STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jeanette Hoskins ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for disability benefits pursuant to the Social Security Act. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Plaintiff suffers from degenerative disc disease of the lumbar and cervical spine, obesity, a bone spur on the right foot, and plantar fasciitis. For the reasons set forth below, the Court recommends that Plaintiff's Social Security appeal be granted.
On February 27, 2014, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, and on March 7, 2014, filed a Title XVI application for supplemental security income. (AR 20, 121, 241, 243.) While the applications specified an onset of disability date of December 20, 2013, Plaintiff requested the onset date be amended to February 27, 2014. (AR 20, 47.) Plaintiff's claims were initially denied on June 19, 2014, and then denied upon reconsideration on October 15, 2014. (AR 20, 167, 177.) On May 19, 2016, Plaintiff appeared for a hearing before Administrative Law Judge Ross G. Wheatley (the "ALJ"). (AR 36-75.) On July 15, 2016, the ALJ found that Plaintiff was not disabled. (AR 17-33.) On September 19, 2017, the Appeals Council denied Plaintiff's request for review. (AR 1-4.) Plaintiff filed an unsigned complaint with this Court on November 13, 2017, which was stricken and then refiled on November 15, 2017. (ECF Nos. 1, 2, 4, 5.)
Plaintiff appeared with counsel and testified at a May 19, 2016 hearing. (AR 41-71.) Plaintiff testified that she was fifty-three years old, five feet three inches tall, and weighed 215 pounds on the date of the hearing. (AR 44.) She attended some high school up to the ninth grade, but did not graduate. Plaintiff has not attended adult education classes, received a GED, nor completed any specialized occupational training. (AR 44-45.) Plaintiff has basic reading and math skills, but struggles with more difficult subject matter. (AR 45-46.)
Plaintiff initially answered that she had not worked since 2013, however counsel clarified that Plaintiff's onset date for Title II benefits should be amended from the original date of December 20, 2013, to February 27, 2014, due to employment earnings in January of 2014. (AR 46-48.) Plaintiff took a leave of absence in January of 2014 because of back problems and sharp pains down the legs, and was unable to return. (AR 48-49.)
Plaintiff confirmed that she has degenerative disc disease affecting her lumbar spine, cervical spine, along with a bone spur on the right foot, and plantar fasciitis. (AR 49.) Plaintiff testified that her lower back causes her the most problems, that she experiences sharp pains, and sometimes cannot sit for certain periods of time, necessitating her to stand after as little as fifteen minutes. (AR 50.) Plaintiff stated her back pain radiates through both sides of her body, that the left side "always" gives her bad cramps, and she "can't move." (AR 55-56.) The pain also extends to her legs. (AR 56.)
Plaintiff sees Dr. Ereso, who referred her to Dr. Tate for an epidural steroidal injection. (AR 50-51.) Plaintiff stated she was "hurting worse" after the first injection, and that she was planning on completing a walk-in visit to inform Dr. Tate about the status. (AR 51-52.) She has had two or three total injections. (AR 53.)
Plaintiff attended physical therapy in 2014 for her back pain, but stated it did not help or make any noticeable difference. (AR 52.) She "[t]ried to" complete the home exercise program suggested by the physical therapist, however it also didn't help. (AR 52-53.) She does the suggested exercises "[m]aybe once a day," as recommended. (AR 53.) Plaintiff does not wear a back brace. (AR 53.) Plaintiff has not attempted hydrotherapy. (AR 53.) Her current doctor did not recommend an additional stretching routine. (AR 56.)
Plaintiff takes medication that eases the pain compared to when she does not take the medication, however the pain is still present. (AR 53-54, 56.) She visited the doctor for her foot problems the year before the hearing, and also two weeks before the hearing. (AR 54.) The doctor gives her injections in her foot that do help. (AR 54.) When Plaintiff had insurance, she would go approximately three times a year for her foot pain, however now that it is more expensive she does not. (AR 54-55.) Plaintiff has health care through the Affordable Care Act, but it doesn't cover the payments for the foot doctor. (AR 55.) When asked, Plaintiff stated she hadn't looked at other free care options such as through county services. (AR 55.)
