PATRICIA SULLIVAN, Magistrate Judge.
Plaintiff Robin P.
Plaintiff protectively filed for DIB on August 9, 2013, alleging a disability onset date of January 1, 2012, later amended to July 23, 2013. Tr. 75, 188-89.
Plaintiff was born in 1964. Tr. 75, 18. Tr. 159, 246. She has completed high school and some college coursework. Tr. 107. Plaintiff worked for fifteen years as a human resource assistant at a retail store. Tr. 107-08, 319. Plaintiff has been diagnosed with degenerative disc disease, osteoarthritis, anxiety, and depression. Tr. 119-21, 334, 346, 349, 366, 399, 418, 477. She lives with her partner, and she has a son who does not live with them. Tr. 284, 401.
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation"). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's "residual functional capacity" ("RFC"), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. Tr. 51. At step two, the ALJ found that plaintiff had the severe impairments of degenerative disc disease and osteoarthritis. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 53. The ALJ then found that plaintiff had the RFC to perform less than sedentary work with various physical restrictions. Tr. 53. In doing so, the ALJ considered the opinions of treating physician Peter Kosek, M.D., and took those opinions into account in formulating the RFC. Tr. 56. The ALJ passed over, without comment, the opinions of physician assistant Frank Hillman. The ALJ found plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms not entirely consistent with the medical evidence and record. The ALJ did not consider a Work Activity Questionnaire that plaintiff's former employer completed. The ALJ afforded "no more than limited weight" to the statements of plaintiff's partner, Robert R., and sister, Theresa R. Tr. 54-55. At step four, the ALJ found plaintiff capable of performing past relevant work as a human resources assistant. Tr. 57. The ALJ thus found plaintiff not disabled under the Act and not entitled to benefits. Id.
Plaintiff asserts that the ALJ made four errors: (1) he failed to provide sufficient, legitimate bases to reject Dr. Kosek's opinions; (2) he failed to provide legally sufficient bases to reject P.A. Hillman's opinions; (3) he failed to provide specific, clear and convincing reasons to reject plaintiff's subjective symptom testimony; and (4) he failed to provide legally sufficient bases to reject the lay witness testimony. The Court should find that the ALJ erred in evaluating plaintiff's subjective symptom testimony and in discounting the lay witness opinions of Robert R. and Theresa R. The Court should find that the ALJ did not otherwise err.
Dr. Kosek was plaintiff's treating physician in 2014 and 2015. In office visit notes of August 12, 2014, Dr. Kosek opined that "[d]espite high dose fentanyl, [plaintiff] remain[ns] disabled." Tr. 532. In office visit notes of November 4, 2014, he also wrote that plaintiff "is disable[d] by her hip and flank pain." Tr. 527. On January 28, 2015, he wrote: "I do not do disability determination evaluations, but if this is needed she can be referred for this. I [e]xplained to her that I can confirm that she has pain appropriate to her radiographic findings, and that is it limi[t]ing her activity despite her current therapy." Tr. 521. After commenting on Dr. Kosek's records, the ALJ wrote, "After review of the full record at the hearing level, the undersigned has limited the claimant to sedentary residual functional capacity with additional postural limitations taking into consideration her history of lumbar degenerative disc disease status post multiple surgical interventions." Tr. 56. Plaintiff argues that the ALJ erred in failing to properly weigh Dr. Kosek's statements.
The weight given to the opinion of a physician depends on whether the physician is a treating, examining, or nonexamining physician. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 20 C.F.R. § 404.1527). If a treating or examining physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). Even if it is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. "An ALJ can satisfy the `substantial evidence' requirement by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted). "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995), as amended (Apr. 9, 1996).
Plaintiff first faults the ALJ for not explicitly considering certain factors that agency regulations provide for the evaluation of medical opinions. See 20 C.F.R. §§ 404.1527(a)-(b). However, in the ALJ's survey of the medical record and summary of plaintiff's medical treatment, the ALJ implicitly considered how long and how frequently Dr. Kosek treated plaintiff, the consistency of his opinions with the record evidence and with other opinions regarding plaintiff's limitations, his specialty (pain treatment), and the extent of the explanation for his opinions. Tr. 56-57. "Even when an agency explains its decision with less than ideal clarity," the Court "must uphold it if the agency's path may reasonably be discerned." Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (quotation and citation omitted). Here, the ALJ adequately considered the § 404.1527 factors.
