Opinion
No. CV-07-834-PHX-LOA.
December 17, 2007
ORDER
Plaintiff Norman Vose ("Plaintiff" or "Vose") seeks judicial review of the Commissioner's denial of his application for disability insurance benefits. All parties have consented in writing to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c)(1). (dockets # # 9, 10) Plaintiff and Defendant have filed motions for summary judgment which are fully briefed. As set forth below, the Court denies Plaintiff's motion for summary judgment and grants summary judgment in favor of the Commissioner.
I. Procedural History
On April 30, 2003, Plaintiff protectively filed an application under Title II and Part A of Title XVIII for disability insurance benefits under the Social Security Act (the "Act"), 42 U.S.C. § 401-33 and § 1395 — 1395ccc, respectively. Plaintiff's pro se application for benefits alleged disability starting on October 18, 2002 due to a work-related back injury. (Tr. 54)
(Tr. 54; "Tr." refers to a copy of the certified transcript of the record filed which the Commissioner filed with his Answer pursuant to Title 42 U.S.C. § 405(g)). (docket # 13 at ¶ 7)
Title XVIII of the Social Security Act (the "Medicare Act") provides federal health insurance for elderly and disabled persons. Medicare Part A covers inpatient hospital services and certain related benefits (§ 1395c-1395i-4), and is provided automatically for individuals entitled to Social Security retirement or disability benefits (§ 426). Guadamuz v. Bowen, 859 F.2d 762, 763 (9th Cir. 1988) and Beverly Community Hosp. Ass'n v. Belshe, 132 F.3d 1259, 1262 (9th Cir. 1997).
After Plaintiff retained counsel, he requested supplemental security income ("SSI") pursuant to Title XVI, 42 U.S.C. §§ 1381-83, of the Act which provides supplemental income payments for the aged, blind and disabled.
Apparently SSA employee Adelina Newbauer helped Plaintiff complete the April 30, 2003 application. (Tr. 89)
Plaintiff's application for benefits was denied initially on June 16, 2003 and on reconsideration on February 25, 2004. (Tr. 24-27, 29-32) Upon counsel's written request received on April 9, 2004, Administrative Law Judge ("ALJ") Richard D. Wurdeman conducted a hearing on Plaintiff's application on September 13, 2006. (Tr. 35, 15, 47) In an October 20, 2006 decision, the ALJ determined that Plaintiff "has the severe impairments of degenerative disk disease of the lumbar spine and depression, secondary to chronic pain" within the meaning of the Regulations 20 C.F.R. §§ 404.1520(c) and 416.920(b). (Tr. 19) The ALJ also found that Plaintiff had not engaged in substantial gainful activity ("SGA") since October 18, 2002, the onset date of his alleged disability, and is unable to perform his past relevant work. The ALJ concluded that Plaintiff "has an RFC [residual functional capacity] for routine work (i.e., minimal changes) at the sedentary exertional level with preclusion from bending to the floor . . . [and] work requiring high quotas or productions expectations." (Tr. 19) The ALJ credited the testimony of vocational expert, Mr. Jeff Beeman, M. Ed., that jobs exist in significant numbers in the national economy that Plaintiff could be expected to perform. (Tr. 18, 19) Specifically, the ALJ determined that Plaintiff is capable of performing sedentary work and cited "jobs [such as] assembler, machine operator and phone clerk." (Tr. 19) The ALJ denied Plaintiff's claim for benefits finding that Plaintiff was not under a "`disability' as defined in the Social Security Act, as amended, at any time through the date of [his October 20, 2006] decision." (Tr. 19) The ALJ's decision became the final decision of the Commissioner on April 6, 2007, when the Social Security Appeals Council denied Plaintiff's November 3, 2006 request for review. (Tr. 6, 11)
Id., ¶ 9 as defined in the Regulations at 20 C.F.R. § 404.1545. (Tr. 19)
Mr. Beeman's curriculum vitae is contained in the administrative record. (Tr. 43)
The Commissioner classifies physical exertional requirements of work as "sedentary," "light," "medium," "heavy," and "very heavy" work. 20 C.F.R. § 404.1567.
Under 20 C.F.R. § 404.1567(a), sedentary work "involves lifting no more than 10 pounds at a time, and occasionally lifting or carrying articles like docket files, ledgers and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." 20 C.F.R. § 404.1567(a); Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).
Social Security Ruling 83-10 defines "occasionally" as "occurring very little up to one-third of the time."
A Commissioner's regulation also provides that a person who is unable to sit for prolonged periods of time is incapable of engaging in the full range of sedentary work. SSR 83-12; 257 F.3d at 1035-36.
Having exhausted the administrative review process, Plaintiff appealed the Commissioner's final determination to this Court pursuant to 42 U.S.C. § 405(g) by filing a timely Complaint on April 20, 2007. (docket # 1) On July 10, 2007, Plaintiff moved for summary judgment. (dockets ## 14-16) On August 14, 2007, the Commissioner filed a response in opposition to Plaintiff's summary judgment motion and Cross-Motion for Summary Judgment (dockets ## 17-20) to which Plaintiff responded on August 31, 2007. (docket # 21) The Commissioner has not filed a reply. Oral argument has not been requested. The matter is ripe for ruling.
II. Standard of Review
The district court must affirm the Commissioner's findings if they are supported by substantial evidence and are free from reversible legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). "Substantial evidence" means more than a mere scintilla, but less than a preponderance; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). In determining whether substantial evidence supports a decision, the district court considers the record as a whole, "weighing both the evidence that supports and that which detracts from the ALJ's conclusions," Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998), and "may not affirm simply by isolating a specific quantum of supporting evidence." Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989) (internal quotation marks omitted). The ALJ is responsible for resolving conflicts, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is also required to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts," being especially diligent to ensure favorable as well as unfavorable facts are elicited. Higbee v. Sullivan, 975 F.2d 558, 561 (9th Cir. 1992). If sufficient evidence supports the ALJ's determination, the district court cannot substitute its own determination. Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Therefore, if on the whole record before the district court, substantial evidence supports the ALJ's decision, the district court must affirm it. Hammock, 879 F.2d at 501; 42 U.S.C.A. § 405(g).
Under the Act, a "disability" is defined as an "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A). An individual is under a disability if "his physical or mental impairment or impairments are of such severity that he 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). A claimant bears the initial burden of proving that he is disabled. 42 U.S.C. § 423(d)(5); Ukolov v. Barnhart, 420 F.3d 1002, 1104 (9th Cir. 2005); Reddick, 157 F.3d at 721. If a claimant shows that he is unable to perform past relevant work, the burden shifts to the Commissioner to show that the claimant "can perform other substantial gainful work that exists in the national economy." Reddick, 157 F.3d at 721; Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2004).
In order to determine whether a claimant is disabled within the meaning of the Act, the ALJ performs a five-step analysis:
(1) if the claimant is performing substantial gainful work, s/he is not disabled.
(2) if the claimant is not performing substantial gainful work, his impairment(s) must be "severe" before s/he can be found to be disabled.
(3) If the claimant is not performing substantial gainful work and has a "severe" impairment(s) that has lasted or is expected to last for a continuous period of at least twelve months, and his/her impairment(s) meets or medically equals a listed impairment contained in Appendix 1, Subpart P, Regulation No. 4, the claimant is presumed disabled without further inquiry.
(4) if the claimant's impairment(s) does not prevent him/her from doing claimant's past relevant work, s/he is not disabled.
(5) if the claimant's impairment(s) prevents him/her from performing his/her past relevant work, if other work exits in significant numbers in the national economy that accommodates his/her residual functional capacity any vocational factors, s/he is not disabled.20 C.F.R. §§ 404.1520 and 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 — 41 (1987) (citing 20 C.F.R. §§ 404.1520(b)-(f)); Reddick, 157 F.3d at 721. The burden of proof is on the claimant to establish steps one through four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Here, the ALJ found that Plaintiff satisfied steps one, two, and four but not step three. If a claimant's impairments do not meet or equal the criteria for an impairment in the Listing at step three but satisfy the criteria at step four, the evaluation moves to the fifth step. 20 C.F.R. § 404.1520(e). At the fifth step, the burden of proof shifts to the Commissioner to demonstrate that there are a significant number of jobs in the national economy that claimant can perform. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Thus, the critical issue here is step five: whether Plaintiff retains the residual functional capacity to perform substantial gainful work existing in significant numbers in the national economy in view of his age, education, and work experience.