Plaintiff testified that she helped care for her husband after he had a stroke, however her daughter was there to help out, but "at night time I have to do the best I can with him and stuff . . . [a]nd then he got in-home care." (AR 57.) When the ALJ asked what type of help she provided her husband in the 2014 time period, Plaintiff stated she did not have to help lift him or help him walk, and did not have to help him bathe or get dressed. (AR 57-58.)
In a typical day, Plaintiff can bathe and dress herself, though on bad days it takes longer to do so. (AR 58.) Plaintiff can prepare basic foods, such as eggs and sandwiches for herself or husband. (AR 59.) Plaintiff can perform basic household chores, such as picking up the house, making the bed, loading the dishwasher, and vacuuming, however will take breaks or sit if her back gets tired. (AR 59.) An in-home care worker assists with the laundry, however Plaintiff tries to do it on her own sometimes. (AR 60.)
Plaintiff spends a few hours a day watching television, and reads the bible sometimes. (AR 61.) She does not know how to use a computer, though her family member created an email address for her, and she owns a cell phone. (AR 62.) The cell phone has internet, and uses the voice to text feature to send text messages. (AR 62.) Plaintiff states she goes shopping maybe once a month. (AR 62-63.) Plaintiff drives about three times a week, sometimes to her or her husband's medical appointments, though someone drove her to the hearing because of her back pain. (AR 63.) The longest distance she drove in the past year was from Modesto to Stockton. (AR 64.) Plaintiff visits her mother about three times a week, who lives very close. (AR 64-65.) She does not go out to restaurants or other things with friends, nor attends church because of the longer period of sitting. (AR 65.)
Plaintiff has tried to stick to a healthy diet in line with her doctor's recommendation to lose weight and exercise. (AR 66.) When trying to walk for exercise, Plaintiff can walk for about ten minutes, and then stops to rest for about fifteen minutes. (AR 66-67.)
When examined by her attorney, Plaintiff emphasized that her neck pain is also very bad, which causes headaches, and that she has sharp pains that extend through her left side to her shoulder and arm, affecting her ability to reach out or upwards. (AR 67-68.) Plaintiff stated she sometimes has issues moving her head, and then clarified it is "[m]ost all the time," when asked by her attorney. (AR 68.) Plaintiff has about six (6) headaches per month which last about two hours. (AR 68-69.) Plaintiff also has sharp pains in her left wrist, however when asked if her doctor ever performed a nerve conduction test, she replied no. (AR 70.) Plaintiff stated the doctor told her it might be carpal tunnel syndrome, and that she plans on looking into further treatment. (AR 70-71.) The wrist pain sometimes affects her ability to hold grip items, however the pain is not as bad as her back or neck. (AR 71.)
Plaintiff's doctors did not refer her to a physical therapy traction session, nor did they perform a CT or MRI scan of her brain to determine the type of headaches. (AR 71.)
A vocational expert, Lorian I. Hyatt (the "VE"), also testified at the hearing. (AR 72-78.) The VE summarized Plaintiff's past work as a housekeeper, 381.687-014, heavy with an SVP:2, and also as a motel maid, 323.687-914, light with an SVP:2, though the records indicated she was required to lift up to fifty pounds, which would place the work in the medium category as it was performed. (AR 73.)
The first hypothetical person presented by the ALJ to the VE was a person of Plaintiff's age, education, and work experience capable of performing at the light level, which the ALJ defined as standing or walking for approximately six hours during an eight-hour day, and sitting up to six hours during an eight-hour day with normal breaks. (AR 74.) The hypothetical would entail occasional ladders, ropes, scaffolds, ramps stairs. stooping, crouching, kneeling and crawling. Overhead reaching limited to occasional bilateral, handling as gross manipulation limited to frequent bilaterally. Fingering limited to frequent bilateral. (AR 74.) The VE stated that the Plaintiff would be able to perform the motel maid job as traditionally performed, but not specifically as previously performed based on the record's indication that she was required to lift fifty pounds. (AR 74.) The VE stated that such a hypothetical person could perform other jobs in the economy, including inspector, 559.687-074, light with an SVP:2, with 250,000 such jobs available nationwide. (AR 75.) The VE also stated such a person could perform the job of interviewer, 205.367-054, light with an SVP:2, with 200,000 such jobs available in nationwide. (AR 75.)
