Lynn v. Astrue, No. 3:2008cv00022 - Document 16 (S.D. Cal. 2009)
Court Description: ORDER Granting in part and Denying in part 12 Plaintiff's Motion for Summary Judgment; Granting in part and Denying in part 13 Defendant's Motion for Summary Judgment. The Court remands this case to the Commissioner of Social Security for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly. Signed by Judge Barry Ted Moskowitz on 12/8/09. (Attachments: # 1 Transfer letter)(Certified copy of transfer order and docket sheet sent). (vet)(av1).
Download PDF
<![CDATA[
Lynn v. Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TERI L. LYNN, CASE NO. 08cv0022 BTM (CAB) Plaintiff, 12 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT vs. 13 14 MICHAEL J. ASTRUE, 15 Defendant. 16 Plaintiff and Defendant have filed cross-motions for summary judgment. For the 17 reasons set forth below, the Court GRANTS in part and DENIES in part Plaintiff’s Motion 18 for Summary Judgment and GRANTS in part and DENIES in part Defendant’s Motion for 19 Summary Judgment. 20 21 I. BACKGROUND 22 Plaintiff Teri L. Lynn (“Plaintiff” or “Lynn”) was born on July 27, 1969. She alleges that 23 she became disabled on November 2, 2004 due to severe migraines, vertigo, and a heart 24 condition. (Tr. 99.) Prior to her alleged disability period, Plaintiff held jobs as a customer 25 service representative, sales manager, secretary, and store manager. (Tr. 100.) 26 On August 23, 2005, Plaintiff Teri L. Lynn (“Plaintiff” or “Lynn”) filed an application for 27 disability benefits under Title II of the Social Security Act. On December 7, 2005, the Social 28 Security Administration (“SSA”) denied Lynn’s application. (Tr. 39–43.) On January 22, 1 08cv0022 BTM (CAB) Dockets.Justia.com 1 2006, Lynn filed a request for reconsideration. (Tr. 44.) On May 11, 2006, the SSA again 2 denied Lynn’s application. (Tr. 46–50.) 3 On July 9, 2006, Lynn filed a request for a hearing by an administrative law judge. (Tr. 4 51.) Administrative Law Judge Edward D. Steinman (the “ALJ”) held a hearing on February 5 6, 2007. (Tr. 284–307.) On March 30, 2007, the ALJ issued a notice of decision denying 6 benefits to Lynn. (Tr. 23–32.) On November 5, 2007, the Appeals Council of the Social 7 Security Administration denied Lynn’s request to review the ALJ’s determination. (Tr. 4–7.) 8 9 On January 3, 2008, Plaintiff filed a Complaint for Review with this Court. 10 11 II. THE ALJ’S FINDINGS AND CONCLUSIONS 12 The ALJ followed the five step process set forth under the Social Security Regulations 13 to determine that Lynn was not disabled. The five steps are as follows: (1) Is the claimant 14 presently working in any substantially gainful activity? If so, then the claimant is not disabled. 15 If not, then the evaluation proceeds to step two. (2) Is the claimant’s impairment severe? If 16 not, then the claimant is not disabled. If so, then the evaluation proceeds to step three. (3) 17 Does the impairment “meet or equal” one of a list of specific impairments set forth in 18 Appendix 1 to Subpart P of 20 C.F.R. Part 404? If so, then the claimant is disabled. If not, 19 then the evaluation proceeds to step four. (4) Is the claimant able to do any work that she 20 has done in the past? If so, then the claimant is not disabled. If not, then the evaluation 21 proceeds to step five. (5) Is the claimant able to do any other work? If not, then the claimant 22 is disabled. If, on the other hand, the Commissioner can establish that there are a significant 23 number of jobs in the national economy that the claimant can do, then the claimant is not 24 disabled. 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 25 1999). 26 The ALJ first determined that Plaintiff had not engaged in substantial gainful activity 27 since her alleged onset date of November 2, 2004. (Tr. 28.) Proceeding to step two, the ALJ 28 found severe impairments including migraines, vertigo, and Meniere’s disease. (Tr. 28.) At 2 08cv0022 BTM (CAB) 1 step three, however, the ALJ held that Lynn’s impairments did not “meet or equal” one of the 2 listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 28.) The ALJ relied 3 upon the testimony of the medical expert (“ME”) to conclude, at step four, that Lynn had the 4 residual functional capacity to perform work activity without any exertional limitations and 5 occasional postural limitations for balancing and climbing and no climbing ropes, ladders or 6 scaffolds, and avoiding concentrated exposure to noise and vibration, and avoiding all 7 exposure to hazards such as machinery and heights. (Tr. 31.) The ALJ found that the 8 Plaintiff’s statements regarding the intensity, persistence, and limiting effects of her 9 symptoms were not entirely credible. (Tr. 31.) Additionally, the ALJ determined that the 10 letter opinions from Lynn’s treating physician, Dr. Hoffer, were inconsistent with his 11 examinations of record, and, therefore, entitled to little weight. (Tr. 32.) Finally, the ALJ 12 credited the vocational expert’s (“VE”) testimony that an individual Plaintiff’s age and 13 education level, with similar work experience and residual functional capacity, could perform 14 the duties of Plaintiff’s past relevant work activity as a store manager (“Manager, Retail 15 Store” - DOT # 185.167-046), secretary (“Secretary” - DOT # 201.362-030), or general office 16 administrative clerk (“Administrative Clerk” - DOT # 219.362.010). (Tr. 32.) 