III. Commissioner's Findings and Hearing Testimony
A. Findings
Plaintiff was born on February 9, 1960, and was forty-six (46) years old on September 13, 2006, the date of the subject hearing. (Tr. 15, 425) Plaintiff's highest level of formal education was tenth grade. (Tr. 18, 434) Plaintiff's past work experience includes employment as a truck driver for a beer distributor where he sustained his back injury, construction worker, and roofer, all at a medium to heavy exertional level. (Tr. at 18, 434-436) The ALJ concluded that Plaintiff had not engaged in any substantial gainful employment since October 18, 2002. The ALJ found that Plaintiff had degenerative disk disease of the lumbar spine and depression secondary to chronic pain, which were severe impairments, but did not alone or in combination, meet or equal any listings. He concluded that Plaintiff had the residual functional capacity ("RFC") for routine sedentary work but was precluded from bending to the floor, and performing work which required high production quotas. (Tr. 16, 19) The ALJ determined that Plaintiff was unable to perform his past relevant work, but could perform other work existing in the national economy. (Tr. 18, 19)
B. Plaintiff's Testimony
Plaintiff testified that he is unable to work because of his lumbar injury and resulting low-back pain, the adverse side effects (dizziness, forgetfulness and inability to concentrate) of his pain medication, and his psychological problems (depression, anxiety disorder and panic attacks). (Tr. 425-429)
Plaintiff described his back pain as "[p]retty constant" and stated that the pain radiates to his left leg. (Tr. 426) He described the severity of the pain on an "average day" as ranging from 5 to 8 on a scale of 1 to 10 with 10 being the worst. ( Id. at 426-27) Plaintiff testified that when his "pain level starts increasing" he can relieve the pain by changing positions or laying down. (Tr. 427) He testified that he lays down four to five times a day for about 45 minutes each time. (Tr. 427)
Plaintiff also testified about his psychological problems. (Tr. 428) He testified that he feels depressed "pretty much all the time." ( Id.) He also stated that he takes medication for anxiety and panic attacks "that come out of nowhere." ( Id.) Plaintiff testified that he has at least three panic attacks per month. ( Id. at 429) Plaintiff testified that Dr. Stewart prescribed medication for the anxiety attacks which is "helping . . . tremendously. . . ." ( Id.) He further testified that he was treated by Dr. Saiz in 2002 for a period of six to eight months. (Tr. 430) He testified that Dr. Saiz "removed him from work" and never released him to work. (Tr. 430) When Plaintiff started seeing Dr. Beghin, he was already "off" work. ( Id.)
Dr. Saiz' name is misspelled "Sears" in the transcript of the September 13, 2006 hearing.
Dr. Beghin's name is misspelled "Baneen" in the transcript of the September 13, 2006 hearing.
Plaintiff testified that he lives with his teenage son in an apartment in Flagstaff, Arizona. (Tr. 430) Plaintiff testified that he does "as much [housework] as [he] can" but that he has to sit or lay down after about fifteen minutes. (Tr. 430) He averred that his son goes shopping and cleans the house. (Tr. 430-31) For recreation, Plaintiff goes to movies "once in awhile" and gets up during the movie to "go to the refreshment stand or whatever." (Tr. 431) On cross-examination, Plaintiff stated that he drives very little because of the medication he takes. His son does most of the driving. (Tr. 431) Plaintiff further stated that he has a girlfriend who lives in Phoenix. She visits Plaintiff in Flagstaff two to three times a month and Plaintiff travels to Phoenix twice a month. (Tr. 432) Plaintiff and his girlfriend go out to eat. ( Id.) Plaintiff testified that walking is difficult because his leg "gives out . . . quite a bit" and then he "can't even move for . . . two days." ( Id.) Despite these problems, Plaintiff can take short trips "maybe to the market." ( Id. at 433) Plaintiff testified that sitting in a chair "hurts." ( Id.)
C. Vocational Expert's Testimony
Vocational Expert ("VE") Jeff Beeman testified regarding Plaintiff's ability to perform work. The VE characterized Plaintiff's past work as a delivery driver, construction worker, roofer, driver/helper, roofing machine tender as ranging from "medium and heavy" (Tr. 435) and from unskilled to skilled. (Tr. 435-436) The ALJ asked the VE to consider several hypothetical situations.
1. Hypothetical One
The ALJ asked the VE to assume an individual who could perform light work with the following limitations: no bending to the floor, no prolonged walking, and routine work which involves minimal changes in routine. (Tr. 436) The VE testified that a person with such limitations could perform "light-skilled" work which exists in substantial numbers in the United States economy including, but not limited to, "assembler/small products," "unskilled machine operator," and "unskilled counter clerk." (Tr. 436-37) When adding the limitation of "need[ing] to sit four or five times" every hour, the VE testified that Plaintiff would be unable to perform the foregoing jobs. (Tr. 437) The VE further testified that if the Plaintiff only needed to sit four or five times during an eight-hour day, then he would still be able to perform some of the jobs the VE identified. (Tr. 438)
2. Hypothetical Two
The VE next assumed an individual who could perform work at a sedentary exertional level with the conditions from hypothetical one remaining constant. The VE testified that such an individual could perform work as an assembler, machine operator, and phone clerk. (Tr. 438) He clarified that with the limitation of needing to stand half dozen times during the day, ten percent of the jobs would be unavailable. (Tr. 438) When adding the need to lay down during the day, the VE testified that "I can't think of any work that allows for lying down where he would be employed at any unskilled, sedentary, or light in the United States." (Tr. 439)
3. Cross-Examination of VE
On cross-examination, Plaintiff's counsel asked the VE to consider the assessment by a State agency psychologist who found Plaintiff "seriously limited" and found that Plaintiff had an incapacity to interact with supervisors, deal with work stresses, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability, the VE testified that Plaintiff "would not be employable at either sedentary or light in any unskilled in the United States." (Tr. 439-441)
Counsel's second hypothetical asked the VE to consider the GAF score of 40 which Dr. Krietsch assessed in 2004. (Tr. 440) Counsel described a GAF of 40 as causing "severe symptomolgoies in activities of daily living, whether that be academic, vocational, or just normal daily activity." (Tr. 440-441) The ALJ opined that such an individual "would probably not be employable when given counsel's severe vocational [limitations of] not being [able to] interact with co-workers, supervisors, or the public." (Tr. 441)
Counsel's third hypothetical asked the VE to assume an individual with the limitations described by Dr. Stewart which included a "slight impairment" in the ability to understand, remember and carry out short, simple instructions; a "marked impairment" in ability to understand and remember detailed instructions; and "moderate impairment" in ability to make judgments on simple work-related decisions. (Tr. 442) Counsel also added the slight restrictions on ability to interact with the public; moderate restrictions on ability to interact appropriately with supervisors, co-workers; and extreme restrictions on ability to respond to usual work pressures; and marked restrictions on ability to respond to changes in a routine work setting. (Tr. 442) Assuming those limitations, the VE testified that Plaintiff would be "unemployable." ( Id. at 443)
Finally, counsel asked the VE to assume the limitations described in Dr. Scott's August 2006 assessment. (Tr. 443, docket # 15, Exh. 1) Dr. Scott indicated "moderately severe pain and fatigue," and a "moderate[ly] severe an impairment which severely affects ability to function." (Tr. 443) The ALJ found that the hypothetical which was based on Plaintiff's perceived level of pain between 5 and 7 as "pretty vague" and stated that the VE should not have "to analyze whatever 5 to 7 means." (Tr. 444)
IV. Evidence
Plaintiff and Defendant both submitted separate statements of fact in support of their motions for summary judgment. Plaintiff's statement of facts is cursory and omits relevant information regarding Plaintiff's medical condition, course of treatment, and participation in treatment. (docket # 15) The Court has conducted its own review of the record and discusses the evidence related to Plaintiff's claims below.
A. Medical Care Related to Physical Health
In May 2002, Plaintiff injured his back while lifting a 40-pound case of beer at work. (Tr. 134, 219, 292, 309) Plaintiff initially received treatment for his back from Dr. Bronstein at the "Walk-In Clinic" in Flagstaff, Arizona. (Tr. 219) Dr. Bronstein apparently ordered an MRI of Plaintiff's lumbar spine which was performed on September 9, 2002. The MRI showed mild degenerative disc disease throughout the lumbar spine with perhaps "a mass effect upon the exiting right L3 and L4-L5 nerve roots." (Tr. 130-32) Dr. Bronstein also ordered physical therapy. (Tr. 219) Treatment notes from Plaintiff's physical therapy in June and July of 2002 reveal that Plaintiff was terminated from physical therapy for repeatedly missing appointments. (Tr. 226-30, 278)
Plaintiff began treating with Dr. Paul Saiz, M.D. at the Flagstaff Center for Bone and Joint Disorders on September 24, 2002. (Tr. 219, 222) On examination, Dr. Saiz noted that Plaintiff had full flexion and extension, normal (2 +) reflexes, normal (5/5) strength, except for the left leg which was 4-/5. (Tr. 222) Dr. Saiz noted the MRI findings showed disc dessication and a possible annular tear at lumber level L2-L3. (Tr. 214)
A disc is made of two parts. The center, the nucleus, is spongy and provides most of the disc's ability to absorb shock. The nucleus is held in place by the annulus, a series of strong ligament rings which surround it. Ligaments are connective tissues that attach bones to other bones. While daily activities may cause the nucleus to press against the annulus, the body can normally withstand this pressure. However, as the annulus ages, it tends to crack and tear and is repaired with scar tissue. This process is called degeneration. As the annulus weakens over time, the nucleus may herniate (squeeze) through the damaged annulus. At first, the pressure bulges the annulus outward. Eventually, the nucleus may herniate completely through the outer ring of the disc.
http://www.orthogate.org/patient-education/lumbar-spine/lumbar-disc-herniation.html
On referral from Dr. Saiz, on October 11, 2003, Dr. Brownsberger administered a nerve root block at L3-L4 and L4-L5. (Tr. 133, 268) Dr. Brownsberger noted that Plaintiff's pre-procedure description of his pain was "quite vague" and that he had "a difficult time defining the level of pain on the visual analog scale." (Tr. 133) Post-procedure, Plaintiff reported improvement, but Dr. Brownsberger again noted that the report was "rather vague." (Tr. 133)
During an October 18, 2002 follow-up appointment with Dr. Saiz, Plaintiff reported experiencing a 25% decrease in his pain for 24 hours after having the nerve root injections. (Tr. 214) Dr. Saiz again recommended epidural injections (nerve root block) and told Plaintiff his goal was to return Plaintiff to work as quick as possible. (Tr. 214) Plaintiff was vague about his symptoms and indicated he wanted more time off work. (Tr. 210) On October 21, 2002, Dr. Saiz wrote Plaintiff a prescription to excuse him "from work until the effects of the epidurals were ascertained." (Tr. 210)
An epidural is an injection of cortisone, an anti-inflammatory medication, into the space around the spinal cord (epidural space). A cortisone injection helps decrease inflammation around the nerve roots. www.mayoclinic.com/health/backpain.
