Irma Perez v. Michael J Astrue, No. 2:2007cv06726 - Document 26 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 IRMA PEREZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 07-06726-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 25, 2007, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s applications for a period of disability ( POD ), disability 21 insurance benefits ( DIB ), and supplemental security income ( SSI ). 22 On February 28, 2008, the parties consented to proceed before the 23 undersigned United States Magistrate Judge. The parties filed a Joint 24 Stipulation on December 9, 2008, in which: plaintiff seeks an order 25 remanding the matter for the consideration of evidence not properly 26 addressed by the ALJ; and defendant seeks an order affirming the 27 Commissioner s decision. 28 Stipulation under submission without oral argument. The Court has taken the parties Joint SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 On August 30, 2005, plaintiff filed applications for a POD, DIB, 3 4 and SSI. (Administrative Record ( A.R. ) 60-62, 245-46.) 5 alleges an inability to work since December 1, 2002, due to diabetes, 6 high 7 problem(s), back injury, leg pain, depression, and anxiety. 8 49, 120.) 9 (A.R. 69, 120.) blood pressure, high cholesterol, obesity, Plaintiff arthritis, kidney (A.R. 41, She has past relevant work experience as an in-home aid. 1 10 The Commissioner denied plaintiff s applications initially (A.R. 11 12 49-53) and upon reconsideration (A.R. 41-46). Thereafter, plaintiff 13 filed a written request for hearing, and on October 11, 2006, plaintiff, 14 who was not represented by counsel, testified, with the assistance of a 15 Spanish language interpreter, at a hearing before Administrative Law 16 Judge Robert A. Evans ( ALJ ). 17 the ALJ denied plaintiff s claims, and the Appeals Council subsequently 18 denied plaintiff s request for review of the ALJ s decision. (A.R. 3-5, 19 21-27.) (A.R. 10, 248-57.) On October 23, 2006, 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 23 In his written decision, the ALJ found that plaintiff met the 24 insured status requirements of the Social Security Act through December 25 31, 2007, and plaintiff has not engaged in substantial gainful activity 26 since December 1, 2002, her alleged disability onset date. (A.R. 23.) 27 1 28 Plaintiff worked as an in-home aid from June 1986, through December 1, 2002. (A.R. 69.) 2 1 The ALJ further found that plaintiff suffers from severe back pain and 2 obesity, 3 impairments that meets or medically equals one of the listed impairments 4 set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. but she does not have an impairment or combination of (A.R. 23-24.) 5 6 The ALJ determined that plaintiff retains the residual functional 7 capacity ( RFC ) to perform work that would require her to: 8 carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk 9 for 6 hours out of an 8 hour workday; stand every 2 hours to stretch for 10 5 to 10 minutes, secondary to back pain; perform no fine manipulation, 11 secondary to her allegations of neuropathy; and secondary to her 12 obesity, never climb, occasionally balance, stoop, kneel, crouch, crawl, 13 and not perform work that would require her to walk on uneven terrain or 14 work at heights. 15 statements concerning the intensity, persistence, and limiting effects 16 of her subjective pain symptoms were not entirely credible. 17 26.) (A.R. 24.) lift and The ALJ further found that plaintiff s (A.R. 18 19 Based on the ALJ s RFC assessment and the testimony of a vocational 20 expert, the ALJ found that plaintiff is capable of performing her past 21 relevant work as a home attendant. 22 concluded that plaintiff has not been under a disability, as defined in 23 the Social Security Act, from December 1, 2002, through the date of the 24 ALJ s decision. (A.R. 26.) Accordingly, the ALJ (A.R. 27.) 25 26 STANDARD OF REVIEW 27 28 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 3 1 decision to determine whether it is free from legal error and supported 2 by substantial evidence in the record as a whole. 3 F.3d 625, 630 (9th Cir. 2007). 4 evidence as a reasonable mind might accept as adequate to support a 5 conclusion. 6 a mere scintilla but not necessarily a preponderance. 