MARCO A. HERNANDEZ, District Judge.
Plaintiff, Arlice J. Blendheim Paap ("Plaintiff"), brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner found Plaintiff not disabled and denied her applications for Title II Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for additional proceedings.
On January 18, 2007, Plaintiff filed for DIB and SSI alleging a disability onset date of July 31, 2006, based on "back injury, diabetes, [and] knee injury." R. at 149. Plaintiff's applications were denied on March 23, 2007, and on reconsideration on July 3, 2007. R. at 10. Plaintiff subsequently requested a hearing before an administrative law judge ("ALJ") of the Social Security Administration ("SSA"). R. at 10. A hearing was held on August 5, 2009, before ALJ Philip P. Mcleod. R. at 21. On September 25, 2009, the ALJ found Plaintiff not disabled. Id. Plaintiff requested a review of the ALJ's decision, but the Appeals Council denied Plaintiff's request on August 31, 2010, making it the final decision of the Commissioner.
The parties are familiar with the medical evidence and other evidence of the record. Therefore, the evidence will not be repeated here except as necessary to explain my decision.
A claimant is disabled if he is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). Disability claims are evaluated according to a five-step procedure.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled.
In step three, the Commissioner determines whether the impairment(s) meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity ("RFC") to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work.
At step one of the sequential proceedings, the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date of July 31, 2006. R. at 13, Finding 2. At step two, the ALJ found Plaintiff's "hypertension, carpal tunnel syndrome, diabetes mellitus, cervical/lumbar disc disease, and degenerative joint disease right knee" to be "severe" impairments. R. at 13, Finding 3. At step three, the ALJ found Plaintiff's impairments did not meet or equal the requirements of a listed impairment pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1, specifically finding Plaintiff did not meet "Listings 1.02 Major dysfunction of a joint, 1.04 Disorders of the spine, 1.08 Soft tissue injury, 4.03 Hypertensive Cardiovascular Disease, 9.08 Diabetes Mellitus and SSR 02-1p Obesity." R. at 13, Finding 4. At step four, the ALJ found Plaintiff was able to perform past relevant work as vocational consultant and job coach. R. at 19, Finding 6. The ALJ also noted the vocational expert ("VE") gave the following examples of work Plaintiff could perform which existed "in significant numbers throughout the national and statewide economies": storage factory rental clerk, receptionist clerk, and information aide. R. at 26.
A court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record.
The initial burden of proof rests upon the claimant to establish disability.
Plaintiff makes the following assignments of error by the ALJ: (1) the ALJ erred by improperly dismissing her testimony and the opinions of Plaintiff's medical providers; (2) the ALJ erred at step two by finding Plaintiff's right shoulder and obesity impairments were not severe; (3) the ALJ erred at step three by finding Plaintiff did not meet or equal Listing 1.04(A); and (4) the ALJ erred at step four by finding Plaintiff was able to perform past relevant work as a vocational consultant and job coach.
Plaintiff challenges the ALJ's rejection of her testimony. The main thrust of Plaintiff's argument is that the severity of her pain and impairments clearly demonstrate she: (1) is limited by moderate pain; (2) could only perform work and some recreation with frequent episodes of pain; (3) is limited to one-half hour standing and one mile of walking; (4) has difficulty walking and sitting; (5) goes numb "from the waist down" unless she is allowed to lay down every hour or two hours; (6) can stand for thirty minutes, sit for forty-five minutes, and walk four to five blocks slowly; (7) has great difficulty lifting, bending, sitting, or standing due to chronic pain and fatigue; and (8) has pain and numbness in her hands and arms that make keyboarding especially difficult. Pl.'s Opening Br., p. 15. She also contends she "suffer[s] from mood swings and depression due to pain and limitations." Id., p. 16.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. 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."
