BERNARDO P. VELASCO, Magistrate Judge.
Plaintiff, Tanya Feild, filed this action for review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). The United States Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636 (c) and Fed.R.Civ.P. 73, having received the written consent of both parties.
Plaintiff filed an application for Disability Insurance Benefits ("DIB") on September 21, 2009, alleging an onset of disability beginning January 16, 2007 due to irritable bowel syndrome, fibromyalgia, migraines, vertigo, and severe fatigue. Transcript/Administrative Record ("Tr.") 114-15, 127-135. The application was denied initially and on reconsideration. Tr. 69-83, 93-96, 98-100. A hearing before an Administrative Law Judge ("ALJ") was held on March 16, 2011. Tr. 29-47. At the time of hearing, Plaintiff's attorney amended the date of onset of disability to November 1, 2008. Tr. 36. The ALJ issued a decision on April 5, 2011, finding Plaintiff not disabled within the meaning of the Social Security Act. Tr. 15-24. This decision became the Commissioner's final decision when the Appeals Council denied review. Tr. 1-3.
Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). (Doc. 1) After considering the record before the Court and the parties' briefing of the issues, the Court will reverse Defendant's decision and remand for further proceedings.
Plaintiff was 52 years old at the time of the ALJ's decision with a high school degree, special training in cosmetology, and past relevant work as a hair stylist. Tr. 24, 114, 129, 133.
Plaintiff completed a questionnaire in relation to her Social Security application in September, 2009. Plaintiff reported:
Tr. 128. Plaintiff noted that she was unable, or only sometimes able to do all activities of daily living. Tr. 161-62.
Plaintiff testified at her hearing before the ALJ on March 16, 2011, that she left her cosmetology job because she was "getting sick, and having vertigo problems." Tr. 37. She states she was having migraines and having "like a flu feeling constantly. Everything ached, and I was nauseous, or I was dizzy. And I'd end up calling in several times a week, and I just couldn't keep up with the work anymore." Tr. 37. Plaintiff testified that it was being tired, and "exhausted all the time. The vertigo and the migraines" that kept her from working at the time of the hearing, that the aches and pains were "kind of minor to all of that stuff." Tr. 40. Plaintiff gets migraines a couple times a week or more, and has to go to bed, sometimes for a few hours, sometimes for a day or two. Tr. 44-46. Plaintiff testified that she makes her husband lunch for work each day, then afterwards goes back to bed. Tr. 42. When she wakes up later, she eats cereal, takes her medicine, then waters her plants, then sits or lies down for a bit. Tr. 43. She doesn't vacuum very frequently, but will cook an evening meal if she feels good, and takes care of her laundry. Tr. 43-44. Plaintiff's husband takes her shopping, she gets together with friends occasionally, and she tries to go to church every week. Tr. 44.
Plaintiff was examined and treated by Stuart Snider, M.D., on February 27, 2006, for complaints of three vertiginous episodes during the previous 16 months. Tr. 277. Dr. Snider opined that Plaintiffs presentation with brief nystagmus and nystagmus plus nausea suggested a peripheral rather than brainstem or central origin for the symptoms, and while a viral labyrinthitis recurrence was possible, was somewhat more in favor of atypical (vertiginous) migraine or Meniere's disease. Tr. 277. Dr. Snider also considered another possibility of externally precipitated disease, for example environmental or infectious, perhaps combined with beginning menopause, considering Plaintiff's exposure to organic fumes as a cosmetology instructor. Tr. 277
On June 20, 2006, Dr. Snider reported that Plaintiff's successful trial of Maxalt for the vertigo episodes established the vertiginous migraine mechanism. Tr. 276. Plaintiff also reported symptoms of a hand tremor during that visit, which Dr. Snider assessed as an exaggerated essential tremor. Tr. 276. Though there was no discussion in this progress note of symptoms or assessment of depression, Dr. Snider noted he would continue Plaintiff on anti-depressant medication for depression, and prescribed additional medication for tremor suppression. Tr. 276.
On February 12, 2007, Plaintiff was seen by Dr. Snider for worsening of dizziness, slightly worse tremor, and stable headaches. Tr. 275. Additionally, Plaintiff reported trouble with attention and difficulty remembering. Tr. 275. Dr. Snider assessed anxiety as the possible basis of these symptoms, with a small (10%) chance of systemic disease such as impaired glucose tolerance or, less likely, demyelinating disease. Tr. 275. Dr. Snider recommended a repeat MRI scan of the head, tapering Plaintiff's medication to try to reduce the tremor, and ordered additional lab tests. Tr. 275.
