PATRICK J. WALSH, Magistrate Judge.
Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his claim for Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he: (1) rejected the treating doctor's opinion; (2) determined that Plaintiff and his mother were not credible; and (3) found that Plaintiff could work. For the reasons explained below, the ALJ's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this opinion.
In August 2011, Plaintiff applied for SSI, alleging that he had been unable to work since December 31, 2002, due to chronic lower back pain, Hepatitis C, hypertension, and insomnia. (Administrative Record ("AR") 226-34, 257.) The Agency denied the applications initially and on reconsideration. (AR 87, 97.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 130-31.) On February 27, 2013, he appeared with counsel and testified at the hearing. (AR 48-50, 52-69.) On March 19, 2013, the ALJ issued a decision denying his application for benefits. (AR 98-112.)
Plaintiff appealed the ALJ's decision to the Appeals Council, which vacated the decision and remanded the case to the ALJ to further evaluate Plaintiff's mental impairment, reconsider the testimony of Plaintiff's mother, further evaluate the doctors' opinions after updating the record, develop the record regarding Plaintiff's past work, and, if warranted, obtain testimony from a vocational expert. (AR 114-16.)
On March 25, 2015, Plaintiff appeared with counsel at a second hearing before a different ALJ. (AR 31-42.) On June 26, 2015, the ALJ issued a decision denying Plaintiff's application for benefits. (AR 12-28.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-6.) This action followed.
The ALJ found that Plaintiff had the residual functional capacity to perform light work if it involved only occasional bending and stooping. (AR 18.) Plaintiff objects to this finding. He contends that, in order to reach this conclusion, the ALJ improperly rejected the opinion of one of Plaintiff's treating doctors and discounted Plaintiff's and his mother's testimony without cause. (Joint Stip. at 9-22, 37-43.) For the following reasons, the Court remands this issue to the Agency for further consideration.
In January 2013, Plaintiff's treating doctor, Dr. William Edelstein, diagnosed Plaintiff with chronic lower back pain and concluded that he could occasionally lift, carry, or pull less than ten pounds; stand or walk for a total of less than two hours in an eight-hour day; and sit continuously for less than six hours. (AR 380.) He also opined that Plaintiff could not reach repeatedly and that he would miss 60 to 120 hours of work per month. (AR 380.) According to Dr. Edelstein, Plaintiff's condition had persisted for 13 years. (AR 380.)
Had the ALJ accepted Dr. Edelstein's opinion, he would have had to conclude that Plaintiff was not even capable of performing full-time sedentary work. But the ALJ rejected Dr. Edelstein's opinion because: (1) it was not supported by objective medical evidence; and (2) it was undermined by the opinions of treating doctor John Landsberg, consultative examiner Ursula Taylor, and two reviewing doctors. (AR 21.) Ultimately, the ALJ concluded that Plaintiff could perform light work. Plaintiff argues that the ALJ erred in discounting Dr. Edelstein's opinion.
It is the province of the ALJ to resolve conflicts in the medical evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). There are three types of doctors that supply that evidence: treating doctors, examining doctors, and reviewing doctors. All things being equal, treating doctors' opinions are entitled to the most weight because they are hired to cure and have more opportunity to know and observe the patient. Id. at 1041. Examining doctors are next on the list, followed by reviewing doctors. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). ALJs, however, are not required to merely accept the opinion of any doctor and, where an opinion is contradicted, may reject it for specific and legitimate reasons that are supported by substantial evidence in the record. Id. at 830.
In rejecting Dr. Edelstein's opinion, the ALJ noted that, though a treating doctor's opinion is normally entitled to significant weight, that rule is only applicable if the opinion is supported by objective medical evidence. (AR 21.) He then went on to explain that, "such is not the case regarding the assessment of Dr. Edelstein of extreme physical limitations of 13 years duration (Exhibit 8F)." (AR 21.) In the ALJ's view, there was "no objective medical evidence to support such a restrictive residual functional capacity . . . ." (AR 21.)
Plaintiff complains that the ALJ's finding that Dr. Edelstein's opinion was not supported by the objective medical evidence was too general to be upheld on appeal. The Court agrees in part and disagrees in part. Clearly there is no objective medical evidence dating back to 2000 to support Dr. Edelstein's opinion that Plaintiff's condition persisted for 13 years. In fact, the medical records from the Santa Barbara County Health Department, where Dr. Edelstein worked and where he treated Plaintiff, only go back to 2010. (AR 337-41, 377-429.) Thus, the ALJ's finding that there was no objective medical evidence to support Dr. Edelstein's 2013 opinion that Plaintiff's condition had persisted for 13 years is affirmed.
The ALJ's companion finding that there was no objective medical evidence to support Dr. Edelstein's restrictive residual functional capacity finding is not. There is some objective evidence in the record that supports Dr. Edelstein's view, for example, his positive findings in straight leg testing, and some that undermines it. The ALJ was tasked with sorting through the evidence and explaining which evidence undermined Dr. Edelstein's opinion and which evidence supported it. His failure to do so amounts to error. See Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("Merely to state that a medical opinion is not supported by enough objective findings `does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim.'") (quoting Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)).
