SHERI PYM, Magistrate Judge.
On October 15, 2015, plaintiff Estela Blanco filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of a period of disability and disability insurance benefits ("DIB"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents seven disputed issues for decision that can be categorized as follows: (1) whether the application should be remanded given plaintiff's subsequent successful application for supplemental security income ("SSI"); (2) whether the Administrative Law Judge ("ALJ") properly considered the opinions of the treating and examining physicians; (3) whether the ALJ's residual functional capacity ("RFC") determination was supported by substantial evidence; (4) whether the ALJ posed a complete hypothetical to the vocational expert; and (5) whether the ALJ properly considered plaintiff's credibility. Memorandum in Support of Plaintiff's Complaint ("P. Mem.") at 5-18; Defendant's Memorandum in Support of Answer ("D. Mem.") at 2-19.
Having carefully studied the parties' memoranda on the issues in dispute, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, there is new and material evidence to warrant remand. Further, the ALJ failed to properly consider the opinions of the treating and examining physicians, failed to properly assess plaintiff's credibility, and must reassess plaintiff's RFC. The court therefore remands this matter to the Commissioner in accordance with the principles and instructions enunciated herein.
Plaintiff was forty-nine years old the alleged disability onset date, and has an eighth grade education. AR at 78, 298. Plaintiff has past relevant work as a mailing machine operator.
On July 20, 2009, plaintiff filed an application for a period of disability and DIB, alleging an onset date of July 27, 2008 due to back, right arm, and neck problems, as well as depression and anxiety. Id. at 87, 236-37. The Commissioner denied plaintiff's application initially. Id. at 87-90.
On October 20, 2011, plaintiff filed the instant application for a period of disability and DIB, again alleging an onset date of disability of July 27, 2008 due to depression, anxiety, and back, right arm, and neck problems. Id. at 78, 269, 298. The Commissioner denied plaintiff's application initially and upon reconsideration, after which she filed a request for a hearing. Id. at 91-102.
Plaintiff, represented by counsel and assisted by an interpreter, appeared and testified at a hearing before the ALJ on March 4, 2014. Id. at 43-74. The ALJ also heard testimony from Susan Allison, a vocational expert. Id. at 66-72. On March 14, 2014, the ALJ denied plaintiff's claim for benefits. Id. at 23-37.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff did not engage in substantial gainful activity from her alleged onset date of July 27, 2008 through December 30, 2013, the date last insured. Id. at 25.
At step two, the ALJ found plaintiff suffered from the following severe impairments: arthritis in the cervical spine and lumbar spine; and affective disorder. Id.
At step three, the ALJ found plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id. at 26.
The ALJ then assessed plaintiff's residual functional capacity,
The ALJ found, at step four, that plaintiff could perform her past relevant work as a mailing machine operator. Id. at 36. Consequently, the ALJ concluded plaintiff did not suffer from a disability as defined by the Social Security Act. Id. at 37.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council on September 17, 2015. Id. at 1-3. The ALJ's decision stands as the final decision of the Commissioner.
Subsequently, on October 13, 2015, plaintiff filed an application for supplemental security income ("SSI"), alleging an onset of disability date of January 1, 2009 due to an affective disorder and problems with the cervical and lumbar spine. P. Mem., Ex. 1-2. On December 2, 2015, the Commissioner granted plaintiff's claim for SSI benefits and found plaintiff eligible for SSI benefits as of October 2015. P. Mem., Ex. 1.
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "`cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "`may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
Plaintiff argues remand is warranted because the Social Security Administration awarded her SSI benefits in a subsequent claim, which constitutes new and material evidence. P. Mem. at 5-7.
"Under 42 U.S.C. § 405(g), remand is warranted only if there is new evidence that is material and good cause for the late submission of the evidence." Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001); accord Booz v. Sec'y, 734 F.2d 1378, 1380 (9th Cir. 1984). Evidence is material if it bears directly and substantially on the matter in dispute and there is a reasonable probability it would have changed the outcome of the case. Booz, 734 F.2d at 1380-81. The evidence must also be probative of the claimant's condition as it existed at the relevant time. Sanchez v. Sec'y, 812 F.2d 509, 511 (9th Cir. 1987).
