Michelle Ford v. Andrew Saul

Citation: Not availableDocket: 18-35794

Court: Court of Appeals for the Ninth Circuit; February 19, 2020; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Ninth Circuit Court of Appeals affirmed the district court's ruling that upheld the Social Security Administration's denial of Michelle Salise Ford's disability benefits application under Titles II and XVI of the Social Security Act. The court evaluated the claims regarding the administrative law judge's (ALJ) rejection of opinions from Dr. Medani, the claimant's treating physician, and Dr. Zipperman, an examining physician. 

The court found the ALJ provided specific and legitimate reasons for dismissing Dr. Medani's opinion, citing inconsistencies between his medical conclusions and his own notes, discrepancies with the claimant's reported activity level, and the lack of detailed explanation in his opinion. Similarly, the ALJ's rejection of Dr. Zipperman's assessment was supported by substantial evidence, highlighting inconsistencies with objective medical evidence and the claimant's work performance, as well as the absence of useful insights into the claimant's limitations.

The panel noted that the ALJ was not required to develop the record further, having sufficient health records and medical opinions. Additionally, while the ALJ made a factual error regarding the claimant's walking ability, this was deemed harmless due to ample supporting evidence for the ALJ's conclusion of non-eligibility under impairment Listings 1.02 and 1.03. The court also affirmed that the ALJ did not err by failing to assess whether the combination of the claimant's impairments equaled the Listings' criteria. Lastly, the panel rejected the claimant's argument concerning the vocational expert's testimony, stating that the ALJ's decision not to subpoena the expert for underlying data did not violate regulations, and the expert's testimony met the substantial evidence standard.

The qualified vocational expert's testimony regarding the availability of jobs in the national economy was deemed reliable and sufficient to support the Administrative Law Judge's (ALJ) decision at step five of the evaluation process, concluding that the claimant, Michelle Ford, could perform a significant number of jobs and was not disabled. The panel upheld the ALJ’s findings, rejecting Ford's claims of error in three areas: 1) the ALJ provided valid reasons for discounting the opinions of Ford’s physicians; 2) Ford's impairments did not meet the criteria of the regulatory listings; and 3) the ALJ was justified in relying on the vocational expert's testimony, even without the underlying data. 

The ALJ follows a five-step process as outlined in 20 C.F.R. 404.1520 to assess disability claims under the Social Security Act. The claimant bears the burden of proof from steps one to four. Step one assesses whether the claimant is involved in substantial gainful activity. Step two evaluates if the claimant's impairments are severe enough to limit basic work activities. Step three involves determining if the impairments meet or equal any listed impairments, which are defined by specific medical criteria. An impairment must meet all specified criteria to qualify; partial criteria do not suffice. If the impairment does not match a listing, it may still be considered equivalent if the severity of symptoms and findings are comparable to a listed impairment, but mere symptoms are insufficient for equivalence claims. Meeting or equating a listing results in a determination of disability.

If a claimant does not meet the criteria for disability listings, the Administrative Law Judge (ALJ) evaluates the claimant's residual functional capacity (RFC) to determine if they can perform past relevant work, defined as substantial gainful activity done within the last 15 years that the claimant learned to do. If the ALJ finds the claimant can perform past relevant work, they are deemed not disabled. At the next step, the burden shifts to the agency to demonstrate that the claimant can perform a significant number of other jobs in the national economy, which the ALJ may establish through the Medical-Vocational Guidelines or expert testimony from a vocational expert. The ALJ can also reference resources like the Dictionary of Occupational Titles. Throughout this five-step process, the ALJ holds the responsibility for assessing credibility, resolving conflicts in medical evidence, and addressing ambiguities.

In the specific case of Michelle Ford, she applied for disability benefits in 2008, but her first application was denied in 2011, with the ALJ concluding she was not disabled from August 2007 to March 2011. Ford filed a second application claiming disability starting March 26, 2011, due to various physical and mental impairments. An ALJ determined she was disabled as of November 1, 2012, but this decision was vacated by the Appeals Council, leading to a new hearing in November 2016. Evidence presented included Ford’s medical history, showing she frequently reported back and shoulder pain, nausea, and anxiety to her primary care physician, Dr. Ignatius Medani, who noted few objective findings and diagnosed her with only mild carpal tunnel syndrome. A non-examining physician concluded that Ford was not disabled based on her RFC for sedentary work. Ford underwent several surgeries between 2012 and 2014, with her condition improving over time. Despite her claims, examinations during follow-up visits were largely unremarkable. Ford's request for the Appeals Council to review the ALJ's March 2017 ruling, which stated she was not disabled from March 26, 2011, to January 2, 2016, was denied, and the district court affirmed the decision, leading to her appeal.