7 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 8 record can constitute substantial evidence, only those reasonably 9 drawn from the record will suffice. 10 Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted). 11 12 Although this Court cannot substitute its discretion for that of 13 the Commissioner, the Court nonetheless must review the record as a 14 whole, weighing both the evidence that supports and the evidence that 15 detracts from the [Commissioner s] conclusion. 16 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 17 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 18 responsible for determining credibility, resolving conflicts in medical 19 testimony, and for resolving ambiguities. 20 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 21 22 The Court will uphold the Commissioner s decision when the evidence 23 is susceptible to more than one rational interpretation. 24 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 25 review only the reasons stated by the ALJ in his decision and may not 26 affirm the ALJ on a ground upon which he did not rely. 27 at 630; see also Connett, 340 F.3d at 874. 28 the Commissioner s decision if it is based on harmless error, which 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 exists only when it is clear from the record that an ALJ's error was 2 inconsequential to the ultimate nondisability determination. Robbins 3 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 4 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 5 F.3d at 679. 6 7 DISCUSSION 8 9 Plaintiff alleges the following five issues: (1) whether the ALJ 10 properly apprised plaintiff of her right to counsel and whether her 11 waiver of counsel was properly obtained; (2) whether the ALJ fully and 12 fairly developed the record; (3) whether the ALJ erred by failing to 13 find 14 impairment; (4) whether the ALJ erred in determining that plaintiff is 15 capable of returning to her past relevant work; and (5) whether the ALJ 16 properly evaluated plaintiff s subjective symptom testimony. 17 Stipulation ( Joint Stip. ) at 3-4.) 18 first and second issues together, because they are interrelated. that plaintiff s diabetes with neuropathy was a severe (Joint The Court addresses plaintiff s 19 20 I. The ALJ Failed To Develop The Record Adequately And To Ensure That 21 Plaintiff s Interests Were Protected, 22 Despite The Fact That Plaintiff Was Proceeding Without Counsel. 23 Plaintiff had a statutory right to counsel at the administrative 24 25 hearing, which she could knowingly and intelligently waive. 26 Heckler, 586 F.Supp. 359, 364 (N.D. Cal. 1984)(citing Ware v. Schweiker, 27 651 F.2d 408 (5th Cir. 1982)); Floyd v. Schweiker, 550 F.Supp. 863 (N.D. 28 Ill. 1982). Even if her waiver 5 was deficient, Duns v. plaintiff must 1 demonstrate prejudice or unfairness in the proceedings to obtain a 2 remand. 3 (9th Cir. 1979). 4 knowing or intelligent, but whether, without the representation, the ALJ 5 met his heightened duty to conscientiously and scrupulously probe into, 6 inquire 7 plaintiff s interests. 8 1981); Cox v. Califano, 587 F.2d 988 (9th Cir. 1978). 9 includes diligently ensuring that both favorable and unfavorable facts Hall v. Sec y of Health, Educ. & Welfare, 602 F.2d 1372, 1378 of, and The real issue, however, is not whether the waiver was explore for all the relevant facts to protect Vidal v. Harris, 637 F.2d 710, 713 (9th Cir. This duty 10 and circumstances are elicited at the administrative hearing. Key v. 11 Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985). 12 fairly develop the record, and when a claimant is not represented by 13 counsel, an ALJ must be especially diligent in exploring for all the 14 relevant facts. 15 2001). Only if plaintiff can demonstrate prejudice or unfairness in the 16 administrative proceeding, as a result of not having counsel present, is 17 remand warranted. The ALJ must fully and Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. Vidal, 637 F.2d at 713. 18 19 The Manual on Social Security Administration Hearings, Appeals and 20 Litigation Law (HALLEX) I-2-6-52 sets forth the procedures ALJs are to 21 follow to ensure that a plaintiff proceeding without counsel has made an 22 informed choice to waive representation. HALLEX I-2-6-52 states: 23 24 [I]f the claimant is unrepresented, the ALJ must ensure that 25 the claimant is capable of making an informed choice about 26 representation. 