs allegation of medication side effects, especially given Plaintiff's subtherapeutic medication levels. ( Id.) Finally, the ALJ found that Plaintiff's marijuana use was a material contributing factor to his disability. ( Id.)
The ALJ specifically rejected the opinion of Dr. Arthur Cardones ("Dr. Cardones"), Plaintiffs treating physician, that Plaintiff was taking his medication as prescribed yet still exhibiting seizures. ( AR at 26; see id. at 372.) The ALJ noted that Plaintiff's medical records contained multiple comments regarding Plaintiffs noncompliance with the prescribed treatment regimen (e.g., id. at 365) and laboratory evidence of subtherapeutic medication levels (e.g., id. at 368, 370-71).
Ultimately, the ALJ concluded that Plaintiffs "impairment-related signs, symptoms, and limitations, even assuming abstinence from marijuana, [did] not satisfy the durational requirements of [Listing 11.02]." ( Id. at 25.) The ALJ further found Plaintiff's testimony "concerning the intensity, duration, and limiting effects of these symptoms" to be "not entirely credible," given his inconsistent statements concerning the frequency of his seizures and his use of alcohol and marijuana. ( Id. at 27.) The ALJ determined that, even with his non-exertional limitations, Plaintiff was capable of making a successful adjustment to remunerative employment. ( Id. at 27-28.) Accordingly, the ALJ concluded that Plaintiff was not disabled under sections 216(l) and 223(d) of the Social Security Act and denied Plaintiff SSDI benefits. ( Id. at 27.)
II. LEGAL STANDARD
A. Review of the Magistrate Judge's Report
The duties of a district court in connection with a magistrate judge's report and recommendation are set forth in Rule 72(b) of the Federal Rules Of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
B. Review of the Commissioner's Denial of SSDI Benefits
Unsuccessful applicants for SSDI benefits may seek judicial review of a final agency decision of the Commissioner pursuant to 42 U.S.C. § 405(g) of the Social Security Act. The scope of judicial review, however, is limited; a reviewing court will disturb the Commissioner's decision only if it is not supported by substantial evidence or is based on legal error. See 42 U.S.C. § 405(g); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Brawner v. Sec'y of Health and Human Servs., 839 F.2d 432,433 (9th Cir. 1988). Substantial evidence means "more than a mere scintilla," but less than a preponderance. Sandathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. The court must consider the record as a whole, examining the evidence which both supports and detracts from the ALJ's conclusions. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1989).
A claimant is entitled to SSDI benefits if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 416(I), 423(d)(1)(A). In order for the claimant to qualify for benefits, his impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3); Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). The impairment must be of "such severity that [claimant] is not only unable to do [his] previous work but cannot, considering [his] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
III. DISCUSSION
Plaintiff's summary judgment motion raises six arguments in opposition to the ALJ's decision. (See Pl.'s Mot. 3-25.) Plaintiff argues that (1) the ALJ erred by failing to find that Plaintiff suffered from a distinct "headache disorder," ( id. at 3-6); (2) the ALJ erred in failing to consider Plaintiff's "disabling medication side effects," ( id. at 6-14); (3) the ALJ failed to resolve conflicts in the record, ( id. at 14-18); (4) the ALJ erred in failing to find that Plaintiffs seizure disorder equaled Listing 11.02, ( id. at 18-20); (5) the ALJ violated Plaintiffs right to due process by refusing to re-open Plaintiffs prior application denial, ( id. at 20-21); and (6) the ALJ erred in failing to inquire whether Lasoff's testimony conflicted with the Dictionary of Occupational Titles ("DOT"), ( id. at 21-25).
For the following reasons, the Court finds that the Report correctly concluded that Plaintiff is not entitled to SSDI benefits. Accordingly, the Court will uphold the ALJ's decision.
A. Substantial Evidence Supported the ALJ's Determination That Plaintiff Did Not Suffer From an Independent Headache Disorder
Plaintiff argues that the ALJ erred in failing to conclude that Plaintiff suffered from a headache disorder independent of his seizure disorder. ( Pl.'s Mot. 4-6.) Plaintiff contends that a questionnaire executed by Dr. Cardones ( AR 398) constitutes substantial evidence that Plaintiff suffered severe and debilitating headaches as a side effect of Plaintiffs anti-convulsant medications. ( Pl.'s Mot. 4; Objections [hereinafter Objs.] 4.)