On March 6, 2007, Plaintiff returned to Dr. Snider. Dr. Snider reported a normal MRI scan of the brain, a normal glucose tolerance test, normal blood pressure, and no neurologic abnormalities apart from a positive hyperventilation test for dizziness. Tr. 274. Dr. Snider could only make a primary neurologic diagnosis of migraine. Tr. 274.
Plaintiff was examined by Berchman A. Vaz, M.D., on July 11, 2007. Dr. Vaz noted mild Bouchard and Heberden nodes in the small joints of her hands, no obvious synovitis in any other peripheral joins, mild tenderness with movement of the back, and no significant fibromyalgic tender points on examination. Tr. 273. Dr. Vaz concluded that there was not much evidence to suggest a diagnosis of fibromyalgia or an inflammatory arthritis, but the findings were suggestive of early osteoarthritis. Tr. 273.
Plaintiff was examined and treated by Bridget Walsh, D.O., with Catalina Pointe Arthritis and Rheumatology Specialists, on November 6, 2007, for complaints of pain, stiffness, and dizziness, subsequent to a referral for an evaluation at the request of Plaintiff's treating provider, physician assistant Nance (see P.A. Nance's treatment notes, infra, Section B.4). Tr. 224. Dr. Walsh assessed Plaintiff with fibromyalgia, essential tremor, joint pain, and irritable bowel syndrome. Tr. 225. Dr. Walsh opined that "[o]verall I agree [with] the diagnosis of fibromyalgia." Tr. 225.
On February 18, 2009, John T. Beck, Ph.D., conducted a neuropsychological evaluation of Plaintiff and review of her current treatment records to determine her current level of cognitive functioning and return to work status. Tr. 369-73. Dr. Beck noted no indication during testing that Plaintiff was not fully cooperating or putting forth her best effort, and was adequately motivated during testing. Tr. 372. Dr. Beck reported the scores from testing should be considered valid. Tr. 372. Dr. Beck reported the findings were consistent with those of Dr. Rastatter, discussed infra, Section II.B.4, including mild to moderate deficits in higher cortical function with significant impairments in abstract reasoning, judgment, insight, memory, planning ability, organizational skills, and skills requiring concentration and attention. Tr. 372. Dr. Beck reported significant signs of attentional deficits. Tr. 372. Measures of registration, short-term storage, consolidation, long-term storage, retrieval and forgetting all were outside normal limits, on an age-corrected basis. Tr. 372. Significant indications for frontal lobe dysfunction were noted. Tr. 372. Examination of abilities to abstract, generalize, mental flexibility, reasoning and judgment showed performance all outside of normal limits. Tr. 373. Measures of goal formulation, planning, carrying out activities, and effective performance, as demonstrated by both objective testing and ecological evaluation shown in the examinee's environmental interactions with others, appeared to confirm the existence of abnormal execution of frontal lobe function. Tr. 373. Dr. Beck's diagnostic impressions and conclusions were that Plaintiff's behavior, in her interactions, were not normal, despite trying very hard, and that she demonstrated a clear loss of neuro-cognitive efficiency, coupled with significant pain guarding behavior. Tr. 373. Dr. Beck opined:
Tr. 373.
On December 8, 2009, Jeri B. Hassman, M.D., an independent medical examiner, conducted a physical examination of Plaintiff in relation to her claim for Social Security disability benefits. Tr. 285-88. Dr. Hassman also reviewed Plaintiff's medical records. Tr. 286. Dr. Hassman diagnosed Plaintiff with a history of migraine headaches; history of irritable bowel syndrome and mild abdominal tenderness; fibromyalgia, noting she does have complaints of problems sleeping and diffuse, aching muscular pain, and a negative workup for any inflammatory arthritis or inflammatory condition; previous problems with vertigo, now not a problem; previous problems with tremor, according to medical records, but no tremor on exam today. Tr. 288.
Dr. Hassman completed a Medical Source Statement of Ability to do Work-Related Activities (Physical), noting Plaintiff would have limitations lasting 12 months, due to the above diagnoses. Tr. 289. Dr. Hassman noted the following restrictions: lifting and carrying occasionally 20 pounds, and frequently 10 pounds; standing or walking 6-8 hours in an 8 hour day; sitting 6-8 hours in an 8 hour day with the ability to change positions at least every hour for 5-10 minutes because of muscular pain and muscular stiffness, occasional climbing, stooping, and kneeling, no ladders, ropes, scaffolds, or crawling; and no working around heights, or extremes in temperatures. Tr. 289-91.