As for the substance of Dr. Kosek's opinions, plaintiff argues that, under either the clear and convincing reasons standard or the specific and legitimate reasons standard, the ALJ did not provide sufficient bases to discount his opinions because the ALJ did not specifically address the above-quoted statements regarding disability.
The ALJ was not required to specifically address these statements in order to properly evaluate Dr. Kosek's opinions. The ALJ "need not discuss all evidence presented to [him]. Rather, he must explain why significant probative evidence has been rejected." Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (quotation omitted). "[A]n ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An opinion of disability is a conclusion, is not a "medical opinion," is reserved to the Commissioner, and is not entitled to "any special significance." 20 C.F.R. § 404.1527(d)(3). Therefore, it was not error for the ALJ to pass over Dr. Kosek's brief, conclusory opinions that plaintiff was disabled. In fact, Dr. Kosek's own statement that he "do[es] not do disability determination evaluations" undermines his own disability opinions. That plaintiff "has pain appropriate to her radiographic findings, and that is it limi[t]ing her activity despite her current therapy" does not rise to the level of being so probative and significant that the ALJ was required to cite that sentence specifically, in light of the ALJ's broader consideration of Dr. Kosek's opinions and the medical record as a whole. It is vague with regard to the medical evidence it relies on, and as to the limitations it endorses. Also, the ALJ did not make a finding that Dr. Kosek's opinions were entitled to less weight or that he was discounting them. Instead, after surveying the medical evidence, the ALJ formulated an RFC that included further restrictions on physical activities beyond those the state agency medical consultants endorsed. Tr. 57. Specifically, in accord with Dr. Kosek's opinions, the RFC restricted standing and walking. Id.
Plaintiff has not shown that the ALJ erred in considering Dr. Kosek's opinions.
In an April 21, 2016, letter concerning jury duty, P.A. Hillman wrote that plaintiff has "chronic, intractable pain" secondary to multiple problems and that "[b]ecause of these problems she is unable to sit for any prolonged period of time." Tr. 547. The ALJ did not address Hillman's letter in his findings.
A physician assistant is not an "acceptable medical source," but is an "other source" who can provide evidence about the severity of a claimant's impairments and how they affect her ability to work. 20 C.F.R. § 404.1513; Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Moon v. Colvin, 139 F.Supp.3d 1211, 1222 (D. Or. 2015). "Opinions from these [`other'] medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects . . . ." SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006). Factors the ALJ should consider when determining the weight to give an opinion from these "important" sources include the length of time the source has known the claimant, the number of times and frequency that the source has seen the claimant, the consistency of the source's opinion with other evidence in the record, the relevance of the source's opinion, the quality of the source's explanation of that opinion, and the source's training and expertise. Id., at *4. "The ALJ may discount testimony from these `other sources' if the ALJ gives reasons germane to each witness for doing so." Molina, 674 F.3d at 1111 (quotation omitted).
Plaintiff argues that the ALJ erred in not considering Hillman's letter regarding jury duty. However, this letter is essentially two sentences, a list of diagnoses, and a request that because plaintiff "is unable to sit for any prolonged period of time," she be excused from jury duty. Tr. 547. This letter is too vague with regard to the limitations it purportedly assessed, is lacking in any supporting detail or evidence of record, is largely conclusory, and is addressed to a context inapposite to the one here. Tr. 547. The letter did not comprise significant and probative evidence such that the ALJ erred in not citing it. E.g., Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003); Lee v. Colvin, 80 F.Supp.3d 1137, 1149 (D. Or. 2015). This especially so considering the "germane reason" standard.
The ALJ did not err with regard to Hillman's letter.
