STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jorge Rios ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for a period of disability and disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.
Plaintiff suffers from degenerative disc disease and a rotator cuff tear. For the reasons set forth below, Plaintiff's social security appeal shall be denied.
On October 15, 2013, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II, alleging disability beginning March 19, 2013. (AR 134-140.) Plaintiff's application was initially denied on February 19, 2014, and on reconsideration on June 9, 2014. (AR 76-79, 84-90.) Plaintiff requested and received a hearing before Administrative Law Judge T. Patrick Hannon ("the ALJ"). Plaintiff appeared for a hearing on February 18, 2016. (AR 39-49.) On March 8, 2016, the ALJ found that Plaintiff was not disabled. (AR 19-34.) The Appeals Council denied Plaintiff's request for review on March 30, 2017. (AR 1-3.)
Plaintiff testified with the assistance of an interpreter at the hearing on February 18, 2016. (AR 42-49.) He speaks a little bit of English and is able to say good morning. (AR 42.) He has a driver's license. (AR 42.)
He cannot work because he has a lot of pain in his shoulders, back, and right leg. (AR 43.) When he is sitting or standing for a while, his back begins to hurt. (AR 44, 47.) He can sit, but he cannot sit for an 8-hour day even with breaks every two hours. (AR 43.) He can stand and walk for less than two hours in an 8-hour day. (AR 48.) He cannot lift his leg when he walks a lot. (AR 48.)
During the day, he watches TV while sitting or lying down. (AR 44.) He spends half the day lying down. (AR 56.) The pain in his shoulders is constant, but sometimes it gets worse. (AR 46.) It is constant when he moves his hand. (AR 46.) He has pain in his shoulders all the time and whenever he moves them. (AR 46-47.) His back surgery in 2007 helped the pain in his lower back a little bit, but it never went away. (AR 47.) When he worked, he had pain all the time, but it was not as strong as it is now. (AR 47.) The pain gets worse when he lifts things. (AR 47.) He is able to lift a gallon of milk. (AR 47.) If he lifts more than a gallon of milk, the pain in his shoulders increases. (AR 47.)
He sees Dr. Sorensen every month for his shoulders and back. (AR 48.) He has been seeing him for a long time and definitely since the time he stopped working. (AR 48.)
His wife is disabled with rheumatoid arthritis and thyroid problems. (AR 44.) He has two kids who are fifteen and thirteen. (AR 44-45.) His daughters help his wife. (AR 48.) He goes with his wife and children to shop. (AR 44.)
Thomas Dachelet, a Vocational Expert ("VE"), also testified at the hearing. (AR 45-46.) The forklift driver job is an industrial truck operator and sometimes forklift operator, Dictionary of Occupational Titles ("DOT") # 921.683-050, medium, and SVP 3. (AR 45.) However, it was performed at light per the work history report. (AR 45.) The animal handler is a stockyard laborer or laborer/stock, DOT # 410.664-010, heavy, and SVP 4. (AR 45-46.) However, it was performed at light per the work history report. (AR 46.)
(AR 27-34.)
To qualify for disability insurance benefits under the Social Security Act, the claimant must show that he is unable "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). The Social Security Regulations set out a five-step sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;
Congress has provided that an individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In reviewing findings of fact in respect to the denial of benefits, this court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error."
"[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence."
Plaintiff argues that the ALJ erred in giving little weight to the opinion of his treating physician, Dr. Eric N. Sorensen, and in determining at step four that Plaintiff can perform his past relevant work as actually performed. Defendant counters that substantial evidence supports the ALJ's decision.
First, the Court discusses whether the ALJ erred in his evaluation of Dr. Sorensen's March 18, 2014 opinion.
The weight to be given to medical opinions depends upon whether the opinion is proffered by a treating, examining, or non-examining professional.
"If there is `substantial evidence' in the record contradicting the opinion of the treating physician, the opinion of the treating physician is no longer entitled to `controlling weight.'"