On December 22, 2009, Ralph H. Wetmore, II, Ph.D., conducted a psychiatric consultation of Plaintiff in relation to her claim for Social Security disability benefits. Tr. 302-05. Dr. Wetmore also reviewed the Plaintiff's medical records including Plaintiff's Function Report — Adult; Psychological Survey; and Beck Depression Inventory. Tr. 302. Dr. Wetmore concluded that Plaintiff has the ability to understand and remember instructions, locations and work-like procedures. Tr. 304. Dr. Wetmore deferred Axis I and II diagnoses. Tr. 304.
On December 15, 2009, Stephen S. Dickstein, medical consultant, completed a physical residual functional capacity assessment. Tr. 293-300. Mr. Dickstein found the following limitations: lifting and carrying occasionally 20 pounds, and frequently 10 pounds; standing or walking 6-8 hours in an 8 hour day; and sitting 6-8 hours in an 8 hour day; occasional crouching and crawling; no ladder, ropes or scaffolds; avoidance of concentrated exposure to extreme cold, and avoidance of moderate exposure to hazards. Tr. 294-97. Mr. Dickstein found Plaintiff only partially credible, reporting that her stated symptoms and limitations are not fully supported by the objective somatic findings. Tr. 298.
Andres Kerns, Ph.D., completed a Psychiatric Review Technique form on December 24, 2009 finding no medically determinable impairment. Tr. 306. Dr. Kerns reported that the consulting examiner found relatively robust activities of daily living, a mini mental status exam of 29 out of 30, and no compelling evidence of a mood disorder or memory loss, and declined to provide an Axis I or Axis II diagnosis. Tr. 318.
Plaintiff was examined and treated by Katy Nance, P.A., on February 14, 2006, for complaints of vertigo, ataxia, tinnitus, and fatigue. Nance assessed vertigo, and questioned vestibular neuritis, and prescribed Prednisone, and referred Plaintiff for a neurological consult, and a physical therapist for balance training. Tr. 268.
Plaintiff reported complaints of shaking in her arms and head on June 6, 2006. Plaintiff reported that Maxalt medication worked well for her migraines. Nance observed a head tremor, and tremor in both arms and assessed Plaintiff with tremors, migraines, insomnia, and depression. Nance prescribed propranolol, Maxalt, and Celexa, and referred Plaintiff to Dr. Schneider for a diagnosis confirmation. Tr. 267.
On August 25, 2006, Plaintiff complained of lower back pain, radiating into her lower pelvis, and down her legs. Nance referred Plaintiff to the emergency room where she was diagnosed with a ruptured ovarian cyst. Tr. 265.
On January 11, 2007, Plaintiff reported extreme stress, exhaustion, frequent flare-up of migraines, frequent crying, forgetfulness, with anxiety attacks. Nance assessed Plaintiff with migraines, mild memory loss, essential tremor and stress reaction, and recommended a four week absence from work and continuation of her medications. Tr. 264.
On February 6, 2007, Plaintiff reported continued dizziness and migraines, loss of balance, memory loss, right sided abdominal pain, excessive flatulence, diarrhea and constipation, mild heartburn, with improved tremors since being off work unless she is very tired. Nance assessed Plaintiff with dizziness, migraines, memory loss, tenia, irritable bowel syndrome, ovarian cyst, abdominal bloating, tremors, and stress, and continued Plaintiff on Maxalt, Proventil for asthma, referred Plaintiff to Dr. Snider for further medication as her symptoms were progressing neurologically. Tr. 263.
On March 6, 2007, Plaintiff followed up with Nance for migraines, fatigue and stress. Plaintiff reported that her symptoms get worse with exertion, if she does too much, or if it is cloudy outside; she gets dizzy and nauseated every day. Plaintiff reported she no longer drives, does not teach Sunday school anymore, and cannot go to work. Nance assessed Plaintiff with dizziness, migraines, exhaustion, tremors and stress, and prescribed a trial of lorazepam as directed by Dr. Snider, blood test, and work discontinuation. Tr. 262.