27 unrepresented claimant the following questions on the record: For example, 28 6 the ALJ should ask an 1 ¢ Did you receive the hearing acknowledgment letter 2 and its enclosure(s)? (If not, the ALJ will provide 3 the claimant with a copy and the opportunity to 4 read the letter.) The ALJ will enter into the 5 record the acknowledgment letter and enclosure(s) 6 sent to the unrepresented claimant. 7 8 ¢ Do you understand the information contained in 9 that letter concerning representation? (If not, the 10 ALJ will explain the claimant s options regarding 11 representation, as outlined in the acknowledgment 12 letter. Specifically, the ALJ will explain the 13 availability 14 contingency representation as well as access to 15 organizations that assist individuals in obtaining 16 representation. 17 Claimant, I-2-0-91 Sample - Acknowledgment Letter - 18 Oral Hearing Requested - Unrepresented Claimant, 19 and 20 Unrepresented Claimant.) I-2-0-92 of both See Sample free I-2-0-20 - legal C., Enclosure services and Unrepresented to Letter to 21 22 Once the ALJ has determined that the claimant is capable of 23 making an informed choice, he or she will either secure on the 24 record the claimant s decision concerning representation, or 25 obtain from the claimant a written waiver of the claimant s 26 right to representation, which will be marked as an exhibit. 27 See I-2-6-98 WAIVER OF REPRESENTATION. 28 7 1 (Id; emphasis added.) 2 3 In the present case, it is unclear whether plaintiff knowingly and 4 intelligently waived her right to counsel at the administrative hearing. 5 Although the record contains a one-page Waiver of Representation, 2 6 dated October 11, 2006, signed by plaintiff, and marked as an exhibit by 7 the ALJ, there was no dialogue on the record between the ALJ and 8 plaintiff 9 representation and had made an informed decision about waiving her right regarding whether plaintiff understood her right to 10 to representation. 11 Spanish language interpreter at the hearing, yet there is nothing in the 12 record to indicate that the written waiver was translated for plaintiff 13 from English into Spanish. 14 commencement of the hearing, the ALJ stated to plaintiff that [you] 15 have waived your rights to representation. 16 yourself. 17 cannot be determined from the record that plaintiff knew and understood 18 the 19 representation was not obtained properly. right Critically, plaintiff required the assistance of a (A.R. 250.) she The record reflects only that, at the You re here representing There was no reply from plaintiff. relinquished, plaintiff s waiver of her As it right to 20 An invalid waiver of representation alone is not enough, however, 21 22 to require a remand of this case. Vidal, 637 F.2d at 713. As defendant 23 2 The Waiver of Representation states: 24 25 26 27 28 I have been informed in writing of my right to be represented at today s hearing by an attorney or other qualified person. I am presently not represented, and it is my wish to proceed without representation. I understand that following this hearing, I may obtain representation to pursue my appeal or further proceedings. (A.R. 57.) 8 1 correctly points out, to merit remand, plaintiff must show that, as a 2 result 3 administrative proceeding. of not having counsel present, she was prejudiced in the (Joint Stip. at 9-11.) 4 5 Plaintiff argues (Joint Stip. at 12) that she was prejudiced by the 6 ALJ s failure to meet his heightened duty, given the absence of counsel 7 for plaintiff, to develop the record by investigating the facts fully 8 and 9 information. fairly and probing conscientiously to Tonapetyan, 242 F.3d at 1150. elicit all relevant Specifically, plaintiff 10 argues that she was prejudiced because, if represented, her counsel 11 would have delved into her medical history, treatment, and medications 12 for 13 attendant limitations, none of which were adequately explored by the 14 ALJ. 15 agrees. diabetes, anxiety, depression, (Joint Stip. at 16.) and lower extremity pain and For the reasons set forth below, the Court 16 17 As an initial matter, plaintiff directs the Court s attention to 18 the fact that the entire administrative hearing lasted only 14 minutes. 19 (Joint Stip. at 12-13.) 