The ALJ also questioned Dr. Edelstein's opinion because it was inconsistent with the opinions of treating doctor Landsberg (who took over Plaintiff's treatment in February 2013), examining doctor Ursula Taylor, and the reviewing doctors. Generally speaking, this is a valid reason for questioning a treating doctor's opinion. Andrews, 53 F.3d at 1043 (upholding ALJ's rejection of treating doctor's opinion based in part on the fact that it was contradicted by opinions of nontreating doctors). And it is supported in part by the record. Of the five doctors involved in this case, only one, Dr. Edelstein, concluded that Plaintiff was so severely disabled that his physical limitations precluded him from performing even sedentary work. (AR 380.) Three of the other four opined that Plaintiff could lift at least 20 pounds, walk for six hours in an eight-hour day, and sit for at least six hours, which translates into being able to perform light work. (AR 83-84, 93, 360.) Dr. Landsberg did not offer an opinion on Plaintiff's residual functional capacity. He did, however, stop prescribing Plaintiff the narcotic Norco soon after he started treating Plaintiff, which could be interpreted as an indication of his view on the severity of Plaintiff's back pain.
The ALJ also explained that he relied on these other doctors based on the "length, nature and extent of the treating relationship, supportability with medical signs and laboratory findings, consistency with the record, and area of specialization." (AR 21.) The ALJ failed, however, to explain what he meant by this. For example, Dr. Edelstein clearly had the longest relationship with Plaintiff. He treated Plaintiff from September 2010 to February 2013. Dr. Taylor, the examining doctor, only saw him once and that was for an examination, not treatment. The reviewing doctors never saw him at all. Dr. Landsberg's treatment notes cover a period of about six months. Thus, to the extent that the ALJ discounted Dr. Edelstein's opinion based on the length and nature of the treatment, the ALJ erred here, too, because Dr. Edelstein treated Plaintiff for the longest and, therefore, that would have been a reason to rely on his opinion.
The ALJ also questioned Dr. Edelstein's opinion because the minimal objective medical evidence there was—an "MRI indicating minimal to mild degenerative changes to the lumbosacral spine"—did not support his view that Plaintiff was disabled. (AR 21.) The Court does not find this reason persuasive. None of the doctors opined that these findings establish that Plaintiff's back condition is not painful or debilitating. It appears that this conclusion was the ALJ's alone.
Though the Court considers this a close call, it concludes that remand is warranted for the ALJ to take another look at this issue. In doing so, he should explain what medical evidence undermines Dr. Edelstein's opinion and what the basis for that view is. For example, if the apparently unremarkable MRI findings establish that Plaintiff's back condition is not as severe as Plaintiff and Dr. Edelstein claim, then the ALJ should point to evidence in the record that substantiates that finding. The ALJ should also obtain Plaintiff's most recent medical records and consider them in determining whether Plaintiff is disabled.
The ALJ found that Plaintiff was not credible. Plaintiff argues that the ALJ erred in doing so. For the following reasons, this finding is remanded for further consideration.
ALJs are tasked with judging a claimant's credibility. Andrews, 53 F.3d at 1039. In doing so, they can rely on ordinary credibility techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where there is no evidence of malingering, however, they can only reject a claimant's testimony for specific, clear, and convincing reasons that are supported by substantial evidence in the record. Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014).
Plaintiff suffers from sciatica and testified that he has back pain every day. (AR 35.) He claims that he can sit for only two hours at a time and can walk for only about five minutes before he has to rest. (AR 40.) He alleges that he uses a cane and a back brace when his back goes out once or twice a month, which causes pain that lasts up to two weeks. (AR 41.) According to Plaintiff, his back can go out when he is washing dishes or reaching to put a dish into the cupboard. (AR 41.) As a result of his ailments and his insomnia, he only sleeps three to four hours a night. (AR 42.)
The ALJ found that Plaintiff's sciatica could reasonably be expected to cause his alleged symptoms but that his testimony that his symptoms were debilitating was not entirely credible because: (1) his ability to perform daily activities was inconsistent with his alleged limitations; (2) the objective medical evidence did not support his alleged degree of back pain; (3) he did not comply with treatment; and (4) his treatment was conservative. (AR 20, 21.) These are valid reasons for questioning a claimant's testimony. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (holding ALJ can consider claimant's ability to perform daily activities in assessing credibility); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting ALJ can consider objective medical evidence in determining credibility of claimant); Orn, 495 F.3d at 638 (explaining ALJ may consider claimant's failure to follow prescribed course of treatment in evaluating testimony about severity of pain); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (holding inconsistency between allegations of severe pain and conservative treatment was proper basis for discounting credibility). As explained below, however, not all of them are supported by substantial evidence in the record.
The ALJ questioned Plaintiff's claim that he could only walk for five minutes because his purported daily activities—including cleaning and vacuuming—"required more than [five] minutes of walking." (AR 20-21.) The Court does not agree with the ALJ's finding here. Plaintiff could have performed these chores in short intervals over the course of a day, particularly, where, as here, he was not working and was spending his days at home.