The ALJ gave clear and convincing reasons supported by substantial evidence for discounting Plaintiff's testimony. The ALJ concluded, among other things, that "[f]rom [the] Functional Evaluation performed in November 2007[,] although claimant was found to give less than optimal effort[,] she was felt capable of light work activity." R. at 19. A review of the record shows that on November 13, 2007, occupational therapist Christopher A. Park ("OT Park") performed a Functional Capacity Evaluation ("Functional Evaluation") of Plaintiff. R. at 321-28. OT Park repeatedly noted that Plaintiff "passed 6/10 (60%) tests of Maximum Voluntary Effort, well below the recommended 75% cutpoint" which was "indicative of less than full effort in testing of this type." R. at 326-27. He also noted Plaintiff "appeared to be self limiting [sic] ... and ha[d] a tendency to under estimate [sic] her physical and functional capacities." Id. Notably, OT Park "projected that [Plaintiff] could likely function at the SEDENTARY to LIGHT physical demand levels had she put forth her best effort. ..." R. at 326.
The ALJ may consider a claimant's failure to give "maximum or consistent" effort during physical capacity evaluations and a claimant's "efforts to impede accurate testing" of limitations when determining a claimant's credibility.
The ALJ also concluded Plaintiff's pain did not "drastically impact[] upon her activities of daily living," specifically noting that Plaintiff "is independent in caring for her personal hygiene and dressing as well as performing her housework." R. at 19. The ALJ may properly consider inconsistencies between a claimant's daily activities and her alleged impairments as a basis for discrediting a claimant's subjective testimony.
The ALJ also articulated Plaintiff did not "maintain[] constant consistent care for pain," "fail[ed] to consume medications as prescribed," and did not "follow diet and check pressures daily." R. at 15, 19. In determining credibility, an ALJ may consider a claimant's failure to follow prescribed treatment.
In April 2005 Wolanek, ARNP ("ARNP Wolanek") assessed Plaintiff with diabetes mellitus and encouraged Plaintiff "to take her medications regularly and not miss doses," "increase her exercise," "make diet changes," and attend diabetic classes at the hospital. R. at 195-96. Although Plaintiff "verbalize[d] understanding and agreement with [ARNP Wolanek's] plan," ARNP Wolanek noted in July 2005 that Plaintiff was "not doing daily foot checks," was not "exercising on a daily basis," and was not "following a certain diet." R. at 219. ARNP Wolanek even noted that Plaintiff was "not willing to pursue" changes in her diet and exercise. Id. The ALJ's reliance on Plaintiff's failure to follow her treatment plan as recommended by ARNP Wolanek was not improper in this instance.
Plaintiff also challenges the ALJ's finding that she failed to comply with her treatment plan, pointing to her own statement to Tannika Christensen, M.D. ("Dr. Christensen") in January 2008 that she was watching her diet and exercising daily. R. at 358. Plaintiff's assertion simply does not address her previous failure to watch her diet and check her pressures daily, which the ALJ specifically cited. In addition, Plaintiff does not cite any evidence demonstrating her intermittent lack of insurance coverage or change in medical providers prevented her from watching her diet or checking her pressures as recommended by ARNP Wolanek. Indeed, Plaintiff even admitted during her testimony on August 5, 2009, that she "tr[ies] to take [her] pain medication less often than ... prescribe[d]." R. at 38. Failure to seek relief from pain is probative of credibility because "a person's normal reaction is to seek relief from pain, and because modern medicine is often successful in providing some relief."
In sum, the ALJ gave specific, clear and convincing reasons supported by substantial evidence for discrediting Plaintiff's testimony. It is worth noting that the ALJ also provided other reasons for discrediting Plaintiff's subjective testimony. Even assuming those other reasons were improper, I conclude the ALJ's credibility determination would still stand and accordingly, I do not address the validity of the other reasons proffered by the ALJ.
Plaintiff asserts the ALJ erred by concluding her right shoulder impairment was not a severe impairment because he improperly rejected the opinions of her medical providers. Specifically, Plaintiff argues the ALJ erred by dismissing the opinions of Robert Choi, M.D. ("Dr. Choi"), Beth Moore, M.D. ("Dr. Moore"), James Manwill, M.D. ("Dr. Manwill"), Robb Larsen, M.D. ("Dr. Larsen"), and ARNP Wolanek.