Dr. Medani reported a finding of reduced lumbar range of motion but noted no other abnormalities in September 2014. He completed an 'Arthritis Residual Functional Capacity Questionnaire,' referencing disability criteria from Listings 1.02 and 1.03 of the 'Listings of Impairments.' Listing 1.02 describes major joint dysfunction, requiring gross anatomical deformity and chronic joint pain, affecting major weight-bearing joints like the hip, knee, or ankle, leading to an inability to ambulate effectively. Listing 1.03 pertains to surgical impairments resulting in a similar inability to ambulate effectively, expected to last over 12 months. Effective ambulation is defined as the ability to walk independently without assistive devices that limit upper extremity function.

Dr. Medani affirmed that Ms. Ford’s condition met the criteria for these listings, stating her condition is permanent. He indicated severe limitations in her ability to sit or stand, requiring frequent position changes and breaks, needing to elevate her legs for most of the day, and being unable to lift more than ten pounds or perform manipulative actions beyond 5% of a workday. He estimated she would miss over four days of work monthly and deemed her incapable of even low-stress jobs.

From 2015 to 2016, Ms. Ford's physical examinations were generally normal, and her visits to Dr. Medani were primarily for pain medication refills. Additionally, evidence of her mental condition included counseling visits in August 2011, where she reported depression and anxiety and admitted to misusing her medication. She missed or canceled several appointments in the following months.

In October 2011, a non-examining psychiatrist determined that Ford could perform simple and familiar complex tasks and attend work within customary tolerances. However, during visits to Valley Cities for medication refills in June and September 2012, she reported worsening depression, stress, and anxiety. A counselor diagnosed her with a depressive disorder with psychotic features, while noting her good grooming, alertness, and absence of psychosis. In November 2012, examining psychiatrist Dr. Michelle Zipperman diagnosed Ford with post-traumatic stress disorder, psychosis, depression with psychotic features, and panic disorder, indicating that her workplace functionality was limited and her ability to maintain attention, attendance, and handle work stress was poor to limited. Following another visit in late November, Ford reported ongoing depression, panic attacks, and hallucinations, though she maintained regular speech and thought processes.

In December 2012, a non-examining psychiatrist again found Ford capable of attending work within customary tolerances and completing tasks. Her mental health treatment in 2013 was inconsistent, but evaluations showed normal concentration and no psychosis during several visits. Ford occasionally attended sessions at Valley Cities between 2013 and 2015, displaying normal cognitive functions and reporting no delusions by November 2014. Records indicated she held temporary jobs in 2015 and began part-time work at FedEx in May 2016, performing tasks independently and alongside coworkers, but quit by July 2017.

During a November 2016 hearing, a vocational expert testified that Ford's residual functional capacity (RFC) would allow her to perform 130,000 addresser and 9,800 ink-printing jobs available in the national economy. The expert derived these numbers from various sources, including the Department of Labor and the U.S. Chamber of Commerce, but was unable to specify the publication that supported the addresser job estimate, stating he averaged his data from multiple sources.

Counsel inquired about the basis for the expert's figure of 130,000 jobs, but the expert lacked specific notes on the data used. The expert averages job numbers yearly, which are documented thereafter. Following the hearing, Ford's attorney requested the ALJ to subpoena the vocational expert's data on nationwide job availability, but the ALJ did not address this before making a final decision. The ALJ determined that Ford was not engaged in substantial gainful activity and identified several severe impairments at step two. However, at step three, the ALJ rejected Ford's claims of meeting the criteria for Listings 1.02 and 1.03, concluding she did not have a severe ambulation issue, as her use of mobility aids was temporary post-surgery. The ALJ found Ford had the RFC for sedentary work with limitations, disregarding the opinions of Dr. Medani and Dr. Zipperman due to inconsistencies with objective evidence and lack of clarity. Ford’s own testimony was also discredited due to internal inconsistencies and exaggerations, alongside improving physical condition and poor mental health treatment adherence. At step five, the ALJ concluded a significant number of jobs were available for Ford, determining she was not disabled before January 2, 2016, but became disabled thereafter due to a change in age category. On appeal, Ford contends the ALJ erred in discounting the physicians' opinions, rejecting her impairment claims, and not granting the subpoena request. The court reviews the ALJ’s decision de novo, affirming it unless it is legally erroneous or unsupported by substantial evidence, which is defined as relevant evidence a reasonable mind could accept. An ALJ’s decision may be upheld even if errors are present if they are deemed harmless. The denial of a subpoena is assessed for abuse of discretion.

