Opinion
No. C 00-01630 WHA
June 18, 2001
ORDER GRANTING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The Social Security Administration denied disability benefits to plaintiff Lucille M. Posey on the ground that she had the residual functional capacity to engage in substantial gainful activity. Posey brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of that final decision. After reviewing the parties' cross-motions for summary judgment, the Court finds that there is substantial evidence in support of the Administrative Law Judge's decision. The Court, therefore, grants the Commissioner's cross-motion for summary judgment.
STATEMENT
Plaintiff Lucille M. Posey was born on November 10, 1943 (AR 83). She had a high school education (AR 13, 115). She worked at Kaiser medical center as a personnel administrator for approximately 15 years from 1977 to 1993 (AR 13, 115). In late 1992, she began to experience low back pain (AR 276). An MRI scan of her spine was normal (AR 276, 283). In June 1993 she underwent an epidural injection at Kaiser Permanente to treat the back pain (AR 13, 129, 276). After the procedure, however, her health deteriorated further.
One week after the injection, Posey began to experience frontal, bitemporal, and occipital headache that was entirely postural in nature (AR 276). The headache dissipated when she laid down and developed when she assumed an erect posture (ibid.). In July 1993, she was admitted into the hospital twice for her headaches and discharged both times being relatively symptom free (ibid.). Several MRI scans performed while she was in the hospital showed mild enhancements of the dura, but the radiologists attributed the enhancements to the blood patch treatments Posey received prior to the scans (AR 277, 284-86). After discharge, Posey continued to be treated as an outpatient by Drs. J. F. Martin and Helen Bronte-Stewart for her headaches and additional symptoms of photosensitivity and general malaise (AR 277).
On October 15, 1993, Dr. Bronte-Stewart requested a consultation with Dr. Neil H. Raskin, a neurologist. After examining her and reviewing her medical records, Dr. Raskin wrote to Dr. Bronte-Stewart stating his opinion on November 4, 1993. He opined that the attempted epidural injection had initially resulted in a dural rent headache syndrome (AR 144). The headaches, he related, were then replaced by a new migraine-like syndrome which is exertionally activated (ibid). Dr. Raskin also noted that Posey's medical history included three episodes of classic migraine at age 17, and that the dural rent headache syndrome could have re-activated this background of migraine (ibid). In the letter, Dr. Raskin stated that he had "seen this kind of activation on many occasions" and that the headache syndrome would last "perhaps six months to a year or two" (ibid.). He prescribed indomethacin for Posey's headache and low back pain (ibid.).
Thereafter, Posey received treatment for headache and fatigue with Drs. Bronte-Stewart and Martin (AR 147-163). Medical records from November 1993 and February and April 1994 note that she was feeling much better (ibid). In March 1994, Dr. Victor M. Rosenoer saw Posey for a consultative exam on behalf of Social Security Administration (AR 145). He observed mild limitation of forward flexion of the lumbar spine but noted that Posey did not complain of joint pains, swelling, tenderness, or inflammation (AR 146). Dr. Rosenoer concluded that Posey appears to be incapable of carrying more than twenty pounds at any one time, unable to sit for more than a short period due to back pain, and thus unable to carry out her job as hospital administrator (ibid.).
From December 1994 to September 1995, Posey was treated by Dr. Rimon Isaac for headaches and back pain (AR 174-193). Dr. Isaac's medical reports repeatedly note Posey's improved condition (AR 174, 178, 185, 186). On one visit, Dr. Isaac prescribed three months of exercise rehabilitation; on an other, prozac; on others, effexor (AR 177, 179, 183-84, 187, 191).