The weight given to the opinion of a physician depends on whether the physician is a treating physician, an examining physician, or a nonexamining physician.
With respect to Drs. Moore and Manwill, the ALJ does not specifically mention them. A review of the record shows that Dr. Moore treated Plaintiff's right shoulder pain on November 29, 2008, documenting Plaintiff exhibited "some tenderness across the right biceps tendon across the top" of her right shoulder. R. at 337. She further documented Plaintiff's "[r]ange of motion [was] limited to 30° abduction, 45° forward flexion" and diagnosed Plaintiff with "[r]ight shoulder strain: [m]ost likely muscular." Id. With respect to Dr. Manwill, the record shows he reviewed an x-ray of Plaintiff's right shoulder. R. at 336. He noted there were "calcifications ... present" and ultimately diagnosed Plaintiff with "[r]ight shoulder calcific tendinitis."
The Commissioner does not specifically address the ALJ's failure to discuss the opinions of Drs. Moore and Manwill. Rather, the Commissioner merely asserts "[t]he ALJ thoroughly discussed the relevant medical evidence and reasonably concluded that Plaintiff's shoulder impairment did not meet the severity requirement for at least twelve continuous months (Tr. 14, 18, 19) ... [and was only] intermittent in nature." Def.'s Br., p. 13. The Ninth Circuit has repeatedly emphasized the "bedrock principle of administrative law" that a "reviewing court can evaluate an agency's decision only on the grounds articulated by the agency."
With respect to Dr. Larson, the ALJ cited certain portions of his medical notes, but did not explicitly accord any weight to his medical opinion. Instead, the ALJ simply parroted the following portion of Dr. Larsen's medical notes without any analysis:
R. at 14.
A review of the record shows Dr. Larsen treated Plaintiff's right shoulder pain. R. at 488-89. On February 3, 2009, Dr. Larsen assessed Plaintiff with "[r]ight shoulder impingement and calcific tendinitis" and administered a steroid injection to her right shoulder. R. at 477, 488-89. On May 11, 2009, Dr. Larsen noted Plaintiff has "difficulty with overhead activity" and upon examination, documented that there was "evidence of scapulothoracic crepitation," "pain with resisted isolation of the supraspinatus," and positive "[i]mpingement signs." R. at 477. That same day, May 11, 2009, Dr. Larsen elected to administer a second steroid injection to Plaintiff's right shoulder. Id. He also referred Plaintiff to physical therapy, explicitly noting that the "prescribed rehabilitation [was] medically necessary." Id.
Although "[a]n ALJ ... errs if he implicitly rejects a doctor's testimony,"
Finally, I turn to the opinions of Dr. Choi and ARNP Wolanek. A careful reading of the record demonstrates Dr. Choi examined symptoms related to Plaintiff's carpal tunnel syndrome, not her right shoulder. R. at 339, 342-43. Nothing in the record indicates Dr. Choi examined Plaintiff's right shoulder or expressly documented any limitations directly related to her right shoulder. Id. Similarly, the record shows ARNP Wolanek examined Plaintiff's complaints concerning her left arm, not her right shoulder. R. at 197, 206-07. Nothing in ARNP Wolanek's opinions indicate any limitations stemming from her right shoulder. Accordingly, any error the ALJ made in failing to evaluate the opinions of Dr. Choi and ARNP Wolanek at step two of the sequential evaluation was harmless.
In sum, the ALJ erred by failing to provide legally sufficient reasons supported by substantial evidence in the record when implicitly rejecting the opinions of Drs. Moore and Manwill. The ALJ's failure to discuss the opinions of Dr. Choi and ARNP Wolanek at step two, however, was harmless error.
Plaintiff contends the ALJ erred when concluding she maintained "full function of both upper extremities." R. at 15. She asserts the ALJ failed to properly consider statements made by her friend, Kristie Eilers ("Eilers"). I agree.