Ford's challenge to the ALJ's rejection of her treating physician, Dr. Medani's opinion hinges on the standard that treating physicians' opinions are generally given substantial weight. However, the ALJ is not obligated to accept such opinions. If a treating physician's opinion is uncontradicted by other evidence, it may be rejected only for clear and convincing reasons. Conversely, if contradicted by another doctor's opinion, the ALJ may discount it with specific and legitimate reasons supported by substantial evidence.

In this case, Dr. Medani’s assessments of Ford’s functional capacity were contradicted by two non-examining physicians, allowing the ALJ to provide specific reasons for rejection. The ALJ cited inconsistencies with medical evidence, including Dr. Medani’s own notes indicating only mild carpal tunnel syndrome, contrasted with his opinion that Ford could perform manipulative activities only 5% of the day. Additionally, the ALJ noted inconsistencies with Ford’s activity level, highlighting that she had worked six to eight-hour shifts at FedEx, which contradicted Dr. Medani’s assertions about her limited capacity to sit or stand. 

The ALJ also pointed out the lack of explanation in Dr. Medani's opinion; specifically, his brief response to a questionnaire about Ford meeting certain medical listings was deemed insufficient. The absence of requisite details and supporting medical records further justified the ALJ's decision to discount Dr. Medani's opinion. Overall, the ALJ's findings were supported by substantial evidence, validating the rejection of Dr. Medani’s opinion.

B Ford contests the ALJ's dismissal of Dr. Zipperman's opinion, an examining physician, asserting that such opinions generally carry more weight than those of nonexamining physicians. The law stipulates that if an examining physician's opinion is contradicted, it can only be rejected for specific and legitimate reasons supported by substantial evidence. The ALJ successfully provided such reasons. 

First, the ALJ found Dr. Zipperman’s assessment of Ford’s functioning inconsistent with objective evidence, noting that while Zipperman indicated Ford was highly distractible, other mental health evaluations showed normal concentration. Ford's argument regarding the variable nature of mental illness does not undermine the ALJ's conclusion, as it was based on evidence that could be interpreted rationally in multiple ways. 

Second, the ALJ noted inconsistencies between Zipperman’s assessment and Ford’s work performance, highlighting her ability to manage regular work schedules and stress at FedEx, which contradicted Zipperman's claims of limited work capabilities. The ALJ is permitted to consider any work activity, including part-time work, when assessing disability status. 

Lastly, the ALJ criticized the usefulness of Zipperman’s vague descriptors of Ford's limitations, determining they were insufficient for evaluating her functional capacity. Ford argued that the ALJ should have sought clarification from Zipperman regarding these terms, but the obligation to develop the record further arises only in cases of ambiguous or inadequate evidence. Given the extensive mental health records and opinions from other psychiatrists available to the ALJ, this obligation was not triggered. Ford also claims that the record substantiates her meeting of Listings 1.02 and 1.03, as per the ALJ's conclusion.

Dr. Zipperman assessed Ford as highly distractible with limited concentration, but other mental health professionals reported normal concentration. Ford argued that the ALJ disregarded the variable nature of mental illness. However, courts uphold the ALJ's conclusions if the evidence can be rationally interpreted in multiple ways. The ALJ noted inconsistencies between Dr. Zipperman’s assessment of Ford’s work-related limitations and her actual job performance at FedEx, where she demonstrated the ability to maintain a work schedule, handle stress, and complete tasks. The ALJ determined that Dr. Zipperman’s vague descriptors of Ford's capabilities were inadequate for assessing her functional limitations. Ford contended the ALJ should have sought clarification from Dr. Zipperman, but the ALJ's duty to further develop the record only arises with ambiguous evidence, which was not the case here due to the comprehensive mental health records available. Ford also argued that she met Listings 1.02 and 1.03, primarily relying on Dr. Medani's opinion; however, since the ALJ found Dr. Medani’s opinions unworthy of consideration, this did not challenge the ALJ’s decision. Furthermore, Ford alleged a legal error regarding the necessity of assistive devices for the listings, but this mischaracterized the ALJ’s position, as the ALJ did not assert that such devices were required to demonstrate impaired ambulation.