If a treating physician's opinion is contradicted by another doctor, it may be rejected only for "specific and legitimate reasons" supported by substantial evidence in the record.
The ALJ need not accept the opinion of any physician that is brief, conclusory, and unsupported by clinical findings.
This Court agrees with several other district courts that have concluded that
The ALJ recognized that Dr. Sorensen opined that Plaintiff can lift and carry 20 lbs. occasionally and 10 lbs. frequently, stand 1 hour in an 8-hour workday; walk 2 hours in an 8-hour workday; sit 6 hours in an 8-hour workday; never climb or reach with his left shoulder; occasionally stoop, kneel, crouch, and crawl; and frequently balance, handle bilaterally, and finger bilaterally. (AR 31.) He also opined that Plaintiff must alternate standing and sitting every 2 hours; must stretch for 10 minutes every hour; and would have restrictions with heights and moving machinery. (AR 31.)
The ALJ gave little weight to Dr. Sorensen's March 18, 2014 opinion because it is not supported by the narrative, objective medical evidence, or treatment record and because Dr. Sorensen merely used a check-off form and did not provide any basis for his conclusion. (AR 31.) The Court first addresses the ALJ's finding that Dr. Sorensen's opinion should be given little weight because he merely used a check-off form and did not provide any basis for his conclusion.
Dr. Sorensen checked off that Plaintiff could lift and carry 20 lbs. occasionally, which was based on rotator cuff tears in his left shoulder and the fact that he was status post laminectomy (back surgery), and Plaintiff could lift and carry 10 lbs. frequently. (AR 313.) Plaintiff could stand for 1 hour and walk for 2 hours because he was status post laminectomy. (AR 313.) Plaintiff could sit for 6 hours of an 8-hour workday, but in the findings section Dr. Sorensen indicates that Plaintiff must be able to change positions. (AR 313.) Plaintiff will need to alternate standing and sitting with a 10-minute stretch break every hour. (AR 314.) He based this finding on "exam." (AR 314.) Dr. Sorensen explained the postural, reaching, handling, and fingering limitations by saying that Plaintiff is unable to adequately use his left arm. (AR 314.) Plaintiff has restrictions with heights and moving machinery based on history and diagnosis. (AR 314.) Question 7 of the medical source statement asks for the bases of the conclusions and even asks for the doctor to include symptoms and objective findings. (AR 314.) However, Dr. Sorensen left this question asking for the bases of his conclusions blank. (AR 314.) Dr. Sorensen indicated that none of his opinions regarding functional capacity are based on subjective limitations of Plaintiff. (AR 315.)
It is clearly established that the ALJ need not accept the opinion of any physician that is brief, conclusory, and unsupported by clinical findings.
As discussed above, in response to questions, Dr. Sorensen indicated that certain limitations were based on general diagnoses, "exam," inability to adequately use the left arm, and "history and diagnosis." (AR 313-314.) Dr. Sorensen did not respond to question 7, which asked for the bases of his conclusions including the symptoms and objective findings he relied on. (AR 314.) Therefore, the Court must determine whether Dr. Sorensen's check off form opinion is supported by his records.
Dr. Sorensen had the results of Plaintiff's x-rays and MRIs of his shoulders and back. On March 5, 2013, Plaintiff's x-ray of his lumbar spine revealed mild facet arthrosis at L5-S1. (AR 211.) On August 2, 2013, Plaintiff's MRI of his lumbar spine revealed evidence of disc dissection with generalized disc protrusion seen with left paramedian disc herniation at L4-L5 and a slight displacement of the left L4 nerve root. (AR 222.)