The Report agreed with Defendant and concluded that the record contained no evidence of a headache disorder separate and apart from Plaintiffs seizure disorder. ( Report 14.) Rather, the Report found that Plaintiff's severe headaches were merely symptomatic of his seizure disorder. ( Id. at 13-14.) The Report noted that Plaintiff's evidence supporting the existence of a headache disorder consisted solely of symptom statements lacking any objective medical foundation. ( Id. at 13.) Plaintiff objects to this conclusion and cites Dr. Cardones's questionnaire responses suggesting that Plaintiff suffered headaches as a medication side effect. ( Objs. 5.)
A five-step sequential evaluation process guides the ALJ in determining whether a claimant is disabled and therefore entitled to SSDI benefits. See 20 C.F.R. § 404.1520. At the second step in the sequential evaluation process, the ALJ must determine whether the claimant suffers from a sufficiently "severe" impairment or combination of impairments.Id. at § 404.1520(c). The claimant's ailment or ailments must "significantly limit [the claimant's] physical or mental ability to do basic work activities." Id. Although the ALJ must take all of the claimant's impairments into account, the claimant bears the burden of producing relevant evidence of an impairment before it is factored into the disability analysis. See 42 U.S.C. § 1382c(a)(3)(G); Macri v. Chater, 93 F.3d 540, 544-45 (9th Cir. 1996). The claimant's impairment must be capable of demonstration by medical evidence — mere symptom statements do not suffice. 20 C.F.R. § 404.1508.
As a threshold matter, the Court notes that Dr. Cardones did not respond to the questionnaire until May 26, 2006, some 20 days after Plaintiff's administrative hearing. Plaintiff submitted this evidence to the Appeals Council — not to the ALJ as Plaintiff seems to suggest. (See, e.g., Objs. at 4.) Even ignoring this mischaracterization, the Court is unconvinced that Dr. Cardones's opinion constitutes substantial evidence that Plaintiff suffered from an independent headache disorder. ( Id.)
In his testimony before the ALJ, Plaintiff complained of both normal headaches and more severe "head pains." ( AR 459.) Plaintiff testified that his "head pains" occurred following petit mal seizures and prevented him from working. ( Id. at 459.) The Report properly concluded, and Plaintiff appears to concede, that Plaintiff's seizure disorder caused his "head pains" — they were not independent ailments. ( Report 13; Objs. 3.) Although Plaintiff contends that his "non-seizure headaches were more frequent and independent of his seizure headaches," Plaintiff never testified regarding the severity and duration of his non-seizure headaches. ( Objs. 3.)
Plaintiff directs the Court's attention to Dr. Cardones's questionnaire responses in support of the proposition that Plaintiff suffered from independent and debilitating headaches. ( Objs. 5.) Dr. Cardones's questionnaire responses, solicited by Plaintiff's attorney following Plaintiffs administrative hearing, suggest that Plaintiff suffered from independent headaches as a medication side effect. ( AR 398); see Saelle v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996) (holding that ALJ could properly attach less weight to doctor's opinion letter submitted by claimant's counsel). However, Dr. Cardones's responses made no mention of the severity or duration of Plaintiff's headaches. (See AR 398.) Furthermore, and as the Court will discuss in greater detail below, the ALJ rejected Plaintiff's allegations of medication side effects in light of his consistently subtherapeutic medication levels. ( AR 25.)
Given the paucity of the evidence concerning Plaintiff's alleged independent headache disorder and the medical expert's testimony contradicting Dr. Cardones's questionnaire responses, the evidence in support of Plaintiff's position is far short of substantial. Accordingly, the Report correctly concluded that the ALJ did not err in failing to find that Plaintiff's headaches constituted a severe medical impairment, and Defendant is entitled to summary judgment on this claim.
B. Substantial Evidence Supported the ALJ's Decision to Reject Plaintiff's Testimony Concerning Disabling Medication Side Effects
Plaintiff contends that substantial evidence in the record supports his testimony regarding disabling medication side effects. ( Pl.'s Mot. 6.) Plaintiff asserts that the ALJ failed to provide clear and convincing justifications for rejecting Plaintiff's testimony. ( Id. at 7.) Plaintiff further argues that Dr. Cardones's questionnaire responses, obtained after the administrative hearing, constitute new material evidence warranting remand under 42 U.S.C. § 405(g). ( Id. at 8.) Finally, Plaintiff claims that the ALJ failed to include Plaintiff's claimed medication side effects in the hypotheticals posed to Lasoff. ( Id. at 12.)
