BERNARDO P. VELASCO, Magistrate Judge.
Plaintiff Elizabeth Gonzales filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. Pursuant to 28 U.S.C. § 636(c), the parties have consented to proceed before the Magistrate Judge for all proceedings in this case. (Doc. 14). Pending before the Court are Plaintiff's Brief (Doc. 19), Defendant's Brief (Doc. 23), and Plaintiff's Reply Brief (Doc. 24). For the following reasons, the Court remands the matter for further proceedings.
In March 2012, Plaintiff filed applications for disability benefits and supplemental security income under the Social Security Act. (Doc. 19 at 2; Transcript/Administrative Record (Doc. 16) ("Tr.") at 35; see also Tr. at 167-74). Plaintiff alleges that she has been unable to work since June 30, 2010 due to arthritis of both knees, varicose veins, and hammer toes. (Tr. at 169, 215, 219). After Plaintiff's applications were denied initially and upon reconsideration, she requested a hearing before an Administrative Law Judge ("ALJ"). (Doc. 19, at 2). On July 23, 2013, the matter came on for hearing before ALJ Normal Buls where Plaintiff, who was represented by counsel, testified. (Tr. at 17-31). On August 21, 2013, the ALJ issued an unfavorable decision. (Tr. at 35-41). The Appeals Council subsequently denied Plaintiff's request for review, thereby rendering the ALJ's August 21, 2013 decision the final decision of the Commissioner. (Tr. at 1-5). Plaintiff then initiated the instant action.
Plaintiff was born on August 27, 1956
Plaintiff testified that her work as a teacher's aide was terminated due to budget cuts. (Tr. at 23). By the time she stopped working as a teacher's aide, she was "already having problems going up steps. I cannot do steps." (Id.; see also Tr. at 30). She also has difficulty standing and walking for too long due to her knees. (Tr. at 23; see also Tr. at 30 (Plaintiff has difficulty walking long distances); Tr. at 27 (Plaintiff's varicose veins also interfere with her ability to stand)). When the ALJ asked Plaintiff how long she can stand, Plaintiff responded that she could stand for "[n]o more than an hour and a half or two hours" before needing to sit down and rest for a while. (Tr. at 23-24). She also testified that after standing 40 minutes, she has to sit down and take a 10-15 minute break before being able to stand up and walk around again because her varicose veins "start getting numb—tingling on the side of my left leg. . . . And my knees start to hurt." (Tr. at 27). Plaintiff stated that she would be unable to work as a merchandiser full-time because she would not be able to "stand that long." (Tr. at 25). Further, in her current work two hours a week as a merchandiser, she has difficulty walking around the store and she must hold onto a cart or use a cane because her knees buckle and she loses her balance. (Tr. at 26 (Plaintiff began using a cane on her own)). Plaintiff also experiences numbness in her left thigh from varicose veins when sitting longer than 20 minutes at a time, so she has to get up. (Tr. at 28). Plaintiff also experiences pain at the left side of her back and in her hip. (Tr. at 28-29).
Plaintiff testified that she has not "gone often to a doctor because I don't have money or insurance to get more physical facts." (Tr. at 23). Plaintiff's statements to medical providers also reflect that cost and lack of insurance affected her ability to obtain medical care. (See e.g., Tr. at 297 (In October 2010, Plaintiff told Dr. Ellinas that "`I am unemployed so I don't have money so I didn't come when I was supposed to. I didn't get anything done.'"); Tr. at 332 (In April 2010, Plaintiff stated to Dr. Ellinas that she didn't "come when I was supposed to . . ." because she is unemployed and has no money.); Tr. at 293 (Dr. Ellinas noted in March 2011 that Plaintiff was "still on Synthroid `it had refills' but otherwise no insurance to pay for meds"); Tr. at 347 (In February 2013, Plaintiff told Dr. Ellinas that she did not do follow up lab work because she was sent a "big bill", and Dr. Ellinas' treatment note also reflects: "If manages to get insurance she will need Vascular referral."); Tr. at 332 (In February 2013, Dr. Ellinas wrote a note "to whom it may concern" requesting Plaintiff be provided with "health insurance as patient has chronic medical issues that need immediate workup by orthopedic and vascular surgery specialists")). Plaintiff also testified that she has not undergone treatment for varicose veins because she does not have insurance, and she has not had treatment for back and hip pain because "the doctors have to refer me to other doctors, and I don't have the money." (Tr. at 28-29).
