RONALD E. BUSH, Chief Magistrate Judge.
Pending before this Court is Petitioner Betsy Monzella's Petition for Review (Docket No. 2), seeking review of the Social Security Administration's final decision to deny her claim for Social Security Disability Insurance Benefits. See generally Pet. for Review (Docket No. 2). This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully considered the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order:
On July 15, 2013, Betsy Monzella ("Petitioner") filed an application for Disability Insurance Benefits, alleging disability beginning October 1, 2012. This claim was initially denied on September 18, 2013 and, again, on reconsideration on October 24, 2013. On October 30, 2013, Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On December 10, 2014, ALJ Lloyd E. Hartford held a hearing in Boise, Idaho, at which time Petitioner, represented by attorney Joseph F. Brown, appeared and testified. Impartial vocational expert, Cassie Mills, also appeared and testified at the same December 10, 2014 hearing.
On February 26, 2015, the ALJ issued a Decision denying Petitioner's claim, finding that she was not disabled within the meaning of the Social Security Act. Petitioner timely requested review from the Appeals Council (while also submitting additional medical records) on April 28, 2015 and, on July 18, 2016, the Appeals Council denied Petitioner's Request for Review, making the ALJ's decision the final decision of the Commissioner of Social Security.
Having exhausted her administrative remedies, Petitioner timely filed the instant action, arguing that "[t]he decision of the Commissioner is without foundation, not supported by substantial evidence, and is, in fact, contrary to the evidence presented," while also claiming that "[t]he Commissioner erred in his failure to apply the appropriate standard of law." Pet. for Review, p. 3 (Docket No. 2). In particular, Petitioner identifies the "issues of this case" as "(1) whether the ALJ gave specific and legitimate reasons in support of his weighing of the medical opinion evidence; (2) whether the ALJ gave specific, clear, and convincing reasons in support of his finding that Petitioner's allegations were not fully credible; and (3) whether the evidence submitted to the Appeals Council undermines the evidentiary basis for the ALJ's findings." Pet.'s Brief, p. 1 (Docket No. 15). Petitioner therefore requests that the Court either reverse the ALJ's decision and find that she is entitled to disability benefits, or, alternatively, remand the case for further proceedings and award attorneys' fees. See Pet. for Review, p. 3 (Docket No. 2).
To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. See 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. See 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. See Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities (see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences logically flowing from the evidence (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. See Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. See Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." See Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). See 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. See 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. See 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. See 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner "did not engage in substantial gainful activity during the period from her alleged onset date of October 1, 2012 through her date last insured of September 30, 2014." (AR 27).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. See 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. See 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. See 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: "degenerative disc disease of the spine, arthralgia of the knees, and obesity." (AR 28-29).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. See 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. See id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. See (AR 29-30).
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity ("RFC") is sufficient for the claimant to perform past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's RFC is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. See 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the RFC "to perform light work as defined in 20 C.F.R. § 404.1567(b)," including:
(AR 30-34).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of her impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that, through the date last insured, Petitioner was capable of performing past relevant work as a customer service representative/teller. See (AR 34). The ALJ then went on to find that there are also other jobs that exist in significant numbers in the national economy that Petitioner can perform, including ticket taker (light), cashier (light), parking lot attendant (light), ticket taker/counter attendant (sedentary), document preparer (sedentary), and charge account clerk (sedentary). See (AR 35-36). Therefore, based on Petitioner's age, education, work experience, and RFC, the ALJ concluded that Petitioner "was not under a disability, as defined in the Social Security Act, at any time from October 1, 2012, the alleged onset date, through September 30, 2014, the date last insured." (AR 36).
