STANLEY A. BOONE, Magistrate Judge.
Plaintiff Cesar Dominic Cardenas ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for benefits under the Social Security Act. (ECF No. 1.) All parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. (ECF Nos. 8, 9.)
Plaintiff applied for Social Security benefits due to impairments arising from a heart attack. For the reasons set forth below, Plaintiff's appeal from the final decision of the Commissioner is partially granted and this action is remanded to the Commissioner for further administrative proceedings.
Plaintiff applied for Supplemental Security Income benefits on February 28, 2011. (AR 138.) Plaintiff's application was denied on May 9, 2011. (AR 81.) Plaintiff requested reconsideration of the denial on or around June 24, 2011. (AR 78.) Plaintiff's request for reconsideration was denied on October 19, 2011. (AR 88.) Plaintiff requested a hearing on or around December 15, 2011. (AR 93.)
On October 9, 2012, a hearing took place before Administrative Law Judge Sharon L. Madsen ("the ALJ"). (AR 32-58.) On January 4, 2013, the ALJ issued a written decision finding Plaintiff to be not disabled. (AR 14-26.) Plaintiff requested a review of the ALJ's decision on or around February 4, 2013. (AR 11.) The Appeals Council denied Plaintiff's request for review on December 19, 2013. (AR 4-6.)
Plaintiff was born on December 16, 1974. (AR 36.) Plaintiff is 5'10" and weighs 290 pounds. (AR 36.) Plaintiff is married with four children, ranging from 15 months old to 15 years old. (AR 36.) Plaintiff's wife is on disability. (AR 36.) Plaintiff can drive a car. (AR 36.) Plaintiff graduated from high school and attended a couple of years of general education schooling and vocational training for truck driving. (AR 37.)
Plaintiff does not need help with personal care. (AR 37.) Plaintiff does "very little" household chores. (AR 37.) Plaintiff does not cook and goes shopping "very seldom[ly]." (AR 37.) Plaintiff visits family who lives close by. (AR 37-38.) Plaintiff used to fish, but not so much lately. (AR 38.) Plaintiff used to play softball. (AR 38.)
On a typical day, Plaintiff will help the kids get ready and do "little stuff around the house." (AR 38.) Plaintiff usually ends up going to his sister's house, which is a block away. (AR 38.) Plaintiff watches "[v]ery little TV" and he listens to music. (AR 38.) Plaintiff usually takes naps around 2:00 p.m. on Sundays. (AR 38.)
Plaintiff worked in trailer manufacturing and repair in 1997 and 1998. (AR 38.) Plaintiff's job involved welding. (AR 38.) Plaintiff worked for Butler Manufacturing welding buildings. (AR 39.) Plaintiff would have to lift 50 to 120 pounds. (AR 39-40.) In 2010, Plaintiff worked as a truck driver. (AR 40.) Plaintiff drove for 90 percent of the time and would load or unload trucks once in a while. (AR 40.)
Plaintiff sees a cardiologist every three to four months. (AR 41.) Plaintiff receives adjustments to his pacemaker every three months. (AR 41.) Plaintiff described his memory and fatigue as the two biggest medical issues. (AR 41.) Plaintiff takes Carvedilol for his heart and Glipizide and Metformin for his diabetes. (AR 43.) Plaintiff takes Lisinopril for his blood pressure. (AR 43.) Plaintiff also takes aspirin. (AR 43.) Plaintiff described trouble with his memory, such as forgetting conversations within an hour or two and repeating things in conversation. (AR 44.)
Plaintiff estimated that he could lift 20 to 40 pounds. (AR 44.) Plaintiff can stand for about two hours. (AR 44-45.) Plaintiff does "some" walking, going down the block from one house to another. (AR 45.) Plaintiff stated that he is "very limited" in climbing stairs. (AR 45.) Plaintiff estimated that he could sit for thirty minutes to an hour before he would have to get up and do something else. (AR 48.) Plaintiff estimated that he would have to take 20-30 minute breaks before getting back on task. (AR 49.)