On March 15, 2007, Plaintiff followed up with Nance for her lab results, and reported complaints of insomnia. Nance prescribed trazadone for insomnia, ordered a 24-hour urine heavy metal screen, and discussed the use of further anti-depressants. Tr. 261.
On March 29, 2007, Plaintiff reported insomnia, dizziness, migraines and exhaustion. Plaintiff reported that the trazadone for insomnia was not helpful. Nance recommended increasing the dosage, considered Topamax for her migraines, as she reported having 2-3 per week, and recommended that she be on disability. Tr. 260.
On April 23, 2007, Plaintiff reported still having symptoms of dizziness, migraines, and fatigue, and was still exhausted. Her tremors were stable. Nance started Plaintiff on Topamax. Tr. 259.
On May 10, 2007, Plaintiff reported that she has good days, and bad days, and cannot do more than two hours of activity at home before she is exhausted for the rest of the day and has to go to bed. She also reported difficulty driving due to dizziness, and that any kind of work aggravates her muscle aches. Plaintiff discontinued Topamax because it increased her dizziness and made her physically ill. Nance assessed Plaintiff with probable fibromyalgia, and recommended no work for six months, as she was barely able to maintain activities of daily living. Nance referred Plaintiff to a rheumatologist to confirm diagnosis of fibromyalgia. Plaintiff was continued on Maxalt and Demerol as needed, and continued Plaintiff on trazadone for insomnia. Tr. 258.
On July 9, 2007, Plaintiff reported some good days, but a lot of bad days, feeling "icky in her head all day" and exhausted. Nance assessed probable fibromyalgia, and recommended follow up after a rheumatologist evaluation. Tr. 257.
On August 6, 2007, Plaintiff was treated for a sinus infection, but also reported pelvic pain, exhaustion, muscle aches and joint pains. Plaintiff also complained of not sleeping well, irritable bowel syndrome, alternating constipation and diarrhea, and frequent cold sores. Plaintiff was positive for 12 trigger point spots, with the pain lasting even after the pressure was removed. Nance referred Plaintiff for a pelvic ultrasound, and prescribed Lyrica, and ordered blood tests. Tr. 256.
On August 27, 2007, returned to Nance for a medication follow up. Plaintiff reported a decrease in pain from a 6 to a 2/10. She reported more vertigo and head fuzziness. Nance continued Plaintiff on the same dosage of Lyrica and recommended home exercises for vertigo. Tr. 255.
On November 14, 2007, Plaintiff underwent a psycho-social assessment performed by Charles J. Rastatter, Ed.D., Director, Vocational Assessment. Tr. 229-236. The purpose of the assessment was to determine Plaintiff's capacity to return to productive employment in the competitive labor market. Tr. 229. Dr. Rastatter concluded that Plaintiff had multiple primary employment barriers that were directly related to her medical problems and their multiple, residual symptoms, and that, until the barriers were resolved, or significantly reduced in intensity from their current level, Plaintiff would be unable to perform successfully in any job in the competitive labor market on a regular, prolonged basis. Tr. 235-36. Dr. Rastatter noted Plaintiff's barriers included the following:
Tr. 235-36.
On February 28, 2008, Plaintiff reported lower back pain and bilateral hip pain, for the previous 6-8 months. Nance observed tenderness over L5, S1 and in both SI joints, and both "glutes." Lower back range of motion was decreased due to pain. Nance noted that she had been diagnosed by Dr. Walsh with fibromyalgia and was currently in a clinical medication study for treatment. Tr. 253.
On May 12, 2009, P. A. Hoeft
On August 21, 2009, Plaintiff reported to Hoeft with a lot of pain, headaches and fatigues for three weeks. She had fallen twice recently, and had eyelid twitching on the right side, and red spots on her face. Plaintiff reported trying to swim 2-3 times per week. Hoeft observed 2 areas of broken blood vessels on her cheeks. Hoeft recommended a trial of Flexeril at bedtime, and to continue with the exercise. Tr. 251.
On August 31, 2009, Plaintiff reported no change. Tr. 250. Hoeft recommended that Plaintiff discontinue the Flexeril, and try Robaxin, and consider trying amitriptyline if that did not help her sleep or her muscle aches. Tr. 250.
On February 5, 2010, Plaintiff reported that the Maxalt was not working on her migraines, that she felt that she was no longer being treated with Savella in the clinical study, that she believed she was on the placebo, and had been in more pain since they switched her medications in the study. Tr. 330.