From June through at least August 1995, Posey was treated with acupuncture with good results (AR 164-171, 250). Starting in March 1996, Dr. Shiroko Sokitch began treating Posey for back pain, headaches, chronic fatigue, hypothryodism and other metabolic imbalances (AR 257). He performed some tests to determine her metabolic stress levels and the results were normal (ibid). In a letter to Posey's attorney in July 1998, Dr. Sokitch stated that through his treatment with acupuncture and herbs as well as through her nutritional work Posey "has improved to the point where she can manage to reduce the severity of her symptoms, especially when limiting any causes of stress" but that she was still "very sensitive to noise and stress" (ibid.). He recommended that she limit her activities and refrain from working in order to continue the healing process (ibid). Also in July 1998, Dr. Sokitch filled out a "Medical Opinion Re: Ability to Do Work-Related activities (Physical)" form describing his treatment of Posey (AR 250-56). On that form, Dr. Sokitch described Posey's diagnosed impairments as chronic fatigue syndrome, migraines, chronic lower back pain, and tinnitus (AR 250). Regarding Posey's ability to work, he noted that she "needs a lot of rest or fatigue gets worse — hard to work more than 15 hours/week . . . Assuming 40 hour workweek — cannot do that cannot deal with stress due to fatigue . . . fatigue leads to stress tinnitus and other symptoms" (AR 253). He estimated that she was capable of lifting and carrying ten pounds on an occasional or frequent basis, standing and walking about three hours in an eight-hour day, sitting for three hours in an eight-hour day, but that she needed to alternate sitting or standing approximately every five minutes (AR 254). In addition to stress and fatigue, he noted that she needed to avoid extreme cold, extreme heat, wetness, humidity, noise, fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery and heights (ibid). In January 1999, Dr. Sokitch wrote another letter to Posey's attorney reiterating exactly what he wrote in July 1998 letter.
On November 3, 1995, Posey filed an application for disability insurance benefits under Title II of the Social Security Act (AR 83-85). Posey's application was initially denied and also on reconsideration (AR 87-90). Posey appealed the decision and received a hearing before the Administrative Law Judge (ALJ) on September 17, 1998. The hearing was continued on April 4, 1999 (AR 12). At the hearing, three people testified: Posey, Dr. Gerhard Nellhaus as the medical expert, and Peter M. Eliaser as the vocational expert. Posey was represented by counsel.
Posey testified that since the onset of her disability she had trained as a nutritional consultant (AR 62-64, 72). She completed her training in 1997 and since then has seen a few clients from her home on a weekly basis and also works as an instructor in the Feldenkrais movement therapy (AR 64-70). Posey testified that she was able to instruct because it was in a quiet setting; and if there were a lot of noise, then she believed she could not work (AR 70). In addition to this, she also worked part time as a cashier and stocker in a health food store for eight to eighteen hours per week for two months in 1998, through the state vocational rehabilitation program (AR 71-72).
Dr. Gerhard Nellhaus, a neurologist, also testified at the hearing as a medical expert. He stated that from reviewing Posey's medical records there were no objective medical findings to support her symptoms of pain and fatigue (AR 38-43). He testified that none of the patients he had to treat due to chronic fatigue syndrome had antecedent epidurals (AR 43). He opined that the evidence may support a chronic fatigue syndrome based on Posey's subjective complaints but "[o]ne has to consider the possibility of a factitious disorder" (AR 40-41, 43).
Dr. Nellhaus did find a very slight elevation in cholesterol level which he opined didn't mean much and a limited forward flexion of the back which he stated may cause some physical limitations (AR 39, 52).
Vocational expert, Peter M. Eliaser, M.S., testified that a hypothetical person with the same age, education and training as Posey and a residual functional capacity for sedentary level of exertion, with sit/stand option, who needed a low stress environment with no exposure to cold, fumes, dust or hazards could not perform Posey's previous work as a personnel administrator (AR 78). He did testify, however, that the hypothetical person could engage in a sedentary work of a general office clerk with 8,715 positions in the San Francisco Bay Area or a receptionist with 6,490 positions in the same region (AR 79).