Two Ninth Circuit cases provide guidance as to when a case should be remanded in order to reconcile a subsequent grant of disability benefits with a prior decision denying benefits. In Bruton, the plaintiff's initial disability application was denied on April 9, 1996, but a subsequent application was granted on February 26, 1999, finding the plaintiff was disabled as of April 10, 1996. 268 F.2d at 826-27. The Ninth Circuit held that remand of the initial application was not warranted because the "second application involved different medical evidence, a different time period, and a different age classification." Id. at 827. In Luna v. Astrue, 623 F.3d 1032, 1033 (9th Cir. 2010), the plaintiff's initial application was denied January 27, 2006. While appeal of the first application was pending, the plaintiff filed a second disability application, which was granted on August 20, 2007 and found a disability onset date of January 28, 2006. Id. at 1034. The Ninth Circuit held that remand for further factual consideration of the first decision was warranted because the subsequent finding of disability "commenced at or near the time [the plaintiff] was found not disabled based on the first application." Id. In other words, the one day difference between the denial of the first application and the disability onset date found in the second indicated the "`reasonable possibility' that the subsequent grant of benefits was based on new evidence not considered by the ALJ as part of the first application." Id. at 1035.
As discussed above, here the ALJ denied plaintiff's claim for a period of disability and DIB on March 14, 2014 and the Appeals Council denied her request for review on September 17, 2015. AR at 1-3, 23-37. On October 13, 2015, plaintiff filed an application for SSI benefits alleging an onset date of January 1, 2009 due to an affective disorder and problems with the cervical and lumbar spine. P. Mem., Exs. 1-2. The Social Security Administration granted the application on December 2, 2005. Id., Ex. 1. The Social Security Administration determined that based on plaintiff's RFC to perform light work, advanced age, limited education, and inability to communicate in English, she was disabled pursuant to Rules 202.01 and 202.02 of the Medical Vocational Guidelines found at 20 C.F.R. part 404, Subpart P, Appendix 2 ("Grid"). Id., Ex. 2. The ALJ's decision in the instant case is not easily reconcilable with the subsequent award of SSI benefits.
First, the SSI application bears directly on the matter in dispute and, contrary to defendant's contentions, did not involve entirely different medical evidence. In the SSI case, the State Agency physician, Dr. R. Dwyer, opined that plaintiff only had the RFC to perform light work. Some of the medical evidence Dr. Dwyer reviewed — the February 17, 2014 examination conducted by Dr. James K. Styner and a 2008 x-ray of the cervical spine — was submitted with the instant DIB application. See P. Mem., Ex. 2 at 4; AR at 427, 514-24. As for the new 2015 medical records considered in the subsequent successful application, those records addressed the same impairments at issue in the instant application. As such, as with Luna, the different decisions are not easily reconcilable.
Second, the subsequent application may have involved the same time period. Contrary to defendant's argument, the Social Security Administration did not find that plaintiff only became disabled as of October 13, 2015. See D. Mem. at 4. Instead, as is typical in SSI cases, the Social Security Administration found that plaintiff was disabled on October 13, 2015, the date plaintiff filed his SSI application. P. Mem., Ex. 1 at 1; see Lopez v. Astrue, 2010 WL 1328888, at *14 (E.D. Cal. Apr. 2, 2010) ("[B]ecause SSI payments are made beginning with the date of application, the onset date in an SSI case is ordinarily established as of the date of filing, provided that the claimant was disabled on that date.") (citing Soc. Sec. Ruling 83-20); Cuadras v. Astrue, 2011 WL 6936182, at *8 n.7 (E.D. Cal. Dec. 30, 2011) ("Generally, in SSI cases, the claimant's onset date and application date will be the same."). Thus, the actual disability onset date determined by SSA in granting SSI benefits is ambiguous.
Finally, defendant argues that even if the ALJ found plaintiff only had the RFC to perform light work as the new evidence supports, there is no reasonable probability that it would have changed the outcome of the instant application because the two applications involved different age classifications. See D. Mem. at 4-5. Plaintiff was of advanced age when she applied for SSI benefits and was disabled pursuant to Grid Rule 201.00(d). In the instant application, plaintiff was classified as a younger individual at the alleged onset date and as approaching advanced age at the time of the decision. See Grid Rules 201.00(g) and (h)(1). Defendant contends that given plaintiff's other vocational factors, she would not have been disabled under Grid Rules 202.11, 202.16, and 202.18 even if the ALJ had determined plaintiff only had the RFC to perform light work. Defendant is partially correct.
While plaintiff was a younger individual, she would not have been disabled under Grid Rules 202.16 and 202.18. But plaintiff was classified as approaching advanced age as of March 7, 2009. Defendant contends plaintiff was not disabled pursuant to Grid Rule 202.11. But as defendant concedes, plaintiff was illiterate or unable to communicate in English. See D. Mem. at 5. Thus, Grid Rule 202.11, which involves individuals who are at least literate and able to communicate in English, would be inapplicable. Instead, pursuant to Grid Rule 202.09, an individual who is closely approaching advanced age, illiterate or unable to communicate, and has previously unskilled work experience is disabled. And in the event plaintiff's previous work was skilled or semiskilled as defendant contends,
Thus, as in Luna, remand for further factual proceedings is appropriate. The new evidence is material and there is a reasonable probability it would have changed the outcome of the instant application.
