JOLIE A. RUSSO, Magistrate Judge.
Plaintiff Jason W. brings this action for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Title II Disability Insurance Benefits ("DIB"). All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.
In August 2014, plaintiff applied for DIB and Title XVI Social Security Income alleging disability beginning December 31, 2013
At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. Tr. 15. At step two, the ALJ determined "blindness in [plaintiff's] left eye" was medically determinable and severe.
At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 20. At step five, the ALJ concluded that, through the DLI, plaintiff was capable of performing other work existing in significant numbers in the national economy despite his impairments, such as garment bagger, basket filler, and protective clothing issuer/stocking clerk. Tr. 22.
This case hinges on whether there is sufficient evidence in the record to establish disability as of December 31, 2013, the DLI. Specifically, plaintiff argues that the ALJ erred by: (1) failing to incorporate pre-DLI limitations assessed by Thomas Davenport, M.D., into the RFC; (2) discrediting his hearing testimony regarding the extent of his symptoms during 2013; (3) rejecting the lay statements of his mother, Patricia W.; and (4) neglecting to develop the record pursuant to SSR 83-20.
Plaintiff contends the ALJ improperly discounted Dr. Davenport's findings. Pl.'s Opening Br. 4-6 (doc. 10). At the time of the ALJ's decision, there were three types of acceptable medical opinions in Social Security cases: those from treating, examining, and non-examining doctors.
In November 2014, Dr. Davenport, a state agency consulting source, reviewed the record and provided a physical RFC. Tr. 65-67. Dr. Davenport found plaintiff "was already totally blind in [his left] eye at AOD for title II," meaning that plaintiff's left eye impairment arose on or before the DLI. Tr. 62, 67. In terms of visual restrictions, Dr. Davenport opined plaintiff was "limited" on the left side in the following categories: near and far acuity, depth perception, accommodation, and field of vision. Tr. 66. The narrative supporting description stated: "Vision on the LEFT limited to NEVER due to left eye blindness."
The ALJ assigned "partial weight" to Dr. Davenport's opinion. Tr. 19. The ALJ first noted Dr. Davenport was "an expert in disability evaluation" and his "assessment is consistent with the record as a whole."
Initially, as plaintiff observes, "ALJs routinely use the expression `Avoid even moderate exposure to hazards' as an environmental limitation in their [RFC] assessment, and the Commissioner identifies no case law to suggest that Dr. Davenport's findings, routine among ALJ RFCs, is not a meaningful limitation." Pl.'s Reply Br. 2 (doc. 14). Indeed, the precise language employed by Dr. Davenport — i.e., "avoid even moderate exposure to hazards" — has appeared in numerous ALJ decisions, demonstrating that it is, in fact, an appropriate concrete work-related limitation of function.
Furthermore, outside of the limitation to "avoid even moderate exposure" to hazards, the ALJ did not specify which findings of Dr. Davenport's were being credited. Tr. 19. Regardless, based on the RFC formulation, it can be inferred that the ALJ rejected, without comment, the portions of Dr. Davenport's report pertaining to plaintiff's inability to perform occupations requiring depth perception. Tr. 65-67. Accordingly, the ALJ erred in weighing Dr. Davenport's report.
Plaintiff asserts the ALJ erred by discrediting his testimony concerning his 2013 functioning. Pl.'s Opening Br. 11-14 (doc. 10). When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so."
Thus, in formulating the RFC, the ALJ is not tasked with "examining an individual's character" or propensity for truthfulness, and instead should assess whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p,
At the hearing, plaintiff testified that, by June 2013, he had completely lost sight in his left eye. Tr. 42-43. Although plaintiff continued to look for work until March 2013, his vision on his left side, and subsequently his right side, had been worsening for years. Tr. 44-45, 52. Plaintiff reported he was "having a hard time remembering" when "things got so bad that [he] couldn't read with [his] right eye" — but it was "probably" six months, and possibly twelve months, prior to May 2014 (when he had brain surgery). Tr. 45-48. Plaintiff explained further that he "had no peripheral vision [in his right eye as of the DLI and] things were much darker even in bright light." Tr. 47-48. By early 2013, plaintiff could no longer cook for himself and did not leave the house without his parents, even though, at that point, he could still read and watch television if he was close enough to the text or image, respectively. Tr. 49-50. He managed to independently get around the house because he "grew up [there are had] memorized the floor plan." Tr. 50.
When asked by the ALJ why he did not get imaging studies done until April 2014 (after collapsing at the store), plaintiff responded: "I was unemployed, no medical insurance, no money, and the last time I had heard anything at that point MRIs cost several thousand dollars." Tr. 51. Plaintiff testified he eventually got on the Oregon Health Plan and obtained an MRI (which revealed a large pituitary tumor that was the cause if his symptoms, including his progressively worsening vision). Tr. 47-48, 51.
After summarizing his hearing testimony, the ALJ determined that plaintiff's medically determinable impairment could reasonably be expected to produce some degree of symptoms as of the DLI, but his "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Tr. 17. The ALJ first observed plaintiff "has a history of vision loss in the left eye as of about 2011." Tr. 18. While plaintiff "did not have medical treatment for left eye problems" before the DLI, the ALJ nonetheless found "the record supports the existence of a medically determinable impairment of left eye blindness as of the [DLI]."