The Report concluded that substantial evidence supported the ALJ's decision to discount Plaintiffs testimony. ( Report 15.) Further, the Report found that Plaintiff failed to establish good cause for his failure to incorporate Dr. Cardones's questionnaire responses into the original administrative record. ( Id. at 16.) Finally, the Report directed Plaintiffs attention to the ALJ's fourth hypothetical, which clearly included the side effects Plaintiff alleged. ( Id. at 17.) Plaintiff objects to each of these conclusions, arguing (1) that Dr. Willis's testimony regarding the possibility of medication side effects corroborates Plaintiff's testimony; (2) that Dr. Willis's testimony was "internally inconsistent and required clarification by Plaintiff's counsel;" and (3) that the ALJ erred in failing to adopt the limitations contained in the fourth hypothetical he posed to Lasoff. ( Objs. 6-11.)
1. Rejection of Plaintiffs Side Effects Testimony
Before the ALJ must determine whether to credit a claimant's subjective symptoms testimony, the claimant must come forward with evidence of an underlying impairment consistent with his complaints. Smolen, 80 F.3d at 1281-82. If the claimant satisfies this initial burden and no affirmative evidence exists to suggest he is malingering, the ALJ must determine what weight to give the claimant's testimony. Id. at 1283-84.
The Ninth Circuit has consistently held that credibility determinations "are functions solely of the [Commissioner]."Allen, 749 F.2d at 801 n. 1 (internal quotation marks omitted). Because the ALJ is in the best position to make credibility determinations, "`[i]f the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, the court [will] not substitute its judgment for that of the [Commissioner].'" Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (quoting Flaten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). However, when the ALJ finds testimony incredible, the ALJ must make specific findings on the record and "explain what evidence u ndermines the testimony."Hollohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). If the ALJ satisfies his duty to make specific findings, a reviewing court will defer to those findings unless they are not supported by substantial evidence. See, e.g., Brawner, 839 F.2d at 433.
Here, Plaintiff produced evidence of a seizure disorder, and no affirmative evidence suggested that he was malingering. Accordingly, the ALJ was obligated to evaluate the credibility of Plaintiff's subjective symptom testimony.
Plaintiff's assertion that the ALJ failed to make specific findings to discount Plaintiff's side effects testimony is wholly without merit. (See, e.g., Objs. 7.) Referring to Plaintiffs symptom statements — including statements about medication side effects — the ALJ concluded that "[Plaintiff's] statements concerning the intensity, duration, and limiting effect of these symptoms are not entirely credible." ( AR 26-27.) In reaching this conclusion, the ALJ noted that Dr. Willis "opined that [Plaintiff's] alleged side effects are not generally seen in the patient population;" that, "given [Plaintiffs] subtherapeutic medication levels, [Plaintiffs] alleged side effects are extremely unlikely;" and that "normal laboratory studies render [Plaintiff's] allegations of side effects medically improbable." ( AR 25.) Plaintiffs assertion that these statements do not constitute "specific findings" concerning the evidence undermining Plaintiff's credibility is not accurate.
Although Plaintiff correctly observes that Dr. Willis's statement that Plaintiff's alleged side effects were "extremely unlikely" does not necessarily mean that the alleged side effects were non-existent, ( Objs. 7), Plaintiff overlooks the fact that such a "mere scintilla" of evidence is insufficient to support a finding in his favor. Sandathe, 108 F.3d at 980. In light of Dr. Willis's testimony, the Court finds that substantial evidence supported the ALJ's decision to reject Plaintiffs testimony. See Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989) ("[T]he reports of consultative physicians called in by the [Commissioner] may serve as substantial evidence.").