The medical opinion of a treating physician is entitled to special consideration and weight. See Rodriguez v. Bowen, 876 F.2d 759, 761 (9
Here, the ALJ found that consultative examiner James Bates, M.D.'s opinions merited "great weight," whereas treating physician Richard Manos, M.D.'s opinions merited only "little weight." (AR 34). Petitioner claims that the ALJ's elevation of Dr. Bates's opinions (and, likewise, those non-examining source opinions relying upon Dr. Bates's opinions) over those from Dr. Manos was not based on specific and legitimate reasons supported by substantial evidence in the record, given that "Dr. Manos's assessment was based on a review of objective evidence as well as his interview and examination, where[as] Dr. Bates had minimal information on which to base his assessment." Id. at p. 8. Stated differently, according to Petitioner, at the very least, the reasons for rejecting Dr. Manos's more complete opinion should apply equally to Dr. Bates's more deficient opinion. See id. at p. 11 ("If there is a question as to how the limitations were arrived at, it applies to both assessments, not just to the one more favorable to Petitioner. The ALJ's finding in this regard was neither a reasonable interpretation of the evidence, nor a legitimate reason for giving greater weight to the opinions of Dr. Bates and the non-examining sources."). As such, Petitioner submits that the ALJ improperly analyzed the medical evidence in assessing the opinions of Drs. Manos and Bates. The Court disagrees.
Within his September 2, 2014 "Physician's Assessment of Physical Activities," Dr. Manos noted that Petitioner required longer or more frequent daily rest breaks; that Petitioner's "conditions" required two or more sick days from work per month; that Petitioner could "frequently or occasionally" lift and carry 20 pounds without injury or pain; and that Petitioner could sit for four hours, stand for two to four hours, and walk two hours in an 8-hour workday (each for 30 minutes at a time). See (AR 315). Except, as noted by the ALJ, there is no underlying basis for these referenced physical limitations — especially when considering that Dr. Manos only saw Petitioner twice, and never during either visit did he perform any testing that substantiated these opinions. See (AR 34) (ALJ reasoning: "[T]he claimant reported seeing Dr. Manos only twice. The claimant did not recall speaking with Dr. Manos regarding her ability to stand and/or sit, nor did Dr. Manos send her for any testing that might be used as a basis for these opinions.") (citing hearing testimony (AR 42-111)). An ALJ may "permissibly reject . . . check-off reports that [do] not contain any explanation of the bases of their conclusions." See, e.g., Molina, 674 F.3d at 1111 (9
It is true that there are notations within Dr. Manos's limited treatment notes that Petitioner is grappling with back and leg pain. See (AR 316-19). But, importantly, whether Petitioner suffers from these impairments is not at issue here. To be clear, the ALJ found in no uncertain terms that Petitioner's degenerative disc disease of the spine and arthralgia of the knees was "severe," and that Petitioner's residual functional capacity is negatively impacted. See supra (citing AR 28-29). And, for the most part, these treatment notes reflect Petitioner's periodic subjective complaints of pain. However, largely absent from such notes are any corresponding opinions or findings from Dr. Manos (1) paralleling the opinions reached (in the "Physician's Assessment of Physical Activities") as to Petitioner's alleged functional limitations, or (2) quantifying in any consistent degree Petitioner's pain statements and resultant limitations. See, e.g., (AR 319) (Dr. Manos's July 23, 2014 treatment note: "Neurologic, motor, iliopsoas, quadriceps, hamstrings, tibialis anterior, extensor halluci longus, gastroc soleus and peroneals were tested. They were 5/5 except for the left tibialis anterior and EHL which I would rate as 4/5."). These realities support the ALJ's decision to question Dr. Manos's opinions. See Carter v. Colvin, 651 Fed. Appx. 721, 722 (9
The ALJ also noted that Dr. Manos's opinions do not exist in isolation but, rather, are inconsistent with other medical opinions in the record. See (AR 31-34). For example:
In this setting, the Court's duty is not to resolve the conflicting opinions and ultimately decide whether Petitioner is once-and-for-all disabled as that term is used within the Social Security regulations. Rather, this Court must decide whether the ALJ's decision that Petitioner is not disabled is supported by the record. On this record, there is a lack of corroboration in the medical record, alongside conflicting medical opinions which gave rise to the ALJ's decisions on how to consider the opinions of Dr. Manos. The ALJ's decision to discount and give little weight to those opinions is supported by clear and convincing, specific, and legitimate reasons for doing so. Hence, because the evidence can reasonably support the ALJ's conclusions in these respects, this Court will not substitute its judgment for that of the ALJ's, even if this Court were to have a different view. See Richardson, 402 U.S. at 401; Matney, 981 F.2d at 1019.
