BETH LABSON FREEMAN, District Judge.
Plaintiff Anna Verduzco appeals a final decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Before the Court are the parties' cross-motions for summary judgment, which have been fully briefed. Upon consideration of the briefing
Plaintiff, a United States citizen, was born on December 14, 1965. Admin. R. ("AR") 106. She completed the twelfth grade and most recently worked as an apartment manager. AR 126. She also has past relevant work as a driver. Id. She is married and has six children ranging from grade school age to adult. AR 32.
On March 21, 2010, Plaintiff went to the O'Connor Hospital Emergency Department because she was experiencing pain in her right hip that was so bad that she could not walk. AR 199-202. Plaintiff had been experiencing pain in her right hip for approximately five years, since the birth of one of her children, but on the day of the Emergency Department visit the pain had worsened to the point where her right leg would not bear weight. Id. Plaintiff was diagnosed with acute exacerbation of chronic right hip pain. Id.
Plaintiff was referred to orthopedic surgeon Dr. Bruce Huffer. AR 232. Dr. Huffer saw Plaintiff for an orthopedic consultation on April 7, 2010 — Plaintiff's asserted disability onset date — at which time he observed limited motion of the right hip, as well as pain and tenderness in the hip and groin area. Id. Dr. Huffer ordered an MRI, which revealed significant arthritic changes and small cysts about the hip joint. AR 233. Dr. Huffer performed a total replacement of Plaintiff's right hip on June 24, 2010. AR 245-47, 304.
Plaintiff followed up with Dr. Huffer from July 2010 through February 2011. AR 235-44. Plaintiff recovered well from the surgery, but starting in September 2010 she developed pain in the right buttock area. AR 239-44. Dr. Huffer ordered x-rays for Plaintiff's right hip, which he reviewed in December 2010, but he did not observe anything abnormal that would explain Plaintiff's symptoms. AR 241-42.
In January 2011, Plaintiff was seen at O'Connor Hospital Emergency Department for pain. AR 243. After speaking with Plaintiff's husband on the telephone regarding that Emergency Department visit, Dr. Huffer concluded that Plaintiff should see either an orthopedic surgeon, specifically a subspecialist for the hip or back area, or a pain management physician. AR 243. Dr. Huffer ended up referring Plaintiff to both Dr. Morteza Farr, D.O., a board certified orthopedic surgeon/fellowship trained spinal surgeon, and Dr. Tuyen Ngo, M.D. AR 252, 254.
Dr. Farr saw Plaintiff on January 31, 2011 for an evaluation. AR 314-16. Dr. Farr noted that a prior x-ray of the right hip showed the prosthesis with excellent alignment. AR 314. However, Plaintiff was walking with a cane and complaining of severe pain. AR 314-15. Dr. Farr determined that an MRI of the lumbar was appropriate. AR 315. Dr. Huffer reviewed the MRI and observed that it revealed "multi-level degenerative disc disease, but especially at L5-S1," "spondylolisthesis of L5 on S1 with bilateral pars fractures," and resulting "fairly significant neural impingement right and left sided." AR 244. Dr. Huffer met with Plaintiff and explained those results to her using a back model. Id. Dr. Huffer concluded that "[c]ertainly the MRI findings may explain not only the symptoms into the right buttock hip area but also of course the back symptoms." Id. Dr. Huffer recommended that Plaintiff continue to follow with Dr. Farr and Dr. Ngo. Id.
Plaintiff saw Dr. Farr for a follow-up evaluation on March 25, 2011. At that time, Plaintiff was still walking with a cane. AR 341. Dr. Farr stated that Plaintiff had multiple problems with her back, including "degenerative disc at L5-S1 with pars defect and severe neuroforaminal stenosis," which Dr. Farr opined "could be contributing to some of the pain that she has in her back and hip area." Id. Dr. Farr explained to Plaintiff that it was unclear whether her back issues could be resolved by surgery. AR 342. Dr. Farr recommended that Plaintiff try a transforaminal epidural injection at L5 bilaterally, and indicated that if the injection gave Plaintiff significant relief, that would be a good indicator that surgery would be effective. Id.