2. Materiality of Dr. Cardones's Questionnaire Responses
For newly discovered evidence to warrant remand under 42 U.S.C. § 405(g), the evidence must be (1) material, and (2) good cause must exist for the claimant's "failure to incorporate such evidence into the record in a prior proceeding. . . ." Evidence is material "only when there is a reasonable possibility that the new evidence would have changed the outcome of the [Commissioner's] determination had it been before him." Booz v. Sec'y of Health and Human Servs., 734 F.2d 1378, 1380 (9th Cir. 1984) (internal quotation marks omitted). And if practical obstacles prevented the claimant from obtaining the evidence by the time of the administrative proceeding, the good cause requirement is satisfied. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
Plaintiff fails to demonstrate good cause for his failure to incorporate Dr. Cardones's questionnaire into the record prior to Plaintiff's administrative proceeding. Plaintiff contends that his counsel sought Dr. Cardones's opinion because counsel was "perplexed" by Dr. Willis's testimony. ( Pl.'s Mot. 9.) Plaintiff asserts that Dr. Willis testified that Plaintiff's medication could not cause the alleged side effects at less than toxic levels, whereas "common sense" indicated to the contrary. ( Objs. 9.) Even assuming that Dr. Willis's initial testimony regarding the side effects of medication toxicity confused Plaintiff's counsel, (see, e.g., AR 477), the ALJ clarified the record in the following exchange:
ALJ: Just for clarification purpose[s], assuming the Claimaint was at a therapeutic level of the medications he's taking, do any of the documentation or anything that you're familiar with as a neurologist suggest the types of side effects he's alleging — would they occur with someone who was at a therapeutic level?
[Medical Expert]: Oh, yes, I understand. Yes, they can.
. . .
[Medical Expert]: But they're not common, but they can.
( AR 480-81.) Furthermore, Plaintiff fails to cite any authority suggesting that counsel's confusion constitutes the type of good cause necessary to warrant remand for consideration newly produced evidence. Nor does Plaintiff explain why, even though Dr. Cardones had long been Plaintiff's treating physician, Dr. Cardones's treatment notes contained no reference to Plaintiffs alleged medication side effects. (See AR 363-72.) The totality of the circumstances simply does not establish that practical obstacles prevented Plaintiff from obtaining expert side effects evidence prior to his administrative proceeding. Accordingly, the Court finds that Plaintiff has not established good cause for his failure to incorporate Dr. Cardones's opinion into the administrative record, thus barring remand under 42 U.S.C. § 405(g).
Because Plaintiff fails to establish good cause, the issue of the materiality of Dr. Cardones's questionnaire responses is moot. At this juncture, it is sufficient to note that Dr. Cardones's responses merely restate facts already before the ALJ — the possible side effects of Plaintiffs medication, the side effects Plaintiff claimed to experience, and the possibility of side effects at subtoxic levels. Accordingly, the Court is unconvinced that, had Dr. Cardones's responses been before the ALJ, the outcome of Plaintiffs administrative proceeding would have differed.
3. The ALJ's Hypotheticals to Vocational Expert Lasoff
The ALJ may meet the burden of showing that the claimant is not disabled from substantial gainful activity by "propounding to a vocational expert a hypothetical that reflects all the claimants limitations." Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). The ALJ need only include those limitations supported by substantial evidence in the record. Magallanes, 881 F.2d at 756-57. The ALJ may reject restrictions contained in a hypothetical, so long as he supports his decision with substantial evidence. See id.
Plaintiff initially argued that the ALJ failed to include Plaintiff's claimed medication side effects in his hypotheticals to Lasoff. ( Pl.'s Mot. 12-13.) However, the Report directed Plaintiffs attention to the ALJ's fourth hypothetical, which incorporated all of Plaintiff's allegations, including recurring headaches and other medication side effects. ( Report 17; see AR 484.) Taking a different tack, Plaintiff now argues that the ALJ erred by not adopting all of the limitations posed in the fourth hypothetical. ( Objs. 11.) However, Plaintiff overlooks the fact that the ALJ may reject limitations contained in a hypothetical if those limitations are not supported by substantial evidence.See Magallanes, 881 F.2d at 756-57. As discussed in detail above, substantial evidence supported the ALJ's decision to reject Plaintiff's allegations of medication side effects.
The Report correctly concluded (1) that substantial evidence supported the ALJ's rejection of Plaintiffs allegations of side effects; and (2) that Plaintiff failed to establish the good cause necessary to warrant remand to consider Dr. Cardones's questionnaire responses. Furthermore, the Court finds that the ALJ properly rejected the limiting side effects contained in the fourth hypothetical posed to Lasoff. Accordingly, Defendant is entitled to summary judgment on these claims.