On March 5, 2013, Plaintiff's x-rays of his left and right shoulder were normal. (AR 213-214.) On May 2, 2013, Plaintiff's MRIs of his right and left shoulders revealed a partial articular side tear of the supraspinatus tendon without high-grade tear or full thickness tear or tendinous retraction. (AR 218, 220.) There was no atrophy of the rotator cuff muscles. (AR 218, 220.) The right shoulder also had degenerative arthrosis of the acromioclavicular articulation, without effacement of the subacromial fat or narrowing of the supraspinatus outlet. (AR 218.) The left shoulder also had a chondroid appearing lesion in the humeral head that was likely an enchondroma and mild degenerative arthrosis of the acromioclavicular joint. (AR 220.)
Plaintiff's alleged onset date of disability is March 19, 2013, and he attended appointments at Adventist Health Central Valley Network between March 19, 2013, and October 9, 2013.
On March 19, 2013, Plaintiff saw Dr. Sorensen and was tender in his spine and shoulder upon examination. (AR 237.) On May 27, 2013, and May 28, 2013, Plaintiff saw someone other than Dr. Sorensen and had 5/5 bilateral upper extremity. (AR 229, 234.) On June 12, 2013, Plaintiff saw someone other than Dr. Sorensen and had a shoulder examination, where he had 4/5 strength and ranges of motion of 150 degrees, 50 degrees, and less than 10 degrees in both shoulders. (AR 232.) He also had impingement signs. (AR 232.) On July 15, 2013, Plaintiff saw Dr. Sorensen and the only objective findings during examination were that his right and left shoulder were sore and his right thigh was sore. (AR 231.) There were no objective examination findings regarding Plaintiff's shoulders or back during multiple other appointments between March 19, 2013, and October 9, 2013. (AR 227, 228, 230, 233, 235, 236.)
On January 14, 2014, Plaintiff saw Dr. Sorensen for an upper respiratory infection and a testosterone shot. (AR 275.) During the musculoskeletal examination, Plaintiff had a normal range of motion. (AR 277.) On February 11, 2014, Plaintiff complained of back pain and muscle pain, but he reported no joint pain and no decreased range of motion. (AR 279.) On examination, he had normal range of motion. (AR 282.) On March 18, 2014, Plaintiff saw Dr. Sorensen for a testosterone and pain shot and complained of recurrent shoulder pain and pain on range of motion compatible with rotator cuff strains. (AR 287.) During the examination, he did have limited range of motion with pain and tenderness over the supra-and infraspinatus tendons posterior capsular. (AR 290.) However, he had normal range of motion of his other joints. (AR 290.)
These are all of the treatment records at the time Dr. Sorensen gave his March 18, 2014 opinion. There are barely any positive objective findings in these treatment records. This is distinct from the situation described in
Even to the extent that it was error for the ALJ to discount Dr. Sorensen's opinion because it is not supported by the narrative, objective medical evidence, or treatment record without any further explanation and detail, any error is harmless because the ALJ provided a specific and legitimate reason supported by substantial evidence for discounting Dr. Sorensen's March 18, 2014 opinion. The ALJ's decision will not be reversed for errors that are harmless.
Plaintiff asserts that the ALJ's decision that Plaintiff can perform his past relevant work as a forklift driver and an animal handler as actually performed lacks logic and rationality. Plaintiff contends that the ALJ did not explain or develop whether he retained the capacity to perform his past work. Defendant counters that the ALJ properly relied on the VE's testimony that was based on Plaintiff's work history report to determine how Plaintiff performed his past relevant work.
"At step four [of the five-step disability determination process], claimants have the burden of showing that they can no longer perform their past relevant work" as actually performed or as generally performed in the national economy.
To determine whether a claimant retains the capacity for past relevant work, the Social Security Administration identified three tests:
SSR 82-61.
A properly completed vocational report such as the work history report may be used to define a claimant's past relevant work as actually performed.
Here, the ALJ found at step four that Plaintiff could perform his past relevant work as a forklift driver and an animal handler as actually performed. (AR 32-33.) This finding was based on Plaintiff's work history report and the VE's testimony that was based on the work history report. (AR 32-33.) Specifically, the ALJ stated:
(AR 32-33.)