Plaintiff argues that the ALJ's determination that plaintiff had the RFC to perform medium work was not supported by substantial evidence. P. Mem. at 7-13. Specifically, plaintiff contends that the ALJ improperly rejected the opinions of treating and examining physicians, and that the opinions of the State Agency physicians alone did not constitute substantial evidence. Id.
In determining whether a claimant has a medically determinable impairment, among the evidence the ALJ considers is medical evidence. 20 C.F.R. § 404.1527(b). In evaluating medical opinions, the regulations distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating physician is generally given the greatest weight because the treating physician is employed to cure and has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
Nevertheless, the ALJ is not bound by the opinion of the treating physician. Smolen, 80 F.3d at 1285. If a treating physician's opinion is uncontradicted, the ALJ must provide clear and convincing reasons for giving it less weight. Lester, 81 F.3d at 830. If the treating physician's opinion is contradicted by other opinions, the ALJ must provide specific and legitimate reasons supported by substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide specific and legitimate reasons supported by substantial evidence in rejecting the contradicted opinions of examining physicians. Id. at 830-31. The opinion of a non-examining physician, standing alone, cannot constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066-67 n.2 (9th Cir. 2006); Morgan v. Comm'r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993).
RFC is what one can "still do despite [his or her] limitations." 20 C.F.R. § 404.1545(a)(1)-(2). The ALJ reaches an RFC determination by reviewing and considering all of the relevant evidence, including non-severe impairments. Id.
Dr. Zan Ian Lewis, an orthopedic surgeon, treated plaintiff on six occasions from November through December 2008 in connection with her worker's compensation claim. See AR at 377-412. During the examinations, Dr. Lewis observed plaintiff had mild tenderness and decreased range of motion in her neck and lower back, had slight paraspinal muscle spasm, had a weaker right hand, and walked with a normal gait. See, e.g., AR at 400-01, 406-08. X-rays demonstrated slight to moderate anterior spurring at C5-6 and C6-7, anterior calcification in the region of the anterior longitudinal ligament at C5-6, and slight anterior spurring at T12-L1, L2-3, L2-3, and L3-4. Id. at 409-10. Based on his examinations and plaintiff's subjective complaints, Dr. Lewis diagnosed plaintiff with neck and back pain of the strain/sprain variety, history of anxiety and depression, and history of sleep disorder associated with bodily pain and urinary incontinence. Id. at 379, 395. From a functional perspective, Dr. Lewis opined plaintiff could lift no more than ten pounds, could not engage in repetitive bending and stooping, and could not perform overhead work. Id. at 396.
Dr. Soheil M. Aval, an orthopedic surgeon, treated plaintiff from February 19, 2009 through October 8, 2009 in relation to her worker's compensation claim. See id. at 346-55, 443-47. Dr. Aval observed plaintiff had, among other things, tenderness to palpation over the bilateral upper trapezius, limited and painful range of motion in the cervical and lumbar spine, and muscle spasm. See, e.g., id. at 351-52. A June 26, 2009 EMG/NCV study of the upper extremities showed a slight degree of right median sensory neuropathy at or distal to the wrist line. Id. at 441. A September 23, 2009 MRI of the lumbosacral spine showed: a posterior disc bulge approximately 2-mm in size with corresponding indentation of the subarachnoid space and narrowing of the spina foramina with the left side greater than the right at L4-5; a posterior disc bulge approximately 3-mm in size with the right side more involved than the left with corresponding indentation mainly of the epidural fat and narrowing of the spina foramina with the right more than the left at L5-S1; and mild ninth of the spina foramina on the right at L3-4. Id. at 444. Based on the examinations, diagnostic studies, and subjective complaints, Dr. Aval diagnosed plaintiff with: cervicotraphezial chronic strain with myofascitis; right wrist median neuropathy; thoracic chronic strain with myofascitis; lumbar sprain/strain with probable radiculitis; degenerative disc disease in the lumbar spine with disc bulges 2-3 mm at L4-5 and L5-S1; psychological complaints; and gastritis. Id. Dr. Aval opined plaintiff was temporarily totally disabled. Id. at 445.
Dr. James K. Styner, an orthopedic surgeon, examined plaintiff on two occasions, on October 13, 2008 and February 17, 2014.