As the trier-of-fact, the ALJ is in the best position to make credibility determinations and, for this reason, his determinations are entitled to great weight. See Anderson v. Sullivan, 914 F.2d 1121, 1124 (9
Petitioner alleges that the pain she experienced as a result of her impairments impacted her ability to use stairs, bend down, sit or stand for long periods of time, while also affecting her ability to bathe, shave, and use the toilet. See (AR 235) ("Function Report — Adult" identifying physical abilities before impairment: "Go up stairs easily, be down on my knees to clean out cabinets and such, cannot sit for long periods of time or stand without being in a lot of pain [(now)], I could also see better. . . . I am in pain when standing in the shower, feet, legs, and back. It is difficult for me to put pressure on one leg while I shave the other — it causes pain in knees, leg, and feet. Painful sitting down [(on the toilet)] and getting up, especially knees, but back also."). Her pain also prevented her from preparing more than simple meals, carrying a laundry basket, or doing more than dusting and wiping counters off. See (AR 236). She would go shopping some weeks, but other times would have her daughter pick things up for her. See (AR 237). She had to do chores at a reduced pace to avoid aggravating her pain; had difficultly sitting down long enough to take care of her bills, read, or watch movies; and was no longer able to go for walks as she had in the past. See (AR 236-38).
Petitioner reiterated these difficulties at the December 10, 2014 hearing, testifying in response to questions posed by the ALJ and her attorney:
(AR 57-58, 61-64, 67-77).
Still, the ALJ found that Petitioner's "statements concerning the intensity, persistence and limiting effects of [her alleged] symptoms are not entirely credible," reasoning that (1) her treatment records are limited; (2) despite having "insurance issues," she cares for at least 10 stray cats; (3) her activities of daily living and medical records are contrary to the level of decreased function alleged; and (4) she has an "inconsistent work record." See (AR 30-31). Though it may be possible to appropriately challenge Petitioner's credibility, the specific reasons offered by the ALJ for doing so here are lacking under closer scrutiny.
First, even if there is a paucity of treatment records discussing the severity of Petitioner's alleged impairments, that fact must be measured in context and in this case the medical record itself is particularly limited in this respect. In other words, this is not a case where, within a voluminous medical record, only a scattering of instances of Petitioner's claimed limitations exist. Simply put, there are few treatment notes on this topic to begin with, presenting a challenge not only to confirm Petitioner's claimed conditions (as the ALJ implies), but also to reject it.
Second, at the hearing, Petitioner testified that she runs a "cat rescue." (AR 86). The ALJ implies that Petitioner's limitations are not as severe as she claims because she is able to care for cats; however, this fact also must be considered in context and the record indicates that Petitioner has not "adopted" any new cats since 2012 (presumably around the time of her alleged onset date) and would prefer to have fewer. See id. at (AR 86-87) (Q: "Yeah. Okay. So you don't do, as you sit here at the hearing today you're not involved in cat rescues? You're just keeping the ten cats that you had since 2012?" A: "Yes." Q: "So they're your pets and you're not getting rid of them?" A: "Well, I would like to give . . . some of them away to good homes. But, like I said, it's hard to find a good home."). Moreover, the ALJ leaves undiscussed the fact that the cats also belong to the Petitioner's daughter, who, actually, does most of the work caring for the animals. See (AR 86) (Petitioner testifying: "Just, like I said, a litter box. We have cats ans so, you know, I try to do, help my daughter with the litter boxes. She does most of them, but I don't think it's fair that, you know."); see also infra.