Plaintiff testified that is she divorced and lives with her son who helps her with laundry, cleaning the house and cooking. (Tr. at 20-24; see also Tr. at 29 (Plaintiff does not stand for long periods when cooking)). Plaintiff stated that it takes her about two hours to do laundry on her own, with three 15-minute rest periods. (Tr. at 227). She can vacuum, sweep, mop and dust for about one and one-half hours with three 15-minute rest periods. (Id.). Plaintiff never learned to drive, so she uses a shuttle bus, or her daughter or sister will drive her places. (Tr. at 21, 24, 227).
In addition to medication for high blood pressure, hypothyroidism, and acid reflux, Plaintiff also takes 800 mg ibuprofen and Cyclobenzaprine for pain, including muscle pain. (Tr. at 243, 287).
The record reflects that Plaintiff was treated by Doctors Karam Makhni and Panayoitis Ellinas, both of Copper Queen Medical Associates. November 2012 radiological examination of Plaintiff's knees, ordered by Dr. Makhni, reflected moderate bicompartmental narrowing and early degenerative changes bilaterally. (Tr. at 309). Imaging performed in December 2012 revealed mild degenerative changes in both knees and no acute abnormalities in Plaintiff's right foot, although mild hallux valgus was noted. (Tr. at 320-23).
The record contains Dr. Makhni's undated "Medical Opinion Re: Ability To Do Physical Activities" reflecting his diagnosis of osteoarthritis in both knees and indicating that Plaintiff's prognosis was "good to fair with physical therapy." (Tr. at 314) (all capitalization omitted). Dr. Makhni opined that Plaintiff could sit continuously for 2 hours at a time, and she could sit at least 6 hours during an 8-hour workday, with normal breaks. (Id.). He also stated that Plaintiff could walk up to 2 city blocks without rest, but would need a cane if she walked a greater distance. (Tr. at 315). Plaintiff could stand continuously for 45 minutes, and she could stand for a total of 2 hours during an 8-hour workday, with normal breaks. (Tr. at 314). He indicated that Plaintiff needed to shift positions at will from sitting, standing or walking, and that she would need to take unscheduled breaks, lasting about 10 minutes each, once every hour. (Id.). Plaintiff could occasionally twist and stoop but she should never crouch, climb stairs, or ladders. (Tr. at 316). The record also reflects an April 2010 note from Dr. Ellinas that Plaintiff should "limit
In August 2012, Plaintiff presented to consulting examiner Jeri Hassman, M.D. (Tr. at 300-06). Plaintiff, who is five feet, three inches weighed 255 pounds on the day of the appointment. (Tr. at 301). On examination, Dr. Hassman noted, in pertinent part, that Plaintiff's "gait was essentially normal." (Tr. at 301). Plaintiff "had slight difficulty with toe walking because of pain in her toes, and she complained of `hammertoes.'" (Id.). Plaintiff "refused to hop on either foot because of bilateral knee pain." (Id.). She bent down to pick something up from the floor in a "slightly unusual way" in a lunge-type position keeping her right knee in flexion and bending forward from the waist. (Id.). She was unable to kneel completely. (Id.). Plaintiff had "full range of motion of both knees but slight pain and stiffness with range of motion of both knees, left worse than right." (Tr. at 302). There was no specific medial or lateral joint tenderness and no "varus or valgus or anterior or posterior instability of the knees. She had a negative McMurray sign of both knees." (Id.) There was minimal crepitus in both knees. (Id.). Dr. Hassman also noted moderate varicosities in both claves. (Id.). On examining Plaintiff's feet, Dr. Hassman found "a bunion of the left foot but minimal hallux valgus. . . ." (Id.). Plaintiff also had "hammering and fixed flexion of the interphalangeal joint of bilateral second toes but no obvious hammering of the third, fourth, and fifth toes bilaterally. She was able to stand on both feet in bare feet without any complaints of pain in her feet." (Id.).
Dr. Hassman's diagnoses included:
(Tr. at 302-03)). Dr. Hassman completed a "Medical Source Statement of Ability To Do Work-Related Activities (Physical)" indicating that Plaintiff's conditions were expected to impose limitations for 12 continuous months. (Tr. at 303) (all capitalization omitted). Dr. Hassman opined that Plaintiff could lift/carry up to 50 pounds occasionally and 25 pounds frequently. She stated that Plaintiff could stand and/or walk at least 6 to 8 hours in an 8-hour day, and she went on to state: "She may need to take a rest break at least every hour." (Id.). As support for the recommended limitations on standing and walking, Dr. Hassman cited Plaintiffs "[p]robable degenerative joint disease, both knees[ ]" and "complaints of bilateral foot pain, and she does have hammering of bilateral second toes both a bunion on the left foot." (Id.). Dr. Hassman indicated that Plaintiff was unlimited in sitting. (Id.). She further stated that Plaintiff was limited to occasional: climbing of ramps, ladders, stairs, ropes and scaffolds; stooping; kneeling; crouching; and crawling. (Tr. at 305).
Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§404.1520, 416.920. To establish disability, the claimant must show that: (1) she has not performed substantial gainful activity since the alleged disability onset date ("Step One"); (2) she has a severe impairment(s) ("Step Two"); and (3) her impairment(s) meets or equals the listed impairment(s) ("Step Three"). "If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed . . ., the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC)."[
The ALJ determined that Plaintiff had the following severe impairments: arthritis of the bilateral knees. (Tr. at 37). To support this determination, the ALJ stated that "[t]he medical evidence of record documents that the claimant exhibits symptoms that are consistent with degenerative joint disease of her bilateral knees, with the left slightly more symptomatic than the right. . . . The claimant reported chronic pain and difficulty climbing stairs." (Tr. 38).
The ALJ found that Plaintiff's impairments did not meet a listing. (Id.). He found that Plaintiff had the RFC to:
(Id.). Based upon Plaintiff's RFC, the ALJ found that Plaintiff "is capable of performing past relevant work as a teacher's aide[,]" as that work is actually and generally performed. (Tr. at 41). Therefore, the ALJ determined that Plaintiff is not disabled under the Social Security Act from June 30, 2010 through the date of his decision. (Id.). In making his determination, the ALJ gave "controlling weight" to examining Dr. Hassman's opinion and "reduced weight" to treating Dr. Makhni's opinion. (Tr. at 40).
Plaintiff argues that the ALJ erred by (1) assigning "controlling weight" to examining Dr. Hassman's opinion, but then failing to accept all of the doctor's limitations; (2) failing to consider the impact of Plaintiff's obesity; and (3) improperly rejecting the opinion of Plaintiff's treating doctor. Defendant counters that the ALJ's decision was free of error on all matters at issue and, even if error did occur, it was harmless.
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 factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9
Substantial evidence is "`more than a mere scintilla[,] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9
Plaintiff argues that the ALJ's RFC assessment is unsupported by substantial evidence because the ALJ failed to include that Plaintiff may need to take breaks every hour as stated by examining doctor Hassman.
The ALJ is responsible for determining the claimant's RFC. See 20 C.F.R. § 404.1546(c), 416.946(c); SSR 96-5p, 1996 WL 3474183
When discussing Dr. Hassman's examination of Plaintiff and opinion in detail, the ALJ stated in pertinent part that Dr. Hassman "opined that the claimant would be able to stand or walk for six to eight hours total out of an eight-hour workday, with breaks every hour." (Tr. at 39) (emphasis added). Defendant posits that the ALJ "misstated" Dr. Hassman's restriction with regard to the breaks. (Doc. 23 at 8). According to Defendant, "Dr. Hassman's opinion about the need to take an hourly rest break was equivocal . . .", and "the ALJ reasonably excluded this equivocal limitation from the residual functional capacity, although he did not expressly note this." (Id.). Defendant also argues that the omission was inconsequential to the nondisability determination and, thus, was harmless. (Id. (citing Molina, 674 F.3d at 1115)).
There is simply no basis to believe that the ALJ did not read Dr. Hassman's assessment the way the ALJ said he did. Significantly, Dr. Hassman was careful to include this specific restriction in her statement of Plaintiff's "Ability To Do Work-Related Activities (Physical)" (Tr. at 303) (all capitalization omitted), and noted as support: probable degenerative joint disease in both knees; bilateral foot pain; hammering of bilateral second toes both; and a bunion on Plaintiff's left foot. (Tr. at 304). Cf. Valentine v. Comm'r. of Soc. Sec. Admin, 574 F.3d 685, 691-92 (9th Cir. 2009) (where a doctor observed that the plaintiff may need simple paced work, in addition to other non-exertional restrictions, but did not include those restriction in the Mental Residual Functional Capacity Assessment, the ALJ did not err by excluding the recommended restrictions from the RFC assessment). That Dr. Hassman used the word "may" does not necessarily mean equivocation; instead, the word can suggest that the need to rest was at Plaintiff's will during each hour. In any event, the ALJ's discussion of Dr. Hassman's assessed limitations supports the conclusion that he read the statement that Plaintiff was capable of standing or walking "for six to eight hours total out of an eight-hour workday, with breaks every hour." (Tr. at 39). The ALJ was clear that he gave Dr. Hassman's assessment "controlling weight", yet he did not account for omitting the necessity of hourly breaks in the RFC assessment. See Lester v. Chater, 81 F.3d 821, 830-31 (9
Plaintiff stands 5 feet, three inches tall. (Tr. at 301). On the day she was examined by Dr. Hassman, she weighed 255 pounds.