After reviewing the medical records, testimony at the hearing, and new evidence comprised of 1993 treatment notes from Kaiser, a letter from treating physician Sokitch, and psychological evaluation from Dr. Ron Meister, the ALJ issued his decision on March 26, 1999. In engaging in the five-step sequential analysis as mandated under 20 C.F.R. § 404.1520, the ALJ first determined that Posey had not engaged in substantially gainful activity. At step two, he determined that she did have a severe impairment due to "chronic pain syndrome associated with complaints of chronic headaches, chronic fatigue and fibromyalgia that are aggravated by the stress of noise and being around a number of people" (AR 14). At step three, the ALJ found that the combination of impairments did not meet or equal a listed impairment of Appendix 1 to part 404 of the regulations implementing Title II (ibid). At step four, the ALJ found Posey to retain the residual functional capacity to perform sedentary work with specific limitations (ibid.). In coming to such finding, the ALJ accepted the physical limitation assessment outlined by the treating physician but rejected the treating physician's opinion regarding how many hours Posey could work in a week. The ALJ rejected that opinion because there was lack of objective medical findings supporting treating physician's opinion and the opinion was based on Posey's testimony regarding the degree of her debilitation that the ALJ did not find credible (AR 16-17). At step five, the ALJ found Posey able to engage in work in substantially gainful activity based upon the vocational expert's testimony (AR 18).
The ALJ's decision incorporates testimony from the April 4th hearing so the decision must have been rendered after the hearing date despite the stamped issuance date of March 26, 1999 (AR 12, 17-19).
After ALJ's determination, Posey appealed to the Appeals Council of the Social Security Administration. On April 26, 2000, the Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner. Posey then filed a timely appeal and this Court has jurisdiction under 42 U.S.C. § 405(g).
STANDARD OF REVIEW
To qualify for disability benefits, the claimant has the initial burden to show that she is disabled. Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A). The claimant can meet this burden by showing that she is incapable of performing in her previous work due to her medical impairments. Cotton, 799 F.2d at 1405. Once the claimant has met that burden, the burden shifts to the Commissioner to show that the claimant is able to engage in other types of substantial gainful activity. See 20 C.F.R. § 404.1520(f); Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996).
The district court's scope of review of an ALJ's decision is limited to the question of whether or not the decision to deny benefits is supported by substantial evidence and whether proper legal standards were applied. Andrews v.Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the decision, the district court may consider only the Commissioner's final decision, the evidence in the administrative record on which the decision was based, and the pleadings. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla but less than a preponderance." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). It means such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "If the evidence can reasonably support either affirming or reversing the [ALJ's] conclusion, the court may not substitute its judgment for that of the [ALJ]." Flaten v. Sec'y of Health Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The ALJ is responsible for determining credibility and resolving conflicts in the medical testimony. Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001).
ANALYSIS
Posey argues that the ALJ committed the following legal errors by: (1) failing in his duty to fully and fairly develop the record; (2) discounting Posey's subjective complaints; and (3) rejecting the treating physician's opinion. In addition, Posey argues that the Appeals Council erred by declining to review the ALJ's decision under the new Social Security Ruling 99-2p, which came into effect after the ALJ made his decision.
Duty to Develop Full and Fair Record
Posey argues that the ALJ failed in his duty to develop a full and fair record by failing to consult a medical expert about the effect of Posey's multiple impairments. In Social Security cases, the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered even when the claimant is represented by counsel. Smolen, 80 F.3d at 1288. The duty is to make every reasonable effort to obtain from claimant's treating physician or other treating health care provider all medical evidence necessary to make a decision regarding a claimant's disability status. 42 U.S.C. § 423(d)(5)(B).
Posey also contends that the ALJ failed in his duty by discounting the claimant's testimony and failing to consider Social Security Ruling 99-2p which came into effect after the ALJ rendered his decision. These arguments will be addressed in other sections.