Third, the ALJ points to the above-cited "Function Report — Adult," noting that, as to her daily activities, Petitioner has "indicated that she goes shopping once or twice a week for clothing, food, and other household items." (AR 33). But Petitioner also described her need for frequent assistance from her daughter in accomplishing these tasks — mentioned in the same "Function Report — Adult" that the ALJ relies upon in his credibility determination. See, e.g., (AR 235-37); see also (AR 67-71, 86, 88, 89, 96) (Petitioner testifying to daughter's care).
Fourth, the medical records that the ALJ suggests are inconsistent with Petitioner's claims are, upon closer scrutiny, "more smoke than fire." For example:
Thus, these reasons do not offer clear and convincing explanations as to why the ALJ did not find Petitioner's testimony entirely credible.
"Social security claimants usually have one opportunity to prove their disability. If this were not the case, the administrative proceedings would become an unending merry-go-round." Coulbourn v. Astrue, 2008 WL 2413169, *8 (E.D. Cal. 2008) (internal quotation marks omitted). However, SSA regulations "permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ's decision, so long as the evidence relates to the period on or before the ALJ's decision." Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9
Where, as here, the Appeals Council considered additional evidence but denied review, the additional evidence becomes part of the record for purposes of this Court's analysis. See Brewes, 682 F.3d at 1163 ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."); accord Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9
Here, Petitioner claims that the newly-submitted evidence shows that Kurt J. Nilsson, M.D. examined Petitioner, reviewed the x-rays and MRIs of her knees, and recommended physical therapy and eventual knee replacement surgery. See Pet.'s Brief, p. 19 (Docket No. 15) (citing (AR 337-38)). From this, Petitioner argues that "Dr. Nilsson's diagnoses and recommendation demonstrates that Petitioner's knee impairment, on its own, was more significant than acknowledged by Dr. Bates, the non-examining sources, or the ALJ" and, as a result, the matter should be remanded for further proceedings. Id. at p. 19-20. Petitioner's arguments, however, miss the point.
First, there is no dispute that Petitioner has problems with her back and knees, and that such problems are severe. Indeed, the ALJ concluded as much when making his disability determination. See supra (citing (AR 28-29) (stating "aforementioned impairments" (including degenerative disc disease of the spine and arthralgia of the knees) "are considered severe because they have more than a minimal limiting effect on the claimant's ability to perform basic work activity."). Therefore, to the extent the newly-submitted evidence from Dr. Nilsson can be read to "demonstrate" the existence of Petitioner's impairments, it necessarily would not have altered the ALJ's Decision — it supports, not detracts from, the ALJ's conclusions on this issue.
Second, Dr. Nilsson's treatment notes speaks to the second step of the sequential process in that it helps identify a "medically determinable impairment or combination of impairments." See supra. Importantly, such information does not inform the fourth step of the sequential process — Petitioner's residual functional capacity to do physical work despite her degenerative disc disease and knee arthraligia. See id at (AR 30-34); see also (AR 338) ("45 minutes were spent with the patient today, more than 50% of which was spent describing diagnosis and treatment options and coordinating care."). It is on this latter, discrete point that the ALJ questioned Petitioner's credibility, not whether, in fact, Petitioner had certain severe impairments to begin with. (AR 16-19). Simply put, Dr. Nilsson's records also do not speak to the ALJ's credibility analysis and, as such, do not operate as a separate basis for remand.
The ALJ is the fact-finder and is solely responsible for weighing and drawing inferences from facts and determining credibility. See Allen, 749 F.2d at 579; Vincent ex. rel. Vincent, 739 F.2d at 1394; Sample, 694 F.2d at 642. If the evidence is susceptible to more than one rational interpretation, one of which is the ALJ's, the court may not substitute its own interpretation for that of the ALJ. Key, 754 F.2d at 1549.
However, here, the reasons given by the ALJ for questioning Petitioner's credibility are not properly supported; the case is therefore remanded for this reason. The ALJ shall revisit Petitioner's credibility for the purposes of any disability determination.
Based on the foregoing, Petitioner's request for review is GRANTED and this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum Decision and Order. See Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991).
