MARGARET A. NAGLE, Magistrate Judge.
Plaintiff filed a Complaint on October 4, 2012, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On December 6, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on September 23, 2013, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.
Plaintiff filed an application for a period of disability and DIB on July 21, 2008, and an application for SSI on July 31, 2008. (Administrative Record ("A.R.") 23.)Plaintiff, who was born on November 5, 1967 (A.R. 41),
After the Commissioner denied plaintiff's claim initially, plaintiff requested a hearing. (A.R. 23.) On July 21, 2010, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Helen E. Hesse (the "ALJ"). (Id.) Vocational expert Alan L. Ey and medical expert Sami A. Nafoosi, M.D. also testified. (Id.) On September 10, 2010, the ALJ denied plaintiff's claim (A.R. 23-32), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 4-6). That decision is now at issue in this action.
In her September 10, 2010 decision, the ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2012, and plaintiff has not engaged in substantial gainful activity since October 24, 2007, the alleged onset date of her disability. (A.R. 25.) The ALJ determined that plaintiff has the severe impairments of disorder of the lumbar spine, asthma, and obesity as well as the non-severe impairment of post-operative infection. (A.R. 25-24.) The ALJ concluded, however, that plaintiff does not have an impairment or combination of impairments that meets or medically equals the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (A.R. 26.)
After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform:
(A.R. 27.) In making this finding, the ALJ considered the subjective symptom testimony of plaintiff, which the ALJ found was not entirely credible, as well as the medical evidence and opinions of record. The ALJ gave significant weight to the opinion of the medical expert, Dr. Nafoosi, because unlike the opinions of plaintiff's treating physicians, Ramon C. Sison, M.D. and Henry H. Chang, M.D., the ALJ found Dr. Nafoosi's opinion to be entirely consistent with the laboratory and clinical findings of record. (A.R. 30.)
The ALJ found that plaintiff is capable of performing her past relevant work as an accountant, because "[t]his work does not require the performance of work-related activities precluded by [plaintiff]'s [RFC]." (A.R. 31.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from October 24, 2007, the alleged onset date, through September 10, 2010, the date of the ALJ's decision. (A.R. 34.)
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole.
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion."
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation.
Plaintiff asserts three sources of error. First, plaintiff claims, although somewhat obscurely,
At step two of the sequential evaluation process, the ALJ is tasked with identifying a claimant's "severe" impairments. 20 C.F.R. §§ 404.1529(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). A severe impairment is one that "signficantly limits [a claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404,1592(c), 416.920(c). Despite the use of the term "severe," most circuits, including the Ninth Circuit, have held that "the two-step inquiry is a de minimus screening device to dispose of groundless claims."
As noted supra, in her decision, the ALJ found that plaintiff has the severe impairments of lumbar spine disorder, asthma, and obesity. (A.R. 25.) The ALJ noted that plaintiff had a hysterectomy in October 2007, and found plaintiff's resulting, post-operative infection to be a non-severe impairment, because "[it] resolved within 12 months." (A.R. 26.)
Curiously, while the ALJ found the infection resulting from plaintiff's October 2007 hysterectomy to be nonsevere, the ALJ failed to consider whether plaintiff's impairment of "meralgia paresthetica" — an impairment which plaintiff's treating physicians believed stemmed from plaintiff's hysterectomy — constituted a severe impairment. In pertinent part, neurologist Natalia L. Ratiner, M.D. diagnosed plaintiff with meralgia paresthetica, an "irritation of the [left] lateral femoral cutaneous nerve" and prescribed Neurontin to plaintiff. (A.R. 361.) Neurologist Sergio Fuenzalida, M.D. also diagnosed plaintiff with meralgia paresthetica, and he noted the bilateral thigh pain experienced by plaintiff since her hysterectomy. (A.R. 632.) Similarly, neurologist James Kim, M.D., noted plaintiff's complaints of bilateral thigh pain and opined that plaintiff may have meralgia paresthetica "[b]ased on [her] sensory disturbance alone." (A.R. 358.) In addition, plaintiff's treating physician Dr. Chang noted that he had a "strong impression" that plaintiff had meralgia paresthetica, which he described as "a condition related [to] inflammation or injury of a pure
Accordingly, in view of the opinions of plaintiff's physicians, including three neurologists, and the fact that the ALJ did not address this impairment in her step two determination, the ALJ should revist her step two severity determination and determine whether plaintiff's impairment has, or had for a period of 12 or more months, more than a minimal effect on plaintiff's ability to perform basic work activities.
An ALJ is obligated to take into account all medical opinions of record. 20 C.F.R. §§ 404.1507(d), 416.927(d). It is the responsibility of the ALJ to resolve conflicts in medical testimony and analyze evidence.