17 18 III. STANDARD 19 The Commissioner’s denial of benefits may be set aside if it is based on legal error 20 or is not supported by substantial evidence. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th 21 Cir. 1997). Substantial evidence is more than a scintilla but less than a preponderance. Id. 22 Substantial evidence is “relevant evidence which, considering the record as a whole, a 23 reasonable person might accept as adequate to support a conclusion.” Flaten v. Secretary 24 of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The Court must weigh the 25 evidence that supports and detracts from the ALJ’s conclusion and, where the evidence 26 tends to support either outcome, the Court cannot substitute its own opinion for that of the 27 ALJ. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992); Martin v. Heckler, 807 F.2d 28 771, 772 (9th Cir. 1986). 3 08cv0022 BTM (CAB) 1 IV. DISCUSSION 2 Plaintiff appeals the ALJ’s decision on two grounds. First, Plaintiff argues that the 3 ALJ’s decision must be vacated because the ALJ’s finding that Plaintiff could perform her 4 past relevant work activities was based on legal error and not supported by substantial 5 evidence. Second, Plaintiff contends that the ALJ’s rejection of Plaintiff’s treating physician’s 6 opinion was based on legal error and not supported by substantial evidence. 7 8 A. Plaintiff’s Ability to Perform Past Relevant Work Activities 9 Plaintiff argues that the ALJ’s finding that Plaintiff could perform her past relevant work 10 activities was based on legal error because the ALJ failed to ask the VE whether her 11 testimony conflicted with the Dictionary of Occupational Titles (“DOT”) and, if so, whether 12 there was a reasonable explanation for the conflict. 13 Under SSR 00-4p, the ALJ has an affirmative duty to ask about any possible conflict 14 between the VE evidence and information provided in the DOT. The ALJ must (1) ask the 15 VE if the evidence he or she provided conflicts with information provided in the DOT; and (2) 16 if the VE's evidence appears to conflict with the DOT, obtain a reasonable explanation for the 17 apparent conflict. A reasonable explanation for a conflict may be based on information that 18 is not included in the DOT – e.g., information obtained directly from employers or other 19 publications about a particular job's requirements or information based on the VE’s own 20 experience in job placement or career counseling. SSR 00-4p. 21 In Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), the Ninth Circuit held that the 22 ALJ must perform the inquiries under SSR 00-4p before relying on a VE’s testimony 23 regarding the requirements of a particular job. If the ALJ fails to do so despite a potential 24 conflict between the VE’s testimony and the DOT, the Court cannot determine whether the 25 ALJ’s decision that the plaintiff can perform other work was supported by substantial 26 evidence and, therefore, must remand the case. Id. at 1154. 27 To determine whether Plaintiff could perform her past relevant work activities, the ALJ 28 proposed the following hypothetical to the VE: “[N]o exertional limitations. No ropes, ladders 4 08cv0022 BTM (CAB) 1 or scaffolds. Occasional climbing and balancing. The rest of the posturals frequent. Avoid 2 concentrated exposure to noise, vibration, and avoid all exposures to hazards.” (Tr. 305.) 3 The VE responded that with these limitations, Plaintiff could perform all her former work 4 activities of secretary, store manager, and administrative clerk. Plaintiff argues that ALJ 5 should have asked the VE whether the limitation of “avoiding concentrated exposure to 6 noise” conflicted with the environmental conditions of Plaintiff’s three past relevant work 7 activities, as defined by the DOT. The DOT indicates that the work activities of a secretary, 8 store manager, and administrative clerk all involve “moderate noise level.” See U.S. 9 Department of Labor, Selected Characteristics of Occupations Defined in the Revised 10 Dictionary of Occupational Titles, App. D (1993); (Tr. 143.) Thus, Plaintiff contends, the ALJ 11 had an affirmative duty to identify and obtain a reasonable explanation between Plaintiff’s 12 concentrated noise limitation and the VE’s testimony that she could perform work activities 13 with a moderate noise level. 