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Tapia v. Astrue


April 27, 2010


The opinion of the court was delivered by: Ralph R. Beistline United States District Judge



Tapia has filed a Motion for Award of Benefits at Docket 18, which the Government opposes at Docket 23. The Government further asks the Court to affirm the Commissioner's final decision that Tapia was not disabled. Tapia files his reply at Docket 26. For the reasons stated herein, the Court denies Tapia's motion and affirms the Commissioner's final decision.


This dispute arises from the Commissioner's denial of Tapia's application for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Tapia protectively applied for DIB on October 14, 2005, and SSI on November 9, 2005, stating that he was disabled due to degenerative disc disease, bad knees, anxiety disorder, and shin splints when driving.*fn1

The administrative record is largely composed of Veteran's Administration ("VA") medical records. The VA evaluated Tapia at 40% service-related disability due to his back pain.*fn2 The records indicate prolonged periods of back and knee pain, which resulted in anxiety and pain disorders.*fn3 Social phobias are also indicated in the VA records.*fn4

Tapia's application was denied and an administrative law judge ("ALJ") heard his appeal on April 9, 2007.*fn5 On April 18, 2008, the ALJ issued a decision denying Tapia's claims, which became the final decision of the Commissioner when the Appeals Council denied a request for review.*fn6 Tapia then brought suit in this Court, alleging that the ALJ's decision should be reversed because the ALJ improperly discounted Tapia's testimony from the hearing, the ALJ improperly considered the VA's 40% disability rating, and the ALJ improperly evaluated Tapia's mental impairments.*fn7


The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability.*fn8

"Where, as here, the Appeals Council denies a request for review of an ALJ's decision, the decision of the ALJ represents the final decision of the Commissioner."*fn9 After a final decision of the Commissioner, the claimant may seek judicial review by the district court.*fn10 On de novo review, the district court may enter, upon the pleadings and a transcript of the record, a judgment affirming, modifying, or reversing the ALJ's decision.*fn11 The district court must uphold the ALJ's decision if it is supported by substantial evidence and the ALJ has applied the correct legal standards.*fn12 When evidence supports either confirming or reversing the ALJ's decision, the reviewing court may not substitute its own judgment for that of the ALJ.*fn13


A. There Was No Reversible Error in Mental Impairment Findings

Tapia argues that the ALJ improperly found his depression, anxiety disorder, and chronic pain disorder "not severe" at Step 2 of the inquiry.*fn14 At Step 2, the SSA assesses whether the impairment is "severe": whether the impairment (or combination of impairments) significantly limits basic work activities.*fn15

If a claimant has no alleged impairments that are sufficiently severe so as to preclude work, the claimant is not disabled. Although the Commissioner acknowledges that the ALJ should have found Tapia's mental impairments severe, he argues, and the court agrees, that this error is not cause for a remand because the ALJ correctly evaluated Tapia's residual functional capacity at Steps 4 and 5.

Standing alone, an impairment that is not severe may not significantly limit basic work activities, but when considered with limitations due to other impairments, it may be critical to the outcome of a claim.*fn16 Thus, in assessing RFC, the ALJ must consider limitations and restrictions imposed by all of the individual's impairments, even those that are not "severe." Thus, the ALJ here did consider Tapia's mental impairments when evaluating RFC. When the ALJ properly considers the way all the alleged limitations affect a claimant's RFC, there is no reversible error.*fn17

Therefore, if the ALJ considered Tapia's mental limitations correctly in the RFC determination, there was no reversible error in the decision.

The ALJ's RFC determination at Step 5 was proper, because it was supported by substantial evidence. "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."*fn18 Such evidence must be "more than a mere scintilla," but also "less than a preponderance."*fn19

The ALJ gave great weight to the opinions of examining psychiatrist William Campbell, M.D., and VA physician Paul Michels, M.D.*fn20 Dr. Michels diagnosed mild impairment to Tapia's concentration and focus, fair persistence and pace, and mild impairment interacting with others, due to depression and anxiety.*fn21

Dr. Campbell diagnosed social phobia, mood disorder, chronic pain disorder, personality disorder with dependent and passive-aggressive features, and complaints of anxiety, depression, decreased initiative, chronic fatigue, and chronic pain.*fn22 The ALJ properly addressed "anxiety disorder," based on Dr. Campbell's diagnosis of "social phobia."*fn23 The ALJ's finding was also consistent with Dr. Michel's opinion that Tapia's impairments would only mildly limit interaction with others.*fn24 The ALJ also contrasted Tapia's testimony with Tapia's high college GPA and good performance on mental examinations.*fn25 Citing these sources, the ALJ found that Tapia had slight to moderate pain, slight limitation in his ability to do simple, routine, repetitive tasks, slight limitations of concentration and attention, and slight limitations with respect to understanding and memory.*fn26 This finding is supported by evidence cited in the record.

The plaintiff's specific challenges to the finding are unsupported. The ALJ's finding that Tapia was not limited in public interaction was supported by the record, because the ALJ properly relied on Dr. Michel's opinion evidence.*fn27 The ALJ properly discounted the opinion of Ron Feigin, M.D., a non-examining physician, by citing the conflicting opinion of Dr. Michels, upon which he greatly relied.*fn28 The fact that the ALJ failed to specifically name and evaluate personality disorder was not in error because the ALJ considered Tapia's limitations resulting from any personality disorder which Dr. Campbell had diagnosed. Personality disorder is "a category of mental disorders characterized by inflexible and maladaptive personality traits."*fn29

Because the ALJ's decision fully reflected the limitations stemming from Tapia's maladaptive personality traits, the ALJ fully considered this part of the record. At most, any error was harmless due to the overwhelming evidence supporting the ALJ's ultimate conclusion.*fn30

Because the ALJ correctly evaluated Tapia's RFC limitations, there was no error in his ultimate findings regarding Tapia's mental limitations.