The ALJ did fully and fairly develop the record. He requested and reviewed evidence from all treating physicians and additional evidence as warranted to clear up ambiguities. He submitted that evidence to the medical expert Dr. Nellhaus for review before the hearing (AR 34). In his testimony, Dr. Nellhaus referred to the treatment notes or opinions of Drs. Bronte-Stewart, Raskin, Rosenoer, Issac, and Sokitch, all the other treating or examining physicians identified in the record (AR 35, 38, 43, 51, 52). This shows that Dr. Nellhaus did indeed review Posey's entire record as it existed at time of the hearing. When Posey's counsel stated that there was new evidence at the hearing, the ALJ accepted the evidence and submitted it to Dr. Nellhaus. The ALJ held a break so Dr. Nellhaus could review the evidence. The only pieces of evidence that Dr. Nellhaus did not consider were the psychological evaluation which showed that Posey did not have any mental impairments and another letter from the treating physician Sokitch reiterating what she stated in a prior letter, which Dr. Nellhaus had reviewed. These two documents are not material and therefore Dr. Nellhaus reviewed all documents necessary to give a medical opinion on all of Posey's multiple impairments.
If Posey's counsel was not satisfied with Dr. Nellhaus's review of the record, the counsel had the opportunity to question Dr. Nellhaus. The ALJ allowed counsel to question the doctor before and after the ALJ examined the doctor. During the ALJ's own examination, the ALJ frequently asked the doctor to consider evidence in favor of Posey. For example, the ALJ asked Dr. Nellhaus if there is anything else in the record that would suggest the kind of symptoms and problems Posey experiences after asking him about laboratory results and Dr. Raskin's diagnosis (AR 42). After the ALJ examined the doctor, Posey's counsel declined to recall Dr. Nellhaus because he felt that "nothing will be gained by any further questioning of Dr. Nellhaus" (AR 54). Since the claimant has the burden to prove she has medical impairments, Posey's counsel should have questioned Dr. Nellhaus when given the opportunity if he was not satisfied with the examination.
In fact, the record shows that at other times Posey's counsel did question Posey or the vocational expert to clarify what the counsel thought was ambiguous or misleading (AR 46, 67, 68, 70, 73, 79).
Posey contends that even if she had the burden, it is the ALJ's duty to assist in developing the record by citing Armstrong v. Commissioner of the Social Security Admin., 160 F.3d 587, 589 (9th Cir. 1983). In Armstrong, however, there was a heightened duty on the ALJ to assist a claimant with mental impairments to develop the record and the ALJ failed in that duty by not obtaining evidence regarding the claimant's mental impairment. Posey is not mentally impaired so heightened duty standard does not apply and the ALJ obtained and accepted new evidence as warranted regarding Posey's alleged symptoms. The ALJ fulfilled his duty to explore and develop the facts that may aid in rendering a decision. The ALJ did not have a duty to be Posey's advocate in meeting her burden. See, e.g., Henrie v. United States Dep't of Health Human Servs., 13 F.3d 359, 361 (10th Cir. 1993) (holding that the ALJ's duty is to inquire and develop the facts and claimant bears the ultimate burden of proving disability). The ALJ created a full record, gave the record to the medical expert, questioned him, and gave opportunity to Posey's counsel to redress any issues. The ALJ did not err and thus no remand.
Claimant's Testimony
Posey also argues that the ALJ improperly discounted Posey's subjective complaints. The ALJ is not required to believe a claimant's testimony and may disregard it entirely whenever the claimant fails to submit objective medical findings establishing an underlying medical impairment that could reasonably be expected to produce the claimant's alleged symptoms. 42 U.S.C. § 423(d)(5)(a); see Cotton, 799 F.2d at 1407. In deciding whether to accept a claimant's subjective complaints, the ALJ must assess whether (1) the claimant produced objective medical evidence of impairments and (2) such impairments could reasonably be expected to produce some degree of symptom. Smolen, 80 F.3d at 1281-82. The claimant need not produce objective medical evidence of the pain or fatigue itself, or the severity of it. Id at 1282. The claimant must produce objective medical evidence of underlying impairment. Objective medical evidence consists of anatomical, physiological, or psychological abnormalities which can be observed, apart from claimant's statements, through medically accepted, laboratory or clinical diagnostic techniques. 20 C.F.R. § 1528. If the claimant produces objective medical evidence and there is no evidence of malingering, the ALJ can reject claimant's testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so. Id. at 1281. Clear and convincing reasons include consideration of inconsistences between testimony and conduct, daily activities, work record, or testimony from physicians. 20 C.F.R. § 404.1529; Bunnell v. Sullivan, 947 F.3d 341, 346 (9th Cir. 1991) (en banc).