The second hypothetical person presented by the ALJ was the same as the first, but with the additional limitation of requiring a sit/stand option provided the worker would not be off task more than ten percent (10%) of the work period. The VE testified that such person would not be able to perform Plaintiff's past work because the sit/stand option is not readily available for a hotel maid. (AR 75.) The other two jobs available to the first hypothetical person would be available, however the labor market would be eroded fifty percent (50%) for interviewer, and seventy-five percent (75%) for inspector. (AR 75.)
For a third hypothetical, the ALJ proposed such person would likely have three or more unexcused absences per month, in addition to the limitations of either hypothetical person number one or two. (AR 76.) The fourth hypothetical person would have the same limitations as either number one or two, and would also require breaks every two hours for ten minutes in addition to regular breaks. The fifth hypothetical person would have the same limitations as either number one or two, and would also be unable to engage in sustained work activity on a regular continuing basis for eight hours a day, five days a week, for a forty-hour work schedule. (AR 76.) The VE testified that there would be no jobs for hypothetical persons number three, four, or five. (AR 76.)
The ALJ made the following findings of fact and conclusions of law:
(AR 22-33.)
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." See 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's main contention is that the ALJ failed to follow the treating physician rule in affording little weight to the opinion of Dr. Ereso, and instead relied on "dated opinions from nonexamining sources, leaving his decision unsupported by substantial evidence." (Pl.'s Opening Br. ("Pl. Br.") 5, 12, ECF No. 15.) She argues the ALJ's determination that Dr. Ereso "relied heavily on the subject report of symptoms and limitations . . . was unsupported by the evidence," and therefore improper as a factor in assigning little weight to the opinion. (Pl. Br. at 13-14.) Plaintiff highlights the fact that "Dr. Ereso ordered all of Plaintiff's medical imaging, and noted explicit reviews of at least most of them . . . [and] [t]he medical imaging undoubtedly supports Dr. Ereso's limitations. (Pl. Br. at 14.) Plaintiff also contends that the non-examining physicians reviewed less medical evidence than Dr. Ereso in formulating their opinions, given that the state agency opinions did not have access to the most recent MRIs and two opinions from Plaintiff's treating physician. (Pl. Br. at 19.) In sum, Plaintiff argues that the ALJ should have given more weight to the "well-reasoned and fully explained opinions provided by Dr. Ereso," rather than relying on "the unsupported and non-examining opinion of State agency physicians," which resulted in the VE being presented with an "incomplete hypothetical question" and the VE incorrectly testifying that someone with Plaintiff's condition could perform work in the national economy, including inspector and interviewer. (Pl. Br. at 19.)
Defendant argues that the ALJ addressed every medical assessment form provided by Dr. Ereso and explained each basis for discounting Dr. Ereso's medical opinion, and his reasoning was supported by substantial evidence. (Def.'s Opp'n Pl.'s Opening Br. ("Def. Opp'n") 5, ECF No. 23.) Defendant maintains it was proper for the ALJ to question the strength of Dr. Ereso's opinion given it appeared to be based on Plaintiff's subjective complaints rather than objective medical evidence to support the conclusion. (Def. Opp'n at 7.) Defendant further argues that the ALJ properly rejected Dr. Ereso's opinion because it was not supported by the medical evidence and was contrary to Plaintiff's admissions regarding her abilities, and although her condition may have prevented her from returning to her previous work as performed, she could find work in the national economy within her limitations. (Def. Opp'n at 7-8.) Finally, Defendant also argues that the ALJ gave greater weight to the non-examining state agency physicians because they were supported by substantial evidence and more consistent with the record as a whole. (Def. Opp'n at 10-11.)
The weight to be given to medical opinions depends upon whether the opinion is proffered by a treating, examining, or non-examining professional.
Where the treating physician's opinion is contradicted by the opinion of an examining physician who based the opinion upon independent clinical findings that differ from those of the treating physician, the nontreating source itself may be substantial evidence, and the ALJ is to resolve the conflict.
The contrary opinion of a non-examining expert is not sufficient by itself to constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, however, "it may constitute substantial evidence when it is consistent with other independent evidence in the record."
