GREGORY G. HOLLOWS, Magistrate Judge.
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act"). For the reasons that follow, plaintiff's motion for summary judgment is granted in part, defendant's cross-motion for summary judgment is denied, the case is remanded for further proceedings under sentence four of 42 U.S.C. § 405(g), and judgment is entered for plaintiff.
Plaintiff, born August 31, 1965, applied on July 25, 2008 for DIB and SSI alleging that he became disabled on July 1, 2007. (Tr. at 16, 30, 110, 117.) Plaintiff contended that he was unable to work primarily due to back pain, knee pain and numbness, right leg pain and numbness, high blood pressure, and depression. (Tr. at 135, 181-82, 191.) These claims were denied initially on August 26, 2008 and upon reconsideration on November 5, 2008. (Tr. at 16, 46-49.) Thereafter, on November 12, 2008, plaintiff filed a request for hearing before an administrative law judge ("ALJ"), which was conducted on November 17, 2009 in Stockton, California. (Tr. at 16, 27, 71-82.)
Subsequently, in a decision dated January 25, 2010, ALJ Sandra K. Rogers determined that plaintiff was not disabled. (Tr. at 23.) The ALJ made the following findings:
(Tr. at 18-23.)
Plaintiff's motion presents the following issues for review: (1) whether the ALJ erred in finding that plaintiff could perform his past relevant work as a lubrication servicer and in classifying his past work as a "cashier"; (2) whether the ALJ improperly rejected the opinion of plaintiff's treating physician; and (3) whether the ALJ failed to meaningfully analyze plaintiff's obesity and its effect on his functioning in violation of SSR 02-1p. The order of plaintiff's issues does not logically comport with the typical five-step sequential evaluation process utilized in social security benefits determinations. Because the second and third issues raised by plaintiff relate to the ALJ's evaluation of the medical evidence in determining plaintiff's residual functional capacity, the court addresses these issues first and ultimately finds them dispositive.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it.
Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for not crediting the opinion of plaintiff's treating physician and failed to explain why she was not crediting plaintiff's functional capacity assessment performed by a physical therapist at his treating physician's direction.
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals.
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons.
In this case, since May 2008, plaintiff was regularly seen for complaints of back pain, knee pain, and hypertension at the San Joaquin General Hospital's Family Practice unit, where he was first diagnosed by physician assistant Dennis Langone with hypertension; obesity; degenerative joint disease of the lumbosacral spine, knees, and left elbow; and gastroesophageal reflux disease.
On or about October 20, 2008, Dr. Manisha Shingate became plaintiff's primary health care provider. (Tr. at 287.) At that time, Dr. Shingate also noted that plaintiff was obese at 137.9 kg and a BMI of 40.
Subsequently, on December 1, 2008, Dr. Shingate examined plaintiff and noted that his blood pressure was improving, but that he reported signs and symptoms of depression. (Tr. at 268-69.) A December 10, 2008 MRI of the lumbar spine showed mild right L5-S1 facet arthrosis. (Tr. at 262.) During a January 23, 2009 visit, Dr. Shingate noted that plaintiff's depression had improved somewhat, that he did not have any other complaints at that time, but that his hypertension was not at goal. (Tr. at 257-58.) On April 28, 2009, Dr. Shingate again stated that plaintiff's hypertension was not at goal and that he was obese and may suffer from sleep apnea that increases his blood pressure. (Tr. at 251-52.) She also continued the same doses of pain medications related to plaintiff's chronic lower back pain secondary to degenerative joint disease. (Tr. at 252.) On June 16, 2009, plaintiff complained of shortness of breath, especially with exertion, as well as intermittent bilateral lower extremity swelling. (Tr. at 354.)
Thereafter, on August 3, 2009, although plaintiff reported that he did not have shortness of breath and lower extremity swelling at that time, he complained of chronic back pain and lower extremity pain. (Tr. at 336.) He indicated that he had not been driving, his pain had recently gotten worse secondary to activity, and that he had increased his dose of methadone to two tablets. (Tr. at 336.) Dr. Shingate stated that plaintiff's chronic low back pain was not controlled due to increased activity and that she would increase his methadone dose. (Tr. at 337.) He was cautioned not to drive or operate machinery. (Tr. at 337.) Dr. Shingate also noted that plaintiff's hypertension was not at goal, and that plaintiff's pain was probably causing his blood pressure to get worse. (Tr. at 337.) She refilled his medications, recommended that he follow the Southwestern Diet, and indicated that additional medication may be prescribed after further checks. (Tr. at 337.) Dr. Shingate further reported that plaintiff requested her to fill out disability paperwork. She opined that plaintiff needed a detailed physical therapy evaluation for residual functional capacity for her to fill out the forms and advised plaintiff to obtain the evaluation as soon as possible. (Tr. at 337.)
