ALLISON CLAIRE, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383f.
For the reasons that follow, the court will grant plaintiff's motion for summary judgment, deny the Commissioner's cross-motion for summary judgment, and remand this matter for the immediate calculation and payment of benefits to plaintiff.
Plaintiff applied for disability insurance benefits and for supplemental security income in June, 2011. Administrative Record ("AR") 189-92 (Exh. B1D), 193-202 (Exh. B2D).
On March 13, 2013, the ALJ issued an unfavorable decision, finding plaintiff "not disabled" under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 17-31 (decision), 32-35 (exhibit list). On May 21, 2014, after receiving counsel's May 8, 2013 brief as an additional exhibit, the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-5 (decision and additional exhibit).
Plaintiff filed this action on July 22, 2014. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 9, 11. The parties' cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 19 (plaintiff's summary judgment motion), 20 (Commissioner's summary judgment motion), 23 (plaintiff's reply).
Plaintiff was born on August 26, 1964, and accordingly was 46 years old on the alleged disability onset date, making her a "younger person" under the regulations. AR 30;
The Commissioner's decision that a claimant is not disabled will be upheld "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards."
Substantial evidence is "more than a mere scintilla," but "may be less than a preponderance."
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities."
The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was `inconsequential to the ultimate nondisability determination.'"
Disability Insurance Benefits and Supplemental Security Income are available for every eligible individual who is "disabled." 42 U.S.C. §§ 423(a)(1)(E) (DIB), 1381a (SSI). Plaintiff is "disabled" if she is "`unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment. . . .'"
The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
20 C.F.R. §§ 404.1520(a)(4)(i), (b) and 416.920(a)(4)(i), (b).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 20 C.F.R. §§ 404.1512(a) ("In general, you have to prove to us that you are blind or disabled"), 416.912(a) (same);
The ALJ made the following findings:
AR 21-29.
As noted, the ALJ concluded that plaintiff was "not disabled" under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 31.
Plaintiff alleges that the ALJ erred by rejecting the opinion of plaintiff's treating physician, Steven Wall, M.D. (ECF No. 19 at 9-14).
As discussed below, the ALJ wrote a careful opinion that gives clear and specific reasons for giving the treating physician's opinions "little weight." However, those reasons are neither convincing nor legitimate.
Steven Wall, M.D., treated plaintiff starting in 2009. AR 28. His treatment records are in the administrative record at AR 276-96 (December 10, 2009 to April 28, 2011) (Exh. B1F), 602-33 (April 28, 2011 to January 23, 2013) (Exh. B17F). On June 28, 2012, Dr. Wall completed a Physical Residual Functional Capacity Questionnaire, following his June 25, 2016 physical exam of plaintiff. AR 578-83 (Exh. B16F). The ALJ gave the opinion "little weight."
Dr. Wall diagnosed plaintiff with "low back pain," "neck pain," and osteo-arthritis ("os") at the knees. AR 578.
Dr. Wall opined that plaintiff was not a malingerer, and that her impairments, which began in March 2011, had lasted or could be expected to last 12 months. AR 579, 582, 583. He opined that emotional factors contributed to the severity of his patient's symptoms and functional limitations, indicating that anxiety was the relevant psychological impairment. AR 579. He further opined that plaintiff's impairments were reasonably consistent with the symptoms and functional limitations he described in his evaluation. AR 579. Dr. Wall also opined that stress "exacerbates [plaintiff's] pain," so that she could only do "low stress jobs." AR 579.
Dr. Wall further opined that plaintiff's experience of pain would "frequently" interfere with the attention and concentration she needed to perform even simple work tasks, and that she was likely to be absent from work more than four days per month. AR 579, 582. In assessing plaintiff's functional limitations in a competitive work environment, Dr. Wall assessed her ability to walk as the length of one block, and her ability to sit at one time as 15 minutes. AR 580. He opined that plaintiff would be able to stand only 10 minutes before needing to sit down or walk around, and that plaintiff would be able to "sit and stand/walk" for a total of about 4 hours in an 8-hour day, with normal breaks. AR 580. In addition, Dr. Wall opined, plaintiff would need to walk around during the workday, every 30 minutes, for 4-5 minutes each time. AR 580.