The government points out that Plaintiff told Dr. Edelstein that he was biking and walking seven days a week for exercise. (AR 389.) Clearly, this level of daily activity is inconsistent with Plaintiff's testimony that he suffered from debilitating pain that rendered him incapable of working. But the ALJ did not rely on this when analyzing Plaintiff's credibility and, as such, the Court is not at liberty to do so here. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) ("[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.") (citation omitted).
The ALJ relied on the absence of objective medical evidence supporting Plaintiff's alleged pain to find that Plaintiff was not credible. The problem with this finding is that the ALJ failed to specify what evidence was missing and how the lack of it undermined Plaintiff's testimony. To the extent that he was referring to the benign findings in the MRI, the Court is not convinced, absent expert testimony, that that establishes that Plaintiff was not experiencing pain and limitation. The ALJ also failed to explain how the other objective evidence that was there, for example, the positive straight leg raising test results from Dr. Edelstein, did not support Plaintiff's testimony.
The ALJ also questioned Plaintiff's sincerity because he failed to follow medical advice. There is evidence in the record to support this finding. Dr. Landsberg noted that Plaintiff essentially refused to listen when he counseled him to start using different sleep medication. (AR 422, 426-27.) This could be construed as a sign that Plaintiff's pain and suffering was not as severe as he claimed. But Plaintiff's resistance here involved his insomnia medication, not his pain medication. And, though the insomnia and the pain from the sciatica may have been related, the Court cannot conclude that Plaintiff's failure to take his insomnia medication proves that his statements about his back pain are exaggerated.
The ALJ pointed to the fact that Plaintiff received conservative treatment for what Plaintiff claimed was a debilitating back ailment. The Court sides with the ALJ here. The medical record in this case is sparse. It consists of a handful of treatment notes from Santa Barbara Health Care Center from 2010 to 2013 in which Plaintiff went to see Dr. Edelstein and complained about a bad back, insomnia, high blood pressure, and anxiety and Dr. Edelstein prescribed medications to treat his conditions. There are no records before 2010, despite the fact that Plaintiff claims that he has been disabled since 2002. There were no procedures performed on his back. He did not receive any injections. He did not receive any physical therapy. He simply reported to Dr. Edelstein on an infrequent basis and received medication. Though the medication Dr. Edelstein prescribed for Plaintiff's back pain was a narcotic, Norco, there is no indication in Dr. Edelstein's records that anything more was ever done to treat Plaintiff's condition. Further, soon after Dr. Landsberg took over Plaintiff's treatment, he stopped prescribing Norco.
Plaintiff purportedly used a back brace and a cane to treat his back pain. But there is no evidence to indicate that either were prescribed and, even assuming that they were, the Court would characterize them as conservative treatment, also.
In the end, some of the reasons cited by the ALJ are supported by the record and some are not. Because the Court is not convinced that the reasons that stand are enough to reject Plaintiff's testimony, the issue is remanded to the ALJ for further consideration. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding error is harmless only if substantial evidence remains to support the ALJ's credibility finding).
Plaintiff's mother submitted a written report, explaining what she perceived were Plaintiff's limitations. (AR 275-78.) The ALJ discussed her report but failed to explain whether he was accepting it or rejecting it. It seems fair to conclude, however, that the ALJ rejected parts of her "testimony" because his findings relating to what Plaintiff could do are inconsistent with what Plaintiff's mother reported that he could do. The Agency concedes that the ALJ failed to properly address the mother's testimony but argues that, because her testimony was so closely aligned with Plaintiff's, the ALJ's reasons for rejecting Plaintiff's testimony can and should be applied to the mother's.
The Court has remanded the issue of Plaintiff's credibility to the ALJ. Thus, the Agency's argument that the Court should uphold the ALJ's rejection of the mother's testimony for the same reasons it is upholding the rejection of Plaintiff's testimony necessarily fails.
On remand, the ALJ should consider the mother's input as well and explain what weight, if any, he gives it and why. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) ("[L]ay witness testimony as to a claimant's symptoms . . . is competent evidence" which the Secretary must take into account.) (emphasis in original) (citations omitted).
Plaintiff contends that the ALJ erred in concluding that he could perform his past work as a medical file clerk because the job is defined as light work and Plaintiff is only capable of performing sedentary work. On remand, after addressing the issues outlined above, the ALJ will have to take another look at Plaintiff's residual functional capacity and then determine whether he can perform his past work.
The ALJ also made an alternative finding that Plaintiff could perform other jobs existing in the national economy, such as cashier II and marker (retail). (AR 22-23.) Plaintiff argues that both of these jobs involve frequent reaching, handling, and fingering and, therefore, are beyond his ability to do sedentary work. (Joint Stip. at 51-52.)
The Court does not find Plaintiff's argument persuasive. The ALJ did not limit Plaintiff to frequent reaching, handling, and fingering, nor did he limit him to sedentary work. That being said, if the ALJ makes a different residual functional capacity determination on remand, he will have to to reconsider Step Four and, if warranted, Step Five, as well.
For the reasons set forth above, the Agency's decision is reversed and the action is remanded for further consideration consistent with this Memorandum Opinion and Order.
IT IS SO ORDERED.