A physical therapy functional assessment was performed on August 17, 2009 by physical therapist Donna Andrews. (Tr. at 330-35.) Plaintiff reported sharp pain in his lower back with left trunk flexion/extension and with rotation. (Tr. at 330.) He experienced pain with lifting 5 pounds and carrying 10 pounds for 30 feet. (Tr. at 331.) The physical therapist noted that plaintiff was capable of climbing one flight of 9 stairs, could balance on his right leg for 10 seconds and his left leg for 26 seconds, and was able to squat only once three quarters of the way down. (Tr. at 331.) He was unable to get up from both knees. (Tr. at 331.) The physical therapist further opined that plaintiff could sit for 20 minutes, stand for 15 minutes, and walk for 2-3 minutes. (Tr. at 331.) She also noted that he used very poor mechanics for almost all activities and was overweight, quite inflexible in his quads, hamstrings, and low back, and also deconditioned. (Tr. at 331.)
During September and October, 2009, plaintiff continued to experience constant pain increasing with movement as well as elevated blood pressure. (Tr. at 316-29.) He received a trigger point injection and was instructed to continue on his pain medication (methadone and oxycodone), but reported that relief from the injection only lasted a few days. (Tr. at 316, 320-21.)
Finally, on October 22, 2009, Dr. Shingate completed a physical residual functional capacity questionnaire for plaintiff. (Tr. at 369-75.) She indicated that plaintiff had been a clinic patient since 2006, and had attended monthly office visits. (Tr. at 370.) She diagnosed plaintiff with chronic back pain, spondylosis L5-S1, and degenerative joint disease, based on clinical findings of radicular pain, the December 10, 2008 MRI showing mild L5-S1 facet arthrosis, the June 2, 2008 back X-ray showing mild lumbar spondylosis, and the physical therapy functional capacity assessment done on August 17, 2009. (Tr. at 370, 375.) She further described his symptoms as chronic back pain, pins and needles and stabbing pain in multiple body parts, and severe hypertension. (Tr. at 370.) Dr. Shingate opined that plaintiff's depression contributes to the severity of his symptoms and functional limitations, that plaintiff is not a malingerer, that his impairments are reasonably consistent with the symptoms and functional limitations, and that they could be expected to last at least twelve months. (Tr. at 370-71.)
Additionally, Dr. Shingate stated that plaintiff's symptoms would frequently interfere with his attention and concentration, i.e. 34-66% of an 8-hour working day, but indicated that he was capable of low stress jobs. (Tr. at 371.) She assessed plaintiff as capable of walking half a block without rest, sitting for 20 minutes at a time, standing for 15 minutes at a time, and sitting/standing/walking for a total of less than 2 hours in an 8-hour working day. (Tr. at 372.) According to Dr. Shingate, any job would have to permit shifting positions at will from sitting, standing, or walking, and plaintiff would need to take unscheduled breaks approximately 3 times an hour for about 15 minutes. (Tr. at 373.) Furthermore, plaintiff could rarely lift 10 pounds or even less than 10 pounds; never lift 20 pounds or more; rarely twist, stoop (bend), crouch, or climb ladders; occasionally climb stairs; grasp, turn, or twist objects with his hands for 10% of an 8-hour working day; perform fine manipulations with his fingers for 30% of an 8-hour working day; and reach with his arms for 5% of an 8-hour working day. (Tr. at 373-74.) Dr. Shingate also indicated that plaintiff would have good and bad days and that he would likely be absent from work more than four days per month. (Tr. at 374.) She assessed the onset date of these limitations as May 2, 2008. (Tr. at 375.)
The only other medical opinions in the record are those of two State Agency physicians, Drs. Dipsia and Harris. (Tr. at 231-37, 243-44.) On August 26, 2008, Dr. Dipsia reviewed plaintiff's medical records and opined that he was capable of light work, i.e. lifting 20 pounds occasionally and 10 pounds frequently; standing, walking, and sitting with normal breaks for about 6 hours in an 8-hour workday; and occasionally climbing, balancing, stooping, kneeling, crouching, and crawling. (Tr. at 232-33.) Subsequently, on November 5, 2008, Dr. Harris reviewed plaintiff's file and affirmed Dr. Dipsia's prior decision. (Tr. at 243.)
The ALJ analyzed the medical opinion evidence as follows:
(Tr. at 22.)
As an initial matter, although the limitations assessed by Dr. Shingate may appear unduly severe given the relatively mild imaging results, the court cannot say based on the record before it that Dr. Shingate's opinion is entirely conclusory or unsupported. As outlined above, Dr. Shingate regularly treated plaintiff for a substantial amount of time, and her opinion appears to be based on plaintiff's undisputed diagnoses, her clinical findings, and the physical therapy evaluation she requested. Moreover, as discussed below, even if Dr. Shingate's opinion were deficient, the ALJ's evaluation of the medical opinion evidence is not supported by substantial evidence for several reasons.