The ALJ reviewed a RFC questionnaire completed by Dr. Ereso on May 9, 2014. (AR 28-29, 439-42.) Dr. Ereso's form noted the following: 1) that Plaintiff's symptoms are "constantly" affecting her ability to perform simple work-related tasks; 2) drowsiness, dizziness, and constipation as side effects of medication impacting her capacity to work; 3) that Plaintiff would need to recline or lay down during an eight-hour workday in excess of normal breaks; 4) she can walk one block without rest or significant pain; 5) can sit for forty-five minutes and stand/walk for thirty minutes at one time; 7) can sit for five hours or stand/walk for five hours during a normal eight-hour work day; 8) Plaintiff needs a job which permits shifting positions at will from sitting, standing or walking; 9) needs fifteen to thirty minute breaks every one to two hours; 10) can lift and carry less than 10 pounds frequently, 10 to 20 pounds occasionally, and 50 pounds never; 11) no limitations in reaching, handling or fingering; 12) will be absent three or four times a month; 13) and Plaintiff is not physically capable of working an eight hour day, five days a week on a sustained basis. (AR 439.)
The ALJ assigned little weight to Dr. Ereso's May 9, 2014 opinion, stating that "[w]hile the exertional limitations for lifting and carrying are supported by the medical record, the doctor did not provide any explanation for the conclusion that the claimant was limited to four hours in sitting and standing or walking, or that the claimant could not work full time, or why she needed to lie down and take unscheduled rest breaks." (AR 28-29.) The ALJ also found that "[t]he check-box form did not explain why a person could perform light work with no postural or manipulative limitations indicated, but that the person could not work a normal eight-hour workday five days a week." (AR 29.)
Medical exam records from the period preceding the RFC questionnaire ranging from March 19, 2013 to February 27, 2014, support the ALJ's finding. (AR 379-402.) On March 19, 2013, there were no musculoskeletal physical exam notes aside one regarding heel pain. (AR 401-02.) On April 22, 2013, there were no musculoskeletal physical exam notes, and the doctor noted that Plaintiff refused an epidural injection for pain in her neck and lower back. (AR 399-400.) On June 13, 2013, the musculoskeletal physical exam notes only state "normal back." (AR 397-98.) On August 8, 2013, there were no musculoskeletal physical exam notes. (AR 395-96.) The October 8, 2013 exam does note "chronic low back pain due LS DDD which bother[s] a lot," and also notes "afraid to have epidural injection." (AR 390-92.) An exam record dating November 5, 2013, states that Plaintiff hurt her right ankle moving furniture. This exam also notes under the neck physical exam that there is "cervical spondylosis with left radiculopathy pain level mostly 8/10 sometimes up to 10/10," noted that patient is afraid to have an epidural done, and also noted normal gait, station and stability. (AR 387-89.) On January 8, 2014, there was a straight leg test with 30 degrees bilateral with lower back pain, and notations regarding the findings from the December 28, 2013 MRI, which were evaluated by the ALJ and agency physicians, as discussed below. On February 4, 2014, the exam notes reflect straight-leg testing of 90 degrees bilaterally with pain on the right, and noted "limp on the right side." (AR 381-82.) Aside from these, there were no other musculoskeletal findings in these exam records noted by Doctor Ereso. (AR 379-402.)
Additionally, the RFC questionnaire itself includes no explanation or basis for the limitations. In fact, questions 1-4 are blank, including: "2. Diagnosis," "3. Prognosis," and "4. Identify all of your patient's symptoms," and there are no clinical findings or objective signs listed or referred to on the form. (AR 439-40.) Dr. Ereso also states that the Plaintiff has no limitations in reaching, handling, or fingering, which changes in subsequent RFC questionnaires, without apparent explanation, as discussed further below.
The Court finds the ALJ reasonably determined that while the records supported the exertional limitations, the other specified severe limitations were not adequately supported by objective findings reported in the questionnaire or exam records preceding the questionnaire. The ALJ need not accept the opinion of any physician that is brief, conclusory, and unsupported by clinical findings.