In late October 2002, Plaintiff called Dr. Saiz requesting a second opinion and another prescription to keep him off of work. (Tr. 210, 212) Dr. Saiz denied the work excuse because Plaintiff had not made a decision regarding treatment. Dr. Saiz explained that he was "not willing to keep the patient out of work while he decided on a plan that was proposed to him approximately 13 days before." (Tr. 210)
On November 12, 2002, Dr. Saiz noted that he was completing a Worker's Compensation Insurance form for Plaintiff. (Tr. 210-11) Dr. Saiz reported that Plaintiff had received nerve root blocks from Dr. Brownsberger and noted Dr. Brownsberger's report that Plaintiff's complaints of pain were vague. (Tr. 210) Dr. Saiz noted that his goal was for Plaintiff to return to work "as quick as possible" and if Plaintiff chose not to pursue the treatment options offered, he could not treat him. (Tr. 210-211) Dr. Saiz noted that Plaintiff's degenerative changes were "not acute conditions, but were common degenerative conditions" that can start as early as the "third decade." (Tr. 211) He noted that 30% of people in their 20s have signs of degenerative disc disease. ( Id.)
On November 25, 2002, Plaintiff saw Dr. Bradley Nicol, a neurologist, for a second opinion. (Tr. 134-35) On examination, Dr. Nicol found that Plaintiff had normal reflexes (2+), normal strength (5/5), a normal gait, and "no difficulty with ambulation." (Tr. 134) Dr. Nicol noted that the MRI of Plaintiff's lumbar spine showed "mild degenerative changes" but no disk herniation, no lumbar stenosis and no listhesis. (Tr. 134) Dr. Nicol found no need for surgery and recommended that Plaintiff continue "with a more formal program of physical therapy" and stay off work until completed. (Tr. 134) Dr. Nicol advised Plaintiff that he might need to pursue less strenuous work. (Tr. 134-135)
On February 18, 2003, Plaintiff returned to Dr. Saiz. (Tr. 193-94) Dr. Saiz noted that he had not seen Plaintiff since October 18, 2002, at which time "there was some question as to wanting to be off work," and "Plaintiff did not like [his] opinion so he went for a second opinion with Dr. Brad Nicol." ( Id.) On examination, Dr. Saiz noted that Plaintiff "really ha[d] no midline tenderness other than some tenderness to palpation over the left buttock." (Tr. 193) Dr. Saiz reviewed Plaintiff's MRI and noted it showed an "annular tear at L2-L3 along with some degenerative disk changes at L4-L5, mild foraminal narrowing, that was below the exiting nerve and did not appear to cause any stenosis." (Tr. 193) Dr. Saiz noted that he could not identify the cause of Plaintiff's pain and ordered a discogram, also known as discography, at L2-L3 and L4-L5 to "see if we have concurrent pain generators at that area." (Tr. 193) He also suggested Intra Discal Electro Thermal Therapy ("IDET"). (Tr. 194) Upon Plaintiff's request, Dr. Saiz kept Plaintiff out of work for another month. (Tr. 194)
A discogram, or discography, is used to determine if a particular disc is the source of pain. Discograms attempt to reproduce rather than remove pain. The reproduction of pain during a discogram can help determine if injury to a particular disc is the source of a person's pain. A discogram, is performed by inserting a needle into the disc and injecting a contrast dye. This extra fluid in the disc increases the pressure in the disc. Patients with an injured disc may experience pain that mimics the pain they have been experiencing. The intensity of the pain is recorded on a 0-10 scale. Based upon this information, diagnosis of a particular disc injury can be made. http://www.medicinenet.com/discogram/article.htm.
IDET therapy involves inserting a probe into the affected disc to heat the tissues causing them to shrink and cauterizing the small nerve fibers in the periphery of the disc.www.orthopedics.about.com/od/backneck/a/discpain_2.htm.
In a February 18, 2003 letter to Cindy Stevens of the State Workman's Compensation Fund, Dr. Saiz noted that he had not seen Plaintiff since October 2002, at which time Plaintiff sought a second opinion from Dr. Nicol. (Tr. 191) That letter also noted Dr. Nicol's opinion that no surgical interventions were needed and that Plaintiff might need to change his occupation. (Tr. 191) Dr. Saiz further noted that Plaintiff's MRI showed an annular tear at L2-L3 and "possibly some degenerative disk disease at L4-L5." (Tr. 191) Dr. Saiz noted that he had recommended a discogram. ( Id.) He also noted that, on Plaintiff's request, he had authorized keeping Plaintiff off work for one more month. (Tr. 191)
On March 7, 2003, Plaintiff began treatment with Dr. Michael Wolff, a physiarist. (Tr. 159-61) On examination, Dr. Wolff noted that Plaintiff was "well-developed, well-nourished," and in "no acute distress nor anxiety." (Tr. 160) Dr. Wolff noted Plaintiff had a normal gait and could walk on his heels and toes without difficulty. (Tr. 160) Examination of Plaintiff's low back was "unremarkable." (Tr. 160) Plaintiff's range of motion was decreased secondary to pain, and he had mild paraspinal tenderness. Plaintiff's lower extremities showed no muscle atrophy, sensory findings were normal, and he had normal strength. ( Id.) Dr. Wolff diagnosed multilevel degenerative disc disease, a bulging disc at L3-4 "possibly abutting the right L3 nerve root, a bulging disc at L2-3 with an annular tear, a bulging disc at L4, multilevel lumbar spondylosis, and discogenic low back pain." (Tr. 160) Dr. Wolff indicated that Plaintiff should follow up with Dr. Saiz for a discography to be performed. (Tr. 158, 160)
On referral from Drs. Wolff and Saiz, on March 21, 2003, Plaintiff underwent a CT scan of his lumbar spine. (Tr. 156-57) The test showed no significant loss of disc height; a slight annular tear at L2-L3; a mild diffuse bulge at L3-L4; an annular tear at L4-L5 with mild diffuse bulging of the disc, and slight to mild facet hypertrophy at L4-L5, without definite deformity of the transiting L4 nerve. (Tr. 157) The results of a discography performed that same day were essentially the same as the CT scan. (Tr. 153-55)
On May 5, 2003, orthopedic surgeon John L. Beghin, M.D., examined Plaintiff who was referred for a second opinion from "SCF of Arizona." (Tr. 136) Plaintiff reported that he had undergone physical therapy, nerve root blocks, and was taking pain medication. (Tr. 136-38) Upon examination, Dr. Beghin noted that Plaintiff had a normal gait, was able to heel and toe walk, had no tenderness in the paralumbar region, could bend 60 degrees without pain, his sensory findings were normal, and the straight leg test was unremarkable. (Tr. 136-137) Dr. Beghin reviewed Plaintiff's MRI and noted that it showed mild disc dessication. (Tr. 137) He was "uncertain as to the exact etiology of [Plaintiff's] pain complaints in consideration of the fact that the MRI study [was] relatively unimpressive." (Tr. 137) He noted that Plaintiff "was seen only for the purpose of a second opinion at the request of SCF of Arizona and therefore has been provided no advice and has undergone no treatment. He will be returning to the care of his treating physician." (Tr. 138)
SCF Arizona is Arizona's largest workers compensation insurance company. www.statefund.com.
In a straight leg test, the patient lays on his back with both legs extended. The examiner raises the affected leg toward the patient's head. A positive test for herniated disc produces pain down the back of the leg, below the knee, when the leg is raised up. A negative straight-leg test indicates no nerve impingement due to a herniated disc. http://www.webmd.com/back-pain/medical-history-and-physical-exam-for-a-herniated-disc.
On June 11, 2003, a state agency doctor reviewed the record and completed a physical residual functional capacity assessment. (Tr. 139-46) The doctor concluded that Plaintiff could perform light work, could sit for six hours in an eight-hour work day with occasional postural activities. (Tr. 140-41) The doctor noted that Plaintiff's gait was normal, he could heel and toe walk, and had normal sensory findings. He further noted that Plaintiff's complaints were not fully credible because they were not supported by examination findings and Plaintiff's reported activities. (Tr. 144)
The name of the reviewing doctor is illegible. (Tr. 139-46)
Light work involves lifting no more than twenty pounds at a time with frequent lifting or carrying objects up to ten pounds. 20 C.F.R. § 404.1567(b).