First, in determining plaintiff's residual functional capacity, the ALJ relied solely on, and adopted, the opinions of the State Agency physicians who did not make any independent clinical findings. "When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not "substantial evidence."
Second, the opinions of the State Agency physicians, rendered on August 26 and November 5, 2008, are not the most recent medical opinions in the record and did not take into account the post-November 5, 2008 medical evidence. As outlined above, the record suggests that plaintiff's symptoms may have worsened in 2009 and that his medication dosage was increased. Furthermore, the State Agency physicians did not have access to the results of the subsequent physical therapy evaluation performed on August 17, 2009.
Third, although the ALJ made reference to the physical therapy evaluation, she entirely failed to explain why she did not credit its findings. Generally, when assessing residual functional capacity ("RFC"), the ALJ is required to "explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved." SSR 96-8p, at *7. Physical therapists are not "acceptable medical sources" who can provide evidence to establish a medically determinable impairment. 20 C.F.R. § 404.1513(a). However, they do qualify as "other sources" under 20 C.F.R. § 404.1513(d), and their opinions as to functional limitations resulting from an established impairment must be evaluated and can only be discounted by providing specific reasons, germane to the witness. SSR 06-03p, at ** 3, 5;
Finally, the ALJ failed to provide specific and legitimate reasons for not crediting Dr. Shingate's opinion. As discussed above, the ALJ's primary reason for giving limited weight to Dr. Shingate's opinion was that it was not supported by the imaging results which showed only mild degenerative joint changes.
SSR 02-1p provides as follows:
SSR 02-1p, at **6-7 (emphasis added).
In this case, the ALJ specifically assessed plaintiff's obesity as a severe impairment at step two (tr. at 18) and indicated that plaintiff suffered from "extreme obesity." (Tr. at 21.) Indeed, the medical records reveal that plaintiff almost consistently had a BMI of 40 or more, weighing around 300-340 pounds. The ALJ also acknowledged that the physical therapist attributed plaintiff's inflexibility with his range of motion to his being overweight and that he had trouble getting onto a table, lying down, and getting up. (Tr. at 21.) Additionally, plaintiff displayed various other classic symptoms of obesity, such as hypertension, hyperlipidemia, potential sleep apnea, etc.
Nevertheless, the ALJ failed to meaningfully analyze and consider any functional limitations resulting from plaintiff's obesity in her RFC assessment. Similarly, although State Agency physician Dr. Dipsia performed an itemized analysis of plaintiff's other impairments, he did not analyze the impact of plaintiff's obesity. (Tr. at 237.) Because the combined effects of plaintiff's obesity and his other impairments may be greater than expected without obesity, the ALJ erred in discrediting Dr. Shingate's opinion solely on the basis of the relatively mild imaging results. Even though Dr. Shingate herself did not specify exactly to what extent plaintiff's obesity may have increased his functional limitations resulting from other impairments, the ALJ, clearly being aware of plaintiff's extreme obesity, had a duty to further develop the record in this regard by requesting clarification from Dr. Shingate or obtaining a consultative evaluation.
The ALJ also suggested that plaintiff was non-compliant with dieting and therefore failed to follow prescribed treatment. However, the court finds that the record is not sufficiently developed to make such a finding. SSR 02-1p states as follows:
SSR 02-1p, at **8-9.
Here, plaintiff had not been found disabled at the time in question, and therefore, as an initial matter, SSR 02-1p precludes the ALJ from considering the effect of any failure to follow treatment for obesity. SSR 02-1p, at *9;
In sum, the ALJ erred in her evaluation of the medical evidence, and her assessment of plaintiff's residual functional capacity is not supported by substantial evidence. Therefore, the court finds that remand is necessary for a medical consultation by a consultative examiner, who is provided full access to plaintiff's prior medical records, to evaluate the combined effect of plaintiff's obesity along with his other impairments. Additionally, the ALJ may obtain further clarification from plaintiff's treating physician if needed. After reevaluation of plaintiff's residual functional capacity, the ALJ may also deem it appropriate to conduct a supplemental hearing with vocational expert testimony regarding any limitations found, if necessary.
Finally, because the court concludes that further assessment of plaintiff's residual functional capacity is necessary, the court declines to reach plaintiff's first and remaining issue concerning alleged errors at step four of the sequential evaluation process.
Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (dkt. no. 17) is granted in part;
2. Defendant's cross-motion for summary judgment (dkt. no. 19) is denied;
3. The case is remanded for further proceedings consistent with this opinion pursuant to sentence four of 42 U.S.C. § 405(g);
4. Judgment is entered for plaintiff; and
5. The Clerk of Court is directed to close this case.
The claimant bears the burden of proof in the first four steps of the sequential evaluation process.