The ALJ reviewed the lumbar MRI conducted on December 28, 2013, a short time prior to the May 9, 2014 RFC questionnaire. (AR 26, 416.) The MRI showed there had been "progressive severe discogenic disease at the L4-L5 greater than L3-L4" since a previous MRI in 2007, that there was "corresponding mild levocurvature of the lumbar spine centered upon L3, L4, and L5," an "annular bulging extending into the left lateral recess with mild intrathecal root mass effect left L3-L4 and right L4-L5," a "moderate distal left foraminal stenosis at L3-L4 and L4-L5 and L5-S1," and a suspected "mild mass effect upon the exiting left L3 foraminal root at L3-L4." (AR 416-17.) The December 28, 2013 MRIs are only referred to one time in Dr. Ereso's examination notes prior to the May 9, 2014 RFC questionnaire, simply noting the results on January 8, 2014 (AR 383-84), after recommending such MRIs on December 17, 2013 (AR 385-86). Regarding the lumbar MRI, the ALJ found that it demonstrated "an objective medical condition that would likely cause some level of pain, but not of the severity, intensity, or frequency as alleged by claimant," and that the RFC finding "adequately accommodates any limitations the claimant may have due to degenerative disc disease."
The ALJ also noted that "[i]t appears that the doctor completed the form relying primarily on the claimant's report of symptoms rather than based on an examination and resulting findings by the doctor." (AR 29.) An ALJ can reject a treating physician's opinion for the specific and legitimate reason that such opinion is based on a claimant's "subjective complaints," that have been "properly discounted."
For these reasons, the Court finds the ALJ provided specific and legitimate reasons supported by substantial evidence in finding that Dr. Ereso's January 28, 2015 opinion should be given little weight.
The ALJ reviewed multiple treatment records from Dr. Ereso that showed notations concerning Plaintiff taking care of her husband who had a stroke. First the ALJ cited a June 10, 2014 treatment record that contained a notation that the Plaintiff was unable to work because of neck and back pain, however also included the statement that "she is taking care of her husband who had a stroke." (AR 29, 449.)
Next, the ALJ cited a July 9, 2014 treatment record which noted that Plaintiff could not return to her prior occupation as a housekeeper or laundry worker "due to her neck and back problems, besides she is needed home to care for husband who had a stroke and insulin dependent diabetes and needs care 24/7." (AR 29, 448.) As to this record, Plaintiff argues that the ALJ "conveniently" left out the first part of the statement before "besides," which read "the patient is not able to go back to her occupation . . . due to her neck and back problems." (Pl. Br. at 15.) Plaintiff contends this was the "strongest evidence the ALJ cited for the proposition that Dr. Ereso was making capacity assessments based on his pity for Plaintiff, and not the detailed and severe imaging he had access to." (Pl. Br. at 15.)
The Plaintiff's characterization of the ALJ's opinion in this regard is incorrect. While the ALJ may not have quoted Dr. Ereso's statement before the word "besides," the ALJ paraphrased the two treatment records by writing that the June 10, 2014 treatment record "contained the notation that the claimant was unable to work due to pain in her neck and lower back, but concluded with the statement `she is taking care of her husband who had a stroke,'" and "the treatment record from July 9, 2014 stated that the claimant could not return to her prior occupation as a Housekeeper or Laundry Worker, and continued `besides, she is needed home to care for husband who had a stroke.'" (AR 29.) The ALJ did not ignore the fact that Dr. Ereso opined that Plaintiff could not return to her prior occupation due to her ailments, but rather emphasized that while the medical evidence supported the determination that Plaintiff could not return to her prior occupation, the fact that she was assisting with the taking care of her husband suggested she could still do other work in the economy. The ALJ then cited to the July 9 record and an additional August 19, 2014 record from Dr. Ereso that also contained a notation concerning Plaintiff taking care of her husband:
(AR 29.) The ALJ also noted that Dr. Ereso's August 19, 2014 report was "brief as in prior examinations, with normal gait, station and stability." (AR 29, 443-46.)
An ALJ can reject a treating physician's opinion for the specific and legitimate reason that such opinion is based on a claimant's "subjective complaints," that have been "properly discounted."
The ALJ reviewed a January 27, 2015 treatment record issued by Dr. Ereso following an in-person visit. (AR 27, 469-70.) The record showed that the Plaintiff visited for a regular checkup and to fill out disability paper work. (AR 469.) Plaintiff reported joint and muscle pain, specifically numbness, tingling and sharp cramping in legs, shoulder and neck pain on left side, lower back pain, hip pain, and foot pain. (AR 469.) Dr. Ereso noted that Plaintiff cannot sit for more than thirty continuous minutes, needs to stand and stretch, and cannot do overhead work with arms due to pain in neck and numbness in left arm. (AR 469.) Again, Dr. Ereso noted normal gait, station, and stability. (AR 469.)