The ALJ found that "[plaintiff's] medically determinable impairments could reasonably be expected to cause [her] alleged symptoms," but that her "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." Tr. 55.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. First, the claimant must produce objective medical evidence of one or more impairments which could reasonably be expected to produce some degree of symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not required to show that the impairment could reasonably be expected to cause the severity of the symptoms, but only to show that it could reasonably have caused some degree of the symptoms. Id. In the second stage of the analysis, the ALJ must assess the claimant's testimony regarding the severity of the symptoms. Id. The ALJ must specifically identify the testimony he does not credit and must explain what evidence undermines the testimony. Holohan v. Massanari, 246 F.3d 1195, 12028 (9th Cir. 2001). General findings are insufficient to support an adverse determination; the ALJ must rely on substantial evidence. Id. In order to discredit a plaintiff's testimony regarding the degree of impairment, the ALJ must make a "determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ may consider many factors in weighing a claimant's subjective testimony, including
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). "If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quotation omitted).
The ALJ provided two principal reasons for discounting plaintiff's testimony. First, the ALJ characterized certain of plaintiff's medical treatment as "conservative." Tr. 55-56. The ALJ cited Catherine Gallo, M.D.'s recommendation of "conservative treatment on epidural injections"; Dr. Gallo's recommendation of continuing "conservative management"; Dr. Kosek's "conservative treatment of prescribed medication"; and the ALJ's assessment that plaintiff "continues to be managed conservatively for her" pain. Id. "[C]onservative treatment is sufficient to discount a claimant's testimony regarding severity of an impairment.' Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (citation and quotation omitted). However, the ALJ has mischaracterized the citations regarding alleged "conservative" treatment." Dr. Gallo's treatment notes stated that she discussed "conservative management" for pain but that plaintiff would likely need to go further in treatment, including lumbar fusion surgery, and that epidural injections provided only temporary relief. Tr. 355, 364. The ALJ's decision as a whole cites extensive therapeutic, medication-based, and surgical interventions that are far from conservative. Tr. 53-57. E.g., Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) ("doubt[ing] that epidural steroid shots to the neck and lower back qualify as `conservative' medical treatment"); Garrison, 759 F.3d at 1015 n.20.
Second, the ALJ found plaintiff's activities inconsistent with pain testimony, specifically, references to shoveling snow and to walking for exercise. Tr. 55. While "[t]he ALJ may consider many factors in weighing a claimant's credibility, including . . . the claimant's daily activities," Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008), the ALJ relies on only two isolated and inapposite references in the Record. The reference to snow-shoveling comes from January 31, 2013, before the amended onset date, and so is not probative. Tr. 398. Further, the snow shoveling is an incident that shows plaintiff being injured in trying to undertake activities, not that plaintiff could successfully perform such tasks. The reference to walking is that plaintiff walked for exercise four times per week. Tr. 417. However, the medical evidence is silent as to the intensity, distance, or duration of these walks. To the contrary, at the hearing plaintiff testified:
Tr. 98. The reference to the walking is under a section titled "Risk Factors." It was repeatedly recommended to plaintiff that for medical reasons she should attempt to exercise and lose weight. E.g., Tr. 81, 98, 391, 511, 537, 548, 553. The ALJ himself commended plaintiff for these very activities. Tr. 56. Plaintiff reported increased pain on exercise or walking. Tr. 98, 346, 364, 366, 380. The same treatment note also says that plaintiff used an assistive device to walk at that time. Tr. 420-22. The ALJ may not cherry-pick a single activity from the record to call into question all of plaintiff's testimony. See Garrison, 759 F.3d at 1016 ("We have repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day."); Franz v. Colvin, 91 F.Supp.3d 1200, 1209 (D. Or. 2015) ("Plaintiff's report of significant back pain," including "that the plaintiff is able to walk his dog around the block," "is not inconsistent with the ability to perform minimal household chores.").
The ALJ erred in discounting plaintiff's subjective symptom testimony, and must reconsider that testimony on remand in accordance with the above.
On October 7, 2013, plaintiff's employer from her retail assistant position completed a Work Activity Questionnaire in which she noted plaintiff required various types of special assistance in completing her work and had reduced productivity, was frequently absent, and performed unsatisfactory work. Tr. 192-95. The ALJ did not address the Work Activity Questionnaire in his decision.
