VICTOR B. KENTON, Magistrate Judge.
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for a Period of Disability and Disability Insurance Benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").
Plaintiff raises the following issues:
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be reversed, and the matter remanded for a new hearing consistent with this Opinion.
For almost fourteen years, Plaintiff worked as a packer at a styrofoam cup manufacturer. (AR 31, 131). In November 1999, she sustained an injury to her back while on the job and began feeling low back pain. (AR 441). She received physical therapy and continued working, initially on modified light duty for two months before resuming her regular responsibilities. (AR 433-442, 1126). About one year later, on December 22, 2000, Plaintiff began experiencing low back pain again while at work. (AR 371). Her pain reached a point where she was unable to operate the manufacturing machinery. (AR 372). She remained off work since that date. (AR 31, 372).
Starting in 2001, Plaintiff underwent an extensive treatment program for her back pain. Between January 3 to April 18, 2001, she received at least six epidural block injections. (AR 400, 401, 449, 560). In spite of this treatment, Plaintiff still complained about back pain, on one occasion in January 2001 describing it as a seven out of ten in terms of severity. (AR 400, 413, 444, 458, 485, 548, 560). A discography was performed on May 31, 2001, and doctors noted a bulging disc at L5-S1 on August 22, 2001. (AR 551, 593). Plaintiff had a herniated disc at L4-S1, and she underwent a discetomy and fusion operation at L5-S1 on August 23, 2001. (AR 399). However, she obtained little relief. Additional epidural blocks were administered through December 2002 in response to persistent pain complaints, and during one doctor's visit in October 2002, Plaintiff rated her pain an eight out of ten. (AR 497, 516, 593, 569, 572, 574, 593, 597, 403).
Plaintiff's treatment continued in late 2003 into February 2004 when she again reported low back pain. (AR 806). Complaints continued in April and August 2004. (AR 684, 681). On August 23, 2004, Plaintiff received additional epidural injections, but her pain persisted. (AR 373). In May 2005, she reported "constant low back pain." (AR 741). A doctor's report dated December 15, 2005 noted deterioration above the fusion area. (AR 665). In July 2006, L3-4 and L4-5 discs showed evidence of desiccation and slight to moderate narrowing. (AR 756). In 2007, a discography confirmed pain in L3-4 and L4-5. (AR 756). On April 15, 2008, Plaintiff had her L3-4 and L4-5 discs decompressed and a posterior lumbar interbody fusion operation with a removal of instrumentation at L5-S1. (AR 756).
The ALJ issued a five page decision in which she found that through the DLI, Plaintiff was capable of performing her past relevant work as a packer. (AR 11-16). Specifically, the ALJ found that Plaintiff's Residual Functional Capacity ("RFC")
Plaintiff's first claim is that the ALJ erred in determining that she could return to her past relevant work before March 31, 2006, the DLI. (
A federal district court may disturb the ALJ's decision only if it contains legal error or if it is not supported by substantial evidence.
In discussing Plaintiff's pain and treatment, the ALJ wrote, "[t]he claimant continued to complain of low back pain which radiated into her right leg with slight numbness and intermittent cramping. She got relief with massage, Tylenol, Advil, and rest," citing to an Agreed Medical Examination
The ALJ erred by concluding that conservative treatment resolved Plaintiff's pain. Such an erroneous conclusion is foreclosed by the record.
First, the record shows that Plaintiff did not always take painkillers. A preoperative note from September 27, 2002 reported that Plaintiff denied taking aspirin (AR 574), and in July 30, 2002, the record indicates that Plaintiff was put on Vioxx with minimal benefit. (AR 593). A medical report from June 18, 2002 explained that Plaintiff "continued with no medications for her back pain" except "Advil once in a while." (AR 599).
Second, the record indicates that conservative treatment methods did not relieve Plaintiff of her pain. For example, in October 2002, Dr. Mirich reported that even "[w]ith the most recent [epidural] block 10 days ago she had no significant improvement in back pain." (AR 572). Another operation report from August 23, 2004 found that Plaintiff failed to respond to conservative measures, like oral medications, physical therapy, and rest. (AR 372).
In addition to inadequately discussing pain in the decision, the ALJ also gave short shrift to Plaintiff's pain during the hearing.