On June 16, 2003, Plaintiff had a follow-up examination with Dr. Wolff. (Tr. 151-52) Dr. Wolff noted that Plaintiff had a normal gait and could walk on his heels and toes without difficulty. Examination of Plaintiff's low back was "unremarkable." Plaintiff had no sensory loss, full strength, and a negative straight leg raise test. ( Id.) Dr. Wolff recommended IDET and that Plaintiff continue his medications through Dr. Saiz. ( Id.) On September 5, 2003, Dr. Wolff performed an IDET procedure on Plaintiff's lumbar spine. (Tr. 148-150)
Thereafter, Dr. Saiz referred Plaintiff to physical therapy at the Flagstaff Medical Center. (Tr. 179) On November 1, 2003, physical therapist, Tom DeMoulin, reported that he planned to see Plaintiff two to three times a week for the next six weeks for "soft tissue mobilization, joint mob[ility], core stabilization, and therapeutic exercise." (Tr. 179-80) DeMoulin noted that Plaintiff's ranges of motion were within normal limits although Plaintiff reported pain. (Tr. 179) Plaintiff also had low muscle tone, poor core control, and poor body awareness, including over-utilizing his back during exercises resulting in pain. (Tr. 180)
On November 18, 2003, Dr. Saiz saw Plaintiff for a follow-up examination. He noted Plaintiff's pharmacy had notified him that Plaintiff presented an altered prescription for Oxycontin, which was one month old and increased the dosage from the original 10mg to 40mg. (Tr. 177) Dr. Saiz did not perform a physical examination but opined that he did not consider Plaintiff a surgical candidate. Dr. Saiz further noted that Plaintiff had "broken our contract as to narcotic use," and that he did not feel he could treat Plaintiff in the future. (Tr. 177)
On December 5, 2003, Leo Kahn, M.D., a state agency doctor, reviewed the record and completed a residual functional capacity assessment. (Tr. 235-42) Dr. Kahn concluded that Plaintiff could perform light work with the ability to sit for six hours in an eight-hour day and occasional postural activities. (Tr. 236-37) In support of his assessment, Dr. Kahn noted that Plaintiff had full strength in his legs, a normal gait, was able to heel and toe walk, and his straight leg raise test was negative to 90 degrees, and he could bend 60 degrees. (Tr. 263) Dr. Kahn further noted that "the severity of [Plaintiff's] allegation[s]" were not fully credible because he was able to cook, perform light housework, and wash clothes. (Tr. 240)
On referral from Dr. Saiz for management of low-back pain, on December 18, 2003, Dr. Brownsberger treated Plaintiff. (Tr. 262-64) Dr. Brownsberger indicated that the IDET treatment that Plaintiff had received in September of 2003 did not provide relief. He also noted that Dr. Saiz had terminated Plaintiff's treatment due to his prescription altering, and that Dr. Saiz did not consider Plaintiff a surgical candidate. (Tr. 262) Upon examination, Dr. Brownsberger noted that Plaintiff's "flexion and extension are guarded and slightly limited." (Tr. 263) He noted that Plaintiff reported more pain upon extension than flexion. ( Id.) Plaintiff's reflexes were symmetrical and he had "good strength" and intact sensation. Plaintiff did not bring his MRI for review. Dr. Brownsberger noted that Plaintiff was being treated "in the context of the industrial system," thus he felt "it was [his] duty to define for him modified work activities." (Tr. 263) Accordingly, Dr. Brownsberger noted that Plaintiff was "given a modified work release with limited lifting and bending and the ability to reposition himself on a regular basis." ( Id.) Dr. Brownsberger noted Plaintiff's "depression" and recommended eight to twelve visits with psychologist Kelly Krietsch, Ph.D., for cognitive behavioral intervention. (Tr. 263-64)
On referral from Dr. Brownsberger, on March 23, 2005, Dr. Gabriel Bonilla, an orthopedist, examined Plaintiff. (Tr. 353-55) Dr. Bonilla noted that Plaintiff presented in "mild distress." (Tr. 354) He walked with "a tilted posture towards the right." Dr. Bonilla noted "severe paraspinal muscle spasms on the left" and decreased range of motion in all spinal planes "secondary to pain and a pulling sensation." (Tr. 354) Plaintiff had full strength, normal reflexes and sensory findings. Dr. Bonilla noted that Plaintiff had been "taking a significant amount of narcotics . . . [for about] a year and a half." (Tr. 354) Dr. Bonilla recommended further electrodiagnostic evaluation, physical therapy, a new MRI of the lumbar, and medication. (Tr. 355) Dr. Bonilla, however, would not prescribe Oxycontin. ( Id.)
During a follow-up visit on April 15, 2005, Dr. Bonilla noted that Plaintiff was no longer taking oxycodone or Oxycontin, and [was] happy with the results." (Tr. 352) Dr. Bonilla recommended epidural steroid injections. ( Id.)
In April 2005, Plaintiff began treatment with Randall Scott, M.D., a primary care physician. (Tr. 386) On examination, Dr. Scott noted that Plaintiff appeared healthy for his age and well-nourished. He had normal reflexes and no paraspinal discomfort. Dr. Scott refilled Plaintiff's prescriptions for Morphine and Oxycodone. (Tr. 385) Dr. Scott diagnosed lumbago, radiculopathy, lumbar disc disorder, and reflux esophagitis. (Tr. 373) Plaintiff saw Dr. Scott approximately once a month form April 2005 through January 2006, and then once in March 2006 and June 2006. (Tr. 362-87) Plaintiff repeated his complaints of low back pain. Dr. Scott consistently described Plaintiff as being in no acute distress ("NAD"). Dr. Scott's most significant examination findings noted lumbar discomfort with range of motion testing and palpation, and rising with a stopped and stiff posture. (Tr. 364, 382)
Additionally, on May 3, 2005, Plaintiff reported to Dr. Scott that he could only perform 15-20 minutes of housework before experiencing severe low back pain. (Tr. 384-85) Dr. Scott also noted that Plaintiff's only exercise was walking to the mailbox and occasional stretching. (Tr. 382) On June 2, 2005, Plaintiff reported to Dr. Scott that he had injured his back "installing an air filter in his car" and requested an increase in his pain medication. (Tr. 382) Dr. Scott refused to increase Plaintiff's pain medication and reviewed stretching and self-massage techniques to keep Plaintiff's "back in the best possible condition." (Tr. 383)
On June 30, 2005, Plaintiff was examined by Dr. Bonilla. (Tr. 351) He reported that steroid injections did not help. (Tr. 351) On examination, Plaintiff "show[ed] a significant amount of pain." However, his sensory motor strength and reflexes were normal, straight leg raise test was negative, and Plaintiff's report of lumbar pain was not significant. (Tr. 382) Dr. Bonilla recommended facet joint injections. ( Id.)
On October 13, 2005, Dr. Bonilla noted that throughout his treatment, Plaintiff has "failed to go to physical therapy." (Tr. 349) Dr. Bonilla "insisted . . . that he has to go to physical therapy and it is an integral part of his treatment." (Tr. 349) Dr. Bonilla noted that there was "nothing else procedure wise [he] would recommend." (Tr. 349)
On January 23, 2006, Plaintiff requested a "6-month temporary disability permit for his vehicle since [he] is still having significant low back pain." (Tr. 348) Dr. Bonilla prescribed the disabled parking permit. (Tr. 348) On March 2, 2006, Dr. Bonilla ordered more nerve block injections at L5-SI. (Tr. 347)
On April 14, 2006, Dr. Bonilla noted that Plaintiff had not followed his recommendation regarding nerve block injections. (Tr. 346) Plaintiff also failed to get an MRI because "he was busy doing other things and could not find the time to get to it." (Tr. 346) Plaintiff had only mild tenderness upon examination.
On May 8, 2006, Plaintiff had another MRI of his lumbar spine. (Tr. 344-45) The study showed moderate stenosis at L4-5 with "slight interval progression and worsening since the previous study of 09/09/2002," and "multilevel lumbar degenerative disc disease and annular bulging at other levels, which [did] not result in significant canal stenosis or nerve root sleeve amputation." (Tr. 345) The study further showed that Plantiff's spine was "relatively stable since the previous study." ( Id.)
On May 17 and July 18, 2006, Plaintiff reported to Dr. Bonilla that injections did not help. (Tr. 341-43) Dr. Bonilla referred Plaintiff to Donald D. Hales, M.D. for a surgical consultation. ( Id.)
On July 24, 2006, Dr. Hales conducted a neurosurgical evaluation. (Tr. 339-40) Dr. Hales found that Plaintiff was well-developed and in no acute distress, his reflexes were normal, he had only minimal weakness in his left leg, and a "weakly positive" straight leg raise test in the sitting position. Dr. Hales noted that there was little change between Plaintiff's MRI studies performed in 2002 and 2006. (Tr. 340) He noted that, due to the multilevel degeneration of Plaintiff's discs, "surgical intervention for back pain would most likely be unhelpful and probably lead to multiple surgeries." (Tr. 340) Dr. Hales indicated a one-level surgery "may be appropriate," but he also noted that mechanical back pain was "unlikely to be helped with that surgery." ( Id.) He told Plaintiff to consider their discussion before making a decision about surgery. (Tr. 340)
B. Medical Care Related to Mental Health
Plaintiff received treatment at the Guidance Center in Flagstaff, Arizona several times between August 7, 2001 to December 2003. (Tr. 235-60) On August 7, 2001, Plaintiff reported that he was depressed. (Tr. 258) Treatment notes describe Plaintiff's depression as episodic. ( Id.) Plaintiff reported that anti-depressants did not work and that he would "just like to get pain pills [and] feel good." (Tr. 258) Plaintiff reported altering a prescription for narcotics and said that "I guess I didn't get caught." (Tr. 258) Treatment notes indicate that Plaintiff might be addicted to pain pills he took "all the time." Plaintiff denied an addiction. (Tr. 258)
On August 7, 2001, Plaintiff was assessed with adjustment disorder, depressed type, and "probable . . . narcotic abuse." (Tr. 260) He was described as anxious because his "unemployment was running out." Treatment notes also indicated that Plaintiff was "working [with] voc[ational] rehab[ilitation] for employment." ( Id.)
Guidance Center treatment notes dated September 9, 2002 indicate that Plaintiff had "missed nearly all scheduled . . . appointments and had failed to respond to repeated attempts at contact." (Tr. 257) The signature of the individual who completed the form is illegible. (Tr. 257) Plaintiff was discharged from treatment. (Tr. at 256)
In December 2003, Plaintiff returned to the Guidance Center for an evaluation for benefits under the SSA. He reported depression and "daily panic attacks." (Tr. 244, 253) He reported no difficulties with self care. (Tr. 244) His provisional diagnoses were major depressive disorder, general anxiety disorder, and panic disorder. (Tr. 244, 252) Plaintiff was assessed a GAF score of 56.