14 The Government responds, however, that because the VE noted in her “Study 15 Worksheet” (Tr. 142–45) that all three jobs involved a moderate level of noise, she was “fully 16 aware” of these environmental conditions, and necessarily determined that the performance 17 of work activities with a moderate level of noise did not conflict with the need to avoid 18 concentrated noise. The Court disagrees. 19 Even if the VE was “fully aware” of the moderate noise level involved with all three 20 positions, her knowledge did not relieve the ALJ of his obligation to identify and obtain an 21 explanation for the apparent conflict. The record does not define “concentrated” noise or 22 make clear how it differs from a moderate noise level. While it is possible that an individual 23 required to avoid concentrated noise as a result of her impairments could perform work 24 activities with a moderate level of noise, SSR 00-4p obligated the ALJ to question the VE 25 about this uncertainty. The ALJ did not ask the VE about the conflict and did not explain how 26 the conflict was resolved in his determination. 27 The Court finds the case of Prochaska v. Barnhart, 454 F.3d 731 (7th Cir. 2006), to 28 be instructive. In Prochaska, the plaintiff argued that the jobs identified by the VE required 5 08cv0022 BTM (CAB) 1 specific physical capabilities that were beyond her limitations. Although the ALJ asked the 2 expert about work that could be done by someone who could only “occasionally reach above 3 shoulder level,” the VE testified that the plaintiff could perform the job of cashier, which, 4 according to the DOT, involves “reaching frequently.” The Seventh Circuit vacated the 5 district court’s judgment upholding the Commissioner’s decision and remanded the case to 6 the ALJ, explaining: 7 It is not clear to us whether the DOT's requirements include reaching above shoulder level, and this is exactly the sort of inconsistency the ALJ should have resolved with the expert's help. We cannot determine, based on the record, whether the expert's testimony regarding . . . reaching was actually inconsistent with the DOT. That determination should have been made by the ALJ in the first instance, and his failure to do so should have been identified and corrected by the Appeals Council. We will defer to an ALJ's decision if it is supported by “substantial evidence,” but here there is an unresolved potential inconsistency in the evidence that should have been resolved. 8 9 10 11 12 Id. at 736. 13 As in Prochaska, here there was a potential inconsistency between the VE’s testimony 14 and the DOT. The Court cannot determine whether “avoiding concentrated noise” actually 15 conflicts with the DOT definition of occupations with a moderate noise level. The ALJ had 16 an affirmative duty to ask whether there was a conflict and, if so, whether there was a 17 reasonable explanation for it. Because the ALJ failed to perform the appropriate inquiries 18 under SSR 00-4p, the Court cannot determine whether substantial evidence supports the 19 ALJ’s finding that Plaintiff can perform her past relevant work. Therefore, the Court GRANTS 20 Plaintiff’s Motion for Summary Judgment insofar as it argues that the ALJ’s finding that she 21 could perform her past relevant work activities was based on legal error and not supported 22 by substantial evidence. The Court DENIES Defendant’s Motion for Summary Judgment on 23 this issue. 24 25 26 27 28 B. Rejection of Treating Physician’s Opinion Plaintiff’s treating physician, Dr. Michael E. Hoffer, submitted two opinion letters on her behalf. In his first letter, dated September 8, 2006, Dr. Hoffer stated: Ms. Lynn has been a patient of mine for several years. She has been diagnosed with left-sided Meniere’s disease and Migraines. Ms. Lynn 6 08cv0022 BTM (CAB) 1 5 complains of hearing loss and tinnitus at all times. She has intermittent episodes of vertigo lasting several hours that occur 2–6 times a week. These are all associated with worse hearing loss and tinnitus. In addition to these attacks, she has severe headaches which are also associated with vertigo. She will be totally disabled with both these types of attacks for several hours and than [sic] feel incapacitated for several hours afterwards. She has failed all medical therapy. Due to her dizziness, headaches, and hearing loss – she is totally disabled and cannot work. This disability has been present since December 1, 2004. (Tr. 275.) 6 In Dr. Hoffer’s second opinion letter, dated February 7, 2007, Dr Hoffer wrote: 7 I have been treating Ms. Teri Lynn since December of 2004. Ms. Lynn has debilitating dizziness, hearing loss, and tinnitus. She initially carried the diagnosis of Migraine Associated Dizziness but after tests revealed the presence of endolymphatic hydrops (extra fluid in the inner ear) she was given the diagnosis of Meniere’s disease with migraines. Her condition is totally disabling and makes it impossible for her to maintain consistent employment due to unpredictable and violent episodes of dizziness and debilitating headaches. 