The opinions of treating physicians are entitled to the greatest weight, because the treating physician is hired to cure and has a better opportunity to know and observe the claimant.
"The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of . . . a treating physician."
On September 1, 2008, plaintiff's treating physician, Dr. Sison, completed a Musculoskeletal form. (A.R. 298-300.) In that form, Dr. Sison indicated that plaintiff has had bilateral peripheral neuropathy in her lower extremities since October 2007, and has swelling in her joints. (A.R. 298.) Dr. Sison noted that plaintiff needs a cane for standing and walking and that her condition is not improving. (A.R. 299.)
In a Multiple Impairment Questionnaire completed on March 31, 2010, Dr. Sison diagnosed plaintiff with spinal foraminal stenosis at the L3-S1 levels and peripheral neuropathy in both lower extremities. (A.R. 336.) Dr. Sison reported that his diagnoses were based on plaintiff's November 2008 MRI results, which showed neuroforaminal narrowing at L3-S1, as well as plaintiff's leg spasms and pain. (A.R. 336-37.) Dr. Sison noted that plaintiff: has pain every 30 minutes to one hour; experiences pain when she moves or sits for long periods of time; and has an unsteady gait. (A.R. 338.) Dr. Sison opined that, in an eight-hour day, plaintiff: can sit and stand/walk for one hour; must get up and move around every hour; should not sit or stand/walk continuously in a work setting; can lift and carry 5-10 pounds occasionally; has minimal limitations in grasping, turning, and twisting objects; has minimal limitations in using her fingers/hands for fine manipulations; and moderate limitations in using her arms for reaching (including overhead). (A.R. 340.) Dr. Sison noted that plaintiff is taking, inter alia, Neurontin and Vicodin, and plaintiff has not been helped by physical therapy, which she had three times per week for two months. (A.R. 340.) Dr. Sison also noted that plaintiff: is prone to recurrent bladder infections and would need a job that permits ready access to a bathroom; has anxiety/depression and insomnia that contribute to the severity of her condition; cannot handle even "low" work stress; needs frequent unscheduled breaks; and has an unsteady gait and ambulates with a cane. (A.R. 341-42.)
On December 16, 2009, plaintiff was seen for pain management by Dr. Chang. (A.R. 394-95.) Dr. Chang noted plaintiff's reports of pain and numbness in her lower extremities as well as pain in her lower back. (A.R. 394.) Dr. Chang observed that plaintiff ambulated with a cane and appeared to be slightly depressed and "heavy set probably due to inability to move for daily activities." (Id.) Upon examination, the ALJ noted that plaintiff: experienced "moderate[ly] severe pain and tingling in both lateral thigh[s]"; had positive straight leg raising tests with pain at 45 degrees; and "was not able to lay down for [her] exam [due to] the pain and residual inflammation from [her] surgical scar two years ago." (Id.) Following his examination of plaintiff, Dr. Chang opined that plaintiff "seems to have complicated low back pain combined with pain of both lateral thighs. Based on her surgical history, she could have [a] combination of lower lumbar pathology and other cause[s] of pain such as meralgia paresthetica." (A.R. 395.) Dr. Chang recommended that plaintiff receive nerve block and steroid injections. (Id.)
In May 2010, Dr. Chang reviewed the results of plaintiff's 2007 C.T. scan as well as her 2008 and 2009 MRI scans. (A.R. 430.) In a Lumbar Spine Impairment Questionnaire, Dr. Chang diagnosed plaintiff with low back pain and noted that it was probably related to plaintiff's bulging discs in her lumbar spine at the L4-5 and L5-S1 levels. Dr. Chang also noted the positive clinical findings that supported his diagnosis, including plaintiff's tenderness in her sides and her limited range of motion. (A.R. 346.) Dr. Chang opined, inter alia, that plaintiff: cannot sit or stand/walk for more than one hour in an eight-hour workday; cannot lift or carry weight; and should not sit continuously in a work setting. (A.R. 348-49.)
On February 21, 2012, in response to a request for further explanation of plaintiff's condition, Dr. Chang noted that in his December 2009 initial examination he had the impression that the incision from plaintiff's October 24, 2007 hysterectomy "was not properly healed because she had problems lifting her lower abdominal area so [he] could inspect the wound" and "[s]he also had difficulty getting herself on the exam table without help." (A.R. 634.) Dr. Chang noted that plaintiff has continued to have persisting pain and that the two injection treatments only provided pain relief for 2-3 days. (Id.) Dr. Chang also noted that he had a strong impression that plaintiff has "`Meralgia Paresthetica,' a condition related [to] inflammation or injury of a pure
In her decision, the ALJ summarized the opinions of Dr. Sison and Dr. Chang as follows:
(A.R. 31.) The ALJ afforded no weight to the opinions of Dr. Sison and Dr. Chang, because "the[ir] opinions find no basis in medical fact, and therefore demonstrate almost total reliance on [plaintiff]'s unsupported and inconsistent subjective complaints." (Id.)
The ALJ's stated reason for rejecting the opinions of Dr. Sison and Dr. Chang — to wit, that their opinions find no basis in medical fact — is conclusory and factually incorrect. See
Moreover, it is unclear whether the opinion of medical expert, Dr. Nafoosi, upon whose opinion the ALJ relied in finding plaintiff not disabled, is supported by substantial evidence. Significantly, Dr. Nafoosi's opinion is contrary not only to the opinions of plaintiff's treating physicians, Dr. Sison and Dr. Chang, but also to the opinion of the independent consultative examiner, Dr. Benrazavi. Further, it does not appear that Dr. Nafoosi carefully reviewed the medical opinions of record, because he never mentio ned, let alone discussed, the multiple diagnoses of meralgia paresthetica.
Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the claimant's symptoms must be considered.
In her decision, the ALJ summarized plaintiff's testimony regarding her subjective symptoms and limitations as follows:
(A.R. 27; citation omitted.)
After considering plaintiff's testimony, the ALJ cited no evidence of malingering by plaintiff and concluded that "plaintiff]'s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms." (A.R. 28.) Nevertheless, the ALJ determined that plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the above [RFC] assessment." (Id.) Given the absence of malingering, the ALJ's reasons for finding that plaintiff is not credible with respect to her subjective symptom testimony must be "clear and convincing."
The ALJ first rejected plaintiff's subjective symptom testimony based on the ALJ's conclusion that "the record contains very few objective clinical or laboratory findings to substantiate [plaintiff's] subjective complaints." (A.R. 28.) Assuming arguendo that the objective medical evidence did not corroborate the degree of plaintiff's allegedly disabling symptoms, this factor cannot form the "sole basis" for discounting plaintiff's subjective symptom testimony.
Second, the ALJ rejected plaintiff's subjective symptom testimony, because plaintiff made inconsistent statements regarding her limitations and activities of daily living. (A.R. 30.) For example, the ALJ noted that plaintiff testified that "she has not picked up her adopted children since her hysterectomy," but "she has acknowledged performing various activities that are inconsistent with this level of limitation, such as regularly lifting up to 15 pounds, doing her own grocery shopping twice a week, and regularly cleaning her kitchen, bedroom and bathrooms." (Id.) As an initial matter, the fact that plaintiff does not lift her two adopted children, who almost certainly weigh more than 15 pounds each, does not appear to be inconsistent with her testimony that she regularly lifts 15 pounds. Further, the ALJ fails to explain how plaintiff's other activities — which as plaintiff testified, and the ALJ failed to note, are performed slowly and with multiple breaks — are inconsistent with her inability to lift her two adopted children. Therefore, the ALJ's second reason does not constitute a clear and convincing reason for finding plaintiff to be not credible.
Third, the ALJ rejected plaintiff's subjective symptom testimony, because plaintiff made inconsistent statements during her testimony at the administrative hearing. Specifically, the ALJ noted that "[plaintiff] testified that she initially chose not to file a medical malpractice action against the surgeon who performed her hysterectomy — the procedure she now blames for all her current medical problems — because she wanted to find out what happened, what was wrong with her, and wanted to be taken seriously." (A.R. 30.) However, "[s]he later testified . . . that she saw a urologist in 2008 who stated that all of her medical problems were related to the surgery, and that she also visited an attorney who told her that she had a strong claim for medical malpractice, yet she never filed an action." (Id.) Contrary to the ALJ's finding, there does not appear to be an inconsistency between plaintiff's two statements, and plaintiff's decision not to proceed with a medical malpractice action does not detract from her credibility.
Fourth, the ALJ rejected plaintiff's subjective symptom testimony, because he concluded that plaintiff stopped working for reasons other than her alleged disability. Specifically, the ALJ noted that "[a]lthough [plaintiff] testified that she stopped working in September 2007, just prior to her hysterectomy, she previously acknowledged in her Disability Report form that she actually stopped working in July 2007 because she was self-employed and decided to care for her children." (A.R. 30.) When a claimant stops working for reasons other than disability, the ALJ may draw an adverse inference as to the credibility of her disability claim. See
However, as this case is being remanded for the ALJ to reconsider plaintiff's impairment of meralgia paresthetica as well as the opinions of Dr. Sison and Dr. Chang, which may support plaintiff's complaints and her alleged limitations, the ALJ should also reassess plaintiff's credibility.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion.
Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See
Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.