The ALJ then discussed plaintiff's non-medically determinable right eye impairment. Tr. 18-19. The ALJ noted plaintiff did not seek treatment for right eye issues until April 2014 (i.e., three months after the DLI), despite reporting bilateral vision problems much earlier and obtaining a "a recommendation to pursue appropriate diagnostic studies in 2010." Tr. 18. The ALJ also noted plaintiff "did not attempt to seek treatment for his right eye through the emergency room" even though he "did seek emergency treatment for kidney stones in June 2013."
The ALJ's analysis is flawed in two respects. First, plaintiff did not generally differentiate between his left and right eyes. In other words, plaintiff's testimony regarding functional limitations during the relevant time period — i.e., an inability to cook and navigate unfamiliar physical spaces, and a limited ability to read and watch television — appeared to be based predominantly on left eye blindness, as he acknowledged still having vision in his right eye as of the DLI. Tr. 42-52. The ALJ, however, did not explicitly address these functional limitations or otherwise provide a reason to exclude them from the RFC. Tr. 16-19.
Second, even assuming the reasons cited by the ALJ in regard to plaintiff's right eye are applicable to his overall testimony, they are erroneous given the facts of this case.
Finally, the ALJ may not rely exclusively on the lack of corroborating medical evidence to discount a claimant's testimony.
In sum, the ALJ committed harmful legal error by failing to provide clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements concerning the extent of his limitations as of the DLI.
Plaintiff argues the ALJ neglected to provide a legally sufficient reason, supported by substantial evidence, to reject the lay statements of Patricia W. Pl.'s Opening Br. 6-11 (doc. 10). Lay testimony concerning a claimant's symptoms or how an impairment affects the ability to work is competent evidence that an ALJ must take into account.
In February 2017, Patricia W. authored a letter in support of plaintiff's application for DIB benefits. Tr. 274-26. Patricia W. specified that, in March 2013, she "started to see changes in [plaintiff's] life . . . Mostly with his eyesight." Tr. 274. At that time, Patricia W. observed plaintiff sitting at his computer or in front of the television with "his face up [close] to the screen."
The ALJ addressed Patricia W.'s lay statements in conjunction with the other third-party statements. Tr. 19-20. The ALJ afforded the lay statements only "[s]ome weight" because "they are generally vague and do not provide specific descriptions of functioning," and "not fully consistent with the evidence in the record." Tr. 20. The ALJ then observed Patricia W.'s "statements are the most specific in terms of describing [plaintiff's] problems around the [DLI but they] do not correspond to the medical evidence of record regarding the onset of the level of severity of the impairment in [plaintiff's] right eye."
Although the ALJ articulated legally sufficient reasons for rejecting Patricia W.'s lay statements, those reasons are not supported by substantial evidence. Notably, as addressed herein, the ALJ determined there was no pre-DLI medical evidence regarding either plaintiff's right or left eye. It would therefore be impossible for Patricia W.'s testimony to coincide with the medical evidence since no such evidence exists. In fact, the lack of medical evidence concerning onset is precisely why Patricia W.'s testimony is so important in the present case:
SSR 83-20,
Moreover, Patricia W. did not delineate between plaintiff's left and right eyes. Thus, similar to plaintiff's testimony, it was error for the ALJ to dismiss Patricia W.'s attested-to limitations as being solely attributable to plaintiff's non-medically determinable right eye impairment. This is especially true given that Patricia W.'s testimony is consistent with both plaintiff's subjective symptom statements and Dr. Davenport's opinion (i.e., the only opinion evidence of record pertaining to 2013).
Plaintiff contends the ALJ neglected to develop the record by consulting a medical expert in accordance with SSR 83-20. Pl.'s Opening Br. 16-19 (doc. 10). The claimant bears the burden of proving the existence or extent of an impairment, such that the ALJ's limited "duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."
The record reveals plaintiff's symptoms increased in severity prior to the DLI. For instance, plaintiff reported to numerous medical providers his vision symptoms emerged in 2010 and progressively worsened. Tr. 289, 306-07, 320-21, 325, 342, 361, 363, 386, 404, 408. Both plaintiff and his mother similarly testified that, throughout 2013, plaintiff's vision deteriorated. Tr. 42-52, 274-75. By the latter half of 2013, and certainly as of the DLI, plaintiff was unable to cook, leave the house independently, or locate walls or doors in familiar places based on sight alone.
At the hearing, the ALJ acknowledged plaintiff's symptoms were progressive to the point that his "eyesight in both eyes [was so bad the Commissioner] found [he was] entitled to benefits." Tr. 30, 36, 42-43, 45. In addition, in his written decision, the ALJ expressly recognized that, upon reconsideration, the state agency consulting source found the record to be "insufficient" regarding plaintiff's functioning prior to the DLI. Tr. 19.
Under these circumstances, the ALJ committed harmful legal error by failing to follow SSR 83-20.
For the foregoing reasons, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.
IT IS SO ORDERED.