During the hearing, the VE testified that the forklift driver job is an industrial truck operator and sometimes forklift operator, DOT # 921.683-050, medium, and SVP 3, but it was performed at light per the work history report. (AR 45.) The VE also testified that the animal handler job is a stockyard laborer or laborer/stock, DOT # 410.664-010, heavy, and SVP 4, but it was performed at light per the work history report. (AR 45-46.)
The work history report indicates that Plaintiff worked as an animal handler for a cattle company from October 2007 through July 2008 and a forklift driver for a container company from March 2001 through September 2002. (AR 166.) Plaintiff through Araceli Rios filled out the job specific pages for the animal handler and forklift driver jobs. (AR 168, 170.) The Court first addresses Plaintiff's challenge to the ALJ's characterization of who completed the work history report.
Plaintiff argues that the ALJ inaccurately stated that Plaintiff completed the form when in fact it was completed by Araceli Rios. Plaintiff asserts that this inaccurate characterization of evidence warrants remand. The ALJ described Plaintiff's work history report by saying that "the claimant wrote" and "[h]e did not describe." (AR 32-33.) The work history report indicates that Araceli Rios completed the form on November 21, 2013. (AR 177.) Araceli Rios is Plaintiff's spouse. (AR 183.) While Araceli Rios was the person who physically wrote the answers on the form, Plaintiff submitted this form and it was based on Plaintiff's work history. The fact that Plaintiff's wife helped Plaintiff complete the form and she was the one who physically wrote the answers on the form does not make the ALJ's statements that "the claimant wrote" and "[h]e also did not describe" materially inaccurate characterizations of the evidence. The fact that Plaintiff's wife wrote the answers on the form does not affect the ALJ's ability to rely on the information provided in the work history report. Next, the Court discusses whether there is substantial evidence to support the ALJ's step four finding.
Plaintiff contends that the ALJ did not develop, explain, or secure evidence regarding whether Plaintiff retained the functional capacity to perform his past work. Plaintiff also asserts that the ALJ should not have relied on the work history report because there are a number of alleged inconsistencies between his answers on the work history report and what he now contends is required to perform the work. Defendant argues that Plaintiff is now applying his own speculative rationale as to how his work was allegedly performed. Defendant points out that Plaintiff does not provide any specifics regarding how he could not perform his past jobs as actually performed based on the RFC that the ALJ assessed.
Here, the ALJ summarized the VE's testimony regarding Plaintiff's past relevant work that found that the forklift driver and animal handler jobs were actually performed at light work based on Plaintiff's work history report. (AR 32.) The ALJ stated that he was relying on the VE's testimony. (AR 32.) The ALJ then summarized the work history report for the forklift driver and animal handler jobs. (AR 32-33.) The ALJ then made the finding that Plaintiff could perform his past relevant work as an animal handler and forklift driver as actually performed because Plaintiff performed these jobs at the light exertional level and did not require more than the postural, reaching, and manipulative limitations in the RFC. (AR 33.) Therefore, the ALJ explained that he was relying on Plaintiff's work history report and the VE's testimony that was based on Plaintiff's work history report to determine the demands of Plaintiff's former work. The ALJ then explained that when comparing the demands of Plaintiff's former work to Plaintiff's RFC, he can perform his past relevant work as actually performed.
Plaintiff asserts that the ALJ should have further developed the record regarding how his past relevant work was actually performed. He blames the ALJ for not asking him any questions about his job duties. However, a properly completed vocational report such as the work history report may be used to define a claimant's past relevant work as actually performed.
Next, the Court addresses the alleged inconsistencies in the forklift driver and animal handler work history forms that Plaintiff contends result in the work history reports not being substantial evidence to support the ALJ's definition of Plaintiff's past relevant work as actually performed.