20 ALJ s questions to plaintiff, which were translated from English to 21 Spanish, plaintiff s testimony, which was translated from Spanish to 22 English, and the ALJ s examination of the vocational expert. (A.R. 250- 23 57.) 24 heightened duty to fully and fairly develop the record to ensure that 25 plaintiff s interests were protected. This brief, 14-minute time-frame included the This fact alone calls into question whether the ALJ met his 26 27 28 Moreover, plaintiff argues that, had counsel been present, questions regarding the myriad medications plaintiff was taking and 9 1 their side-effects would have been asked.3 2 Although plaintiff indicated on a Medications form that she was taking 3 16 different medications for several conditions (A.R. 130-32), the ALJ 4 asked only two questions regarding plaintiff s medication. 5 ALJ asked plaintiff what medication she takes to relieve her back pain,4 6 to which plaintiff responded that she was taking Ibuprofen. 7 52.) 8 high blood pressure, to which plaintiff responded, Yes. 9 times that the doctor has told me that I have it very high although I m (Joint Stip. at 12.) First, the (A.R. 151- Second, the ALJ asked whether plaintiff was taking medication for (A.R. 253-54.) But there s 10 taking the medication. Not only did the ALJ fail to 11 ask follow-up questions about these particular medications and their 12 side effects, but the ALJ also failed to ask any questions whatsoever 13 regarding the other 14 medications plaintiff was taking. 14 15 Moreover, plaintiff argues, counsel would have inquired into 16 plaintiff s psychiatric treatment, specifically plaintiff s anxiety and 17 depression, which cause significant non-exertional limitations affecting 18 plaintiff s ability to engage in substantial gainful activity. 19 Stip. at 16.) (Joint For instance, on March 1, 2006, Dianne L. DeFreece, 20 21 3 22 23 24 25 The record reflects that plaintiff was taking the following medications: (1) neurontin for nerve pain; (2) legatrin for lower body pain; (3) alprazolam for anxiety; (4) fluoxetine for depression; (5) hydrochlorothiazide for kidney disease; (6) cozaar for high blood pressure; (7) pravachol for high cholesterol; (8) nifedipine for angina; (9) ranitidine for heartburn; (10) calcium carbonate for osteoporosis; (11) metformin for diabetes; (12) glyburide for diabetes; (13) humulin for diabetes; (14) docusate sodium for bowel movements; (15) glucosamine for joint health; and (16) asprin for heart health. (A.R. 78, 130-32.) 26 4 27 28 Critically, the ALJ s only inquiry regarding plaintiff s pain was directed to her back pain, despite the fact that plaintiff indicated on the Disability Report - Appeal form that she was taking two medications, i.e., neurontin and legatrin, for her leg pain. (A.R. 78.) 10 1 Psy.D., noted that plaintiff 2 deprecating thoughts, and plaintiff was tearful, depressed, irritable, 3 and anxious. 4 depressive disorder, not otherwise specified, and noted that plaintiff 5 was taking Xanax and Prozac. 6 questions regarding the impact of plaintiff s depression and anxiety on 7 her ability to work or to inquire whether plaintiff received any follow- 8 up psychiatric treatment for her conditions. (A.R. 211.) exhibited suicidal ideation with Dr. DeFreece diagnosed plaintiff with (Id.) However, the ALJ failed to ask any 9 10 In addition, plaintiff suggests that there could be additional, 11 pertinent 12 neuropathy and attendant lower extremity pain that the ALJ failed to 13 investigate. 14 evidence that, on December 9, 2004, an EMG was performed of plaintiff s 15 lower extremities, which produced normal results, it was recommended 16 that 17 extremities to rule-out peripheral neuropathy. 18 no evidence that any nerve conduction study was performed, and if it 19 was, the results are not in the current record. 20 the ALJ recognized that plaintiff has neuropathy and took into account 21 plaintiff s upper extremity neuropathy in assessing plaintiff s RFC (see 22 A.R. 23-24 -- no fine manipulation, secondary to neuropathy), the ALJ 23 failed to consider adequately plaintiff s lower extremity neuropathy and 24 leg pain, which is well-documented in the record. (See, e.g., A.R. 147- 25 48, 154, 156-57, 204, 216.) Clearly, additional investigation into 26 these directly 27 determination. medical evidence regarding (Joint Stip. at 15, 19-20.) plaintiff matters undergo could nerve bear plaintiff s 11 with For instance, while there is conduction 28 diabetes on studies of both (A.R. 178.) lower There is Additionally, although plaintiff s disability Had the ALJ explored these issues at the hearing, the additional 1 2 evidence adduced might have altered the ALJ s decision. In the Court s 3 view, plaintiff has met her burden to demonstrate that, if represented 4 at the hearing, counsel could and would have adduced evidence that may 5 have altered the result. 