Plaintiff suffered a heart attack in 2010. (AR 45-46.) Plaintiff stated that the deprivation of oxygen to his brain during the episode caused memory and cognition problems. (AR 46.) Plaintiff stated that if he were told to perform three tasks at work, he would forget the second and third tasks by the time he was done performing the first. (AR 46.) Plaintiff has trouble performing detailed work due to his memory. (AR 47.) Plaintiff relies on his children to remember to take his medication. (AR 47.)
Thomas Dachelet testified as the vocational expert ("the VE") at the hearing before the ALJ. (AR 53.) The VE classified Plaintiff's past work as "trucking" (medium, SVP 4, semi-skilled). (AR 54.) The VE noted that the unloading and loading done by Plaintiff was medium to heavy work. (AR 54.) Plaintiff also worked as a "welder, combination welder" (medium SVP 6, skilled). (AR 54.) The VE noted that this work was very heavy as performed. (AR 54.) The VE also indicated that there was some transferability of skills. (AR 54.)
The ALJ presented the VE with the following first set of hypothetical limitations:
(AR 54.) The VE testified that a person with such limitations could not perform Plaintiff's past work, but could perform other work, approximately one-third of all the jobs performed at the light level. (AR 54-55.) The VE specifically identified jobs such as "packing line worker," "garment sorter," and "ampule filler." (AR 55.)
The ALJ presented the VE with the following second set of hypothetical limitations:
(AR 55.) The VE testified that a person with such limitations could perform the full range of sedentary, unskilled jobs. (AR 55.) The VE specifically identified jobs such as "leaf tier," "ampule sealer," and "weight tester." (AR 55.)
The ALJ presented the VE with a third set of hypothetical limitations, which was identical to the second set but with the additional limitation of only being able to perform simple, routine tasks. (AR 56.) The VE testified that the additional limitation would not cause any change. (AR 56.)
The ALJ presented the VE with a fourth set of hypothetical limitations, which was identical to the third set but with the additional limitation that the person requires additional supervision and two to four breaks of 30 minutes per day. (AR 56.) The VE testified that such a person could not perform any jobs. (AR 56.)
Plaintiff's attorney presented the VE with a fifth set of hypothetical limitations:
(AR 56-57.) The VE testified that a person with such hypothetical limitations could not perform any jobs. (AR 57.)
The administrative record includes medical records from St. Agnes Medical Center (AR 239-264, 317-327, 408-1004), records from Orosi Urgent Care (AR 265-275, 1005-1048), an April 28, 2011 Residual Functional Capacity Assessment from Dr. S. Clancey, M.D. (AR 276-280), a May 2, 2011 Case Analysis from Karin P. Gillin (AR 281-282), records from Hematology Oncology Medical Group (AR 283-316, 364-399), a September 1, 2011 Psychological Consultative Examination Report from Dr. Richard Engeln, Ph.D (AR 328-337), a September 27, 2011 Case Analysis from Dr. A. Lizarraras, M.D. (AR 343-345), an October 18, 2011 Psychiatric Review Technique Form from Dr. J.D. Schwartz (AR 346-359), an October 18, 2011 Residual Functional Capacity Assessment from Dr. J.D. Schwartz (AR 360-363), an October 3, 2012 medical opinion from Dr. Tejwant S. Shillon, M.D. (AR 400-401), an October 3, 2012 Cardiac Medical Source Statement from Dr. Tejwant S. Dhillon, M.D. (AR 402-407), and records from Community Regional Medical Center (AR 1049-1074). The medical records will be discussed in more detail below as pertinent to the Court's analysis.
The ALJ made the following findings of fact and conclusions of law:
(AR 19-26.)
An individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). The Court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error."
Plaintiff argues that the ALJ erred at Step Two of the sequential analysis by failing to determine that Plaintiff's borderline intellectual functioning was a "severe impairment." Plaintiff contends that the ALJ erred by failing to follow the Social Security Regulation's "Psychiatric Review Technique" ("PRT") process in assessing Plaintiff's borderline intellectual functioning.