The ALJ determined that Ford did not use assistive devices long-term, noting her temporary use of a walker and scooter during recovery from foot surgery. The ALJ concluded that the evidence did not support claims of Ford's inability to ambulate or severe ambulation issues, referencing Ford’s self-reports and provider remarks. Although the ALJ mischaracterized Ford's reported walking ability as “maybe 1/4 mile” instead of “1/4 block,” this factual error was deemed harmless due to substantial evidence supporting the ALJ's finding that Ford did not meet Listings 1.02 or 1.03. Specifically, there was no evidence of a gross anatomical deformity or reconstructive surgery of a major weight-bearing joint, which are necessary criteria for those listings. 

Additionally, Ford's argument that the ALJ failed to consider the combined effects of her impairments was rejected, as the ALJ is not required to analyze combined effects unless the claimant presents evidence for equivalency. Ford's attorney briefly referenced a combination of impairments during the hearing but did not provide a basis for equivalency to the specific listing criteria. Finally, Ford contended that the ALJ erred by not requiring the vocational expert to disclose the data behind their job availability testimony, asserting that this information was necessary for a meaningful challenge to the expert’s conclusions.

Ford contends that the Administrative Law Judge (ALJ) violated regulations and her due process rights by not issuing a subpoena for the vocational expert to produce underlying data. She further claims that the absence of this data undermines the reliability of the expert's testimony, which she argues does not constitute substantial evidence supporting the ALJ's step five determination. The court disagrees with both assertions. 

First, the ALJ's decision not to issue a subpoena was consistent with regulations, as Ford requested the subpoena a week after the hearing, failing to meet the requirement to submit such requests at least five business days prior. Additionally, Ford did not demonstrate any unusual circumstances that prevented her from making the request on time. No regulations mandate that vocational experts provide underlying data upon request, and unlike federal court requirements, there is no obligation in Social Security Administration (SSA) hearings for experts to produce all data considered. 

Second, Ford's argument regarding the reliability of the vocational expert's testimony is dismissed. The standard for substantial evidence is not stringent; it requires only relevant evidence that a reasonable mind might accept as adequate. The court emphasizes that its review is deferential to the ALJ, who has firsthand experience of the hearing, and there is no universal rule requiring vocational experts to present underlying data in all cases.

An expert's testimony can be deemed unreliable if it lacks sufficient supporting data, but this determination is case-specific. Ford did not raise any due process violation regarding the ALJ's failure to obtain the vocational expert's underlying data, thus forfeiting this argument. The fundamental due process requirement is the opportunity to be heard meaningfully, which Ford had, as she could present her case, cross-examine witnesses, and provide rebuttal evidence. No additional procedural protections were necessary. 

In assessing the reliability of expert testimony, the court considers whether the expert's qualifications and the cogency of the testimony support its substantiality, even if underlying data is not provided. Ford did not demonstrate any unreliability in the expert's testimony, nor did she argue that the expert lacked qualifications or that the testimony conflicted with other evidence. Although the expert did not bring the requested supporting data to the hearing, this failure alone does not render the testimony untrustworthy. Furthermore, Ford did not identify any apparent conflicts between the expert’s estimates and those in the Dictionary of Occupational Titles or the Medical-Vocational Guidelines, which would have required further investigation by the ALJ.

Ford did not demonstrate any ambiguity or gap in the vocational expert's testimony, which meant that the Administrative Law Judge (ALJ) was not required to further develop the record. Ford failed to provide evidence that contradicted the expert's testimony, which is typically regarded as reliable in the absence of opposing evidence. A claimant can challenge a vocational expert's testimony by showing inconsistencies with the Dictionary of Occupational Titles (DOT) or Medical-Vocational Guidelines, or by contrasting it with data from the County Business Patterns (CBP) or Occupational Outlook Handbook (OOH). If the ALJ does not allow such challenges, the claimant may submit new evidence to the Appeals Council, as long as it is relevant to the time before the ALJ's decision. The vocational expert's testimony about job availability is generally sufficient to support the ALJ's findings at step five of the evaluation process. In this case, the expert's testimony was found to be substantial evidence supporting the ALJ's conclusion, leading to the affirmation of the decision.