(AR 32).
Later, Plaintiff testified that it took her a long time to shower and get dressed because of the pain, and she also expressed experiencing difficulty carrying large purchases of groceries from the store. (AR 35-36). The ALJ followed up to these statements by asking how far and for how long Plaintiff took walks, how long Plaintiff can stand before having to sit, and whether she took any pain medication and if she experienced side effects from it. (AR 35-36). In response, Plaintiff answered that her walks were about ten to fifteen minutes at most, that she has to sit after ten to fifteen minutes of standing, and that she took a painkiller and experienced nausea, vomiting, dizziness, and heavy headaches as side effects. (AR 35-37).
The ALJ failed to ask more probative questions about Plaintiff's pain in light of her extensive complaints of pain and having undergone two operations.
Relatedly, the ALJ erred when analyzing Plaintiff's pain by failing to include any discussion of her treatment history or give any reasons for expressly rejecting that history. Although an ALJ is not required to discuss every piece of evidence in interpreting and developing the record, she is still required to develop the record and interpret medical evidence.
Under a liberal reading of the ALJ's decision, it is possible that her opinion rests on an evaluation from January 27, 2009 by Dr. T. Sophon that found Plaintiff had low back pain but no tenderness or evidence of spasm in her back. (AR 15-14, citing AR 203-08). To that extent, the Court is not convinced this constitutes substantial evidence. The Ninth Circuit has established that consultative examiners' opinions are entitled to less weight than Plaintiff's treating physicians.
Next, the Court finds that the ALJ also erred in determining Plaintiff's RFC. In discussing how she determined Plaintiff's RFC, the ALJ wrote, "[t]he State Agency reviewing physicians concluded that [Plaintiff]'s orthopedic symptoms did not for any 12 month period prior to her date last insured deprive her of the capability to work at the light exertional level. The undersigned concurs with this assessment and adopts it as the residual functional capacity herein." (AR 15). The ALJ cites to state agency Dr. Paxton's May 6, 2009 report in which the state agency physicians reiterated Plaintiff's treatment history and found that there was no consecutive twelve month period where Plaintiff was unable to perform at a light RFC. (AR 287). The ALJ erred by relying solely on the non-examining state agency doctors to determine Plaintiff's RFC.
First, the ALJ need not accept opinions of doctors if they are "brief, conclusory, and inadequately supported by clinical findings."
Furthermore, the state agency doctors are a non-examining source, and in the absence of record evidence to support it, an nonexamining physician's opinion alone does not constitute substantial evidence.
Plaintiff's second claim is that the ALJ erred in giving very little probative weight to a third party function report completed by Plaintiff's daughter, Alisia Sosa, detailing the limitations of Plaintiff's physical impairments. (JS at 19-20, 21).
Sosa indicated that she spends three to four days a week with Plaintiff and helps her around the house. (AR 171). She documented a number of Plaintiff's limitations with respect to her daily activities, including problems washing below her knees, not being able to put on socks or tie her shoes, difficulty sleeping, difficulty cutting her toe nails, trouble taking clothes out of the dryer, difficulty sitting for longer than thirty minutes, among others. (AR 172-76).
The ALJ gave little weight to the report because "[a]lthough the daughter is obviously concerned about the claimant's well-being, she is not a medical professional or otherwise qualified to diagnose severe impairments or to assess their effect on the claimant's ability to perform work-related activities." (AR 15).
The ALJ erred in devaluing Sosa's report on the grounds that she was not professionally qualified to diagnose severe impairments. Indeed, the Ninth Circuit has held that the ALJ must consider lay testimony when determining whether a claimant is disabled.
To the extent that the ALJ devalued Sosa's report because it was completed on April 25, 2009 and therefore not probative of Plaintiff's condition prior to the DLI, (
In conclusion, this matter must be remanded as to both issues raised by Plaintiff. It is unquestionable that the ALJ failed to adequately discuss Plaintiff's pain when determining whether she could return to her past work before the DLI and erred in relying solely on the state agency physicians' opinion of Plaintiff's RFC. It is also apparent to the Court that the ALJ erred in giving almost no weight to the testimony of Plaintiff's daughter.
For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion.