C. Substantial Evidence Supported the ALJ's Resolution of Conflicts
Plaintiff contends that the ALJ left three conflicts in the record unresolved. ( Pl.'s Mot. 14.) Plaintiff argues that the ALJ's decision fails to establish (1) whether Plaintiff suffered from petit mal seizures, ( id. at 14); (2) whether Plaintiff complied with his prescribed medication treatment regimen, ( id. at 16); and (3) whether Plaintiffs marijuana use negatively impacted the effectiveness of his medications, ( id. at 18).
The Report concluded that the ALJ properly resolved all three alleged conflicts in Defendant's favor. ( Report 17-21.) The Report also found that new medical opinions, produced by Plaintiff following his administrative proceeding, did not warrant remand under 42 U.S.C. § 405(g). ( Report 19-21.) Plaintiffs Objections primarily challenge Judge Stormes's conclusions regarding the materiality of the newly produced evidence. ( Objs. 14-18.)
"The ALJ is responsible for determining credibility[,] . . . resolving conflicts in medical testimony," and resolving ambiguities. Magallanes, 881 F.2d at 750. Like credibility determinations, resolving conflicts in testimony is solely within the ALJ's purview. See Morgan v. Comm'r of Soc. Sec. Admin, 169 F.3d 595, 599 (9th Cir. 1999). Likewise, "determining whether inconsistencies are material (or are in fact inconsistencies at all) . . . falls within this responsibility. Id. at 603. Although ultimate responsibility for conflict resolution falls to the ALJ, he must support his findings with "specific, cogent reasons."Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
Plaintiff's claim that the ALJ erred in finding that Plaintiff's allegations of daily petit mal seizures lacked merit. In discounting the credibility of Plaintiff's testimony, the ALJ explained in detail how Dr. Willis's testimony undermined Plaintiff's. (See AR 24-25.) The ALJ referenced Plaintiff's normal EEG, and he noted that Plaintiff's statements regarding seizures following periods of concentration were inconsistent with a diagnosis of petit mal seizures. ( Id. at 24.) Based on these objective factors, the ALJ properly concluded that Plaintiff's testimony lacked credibility.
Additionally, the opinion of Dr. Michael Flink ("Dr. Flink"), submitted into the record following Plaintiff's administrative proceeding, is simply not material to Plaintiff's allegation of petit mal seizures. Although Plaintiff contends that this evidence "bears directly on Plaintiff's claim of nonconvulsant epilepsy," ( Pl.'s Mot. 16), Dr. Flink's letter clearly states that Plaintiff suffered from "complex partial seizures with occasional secondary generalization" — not petit mal seizures, ( AR 400). Accordingly, Dr. Flink's opinion confirms rather than contradicts the ALJ's conclusion that Plaintiff did not suffer from petit mal seizures.
Furthermore, the Court is unconvinced that Plaintiff has established good cause for failing to incorporate Dr. Flink's opinion into the record prior to his administrative proceeding. Although Plaintiff asserts that good cause exists because "scheduling errors" prevented Plaintiff from obtaining treatment, the Court doubts that Dr. Flink is the only neurologist in San Diego qualified to diagnose Plaintiff's disorder. Moreover, considering the alleged materiality of Dr. Flink's opinion, Plaintiff does not explain why he did not seek a continuance of the administrative proceeding pursuant to 20 C.F.R. § 404.936 in order to provide a complete record.
Plaintiff's argument that the ALJ erred in relying on Dr. Willis's testimony regarding Plaintiff's noncompliance with the prescribed treatment regimen is similarly without merit. Plaintiff seems to assert that the ALJ did not state sufficient reasons for disregarding Plaintiff's testimony that he complied with his prescribed treatment regimen. (See Pl.'s Mot. 16-17.) However, after noting Plaintiffs consistently subtherapeutic medication levels, the ALJ concurred with Dr. Willis's testimony that Plaintiffs low medication levels were secondary to noncompliance. ( AR 25.) The ALJ clearly based this conclusion, in part, on the extremely low probability that Plaintiff metabolized medication at an abnormal rate and the lack of evidence of an underlying condition that might otherwise result in subtherapeutic medication levels. ( Id.) The ALJ's ultimate conclusion necessarily reflects an implicit rejection of these possibilities, and accordingly, the Court finds that the ALJ sufficiently stated the evidence on which he based his resolution.