As discussed above, the ALJ gave Dr. Hassman's opinion what he termed "controlling weight." (Tr. at 40). Although the ALJ acknowledged that Dr. Hassman's diagnoses included "morbid obesity" (Tr. at 39), he omitted any further discussion related to that diagnosis. The ALJ did not include obesity as one of Plaintiff's severe impairments.
The Social Security Administration has recognized that "[o]besity is a risk factor that increases an individual's chances of developing impairments in most body systems. It commonly leads to, and often complicates, chronic diseases of the cardiovascular system, respiratory, and musculoskeletal body systems." SSR 02-1p, 2002 WL 34686281, *3. The Administration has also recognized that even though obesity is a risk factor for other impairments, an obese individual may not "necessarily have any of these impairments." Id. The Administration has directed that in determining severity at Step Two, the ALJ should consider "the effects of any symptoms (such as pain or fatigue) that could limit functioning." Id. at *4 (noting "[t]here is no specific level of weight or BMI that equates with a `severe' or `not severe' impairment. . . . Rather, we will do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe."). SSR 01-2p, in pertinent part, also makes clear that obesity can affect the claimant's RFC assessment at Step Four:
Id. at *6. Further, it is well-settled that:
Carmickle v. Comm'r. Soc. Sec. Admin., 533 F.3d 1155, 1164 (9
Defendant argues that the ALJ's decision is without error or, alternatlively, that any error is harmless because Plaintiff has failed to identify "any symptoms or limitations related to obesity, such as fatigue." (Doc. 23 at 14). Defendant's reliance on lack of evidence of "fatigue" is unpersuasive. The Administration has recognized that "pain or fatigue" can constitute symptoms for consideration at Step Two and Plaintiff has alleged pain and complained to her doctors and testified about same. SSR 02-1p, 2002 WL 34686281, *4. Additionally, Step Four considerations should take into account that "[t]he combined effects of obesity with other impairments may be greater than might be expected without obesity. For example, someone with obesity and arthritis affecting a weight-bearing joint may have more pain and limitation than might be expected from the arthritis alone." Id. at *6 (emphasis added).
Given that notes from Plaintiff's treating physicians, in addition to Dr. Hassman's diagnoses, referenced Plaintiff's obesity, it is troubling that the ALJ failed to state that he considered Plaintiff's obesity in the sequential analysis. Defendant states that Plaintiff has not shown any restrictions other than those stated in the ALJ's RFC assessment, that could be linked to her obesity. It is problematic here, as discussed above, that the ALJ's RFC assessment omitted Dr. Hassman's work tolerance limitation that Plaintiff may need to take a rest break every hour. It may well be that the ALJ, in granting Dr. Hassman's opinion controlling weight, necessarily considered Plaintiff's obesity in light of the fact that Dr. Hassman also diagnosed obesity. Nonetheless, the Court is "constrained to review the reasons the ALJ asserts[ ]" for his decision. See e.g. Connett, 340 F.3d at 874 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, (1947); Pinto v. Massanari, 249 F.3d 840, 847-48 (9
Plaintiff also challenges the ALJ's rejection of treating Dr. Makhni's opinion, arguing that the ALJ failed to comply with 20 C.F.R. § 404.1527. Defendant contends that the ALJ properly carried his burden in rejecting Dr. Makhni's opinion.