On November 15, 2013, plaintiff's partner, Robert R., completed a "Function Report — Third Party," in which he reported on plaintiff's activities and limitations. Tr. 284-91. On April 18, 2016, plaintiff's sister, Theresa R., wrote a letter in which she commented on plaintiff's medical history, degree of pain, and attempts to work. Tr. 331-32. After reviewing this evidence, the ALJ concluded that plaintiff was capable of performing less than sedentary work with limitations, and gave the third-party statements "no more than limited weight." Tr. 54-55.
"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). "Such testimony is competent evidence and cannot be disregarded without comment." Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quotation omitted, emphasis in original). "[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to her condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). "Disregard of this evidence violates the [Commissioner's] regulation that he will consider observations by non-medical sources as to how an impairment affects a claimant's ability to work." Id. at 919 (quotation omitted).
The ALJ did not err in failing to comment on the Work Activity Questionnaire. The questionnaire states that plaintiff could not complete her duties with undefined "special assistance," did not regularly report for work, and did not complete her work in a timely fashion. Tr. 192. The "special assistance" that the store allowed plaintiff was irregular hours, fewer hours, lower production standards, and frequent absences. Id. The questionnaire states that plaintiff worked at only 60% productivity. Tr. 193. The questionnaire establishes only an employer's opinion that plaintiff did not adequately perform her job, despite allowing her extra leeway. It does not address physical limitations, pain, accommodations for disability, or any medical subject matter. It does state that any of the forms of assistance the work offered plaintiff were medically or physically required. The questionnaire could just as well have been a report that plaintiff was not a competent employee for completely unrelated reasons. This questionnaire does not amount to significant probative evidence the ALJ was required to address. See Karl v. Colvin, No. 3:13-cv-01245-MC, 2014 WL 3514975, at *2 (D. Or. July 10, 2014).
As to Robert R. and Theresa R., however, the ALJ did not provide legitimate, germane reasons to discount their testimony. The ALJ wrote,
Tr. 55. Robert R. described intense pain that did sometimes improve, not "constant pain," Tr. 291, and in any event, in order to be disabled, plaintiff need not be in such debilitating pain all the time such that all she can do is lie in bed. See Garrison, 759 F.3d at 1016. The ALJ erred in finding plaintiff's activities inconsistent with the record, as described above. The hearing testimony bears out Robert R.'s statements regarding the persistence of plaintiff's pain, the symptoms' effects, and the greatly curtained ability to work. Tr. 76-105. Likewise, the ALJ's reasons for discounting the lay witness testimony, which are only broadly stated and not addressed to specific witness's or the statements the ALJ considered not credible, do not describe the contents of Theresa R.'s letter and are thus not germane to her. The ALJ erred in assessing Robert R. and Theresa R's opinions. E.g., Smolen, 80 F.3d at 1289; Dale v. Colvin, 823 F.3d 941, 945 (9th Cir. 2016); Schow v. Astrue, 272 F. App'x 647, 653 (9th Cir. 2008).
On remand, the ALJ must reassess Robert R. and Theresa R's opinions.
It lies within the district court's discretion whether to remand for further proceedings or to order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citation and italics omitted). This "credit-as-true" rule has three steps: first, the court "ask[s] whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; second, if the ALJ has erred, the court "determine[s] whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful"; and third, if the court "conclude[s] that no outstanding issues remain and further proceedings would not be useful," it may "find[] the relevant testimony credible as a matter of law . . . and then determine whether the record, taken as a whole, leaves not the slightest uncertainty as to the outcome of the proceeding." Treichler v. Comm'r, 775 F.3d 1090, 1100-01 (9th Cir. 2014) (quotations, citations, and alterations omitted). The court may then "remand to an ALJ with instructions to calculate and award benefits." Garrison, 759 F.3d at 1020. If, "even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled," the court should remand for further proceedings. Garrison, 759 F.3d at 1021.
The ALJ erred in assessing plaintiff's subjective symptom testimony, and the lay witness testimony of Robert R. and Theresa R. However, outstanding issues remain to resolve before a determination of disability can be made, specifically, regarding proper evaluation of this evidence. Thus, remand for an immediate award of benefits is not appropriate.
For these reasons, the Court should REVERSE the Commissioner's decision and REMAND this matter for further administrative proceedings.
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due April 18, 2019. If objections are filed, a response to the objections is due fourteen days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.
IT IS SO ORDERED.