On April 14, 2011, Plaintiff filed an application for a period of disability and disability insurance benefits as well as an application for supplemental security income. AR 106-117. In both applications, Plaintiff claimed disability as of April 7, 2010 — the date of her initial consultation with Dr. Huffer — due to hip and spine pain. AR 106-17, 125.
Plaintiff pursued the injection that Dr. Huffer had recommended through the Stanford University Pain Management Clinic, where she was seen on April 27, 2011. AR 344-47. Dr. Farr saw Plaintiff for a follow-up on June 10, 2011. AR 366-67. Dr. Farr observed that Plaintiff had done well after the injection, but that "the pain has come back as expected," and that Plaintiff was walking with a cane. Id. Because Plaintiff had done well with the injection, Dr. Farr recommended back surgery. AR 367.
On June 23, 2011, Dr. Sadda Reddy, MD, a non-examining medical consultant retained by the Social Security Administration, completed a Physical Residual Functional Capacity assessment ("RFC assessment") and an accompanying narrative case analysis. AR 354-62. Dr. Reddy reviewed Plaintiff's medical records but did not meet or examine Plaintiff. Id. Dr. Reddy checked the boxes on the RFC assessment indicating that Plaintiff could "frequently lift and/or carry" 10 pound items; stand and/or walk for a total of at least two hours in an eight hour workday, with use of a medically required hand-held assistive device; sit for a total of about six hours in an eight hour workday, with alternation between sitting and standing every thirty minutes to relieve pain and discomfort; and occasionally climb, balance, stoop, kneel, crouch, and crawl. AR 355-57. Dr. Reddy concluded that based upon those limitations "a sedentary RFC with postural limitations is most appropriate." AR 356. In his narrative case analysis accompanying the RFC questionnaire, under the heading "INCONSISTENCIES WITHIN/BETWEEN REPORTS AND ALLEGATIONS," Dr. Reddy wrote as follows:
AR 361. Dr. Reddy did not cite to the record or write anything else to explain or support that credibility determination. Id.
On August 17, 2011, Dr. Farr, Plaintiff's treating physician, also completed a Physical Residual Functional Capacity assessment. AR 600-04. Dr. Farr indicated that Plaintiff could stand for about two hours in an eight hour work day and sit about four hours in an eight hour work day. AR 602. Dr. Farr also opined that Plaintiff would "often" need five to ten minute unscheduled breaks; would need to be able to shift at will from sitting, standing, or walking; and that while standing or walking she must use a cane or other assistive device "if she desire[s]." Id. In Dr. Farr's opinion, Plaintiff could never lift or carry 10 pounds or more in a work situation and rarely (1%-5% of a working day) lift less than 10 pounds. AR 603. Dr. Farr opined that Plaintiff had no limitation with reaching, handling or fingering with her hands, fingers and arms; could frequently (34%-66% of the working day) turn her head right or left, and could look up; could rarely twist her body, stoop, crouch, or climb stairs; and could never climb ladders. Id. Dr. Farr stated that Plaintiff was not a malingerer and that her impairments could be expected to last at least twelve months. AR 601. Based upon those impairments, Dr. Farr indicated that Plaintiff was incapable of even low stress jobs. Id.
On August 24, 2011, Plaintiff was admitted to O'Connor Hospital where Dr. Farr performed back surgery, specifically, a complete laminectomy, interbody fusion, and a posterolateral fusion for instrumentation at L5-S1. AR 391.
On October 11, 2011, Dr. Farr performed a follow-up evaluation of Plaintiff, noting that Plaintiff's back was "doing well" and that her right hip pain had been "resolved," but that Plaintiff had "significant pain in the left hip." AR 506. Plaintiff was able to walk without a cane at both the October 11, 2011 appointment and at a later March 20, 2012 appointment. AR 506, 648. However, Plaintiff continued to report "persistent pain in the hip as well as some pain in the lumbar area with some pain in the buttock." AR. 648. Dr. Farr observed that Plaintiff had been put "on the list" for a hip injection by Valley Medical Center. Id.