"In step two of the disability determination, an ALJ must determine whether the claimant has a medically severe impairment or combination of impairments."
The Social Security Regulations expressly require that the application of the PRT be documented by the ALJ. 20 C.F.R. § 404.1520a(e);
In this case, the ALJ did not document the application of the PRT at Step Two or Step Three of the sequential analysis. The ALJ did not mention Plaintiff's borderline intellectual functioning at Step Two or Step Three.
The record does include a Psychiatric Review Technique Form ("PRTF") authored by Dr. J.D. Schwartz. (AR 346-359.) This PRTF was expressly mentioned and discussed by the ALJ in the written opinion, albeit at Step Five of the Sequential Analysis and not at Step Two. (AR 23.)
The Court finds that any error committed by the ALJ in failing to append a completed PRTF to the written decision or incorporate its mode of analysis was harmless. While the ALJ failed to mention Plaintiff's borderline intellectual functioning at Step Two and Step Three of the analysis, the ALJ did conduct an in-depth analysis of Plaintiff's intellectual functioning at Step Five. "[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims."
Furthermore, the ALJ sufficiently incorporated the PRT mode of analysis in her findings and conclusions, albeit the analysis was done at Step Five rather than at Step Two and Three. At the Step Five stage, the ALJ considered Plaintiff's borderline intellectual functioning. The ALJ discussed the degree of functional limitation in the four functional areas in assessing Dr. Schwartz's PRTF with Dr. Engeln's Psychological Evaluation. The ALJ determined the severity of the mental impairment by adopting Dr. Engeln's opinion and finding that Plaintiff suffered no limitations in any functional area. The ALJ thereby concluded Plaintiff's borderline intellectual functioning was a non-severe impairment. Accordingly, the ALJ applied the correct technique required under 20 C.F.R. § 404.1520a. The fact that the ALJ's analysis took place at Step Five rather than Step Two is not grounds for reversal. The Court finds no error in the ALJ's analysis.
Plaintiff argues that the ALJ erred by failing to incorporate Plaintiff's limitations associated with his borderline intellectual functioning in Plaintiff's residual functional capacity. Plaintiff argues that the ALJ erred in rejecting the medical opinion of Dr. Schwartz.
In assessing Plaintiff's residual functional capacity, the ALJ considered opinions regarding Plaintiff's mental limitations from Dr. Richard Engeln, Ph.D and Dr. J.D. Schwartz. (AR 22-23.) The ALJ also considered Plaintiff's subjective reports regarding his own limitations.
"Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)."
"The opinion of an examining physician is . . . entitled to greater weight than the opinion of a nonexamining physician."
Dr. Engeln authored a Psychological Evaluation dated September 1, 2011. (AR 328-337.) Dr. Engeln indicated that his evaluation of Plaintiff included an individual interview and administration of the following psychological tests: the Wechsler Adult Intelligence Scale 4th Edition, the Wechsler Memory Scale IV, the Bender-Gestalt Test II, the Mental Status Exam, and the Diagnostic History. (AR 328.) Dr. Engeln described Plaintiff's test results in Verbal Comprehension as "low average," in Perceptual Reasoning as "high borderline," in Working Memory as "high borderline," in Processing Speed "low average," and in Full Scale IQ "borderline." (AR 331.) Plaintiff's scores in memory tests were borderline and low average. (AR 331.) Dr. Engeln wrote that "[o]n the present interview Mr. Cardenas presented with no evidence of any mental or emotional illness" and "[v]erbally, cognitively, and socially Mr. Cardenas is capable of job adjustment, consonant with his education and work history." (AR 332.) Dr. Engeln further wrote that Plaintiff "is able to receive instructions that are multidimensional and deal with the normal social exchanges of job adjustment. Restrictions to job adjustment would be medical-physical in nature." (AR 332.) Dr. Engeln wrote that Plaintiff had "[n]o restrictions" in all categories. (AR 332-333.)
