JAMES P. DONOHUE, Magistrate Judge.
Plaintiff Kelly Jeanette Prince appeals the final decision of the Commissioner of the Social Security Administration ("Commissioner") that denied her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-83f, after a hearing before an administrative law judge ("ALJ"). For the reasons set forth below, the Court recommends that the Commissioner's decision be REVERSED and REMANDED for additional proceedings.
Plaintiff is a 40-year-old woman with a ninth-grade education and no GED. Administrative Record ("AR") at 120, 137. Her past work experience includes employment as a retail production worker and in retail customer service, and she formerly owned a children's store. AR at 137, 142. Plaintiff was last gainfully employed in November 2009. AR at 136.
On June 16, 2010, Plaintiff filed an application for SSI payments. AR at 120-23. At the administrative hearing, she amended her alleged onset date from November 15, 2009, to June 3, 2010. AR at 39. Plaintiff asserts that she is disabled due to sleep apnea, hypertension, high blood pressure, and obesity. AR at 136.
The Commissioner denied Plaintiff's claim initially and on reconsideration. AR at 63-66, 70-71. Plaintiff requested a hearing, which took place on November 29, 2011. AR at 36-59. On January 27, 2012, the ALJ issued a decision finding Plaintiff not disabled and denied benefits based on his finding that Plaintiff could perform a specific job existing in significant numbers in the national economy. AR at 21-31. After reviewing additional evidence, the Appeals Council denied Plaintiff's request for review. AR at 1-5. On May 8, 2013, Plaintiff timely filed the present action challenging the Commissioner's decision. Dkt. 1, 5.
Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits when the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one rational interpretation, it is the Commissioner's conclusion that must be upheld. Id.
The Court may direct an award of benefits where "the record has been fully developed and further administrative proceedings would serve no useful purpose." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). The Court may find that this occurs when:
Id. at 1076-77; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (noting that erroneously rejected evidence may be credited when all three elements are met).
As the claimant, Ms. Prince bears the burden of proving that she is disabled within the meaning of the Social Security Act (the "Act"). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (internal citations omitted). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment which has lasted, or is expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled under the Act only if her impairments are of such severity that she is unable to do her previous work, and cannot, considering her age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five-step sequential evaluation process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. §§ 404.1520, 416.920. The claimant bears the burden of proof during steps one through four. At step five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks whether the claimant is presently engaged in "substantial gainful activity" ("SGA"). 20 C.F.R. §§ 404.1520(b), 416.920(b).
When the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, the Commissioner must proceed to step four and evaluate the claimant's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the Commissioner evaluates the physical and mental demands of the claimant's past relevant work to determine whether she can still perform that work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant is able to perform her past relevant work, she is not disabled; if the opposite is true, then the burden shifts to the Commissioner at step five to show that the claimant can perform other work that exists in significant numbers in the national economy, taking into consideration the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1099, 1100. If the Commissioner finds the claimant is unable to perform other work, then the claimant is found disabled and benefits may be awarded.
On January 27, 2012, the ALJ found:
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
AR at 24-31.
The principal issues on appeal are:
Dkt. 18 at 2.
Plaintiff assigns error to the ALJ's assessment of three medical opinions, arguing that the reasons provided by the ALJ for discounting those opinions are not specific and legitimate. The Court will address the opinions in turn.
As a matter of law, more weight is given to a treating physician's opinion than to that of a non-treating physician because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes, 881 F.2d at 751; see also Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). A treating physician's opinion, however, is not necessarily conclusive as to either a physical condition or the ultimate issue of disability, and can be rejected, whether or not that opinion is contradicted. Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of a treating or examining physician, the ALJ must give clear and convincing reasons for doing so if the opinion is not contradicted by other evidence, and specific and legitimate reasons if it is. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1988). "This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state his/her conclusions. "He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). Such conclusions must at all times be supported by substantial evidence. Reddick, 157 F.3d at 725.
The opinions of examining physicians are to be given more weight than non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Like treating physicians, the uncontradicted opinions of examining physicians may not be rejected without clear and convincing evidence. Id. An ALJ may reject the controverted opinions of an examining physician only by providing specific and legitimate reasons that are supported by the record. Bayliss, 427 F.3d at 1216.
In order to determine whether a claimant is disabled, an ALJ may also consider laywitness sources, such as testimony by nurse practitioners, physicians' assistants, and counselors. See 20 C.F.R. § 404.1513(d). Such testimony regarding a claimant's symptoms or how an impairment affects his/her ability to work is competent evidence, and cannot be disregarded without comment. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); see also Social Security Ruling 06-03p (noting that because "other" sources "have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists," their opinions "should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file."). If an ALJ chooses to discount testimony of an "other" source, he must provide "reasons that are germane to each witness," and may not simply categorically discredit the testimony. Dodrill, 12 F.3d at 919.