On November 16, 2011, Dr. Ernest Wong, a non-examining medical consultant retained by the Social Security Administration, completed a narrative case analysis. AR 582-83. Dr. Wong did not meet or examine Plaintiff. Id. Dr. Wong briefly summarized the record evidence, stating that Plaintiff had a history of right hip replacement and back pain but that she continued to complain about left hip pain. AR 582. Although Dr. Wong indicated "None" with respect to "INCONSISTENCIES WITHIN/BETWEEN REPORTS AND ALLEGATIONS," he concluded that Plaintiff was "[l]ess than fully credible." AR 582-83. Like Dr. Reddy, Dr. Wong did not cite any record evidence or other support for that credibility assessment. Id.
On May 15, 2012, Plaintiff was seen at the Stanford Physical Medicine and Rehabilitation Interventional Spine Center. AR 645-47. Plaintiff reported severe pain in the left hip which had gotten worse over time. AR 645. Plaintiff was taking medication for the pain, including hydrocodone and benazepril, which resulted in mild-to-moderate relief of her symptoms. Id. The Stanford physicians reviewed an MRI of Plaintiff's left hip dated November 8, 2011, which "showed cystic changes and osteophytes consistent with osteoarthritis." AR 646. The physicians found that "[t]his condition is complicated by excessive weight, L1-L5 lumbar fusion, and right hip replacement." Id. The Stanford physicians documented their impression of "[h]istory and physical examination consistent with left hip joint pain," and indicated that Plaintiff was experiencing "progressively worsening left groin and buttock pain," but stated that Plaintiff wanted to hold off on left hip replacement. Id. The physicians prescribed left hip joint injection with a follow-up for further workup and possible surgical intervention. Id.
Plaintiff was denied benefits initially and upon reconsideration. AR 52-60, 65-70. She requested a hearing before an administrative law judge ("ALJ"), which was scheduled for October 11, 2012, in San Jose, California. AR 72, 99.
On September 14, 2012, prior to the hearing, Dr. Farr wrote a letter regarding Plaintiff's progress since Dr. Farr's completion of the prior August 2011 RFC assessment. AR 628. Dr. Farr stated that Plaintiff's symptoms had not changed. Id. Dr. Farr noted that the source of Plaintiff's pain had not been identified; an injection in the hip area had not relieved Plaintiff's symptoms; one possibility was that a pedicle screw used during the back surgery might be pressing on a nerve; and a CT had been ordered to see if that was the case. Id.
The hearing before the ALJ occurred as scheduled on October 11, 2012. AR 28-51. At the hearing, the ALJ heard testimony from Plaintiff and from a vocational expert ("VE"). On October 19, 2012, the ALJ issued a written decision concluding that Plaintiff is not disabled and thus is not entitled to benefits. AR 14-22. The ALJ's decision was affirmed by the Appeals Council on April 8, 2014, making the ALJ's decision the final decision of the Commissioner of Social Security. AR 1. Plaintiff now seeks judicial review of the denial of benefits.
District courts "have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 USC § 405(g). However, "a federal court's review of Social Security determinations is quite limited." Brown-Hunter v. Colvin, — F.3d ____, 2015 WL 4620123, at *4 (9th Cir. Aug. 4, 2015). Federal courts "leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Id. (internal quotation marks and citation omitted).
A court "will disturb the Commissioner's decision to deny benefits only if it is not supported by substantial evidence or is based on legal error." Id. (internal quotation marks and citation omitted). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and must be more than a mere scintilla, but may be less than a preponderance." Rounds v. Commissioner, ___ F.3d ____, 2015 WL 4620150, at *3 (9th Cir. Aug. 4, 2015) (internal quotation marks and citations omitted). A court "must consider the evidence as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. (internal quotation marks and citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ's findings must be upheld if supported by reasonable inferences drawn from the record. Id.