Concerning this record, the ALJ found it "significant to note that the record that date does not show any Range of Motion (ROM) testing, neurological testing, or other office examination procedures," and that "[t]he limited examination procedures do not support the limitations as suggested by the claimant's doctor in" the RFC questionnaire issued the next day, January 28, 2015. (AR 27.)
In the January 28, 2015 RFC questionnaire (AR 29, 457-58.), Dr. Ereso opined that Plaintiff could now only sit or stand/walk for twenty minutes at a time, that she could only sit one hour and stand/walk one hour during an eight-hour work day, and would need a position which permits shifting at will from standing, sitting, and walking (AR 457), whereas in the previous RFC questionnaire Plaintiff could sit for forty-five minutes and stand for thirty minutes at a time, and could sit five hours and stand/walk five hours during an eight-hour work day (AR 439-42). Plaintiff could lift and carry ten pounds or less than ten pounds occasionally,
The ALJ gave the January 28, 2015 opinion little weight:
(AR 29.) Again, the ALJ need not accept the opinion of any physician that is brief, conclusory, and unsupported by clinical findings,
The Plaintiff did receive a lumbar MRI and a cervical MRI during the interim period between the two RFC questionnaires. (AR 460-62, 492-93.) The ALJ reviewed the October 29, 2014 lumbar MRI, stating that the it showed no significant changes compared to the December 28, 2013 lumbar MRI. (AR 27, 492-93.) This is accurate, as the Doctor's findings on the lumbar MRI state the conditions "have not significantly changed when compared to the prior study." (AR 493.)
The previous cervical MRI dated December 28, 2013, showed a "[c]hronic diffusely abnormal marrow signal of uncertain cause through the cervical spine," "[s]table mild cord compression with moderate central stenosis at C3-C4 and C4-C5," and "[l]eft-sided moderate/severe neural foraminal stenosis at C3-C4, C4-C5, and C5-C6." (AR 367-68.) The October 29, 2014 cervical MRI showed disc protrusions at the C3-C4, C4-C5, C5-C6, C6-C7, C7-T1, and throughout the partially visualized upper thoracic spine, the disc protrusions at the C3-C4 and C4-C5 indent the ventral aspect of the spinal cord, and the disc protrusion at the C4-C5 level encroaches on the C5 nerve, with moderate to severe left neural foraminal stenosis "which has worsened when compared to the prior study." (AR 460-61.) The ALJ's assessment of the new cervical MRI only noted that the October 29, 2014 cervical MRI "showed the same protrusion at C4-C5, causing moderate to severe left neural foraminal stenosis . . . protrusions at C3-T1," and that no spinal abnormalities were found. (AR 27.)
While the October 2014 cervical MRI noted disc protrusions at C6-C7 and C7-T1 that were not noted on the previous cervical MRI, these only resulted in mild right neural foraminal stenosis. Additionally, while the October 2014 cervical MRI noted that the left neural foraminal stenosis worsened since the previous MRI, it remained at the moderate to severe level. The January 28, 2015 RFC questionnaire and the January 27, 2015 exam immediately prior (AR 457-58, 469-70), do not refer to these MRIs as a basis for Dr. Ereso's opined limitations. The minor changes in the objective MRI results obtained between Dr. Ereso's May 2014 and January 2015 RFC questionnaires do not require the ALJ to have found such records as supporting the drastic change in limitations between the two RFC questionnaires absent objective examination records to support the limitations.
For these reasons, the Court finds the ALJ provided specific and legitimate reasons supported by substantial evidence in finding that Dr. Ereso's January 28, 2015 opinion should be given little weight.
The ALJ briefly noted a series of progress evaluations from Dr. Ereso. First a record dated October 1, 2015 (AR 472-73), which the ALJ noted as indicating Plaintiff's reporting of back pain is intermittent, as the record reflected back pain "for the prior week only."