Dr. Schwartz authored a Psychiatric Review Technique and Residual Functional Capacity Assessment dated October 18, 2011. (AR 346-362.) Dr. Schwartz wrote that Plaintiff suffers from "Mild" restriction of activities of daily living and "mild" difficulties in maintaining social functioning. (AR 356.) Dr. Schwartz indicated that Plaintiff suffers from "moderate" difficulties in maintaining concentration, persistence, or pace. (AR 356.) Dr. Schwartz wrote that he disagreed with Dr. Engeln's report:
(AR 358.) Dr. Schwartz indicated that Plaintiff was "moderately limited" in the ability to understand and remember detailed instructions, the ability to carry out detailed instructions, and the ability to maintain attention and concentration for extended periods. (AR 360.) Nonetheless, Dr. Schwartz wrote that Plaintiff is "capable of understanding and remembering simple instructions," and "is capable of carrying out simple instructions and able to maintain concentration and attention over extended periods for simple tasks." (AR 362.)
The ALJ adopted Dr. Engeln's opinion regarding Plaintiff's mental limitations and rejected Dr. Schwartz's opinion. The ALJ noted that Dr. Schwartz's opinion is not considered to be an opinion from an examining source. (AR 23.) The ALJ further noted that Dr. Engeln's opinion is considered to be an opinion from an examining source. (AR 24.) Accordingly, by default, Dr. Engeln's opinion is entitled to greater weight.
Furthermore, the ALJ gave more weight to Dr. Engeln's opinion than Dr. Schwartz's opinion because Dr. Schwartz's opinion was not entirely consistent with the record as a whole. (AR 23.) The ALJ noted Plaintiff's ability to drive a car for two hours or more at a time. (AR 23.) The ALJ further noted that Dr. Engeln's opinions were more consistent with the record as a whole, including Plaintiff's daily activities of providing child care, driving, and automobile maintenance. (AR 24.) The ALJ also noted that Dr. Schwartz's opinion regarding Plaintiff's limitations associated with carrying out simple instructions presented a "moot question" because the VE testified that a hypothetical individual could still work with that additional limitation. (AR 23-24.)
The ALJ further noted that Plaintiff's subjective testimony was not fully credible because he and his sister gave inconsistent statements regarding Plaintiff's limitations. (AR 23.) The ALJ noted that Plaintiff denied being able to fish due to his impairments, while his sister reported that Plaintiff fishes for several hours at a time. (AR 23.)
Plaintiff raises several arguments pertaining to the ALJ's assessment of Plaintiff's mental limitations. First, Plaintiff argues that the ALJ's failure to assign any mental limitations in Plaintiff's residual functional capacity arising from Plaintiff's borderline intellectual functioning was "deficient as a matter of law because it failed to take into account symptoms and limitations which reasonably resulted from these well documented mental conditions." Plaintiff further argues that the ALJ failed to "assess the severity" of Plaintiff's borderline intellectual functioning. This argument is factually inaccurate. The ALJ considered Plaintiff's borderline intellectual functioning in assessing the medical opinions offered by Dr. Engeln and Dr. Schwartz. The ALJ chose to adopt the opinion of Dr. Engeln, who acknowledged Plaintiff's borderline intellectual functioning but concluded that Plaintiff's borderline intellectual functioning would present "no restriction" in all categories considered in the residual functional capacity assessment. Plaintiff appears to suggest that any claimant with borderline intellectual functioning must, as a matter of law, also possess restrictions reflected in the residual functional capacity related to the borderline intellectual functioning. Plaintiff cites no authority for this proposition. Dr. Engeln's report serves as evidence that, in Dr. Engeln's opinion, Plaintiff's borderline intellectual functioning does not substantially affect Plaintiff's ability to work.
Plaintiff argues that the ALJ erred in giving less weight to Dr. Schwartz's opinion. The Court rejects Plaintiff's arguments. As an initial matter, Dr. Engeln was an examining physician and Dr. Schwartz was a non-examining physician. Therefore, by default, Dr. Engeln's opinion is entitled to more weight.