Dr. Wall further opined that plaintiff needed a job which would permit shifting positions at will, and that she would sometimes need to take unscheduled breaks during the day. AR 581. The breaks would last 15 minutes, during which she would need to recline. AR 581. Dr. Wall also indicated that plaintiff needed to use a cane. AR 581. Dr. Wall opined that in a competitive work situation, plaintiff would "rarely" be able to lift and carry up to 10 pounds, and she would "never" be able to lift and carry 10 pounds or more. AR 581. He further opined that plaintiff would "rarely" be able to twist or climb stairs, and could "never" stoop or bend, crouch, or climb ladders. AR 582. In addition, Dr. Wall opined, plaintiff has significant limitations in repetitive reaching, handling, or fingering, and could only perform these functions 5-10% of the workday. AR 582.
The ALJ gave "little weight" to Dr. Wall's opinion regarding plaintiff's physical limitations because it: (1) "understates the claimant's physical capacity;" (2) "is inconsistent with the generally mild findings from diagnostic images of the claimant's spine and knees" (citing Exhs. B3F/22, B3F/25, B9F/4, B9F/10, B9F/69, and BI7F/10); (3) "is inconsistent with the claimant's admitted ability to lift 15 to 20 pounds" (citing Exh. B3E); (4) "is inconsistent with the claimant's ability to perform some work after the alleged disability onset date" (citing ExhB5D); and (5) "is inconsistent with the claimant's somewhat normal activities of daily living . . . which indicate some physical capacity" (citing Exh. B3E and the hearing testimony). AR 28.
As plaintiff argues, since Dr. Wall is a treating physician, the ALJ was entitled to reject it only for "clear and convincing reasons," or at least "specific and legitimate reasons." She argues that the ALJ's reasons for rejecting Dr. Wall's opinions are neither clear and convincing nor specific and legitimate. ECF No. 19 at 10.
The ALJ found that plaintiff's physical capacity is greater than is asserted in Dr. Wall's opinion, citing plaintiff's receipt of unemployment compensation during the relevant period. According to the ALJ, plaintiff was "required . . . to certify that she was willing and able to engage in work activity, which is inconsistent with her allegation of disability." AR 25.
It is not clear how the ALJ reached this conclusion, since it may be a legal conclusion based upon the California Unemployment Insurance Code, or it may be a factual conclusion based upon evidence the ALJ failed to identify. What is clear is that according to plaintiff's undisputed testimony, the $418 plaintiff earned after the onset date represented a small enough number of part time or per diem hours that she remained eligible for unemployment benefits. AR 56.
Thus, if the ALJ decision is concluding that plaintiff's receipt of unemployment benefits necessarily means that she was willing and able to engage in full time work, that conclusion ignores plaintiff's undisputed testimony that she was able to do at most part time or per diem work. If the decision is concluding that plaintiff made an untruthful certification under California law, that conclusion is not supported by substantial evidence, as the ALJ does not identify any such certification in the record (nor is it clear what effect, if any, that would have on whether plaintiff was actually disabled or not). If the decision is drawing a legal conclusion based upon the ALJ's understanding of California's unemployment insurance law, there is nothing in the decision that cites the law being interpreted, or explains the conclusion.
If the ALJ decision is concluding that any "work activity" on plaintiff's part is "inconsistent with her allegation of disability," that is a legal error. "[W]hile receipt of unemployment benefits can undermine a claimant's alleged inability to work fulltime," the ALJ must consider whether "the claimant held himself out as available for full-time or part-time work."
The ALJ found that Dr. Wall's opinion was "inconsistent with the generally mild" clinical findings. AR 28. Although the decision cites only Exhibits B3F/22, B3F/25, B9F/4, B9F/69 and B17F/10 for direct support of this proposition, elsewhere in the decision, the ALJ thoroughly reviews the clinical and diagnostic findings. While some of those findings could reasonably be considered "mild," especially those taken soon after plaintiff's injury, there are a great many which are not mild.
Soon after plaintiff's fall, diagnostic imaging of plaintiff's knees showed no significant abnormality (Exh. B3F/22, 25, January 27, 2011), and even immediately after the onset dates, the results showed no significant abnormality (Exh. B9F/4, 10, March 22, 2011). However, some abnormalities emerged soon afterward in the diagnostic tests. On June 3, 2011, an MRI ("Magnetic Resonance Imaging") of the lumbar spine showed, among other things, "Left posterolateral disc bulge moderately compromises the left F4-5 neural foramem, potentially encroaching on the left L4 nerve root," as the ALJ noted. AR 514 (Exh. B9F/69). As the ALJ further notes, on numerous physical examinations from January 27, 2011 onward, the results were tenderness in the spine, painful range of motion, difficulty with straight leg raising, limited range of motion, decreased sensation detected in plaintiff's lumbar spine and left lower extremity, antalgic gait, moderate guarding, spasm at the L4-5 level, tenderness in the left sciatic notch, painful range of motion in the lumbar spine, and "extremely tender" over the left lumbar paraspinous muscles. AR 24.