A GAF score of 51-60 is indicative of moderate symptoms such as a flat affect or occasional panic attacks, or moderate difficulty in social, occupational or school functioning such as having few friends or conflicts with peers or co-workers. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Impairments, 4th text revision, 2000, p. 34 (DSM-IV-TR).
Upon referral from Dr. Brownsberger, on January 12, 2004, Plaintiff was treated by Dr. Krietsch, Ph.D, a psychologist. (Tr. 404-07) Plaintiff reported that physical therapy "aggravated his pain," but that medication was "somewhat helpful." ( Id.) Plaintiff denied abusing pain medication or engaging in other addictive behavior. (Tr. 404) Dr. Krietsch noted that Plaintiff had "a very significant psychiatric history even though he has not undergone a great deal of treatment." (Tr. 404) Upon testing, Dr. Krietsch noted that Plaintiff scored very low on defensiveness, which she opined could be a "cry for help," a "desire to convince others of the seriousness of his plight," or "an exaggeration of symptoms for secondary gain." (Tr. 405) Dr. Krietsch noted that "this bias raises questions about the accuracy and objectivity of [Plaintiff's] self-reports." (Tr. 405) She stated that "[c]ertainly, symptom magnification appears to be operating with this patient." (Tr. 405) Dr. Krietsch noted Plaintiff showed "an extreme level of diffuse somatic complaints," which was unlikely caused by a single medical condition. ( Id.) She further noted that Plaintiff displayed an "unusually high level of pain complaints," noting that such patients "tend to perceive themselves as being totally disabled with regard to most functions and activities." (Tr. 405) "[G]iven the objective medical findings," Dr. Krietsch noted that Plaintiff "may be strongly motivated to assume a disability role." (Tr. 406) Dr. Krietsch also noted that Plaintiff had a high level of depressive complaints and extreme anxious thoughts and feelings. (Tr. 406) Dr. Krietsch diagnosed major depression, recurrent and severe, anxiety disorder not otherwise specified, and rule out psychotic disorder. (Tr. 406) She assessed a GAF score of 40. She indicated that Plaintiff appeared to be a candidate for a psychological approach to pain management. She stated, "a psychiatric evaluation was warranted." (Tr. 406)
A GAF score of 31-40 is indicative of impairment in reality testing, impairment in speech and communication, or serious impairment in several of the following: occupational or school functioning, interpersonal relationships, judgment, thinking, or mood. DSM-IV-TR at 34.
Dr. Krietsch saw Plaintiff again on January 20 and 26, 2004. (Tr. 402-03) Plaintiff expressed anxiety about telling his supervisors about his work restrictions. (Tr. 403) Dr. Krietsch discussed coping strategies and Plaintiff's upcoming psychiatric consultation with Dr. Ernest Stewart at the Guidance Center. (Tr. 403) Dr. Krietsch "hope[d] that . . . [Plaintiff] would be placed on medication that would address his anxiety response and his depression." (Tr. 403)
Plaintiff saw Dr. Krietsch again on February 2, 2004 after his consultation with Dr. Stewart. (Tr. 401) Plaintiff reported that Dr. Stewart had prescribed Zoloft and valium. (Tr. 401) Dr. Krietsch noted that Plaintiff was resistant to returning to work which she attributed to his anxiety. ( Id.)
On January 27, 2004, Dr. Patricia Rose performed a consultative examination at the request of the State agency. (Tr. 313-18) On a mental status examination, Dr. Rose noted that Plaintiff's "mental status appeared to be within normal limits . . . with the exception of mild difficulty with short-term memory." (Tr. 313) Plaintiff reported experiencing depression since his accident in 2002, but "he said that he also experienced some depression before the accident." (Tr. 314) Plaintiff reported symptoms of depression including fatigue, feelings of worthlessness, spending money frivolously, cleaning obsessively, or leaving town without a destination. (Tr. 315) Dr. Rose noted that Plaintiff reported symptoms of anxiety that "were very vague," and noted that "it was difficult to determine if he was truly experiencing a panic attack or simply situational anxiety." (Tr. 315) Plaintiff reported having full custody of his 13-year-old son. (Tr. 315) He reported that he typically gets up at 7:00 a.m. and then checks his electronic mail and bank account online. (Tr. 316) During the day, Plaintiff watches television, cleans the house, cooks dinner, and eats with his son. In the evening, he watches more television and usually goes to bed around 10:00 p.m. (Tr. 316)
Plaintiff reported to Dr. Rose that he had worked as a delivery driver, roofer, and for a golf club manufacturer. (Tr. 316) He said he was fired from the golf club manufacturing job for "cussing at his supervisor." (Tr. 316) He had previously been "written up" at that same job. (Tr. 316) Plaintiff reported that he had "some insubordination problems in jobs," and that he was fired or quit "several roofing jobs because he disagreed with how the job should be done." ( Id.) He reported that while he had a history of arguing with supervisors, "he usually had no problems getting along with customers." (Tr. 316) Plaintiff cited back pain and "depression" as his primary obstacles to returning to work. (Tr. 316)
Dr. Rose noted that a physician would have to assess "the validity of [Plaintiff's] reported medical problems and their impact on his ability to perform work-related activities." (Tr. 317) From a psychiatric perspective, Dr. Rose opined that Plaintiff "did not present with any major personality disorder." (Tr. 317) She indicated that he was primarily experiencing depressive symptoms and occasional manic symptoms related to back pain. She noted, however, that Plaintiff reported having "these symptoms for years and in spite of that he last worked in October 2002, approximately 15 months ago." (Tr. 317) Dr. Rose further noted that Plaintiff "also worked for about 20 years, in spite of his reported symptoms, which suggest[s] that his symptoms are not as severe as he might have indicated." (Tr. 317) She acknowledged that Plaintiff's symptoms had been exacerbated by his accident, but noted that if he was able to successfully manage his pain, his depressive symptoms would decrease. (Tr. 317)
Dr. Rose noted that "[c]ertainly, [Plaintiff] does not appear to be experiencing any major psychiatric disorders that would logically preclude him from performing work-related activities, given that he had worked for 20 years in spite of his reported . . . depression and manic symptoms." (Tr. 317) Dr. Rose also noted that Plaintiff appeared to be a good candidate for vocational rehabilitation. (Tr. 317)
Dr. Rose also completed a functional capacity assessment form. (Tr. 319-20) She opined that Plaintiff had a "good ability to follow work rules, relate to co-workers, deal with the public, use judgment, function independently, maintain attention and concentration, understand, remember and carry out simple job instructions, and maintain personal appearance. (Tr. 319-20) "Good" was defined as "limited but satisfactory." ( Id.) She further indicated that Plaintiff's ability to understand, remember and carry out complex instructions was "poor." (Tr. 320) She also opined that Plaintiff's ability to interact with supervisors, deal with work stress, understand, remember and carry out "detailed but not complex" instructions, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability was "fair." (Tr. 319-20) "Fair" was defined as "seriously limited but not precluded." (Tr. 320) Dr. Rose explained her assessment of "fair" as related to Plaintiff's ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability, as based on Plaintiff's "past history of insubordination with supervisors." (Tr. 320)
On February 9, 2004, Plaintiff complained to Dr. Krietsch of increased pain due to "doing more activities around his home." (Tr. 400) Plaintiff reported improvement in his anxiety, but not his depression. Dr. Krietsch conducted a "mind-body induction . . . with the assistance of psychophysiological feedback." (Tr. 400) She "could tell from [Plaintiff's] behavior and from the electro-dermal response that he was resisting the procedure." (Tr. 400) Dr. Krietsch noted that Plaintiff "appears to be quite invested in his pain and does not engage in cognitive-behavior therapy or taking responsibility for his own self care." (Tr. 400) She further opined that Plaintiff "resists whatever intervention we try," was not "motivated to pursue psychological therapy, and in fact appear[ed] to be making efforts to undermine any chance of success." (Tr. 400) As a consequence, Dr. Krietsch discharged Plaintiff from treatment. ( Id.)
On February 11, 2004, Francis A. Enos, Ph.D, a psychologist, reviewed the record and completed psychiatric review technique and mental functional capacity forms. (Tr. 321-24, 325-27) Dr. Enos opined that Plaintiff had affective disorder that resulted in mild restrictions in his activities of daily living, maintaining social functioning, and maintaining concentration, persistence and pace. (Tr. 322-23) Plaintiff had no episodes of decompensation. (Tr. 323) Dr. Enos explained that his conclusions were based on Dr. Rose's findings that Plaintiff did "not appear to be experiencing any major psychiatric disorder that would logically preclude him from performing work related activities." (Tr. 324) Dr. Enos opined that Plaintiff was not significantly limited in 14 of 20 categories of work-related functions, and that there was "no evidence of limitation" in the remaining categories. (Tr. 325-26) Dr. Enos concluded that Plaintiff could "remember and carry out simple instructions, work cooperatively, do personal planning, interact with peers, [the] public and supervisors, work within a routine and a schedule, and complete a routine work week within his physical limitations." (Tr. 327)
A February 24, 2004 behavioral health update completed by Stephanie Knorr, clinical liason, and Patrese Metz, a "behavioral health professional," at the Guidance Center indicates that Plaintiff had major depression and problems with back pain and "workers comp." (Tr. 399) Plaintiff was assessed a GAF score of 65. A May 1, 2005 behavioral health update completed by Ms. Knorr and Debbie Maxwell, "CLS program manager," indicates that Plaintiff was depressed and had low back pain. Plaintiff was assessed a GAF score of 61. (Tr. 396-97) A May 3, 2006 behavioral health update completed by Ms. Knorr and Dr. Ernie Stewart indicated that Plaintiff had still not achieved "medication compliance." (Tr. 388-89) Plaintiff was diagnosed with panic disorder with agoraphobia, post-traumatic stress disorder, and borderline personality disorder. (Tr. 388-89) The report also noted that "generally, things were o.k.," and assessed a GAF score of 81. ( Id.)