2 3 4 8 9 10 11 The ALJ rejected Dr. Hoffer’s opinion. The ALJ concluded: 12 13 14 15 As for the opinion evidence, Dr. Hoffer’s letter at Exhibit 12F is rejected as totally inconsistent with examinations of record, including his own examination at Exhibit 11F. Dr. Hoffer opined that the claimant’s condition was “totally disabling” making it “impossible for her to maintain consistent employment.” Dr. Hoffer expresses opinions that concern issues specifically reserved to the Commission, and as such, the undersigned gives little weight to said opinions. (Tr. 32.) 16 As a general matter, treating physicians’ opinions are given controlling weight when 17 they are supported by medically acceptable diagnostic techniques and not inconsistent with 18 other substantial evidence in the record. See 20 C.F.R. § 404.1527(d)(2); SSR 96-2p. 19 Where another doctor contradicts a treating physician’s opinion, the ALJ may not reject the 20 treating physician’s opinion without providing “specific and legitimate reasons” supported by 21 substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1990). 22 In so doing, the ALJ must do more than proffer his own conclusions – he must set forth his 23 own interpretations and why they are superior to that of the treating physician’s. Embrey v. 24 Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). The ALJ may meet this burden by conducting 25 a detailed and thorough discussion of the facts and conflicting evidence, and by explaining 26 his interpretations and findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 Even if a treating physician’s opinion is inconsistent with other substantial evidence 28 in the record, it is still entitled to deference and must be weighed using the factors provided 7 08cv0022 BTM (CAB) 1 in 20 C.F.R. § 404.1527. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); SSR 2 96-2p. These factors include, inter alia, the “nature and extent of the treatment relationship” 3 between the patient and the treating physician, the “length of the treatment relationship and 4 the frequency of examination,” the amount of relevant evidence that supports the opinion and 5 the quality of the explanation provided, and the consistency of the medical opinion with the 6 record as a whole. 20 C.F.R. § 404.1527(d)(2)-(6). An ALJ may rely on the absence of 7 objective findings to reject a treating physician’s opinion. See Johnson v. Shalala, 60 F.3d 8 1428, 1432 (9th Cir. 1995). 9 Initially, the Court notes that a treating physician may render an opinion on the 10 ultimate issue of disability. Reddick, 157 F.3d at 725. “The administrative law judge is not 11 bound by the uncontroverted opinions of the claimant’s physicians on the ultimate issue of 12 disability, but he cannot reject them without presenting clear and convincing reasons for 13 doing so.” 14 “concern[ed] issues specifically reserved to the Commission,” regarding the ultimate issue 15 of disability, was not legitimate. Id. Thus, the ALJ’s rejection of Dr. Hoffer’s opinion simply because it 16 The Court finds, however, that the ALJ otherwise offered clear and convincing reasons 17 for discounting Dr. Hoffer’s opinion. In his written decision, the ALJ discussed the facts and 18 conflicting evidence. He described the examinations of Plaintiff conducted by Dr. Hoffer as 19 well as other physicians. 20 The ALJ agreed with the ME’s testimony that there was “no organic basis for the 21 claimant’s alleged dizziness.” (Tr. 31.)1 Although Dr. Hoffer’s February 7, 2007 letter stated 22 that tests revealed the presence of endolymphatic hydrops (extra fluid in the inner ear), no 23 prior medical records made any mention of this condition. In addition, the ALJ noted that 24 Plaintiff “has undergone objective testing for vertigo and vestibular ocular reflex (VOR) and 25 26 27 28 1 Furthermore, the ME testified that hearing loss is associated with Meniere’s disease. and that other than Plaintiff’s subjective complaints, no evidence of hearing loss exists in the record. The ME also testified that Plaintiff should always have nystagmus if she is suffering from objective vertigo. Although nystagmus was induced on a few occasions by head-shake or the Hallpike Maneuver, most of the time, the nystagmus test was negative, even when Plaintiff complained of vertigo. (TR 188, 273.) 8 08cv0022 BTM (CAB) 1 the results, as well as the results of all objective examinations, have been negative.” 2 Where a physician relies solely on a patient’s subjective complaints and the record 3 shows that the patient lacks credibility, the ALJ may discount the physician’s opinion. 