At the February 2014 examination, Dr. Styner observed plaintiff had, among other things, decreased range of motion in her cervical spine, tenderness on the right paracervical spine musculature at C3 to C7 with spasm on the left side, decreased sensation on the right side of the body, decreased range of motion in the shoulders, tenderness anteriorly and of the AC joint, tenderness of the right lateral epicondyle, tenderness of the right forearm, reverse Tinel's sign at the right wrist to the elbow, and decreased range of motion in the thoracic and lumbar spine. Id. at 518-20. Dr. Styner diagnosed plaintiff with chronic myoligamentous strain of the cervical spine with degenerative disc disease, inflammatory process of the shoulders bilaterally with stiff shoulder syndrome, lateral epiconylitis on the right, inflammatory process of the right wrist, chronic myoligamentous strain of the thoracolumbar spine, inflammatory process of the right knee and ankle, obesity, depression, sleep dysfunction, and gastrointestinal upsetedness. Id. at 522. Dr. Styner opined plaintiff could sit for a total of two to three hours with the ability to get up and move around for fifteen to twenty minutes after every hour, stand for a total of two to three hours with the ability to get off her feet for fifteen to twenty minutes every thirty minutes, and lift or carry five pounds frequently and ten pounds occasionally. Id. at 524.
Dr. Joseph T. Culverwell, an orthopedic surgeon, examined plaintiff on November 30, 2009. Id. at 463-68. Dr. Culverwell observed plaintiff sat and stood comfortably, could rise without difficulty, ascended and descended the examination table with moderate difficulty, had full range of motion in the neck but with discomfort, vomited upon lateral flexion, and had poor effort on the right side as compared to the left in test of muscle strength of the upper extremities. Id. at 464-65, 467. Based on the examination, Dr. Culverwell diagnosed plaintiff with chronic lumbar pain syndrome and, by history, Dr. Culverwell diagnosed plaintiff with depression, breast cyst, renal stones, and lumbar disk disease. Id. at 467. Dr. Culverwell opined plaintiff could: lift twenty pounds occasionally and ten pounds frequently; stand, walk, or sit six hours out of an eight-hour workday; frequently push and pull in the upper and lower extremities; frequently climb, stoop, kneel, and crouch; and frequently reach in all directions. Id. at 467-68.
Dr. John S. Godes, an internist, examined plaintiff on February 24, 2012. Id. at 484-89. Dr. Godes observed plaintiff had decreased range of motion and tenderness in the cervical spine, tenderness of the thoracic spine, and tenderness and decreased range of motion in the lumbar spine. Id. at 486-87. Plaintiff could not perform the straight leg raising test due to low back pain. Id. at 487. Dr. Godes diagnosed plaintiff with cervicotrapezial chronic strain with myofascitis, thoracic chronic strain with myofascitis, lumbar strain/sprain with radiculitis, lumbar discogenic disease, right wrist median neuropathy, and gastritis. Id. at 488-89. Dr. Godes opined plaintiff could lift twenty pounds occasionally and ten pounds frequently and stand or walk for six hours in an eight-hour workday. Id. at 489.
Dr. L. Schwartz, an internist, reviewed plaintiff's medical records on December 10, 2009 and opined plaintiff had the RFC to: lift or carry twenty pounds occasionally and ten pounds frequently; stand, walk or sit six hours in an eight-hour workday; and frequently climb, balance, stoop, kneel, crouch, crawl, and reach in all directions. Id. at 469-73.
On April 19, 2012, Dr. J. Marks-Snelling reviewed plaintiff's medical records and opined plaintiff had the RFC to: lift or carry fifty pounds occasionally and twenty-five pounds frequently; and stand, lift, or walk six hours in an eight-hour workday. Id. at 500-07. Dr. Marks-Snelling specifically rejected Dr. Godes's opinion as inconsistent with his diagnosis and true observations, and because Dr. Godes's diagnosis was more acute rather than chronic in nature. Id. at 506. Dr. C. Scott affirmed the determination that plaintiff could perform medium work. Id. at 83.
The ALJ determined that plaintiff had the RFC to perform medium work. Id. at 27. In reaching that determination, the ALJ gave great weight to Dr. Marks-Snelling's and Dr. Scott's opinions on the basis that the cumulative objective medical evidence supported their opinions. Id. at 32. The ALJ specifically noted that plaintiff could get it in and out of a chair without difficulty, had a normal gait, her joints had no deformity or edema, her ability to get on and off the examination table was contradictory to her decreased range of motion on examination, and she could shop, walk, go to the market, and do laundry. Id. The ALJ gave little weight to the opinions of the other treating, examining, and State Agency physicians for the reasons discussed below. Id. at 32-34.