A GAF score of 61-70 is indicative of mild symptoms in one area, or difficulty in social, occupational, or educational functioning. However, the individual is generally functioning well and has some meaningful interpersonal relationships. DSM-IV-TR at 34.
Agoraphobia is an abnormal and persistent fear of public places or open areas, especially those from which escape could be difficult or help not immediately accessible. People with agoraphobia also usually have panic disorder. www.medterms.com.
A GAF score of 81-90 indicates the individual has few or no symptoms, good functioning in several areas and no more than everyday problems or concerns. DSM-IV-TR at 34.
On September 5, 2006, Ernie Stewart M.D., with the Guidance Center, completed a "Supplemental Questionnaire as to Residual Functional Capacity," (Tr. 407-08) Dr. Stewart indicated that Plaintiff's abilities to understand, remember and carry out short, simple instructions and interact with the public were only slightly limited. (Tr. 407) A "slight limitation" was defined as "some mild limitations, [but] claimant can generally function well." ( Id.) Dr. Stewart opined that Plaintiff's abilities to make judgments on simple, work-related decisions and to interact appropriately with supervisors and co-workers was moderately limited. (Tr. 407-08) A "moderate limitation" was defined as "moderate limitations, [but] claimant functions well." (Tr. 407) Dr. Stewart indicated that Plaintiff's ability to understand and remember detailed instructions was "markedly limited." (Tr. 407) A "marked limitation" was defined as "serious limitations, ability to function is severely limited." (Tr. 407) Dr. Stewart opined that Plaintiff's limitations in his ability to respond appropriately to work pressure in a ususal work setting was "extreme," which was defined as "major limitation, no useful ability to function." (Tr. 407-408) Dr. Stewart did not provide any "medical/clinical findings" in support of his assessment, even though the form specifically requested such information. (Tr. 408)
C. Medical Evidence Submitted by Plaintiff
In addition to the foregoing, attached to Plaintiff's statement of facts is a form entitled "Medical Assessment of Ability to Do Work Related Activities" which Dr. Scott completed on August 30, 2006. (docket # 15, Exh. 1 at 3-5) Dr. Scott circled numbers which indicate that, during an eight-hour work day, Plaintiff could sit for 0-1 hours, or stand/walk for 0-1 hours, and that he could frequently lift up to 5 pounds and occasionally lift 10 pounds, and could carry up to 5 pounds occasionally. ( Id. at 3-4) Dr. Scott indicated that Plaintiff could use both hands for continuous actions such as grasping, pushing or pulling, or fine manipulations; he could use his feet for repetitive motions such as pushing controls; he could not bend, squat, crawl, or climb and could reach occasionally. ( Id. at 4) He should not be exposed to work-place hazards, or changes in temperature and only have limited exposure to respiratory irritants. (docket # 15, Exh. 1 at 4) Dr. Scott indicated that Plaintiff's activities were limited by pain and fatigue to a "moderately severe" level. ( Id. at 5) Dr. Scott indicated that his assessment could "be reasonably expected to result from a medically determinable impairment as set forth in the diagnostic impression in your narrative report." ( Id.) However, there is no "narrative report" attached to Dr. Scott's assessment and he did not include any remarks or comments to explain his assessment. ( Id.)
V. Analysis
In his Motion for Summary Judgment, Plaintiff claims "that the ALJ's decision is arbitrary and capricious and contrary to law" and, therefore, requests the Court "vacate the decision of the ALJ" and "grant his disability status." (docket # 16 at 2, 7) The Motion for Summary Judgment presents two main grounds for relief: (1) the ALJ erred by rejecting the opinions of Plaintiff's treating doctors, Dr. Krietsch, Dr. Stewart, Dr. Saiz, Dr. Scott, and Dr. Nicol; and (2) the ALJ failed to consider "the assessment of Dr. Scott as it appears that opinion never was placed in the record although the Office of Disability Adjudication and Review received it." ( Id. at 7) Plaintiff also raises several sub-arguments which the Court will address. Plaintiff requests that the Court remand for an award of benefits. In response to Plaintiff's Motion and in the Cross-Motion for Summary Judgment, the Commissioner frames the issues as follows: (1) the ALJ did not err in concluding that Plaintiff was not mentally disabled; and (2) the ALJ did not err in concluding that Plaintiff was not physically disabled. (docket # 20 at 2, 6) The Court will address these arguments below.
A. Weight Assigned to Physicians' Opinions
Title II's implementing regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physician); (2) those who examine but do not treat claimant (examining physician); and (3) those who neither treat nor examine the claimant (non-examining physician). 20 C.F.R. § 404.1527(d). Ordinarily, the opinion of a treating or examining doctor is given more weight than the opinion of a nonexamining source. 20 C.F.R. §§ 404.1527(d)(1), (2); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If a treating or examining physician's medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record, that physician's opinion is given controlling weight. 20 C.F.R. § 404.1527(d)(2); Social Security Ruling (SSR) 96-2p; Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). However, "the treating physician's opinion . . . is not necessarily conclusive as to either a physical condition or to the ultimate issue of disability." Magallanes, 881 F.2d at 751. A treating physician's opinion may be given controlling weight only if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with the other substantial evidence in the record. See, 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (1999). If a treating physician's opinion is "brief and conclusionary in form with little in the way of clinical findings to support [its] conclusion," an ALJ need not accept it. Magallanes, 881 F.2d at 751. An ALJ may not reject a treating physician's opinion unless the ALJ "makes findings setting forth specific legitimate reasons for doing so that are based on substantial evidence in the record." Smolen, 80 F.3d at 1285. If the treating physician's opinion is uncontroverted, the ALJ's reasons for rejecting the opinion must be clear and convincing. Id.
Mindful of the foregoing principles, the Court concludes that the ALJ properly assessed the opinions of treating physicians and assigned those opinions appropriate weight.
B. Assessment of Plaintiff's Mental Health
Plaintiff argues that the ALJ erred in rejecting the opinions of the treating psychologist, Dr.Krietsch, and treating psychiatrist, Dr. Stewart, which Plaintiff claims "indicated restrictions which would not allow for sustained employment." (docket # 16 at 2)
The ALJ found that Plaintiff had depression secondary to pain, which was a severe impairment. (Tr. 16, 19) The ALJ concluded, however, that Plaintiff's mental impairment limited him to routine work, described as work with minimal changes in routine, no high production quotas, or production expectations. Contrary to Plaintiff's assertion, in reaching this conclusion, the ALJ properly evaluated the opinions of the treating doctors and the ALJ's decision is supported by substantial evidence in the record.
1. Dr. Krietsch's Opinion
Plaintiff claims that Dr. Krietsch opined that he was disabled and that the ALJ failed to adequately explain his reasons for rejecting that opinion. Specifically, Plaintiff argues that Dr. Krietsch's assessment of a GAF score of 40 during her initial examination of Plaintiff in January of 2004 indicates that she considered Plaintiff unable to work. (Tr. 406) Plaintiff's argument fails because his characterization of Dr. Krietsch's opinion focuses on a single aspect of Dr. Krietsch's treatment notes which does not directly correlate with disability and ignores other significant portions of her treatment notes.
As an initial matter, Plaintiff cites no authority for his implication that a GAF score equates with disability. Moreover, courts have specifically held that a GAF score does not directly correlate to disability. 65 Fed Reg. 50746, 50764-65 ("The GAF score . . . does not have a direct correlation to the severity requirements in [SSA's] mental disorder listings"); Howard v. Comm'r. of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (GAF score may assist ALJ in formulating a claimant's RFC, but is not essential). Similarly, the Ninth Circuit has found that a claimant with a GAF score 40 was not disabled. See, Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (claimant with a GAF score of 40 was not disabled); Morgan v. Comm'r. of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (claimant with GAF scores ranging from 45 to 61 was not disabled)
The ALJ acknowledged the GAF score of 40 which Dr. Krietsch assessed in January of 2004 and assigned little weight to that score because it was inconsistent with her other treatment notes. (Tr. 17, 406) The ALJ's decision is supported by substantial evidence in the record as set forth below.
Dr. Krietsch treated Plaintiff from January 12, 2004 to February 9, 2004. (Tr. 400-406) Her treatment notes indicate that she did not consider Plaintiff unable to work. Rather, she noted that Plaintiff exaggerated his symptoms, was invested in his pain, did not participate in treatment, and resisted self-management of pain control. (Tr. 401-06) Specifically, at her initial examination of Plaintiff, Dr. Krietsch noted that Plaintiff's test scores were consistent with "an exaggeration of symptoms for secondary gain." (Tr. 405) She further noted that "this bias raises questions about the accuracy and objectivity of [Plaintiff's] self-reports." ( Id.) Dr. Krietsch also stated that "[c]ertainly, symptom magnification appears to be operating with this patient." ( Id.)