4 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Additionally, an ALJ may reject 5 the opinion of a treating physician if it is “brief, conclusory, and inadequately supported by 6 clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 7 Dr. Hoffer’s opinion is brief, conclusory, and appears to be based almost entirely on 8 Plaintiff’s subjective complaints. The opinion does not cite any clinical findings as support, 9 perhaps because no such clinical findings exist. Dr. Hoffer’s treatment records reflect 10 Plaintiff’s complaints but do not set forth objective observations or assessments that 11 corroborate Plaintiff’s complaints. Although, at varying times, nystagmus was induced, 12 abnormalities in gait were observed, and Romberg’s sign was present, these results do not 13 provide information regarding the severity of Plaintiff’s impairment and the extent of her 14 limitations and do not validate Dr. Hoffer’s opinion that Plaintiff is totally disabled. The 15 conclusion that Dr. Hoffer’s opinion is primarily based on Plaintiff’s subjective complaints is 16 supported by Dr. Hoffer’s statements that Plaintiff suffers from hearing loss. Dr. Hoffer’s 17 treatment records actually show that upon examination, Plaintiff’s ears were normal. (TR 18 273.) No abnormal hearing test results were recorded. 19 The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and 20 limiting effects of her impairments were not credible. (TR 31.) The ALJ found not credible 21 Plaintiff’s claim that she suffered from her symptoms 100% of the time. Although Plaintiff 22 complained of vertigo, dizziness, and headaches at some of her examinations, the 23 complaints were not consistent. As explained by the ALJ, “[t]he evidence of record contains 24 several references to examinations where the claimant indicated she experienced no 25 migraines.” The record supports the ALJ’s statement, as it appears Plaintiff did not complain 26 of migraines or dizziness in her examinations on October 17, 2005 and December 8, 2005. 27 (See Tr. 239–42; Tr. 235.) The ALJ also explained that Plaintiff lacked credibility because 28 9 08cv0022 BTM (CAB) 1 Plaintiff’s testimony contradicted itself.2 Plaintiff does not challenge the ALJ’s credibility 2 finding. Thus, the ALJ properly discounted Dr. Hoffer’s opinion, which rested upon Plaintiff’s 3 subjective complaints. 4 Plaintiff argues that even if the ALJ did not accord Dr. Hoffer’s opinion controlling 5 weight, he nonetheless failed to consider any of the factors specified in 20 C.F.R. § 6 404.1527(d)(2)–(6). The Court disagrees. The ALJ specifically found that Dr. Hoffer’s 7 opinion regarding the nature and severity of Plaintiff’s impairments was not supported by 8 clinical techniques and conflicted with other evidence in the record. 9 404.1527(d)(2). The ALJ also considered the “supportability” and “consistency” of Dr. 10 Hoffer’s opinion. See C.F.R. § 404.1527(d)(3)–(4). As already discussed, Dr. Hoffer did not 11 identify clinical evidence in support of his opinion. Moreover, his opinion was inconsistent 12 with medical examinations showing that Plaintiff did not have hearing loss. Although the 13 ALJ’s opinion could have been more precise, the ALJ sufficiently considered the pertinent 14 factors in determining not to accord Dr. Hoffer’s opinion controlling weight. 15 16 See C.F.R. § The Court concludes that the ALJ’s rejection of Plaintiff’s treating physician’s opinion was not based on legal error and was supported by substantial evidence. 17 18 III. CONCLUSION 19 For the reasons explained the above, the Court GRANTS IN PART and DENIES IN 20 PART Plaintiff’s Motion for Summary Judgment and GRANTS IN PART and DENIES IN 21 PART Defendant’s Motion for Summary Judgment. The Court REMANDS this case to the 22 Commissioner of Social Security for further proceedings consistent with this opinion. The 23 2 24 25 26 27 28 In finding the Plaintiff not credible, the ALJ explained: Claimant is not credible as she states she has blackouts and reported her symptoms to her doctor, as there is no evidence of such in examinations. Moreover, the claimant testified that she does drive on occasion, and her physician has not required that her driver’s license be revoked, all of which is inconsistent with the claimant’s allegations of blackout experiences. The claimant also stated that she is home schooling her son and claims to spend much of her day with him, which is inconsistent with her testimony that she spends 70-80% of her day in a dark bedroom. (Tr. 31.) 10 08cv0022 BTM (CAB) 1 Clerk shall enter judgment accordingly. 2 3 IT IS SO ORDERED. 4 DATED: December 8, 2009 5 6 Honorable Barry Ted Moskowitz United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 08cv0022 BTM (CAB)
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