The ALJ's RFC determination was not supported by substantial evidence. LThe "opinions of non-treating or non-examining physicians may [] serve as substantial evidence when the opinions are consistent with independent clinical findings or other evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). But if the non-examining physician relies on the same clinical findings as an examining or treating physician and simply reaches a different conclusion, the opinion of the non-examining physician cannot constitute substantial evidence. Indeed, the same is true even for an examining physician who relies on the same clinical findings as a treating physician but differs in his or her conclusions. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir. 1983)). Here, Dr. Marks-Snelling and Dr. Scott reviewed the same records and findings as the treating and examining physicians but reached a different RFC determination. Thus, their opinions, by themselves, do not constitute substantial evidence.
Moreover, in reaching his RFC determination, the ALJ also improperly rejected the opinions of the treating and examining physicians without providing specific and legitimate reasons for doing so.
First, the ALJ rejected the opinions of almost all the treating and examining physicians on the basis that none of the rejected opinions were supported by their own findings. AR at 32-34; see Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004) (the lack of supporting medical findings is a specific and legitimate reason to discount an opinion). All of the physicians cited clinical and/or diagnostic findings in their treatment notes or opinions. Although the clinical findings and diagnostic results were mild, the findings were consistent, as were the opined limitations based on these findings. The ALJ may have disagreed with the opinions, but the opinions were not completely unsupported by clinical findings.
Second, although phrased differently in each instance, the ALJ rejected the opinions of Dr. Lewis, Dr. Culverwell, and Dr. Styner because they did not have a longitudinal treating relationship with plaintiff.
Third, the ALJ more specifically rejected Dr. Culverwell's opinion because he did not consider medical evidence subsequent to his examination.
Fourth, the ALJ rejected the opinions of Dr. Aval and Dr. Styner because they were given in connection with plaintiff's worker's compensation claim and therefore were less credible. AR at 33-34. An ALJ may not reject an opinion solely on the basis that the source was a physician hired by claimant for a worker's compensation claim. See Nguyen v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996) (noting that the source of a report is a factor that justifies rejection only if there is evidence of actual impropriety or no medical basis for that opinion). In other words, an ALJ may not presume bias. See Lester, 81 F.3d at 832. The ALJ cites no evidence of bias.
Separately but related, the ALJ also disregarded as irrelevant Dr. Aval's opinion that plaintiff was "temporarily totally disabled" because the term is inapplicable in social security settings.
In sum, the ALJ's determination that plaintiff had the RFC to perform medium work was not supported by substantial evidence. The ALJ properly rejected Dr. Aval's opinion that plaintiff was temporarily totally disabled in the worker's compensation context, but failed to cite specific and legitimate reasons supported by substantial evidence for rejecting the opined limitations rendered by the treating and examining physicians. Instead, the ALJ's determination was based solely on the opinions of two non-examining physicians, whose opinions, by themselves, did not constitute substantial evidence.
Plaintiff contends the ALJ's RFC determination regarding her mental limitations was not supported by substantial evidence. P. Mem. at 14-16. Specifically, plaintiff argues that the RFC determination does not adequately address all of her mental impairments, although plaintiff fails to specify what additional limitations she believes the evidence supports. See id. at 14-15. Based on her argument, it appears plaintiff believes the ALJ should have included limitations regarding concentration and simple and repetitive tasks. See id.
Dr. Sophia M. Hyzin, a treating psychologist, treated plaintiff from July 2008 through at least August 2009.
Dr. David Brendel, a psychologist, examined plaintiff on January 7, 2009 in connection with plaintiff's worker's compensation claim. Id. at 356-75. Dr. Brendel observed that plaintiff, among other things, had a sad, flat, and pained affect; was anxious and alternated between sitting and standing; had a depressed and worried mood; was oriented to person, place, time, and situation; had poor long-term memory and partially intact short-term memory; had poor attention span and concentration; had good insight; and was able to respond in a timely fashion.
Dr. Lorna Carlin, a psychiatrist, examined plaintiff on February 24, 2012. Id. at 476-82. During the mental status examination, plaintiff was tearful at times, was cooperative, was coherent, had a depressed mood, and was alert. Id. at 479-80. Dr. Carlin observed that although plaintiff was cooperative, appeared truthful, and exhibited no evidence of exaggeration, she did not appear to put full effort into the examination. Id. at 479, 481. Dr. Carlin diagnosed plaintiff with major depressive disorder and psychological stressors. Id. at 481. Dr. Carlin opined plaintiff was: able to understand, remember, and carry out simple one- or two-step instructions; able to do detailed and complex commands; moderately limited in her ability to relate and interact with coworkers and the public; moderately limited in her ability to maintain concentration, attention, persistence, and pace; and moderately limited in her ability to maintain regular attendance in the work place and perform work activities on a consistent basis. Id. at 482.