Finally, even when the ALJ commits legal error, the ALJ's decision will be upheld so long as the error is harmless. Brown-Hunter, 2015 WL 4620123, at *4. However, "[a] reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the ALJ's error was harmless." Id. The court is "constrained to review the reasons the ALJ asserts." Id.
Disability benefits are available under Title II of the Social Security Act when an eligible claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
"To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2) whether the claimant has a severe medically determinable physical or mental impairment or combination of impairments that has lasted for more than 12 months; (3) whether the impairment meets or equals one of the listings in the regulations; (4) whether, given the claimant's residual functional capacity, the claimant can still do his or her past relevant work; and (5) whether the claimant can make an adjustment to other work." Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity, or RFC, referenced at step four is what a claimant can still do despite his or her limitations. Id. at 1160 n.5. "The burden of proof is on the claimant at steps one through four, but shifts to the Commissioner at step five." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
The ALJ determined that Plaintiff had acquired sufficient quarters of coverage to remain insured through June 30, 2012. AR 14. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of April 7, 2010. AR 16. At step two, the ALJ found that Plaintiff had a severe combination of impairments consisting of "osteoarthritis of the right hip, status post right total hip arthroplasty; degenerative disc disease of the lumbar spine, status post lumbar fusion; and obesity." Id. At step three, the ALJ concluded that Plaintiff's impairments did not meet or medically equal the severity of one of the listed impairments in the regulations. Id.
Prior to making his step four determination, the ALJ found that Plaintiff has the RFC to perform sedentary work with the following restrictions:
AR 17. In making that finding, the ALJ discounted the RFC assessment of Plaintiff's treating physician, Dr. Farr, and instead credited the RFC assessment of the Social Security Administration's non-examining consultant, Dr. Reddy. AR 19-20. The ALJ also found that there was "some question" as to Plaintiff's credibility with regard to the issue of her functional limitations. AR 18.
At step four, the ALJ concluded that based upon this RFC, Plaintiff could not perform her past relevant work. AR 20. However, at step five, the ALJ concluded that Plaintiff could do jobs that existed in significant numbers in the national economy. AR 21. The ALJ reached his step five determination based upon a hypothetical posed to the VE which assumed an individual of Plaintiff's age, education, and work experience, with the above RFC. AR 21-22.
Plaintiff challenges the ALJ's step five determination, asserting that in making his RFC finding the ALJ failed to give sufficient reasons, supported by the record, for discounting Dr. Farr's opinion and her own subjective pain complaints. Plaintiff points out that when her attorney posed a hypothetical to the VE which assumed an individual of Plaintiff's age, education, and work experience with the RFC as to which Dr. Farr opined, the VE stated that such an individual "could not perform past work or any competitive work." AR 49.
Plaintiff also challenges the ALJ's step three determination that her impairments do not meet or equal the severity of one of the listed impairments in the regulations. While normally the Court would address the ALJ's step three determination before his step five determination, the parties have presented those issues in reverse order. The Court addresses the issues in the order presented by the parties.
As discussed above, Plaintiff's treating physician, Dr. Farr, completed an RFC assessment on August 17, 2011 concluding that Plaintiff had significant physical limitations that would preclude her from working. AR 600-04. That RFC assessment was completed prior to Plaintiff's back surgery, but Dr. Farr's subsequent treatment records document Plaintiff's continuing back and hip issues after her back surgery. AR 648. In September 2012, shortly before the administrative hearing, Dr. Farr wrote a letter regarding Plaintiff's progress since the August 2011 RFC assessment, stating that her symptoms had "not changed." Id. The ALJ gave "little weight" to Dr. Farr's opinion and instead credited the opinions of the non-examining physicians retained by the Social Security Administration, Drs. Reddy and Wong.