It is well-settled that the opinions of treating doctors are entitled to greater weight than the opinions of examining or nonexamining physicians. Andrews v. Shalala, 53 F.3d 1035, 1040-1041 (9
A treating physician's opinion may not be entitled to controlling weight where it is not "well-supported" or is inconsistent with other substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 631 (9
Here, where Dr. Makhni's opinion is contradicted by examining Dr. Hassman, the ALJ must "provid[e] `specific and legitimate reasons' supported by substantial evidence in the record[ ]" for rejecting Dr. Makhni's opinion. Reddick v. Chater, 157 F.3d 715, 725 (9
The ALJ gave Dr. Makhni's opinion "reduced weight" because: (1) "Dr. Makhni opined that the claimant had a good prognosis for improvement with conservative treatment, indicating that he did not consider her impairment to be severe"
In supporting the ALJ's rejection of Dr. Makhni's opinion, Defendant stresses the fact that the ALJ mentioned that Plaintiff had a good prognosis with conservative treatment. (See Doc. 23 at 12 (noting that Dr. Makhni prescribed ibuprofen and capsaicin for pain and indicated a steroid shot may help; see also Tr. 301 (noting Plaintiff had injections to her left knee twice in approximately 2007)). The ALJ omitted that if Plaintiff had insurance, she would have been referred to orthopedic and vascular surgery specialists. (See Tr. 332, 347). Plaintiff also testified that lack of money and insurance prevented her from going to the doctor. (See Tr. at 23, 28-29; see also Tr. at 297 (Plaintiff told Dr. Ellinas that she "didn't come when I was supposed to . . ." due to not having money); Tr. at 347 (Plaintiff told Dr. Ellinas that she not obtain follow-up lab work because of money issues)). Dr. Ellinas also noted that Plaintiff's lack of medical insurance precluded referrals to specialists. (See Tr. at 332, 347) It is not clear on the instant record to what extent Plaintiff's financial situation and lack of insurance affected her treatment options and/or the treatment she received, although it appears that with regard to Plaintiff's orthopedic, hip, back, and varicose vein issues, Plaintiff's lack of insurance prevented further follow-up and/or treatment. (See Tr. at 28-29, 332, 347); Cf. Orn, 495 F.3d at 638 (the Ninth Circuit has proscribed the rejection of a claimant's complaints for lack of treatment when the medical record establishes that the claimant could not afford it); Gamble v. Chater, 68 F.3d 319, 321 (9
As to Plaintiff's testimony regarding her ability to stand as a basis to reject Dr. Makhni's opinion, the record reflects Plaintiff's testimony that because of her knees, standing and walking "too long[ ]" interferes with her ability to work. (Tr. 23). The following exchange between the ALJ and Plaintiff then occurred:
(Tr. 23-24).
The questioning then turned to Plaintiff's daily activities. Later, Plaintiff testified as follows when questioned by her attorney:
(Tr. 27).
The ALJ is of the opinion that Plaintiff "changed her testimony" and, thus, Plaintiff's initial testimony that she could stand for one and one-half hours to two hours undermines Dr. Makhni's opinion that she can only stand 45 minutes continuously, and for less than two hours total in an 8-hour workday, with normal breaks. (Tr. at 40). Plaintiff contends that it is unclear from her initial exchange with the ALJ whether she was testifying about the total amount of time she could stand or, instead, about how long she could stand continuously. (Doc. 19 at 15). She asserts that counsel's follow-up questions clarified the issue. Given the imprecision of the ALJ's initial questioning, the Court cannot say that substantial evidence supports the ALJ's opinion that Plaintiff "changed her testimony" on this point. (Tr. 40).
Consequently, for the above-stated reasons, the ALJ failed to state sufficient reasons to reject Dr. Makhni's opinion.
Plaintiff requests that the Court remand this matter for further proceedings. (Doc. 19 at 18; Doc. 24 at 7).
"A district court may `revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing,' Treichler v. Comm'r of Soc., Sec. Admin., 775 F.3d 1090, 1099 (9
As discussed above, the ALJ failed to state sufficient reasons to reject Dr. Hassman's work tolerance recommendation on the issue of breaks while standing, and he failed to state sufficient reasons to reject Dr. Makhni's work tolerance recommendations, as well. Additionally, the ALJ failed to consider the impact, if any, of Plaintiff's obesity on her ability to work. Further, even if the case were to proceed to analysis at Step Five, the ALJ should address the Step-Five concerns in the first instance, and Plaintiff concedes as much. (See Doc. 19 at 17-18). Consequently, the matter is remanded for further proceedings. On remand, the ALJ shall reassess Plaintiff's RFC to perform work, including her ability to stand continuously. In his reassessment of the record, the ALJ should consider the impact, if any, resulting from Plaintiff's lack of insurance. On remand, the ALJ may take additional evidence, including calling upon a vocational expert if necessary.
For the foregoing reasons, the Court remands this matter for further proceedings consistent with this Order. Accordingly, IT IS ORDERED that:
(1) the Commissioner's decision denying benefits is REVERSED; and
(2) this matter is REMANDED to the Commissioner for further proceedings consistent with this Order.
The Clerk of Court is DIRECTED to enter Judgment accordingly and to close its file in this matter.
information in the case record. Id. § 404.1527(d)(3)-(6). Orn, 495 F.3d at 631 (citing 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 404.1527(d)(3)-(6), recodified as 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(6)).