Dr. P.M. Balson, a state agency psychiatrist, opined plaintiff had mild limitations with activities of daily living. Id. at 456. Dr. Balson opined plaintiff had moderate limitations: with maintaining concentration, persistence, or pace; in her ability to understand, remember, and carry out detailed instructions; in her ability to accept instructions and respond appropriately to criticism from supervisors; and in her ability to set realistic goals or make plans independently of others. Id. at 456, 459-60. Dr. Balson opined plaintiff would be unable to perform her past relevant work but would be mentally capable of sustained simple, repetitive tasks within a different worksite. Id. at 461.
Dr. Howard Atkins, a state agency psychologist, opined plaintiff had an affective disorder, was markedly limited in her ability to interact appropriately with the general public, could relate to supervisors and peers on a superficial work basis, and could adapt to a work situation. Id. at 492-95. Dr. Atkins further opined plaintiff had mild limitations with activities of daily living, moderate limitations in maintaining social functioning, and mild limitations in maintaining concentration, persistence, or pace. Id. at 497.
The ALJ determined plaintiff had one mental limitation — she should be limited to occasional interaction with the public. Id. at 27. In reaching that determination, the ALJ gave Dr. Atkins's opinion great weight on the basis it was consistent with the objective evidence and "based on a review of the most updated evidence." Id. at 35. The ALJ gave "partial weight" to Dr. Carlin's opinion," lesser weight to Dr. Balson's opinion, no weight to Dr. Brendel's opinion,
Similar to his physical RFC determination, the only evidence supporting ALJ's mental RFC determination was the opinion of a non-examining physician, Dr. Atkins. Although the ALJ also purports to give Dr. Carlin's opinion "partial weight," he appears to give weight only to Dr. Carlin's finding that plaintiff did not appear to put in full effort during the examination and was moderately limited in her ability to interact with the public. See id. at 35. As discussed above, Dr. Atkins's opinion may constitute substantial evidence only if it is consistent with independent clinical findings or other evidence. Thomas, 278 F.3d at 957. Here, Dr. Atkins's omission of a concentration limitation was not consistent with either.
Based on their examinations of plaintiff, Dr. Hyzin and Dr. Carlin opined plaintiff had moderate limitations in her ability to maintain concentration, persistence, or pace. AR at 437, 482. Dr. Brendel did not opine any specific functional limitations but also observed that plaintiff had a poor attention span and concentration.
The ALJ gave little weight to Dr. Hyzin's opinion because there were no treatment notes to support the opinion and she stopped treating plaintiff in August 2009. Id. at 36. The fact that a treating relationship ended is not a sufficient reason to discount an opinion. To the extent that the ALJ is arguing plaintiff's condition changed since her last treatment date, there is no evidence to support that finding. As for the lack of treatment notes, the ALJ correctly notes that he does not need to accept an opinion that is unsupported by clinical findings; however, in this case the opinion was not brief and conclusory. See Tonapetyan, 242 F.3d at 1149 (an ALJ does not need to accept opinions that are conclusory, brief, and unsupported by clinical findings). Dr. Hyzin provided detailed responses to the questions. Thus, although the lack of treatment notes is a legitimate reason to discount Dr. Hyzin's opinion, the ALJ's decision to give it little weight as opposed to partial or less weight is not supported by substantial evidence. On remand, the ALJ should further develop the record.
The ALJ gave only "partial weight" to Dr. Carlin's opinion on the basis that her opinion was not an accurate assessment "based on her observations" of plaintiff. AR at 35. Specifically, the ALJ relied on Dr. Carlin's observation that plaintiff was not putting forth full effort and did not want to complete certain tasks as reasons to discount Dr. Carlin's opinion. Id.; see id. at 479-81. An ALJ may reasonably question a physician's opinion if a claimant exerted a lack of effort during the examination. See Morgan v. Comm'r, 169 F.3d 595, 602 (9th Cir. 1999) (treating or examining physician's opinion based on the claimant's own complaints may be disregarded if the claimant's complaints have been properly discounted); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (ALJ may legitimately accord less weight to, or reject, the opinion of a physician based on the self-reporting of an unreliable claimant where that claimant's complaints have been properly discounted). But Dr. Carlin stated that there was no evidence of exaggeration or manipulation, and noted there may have been an underlying disorder causing plaintiff to put in less effort. AR at 479, 481. Given that assessment, it appears that plaintiff's lack of effort was not due to malingering but rather a further psychological issue. As such, it was not a legitimate reason to discount Dr. Carlin's opinion.