There is substantial evidence to support the ALJ's decision to discount Posey's subjective complaints. In accordance with Smolen, the ALJ started by seeing whether there was any objective medical evidence of impairments that could reasonably account for Posey's symptoms. A review of the record as a whole revealed a paucity of objective medical evidence supporting Posey's underlying impairments of chronic pain syndrome, fibromyalgia, severe headaches, backaches, chronic fatigue and other impairments. Despite diagnosis of dural rent headache due to the epidural injection in July 1993, there was no objective medical evidence of a spinal puncture that may have caused such a headache (AR 41-44, 276, 284-86). The only objective medical evidence seemed to be Dr. Rosenoer's finding of mild limitation of forward flexion of the lumbar spine and Dr. Sokitch's finding of Candida (AR 146, 257). The ALJ determined that both flexion limitation and Candida could not account for Posey's symptoms (AR 15, 17). From a review of the record as a whole, there seems to be no objective medical evidence to explain Posey's symptoms and thus the ALJ did not need to give specific reasons for rejecting Posey's testimony. 42 U.S.C. § 432(d)(5)(a).
Dr. Rosenoer noted that despite finding a limitation Posey did not complain of joint pains, swelling, or inflammation (AR 146).
Despite the lack of objective medical evidence, the ALJ gave Posey the benefit of doubt and acknowledged that Posey had chronic fatigue syndrome. Then, the ALJ proceeded to state clear and convincing reasons for discounting Posey's testimony regarding the severity of her symptoms. The ALJ acknowledged that Posey suffered from fatigue but just did not believe the severity of that fatigue. In rejecting her excess fatigue testimony, the ALJ pointed to specific evidence in the record from the treating physicians' notes and opinion letters regarding Posey's favorable response to conservative treatment. The ALJ also pointed to Posey's testimony and diary that she engaged in work as a cashier/stocker for two months, finished a certification program in nutrition and Feldenkrais method, and performed household chores (AR 14-16). Posey's diary did indicate though that she was often fatigued by physical exertion and needed to rest. Credibility determination, however, is reserved for the ALJ. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Evidence of conservative treatment and performance of physical functions that are transferable to a work setting may be sufficient to discredit a claimant's allegations. Ibid. Since the ALJ gave convincing reasons which can be reasonably supported by evidence in the record as a whole, the ALJ's decision to discount the excess fatigue testimony is affirmed.
Weighing of Medical Evidence
Posey argues that the ALJ also erred by failing to properly weigh the treating physicians Martin and Sokitch's opinions. Physicians provide typically two types of opinions: "medical opinions that speak to the nature and extent of a claimant's limitations, and opinions concerning the ultimate issue of disability, i.e., opinions about whether a claimant is capable of any work, given her or his limitations." Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "When a nontreating physician's opinion contradicts that of the treating physician — but is not based on independent clinical findings, or rests on clinical findings also considered by the treating physician — the opinion of the treating physician may be rejected only if the ALJ gives `specific, legitimate reasons for doing so that are based on substantial evidence in the record.'" Morgan, 169 F.3d at 600. The ALJ can meet this burden by setting out a detailed summary of facts, conflicting clinical evidence and stating his interpretation thereof. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). The ALJ need not accept a treating physician's opinion which is brief, conclusory, and unsubstantiated by objective medical evidence. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). The ALJ also need not accept a treating physician's opinion which is based on discredited subjective complaints of the claimant. Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989).