"Generally, the opinion of a treating physician must be given more weight than the opinion of an examining physician, and the opinion of an examining physician must be afforded more weight than the opinion of a reviewing physician." Ghanim, 763 F.3d at 1160. "If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record, it will be given controlling weight." Id. (internal quotation marks, citation, and brackets omitted). If the treating physician's opinion is contradicted by the opinion of another physician, the ALJ may reject the treating physician's opinion but only based upon "specific and legitimate reasons that are supported by substantial evidence." Id. (internal quotation marks and citation omitted). In determining how much weight to give a treating physician's opinion, the ALJ must consider the following factors: the length of the treatment relationship and the frequency of examination by the treating physician, the nature and extent of the treatment relationship between the patient and the treating physician, the supportability of the physician's opinion with medical evidence, and the consistency of the physician's opinion with the record as a whole." Id. (internal quotation marks, citation, and brackets omitted). "In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." Id. (internal quotation marks and citation omitted).
In this case, Dr. Farr's opinion is contradicted by the opinions of Drs. Reddy and Wong. Thus on review this Court's task is to determine whether the ALJ provided "specific and legitimate reasons that are supported by substantial evidence" for rejecting Dr. Farr's opinion. The ALJ gave the following reasons for discounting Dr. Farr's opinion: "This opinion is based largely on the claimant's subjective complaints and fails to comport with the relevant medical evidence of record, including the longitudinal records from orthopedic surgeon Dr. Huffer (Exhibits 3F, 4F, and 12F)." AR 19. The Court addresses those two reasons in turn, as well as the ALJ's stated reasons for crediting the opinions of Drs. Reddy and Wong.
"If a treating provider's opinions are based to a large extent on an applicant's self-reports and not on clinical evidence, and the ALJ finds the applicant not credible, the ALJ may discount the treating provider's opinion." Ghanim, 763 F.3d at 1162. (internal quotation marks and citation omitted). "However, when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Id.
While the entire body of Dr. Farr's treatment records from January 31, 2011 through September 2012 includes objective test results and clinical observations, the August 2011 RFC assessment did indicate that the limitations stated therein were due to "sever [sic] pain." AR 601. Similarly, Dr. Farr's September 2012 progress letter, stating that Plaintiff's symptoms remained unchanged, indicated that her doctors had not been able to find a source for her pain.
In rejecting Dr. Farr's opinion as inconsistent with Dr. Huffer's records, the ALJ cited generally to Exhibits 3F, 4F, and 12F, which comprise more than 120 pages of medical records. AR 19, 231-97, 446-504. While a federal court "will not fault the agency merely for explaining its decision with less than ideal clarity," the agency still must "set forth the reasoning behind its decisions in a way that allows for meaningful review." Brown-Hunter, 2015 WL 4620123, at *4. The Ninth Circuit recently has emphasized that "[a] clear statement of the agency's reasoning is necessary because we can affirm the agency's decision to deny benefits only on the grounds invoked by the agency." Id. Because the ALJ did not specify which of the 120 pages of cited medical records he believed to be inconsistent with Dr. Farr's opinion, this Court cannot meaningfully review the ALJ's determination on that point. Accordingly, the Court concludes that the ALJ did not articulate specific and legitimate reasons, supported by substantial evidence, for rejecting Dr. Farr's opinion.
The Commissioner argues that substantial evidence supported the ALJ's rejection of Dr. Farr's opinion, arguing that an ALJ may discount a treating physician's opinion that is in the form of a checklist; that Dr. Farr's RFC assessment was internally inconsistent because it stated that Plaintiff needed to use a cane if she desires instead of stating whether or not use of the cane was medically necessary; and that Dr. Farr's statement that he did not know the cause of Plaintiff's pain constituted an admission that Plaintiff's reported pain is not supported by objective evidence. Def.'s Mot. at 11-12, ECF 12. The Commissioner's argument ignores the fact that the ALJ did not cite any of those reasons for rejecting Dr. Farr's opinion. This Court may not make independent findings based upon record evidence to bolster the ALJ's decision. Brown-Hunter, 2015 WL 4620123, at *4. The Court is "constrained to review the reasons the ALJ asserts." Id.