Nor do Dr. Cardones's questionnaire responses constitute new, material evidence of a conflict in the record on this issue. Dr. Cardones confirmed that a hypothetical patient could "possibl[y]" be compliant with his medication yet still experience grand mal seizures. ( AR 398.) This statement confirms, rather than contradicts, Dr. Willis's testimony. Dr. Willis quantified the probability that Plaintiff could be compliant yet still experience seizures at approximately one percent; the ALJ simply rejected this evidence as insufficient to support a finding in Plaintiffs favor. (See AR 25.) Accordingly, no reasonable possibility exists that Dr. Cardones's relatively insubstantial questionnaire responses would have changed the outcome of the ALJ's decision. See Booz, 734 F.2d at 1380.
Finally, Dr. Flink's response to a post-administrative hearing questionnaire does not contradict the ALJ's conclusion, nor does it constitute new material evidence regarding the impact of Plaintiffs marijuana use on Plaintiffs anti-convulsant medication's effectiveness. Dr. Flink opined that, although he was not aware of any clinical studies regarding the impact of marijuana use on Dilantin, he discouraged the combination regardless. ( AR 393.) Contrary to what Plaintiff suggests, the fact that Dr. Flink is unaware of any such studies does not compel the conclusion that no such studies exist. Further, Plaintiff's argument that Dr. Flink discourages the combination of marijuana and Dilantin because of "legal issues" is without factual basis. ( Objs. 14.) Because Dr. Flink's statement creates no conflict with Dr. Willis's testimony, no reasonable possibility exists that it would have changed the outcome of Plaintiff's administrative proceeding.
Given that the ALJ supported his decisions with substantial evidence and because Plaintiff wholly fails to create a conflict by producing new, material evidence, Defendant is entitled to summary judgment on this claim.
D. The ALJ Properly Concluded That Plaintiff's Seizure Disorder Did Not Meet Listing 11.02
Plaintiff contends that the ALJ erroneously concluded that Plaintiff's seizure disorder did not meet Listing 11.02. ( Pl.'s Mot. 18-19.) The Report found that substantial evidence supported the ALJ's conclusion that Plaintiff's disorder failed to meet or equal listing severity. ( Report 22.) The Report also observed that the ALJ supported his decision with specific findings. ( Id.) In his Objections, Plaintiff challenges the sufficiency of the evidence supporting the ALJ's determination. ( Objs. 16-17.)
Additionally, Plaintiff apparently asserts in his Objections that the opinions of Drs. Flink and Cardones constitute new, material evidence bearing on this issue. (See Objs. 16-17.) As discussed above, Plaintiff has failed to establish a reasonable probability that this evidence would have changed the outcome of his administrative proceeding, and he has not demonstrated good cause for failing to incorporate this evidence into the. record prior to his administrative proceeding. Accordingly, the Court finds that remand for consideration of this evidence is not warranted. See 42 U.S.C. § 405(g).
At step three in the sequential evaluation process, the ALJ must determine whether a claimant's impairment meets or equals an impairment contained in the Listings. 20 C.F.R. § 404.1520(d). To meet a listed impairment, the claimant "must have a medically determinable impairment that satisfies all of the criteria in the listing." 20 C.F.R. § 404.1525(d). If the claimant's impairment does not meet the Listing's criteria, it may still equal the Listing if the claimant establishes symptoms, signs, and laboratory findings "at least equal in severity and duration to the criteria of any listed impairment." 20 C.F.R. § 1526(a). Where a claimant suffers from multiple impairments, none of which meet or equal listing severity, the ALJ must evaluate the collective symptoms, signs, and laboratory findings to determine whether the claimant's combination of impairments meets or equals the criteria of a relevant listing. See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990.) The ALJ has a duty to explain how his evaluation of the relevant facts led to his ultimate conclusion. Id.
In order to meet Listing 11.02, a claimant's seizure disorder must cause at least one grand mal seizure per month despite at least three months of prescribed treatment. 20 C.F.R. pt. 404, subpart P, app. 1 § 11.02. The ALJ must evaluate the claimant's blood drug levels in conjunction with all other evidence to determine the extent of the claimant's compliance with the prescribed treatment regimen. Id. § 11.00A; see also S.S.R. 87-6 ("[T]he record of anticonvulsant blood levels is required before a claim can be allowed."). "Where documentation shows that use of alcohol or drugs affects adherence to prescribed therapy or may play a role in the precipitation of seizures, this must also be considered in the overall assessment of impairment level." Id.