In this case, there is no conflict regarding the nature and extent of Posey's limitations. The nontreating physician Nellhaus conceded to the treating physicians' opinions that Posey may suffer from chronic fatigue syndrome and relied upon Dr. Sokitch's opinion in stating that Posey's ability to work is limited to "low stress, low noise environment" (AR 51). The dispute involves conflicting opinions regarding Posey's ability to work given her limitations. After reviewing all the medical evidence, Dr. Nellhaus believed that there was basically no limitation on Posey's ability to work other than the low stress environment while Dr. Sokitch believed Posey could only work fifteen hours per week (AR 51, 52, 253).
The Court only addresses the conflict between the opinions of Drs. Nellhaus and Sokitch. Dr. Martin's opinion that Posey is permanently disabled is not addressed because the medical records show an improvement in Posey's symptoms since he treated her in 1993 (AR 174, 178, 185, 250, 257). Consequently, the Court views Dr. Sokitch's opinion as the more accurate assessment of Posey's ability to work because it is the most recent treating physician's opinion that is supported by the record as a whole.
The ALJ did give specific, legitimate reasons for rejecting Dr. Sokitch's medical opinion regarding issue of disability. The ALJ stated that he relied upon Dr. Nellhaus opinion because there was minimal, if any, medical findings supporting Dr. Sokitch's opinion on issue of disability (AR 16). This is supported by substantial evidence in the record as discussed above regarding Posey's subjective complaints. Moreover, the ALJ summarized the facts and conflicting evidence in detail and stated his reasons for rejecting the treating and examining physician's opinion regarding issue of disability. Most of the times his reasons for rejecting the other physician's diagnosis were the lack of objective medical evidence and the physician's reliance on Posey's complaints (AR 16-17). Since the ALJ properly discounted Posey's testimony, the ALJ may reject the treating physician's opinion which was based upon the discredited testimony. The ALJ gave legitimate reasons and therefore there is no cause for remand.
New Social Security Ruling
Posey contends that the Appeals Council erred in declining to review this case in light of Social Security Ruling (SSR) 99-2p. The purpose of SSR 99-2p was to restate and clarify the policies of the Social Security Administration for evaluating claims for disability on the basis of chronic fatigue syndrome. SSR 99-2p. SSR 99-2p listed the appropriate medical signs or laboratory findings that would allow for a claim of chronic fatigue syndrome as a medically determinable impairment. Ibid. The ruling went into effect on April 30, 1999, which was after Posey requested review of the ALJ's decision to the Appeals Council and before Appeals Council's rendered its decision on April 26, 2000. Posey argues, albeit unclearly, that in light of this ruling Posey's claim of chronic fatigue syndrome would qualify as a medically determinable impairment which would have impacted the ALJ's determination of Posey's residual functional capacity assessment and thus result in a remandable error.
Posey's argument is unpersuasive and the Appeals Council did not err in declining to review the ALJ's decision under the new interpretive ruling of SSR 99-2p. Since the ALJ found Posey did have chronic fatigue syndrome as a medically determinable impairment and yet decided that Posey was not disabled under the regulations, a finding under SSR 99-2p would make no difference. Moreover, a "good cause" for Appeals Council to review does not exist "if the only reason for reopening is a change of legal interpretation or administrative ruling upon which the determination or decision was made." 20 C.F.R. § 404.989(b). Since the ALJ's decision is supported by substantial evidence in the record and there exists no other ground for remand, the new SSR 99-2p is not sufficient to warrant a remand.
CONCLUSION
The Court acknowledges Posey's physical distress. Still, the ALJ acted within his discretion in evaluating the record. There is substantial evidence in support of the ALJ's findings from the treating physician's records and the nontreating physician's testimony. As such, there is no ground for remand. The Court GRANTS Commissioner's motion for summary judgment and DENIES Posey's cross-motion for summary judgment.
IT IS SO ORDERED.