During subsequent evaluations, Dr. Krietsch tried to teach Plaintiff "cognitive coping strategies" (Tr. 403) and psychological approaches to anxiety management (Tr. 402) which Plaintiff "resisted." (Tr. 402) In her February 2, 2004 treatment notes, Dr. Krietsch expressed concern that Plaintiff would "resist and undermine" mind-body techniques for controlling anxiety. (Tr. 401)
In her final evaluation of Plaintiff on February 9, 2004, Dr. Krietsch noted that Plaintiff was unmotivated to improve, was "quite invested in his pain" and was "making efforts to undermine any chance of success." (Tr. 405) She further stated that, Plaintiff "resist[ed] whatever intervention we try," Plaintiff was not "motivated to pursue psychological therapy," and he "does not engage in the process of cognitive-behavior therapy or taking responsibility for his own self care." (Tr. 400) As a consequence, Dr. Krietsch discharged Plaintiff from treatment. (Tr. 400)
In summary, contrary to Plaintiff's assertion, Dr. Krietsch never opined that Plaintiff could not work or was disabled. Rather, her treatment notes reveal that Plaintiff undermined his treatment and was not motivated to improve. The ALJ did not err in failing to assign more weight to Dr. Krietsch's initial assessment of a 40 GAF score which was not supported by her subsequent treatment notes and does not directly correlate with disability. See 20 C.F.R. § 404.1527(d)(3) (the weight given a medical source opinion is proportional to the degree to which it is supported with medical signs and laboratory findings.); Batson v. Comm'r. Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly rejected opinion of treating physicians as they "lacked substantive medical findings to support her conclusion."); Thomas v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002) (treating physician's opinion may be rejected if unsupported by doctor's examination record).
Plaintiff further asserts that the VE testified that a GAF score of 40 would preclude employment. (docket # 16 at 5-6) A VE is not qualified to make judgment regarding medical evidence. Sample v. Schweiker, 694 F.2d 639, 644 n. 6 (9th Cir. 1982) (VE is not qualified to testify regarding "medical implications of the evidence presented."). Rather, a VE "merely translates factual scenarios into realistic job market possibilities." Id. at 643. Moreover, Dr. Krietsch's 40 GAF score does not represent all of her findings as set forth above. In view of the foregoing, the VE's testimony regarding the GAF score of 40 is not persuasive.
2. Dr. Stewart
Plaintiff also argues that the ALJ erred in rejecting psychiatrist Dr. Stewart's opinion that Plaintiff was markedly limited in his ability to understand detailed instructions, respond appropriately to changes in a routine work setting, and was extremely limited in his ability to respond appropriate to work pressure. (docket # 16 at 6; Tr. 407-08) The VE testified that work would not be available for an individual with those limitations. (Tr. 439-442) The ALJ explained that he gave "little weight" to Dr. Stewart's September 5, 2006 "Supplemental Questionnaire as to Residual Functional Capacity" because Dr. Stewart's findings of "extreme" functional limitations in responding appropriately to work pressures and "marked" limitation in responding to workplace changes were "inconsistent with the other clinical findings, as well as his own therapist's treatment notes." (Tr. 17) The record supports the ALJ's conclusion.
As the ALJ noted, a behavioral update form signed by Dr. Stewart and "clinical liason" Stephanie Knorr contained findings that were inconsistent with the "extreme" and "marked" limitations that Dr. Stewart assessed. (Tr. 388-89, Tr. 396-97, 399, Tr. 407-08) The May 3, 2006 form stated that "generally things were o.k." with Plaintiff. (Tr. 388) Additionally, Dr. Stewart and Ms. Knorr assessed Plaintiff a GAF score of 81 which, although it does not correlate directly with disability, indicates that Plaintiff has few or no symptoms, good functioning in several areas, and no more than everyday problems and concerns. DSM-IV-TR at 34. Additionally, Dr. Stewart's September 2006 assessment does not include any supporting documentation or other explanation for his findings. (Tr. 407-08) In view of the foregoing, the ALJ properly afforded little weight to Dr. Stewart's September 2006 Residual Functional Capacity Assessment. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ properly rejected opinions expressed as a check-off reports that did not contain explanations); 20 C.F.R. § 404.1527(d)(3) (the weight given a medical source opinion is proportional to the degree to which it is supported with medical signs and laboratory findings.); Batson, 359 F.3d at 1195 (ALJ properly rejected opinion of treating physicians as they "lacked substantive medical findings to support her conclusion."); Thomas v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2001) (treating physician's opinion may be rejected if unsupported by doctor's examination record); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (treating physician's opinion properly rejected as treatment notes failed to present "the sort of description and recommendations one would expect to accompany a finding that [claimant] was totally disabled under the [Social Security] Act.").
3. Examining Doctors
Plaintiff further claims that "all examining opinions, from a psychological perspective, suggest that [Plaintiff's] psychological problems do not allow him to sustain employment." (docket # 16 at 6) Contrary to this assertion, the record reflects that none of the examining doctors found Plaintiff disabled due to psychological issues.
Plaintiff essentially argues that the findings of state agency doctor Patricia Rose are indicative of disability. (docket # 16 at 4) The record does not support Plaintiff's assertion. As the ALJ noted, Dr. Rose concluded that "[c]ertainly, [Plaintiff] does not appear to be experiencing any major psychiatric disorders that would logically preclude him from performing work-related activities," and that Plaintiff was "a good candidate for Vocational Rehabilitation." (Tr. 17, 317)
The ALJ acknowledged Dr. Rose's opinion that Plaintiff had "fair" limitations in performing complex work and dealing with work stress. However, the ALJ concluded that those limitations were not supported by the medical record. This conclusion is supported by substantial evidence. Dr. Rose's assessment that some of Plaintiff's abilities were "fair" was not based on psychological findings, but on Plaintiff's reported insubordination on the job. (Tr. 316, 320) Plaintiff reported to Dr. Rose several instances where he was fired or quit a job because he "disagreed with how the job should be done." (Tr. 316)
At the hearing before the ALJ, Plaintiff posed a hypothetical to the VE based on an inaccurate description of Dr. Rose's findings. Dr. Rose opined that Plaintiff's ability to interact with supervisors, deal with work stress, understand, remember and carry out "detailed but not complex" instructions, behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability was "fair." (Tr. 319-20) "Fair" was defined as "seriously limited but not precluded." (Tr. 320) Dr. Rose explained that she assessed as "fair" Plaintiff's ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability based on Plaintiff's "past history of insubordination with supervisors." (Tr. 320)
When Plaintiff posed a hypothetical to the VE based on Dr. Rose's findings he indicated that Dr. Rose considered Plaintiff " seriously limited" in his ability to behave in an emotionally stable manner, relate predictably in social situations and demonstrate reliability. The VE testified that work would be precluded for a person with such limitations. (Tr. 439-40) Plaintiff's use of the phrase "seriously limited," was misleading because Dr. Rose had described Plaintiff's foregoing abilities as "fair" meaning "seriously limited but not precluded." (Tr. 319-20) Plaintiff also failed to explain that Dr. Rose's assessment of "fair" was based on Plaintiff's past insubordination with supervisors, not his mental health status examination. (Tr. 320) Moreover, Plaintiff did not inform the VE that Dr. Rose concluded in the narrative section of her report, that Plaintiff was "not experiencing any major psychiatric disorders that would logically preclude him from performing work-related activities." (Tr. 317) In view of the foregoing, the VE's testimony based on the "Dr. Rose hypothetical" was based on an incomplete description of Dr. Rose's findings and, therefore, is not persuasive.
In summary, the ALJ sufficiently explained his rationale for not giving deference to the opinions of the treating physicians that were inconsistent with other substantial evidence in the record or with the doctor's own treatment notes. The Court finds that the ALJ did not err in finding Plaintiff not mentally disabled because substantial evidence supports that conclusion.
C. Physical Disability
The ALJ also concluded that Plaintiff was limited to sedentary work that did not include bending to the floor. (Tr. 16, 19) The ALJ's conclusion is supported by substantial evidence in the record. In support of his conclusion, the ALJ cited Plaintiff's MRI results which showed mild to moderate degeneration. (Tr. 130-32, 134, 137, 193, 211, 222, 340, 344-45) The ALJ also noted that Plaintiff's most recent MRI, from 2006, showed only a slight progression from the 2002 MRI. (Tr. 340, 345) The ALJ noted Dr. Nicol's findings that Plaintiff had good reflexes, normal strength and a negative straight-leg raise test. (Tr. 134) He also noted Dr. Scott's treatment notes which revealed that Plaintiff's condition was generally stable with his ongoing narcotics prescriptions for low back pain. (Tr. 362, 387) Finally, the ALJ noted that state agency doctors reviewed the evidence and concluded that Plaintiff could perform light work with additional postural and reaching limitations. (Tr. 16, 121-22, 140-44, 236-40) Based on this evidence, the ALJ found Plaintiff limited to sedentary work, with bending restrictions.