Furthermore, the ALJ provided additional, valid, reasons to reject Dr. Schwartz's opinion. Plaintiff argues that the ALJ erred in rejecting Dr. Schwartz's opinion that Plaintiff suffered moderate deficiencies in concentration, persistence, and/or pace by citing Plaintiff's activities of daily living. Specifically, the ALJ noted that Dr. Schwartz's finding was inconsistent with the fact that Plaintiff could drive for two hours or more at a time. Plaintiff argues that an activity of daily living cannot serve as the basis of rejecting a limitation in the category of concentration, persistence, or pace because there exists a separate category for "restrictions of activities of daily living. In other words, it appears that Plaintiff's argument is that, since the residual functional capacity assessment form uses two separate categories for "activities of daily living" and for "maintaining concentration, persistence, or pace," the evidence relevant to each category must somehow be mutually exclusive, i.e., evidence relevant to activities of daily living cannot be relevant to maintaining concentration, persistence, or pace, and vice versa. This argument makes no logical sense and Plaintiff cites no authority for this proposition. The fact that Plaintiff can drive and can drive for extended periods of time serves as evidence relevant to both categories as it is both an activity of daily living as well as an activity that requires concentration, persistence, or pace. This is particularly true considering that the evidence showed that Plaintiff could drive for two hours at a time, demonstrating an ability to maintain sustained concentration on a single task for an extended period of time. The Court finds that the ALJ's decision to reject Dr. Schwartz's opinion is supported by substantial evidence.
Plaintiff also challenges the ALJ's reliance on Plaintiff's fishing hobby as demonstrating an ability to maintain concentration, persistence, or pace. Plaintiff contended that he used to fish more often "but lately it's pretty much not much." However, the ALJ cited Plaintiff's own function report, where he wrote that he fishes once a week, and a third party a third party function report from Plaintiff's sister, where she stated that Plaintiff goes fishing "monthly 2-3 hours," as evidence that Plaintiff goes fishing fairly frequently. (AR 196, 204.) The Court finds that Plaintiff's ability to go fishing for 2-3 hours at a time serves as substantial evidence to reject Dr. Schwartz's opinion regarding Plaintiff's ability to maintain concentration, persistence and pace.
Plaintiff also argues that the ALJ relied on activities which predated Plaintiff's heart attack, such as Plaintiff's graduation from high school, to reject Dr. Schwartz's opinion. While the Court acknowledges that Plaintiff's high school graduation may not be particularly relevant in determining the effect Plaintiff's 2010 heart attack had on Plaintiff's cognitive abilities, any error by the ALJ was harmless. The ALJ cited substantial evidence to reject Dr. Schwartz's opinion, which included the opinion of an examining doctor, Dr. Engeln, as well as Plaintiff's reported daily activities. Accordingly, the ALJ did not err in his assessment of the medical evidence.
Finally, Plaintiff repeatedly argues that the ALJ erred by failing to assess Plaintiff's limitations in the categories of specific functional categories, namely concentration, persistence and pace. Plaintiff appears to misunderstand the ALJ's written opinion. The ALJ did assess Plaintiff's limitations in specific functional categories. The ALJ expressly acknowledged Dr. Schwartz's opinions regarding Plaintiff's limitations in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. (AR 23.) The ALJ did not ignore these functional limitations, the ALJ rejected Dr. Schwartz's opinion in favor of Dr. Engeln's opinion, who opined that Plaintiff did not have any restrictions or limitations in any functional categories. (AR 332-333.)
Based upon the foregoing, the Court finds that the ALJ did not err in the assessment of Plaintiff's mental limitations in the residual functional capacity.
Plaintiff argues that the ALJ erred by failing to include several nonexertional physical limitations in Plaintiff's residual functional capacity. Plaintiff argues that the ALJ erred in failing to include a limitation in the residual functional capacity that Plaintiff be able to periodically alternate between sitting and standing or walking at will. Plaintiff also argues that the ALJ failed to include a limitation regarding no moderate exposure to cigarette smoke.