6 7 Accordingly, the ALJ s failure to meet his heightened duty to 8 conscientiously and scrupulously probe into, inquire of, and explore 9 all the relevant facts at the hearing so as to protect plaintiff s 10 interests, especially in view of the fact that plaintiff was 11 unrepresented at the hearing, constitutes reversible error. 12 F.2d at 713. 13 conducting a proper inquiry of the aforementioned issues, and the ALJ 14 should obtain any and all outstanding medical records so that a proper 15 disability determination may be made on a complete record.5 Vidal, 637 On remand, the ALJ should further develop the record by 16 17 II. In Concluding That Plaintiff s Diabetes With Neuropathy Is Not A 18 "Severe" Impairment, The ALJ Failed To Consider Medical Evidence Of 19 Record, 20 Substantial Evidence. And His Conclusion Is Not Adequately Supported By 21 Under 22 the Commissioner s five-step process for evaluating 23 24 25 26 27 28 5 Defendant notes in his portion of the Joint Stipulation that, although plaintiff retained counsel two weeks after receiving the ALJ s unfavorable decision, there is no indication in the record that counsel attempted to secure any additional information or medical records that might help plaintiff s case. (Joint Stip. at 23.) While defendant is correct that counsel should have endeavored to supplement the record, counsel s failure to do so does not absolve the ALJ from his failure to develop the record while plaintiff was unrepresented during the administrative process. 12 1 disability claims, an impairment can be found not severe at step two 2 only if the evidence establishes a slight abnormality that has no more 3 than a minimal effect on an individual s ability to do basic work 4 activities. 5 severity requirement at this point in the analysis is nothing more than 6 a de minimus screening device to dispose of groundless claims. 7 1290; Bowen v. Yuckert, 482 U.S. 137, 153 (1987). 8 this threshold has been met, the ALJ must consider the combined effects 9 of all claimed impairments, as well as a claimant s subjective symptoms. 10 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The Id. at In assessing whether Smolen, 80 F.3d at 1290. 11 12 13 In finding that plaintiff s diabetes with neuropathy was not severe, the ALJ stated that: 14 15 [Plaintiff] has diabetes with early nephropathy6 and possible 16 neuropathy.7 17 not impose any functional limitations upon her ability to 18 perform basic work-related activities. 19 neuropathy, she is able to use her hands and walks with a 20 normal gait. 21 and reflexes of all extremities. However, [plaintiff s] early nephropathy does Although she has She has full motor power and normal sensation 22 23 6 24 According to http://diabetes.webmd.com, diabetic nephropathy is damage to your kidneys caused by diabetes. In severe cases, it can lead to kidney failure. 25 7 26 27 28 According to http://diabetes.webmd.com, neuropathy is defined as nerve disease or damage. According to http://medical-dictionary.com, diabetic neuropathy includes any of several clinical types of peripheral neuropathy (sensory, motor autonomic, and mixed) occurring with diabetes mellitus; the most common is a chronic, symmetrical sensory polyneuropathy affecting first the nerves of the lower limbs and often affecting autonomic nerves. 13 1 (A.R. 23; emphasis added.) 2 3 After reviewing 4 undermines 5 neuropathy is not a severe impairment. 6 the evidence regarding plaintiff s neuropathy, especially plaintiff s 7 lower extremity neuropathy, mischaracterizes the medical evidence and 8 does not fairly represent the significance of this impairment and the 9 limitations arising from it, as reflected in the record.8 the ALJ s the record as conclusion a that whole, substantial plaintiff s evidence diabetes with The ALJ s brief discussion of For instance, 10 as plaintiff correctly notes, plaintiff s medical records document that 11 she has diabetes mellitus with neuropathy (A.R. 156, 210), lower leg 12 paresthesia,9 paresthesia left foot (A.R. 156, 210), shin numbness right 13 greater than left and burning sensation to left greater toe and medial 14 side of foot (A.R. 157), decreased sensation to front of lower legs and 15 left medial side of foot, capillary refill greater than three seconds, 16 prescribed diabetic shoes (A.R. 202, 204-08), abnormal sensation in her 17 feet (A.R. 163) leg cramps (A.R. 154), and bilateral leg pain (A.R. 18 148). 