On April 26, 2010, Plaintiff presented with hypertension, and reported that she hurts more in her muscles since being off the Savella, and that Maxalt makes her feel drugged up and made her neck feel constricted. Hoeft assessed Plaintiff with essential hypertension, migraine and hypertension, and prescribed Treximet for migraines. Tr. 348-49.
Hoeft completed a Physical Residual Capacity Assessment on January 7, 2011. Hoeft found the following limitations: lifting and carrying 10 pounds occasionally; standing 2 hours or less during an 8 hour day with 3 formal breaks; sitting 15-30 minutes at one time without needing to change position; and walking 2 blocks at one time before needing to stop; a requirement to alternate sitting and standing every hour; occasional reaching, feeling, fingering, handling, and grasping; requirement of lying down after activity or stress; and missing more than five days a month of work due to physical conditions. Hoeft noted that she had observed Plaintiff for several years, that Plaintiff gets episodic severe fatigue, dizziness, and cognitive impairment when she is too active, and that Hoeft's report was based on subjective and objective findings. Tr. 368.
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date of November 1, 2008. Tr. 20, ¶ 2. The ALJ found that Plaintiff has multiple severe impairments: migraine and fibromyalgia. Tr. 20, ¶ 3. The ALJ found that these impairments do not meet or equal a listed impairment. Tr. 21, ¶ 4. At step four, the ALJ found that Plaintiff had the RFC to perform the full range of light work, with restrictions from climbing ladders, ropes and scaffolds, and crouching and crawling; limitations of occasional climbing ramps and stairs, stooping and kneeling; restrictions from balancing; and avoidance of even moderate exposure to working unprotected heights around temperature extremes. Tr. 21, ¶ 5. The ALJ found no mental impairment. The ALJ found that Plaintiff was capable of performing her past relevant work as a hair stylist, and thus, the ALJ concluded that Plaintiff is not disabled. Tr. 24, ¶¶ 6-7.
After the ALJ's April 5, 2011 decision, Plaintiff completed and submitted additional evidence in the form of a headache questionnaire to the Appeals Council. Tr. Tr. 202-205. The Appeals Council found that the additional evidence did not provide a basis for changing the ALJ's decision. Tr. 1-5.
Plaintiff raises three points of error. Plaintiff contends that the ALJ erred by 1) failing to properly rate the severity of Plaintiff's mental impairments; 2) by making an adverse credibility finding; and 3) by finding that the Plaintiff could perform her past relevant work without benefit of vocational expert testimony and without reference to the Dictionary of Occupational Titles. (Doc. 24). The Commissioner contends that the ALJ's decision is supported by substantial evidence and if free of harmful legal error. (Doc. 37).
The Court has the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The Commissioner's decision to deny benefits "should be upheld unless it is based on legal error or is not supported by substantial evidence." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9
Whether a claimant is disabled is determined using a five-step evaluation process. To establish disability, the claimant must show (1) she has not worked since the alleged disability onset date, (2) she has a severe impairment, and (3) her impairment meets or equals a listed impairment or (4) her residual functional capacity (RFC) precludes her from performing her past work. At step five, the Commissioner must show that the claimant is able to perform other work. See 20 C.F.R. §§ 416.920(a)-(g).
Plaintiff argues that the ALJ erred in failing to properly rate the severity of the Plaintiff's mental impairments. The Commissioner argues that any error at step two is harmless because the ALJ did not conclude the analysis at step two, but proceeded through the remaining steps of the sequential evaluation process.
The step-two inquiry is a de minimis screening device to dispose of groundless claims. Webb v. Barhnart, 433 F.3d 683, 687 (9
The Court finds, however, that the ALJ committed harmful legal error by giving Dr. Beck's opinion no weight at step two, and consequently, at step four the ALJ further failed to consider Dr. Beck's opinion in establishing Plaintiff's nonexertional limitations and failed to take Plaintiff's mental impairments into account, resulting in an RFC determination that was not supported by substantial evidence.