The ALJ does not explain why these are "mild" findings. As plaintiff asserts, only by playing doctor could the ALJ override the treating physician's view that these results were not mild, and that they are instead, entirely consistent with the treating doctor's functional limitation findings.
More to the point, this is a case about pain. As the above discussion shows, the principal finding from plaintiff's medical exams is that she experiences pain. Dr. Wall's treatment notes also show that plaintiff experiences pain. Plaintiff's self-assessment, her testimony at the hearing, and the third-person assessment (AR 234-41, Exh. B4E), confirm that plaintiff experiences a great deal of pain much of the time, and that it is that pain that severely limits her functional capacity. Accordingly, once the ALJ has found that plaintiff's medically determinable impairments could reasonably be expected to cause plaintiff's pain or other symptoms, as she found here (AR 25), the ALJ may not then base her determination of plaintiff's functional capacity upon clinical and diagnostic findings which do not reflect the level of pain.
The ALJ found that plaintiff "admittedly can lift 15 to 20 pounds at a time." AR 25 (citing Exh. B3E, and the hearing testimony). The ALJ also found that plaintiff "was able to lift" her 18 pound grandson, even though she had difficulty holding him. These findings are not supported by substantial evidence, as they are unrealistic exaggerations of plaintiff's own testimony.
The cited exhibit is plaintiff's self-assessment. AR 225-32 (Exh. B3E) ("Function Report — Adult). Plaintiff does not, as the decision implies, simply "admit" that she can lift 15 to 20 pounds at a time. To the contrary, plaintiff states "I can only lift 15 to 20 pds or less," and that doing so "still causes pain. . . ." AR 230 (emphasis added). This assessment — particularly the "only" and "or less" qualifiers — is entirely consistent with plaintiff's testimony under oath at the hearing. There, she testified that the heaviest thing she lifted on a day-to-day basis were pots weighing "five, maybe four or five pounds. . . ." AR 49. Further, plaintiff testified that she was unable to hold on to what little she could lift, and was constantly dropping things. Moreover, the ALJ's decision ignores the most important part of the self-assessment's comment on lifting 15 to 20 pounds, namely that plaintiff is in pain when she tries to lift such weight.
The ALJ also relies on plaintiff's testimony for the proposition that plaintiff "was able to lift" her 18 pound grandson. AR 26. However, plaintiff's testimony is that she is not able to hold her grandchildren, and that when she managed to lift the 18 pound grandson, she dropped him. AR 73.
Plaintiff was a CNA (certified nursing assistant), when she suffered a fall at work on or about December 18, 2010. AR 491 ("Doctor's First Report of Occupational Injury or Illness").
The ALJ cites Exhibit B5D as evidence of "work activity after the alleged onset date." AR 25. The decision notes that the work "did not constitute disqualifying substantial gainful activity," but nevertheless concludes that it indicates "that the claimant had the capacity to perform some work." AR 25. In fact, the cited Exhibit shows that plaintiff earned a total of $418 in the second quarter of 2011 from her two jobs, which would have included the first 19 or 20 days of March, before the onset date. AR 213 (Exh. B5D).
Moreover, this was part time, per diem work, and "it wasn't enough to cover my bills...." AR 55. Plaintiff's testimony is clear that she "was trying to stay working," and tried to do so for "[a] couple of months," but that "it go so bad on me I, I couldn't, I couldn't do it." AR 55-56. It was legal error for the ALJ to find that this paltry amount of part time or per diem work, and plaintiff's ability to perform "some" work, undermined the treating physician's opinion.
The ALJ found that Dr. Wall's opinion was inconsistent with plaintiff's "somewhat normal activities of daily living . . . which indicate some physical capacity." AR 28-29.