The ALJ credited the opinions of the non-examining agency physicians, Drs. Reddy and Wong, finding that those opinions were "consistent with the relevant medical evidence of record, including longitudinal records from Dr. Huffer at Exhibits 3F, 4F, and 12F." AR 20. The ALJ stated that "[f]or this reason, I have adopted the residual functional capacity set forth by state agency medical consultant Sadda Reddy, M.D., in his physical residual functional capacity assessment of June 23, 2011." Id. The ALJ's general statement that the opinions of Drs. Reddy and Wong were consistent with Dr. Huffer's records, which comprise more than 120 pages of medical records, is not specific enough to provide for any meaningful review and accordingly does not provide an adequate basis for rejecting the opinion of Dr. Farr. See Brown-Hunter, 2015 WL 4620123, at *4.
Accordingly, the Court concludes that the ALJ failed to provide specific and legitimate reasons, supported by substantial evidence in the record, for discounting the opinion of Plaintiff's treating physician, Dr. Farr, in favor of the opinions of Drs. Reddy and Wong.
Plaintiff testified at the administrative hearing that she has pain in her mid-back, lower back, at both hips, at both buttocks, and in her left knee. AR 40. She stated that she did not have any back problems until her right hip replacement surgery, but after that surgery her back started hurting. AR 43. She then had back surgery, which she characterized as a "failed surgery," and stated that the doctors were thinking of removing the screws from her lower back. Id. Plaintiff indicated that she was open to having another surgery to remove the screws if it would relieve her pain, which she stated was a seven on a scale of one to ten. Id. She testified that she has been using a cane, which was given to her by a medical provider, since before her right hip surgery in June 2010. AR 41. She uses the cane all the time, inside and outside of the house. Id.
Plaintiff testified that she can stand for about five minutes at a time and sit for about twenty minutes at a time, and that normally she spends much of her day lying down. AR 42. She does not think that she could sit for more than two hours total in an eight hour workday, and she does not think that she could stand or walk more than one hour total in an eight hour workday. AR 45. Plaintiff no longer drives, although she did drive before her medical problems started. Id.
The ALJ concluded that there was "some question as to the claimant's credibility with regard to the issue of her alleged functional limitations." AR 18. "In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis." Ghanim, 763 F.3d at 1163 (internal quotation marks and citation omitted). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (internal quotation marks and citation omitted). "If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection."
At the first step of the credibility analysis, the ALJ concluded that Plaintiff presented evidence of medically determinable impairments that reasonably could be expected to cause the alleged symptoms. AR 18. However, at the second step of the analysis the ALJ found that Plaintiff's "statements concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent they are inconsistent with" the RFC determined by the ALJ. Id. The ALJ made no finding of malingering. Id. Under the standards articulated above, the ALJ's adverse credibility determination may be upheld only if he has given "specific, clear and convincing reasons," supported by identification of specific evidence in the record, for the determination.
The first reason given by the ALJ for his adverse credibility determination is the existence of "various inconsistencies in the record." AR 18. That reason does not meet the "clear and convincing" standard. The Ninth Circuit has held that "[g]eneral findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Brown-Hunter, 2015 WL 4620123, at *5 (internal quotation marks and citation omitted).
The ALJ next stated that Plaintiff's claims regarding the extent and effect of her pain were "contradicted by the claimant's testimony that she acts as the primary caregiver for one or more minor children and can perform some activities of daily living, such as grocery shopping, with assistance from her adult daughter and sister-in-law." AR 18 (citing Audio Hearing). The ALJ opined that "[a]ctivity at this level is inconsistent with the claimant's allegations regarding her functional limitations and corresponding ability to work." Id. "Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination." Ghanim, 763 F.3d at 1165. However, in implying that Plaintiff could perform the physical tasks normally attendant upon parenthood, and stating that Plaintiff could perform daily activities of living such as grocery shopping, it appears that the ALJ misconstrued Plaintiff's testimony. Plaintiff's testimony was as follows:
AR 44.
