MICHELLE H. BURNS, Magistrate Judge.
Pending before the Court is Plaintiff Marivette Sabrina Elias' appeal from the Social Security Administration's final decision to deny her claim for supplemental security income. After reviewing the administrative record and the arguments of the parties, the Court now issues the following ruling.
Plaintiff filed an application for supplemental security income on March 12, 2009, alleging disability beginning June 1, 2008. (Transcript of Administrative Record ("Tr.") at 19, 145-51.) Her application was denied initially and on reconsideration. (Tr. at 84-88, 93-96.) On April 2, 2010, she requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 97.) A hearing was held on September 13, 2011, (Tr. at 33-80), and the ALJ issued a decision on September 16, 2011, finding that Plaintiff was not disabled (Tr. at 16-32). The Appeals Council denied Plaintiff's request for review (Tr. at 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff then sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Court must affirm the ALJ's findings if the findings are supported by substantial evidence and are free from reversible legal error.
In determining whether substantial evidence supports a decision, the Court considers the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion.
In order to be eligible for disability or social security benefits, a claimant must 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 ALJ determines a claimant's eligibility for benefits by following a five-step sequential evaluation:
At step one, the All determined that Plaintiff had not engaged in substantial gainful activity since March 12, 2009 — her alleged onset date. (Tr. at 21-22.) At step two, he found that Plaintiff had history status post right sided hemilaminectomy, microdisectomy and foraminotomy, disorder of the back, and migraines. (Tr. at 22.) At step three, the All stated that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. 416.925 and 416.926. (Tr. at 22.) The All found that Plaintiff retained the residual functional capacity to perform light work as defined in 20 C.F.R. 416.967(b) with the following exceptions: can occasionally lift 8-10 pounds with the right or left hands and 16-20 pounds with both hands together; can sit or stand for one half hour at a time and walk at one time for one half block; should avoid bending, twisting, and stooping as defined as infrequently to none.
In her brief, Plaintiff contends that the ALJ erred by: (1) failing to properly weigh medical source opinion evidence; and (2) rejecting Plaintiff's symptom testimony in the absence of clear and convincing reasons for doing so. Plaintiff requests that the Court remand for determination of disability benefits.
Plaintiff first argues that the ALJ erred by rejecting the assessment of treating provider, Amy Lenox, a certified physician assistant, and instead relying on the opinion of Quirino Valeros, M.D., and an opinion from a State agency physician.
"The ALJ is responsible for resolving conflicts in the medical record."
Opinions from non-examining medical sources are entitled to less weight than treating or examining physicians.
As applicable to the instant matter, physicians' assistants are not considered "acceptable medical sources" under the Social Security regulations.
In August 2009, as part of the administrative proceedings, Plaintiff had a consultative examination with Dr. Valeros. (Tr. at 324-30.) Plaintiff reported that her main complaint was low back pain, which did not radiate, and reported that she could do housework, drive, and walk one block. Plaintiff reported that she used no device to assist with walking, and Dr. Valeros observed that she had no difficulty sitting on the examination table. A physical examination was normal other than a limited dorsolumbar range of motion. Dr. Valeros opined that Plaintiff could do the following: (1) lift and carry 20 to 35 pounds occasionally and 25 pounds frequently; (2) stand and/or walk six hours in an eight-hour workday; (3) sit an unlimited amount; (4) occasionally climb ladders, ropes, scaffolds; (5) perform all other postural activities frequently; and (6) not work around heights or moving machinery. (Tr. at 324-30.)
In September 2009, State agency consultant Mikhail Bargan, M.D., completed a Physical Residual Functional Capacity Assessment form, wherein he opined that Plaintiff could (1) occasionally lift 20 pounds and frequently lift 25 pounds; (2) stand and/or walk for about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; (4) push or pull an unlimited amount; (5) occasionally climb ladders, ropes, and scaffolds; and (6) avoid concentrated exposure to hazards. (Tr. at 331-38.)
In December 2009, Plaintiff had an appointment with physician's assistant Amy Lenox for issues unrelated to the instant matter. (Tr. at 665.)
In his evaluation of the objective medical evidence, the ALJ first noted that Plaintiff has been unable to work because of her back, migraines, and related pain. He stated that Plaintiff has undergone treatment including pain management, epidurals, and physical therapy, yet still complains of symptoms. The ALJ found (1) June 2009 x-rays of Plaintiff s left knee were normal; (2) July 2009 MRI's of Plaintiffs lumbosacral spine and hands were negative with no evidence of acute bony injury in the hands; and (3) December 2010 MRI of Plaintiffs cervical spine was normal. The ALJ also found that Plaintiff had a neurological consultation post back surgery in October 2009 and her low back pain appeared to be "myofascial."