At step two, the ALJ gave Dr. Beck's medical conclusions and opinions "no controlling weight" stating that Dr. Beck's opinion "is general and conclusory, and the doctor had no treating relationship with the claimant. (20 CFR 404.1527(e), Social Security Ruling 96-5p)" Tr. 20. While the opinion of any physician, including a treating physician, need not be accepted, "if that opinion is brief, conclusory, and inadequately supported by clinical findings", Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9
Furthermore, while a lack of treating relationship with a claimant is one factor the ALJ may consider in weighing medical opinions, see 20 C.F.R. 404.1527(c)(2) (noting that a treating physician's opinion is entitled to controlling weight if it is well-supported and not inconsistent with other substantial evidence); opinions from nontreating sources are weighed based on the examining relationship (or lack thereof), supportability, consistency, specialization, and other factors. The ALJ's explicit decision to give Dr. Beck's opinion no controlling weight, and implicit decision to disregard Dr. Beck's opinion in its entirety, based on the fact that Dr. Beck had no treating relationship with Plaintiff, was not only legal error under the Commissioner's own regulations, but transparently disingenuous when the ALJ, in the very next sentence in the ruling after rejecting Dr. Beck's opinion, adopted the opinion of the state agency's consultative nontreating examiner. Although the error was harmless at step two, it became prejudicial at step four because the ALJ, having found at step two that "claimant's alleged mental impairment does not cause more than minimal limitations in the claimant's ability to perform basic mental work activities" disregarded Dr. Beck's opinion in establishing the nonexertional limitations of Plaintiff's RFC.
The Commissioner concedes that Dr. Beck was an acceptable medical source, but asserts that "nowhere in his opinion did he diagnose Plaintiff with anxiety disorder (or with any other mental impairment) (Tr. 369-373)." The Commissioner acknowledges that Dr. Beck observed Plaintiff's behavior, test results, and diagnostic impressions, and that his impressions and conclusions indicated Plaintiff's functional limitations (Doc. 37, at 10), but asserts that "[w]ithout an opinion from Dr. Beck — or any other acceptable medical source — about what impairment he believed caused these functional limitations (i.e., a diagnosis), it would have been error for the ALJ to have included a mental impairment at step two." The Commissioner is incorrect, Drs. Beck, Wetmore, and Walsh each concluded that Plaintiff carried a diagnosis of fibromyalgia. As the agency's rules state "[p]eople with [fibromyalgia] may also have nonexertional physical or mental limitations because of their pain or other symptoms." SSR 12-2p. Specifically, one of the three diagnostic criteria for establishing that a claimant has the medically determinable impairment of fibromyalgia is "[r]epeated manifestations of six or more [fibromyalgia] symptoms, signs, or co-occuring conditions, especially manifestations of fatigue, cognitive or memory problems ("fibro fog"), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome... ." Id. (emphasis added, internal footnotes omitted). The Commissioner fails to consider that Plaintiff's cognitive deficits are, as the agency's ruling suggests, manifestations of and, in fact, diagnostic indicators of, Plaintiff's medically determinable impairment of fibromyalgia. Additionally, the ALJ did not rely on this rationale in his opinion as a basis for rejecting Dr. Beck's opinion. This Court should review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely. See Orn v. Astrue, 495 F.3d 625, 630 (9
Plaintiff argues that the ALJ's misunderstanding of fibromyalgia syndrome, and focus on the lack of objective medical evidence in the record, led to an adverse credibility determination based on an improper assessment of the evidence. (Doc. 24, at 11). The Commissioner argues that the ALJ reasonably considered a series of inconsistencies between Plaintiff's statements and the other evidence of record in finding her less than credible, and reasonably found that Plaintiff's complaints of disabling limitations were not supported by the objective medical evidence. (Doc. 37, at 12-13).
Plaintiff has produced objective medical evidence of an underlying impairment that could reasonably give rise to her symptoms. Moreover, there has not been an affirmative finding of malingering by the ALJ. The ALJ's reasons for rejecting Plaintiff's testimony, therefore, must be clear and convincing. Orn, 495 F.3d at 635. "The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen v. Chater, 80 F.3d 1273, 1284 (9
The ALJ found that Plaintiff received only modest treatment for the impairments of fibromyalgia and migraine headaches. Tr. 22. The ALJ noted that, in November 2007, Plaintiff was placed on a study medication, Savella, then later on a trial of Flexeril, which was later changed to a trial of Robaxin for "muscle aches." Tr. 22. The ALJ commented that in May, 2010, Plaintiff was no longer taking medication for migraine headaches "because she has not had a migraine." Tr. 23. The ALJ also noted that when Nance recommended that Plaintiff continue her exercise program, Plaintiff tried to swim 2-3 times per week, "which suggests that she remains active" and that in May, 2010, Plaintiff reported exercising "a lot" but with no loss of weight. Tr. 23. The ALJ also noted that, in August 2010, Hoeft noted that Plaintiff's fibromyalgia was "stable" with a normal physical examination. Tr. 23.