Dr. Reddy's narrative case analysis, which pre-dated Plaintiff's back surgery, stated that Plaintiff could "do dishes, fold clothes and cook." AR 362. It may be that the ALJ intended to rely upon Dr. Reddy's statement regarding Plaintiff's ability to do activities of daily living but erroneously attributed the source of that belief to Plaintiff's testimony. However, even if the ALJ had cited to Dr. Reddy's statement, there is no indication in Dr. Reddy's narrative what records formed the basis for the statement about Plaintiff's ability to do dishes, fold clothes, and cook. Interestingly, Dr. Reddy did not state that Plaintiff could do grocery shopping, which the ALJ cited as the activity of daily living that calls Plaintiff's credibility into question. Accordingly, the ALJ's citation to Plaintiff's testimony does not constitute a clear and convincing reason, supported by substantial evidence, for the adverse credibility determination.
Finally, the ALJ stated that "considering the claimant's medical records as a whole, her testimony concerning her alleged functional limitations, and the opinion evidence, I conclude the claimant's subjective complaints and alleged limitations are not fully persuasive." AR 20. As noted above, this type of general reference to the record does not constitute a specific, clear and convincing reason for discounting a claimant's subjective pain complaints. Brown-Hunter, 2015 WL 4620123, at *5.
The ALJ gave no other reasons for discounting Plaintiff's claims regarding the severity of her pain. Accordingly, the ALJ's adverse credibility determination constituted legal error. See Brown-Hunter, 2015 WL 4620123, at *6 ("Because the ALJ failed to identify the testimony she found not credible, she did not link that testimony to the particular parts of the record supporting her non-credibility determination. This was legal error.").
At step three, the ALJ determined that Plaintiff's impairments do not "medically meet or equal the severity requirements of listings 1.02 (major dysfunction of a joint(s) (due to any cause), 1.03 (reconstructive surgery or surgical arthrodesis of a major weight-bearing joint), or 1.04 (disorders of the spine), as described in the Listing of Impairments at 20 C.F.R., Part 404, subpart P, appendix 1." AR 17. The ALJ did not provide any reasons for that conclusion. Plaintiff challenges the ALJ's determination that her impairments do not meet or equal listing 1.03, which reads as follows:
20 C.F.R., Pt. 404, Subpart P, App. 1, § 1.03. Listing 1.00B2b in turn provides as follows:
20 C.F.R., Pt. 404, Subpart P, App. 1, § 1.00B2.
Plaintiff argues that she has had reconstructive surgery on a major weight-bearing joint and that even the ALJ's RFC concedes that Plaintiff cannot ambulate effectively, as it states that Plaintiff needs to use an assistive device "for prolonged ambulation over uneven terrain." AR 17. Based upon the RFC determined by the ALJ, it appears that Plaintiff's impairments may meet or equal listing 1.03. Because the ALJ did not give any reasons for his contrary finding, the Court cannot evaluate his decision on that point. The Court notes that it is not clear from the record whether the inability to ambulate effectively has lasted or is expected to last at least twelve months from onset. Dr. Farr's treatment notes indicated that Plaintiff was able to walk without a cane at an October 11, 2011 appointment and a March 20, 2012 appointment. AR 506, 648.
The Court concludes that the ALJ failed to provide specific reasons, supported by substantial evidence in the record, to support his step three determination.
Having concluded that the ALJ committed the errors discussed above, the Court must decide on an appropriate remedy.
A remand for an immediate award of benefits may be appropriate in the "rare circumstances" in which the following three requirements are met: (1) "the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; (2) "the record has been fully developed and further administrative proceedings would serve no useful purpose"; and (3) "if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Brown-Hunter, 2015 WL 4620123, at *7 (internal quotation marks and citation omitted). Even if all three requirements are satisfied, the Court "retain[s] flexibility in determining the appropriate remedy." Id. (internal quotation marks and citation omitted). The Court "may remand on an open record for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act." Id. (internal quotation marks and citation omitted).