In addition to the legal standards set forth above, the following legal standards are relevant to the assessment of medical opinions from treating physicians. "[W]here the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for `clear and convincing' reasons." Lester, 81 F.3d at 830 (citing
On April 28, 2011, Dr. S. Clancey, M.D. authored a Physical Residual Functional Capacity Assessment. (AR 276-280.) Dr. Clancey was a non-treating, non-examining physician. Dr. Clancey opined that Plaintiff could occasionally lift/carry up to 20 pounds and could frequently lift/carry up to 10 pounds. (AR 277.) Dr. Clancey opined that Plaintiff could stand or walk at least 2 hours in an 8-hour work day and sit about 6 hours in an 8-hour work day. (AR 277.) Dr. Clancey further opined that Plaintiff could only occasionally climb ramps/stairs and ladders/ropes/scaffolds and only occasionally stoop, kneel, crouch and crawl. (AR 278.) Dr. Clancey indicated that Plaintiff should avoid concentrated exposure to hazards such as machinery and heights. (AR 279.)
On September 27, 2011, Dr. A. Lizarraras, M.D. authored a Physical Residual Functional Capacity Assessment. (AR 338-342.) Dr. Lizarraras was a non-treating, non-examining physician. Dr. Lizarraras' assessment was identical to Dr. Clancey's assessment.
Dr. Tejwant S. Dhillon authored an undated "Medical Opinion Re: Ability to do Work-Related Activities (Physical)." (AR 400-401.) Dr. Dhillon was a treating physician. Dr. Dhillon indicated that Plaintiff had no lifting or carrying limitations. (AR 400.) Dr. Dhillon indicated that Plaintiff could stand/walk about 4 hours during an 8-hour day and sit about 4 hours in an 8-hour day. (AR 400.) Dr. Dhillon indicated that Plaintiff does not need the opportunity to shift "at will" from sitting and standing. (AR 401.) Dr. Dhillon found no limitations in Plaintiff's ability to twist, stoop, crouch, climb stairs, or climb ladders. (AR 401.)
On October 3, 2012, Dr. Dhillon authored a "Cardiac Medical Source Statement." (AR 402-407.) In response to the question "Does your patient need a job that permits shifting positions at will from sitting, standing or walking?" Dr. Dhillon checked the boxes for both "Yes" and "No." (AR 403.) Dr. Dhillon again found no limitations in Plaintiff's ability to twist, stoop, crouch/squat, climb stairs, and climb ladders. (AR 404.) Dr. Dhillon indicated that Plaintiff could "avoid even moderate exposure" to cigarette smoke. (AR 404.)
The administrative record also includes a loose page, which appears to be part of the undated report from Dr. Dhillon. (See AR 407.) On this page, Dr. Dhillon indicated that Plaintiff has no restrictions in reaching, handling, fingering, feeling or pushing/pulling. (AR 407.) Dr. Dhillon also indicated that Plaintiff did not suffer from any environmental restrictions, which contrasts with the October 3, 2012 report where Dr. Dhillon wrote that Plaintiff should avoid moderate exposure to cigarette smoke. (AR 407.)
The ALJ largely adopted the opinions of Dr. Dhillon. (AR 24.) The ALJ treated some of Dr. Dhillon's opinions as "errors." Specifically, the ALJ noted that Dr. Dhillon indicated that Plaintiff's condition would not last longer than 12 months, which the ALJ treated as a typographical error by Dr. Dhillon because, by that time, Plaintiff's condition had already lasted longer than 12 months. The ALJ also noted that in one report, Dr. Dhillon opined that Plaintiff had no limitations in how much he could lift and carry, which the ALJ attributed as another typographical error or oversight. With the exception of these errors, the ALJ adopted Dr. Dhillon's opinion. However, the ALJ did not discuss the discrepancy between the two reports from Dr. Dhillon regarding whether Plaintiff needed accommodation to shift between sitting and standing/walking "at will" in the workplace. The ALJ also did not discuss the discrepancy in terms of environmental restrictions and exposure to cigarette smoke. The residual functional capacity did not include either limitation.
The ALJ rejected the opinions of the consultative physicians because they did not examine the Plaintiff and the ALJ found their opinions to be less consistent with the record.
Plaintiff argues that the ALJ's residual functional capacity assessment should have included several nonexertional physical limitations, including the ability to shift between standing and walking "at will," avoiding moderate exposure to cigarette smoke, and only occasionally climbing, stooping, kneeling, crouching and crawling, and avoiding hazards such as machinery and heights.
As a treating physician, Dr. Dhillon's medical opinion is entitled to far more deference than the opinions of Dr. Lizarraras and Dr. Clancey, who were non-treating, non-examining physicians.
However, the Court notes that Dr. Dhillon's form questionnaire did not include questions asking about any limitations in kneeling or crawling nor did it include a question inquiring about limitations related to exposure to machinery and heights. Accordingly, the ALJ erred by failing to cite valid reasons to reject Dr. Lizarraras and Dr. Clancey's opinions regarding Plaintiff's limitations in those areas.
It is worth noting that these questions are typically found in standardized questionnaires in the Social Security context and the form questionnaire used by Dr. Dhillon appears to be one that was provided by Plaintiff's attorney at the administrative level.
Moreover, the Court further finds that the ALJ erred by failing to resolve the internal inconsistency in Dr. Dhillon's reports regarding exposure to cigarette smoke and whether Plaintiff must be able to sit and stand "at will." Dr. Dhillon's two reports offered differing opinions as to these categories of limitations. The ALJ should have provided some analysis as to why he chose one report over the other, particularly in this situation where one of the reports was undated and it was unclear which report was more recent. Again, to the extent that these reports were submitted by Plaintiff's counsel at the administrative level, the Court admonishes Plaintiff's counsel for failing to raise the issue of the inconsistencies at the administrative level.
Defendant argues that any error by the ALJ in assessing limitations regarding the ability to kneel and crawl, the exposure to hazards, and exposure to cigarette smoke is harmless. The Court acknowledges that the first hypothetical presented to the VE at the hearing before the ALJ appears to encompass a sit/stand "at will" option. (AR 54-55.) However, the remaining limitations are not presented to the VE in a complete hypothetical.
Defendant argues that the Dictionary of Occupational Titles ("DOT") does not indicate that any of the jobs identified by the VE (packing line worker, garment sorter, and ampule filler) involve kneeling, crawling, exposure to hazards, or exposure to cigarette smoke. However, the absence of any mention of kneeling, crawling, exposure to hazards or exposure to cigarette smoke in the DOT job description does not, to the Court's knowledge, conclusively establish that those abilities are not required for those jobs. Accordingly, it appears that this action must be remanded for further administrative proceedings.
Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.
Remand for further administrative proceedings is necessary to resolve the internal discrepancy in Dr. Dhillon's reports regarding whether Plaintiff requires accommodation that allows him to sit/stand "at will" and whether Plaintiff must avoid moderate exposure to cigarette smoke. Further administrative proceedings are also necessary to determine whether there exist a substantial number of jobs which Plaintiff can perform.
Based upon the foregoing, the Court finds that the ALJ erred by failing to cite valid reasons to reject Dr. Lizarraras and Dr. Clancey's opinions regarding Plaintiff's ability to kneel and to crawl, and whether Plaintiff must avoid concentrated exposure to hazards. Further, the Court finds that the ALJ erred by failing to resolve the internal inconsistency in Dr. Dhillon's reports regarding whether Plaintiff requires accommodation that allows him to alternate between sitting and standing at will and whether Plaintiff must avoid even moderate exposure to cigarette smoke.
Accordingly, it is HEREBY ORDERED that:
IT IS SO ORDERED.