Finally, the ALJ rejected the opinions of Dr. Brendel because the definition of disability differs in worker's compensation and social security disability claims. Id. at 35. Although an ALJ may reject a physician's ultimate disability assessment if it was based on worker's compensation grounds, an ALJ may not reject the objective medical findings. See Booth, 181 F. Supp. 2d at 1104-05 (citing Coria v. Heckler, 750 F.2d 245, 247 (3d Cir. 1984)). Thus, the ALJ may reject Dr. Brendel's opinion that plaintiff was totally and temporarily disabled due to work-related psychological stress, but may not reject his finding that plaintiff had poor concentration simply because it was provided in the context of a worker's compensation claim.
For these reasons, the ALJ's mental RFC determination was not supported by substantial evidence.
The ALJ is not required to obtain testimony for a vocational expert at step four, but the ALJ did so here. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir.1993) (vocational expert's testimony is useful at step four, but not required). Plaintiff argues the ALJ failed to ask a proper hypothetical. P. Mem. at 11; See Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) ("If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.") (quoting Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (internal quotation marks and citation omitted)); Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (same and citing additional authority). Specifically, plaintiff argues the ALJ failed to incorporate all of plaintiff's limitations in the hypothetical. P. Mem. at 11.
The ALJ posed two hypotheticals to the vocational expert: (1) a hypothetical person limited to medium work; and (2) a hypothetical person with the RFC to do light work but limited to simple, routine tasks and only occasional interaction with the public and co-workers. AR at 70-72. Neither hypothetical incorporated the RFC and limitations determined by the ALJ — namely, a person limited to medium work and only occasional interaction with the public. See id. at 27. Therefore, the hypothetical was incomplete. Further, as discussed above, the ALJ's RFC determination was not supported by substantial evidence in any event. Therefore, the ALJ must reconsider the evidence and reassess the RFC, and if he relies on vocational expert testimony given in response to a hypothetical, the hypothetical must fully reflect all of plaintiff's determined limitations.
Plaintiff contends the ALJ failed to properly consider her credibility. P. Mem. at 16-18. Specifically, plaintiff argues none of the ALJ's reasons for discounting her credibility were clear and convincing and supported by substantial evidence. Id.
An ALJ must make specific credibility findings, supported by the record. Social Security Ruling 96-7p. To determine whether testimony concerning symptoms is credible, an ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, an ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "`which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281 (citation omitted); accord Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014).
An ALJ may consider several factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. The lack of objective medical evidence to support allegations of limitations is also a factor that may be considered when evaluating credibility, but it may not be the only factor considered. See Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001) (lack of corroborative objective medical evidence may be one factor in evaluating credibility); Bunnell, 947 F.2d at 345 (an ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain").
At the first step, the ALJ here found plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 28. At the second step, because the ALJ did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. The ALJ provided five reasons for discounting plaintiff's credibility: (1) the severity of her alleged symptoms was not supported by the objective medical evidence, including a lack of diagnostic studies; (2) she received conservative treatment; (3) plaintiff continued to work for three months after her injury; (4) plaintiff did not seek treatment; and (5) her alleged symptoms were inconsistent with her activities of daily living. Id. at 28, 31-32.
The first reason cited by the ALJ for finding plaintiff less credible was that her allegations were inconsistent with the objective medical evidence. Id. at 28, 31; see Rollins, 261 F.3d at 856-57. The ALJ further found there were minimal findings to support her allegations of "incredible pain." AR at 31. X-rays "did not reveal significant abnormalities" in her cervical and lumbar spine, there was no evidence of a nerve root compression in the lumbar spine, and there was only a slight degree of right median sensory neuropathy at or distal to the wrist line. Id.
And the ALJ also noted that although plaintiff was hit on the back of the head and right hand by machine parts in 2008, she alleged pain in her lower back and only started alleging pain on the entire right side of her body after 2009. Id. at 28, 31.
The record shows plaintiff complained of constant or intermittent pain since the injury. See, e.g., id. 350, 399-400, 485, 515. Although plaintiff focused on the pain in her cervical spine, lumbar spine, and right wrist, plaintiff also complained of pain and/or numbness to the right side of her body from the onset. See id. at 399, 424. No physician opined that the workplace accident could not have caused the pain in plaintiff's back and right side. Indeed, Dr. Lewis opined that it was medically probable that plaintiff's back pain developed as a consequence of her workplace injury. Id. at 395.
Further, the clinical findings and diagnostic tests supported plaintiff's complaints. The clinical findings consistently showed that plaintiff had tenderness and decreased range of motion in her neck and back. See, e.g., id. at 352, 400-01, 518-20. Diagnostic tests showed degenerative changes in plaintiff's lumbar spine, anterior spurring and calcification in the cervical spine, and slight degree of neuropathy at or distal to the right wrist. See id. at 409-10, 444. Although the findings did not appear severe, they were consistent with plaintiff's complaints of pain.
The second reason cited by the ALJ for discounting plaintiff's credibility — she received conservative treatment — was clear and convincing. Id. at 31; see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of conservative treatment is sufficient to discount a claimant's testimony regarding severity of an impairment.") (internal quotation marks and citation omitted). Plaintiff was treated with anti-inflammatory medication, muscle relaxants, and over the counter pain medication, all of which are considered conservative. See, e.g., AR at 402, 442, 517; see also Tommasetti, 533 F.3d at 1040 (describing anti-inflammatory medication as conservative treatment).
The ALJ's third reason for finding plaintiff less credible is that plaintiff continued to work for three months after the accident. AR at 32. An ALJ is required to consider a claimant's work history when assessing credibility. See 20 C.F.R. § 404.1529(c)(3). Plaintiff testified that after the injury she attempted to return to work but she was continuously removed from her position due to pain and ultimately left the job. Id. at 52. The fact that a claimant tried to work and failed because of her impairments is not a clear and convincing reason to discount his credibility. See Lingenfelter, 504 F.3d at 1038 .
The ALJ cites a fourth reason in discounting plaintiff's credibility — plaintiff's lack of treatment. AR at 32. The ALJ notes that other than some old treatment records from plaintiff's worker's compensation claim, plaintiff did not seek treatment for her symptoms. Id. The failure to seek treatment may be a basis for an adverse credibility finding unless there was a good reason for not doing so. See Orn, 495 F.3d at 638. Plaintiff claims that she did not seek treatment because she lacked the financial means. The inability to afford treatment cannot be used against a plaintiff. See id.
Finally, the ALJ found plaintiff less credible because her activities of daily living were inconsistent with her claimed degree of impairment. AR at 32; see Thomas, 278 F.3d at 958-59 (in making a credibility determination, an ALJ may consider inconsistencies between a claimant's testimony and conduct). Specifically, the ALJ noted plaintiff was able to perform independent personal care, go to the market, do laundry, prepare her own meals, drive, go out alone, and perform household chores. AR at 32.
Inconsistency between a claimant's alleged symptoms and her daily activities may be a clear and convincing reason to find a claimant less credible. Tommasetti, 533 F.3d at 1039; Bunnell, 947 F.2d at 346-47. But "the mere fact a [claimant] has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability." Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). A claimant does not need to be "utterly incapacitated." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, plaintiff's activities were not inconsistent with her alleged physical or mental symptoms. Plaintiff's primary alleged physical limitation was the ability to lift or carry no more than twenty pound occasionally and ten pounds frequently. None of the activities cited by the ALJ were inconsistent with this limitation. Similarly, none of the activities of daily living were inconsistent with plaintiff's alleged moderate mental limitation in her ability to maintain concentration and attention.
In sum, the ALJ cited one reason for discounting plaintiff's credibility that — in a vacuum — was clear and convincing, but the other reasons cited were not clear and convincing. In light of the numerous unconvincing reasons cited, plaintiff's conservative treatment was not, by itself, sufficient reason for the ALJ to have discounted plaintiff's credibility, particularly given plaintiff's testified lack of financial means to seek further treatment. As such, the ALJ erred in discounting plaintiff's credibility for the reasons he stated.
The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this discretion to direct an immediate award of benefits where: "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinions; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with instructions to calculate and award benefits). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must "remand for further proceedings when, 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." Garrison, 759 F.3d at 1021.
Here, remand is required because the subsequent award of benefits is new and material evidence that is inconsistent with the instant application. Remand is also required because the ALJ failed to properly consider the opinions of plaintiff's treating and examining physicians, failed to properly assess plaintiff's credibility, and thereby failed to properly determine plaintiff's RFC. On remand, the ALJ shall consider the new evidence and further develop the record as needed, reconsider the physicians' opinions and either credit the opinions or provide specific and legitimate reasons supported by substantial evidence for rejecting them, and reconsider plaintiff's credibility and either accept her testimony or provide clear and convincing reasons for rejecting it. The ALJ shall then proceed through steps two, three, four, and, if necessary, five to determine what work, if any, plaintiff was capable of performing.
IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision.