The Ninth-Circuit's discussion of these factors in Brown-Hunter, a case similar to this one in many respects, is instructive. The claimant, Brown-Hunter, provided medical evidence that she suffered from a number of medical conditions, including (like Plaintiff in the present case) lumbar degenerative disc disease and obesity. Brown-Hunter, 2015 WL 4620123, at *1. At the administrative hearing, Brown-Hunter testified that she suffered severe back and leg pain and swelling in her feet and legs. Id. She stated that because of those symptoms she could sit for about an hour and stand for about forty-five minutes; had to lie down throughout the day because her feet and legs swelled up when she was on them too much; and could not drive long distances. Id. She also testified that her daughter purchased whatever she needed at the store. Id.
The ALJ found that Brown-Hunter had provided objective medical evidence of underlying impairments that might reasonably produce the pain and other symptoms alleged, but concluded that Brown-Hunter's testimony regarding the intensity, persistence, and limiting effects of her symptoms was not credible. Id. at *3. The ALJ determined that Brown-Hunter had the RFC to perform light work with some limitations. Id. Based upon that RFC and the testimony of a VE, the ALJ concluded at step five that Brown-Hunter could perform jobs that existed in significant numbers in the national economy and thus that Brown-Hunter was not disabled. Id. The district court affirmed the denial of benefits. Id.
The Ninth Circuit vacated, concluding that "the ALJ committed legal error by failing to specify which testimony she found not credible and why." Brown-Hunter, 2015 WL 4620123, at *8. The Court determined that the case should be remanded to the district court and then to the agency; the question was whether the remand to the agency should be for further proceedings or for an immediate award of benefits. Id. at *7-8. The Ninth Circuit had no difficulty finding that the first and third factors articulated above were satisfied, that is, that the ALJ had not provided sufficient reasons for rejecting Brown-Hunter's testimony and that had the testimony been fully credited the ALJ would have been required to find Brown-Hunter disabled. Id. at *8. However, the Court concluded that further development of the record was necessary because inconsistencies between Brown-Hunter's testimony and the medical evidence raised "crucial questions" regarding her credibility. Id.
This Court concludes that a remand for further proceedings likewise is appropriate here. As in Brown-Hunter, the first and third factors of the test articulated above are met with respect to the ALJ's step five determination. The ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's testimony and Dr. Farr's opinion (first factor), and the VE testified at the administrative hearing that an individual of Plaintiff's age, education, and work experience with the RFC provided by Dr. Farr could not perform past work or any competitive work (third factor). The ALJ also failed to provide any reasons for his step three determination, thus depriving this Court of the opportunity to conduct a meaningful review of that determination. Given the nature of the ALJ's legal errors, the Court finds that remand for further proceedings is the most appropriate remedy. Such remand will permit the ALJ to consider the medical record in light of the issues highlighted by this order and further develop the record if necessary. The Court acknowledges that remand for further proceedings rather than an immediate award of benefits will impose a further burden upon Plaintiff in the pursuit of benefits to which she believes she is entitled. However, "a reviewing court is not required to credit claimants' allegations regarding the extent of their impairments as true merely because the ALJ made a legal error in discrediting their testimony." Id. at *7. Rather, "[t]he touchstone for an award of benefits is the existence of a disability, not the agency's legal error." Id. As discussed above, this Court has determined that the ALJ failed to articulate proper reasons for his determination, but the Court has not determined whether Plaintiff in fact is disabled. The portions of the record that the Court has reviewed in addressing the issues raised by the parties would appear to support a disability finding. However, the Court could not make a disability determination sufficient to support an immediate award of benefits without undertaking an intensive de novo review of the entire and quite extensive medical record in this case. Generally, courts "leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Id. at *4. The Court has every confidence that upon remand the ALJ will make those determinations with the requisite specificity and in accordance with the Ninth Circuit's recent guidance in Brown-Hunter. Such determinations may lead to a decision awarding benefits, or not.
For the foregoing reasons, IT IS HEREBY ORDERED that:
