PATRICIA SULLIVAN, Magistrate Judge.
Plaintiff Kiera S. brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner denied plaintiff Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles II and XVI of the Act. 42 U.S.C. §§ 401 et seq., 1381 et seq. For the following reasons, the Court should REVERSE the Commissioner's decision and REMAND for further administrative proceedings.
Plaintiff protectively filed for SSI and DIB on July 17, 2013, alleging a disability onset date of November 9, 2012. Tr. 197-208.
Plaintiff was born in 1986 and completed high school. Tr. 197, 221. She suffers from recurrent hernias and chronic radiculopathy, Tr. 316, 412, 509, 549, and experiences anxiety and depression as a result of chronic pain. Tr. 48-49, 498. Plaintiff is married and has two children. Tr. 235. Plaintiff previously worked as an optician's assistant. Tr. 43, 80.
The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation"). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's "residual functional capacity" ("RFC"), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
The ALJ first found that plaintiff met the insured status requirements of the Act through December 31, 2014. Tr. 21. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Id. At step two, the ALJ found that plaintiff had the severe impairments of a history of recurrent hernias, status post multiple hernia repairs, and chronic L5 radiculopathy, status post discectomy. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 23. In so finding, the ALJ gave "little weight" to the opinions of plaintiff's treating family nurse practitioner ("FNP") Patricia Newman, and to a work capacities evaluation performed by occupational therapist Janet Kadlecik, Tr. 27; found that plaintiff's testimony regarding her symptoms and limitations was "not entirely credible," Tr. 24; and afforded "little weight" to the third-party testimony of plaintiff's husband, Micah S., and her friend, Chelsea Buchanan, id. The ALJ then found that plaintiff had the RFC to perform a reduced range of light work, with physical restrictions. Tr. 23. At step four, the ALJ found that plaintiff was unable to perform past relevant work. Tr. 28-29. At step five, the ALJ found that plaintiff could adjust to jobs that exist in significant numbers in the national economy, including information clerk, customer service representative, and telephone solicitor. Tr. 29-30. The ALJ thus found plaintiff not disabled under the Act and not entitled to benefits. Id.
Plaintiff argues that the ALJ erred in five ways: (1) improperly rejecting plaintiff's symptom testimony; (2) improperly rejecting the opinions of FNP Newman and occupational therapist Kadlecik; (3) improperly rejecting the third-party testimony of Micah S. and Buchanan; (4) improperly assessing and relying on VE testimony; and (5) failing to include all of plaintiff's limitations in the VE hypothetical and RFC finding. The Court should find that the ALJ erred in discounting plaintiff's testimony, discounting Newman's opinions, discounting third-party witness testimony, failing to conduct a transferability analysis as part of the VE analysis, and determining plaintiff's RFC. The Court should find that the ALJ did not otherwise err.
The ALJ found that, although plaintiff's impairments could reasonably be expected to cause her alleged symptoms, her testimony concerning the intensity, persistence, and limiting effects of those symptoms was not entirely credible. Tr. 24. The ALJ did not give clear and convincing reasons to reject this testimony. The ALJ erred in assessing plaintiff's testimony in four ways: the ALJ improperly relied on plaintiff's work history to reject her testimony; she misread the evidence and improperly construed plaintiff's reports regarding her symptoms and medication; she improperly construed plaintiff's medical treatment as conservative and routine; and she failed to consider plaintiff's explanation for not pursuing use of a cane.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. First, the claimant must produce objective medical evidence of one or more impairments which could reasonably be expected to produce some degree of symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not required to show that the impairment could reasonably be expected to cause the severity of the symptoms, but only to show that it could reasonably have caused some degree of the symptoms. Id. In the second stage of the analysis, the ALJ must assess the claimant's testimony regarding the severity of the symptoms. Id. The ALJ must specifically identify the testimony he does not credit and must explain what evidence undermines the testimony. Holohan v. Massanari, 246 F.3d 1195, 12028 (9th Cir. 2001). General findings are insufficient to support an adverse determination; the ALJ must rely on substantial evidence. Id. In order to discredit a plaintiff's testimony regarding the degree of impairment, the ALJ must make a "determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ may consider many factors in weighing a claimant's subjective testimony, including
Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). "If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quotation omitted).
First, the ALJ stated that plaintiff's work history "raise[d] questions as to whether the claimant's current unemployment is truly the result of her medical conditions." AR 24. Plaintiff was laid off in 2009, subsequently applied for work, but ultimately decided to stay home after having children. Id. ALJ may consider a claimant's work history, including the reasons for leaving the most recent job, in a credibility analysis; however, such a consideration requires a fact-specific review. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). Here, there is no implication between plaintiff being laid off and her alleged disability that would call into question her credibility. Plaintiff was laid off in 2009, but suffered an accident in 2011 and began experiencing severe pain several months later in 2012. Tr. 221. There is no evidence that plaintiff's reason for leaving her last job had any effect on why she applied for disability.
Second, the ALJ misread and mischaracterized plaintiff's reports regarding symptoms and medications. Although the ALJ stated that plaintiff's reports were inconsistent, the record in fact shows that plaintiff gave consistent reports of her pain and medications. The ALJ cites a supposed inconsistency in plaintiff's reports to her primary care provider and her reports on her Disability, Function, and Disability Appeal Reports. Tr. 24. The ALJ stated that plaintiff did not experience daily pain. Tr. 24-26. However, plaintiff regularly reported her daily, consistent pain to her medical care providers, as demonstrated in the Record on multiple occasions.
Third, the Record does not support the ALJ's statement that plaintiff received only conservative and routine treatment. A claimant's report of pain cannot be disregarded solely because it is not substantiated by objective medical evidence. Social Security Ruling ("SSR") 96-7p, 1996 WL 374186 (July 2, 1996). Although Dr. Viviane Ugalde noted that plaintiff was weaning off chronic opioids, there is no evidence from those notes that plaintiff's medication was minimal. Tr. 504-05. Dr. David Kelly, despite noting that "pain med[ication] usage [was] not daily and fairly low dose overall," prescribed plaintiff additional pain medication at that appointment, and made a referral to a pain specialist. Tr. 539-41.
Fourth, the ALJ failed to fully consider plaintiff's explanations for failing to use a cane despite a medical provider's recommendation. Tr 26. The ALJ must "consider [claimant's] physical, mental, educational, and linguistic limitations when determining if [he has] an acceptable reason for failure to follow a prescribed treatment." 20 C.F.R. § 404.1530. Where a claimant has a good reason for not following medical treatment, her symptom testimony cannot be rejected for doing so. Smolen, 80 F.3d at 1284. Plaintiff said that she was not using a cane because she was "trying to get a special kind of brace put on [her] left leg with an orthopedist." AR 47. The ALJ did not acknowledge this reason or analyze whether its adequacy.
The ALJ's bases for discounting plaintiff's testimony do not amount to clear and convincing reasons, and were in error.
The ALJ gave "little weight" to the opinions of FNP Newman and occupational therapist Kadlecik. Tr. 27. Plaintiff argues that the ALJ did not give valid reasons for discounting those opinions. Although the ALJ improperly discounted Newman's opinions, she did not err in discounting Kadlecik's.
A nurse practitioner or occupational therapist is not an "acceptable medical source," but is an "other source" who can provide evidence about the severity of a claimant's impairments and how they affect her ability to work. 20 C.F.R. § 404.1513; Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Womeldorf v. Berryhill, 685 F. App'x 620, 621 (9th Cir. 2017); Loop v. Colvin, No. 3:12-cv-01674-JE, 2014 WL 463265, at *8 (D. Or. Feb. 4, 2014). "Opinions from these [`other'] medical sources . . . are important and should be evaluated on key issues such as impairment severity and functional effects. . . ." SSR 06-03p, 2006 WL 2329939, at *3 (Aug. 9, 2006). Factors the ALJ should consider when determining the weight to give an opinion from these "important" sources include the length of time the source has known the claimant, the number of times and frequency that the source has seen the claimant, the consistency of the source's opinion with other evidence in the record, the relevance of the source's opinion, the quality of the source's explanation of that opinion, and the source's training and expertise. Id., at *4. "The ALJ may discount testimony from these `other sources' if the ALJ gives reasons germane to each witness for doing so." Molina, 674 F.3d at 1111 (quotation omitted).
Newman provided a medical opinion form in October 2015 at the request of plaintiff's attorney. Tr. 497-500. She opined that plaintiff's "chronic pain with radiculopathy makes it impossible to work." Tr. 498. The ALJ gave this opinion little weight "because it was based largely on the claimant's subjective reports rather than any objective findings." Tr. 26-27. This analysis is flawed. It relies on the premise that plaintiff's subjective testimony is not credible, which, as explained above, was an unsupported conclusion, and there is no indication in the medical opinion form that Newman simply adopted plaintiff's subjective reports. See Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir. 1998); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The ALJ erred in discounting Newman's opinions.
Kadlecik provided a physical capacity evaluation of plaintiff in November 2015. Tr, 529-37. It includes multiple documents, including a narrative description of plaintiff's capacities and limitations. Id. The ALJ gave this opinion little weight for multiple reasons: it was internally inconsistent, was based in part on plaintiff's less-than-credible subjective reports rather than objective findings, was not supported by the record as a whole as to certain limitations, and was contradicted by plaintiff's activities of daily living as to certain limitations. Tr. 27. Plaintiff argues that the ALJ erred in considering Kadlecik's opinions because she did not explicitly weigh the factors set out in SSR 06-3p, 20 C.F.R. § 404.1527(d). However, the required standard for discounting an "other source" opinion is not whether the ALJ explicitly referred to each of the factors in SSR 06-3p, but whether the ALJ gave a germane reason for discounting the opinion. See Press v. Astrue, No. CV. 08-1089-AC, 2010 WL 3222103, at *6 (D. Or. Aug. 13, 2010). Inconsistency is a legitimate, germane reason. Plaintiff even concedes that Kadlecik's report is inconsistent, but says this "minor error is no basis for rejecting the entirety of the report." Pl. Opening Br., at 30 (Docket No. 11). However, the ALJ found multiple consistencies in Kadlecik's opinion. Inconsistency is a sufficient basis to discount an "other source" opinion, and plaintiff's characterization of this as a "minor error" is not a legal basis to find ALJ error. See George v. Berryhill, 727 F. App'x 287, 290 (9th Cir. 2018).
The ALJ gave "little weight" to the third-party testimony of plaintiff's husband, Micah S., and her friend, Chelsea Buchanan. Tr. 24. Plaintiff argues that the ALJ did not provide valid reasons for discounting this evidence.
"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). "Such testimony is competent evidence and cannot be disregarded without comment." Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (emphasis in original, quotation omitted). The ALJ, however, need not "clearly link his determination to [these germane] reasons." Lewis, 236 F.3d at 512. Where a lay witness's testimony is similar to the plaintiff's, and the ALJ properly discounted the plaintiff's testimony, "it follows that the ALJ also gave germane reasons for rejecting [the lay witness's] testimony." Valentine v. Comm'r, 574 F.3d 685, 694 (9th Cir. 2009). "[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to her condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). "Disregard of this evidence violates the [Commissioner's] regulation that he will consider observations by non-medical sources as to how an impairment affects a claimant's ability to work." Id. at 919 (quotation omitted). A legitimate reason to discount lay testimony is that it conflicts with medical evidence. Lewis, 236 F.3d at 511.
The reason the ALJ gave for discounting this testimony is that, due to the witnesses' "relationship with and affection for the claimant, they are understandably sympathetic to her and have a natural tendency to agree with her reported limitations." Tr. 24. This is not a valid reason to discount witness testimony; the ALJ may not assume that witnesses are not credible based solely on their relationship with plaintiff. See Dodrill, 12 F.3d at 918-19; Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The ALJ erred in discounting third-party witness testimony.
In finding, at step five, that there were other jobs that plaintiff could perform given the RFC, the ALJ relied on testimony from the VE, including a hypothetical question about an employee with plaintiff's limitations. Tr. 29. Plaintiff argues that the step five finding was erroneous for two reasons: (1) there is a conflict between the VE testimony and the Dictionary of Occupational Titles ("DOT") that the ALJ failed to resolve, and (2) the ALJ erred in assuming plaintiff had transferable skills. Although the ALJ did not err in failing to address the purported DOT conflict, the ALJ did err in failing to conduct a transferability analysis.
The DOT is presumptively authoritative regarding job classifications, but that presumption is rebuttable. Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995). "[A]n ALJ may rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation." Id. Before relying on VE's testimony, the ALJ "must first determine whether a conflict exists." Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). The ALJ must ask the VE if her testimony is consistent with the DOT. Id. at 1152-53. The failure to so inquire is a procedural error. Id.