19 normal sensation . . . of all extremities - does not accurately The ALJ s interpretation of this evidence -- that plaintiff has 20 21 8 26 Even if viewed as an implicit rejection of plaintiff s treating physician s opinions, rather than a mischaracterization of the medical evidence, the ALJ s failure to set forth specific and legitimate reasons for the rejection still constitutes error. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)(when the ALJ rejects the opinion of a treating physician, even if it is contradicted, the ALJ may reject that opinion only by providing specific and legitimate reasons for doing so, supported by substantial evidence in the record); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)(it is error for an ALJ to ignore or misstate the competent evidence in the record to justify his conclusion). 27 9 22 23 24 25 28 According to http://medical-dictionary.com, paresthesia is defined as an abnormal tactile sensation, described as burning, pricking, tickling, tingling, or creeping, which indicates nerve irritation. 14 1 reflect the medical evidence of record. (A.R. 23.) 2 3 Indeed, the numbness, pain, cramping, and burning sensation in 4 plaintiff s lower extremities, about which she complained to her 5 treating physicians and which caused loss of feeling in her lower legs 6 and left foot and required her to wear prescription shoes, would likely 7 have more than a minimal effect on plaintiff s ability to work, 8 particularly with respect to plaintiff s ability to stand and walk, 9 which the ALJ determined plaintiff could do for six hours out of an 10 eight-hour workday. (A.R. 24.) A more conscientious inquiry into these 11 areas should have been performed by the ALJ to determine properly 12 whether plaintiff retains the RFC to perform her past relevant work. 13 14 Accordingly, the record as a whole demonstrates that plaintiff s 15 diabetes with neuropathy would have more than a minimal effect on 16 plaintiff s ability to function in the workplace, and the ALJ s finding 17 to the contrary is not based on substantial evidence and constitutes 18 error. 19 20 21 III. The ALJ Failed To Address Adequately The Impact Of Plaintiff s Obesity On Her Ability To Perform Her Past Relevant Work. 22 23 Plaintiff contends that the ALJ failed to analyze the impact of 24 plaintiff s obesity on her other impairments, including her diabetes 25 mellitus. 26 ALJ should have assessed, per SSR 02-1p, whether or not the impact of 27 the combined effect of obesity and [d]iabetes [m]ellitus, including 28 neuropathy, paresthesia, leg cramps, leg pain, numbness and burning of (Joint. Stip. at 36.) Plaintiff further contends that the 15 1 her shin and feet, would affect the [p]laintiff s ability to perform 2 exertional functions, including standing and walking, lifting, carrying, 3 pushing, and pulling, as well as whether it would affect her ability to 4 function in the work environment and sustain a function over time. 5 (Joint Stip. at 36-37.) The Court agrees. 6 Social 7 Security should Ruling ( SSR ) consider the 02-1p effect provides obesity has that upon the 8 Administration the 9 individual s ability to perform routine movement and necessary physical 10 activity within the work environment. . . . The combined effects of 11 obesity with other impairments may be greater than might be expected 12 without obesity. . . . 13 on whether obesity caused any physical or mental limitations. [W]e will explain how we reached our conclusions 14 While obesity itself is not a disabling impairment, Listings 15 16 1.00Q, 3.00I, and 4.00F describe muscular, respiratory, and 17 cardiovascular problems that can result in limitations arising from 18 obesity. Applicable regulations provide that:10 19 20 Obesity is a medically determinable impairment that is often 21 associated 22 respiratory, and cardiovascular] system, and disturbance of 23 this system can be a major cause of disability in individuals 24 with 25 [musculoskeletal, respiratory, and cardiovascular] impairments with obesity. disturbance The combined of the effects [musculoskeletal, of obesity with 26 27 28 10 Listing 1.00Q addresses musculoskeletal impairments; Listing 3.00I addresses respiratory impairments; and Listing 4.00F addresses cardiovascular impairments. 