B. The ALJ Gave Clear and Convincing Reasons for Discrediting Tapia's Subjective Pain Testimony

When deciding whether to accept subjective symptom testimony from a claimant the ALJ performs a two-step analysis.*fn31 Here, Tapia provided adequate objective medical evidence at the first step and there is no indication of malingering in the second step. Thus, the question is whether the ALJ stated clear and convincing reasons for rejecting Tapia's testimony.*fn32

The ALJ must provide "specific, cogent reason[s] for the disbelief" to reject a claimant's subjective complaints.*fn33 There must be specific findings "stat[ing] which pain testimony is not credible and what evidence suggests the complaints are not credible."*fn34 In weighing a claimant's credibility, the ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.*fn35

Tapia testified that he could not work because he suffered from back and knee pain, anxiety and depression, high blood pressure, cholesterol, and type-II diabetes.*fn36 He testified that the pain was continuous, and endorsed all the adjectives the ALJ offered to describe it.*fn37 He stated that he could only walk one block, sit or stand for twenty minutes at a time, and that he could only put his shoes on once per week.*fn38 The ALJ stated the following reasons for discrediting this testimony: (1) Tapia received only conservative pain treatment; (2) Tapia's self-reported activities of daily living were inconsistent with the alleged severity of his symptoms; and (3) Tapia's credibility was undermined by inconsistencies noted by physicians in the record.*fn39

Regarding the ALJ's rationale of conservative treatment, Tapia's pain treatment consisted of physical therapy, which Tapia discontinued, and occasional steroid injections.*fn40 The Court is persuaded that the ALJ correctly determined that this treatment is conservative in light of Tapia's testimony that he suffered continuous, moderate pain which made walking upstairs and dressing more difficult.*fn41 Supporting his second reason, the ALJ cited the record where Tapia reported lifting weights, attending school, and hiking, all of which are activities of daily living that are inconsistent with Tapia's pain testimony.*fn42 The Plaintiff's argument that Tapia may not have regularly lifted weights since November, 2004, or that he was only a full-time student in 2002 is belied by the record.*fn43 The record shows that Tapia continued working out, hiking, and attending school up through the alleged date of disability in May of 2004.*fn44 Contemporaneous statements indicate that Tapia left school in order to qualify for disability, applying a few days later.*fn45 Supporting the third reason, the ALJ noted Tapia's use of a cane, and that several medical sources indicate inconsistent use or ambulation without using it.*fn46 This rationale is not entirely unassailable, but the Court declines to consider it at this time.

Questions of credibility are left to the ALJ to resolve.*fn47

Courts should not "second-guess" credibility determinations.*fn48 If the evidence is conflicting and could be rationally interpreted more than one way, the court "must uphold the decision of the ALJ."*fn49 Where the ALJ's credibility assessment is supported by substantial evidence, it will not be disturbed even where some of the reasons for discrediting a claimant's testimony are properly discounted.*fn50 Here, substantial evidence supports the ALJ's credibility assessment, and the court cannot reverse on this basis.

C. The ALJ Correctly Considered the VA Disability Determination

Tapia argues that the ALJ improperly failed to give great weight to the VA disability evaluation. The Commissioner argues that the ALJ rejected the VA's evaluation because it did not consider objective medical evidence that was before the ALJ, but the court finds nothing in the decision to support this contention. The ALJ did consider the VA's evaluation, stating that Tapia had a 40% service-related impairment from back and leg pain, but ultimately declined to give it great weight because it did not consistently reflect the medical evidence.*fn51

The VA criteria for evaluating disability are very specific and translate easily into SSA's disability framework. Both programs have a detailed regulatory scheme that promotes consistency in adjudication of claims. Both are administered by the federal government and both share a common incentive to weed out meritless claims.*fn52

Because the VA and SSA criteria for determining disability are not identical, the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.*fn53 Here, the ALJ cited medical evidence indicating that the VA's evaluation contrasted with Tapia's full-time school attendance.*fn54 The VA's decision itself states that Tapia did not meet the criteria for 40% disability, but was only granted this rating because he had previously qualified under the old criteria.*fn55 The ALJ found that the VA's decision was not persuasive, and gave reasons that are specific, valid, and persuasive to this court.

The ALJ's rejection of the VA evaluation, even if improper, did not harm Tapia.*fn56 If anything, proper consideration of the VA's evaluation would have hurt Tapia's claim. Although a VA rating is not an employability determination, the low percentile rating combined with the explanation that Tapia did not actually qualify for that percentage, with additional evidence of improvement cited by the ALJ, would have injured Tapia's claim had it been given great weight.*fn57


A decision of the Secretary to deny benefits will not be overturned unless it either is not supported by substantial evidence or is based upon legal error. Here, the ALJ's decision to deny benefits is supported by substantial evidence. This Court finds no legal error.

Based on the foregoing, it is hereby ORDERED that Tapia's Motion for Award of Benefits at Docket 18 is DENIED and the final decision of the Social Security Administration is AFFIRMED. Judgment shall enter for the Defendant.

ENTERED this 27th day of April, 2010.

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