Plaintiff alleges that the VE testimony conflicts with the DOT because neither the Department of Labor's Education and Training Assignments by Detailed Occupation (2012) nor the Occupational Outlook Handbook (2014-15), uses the DOT occupational classification system. However, a conflict regarding to VE testimony will constitute reversible error when they concern the substance of the skills the VE assesses as compared to stated required skills in the DOT. E.g., Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007); Bray v. Comm'r, 554 F.3d 1219, 1230 (9th Cir. 2009). A VE is entitled to rely on other sources and authorities regarding occupation profiles. E.g., Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (affirming reliance on Occupational Outlook Handbook); Werthy v. Astrue, 882 F.Supp.2d 1202, 1236 (D. Or. 2011) (collecting cases). The Court is unaware of, and has been unable to locate any legal authority for, the proposition that purported differences between the systems and terminology used by various reference materials constitute a legally cognizable conflict in VE testimony, and plaintiff has offered no such authority. Plaintiff has thus not identified any conflict between VE testimony and the DOT that had to be resolved.
As to transferability of skills, SSR 82-41 states:
1982 WL 31389, at *7 (1982). The ALJ found that plaintiff was capable of performing semi-skilled work. Semi-skilled work requires "some skills." See 20 C.F.R. §§ 404.1568(b), 416.968(b). The ALJ was therefore required to analyze the issue of skills and their transferability before finding plaintiff not disabled based on an ability to perform semi-skilled work. See Barnes v. Berryhill, 895 F.3d 702, 704-05 (9th Cir. 2018); Botefur v. Heckler, 612 F.Supp. 973, 976 (D. Or. 1985). The ALJ erred in not performing a transferability analysis.
The RFC "is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." SSR 96-8p, at *1, 1996 WL 374184 (July 2, 1996). The "RFC is what one can still do despite one's limitations." Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014) (alteration, quotation omitted) (citing 20 C.F.R. § 416.945(a)(1)). "The RFC assessment must be based on all of the relevant evidence in the case record," including medical evidence, lay witness statements, and the effects of plaintiff's symptoms. SSR 96-8p, at *5 (emphasis in original). "The RFC assessment must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence." Id., at *7. The ALJ must consider the "total limiting effects" of all of the medically determinable impairments, both "severe" and "non-severe," in determining the plaintiff's RFC, including the effect of pain. 20 C.F.R. §§ 404.1545(e), 416.945(e). The ALJ is responsible for translating the claimant's medical conditions into functional limitations in the RFC. See Stubbs Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Ultimately, the RFC is sufficient if it is "consistent with restrictions identified in the medical testimony." Id.
Given the above-described errors with regard to plaintiff's impairments and limitations, the ALJ must reassess plaintiff's RFC. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006).
It lies within the district court's discretion whether to remand for further proceedings or to order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citation and italics omitted). This "credit-as-true" rule has three steps: first, the court "ask[s] whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; second, if the ALJ has erred, the court "determine[s] whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful"; and third, if the court "conclude[s] that no outstanding issues remain and further proceedings would not be useful," it may "find[] the relevant testimony credible as a matter of law . . . and then determine whether the record, taken as a whole, leaves not the slightest uncertainty as to the outcome of the proceeding." Treichler v. Comm'r, 775 F.3d 1090, 1100-01 (9th Cir. 2014) (quotations, citations, and alterations omitted). The court may then "remand to an ALJ with instructions to calculate and award benefits." Garrison, 759 F.3d at 1020. If, "even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled," the court should remand for further proceedings. Garrison, 759 F.3d at 1021.
The ALJ erred in discounting plaintiff's testimony, discounting Newman's opinions, discounting third-party witness testimony, failing to conduct a transferability analysis, and determining the RFC. However, outstanding issues remain regarding a determination of disability on each of these issues, and further proceedings would be useful to determine the credibility of these statements and opinions, and to assess transferability and the RFC. Remand for an award of immediate benefits would not be justified in this case, and the Court should instead remand for further administrative proceedings.
For these reasons, the Court should REVERSE the Commissioner's decision and REMAND for further proceedings in accordance with these Findings and Recommendation.
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due August 30, 2018. If objections are filed, a response to the objections is due fourteen days after the date the objections are filed and the review of the Findings and Recommendation will go under advisement on that date.
IT IS SO ORDERED.