Next, concerning a visit with Dr. Ereso on December 2, 2015, the ALJ noted that such record again reflected Plaintiff's reporting of joint/muscle pain, neck, left shoulder, and entire back pain, with occasional left arm numbness, along with non-migraine headaches, neck pain radiant on the left arm C5 distribution, and normal gait, station and stability. (AR 28, 474-75.) Plaintiff visited Dr. Ereso shortly thereafter on January 7, 2016, and the ALJ noted that "just a month later, the claimant reported feeling better," and that the "doctor diagnosed morbid obesity, thoracic or lumbosacral neuritis or radiculitis and recommended that the claimant lose weight by diet and exercise." (AR 28.) The Court notes that the "feeling better" appears to be in regards to symptoms of diarrhea and vomiting, not back or neck pain, as the record states that the reason for the visit is "C/O diarrhea, vomiting, tiredness, weakness, headache, [and] loss of appetite x2 days," and reports "[f]eeling better today, no more vomiting diarrhea, no BM today." (AR 470.)
The ALJ then reviewed a record concerning an examination by Dr. Ereso on April 11, 2016. (AR 28, 510-12.) Plaintiff reported left side neck pain radiating to the left arm, left leg numbness, and the ALJ noted that "[s]he told the doctor that these symptoms had existed for about a month, again suggesting that her pain symptoms were intermittent and not chronic." (AR 28.) The Court notes that the record specifically reads "C/O pain L side of neck radiating to L arm, L leg feels numb X1 month," and therefore it is not clear whether this notation refers to all symptoms, or just the numbness. (AR 510.) The ALJ also opined that Dr. Ereso requested a drug screening "as there were conflicting statements by the claimant as to the amount and frequency of medications she was taking [and] [t]he doctor stated that he would gradually wean her from oxycodone. (AR 28.) The Court notes that doctor's comment in the record specifically states that when he ordered drug screening, "she came to me saying that she has not taken her pain meds for 3 days due to UTI, before that she told me she has been taking her meds daily Will [sic] do drug screening and will gradually wean her oxycodone, will give her #150 this month." (AR 512.)
Finally, the ALJ evaluated the RFC questionnaire completed June 1, 2016. (AR 29-30, 530-32.) In this record, Dr. Ereso limited lifting and carrying to twenty pounds occasionally and ten or less pounds frequently, an improvement over the previous January 28, 2015 RFC questionnaire of never carrying twenty pounds and only occasionally ten pounds or less (AR 458), and the previous May 9, 2014 RFC questionnaire which only allowed ten less than ten pounds frequently, and ten or twenty pounds occasionally (AR 440). The June 2016 questionnaire limited sitting to four hours and standing/walk to four hours in a work day (AR 530), a dramatic improvement over the prior January 2015 questionnaire which had limited such activities to only one hour (AR 457). The amount of time Plaintiff can sit or stand walk at one time also improved from twenty to thirty minutes compared to the previous January 2015 questionnaire. (AR 457, 530.)
The new questionnaire stated Plaintiff requires the ability to shift positions at will, and would need unscheduled rest breaks every two hours for twenty minutes. (AR 530-31.) The doctor checked "no" as to manipulative limitations, however this appears to be a mistake as he wrote that Plaintiff could use her right hand 60% and left hand 50% during a workday, and use bilateral arms 50% of the workday. (AR 531.) This is a significant improvement from the limitations noted on the previous January 2015 questionnaire which limited Plaintiff to 50% for the right hand, 10% for the left hand, and 20% for the bilateral arms, (AR 458), and worse than the original May 2014 questionnaire which had no such limitations at all (AR 440). The Doctor also noted that Plaintiff would be absent once or twice a month as a result of impairments and treatments and would not able to work an eight-hour workday five days a week on a sustained basis. The Doctor also concluded that these limitations existed at this level since 2015, but does not specify a month. (AR 532.)
Following review of the last RFC questionnaire, the ALJ provided an analysis of why he gave this RFC questionnaire reduced weight, in conjunction with his overall analysis of Dr. Ereso's opinions as a whole:
(AR 30-31.) The ALJ's finding that there are no treatment records supporting the changes in the limitations expressed in the June 2016 RFC questionnaire as compared to the previous two questionnaires are supported by the exam records. A March 26, 2015 exam shows no musculoskeletal physical exam. (AR 478.) A June 24, 2015 exam shows no musculoskeletal physical exam. (AR 477.) An August 26, 2015 exam only noted normal gait, station, and stability under the physical musculoskeletal exam. (AR 480.) An October 1, 2015 exam noted normal station and stability, a straight-leg raising test showed 90 degrees bilaterally, and noted no lumbar tenderness. (AR 473.) A December 2, 2015 exam only noted normal gait, station, and stability under the musculoskeletal physical exam. (AR 475.) An exam conducted January 7, 2016, shows no musculoskeletal notes from a physical exam. (AR 471.) A February 9, 2016 exam only noted a straight leg raising test at 90 degrees bilaterally with lower back pain. (AR 515.) A March 22, 2016 exam shows no musculoskeletal physical exam notes. (AR 513.)