Additional evidence in the record supports the ALJ's findings. Warre v. Comm'r, Soc. Sec., 439 F.3d 1001, 1005 n. 3 (9th Cir. 2006) (citation is permitted to record evidence that bolsters an ALJ's findings even if the ALJ did not cite that evidence). The ALJ's conclusion that Plaintiff could perform sedentary work is supported by Dr. Saiz's treatment notes which show that Plaintiff's complaints were inconsistent with the objective findings, that Plaintiff was interested in staying off work, and that he violated his narcotics contract. (Tr. 177, 191-94, 210-11) Dr. Saiz ultimately discharged Plaintiff from treatment for these reasons. (Tr. 177) The ALJ's conclusion is supported by Dr. Brownsberger's treatment notes that Plaintiff's complaints of pain, both before and after nerve root blocks, were "quite vague." (Tr. 133, 268) The ALJ's conclusion is further supported by Dr. Beghin's, Dr. Wolff's, Dr. Bonilla's, and Dr. Hales' examination findings which reported that Plaintiff was in "no acute distress," examination of his back was "unremarkable," and that Plaintiff had normal sensory findings, normal strength, a normal gait, and that the MRI results were "unimpressive." (Tr. 136-37, 151-52, 160, 330-40, 351, 354-55) Additionally, Dr. Bonilla noted that Plaintiff "has failed to go to physical therapy" despite the fact that "it [was] an integral part of his treatment." (Tr. 349) Dr. Saiz also noted that Plaintiff's degenerative changes were "not acute conditions, but were common degenerative conditions" that can start as early as thirty years of age. (Tr. 211)
Plaintiff also asserts that the ALJ erred by not addressing the "off work status" given by Drs. Saiz and Nicol. (docket # 16 at 6-7) As an initial matter, the opinions of Drs. Saiz and Nicols regarding Plaintiff's ability to work do not constitute "medical opinion." See, 20 C.F.R. § 416.927(a)(2) (e). "[A] statement from a treating physician that a claimant is disabled or unable to work is not binding on the Commissioner." See, 20 C.F.R. § 416.927(e)(1) (stating that "[w]e are responsible for making the determination or decision about whether you meet the statutory definition of disability . . . A statement by a medical source that your are `disabled' or `unable to work' does not mean that we will determine that you are disabled.")
Additionally, Plaintiff ignores the fact that both Dr. Saiz and Dr. Nicol merely concluded that Plaintiff should perform less strenuous work, not that he should refrain from all work. (Tr. 134-135, 191, 193) Both doctors opined that Plaintiff's MRIs results were mild and/or inconsistent with his complaints and that he was not a surgical candidate. (Tr. 134, 177, 191, 193, 211). Dr. Saiz opined that Plaintiff was attempting to prolong his off-work status and eventually terminated his treatment of Plaintiff. (Tr. 210-11) The record also reflects that the "off work status" was meant to be temporary while Plaintiff pursued treatment. (Tr. 210, 134) On October 21, 2002, Dr. Saiz wrote Plaintiff an "off-work" prescription "until the effects of the epidurals were ascertained." (Tr. 210) Dr. Saiz refused to extend that excuse while Plaintiff was vacillating about his treatment plan. (Tr. 210) Dr. Saiz noted his goal of returning Plaintiff to work "as quick as possible." (Tr. 210-11) Similarly, on November 25, 2002, Dr. Nicol indicated that Plaintiff should pursue "more formal physical therapy" and remain off work until therapy was completed. (Tr. 134) Dr. Nicol also advised Plaintiff to pursue less strenuous work. (Tr. 134-35) In view of the foregoing, the ALJ did not err by failing to expressly discuss the "off work" status assessed by Drs. Nicol or Saiz.
Plaintiff also argues that the absence of a "work release" indicates that he is disabled. (docket # 16 at 6) Plaintiff, again, misrepresents the record. On December 18, 2003, Dr. Brownsberger noted that Plaintiff "was given modified work release with limited lifting and bending and the ability to reposition himself on a regular basis." (Tr. 263)
Finally, the record reveals that several treating doctors believed that Plaintiff was inappropriately trying to prolong his off-work status or undermine his treatment. Warre, 439 F.3d at 1005, n. 3. Physical therapy notes from June and July 2002 indicate that Plaintiff was terminated because he repeatedly missed appointments. (Tr. 226-30, 278) Dr. Saiz told Plaintiff his "goal was to get [him] back to work in as quick a manner as possible" and that he "was not willing to keep the patient out of work while he decided on a plan that was proposed to him approximately 13 days before." (Tr. 210-11) He noted that if Plaintiff chose not to pursue available treatment options, he could not be treated. (Tr. 210-11)
Dr. Brownsberger discussed that because Plaintiff was being treated "in the context of the industrial system," it was the doctor's "duty to define . . . modified work activities." (Tr. 263) Dr. Bonilla noted that throughout his treatment, Plaintiff "failed to go to physical therapy" while the doctor "insisted . . . that he go to physical therapy and it is an integral part of his treatment." (Tr. 349) Dr. Bonilla noted that there was "nothing else procedure wise he would recommend." ( Id.)
D. Residual Functional Capacity
Plaintiff further argues that the ALJ's RFC finding "is not founded by any examining physician." (docket # 16 at 7) Plaintiff's argument is limited to this single statement and does not include any citation to factual or legal support. Moreover, the RFC finding is within the province of the ALJ and, therefore, need not correspond precisely to any physician's findings. Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (stating that "[i]t is clear that it is the responsibility of the ALJ, not the claimaint's physician, to determine residual functional capacity.") Additionally, Dr. Brownsberger's December 2003 treatment notes assess essentially the same limitations which the ALJ found — that Plaintiff had restrictions on bending and lifting with the ability to reposition himself on a regular basis. (Tr. 263)
E. Dr. Scott's August 2006 Assessment
Plaintiff further argues that remand is necessary on the basis of a "Medical Assessment of Ability to do Work Related Activities" completed by Dr. Scott on August 30, 2006. Again, Plaintiff presents a conclusory argument which contains no citation to legal authority. (docket # 16 at 7) Plaintiff claims that Dr. Scott's report was sent to the ALJ on September 5, 2006. (docket # 15, Exh. 1) He presents a certified mail receipt dated September 8, 2006. ( Id.) However, the 2006 report was not placed in the record. ( Id.) Plaintiff seeks remand for consideration of evidence that he claims was not before the ALJ during the hearing. A reviewing court may remand based on evidence that was not before the ALJ only if plaintiff demonstrates that the evidence is material and that good cause exists for his failure to present it in a prior proceeding. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). To be "material" the new evidence must "bear directly and substantially on the matter in dispute" and must present a reasonable possibility that it would have changed the outcome if it had been considered by the fact finder. Mayes, 276 F.3d at 462 (citing Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir. 1983)); Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990). To demonstrate good cause, the claimant must demonstrate that the new evidence was unavailable earlier. Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) ("If new information surfaces after the Secretary's final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding, the good cause requirement is satisfied"); see also Sanchez v. Secretary of Health Human Servs., 812 F.2d 509, 512 (9th Cir. 1987) (holding that the applicant lacked good cause to remand for consideration of two psychological examinations prepared after the applicant's disability determination when his attorney knew of the applicant's memory loss but failed to explain why the applicant had not requested a mental evaluation or pressed his mental impairment claim at the hearing before the ALJ). The claimant must also establish good cause for not having sought the expert's opinion earlier. Clem, 894 F.2d at 332. Plaintiff does not even attempt to establish materiality or cause. And even assuming Plaintiff could somehow establish cause, as discussed below, he cannot show that the report was material. Dr. Scott treated Plaintiff from April 2005 to June 2006. (Tr. 362-87) He consistently described Plaintiff as being in no acute distress. ( Id.) He described Plaintiff as healthy for his age with normal reflexes and no paraspinal discomfort. (Tr. 385) On August 30, 2006, Dr. Scott completed a check-marked form without providing any supporting narrative. (Plaintiff's Exh. 1 at 3-5) Dr. Scott's 2006 assessment indicates that Plaintiff's activities were limited by pain and fatigue of a "moderately severe" level and that Plaintiff could sit or stand/walk for one hour in an eight hour day, frequently lift up to five pounds, occasionally carry up to five pounds, and occasionally lift 10 pounds. (docket # 15, Exh. 1 at 3-4)
Because Dr. Scott's 2006 assessment does not appear in the record, it is not clear whether the ALJ had the 2006 report before him when he rendered his opinion. However, the transcript of the 2006 hearing reveals that Plaintiff asked the VE a hypothetical based on Dr. Scott's 2006 assessment (Tr. 443-44) which the ALJ considered "pretty vague" and did not require the VE to answer the question. (Tr. 443-44) Additionally, in his opinion, the ALJ expressly addressed Dr. Scott's treatment records and noted that they showed stability in Plaintiff's condition with narcotic treatment. (Tr. 16, 362-87) Batson, 359 F.3d at 1195; Thompson, 278 F.3d at 957. Dr. Scott's treatment notes do not support his 2006 assessment. Dr. Scott's treatment notes merely indicate lumbar discomfort with range of motion testing and palpation, and rising with a stooped and stiff posture. (Tr. 362-87). In view of the inconsistency between Dr. Scott's treatment notes which span over a year and his August 2006 assessment form which contains absolutely no explanation, the 2006 assessment does not present a reasonable possibility that it would have changed the outcome if it had been considered by the ALJ. Booz, 734 F.2d at 1480; Clem v. Sullivan, 894 F.2d 328, 332 (9th Cir. 1990); Rollins, 261 F.3d at 856 (treating physician's opinion properly rejected as treatment notes failed to present "the sort of description and recommendations one would expect to accompany a finding that [the claimant] was totally disabled under the [Social Security] Act.")
VI. CONCLUSION
The ALJ did not commit legal error in failing to give more weight to Dr. Krietsch's 40 GAF score and Dr. Stewart's assessment of Plaintiff's limitations. Moreover, the record contains substantial evidence in support of the ALJ's conclusion that Plaintiff was not disabled. The ALJ also correctly assessed Plaintiff's residual functional capacity. The Court will therefore deny Plaintiff's Motion for Summary Judgment and grant Defendant's Cross-Motion for Summary Judgment. In summary, the ALJ properly assessed the evidence and concluded that Plaintiff was capable of performing a range of sedentary work. Additionally, Plaintiff has failed to show that Dr. Scott's August 2006 report, which Plaintiff submitted with his motion for summary judgment, warrants remand.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment (docket # 15) is DENIED. IT IS FURTHER ORDERED that Defendant's Cross-Motion for Summary Judgment (docket # 18) is GRANTED. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment against Plaintiff and in favor of Defendant.