Lay testimony regarding a claimant's symptoms is competent evidence that the ALJ must consider unless he "expressly determines to disregard such testimony and gives reasons germane to each witness for doing so."
Here, in a letter dated July 31, 2009, Eilers wrote that she observed Plaintiff struggling with daily tasks, including cooking meals, cleaning up, lifting pans, taking out the garbage, putting away groceries, and doing the dishes. R. at 184. In his opinion, the ALJ stated, "I give no credit to the statements of Kristie Eilers (who has known claimant for less than a year), Wendy Davis (who has known claimant for ten years) but focuses on depression, cousin Spencer Wenner again focusing on severe pain, [sic]" R. at 18. Even if I were to construe the ALJ's reason for rejecting Eilers's lay witness statements on the basis that Eilers had known Plaintiff for only a short period of time, such a reason by itself would not amount to a specific germane reason supporting his decision to accord Eilers's lay witness statements "no credit." In light of Eilers's statements in her July 31, 2009, letter, I cannot "confidently conclude that no reasonable ALJ" could have reached a different disability determination when fully crediting her statements, and therefore cannot conclude the ALJ's error was harmless.
Plaintiff contends the ALJ erred by finding her obesity not severe at step two of the sequential proceedings. She argues that her obesity combined with her knee arthritis, spinal and cervical complaints, hypertension, and diabetes mellitus worsen the severity of her other symptoms. I disagree.
Social Security Regulations ("SSR") provide that the ALJ "will do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe." SSR 02-1p, at *4. An impairment is "severe" if it "significantly limits [a claimant's] ability to do basic work activities." 20 C.F.R. § 416.920(c);
Plaintiff contends the ALJ recognized Plaintiff's obesity, but erroneously concluded Plaintiff "has no extreme restriction in her capacity to walk which interferes seriously in her capacity to independently initiate, sustain, and complete activities." R. at 15; Pl.'s Opening Br., p. 9. Plaintiff's argument is unavailing. "The claimant has the burden of providing evidence as to how [her] obesity limits [her] functioning."
At step three of the sequential evaluation, the ALJ found Plaintiff's impairments did not meet or equal the criteria of Listing 1.04. R. at 13. Plaintiff contends she meets Listing 1.04(A) because she suffers from "neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss." Pl.'s Opening Br., p. 12. She asserts the ALJ erred by improperly rejecting the opinions of her treating physicians and ARNP Wolanek. Plaintiff contends her spinal disorder combined with her shoulder and knee impairments, her carpal tunnel in her hands, and her diabetes when properly considered in combination establishes medical equivalence to Listing 1.04(A).
The SSR's "Listing of Impairments" generally describes impairments that are so severe as to be considered presumptively disabling. 20 C.F.R. §§ 404.1520(d), 416.920(d). "The mere diagnosis of an impairment listed in 20 C.F.R. Appendix 1, Subpart P ... is not sufficient to sustain a finding of disability."
Listing 1.04 addresses spinal disorders. It states in relevant part:
20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.04(A).
The Commissioner maintains that Plaintiff does not meet the criteria of Listing 1.04(A) because the portions of the record cited by Plaintiff show no motor loss or sensory or reflex loss. In addition, the Commissioner asserts the ALJ properly considered the opinions of Plaintiff's medical providers, specifically asserting that the treatment notes of William Balsom, M.D. ("Dr. Balsom") do not mention any weakness or motor loss.
The Commissioner's argument is unavailing. The Commissioner fails to recognize that other portions of the record show Plaintiff suffers motor loss and sensory and reflex loss. For example, Dr. Choi indicated weakness and "sensory symptoms" associated with Plaintiff's hands. R. at 343. In addition, Dr. Choi noted that Plaintiff's physical examination indicated loss in motor skills, specifically documenting that Plaintiff's "motor" evaluation demonstrated "[s]evere pain on palpation of most of [Plaintiff's] joints and tendons in the wrists and hands. Mild giveaway type weakness in the distal muscles of [Plaintiff's] hands on both sides." Id. Contrary to the Commissioner's assertion, the record suggests Plaintiff satisfied the requirements of Listing 1.04(A).