The ALJ then addressed Dr. Valeros' opinion as well as Dr. Bargan's assessment stating:
(Tr. at 23-24.)
Next, the ALJ discussed Ms. Lenox's opinion. (Tr. at 24.) The ALJ gave her "little weight," stating the "longitudinal evidence of record does not support this opinion. The objective evidence of record does not support limitations to the extent noted." The ALJ also determined that little weight is also afforded to her opinion in light of the fact that as a physician's assistant, she is not an acceptable medical source. (Tr. at 24.)
Although the objective medical evidence set forth in the ALJ's decision appears to be limited, the record reflects that the ALJ properly weighed the medical source opinion evidence. The ALJ specifically considered Ms. Lenox's assessment finding a lack of medical evidence supporting her opinion, as well as, inconsistencies between her opinion and the other objective evidence of record. (Tr. at 23-24.) Accordingly, the Court finds that the ALJ properly considered and discounted Ms. Lenox's opinion by providing specific and "germane" reasons.
Plaintiff argues that the ALJ erred in rejecting her subjective complaints in the absence of clear and convincing reasons for doing so.
To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, the ALJ must engage in a two-step analysis. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment `which could reasonably be expected to produce the pain or other symptoms alleged.' The claimant, however, `need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.'"
In weighing a claimant's credibility, the ALJ may consider many factors, including, "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities."
Plaintiff testified that she last worked in January 2007, when she was caring for her brother's children. (Tr. at 45.) She reportedly stopped working because of back pain and had not applied for work or made any work attempts since that time. (Tr. at 45.) Plaintiff stated that she could lift a gallon jug with either hand, sit for a half hour at a time, stand for a half hour at a time, and walk for a half block. (Tr. at 49-50.) Plaintiff claimed to do most activities sitting down, but said she could cook and do dishes. (Tr. at 64.) She also watched two hours of television per day and grocery shopped twice a week. (Tr. at 68-69.) Plaintiff stated that her back had slowly gotten worse since her August 2009 back surgery because "there's also two more [discs] that are herniated." (Tr. at 50-51.) She testified that her leg pain initially improved after the surgery but her back pain did not. (Tr. at 54-55.) Plaintiff stated that she had sharp, stabbing pain that sometimes stayed in her back and sometimes radiated down her legs. (Tr. at 56.) Her pain was reportedly worsened by staying in one position for a period of time and leaning over. (Tr. at 57-58.) Plaintiff testified that her legs weakened and she fell three to four times per day. (Tr. at 58-59.) She reported getting migraine headaches two to three times per week. (Tr. at 63.)
The ALJ acknowledged "the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms," but stated "the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (Tr. at 23.) In support of this determination, the ALJ found that the severity of Plaintiff s symptoms were not supported by the "objective evidence of record," she had "received routine conservative treatment for her impairments," and Plaintiff was able to "engage normally in many activities of daily living." (Tr. at 23.)
Initially, the Court finds that the ALJ failed to explain what "objective evidence of record" detracted from the severity of Plaintiffs symptoms. As the Court has already noted, the objective medical evidence set forth in the ALJ's decision is limited. He discussed some of the medical evidence, but failed to explain how the medical evidence supported a finding that Plaintiff was not credible. Indeed, a general discussion of the medical evidence did not explain how the medical evidence detracted from Plaintiffs credibility.
Likewise unavailing is the ALJ's reliance on Plaintiffs activities of daily living used to discredit her testimony. The ALJ fails to draw a connection between reported activities of daily living (listed in his opinion as "showering, dressing, housework, and caring for her young daughter" in its entirety) and the ability to sustain work. This Circuit has made clear that the mere fact that a claimant engages in normal daily activities (like "dressing" and "showering") "does not in any way detract from her credibility as to her overall disability. One does not need to be `utterly incapacitated' in order to be disabled."
In summary, the All failed to provide a sufficient basis to find that Plaintiff's allegations were not entirely credible. Accordingly, the All has failed to support his decision to discredit Plaintiff's allegations with specific, clear and convincing reasons and, therefore, the Court finds error and will vacate the ALJ's decision on that basis.
"When an ALJ's denial of benefits is not supported by the record, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation."
Here, there are identifiable issues to be resolved on remand. Notwithstanding the deficiencies in the ALJ's decision regarding Plaintiff's subjective complaints, the All did point to evidence in the record that would support a finding of non-disability. Because there are outstanding issues to be resolved regarding Plaintiff's credibility, the Court will remand this matter for further administrative proceedings.
Therefore,