Treating providers Mr. Margelli and Dr. Stoltz signed identical reports in November
2011, describing the effects of Plaintiff's obstructive sleep apnea. AR at 347-50. Mr. Margelli and Dr. Stoltz treated Plaintiff together starting in 2007, and described Plaintiff's daytime hypersomnia despite regular treatment and compliance. Id.
The ALJ summarized the Magelli/Stoltz opinions and explained his assessment in one sentence, with no citation to the record: "Little weight is given to these opinions, as they are inconsistent with the evidence in the record." AR at 28.
Treating nurse Ms. Chapman completed a DSHS form opinion in September 2010, indicating that Plaintiff can perform light work but only 1-10 hours per week. AR at 313-14. The ALJ indicated that he afforded little weight to this opinion because "Ms. Chapman, a nurse practitioner, is not an acceptable medical source." AR at 28.
Because the ALJ erred in assessing the medical evidence, the Court cannot evaluate whether the ALJ's RFC assessment and related step-five findings are erroneous. On remand, the ALJ shall consider his RFC assessment and findings at steps four and five in light of his reassessment of the medical evidence.
The ALJ provided two reasons to discount Plaintiff's credibility, namely inconsistent daily activities and inconsistent objective medical evidence. Plaintiff argues that the ALJ's reliance on her daily activities was erroneous, because the activities cited do not demonstrate that she can work full-time. Dkt. 18 at 7.
As noted above, credibility determinations are within the province of the ALJ's responsibilities, and will not be disturbed, unless they are not supported by substantial evidence. A determination of whether to accept a claimant's subjective symptom testimony requires a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929; Smolen, 80 F.3d at 1281; SSR 96-7p. First, the ALJ must determine whether there is a medically determinable impairment that reasonably could be expected to cause the claimant's symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82; SSR 96-7p. Once a claimant produces medical evidence of an underlying impairment, the ALJ may not discredit the claimant's testimony as to the severity of symptoms solely because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick, 157 F.3d at 722. Absent affirmative evidence showing that the claimant is malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722.
When evaluating a claimant's credibility, the ALJ must specifically identify what testimony is not credible and what evidence undermines the claimant's complaints; general findings are insufficient. Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ may consider "ordinary techniques of credibility evaluation" including a reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Smolen, 80 F.3d at 1284; see also Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
Plaintiff argues that the ALJ erred in discounting her credibility due to her activities, because the activities cited do not establish that she can work full-time. Plaintiff's argument assumes that the only valid reason why an ALJ would rely on a claimant's daily activities would be to cite them as evidence that a claimant can work. She overlooks the other grounds for considering a claimant's daily activities in assessing credibility: to identify inconsistencies in the claimant's testimony. See Orn, 495 F.3d at 639 (indicating that there are "two grounds for using daily activities to form the basis of an adverse credibility determination": (1) citing activities that contradict the claimant's other testimony, and (2) citing activities that demonstrate transferable work abilities).
In this case, the ALJ noted that Plaintiff claimed that her impairments limited her memory, and her ability to concentrate, understand, follow instructions, and complete tasks. AR at 26. She also claimed that she was unable to stand or sit for long periods of time, and is fatigued every day. Id. The ALJ found these allegations to be inconsistent with her activities, namely her ability to care for her young daughter as a single mother, care for pets, independently complete her personal care and grooming activities, complete household chores (cook, clean, launder and iron clothes, wash dishes, pay bills), drive and shop alone in stores, comply with her medication regimen without special reminders, and use the computer to access Facebook for a couple of hours per night. AR at 26-27. The ALJ also noted that Plaintiff was able to take classes at a community college and volunteer at a school for four hours per day. AR at 27.
The ALJ reasonably construed Plaintiff's activities to be inconsistent with her allegations of mental and physical limitations, and thus did not err. See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) ("Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld."). Plaintiff's focus on whether the activities cited by the ALJ were performed under conditions similar to SGA is irrelevant to the ALJ's rationale. See Dkt. 18 at 7.
Furthermore, the ALJ also cited medical evidence that is inconsistent with Plaintiff's allegations, including evidence showing that Plaintiff's sleep apnea was well controlled via a CPAP machine, and that her mental impairments did not preclude the performance of simple tasks or appropriate social interaction. AR at 27 (citing AR 190, 299-304).
Because the ALJ provided clear and convincing reasons, based on inferences drawn from substantial evidence in the record, to discount Plaintiff's credibility, his adverse credibility determination should be upheld.
For the foregoing reasons, the Court recommends that this case be REVERSED and REMANDED to the Commissioner for further proceedings not inconsistent with the Court's instructions. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within