It is unclear why the ALJ concluded that Plaintiff's medical treatment was "modest" because the ALJ does not explain the basis for this ad hoc categorization; thus the ALJ's reasoning is neither clear nor convincing. Because fibromyalgia is a disease that has eluded the medical community both in terms of a cause and a cure, there is no support for the ALJ's implicit conclusion that a more severe and disabling condition would necessarily result in more aggressive treatment. See Benecke v. Barnhart, 379 F.3d 587, 590 (9
Commissioner asserts that "[i]t was reasonable for the ALJ to find that Plaintiff's alleged mental impairments did not significantly limit her ability to do basic work activities because Plaintiff herself did not appear to believe they were severe enough to require any treatment." (Doc. 37, at 8). Contrary to this assertion, however, Plaintiff was treated by Dr. Snider for depression, and reported complaints of anxiety, memory loss, feeling "icky in her head all day," "head fuzziness," and stress to Nance/Hoeft. Plaintiff reported that the study medication she was on helped with her "foggy days" but she was not able to continue on the study medications. The ALJ erred by failing to consider the impact of Plaintiff's mental impairments on her ability to do basic work activities.
The ALJ found, in the category of ADL's, that Plaintiff had mild restrictions but was able to prepare breakfast, prepare her husband's lunch, do household chores, watch television, talk on the telephone, prepare dinner and wash dishes. Tr. 23. The ALJ also found that Plaintiff required no assistance in dressing or personal grooming. Tr. 23. From this, the ALJ inferred that Plaintiff had maintained a somewhat normal level of daily activity and interaction, and that the physical and mental requirements of these household tasks and social interactions are consistent with a significant degree of overall functioning. Tr. 23. The Ninth Circuit "has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities ... does not in any way detract from her credibility as to her overall disability." Vertigan, 260 F.3d at 1050. One does not need to be `utterly incapacitated' in order to be disabled." Id. (quoting Fair v. Bowen, 885 F.2d 597, 603 (9
An ALJ errs in discounting the credibility of a claimant where the ALJ relies largely on claimant's ability to carry out certain routine tasks, which were quite limited and carried out with difficulty. Benecke, 379 F.3d at 594. Daily activities may only form the basis of an adverse credibility finding if the claimant is able to spend "a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting...." Fair, 885 F.2d at 603 (emphasis omitted). "In evaluating whether the claimant satisfies the disability criteria, the Commissioner must evaluate the claimant's `ability to work on a sustained basis.'" Lester v. Chater, 81 F.3d 821, 833 (9
Given the Court's ruling on the issues above, the Court need not address Plaintiff's arguments that the Commissioner erred by finding that Plaintiff could perform her past relevant work as a hair stylist without benefit of vocational expert testimony and without reference to the Dictionary of Occupational Titles. (Doc. 24, at 19).
"Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion `as a matter of law.'" Lester, 81 F.3d at 834 (quoting Hammock v. Bowen, 879 F.2d 498, 502 (9
Here, the ALJ erred by rejecting Dr. Beck's opinion in step two and consequently failed to incorporate Plaintiff's mental impairments at step four of the disability determination. He also failed to provide legally sufficient reasons for rejecting Plaintiff's subjective symptom testimony. However, it is not clear that the ALJ would be required to find Plaintiff disabled if such evidence were credited. By failing to establish Plaintiff's nonexertional limitations caused by Plaintiff's cognitive deficiencies the ALJ concluded his analysis at step four and did not reach step five. As such, even if the evidence in the record mandated a finding that Plaintiff is not able to perform her past work, it is unclear whether there might be other jobs in the national economy that Plaintiff could perform. In cases where the testimony of a vocational expert has failed to address functional limitations as established by improperly discredited evidence, this Circuit "consistently [has] remanded for further proceedings rather than payment of benefits." Harman, 211 F.3d at 1180 (citation omitted). Thus, a remand for further proceedings is appropriate in this case. On remand the ALJ should properly evaluate Dr. Beck's opinion, Plaintiff's nonexertional limitations, Plaintiff's credibility, residual functional capacity, and obtain the testimony of a vocational expert.
Accordingly,
IT IS ORDERED:
2. The Clerk of the Court is instructed to enter judgment accordingly and close this case.