In his written decision, the ALJ made detailed findings and concluded that Plaintiff's seizure disorder did not meet or equal Listing 11.02. ( AR 24-25.) The ALJ noted "the nature, severity, frequency, duration, and persistence of [Plaintiff's] reported seizures; the type, dosage and effectiveness of medications; the serum levels of the claimant's prescribed medications; and the effects of [Plaintiff's] marijuana use." ( Id. at 24.) The ALJ also observed that Plaintiff's "Dilantin levels [had] repeatedly tested at subtherapeutic levels." ( AR 25.) Given his rejection of other potential causes of Plaintiff's subtherapeutic medication levels, discussed at length above, the ALJ thus concluded that Plaintiff failed to establish at least three months of prescribed treatment. ( Id.) Given the evidence, the Court finds the ALJ's conclusion that Plaintiff's seizure disorder did not meet listing severity supported by substantial evidence in the record.
Plaintiff directs the Court's attention to the ALJ's observation that, at the time of Plaintiff's administrative hearing, "there [was] some evidence of compliance since the addition of Trileptal to [Plain tiff's] regimen in January 2006." ( Pl.'s Mot. 20.) However, Plaintiff's own testimony contradicts the argument that this evidence indicates Plaintiff's disorder met the listing criteria. (See AR 453 (testifying to less than one seizure per month during period of medication compliance).)
Nor did the ALJ err in refusing to consider Plaintiff's headaches in conjunction with his seizure disorder. Plaintiff contends that his headaches were actually a side effect of his medication and should have been considered in a combined-impairment medical equivalence analysis. ( Objs. 17.) However, given Plaintiffs subtherapeutic medication levels and the concomitantly low probability of side effects, the ALJ properly discounted Plaintiff's testimony and refused to consider whether Plaintiff's headaches combined with his seizure disorder to establish medical equivalence. ( AR 26-27.)
Accordingly, and considering the substantial and specific evidence cited by the ALJ in support of his conclusion, the Court finds that Defendant is entitled to summary judgment on this claim.
E. Plaintiff Received the Full Extent of Due Process
Plaintiff contends that the ALJ violated his constitutional right to due process by denying him an opportunity to be heard on his request to re-open prior application denials. ( Pl.'s Mot. 21.) The Report concluded that Plaintiff has failed to raise a colorable constitutional claim that would vest this Court with jurisdiction to consider this issue. ( Report 23.) Plaintiff objects to Judge Stormes's conclusion and apparently argues that, although the Appeals Council said that it reviewed Plaintiff's newly produced evidence, it did not actually do so, ( Objs. 19.)
42 U.S.C. § 405(h) "prevent[s] judicial review of decisions of the [Commissioner] save as provided in the [Social Security] Act, which provision is made in § 405(g)." Weinberger v. Salfi, 422 U.S. 749, 757 (1975). Section 405(g) establishes three prerequisites to judicial review: "(1) a final decision of the [Commissioner] made after a hearing; (2) commencement of a civil action within 60 days after the mailing of notice of such decision . . .; and (3) filing of the action in an appropriate district court. . . ." Id. at 763-764; accord 42 U.S.C. § 405(g). "[A] petition to reopen a prior final decision may be denied without a hearing. . . ." Califano v. Sanders, 430 U.S. 99, 108 (1977); accord Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982). Accordingly, a denial of a request to reopen is not subject to judicial review under § 405(g). Califano, 430 U.S. at 108. However, the Supreme Court has recognized a limited exception to this rule for those cases which raise a "colorable constitutional claim." Id. "The constitutional claims must relate to the manner or means by which the Secretary decided not to reopen the prior decision, rather than to the merits of the prior decision or the means by which that decision was reached."Panages v. Bowen, 871 F.2d 91, 93 (9th Cir. 1989).
Plaintiffs due process claim lacks merit. On March 22, 2007, the Appeals Council denied Plaintiff's request to re-open and affirmed the ALJ's decision. ( AR 10-12.) The Appeals Council subsequently chose to set aside its original determination in order to consider new evidence. ( Id. at 5-7.) This new evidence included Drs. Cardones's and Flink's questionnaire responses, in addition to medical records generated following Plaintiff's administrative hearing. ( Id. at 8.) On July 20, 2007, after considering this evidence, the Appeals Council "found no reason under [its] rules to review the [ALJ's] decision." ( Id. at 5.) Plaintiff received the full extent of the process due to him — the Appeals Council considered Plaintiff's new evidence and concluded that it did not constitute new and material evidence warranting reopening of Plaintiff's prior application denial under 20 C.F.R. §§ 404.988-.989. Although Plaintiff asserts that "it would appear the Appeals Council did not `duly consider' Plaintiff's request," this argument is wholly without evidentiary support. ( Objs. 19.)