The June 2016 questionnaire limited sitting to four hours and standing/walk to four hours in a work day (AR 530), and none of these records support such a dramatic improvement over the prior January 2015 questionnaire which had limited such activities to only one hour (AR 457). As noted by the ALJ, the April 11, 2016 physical exam did note under musculoskeletal that Plaintiff had limited range of motion, especially in the left shoulder and advised patient to increase ROM exercises. (AR 511.) This, nor other records in the time period, explain why the June 2016 questionnaire provided that Plaintiff could use her right hand 60% and left hand 50% during a workday, and use bilateral arms 50% of the workday (AR 531), a significant improvement from the limitations noted on the previous January 2015 questionnaire which limited Plaintiff to 50% for the right hand, 10% for the left hand, and 20% for the bilateral arms (AR 458).
Finally, after a referral from Dr. Ereso, Plaintiff obtained an additional lumbar MRI on March 16, 2016. (AR 503-505.) The MRI noted disc protrusions at L3-L4 and L5, moderate to severe disc height loss and Modic Type I-II endplate degenerative changes at L4-L5, and moderate facet arthropathy at L5-S1. (AR 505.) An addendum to this MRI noted "left extraforaminal and far later extension at L3-L4,
The ALJ reasonably found that the major change in limitations opined by Dr. Ereso were not supported by any objective findings reported in the questionnaire, and the ALJ need not accept the opinion of any physician that is brief, conclusory, and unsupported by clinical findings.
State agency physicians opined as to Plaintiff's residual functional capacity on June 19, 2014 (AR 121-142), and October 13, 2014 (AR 143-164). The ALJ explained why he gave the state agency physicians opinions great weight:
(AR 31.) However, as described previously herein, Plaintiff had subsequent lumbar and cervical MRIs conducted on October 29, 2014 (AR 460-62, 492-93), and an additional lumbar MRI on March 16, 2016 (AR 503-505). Additionally, Dr. Ereso's exam notes dated April 11, 2016, also showed new limited range of motion testing and greater limitation particularly in the shoulder, following a physical exam. (AR 510-12.) Although this evidence was considered by the ALJ (AR 27-28), this exam record and the two most recent MRIs were not reviewed by the state agency physicians, and thus, there is no state medical opinion addressing Plaintiff's residual functional capacity after reviewing these records. As discussed previously, although these records do not demonstrate the ALJ erred in assigning little weight to Dr. Ereso's opinions, it was error to give great weight to the state agency physicians' RFC determinations when they did not have access to these most recent records. The most recent MRIs may show additional limitations greater than demonstrated by the objective evidence available to the state physicians at the time of their review.
Plaintiff seeks to have the Court remand for an award of benefits. The Ninth Circuit has "devised a three-part credit-as-true standard, each part of which must be satisfied in order for a court to remand to an ALJ with instructions to calculate and award benefits: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand."
The Court finds that review of the record raises serious doubts that Plaintiff is in fact disabled due to her physical impairments. Here, the ALJ relied on the opinions of the agency physicians in developing the residual functional capacity assessment. However, no physician opined on Plaintiff's physical abilities following the most recent test results and there is no opinion remaining in the record that addresses Plaintiff's physical abilities based on the recent testing and objective findings. Further administrative proceedings would be useful for a physician to consider the new MRI results in determining Plaintiff's residual functional capacity. Upon remand the ALJ shall obtain additional medical opinion evidence as to Plaintiff's physical functioning from a consultative examiner or a medical expert, and further develop the record as deemed necessary.
Based on the foregoing, the Court finds that the ALJ did not err in assigning little weight to the opinions of treating physician Dr. Ereso, however finds that because the ALJ erred in assigning great weight to the state agency physician opinions, substantial evidence does not support the residual functional capacity determination and therefore this action should be remanded for further administrative proceedings. Accordingly, IT IS HEREBY RECOMMENDED that Plaintiff's appeal from the decision of the Commissioner of Social Security be granted.
These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen (14) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
IT IS SO ORDERED.