In addition, the ALJ's step three finding fails because the ALJ improperly addressed other opinions by Plaintiff's medical providers, including Dr. Balsom. Although the ALJ stated that "[t]here is no evidence of record of internist Balsom saying that claimant's condition is a `time bomb', and without surgery to stabilize the area, certainty for her becoming paralyzed from waist down," the ALJ, failed to assign any weight to Dr. Balsom's opinion or state whether he accepted or rejected his medical opinion. R. at 18. Similarly, although the ALJ referred to the opinion of Plaintiff's treating chiropractor, Ross M. Hart, D.C. ("Dr. Hart"), he simply stated, "On June 13, 2006 chiropractor Ross M. Hart wrote that [Plaintiff] was still disabled in her abilities to function in her normal activities of daily living." R. at 13, 227. The record, however, is absent any indication whether the ALJ accepted or rejected Dr. Hart's opinion.
The ALJ's string cite is legally inadequate and is, at best, unhelpful.
Simply put, I cannot conclude that the ALJ's step three finding is supported by substantial evidence.
Plaintiff contends the ALJ's RFC did not properly reflect all of her limitations. She contends the ALJ improperly dismissed her testimony and therefore, his step four finding is erroneous. As discussed above, the ALJ did not err when discrediting Plaintiff's testimony. As such, the ALJ's RFC assessment is proper insofar as it excludes Plaintiff's subject statements.
Plaintiff also asserts the record does not support a finding she is capable of sedentary or light work and as such, his finding that she is capable of performing past relevant work is improper. Plaintiff argues that because sedentary work requires sitting for prolonged periods of time and because light work requires standing and walking for prolonged periods of time, the ALJ's step four findings are inconsistent with her functional limitations. I agree.
Here, the ALJ concluded Plaintiff had the RFC to perform "light work," but was to "avoid constant sitting, constant standing, constant walking, climbing, uneven terrain, frequent bending/kneeling and material handling greater than 15-20 pounds on an occasional basis." R. at 17. He also concluded Plaintiff had the RFC to "walk/stand for 4/8 hours in increments of 20-30 minutes each and sit up to 6/8 hours in a day in increments of 25-45 minutes each. ..." Id.
20 C.F.R. § 404.1567 defines "sedentary work" as:
20 C.F.R. § 404.1567(a); 20 C.F.R. § 416.967(a) (same).
On the other hand, "light work" is defined as:
20 C.F.R. § 404.1567(b); 20 C.F.R. § 416.967(b) (same).
As discussed above, the ALJ failed to properly address the opinions of a number of Plaintiff's medical providers, including OT Park. OT Park's opinion appears to include additional limitations the ALJ failed to otherwise consider when making his RFC determination. For example, OT Park opined in his Functional Evaluation that Plaintiff's projected physical capacity was limited to walking less than one hour at a time and no more than one to two hours total. R. at 329. The ALJ's RFC determination, however, stated Plaintiff had the RFC to "walk/stand" for a total of "4/8 hours." R. at 17, 329. In addition, as discussed above, the ALJ incorrectly rejected Eilers's lay witness testimony. Consequentially, he failed to consider what impact, if any, Eilers's statements had on Plaintiff's RFC.
Suffice it to say, the ALJ's RFC assessment failed to include all of Plaintiff's limitations and was therefore erroneous. Since the hypothetical posed to the VE was based on an erroneous RFC, the ALJ's step four determination is not supported by substantial evidence.
This court has the discretion to remand for further proceedings or for immediate payment of benefits.
The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed."
Noted above, the ALJ failed to articulate legally sufficient reasons for rejecting the opinions of a number of Plaintiff's medical providers and lay witness statements. As such, the ALJ failed to properly consider the limitations contained therein when proceeding through the steps of the sequential evaluation. Further proceedings would be useful because it is unclear from the record that the ALJ would be required to find Plaintiff disabled if he had properly considered the evidence.
Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED for further proceedings.
IT IS SO ORDERED.