Accordingly, because Plaintiff fails to raise a colorable constitutional claim that would vest this court with subject matter jurisdiction to consider the Appeals Council's denial of Plaintiff's request to re-open, Defendant is entitled to summary judgment on this claim. F. The ALJ's Failure to Inquire on the Record Whether Lasoff's Testimony Conflicted With the DOT was Harmless Error
Plaintiff argues that the ALJ erred by failing to inquire on the record whether Lasoff's testimony was consistent with the DOT, as required by S.S.R. 00-4p. ( Pl.'s Mot. 22.) The Report concluded that Lasoff's testimony did not conflict with the DOT, and thus, the ALJ's error was harmless under controlling Ninth Circuit precedent and thus did not justify reversal. ( Report 26.) Plaintiff objects to this conclusion, arguing that the DOT description of the positions the ALJ concluded Plaintiff could perform conflict with Plaintiff's functional limitations. ( Objs. 19.)
At the fifth step in the sequential evaluation process, the burden shifts to the ALJ to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy. See 20 C.F.R. § 404.1520(f). If the claimant can adjust to other work, the ALJ will find that the claimant is not disabled. Id. The ALJ may meet his burden at this step by propounding a hypothetical reflecting all of the claimant's limitations to a vocational expert. Roberts, 66 F.3d at 184. In determining whether work exists in significant numbers in the national economy, the Commissioner takes administrative notice "of reliable job information from various governmental . . . publications," including the DOT. 20 C.F.R. § 404.1566(d). When relying on the testimony of a vocational expert, the ALJ "has an affirmative responsibility to ask about any possible conflict between that . . . evidence and information provided in the DOT." S.S.R. 00-4p. However, if no conflict exists between the vocational expert's testimony and the DOT, the ALJ's failure to inquire does not constitute reversible error.Massachi v. Astrue, 486 F.3d 1154 n. 19 (9th Cir. 2007).
Although Plaintiff correctly points out that the ALJ failed to inquire whether Lasoff's testimony conflicted with the DOT, the Court is convinced that this error was harmless. Lasoff testified that, while Plaintiff could not return to his previous position as a forklift operator, he could capably function as a laundry laborer, counter clerk, or plastic products assembler — all positions available in substantial number in both the national and local economies. ( AR 482-83.) Although Plaintiff argues that S.S.R. 00-4p required the ALJ to inquire whether Lasoff's testimony conflicted with the DOT, Plaintiff does not argue that Lasoff's testimony did in fact conflict with the DOT. (See Pl.'s Mot. 21-24.) A review of the DOT job descriptions confirms that no such conflict exists. (See Def.'s Mot. Ex. A); 1 Dep't of Labor, Dictionary of Occupational Titles §§ 249.366-010, 361.687-018; 2 Id. § 754.687-010.
Plaintiff also now contends that the DOT descriptions of these positions conflict with Plaintiffs functional limitations. ( Objs. 19.) However, the Court notes that Plaintiff's assertion that these positions "require work around potentially dangerous machines and hazards" lacks support. ( Id.) Plaintiff fails to explain how his seizure disorder prevents him from, for example, "load[ing] film into equipment that automatically processes film." 1 Dep't of Labor, supra, § 249.366-010.
The Court concludes that the evidence that Lasoff provided was entirely consistent with the DOT and Plaintiff's functional limitations. Accordingly, the ALJ's failure to inquire constitutes harmless error. Massachi, 486 F.3d at 1154 n. 19. Defendant is entitled to summary judgment on this claim.
IV. CONCLUSION AND ORDER
For the reasons stated in the Report, which are incorporated herein by reference, the Court GRANTS Defendant's motion for summary judgment (Doc. No. 15) and DENIES Plaintiffs motions for reversal (Doc No. 14). The clerk of court shall enter judgment in Defendant's favor and close the district court case file.
IT IS SO ORDERED