Exhibit B3E is plaintiff's self-assessment. AR 225-32. There, plaintiff states that she cannot shower without help (AR 225 ¶ 6), stays in bed all day when the pain is bad (¶ 6), is unable to "do much" for the granddaughter who lives with her and who she is supposed to be taking care of (AR 226 ¶ 7), is unable to sleep (¶ 11), cannot dress herself without help (¶ 12(a)), can't stand for a shower or sit for a bath (¶ 12(a)), can't comb her hair when she is in pain (¶ 12(a)), needs help getting up from the toilet (¶ 12(a)), needs reminders to groom and take medicine (AR 227 ¶ 12(b), (c)), can prepare foods only by throwing things into the microwave or making sandwiches, but cannot cook a full meal because she can't sit for long, can't stand for long, and has to lie down to rest too often (¶ 13(a), (b)), while she can, as the ALJ stated, load clothes into a washing machine, and fold clothes, she can only do these things with assistance, as she cannot carry the clothes to the washing machine, and can fold only light clothing, never blankets or sheets as those require too much movement of her body (¶ 14(a)), cannot do other house or yard work because she cannot bend without pain (AR 228 ¶ 14(d)), does not go out unless she absolutely has to, and then is usually accompanied by her daughters (¶ 15(a), (b)). This assessment is substantially corroborated by the third party assessment.
Plaintiff's testimony was consistent with her written self-assessment. While the ALJ found that plaintiff "has the ability to drive," plaintiff's self-assessment makes clear that she can only do so "when I am not on my medicine." AR 228. As plaintiff's hearing testimony corroborates, "When I'm not taking my medication, I could drive short distance." AR 65. However, the testimony also makes clear that plaintiff drives only when she absolutely has to, and that she is in pain while doing it, because she cannot drive while on her pain medication:
AR 65. The fact that plaintiff can engage in an essential activity, like driving to the doctor, despite her pain "does not mean she could concentrate on work despite the pain or could engage in similar activity for a longer period given the pain involved."
Thus, Dr. Wall's opinion is fully consistent with plaintiff's activities of daily living, and it was error for the ALJ to use her activities of daily living as a basis for rejecting the doctor's opinion.
As discussed above, the ALJ erred in giving "little weight" to the treating physician's opinion. That error was not harmless, because the treating physician's report directly conflicts with the ALJ's RFC finding and her finding of non-disability.
Accordingly, the court is authorized "to `revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.'"
Under the second step in the remand analysis,
First, unlike the situation in
Second, there is no conflict to be resolved in the remainder of the administrative record. Dr. Wall's listing of functional limitations are fully consistent with and supported by plaintiff's treatment history and the medical opinions of other treating doctors. After plaintiff's injury, Johnston Co., M.D., her treating physician overseeing her care for the Workers' Compensation board, put plaintiff on "Limited Duty," which restricted her from "repetitive bending/stooping" and "kneeling or squatting." AR 447-533 (Exh. B9F). While under the care of Jeff Jones, M.D., plaintiff endured a rhizotomy,
The only possible conflict arises with the opinions of the agency non-examining physicians, J. Zheutlin, M.D., on initial consideration, and G. Taylor, M.D., on reconsideration.
Under the third step, this court "must next consider whether the ALJ would be required to find the claimant disabled on remand if the improperly discredited evidence were credited as true."
Specifically, Dr. Wall opined that plaintiff could sit and stand/walk for no more than 4 hours out of an 8 hour workday (in other words, she would need to lie down for 4 hours out of an 8 hour workday). AR 580. She can "never" lift 10 pounds (and can only "rarely" lift even less than that). AR 581. She can use her hands for gasping, turning and twisting only 5% of the time. AR 582. She can use her fingers for fine manipulation only 10% of the time. AR 582. She can use her arms for reaching only 5% of the time. AR 582. She would be absent from work more than four days per month. AR 582.
When plaintiff's limitations, as described by Dr. Wall, were put to the vocational expert at the hearing, he testified that there were "no jobs" plaintiff could do. AR 76. Not surprisingly, apart from everything else, there is no job available in which plaintiff could miss 4 days of work every month. AR 76. Indeed, even without the testimony of a vocational expert, it is clear from the regulations themselves that plaintiff is not even able to do "sedentary" work.
Where the above steps are satisfied, this court must exercise its discretion in determining whether to remand for further proceedings, or for the immediate calculation and award of benefits.
Here, the record leaves no doubt that the plaintiff is disabled within the meaning of the Act. This is a claimant who, before her injury, was working two jobs to support herself and her granddaughter. Even after her injury, she continued trying to work, even against the advice of her doctors. She only stopped working when her supervisor essentially made her stop. Her injuries were real and fully documented by MRI imaging and treatment notes. Her entirely credible testimony, and her treating doctors' opinions, show that she is unable to carry out the functions even of a sedentary job.
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 19), is GRANTED;
2. The Commissioner's cross-motion for summary judgment (ECF No. 20), is DENIED;
3. This matter is remanded to the Commissioner for the immediate calculation and award of benefits to plaintiff; and
3. The Clerk of the Court shall enter judgment for plaintiff, and close this case.