Defendant asserts that Plaintiff waived the right to challenge the ALJ's characterization of his past relevant work and that Plaintiff and his representative could have inquired further during the hearing. Defendant, citing
In
However, in
The Court finds that Plaintiff has waived any challenges to the reliability of the work history report. Plaintiff did not raise the issue of whether the work history report was properly completed to the ALJ or the Appeals Council. This case is distinguishable from
Here, the ALJ found Plaintiff could perform past relevant work as actually performed. Plaintiff argues that there are obvious inconsistencies between the information in the work history report and how he now alleges these jobs must function. He had the opportunity to raise these challenges to the work history report before the ALJ and the Appeals Council. Therefore, Plaintiff has waived any arguments regarding alleged inconsistencies between the information in the work history report and how he now alleges these jobs must function.
Assuming arguendo that Plaintiff did not waive a challenge to whether there are inconsistencies in the work history report, the Court next addresses Plaintiff's alleged inconsistencies in the forklift driver form and the animal handler form.
Plaintiff is trying to discredit the forklift driver form by pointing out three alleged inconsistencies.
First, Plaintiff asserts that a forklift is equipment and/or a machine, which he alleges is inconsistent with the response on the work history form that indicates that Plaintiff never used a machine, tool, or equipment when working the forklift driver job. However, this one inconsistency itself does not show that Plaintiff cannot perform the responsibilities for the forklift driver job or that the whole form should be discredited. Further, as Defendant points out, the RFC does not have any limitations regarding working with machinery.
Second, Plaintiff appears to be asserting that there is a potential inconsistency regarding whether Plaintiff sat while using the forklift. Plaintiff points out that the work history report indicated that Plaintiff did not sit when working the forklift driver job. Plaintiff contends that the record is not clear what kind of forklift he used. Plaintiff provides a link in his opening brief to a website that sells multiple types of forklifts.
Third, Plaintiff argues that it is common sense that gauge shifting, using the steering wheel to drive, or using a key to turn on the forklift requires some sort of reaching. However, it is not necessarily reaching the arm if Plaintiff is pressing buttons, shifting, and turning a key that are directly below where he is standing with his arm and shoulder not reaching. While Plaintiff is correct that many forklift drivers may reach while operating a forklift, it is possible to operate a forklift while standing without reaching.
Therefore, the Court finds that the work history report for the forklift driver job is not so contradictory that the ALJ could not rely on it. Thus, substantial evidence supports the ALJ's decision that Plaintiff could perform her past relevant work as a forklift driver as actually performed.
Plaintiff tries to discredit the animal handler form by asserting that it is common sense and reasonable that giving water to a small calf requires some grabbing of objects such as the container of water and some reaching to put the water in the container making sure to put it in the location that the calf can drink. While Plaintiff believes that it is not reasonable to give water to a small calf without grabbing a container for the water, reaching to put water in the container, and putting the container in the location that the calf can drink form it, it is possible to give water to a small calf without doing these things. Plaintiff could have turned on a hose or spigot to allow water to go into a container that is in a set location for the calf where Plaintiff does not have to move the container. Reaching and handling a container is not necessarily required for giving water to a small calf.
Even to the extent that there are inconsistencies in the animal handler work history report that result in there not being substantial evidence to support the ALJ's finding that Plaintiff could perform his past relevant work as an animal handler as actually performed, any error is harmless because there is substantial evidence to support the finding that Plaintiff could perform his past relevant work as a forklift driver as actually performed. Thus, the Court finds that the ALJ did not err in finding at step four that Plaintiff could perform his past relevant work as actually performed.
Based on the foregoing, the Court finds that the ALJ did not err in giving little weight to Dr. Sorensen's March 18, 2014 opinion and in finding at step four that Plaintiff could perform his past relevant work as actually performed.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's social security appeal is DENIED. It is FURTHER ORDERED that judgment be entered in favor of Defendant Commissioner of Social Security and against Plaintiff Jorge Rios. The Clerk of the Court is directed to CLOSE this action.