16 1 can be greater than the effects of each of the impairments 2 considered separately. Therefore, when determining whether an 3 individual with obesity has a listing-level impairment or 4 combination of impairments, and when assessing a claim at 5 other steps of the sequential evaluation process, including 6 when assessing an individual s residual functional capacity, 7 adjudicators must consider any additional and cumulative 8 effects of obesity. 9 10 20 C.F.R. Pt. 404, Subpt. P, Appx. I, § 1.00Q, 3.00I, and 4.00F. 11 In 12 addition to the Commissioner s regulations, SSR 02-01p 13 recognizes obesity as a medically-determinable impairment and states 14 that administrative law judges should consider the combined effects of 15 obesity with other impairments under the Listing of Impairments when 16 assessing 17 Institutes of Health s (NIH) classification and diagnosis of obesity 18 according to Body Mass Index (BMI), considers anyone with a BMI over 30 19 to be obese. 20 obesity. 21 35.0-39.9. 22 greatest risk for developing obesity-related impairments, includes BMIs 23 greater than or equal to 40. a claimant s RFC.11 SSR 02-01p, adopting the National The Clinical Guidelines recognize three levels of Level 1 includes BMIs of 30.0-34.9. Level II includes BMIs of Level III, termed extreme obesity and representing the Soc. Sec. R. 02-01p. 24 In 25 the present case, the ALJ failed to discharge the 26 11 27 28 Social Security Ruling 02-01p superseded Social Security Ruling 003p, although it did not alter Social Security Ruling 00-3p in any substantive part. 20 C.F.R. Pt. 404, Subpt. P, Appx. I, § 1.00Q, 3.00I, and 4.00F. 17 1 Administration s responsibilities under SSR 02-1p. The medical evidence 2 conclusively establishes that plaintiff suffers from extreme obesity, 3 a finding that is well-documented by the record and uncontested by the 4 Commissioner.12 5 216-17.) At the hearing, plaintiff testified that she weighs 253 pounds 6 and is 5 feet tall.13 7 pounds and height of 5 feet, 8 BMI levels are flexible guidelines and do not correlate with any 9 specific (See, e.g., A.R. 137, 140, 145, 148, 154, 161-63, 214, degree of (A.R. 251.) Using plaintiff s weight of 253 plaintiff s BMI is 49.4.14 functional loss, plaintiff s Although the resulting BMI 10 calculation suggests that her extreme obesity likely has a profound 11 impact 12 significant issue that the ALJ should have carefully explored in greater 13 detail in assessing her RFC. on her ability to perform work activities and presents a SSR 02-01p. 14 15 In assessing plaintiff s RFC, the ALJ concluded that plaintiff is 16 capable of engaging in medium work, i.e., capable of lifting and 17 carrying 50 pounds occasionally and 25 pounds frequently and capable of 18 standing and/or walking for 6 hours out of an 8 hour workday. 19 24.) 20 impact of plaintiff s extreme obesity on her ability to perform work 21 activities, it is difficult to accept the conclusion that plaintiff -- 22 who stands only 5 feet tall, weighs over 250 pounds, suffers from (A.R. Without the benefit of a detailed analysis by the ALJ of the 23 24 12 The ALJ found that plaintiff suffers from severe obesity, along with severe back pain. (A.R. 23.) 25 13 26 In an August 16, 2006 Disability Report, plaintiff stated that she was 5 feet tall and weighed 285 pounds. (A.R. 119.) 27 14 28 Plaintiff s BMI was calculated by using the BMI calculator found at the Centers for Disease Control and Prevention website <http://www.cdc.gov/healthyweight/assessing/bmi/>. 18 1 severe back pain (A.R. 23), and suffers from medically documented 2 diabetes with neuropathy in her lower extremities (A.R. 156, 210), shin 3 numbness (A.R. 157), burning sensation in left greater toe (A.R. 157), 4 leg cramps (A.R. 154), and bilateral leg pain (A.R. 148) -- is capable 5 of standing and/or walking for six hours out of an eight-hour workday on 6 a regular and continuing basis. 7 1068 (7th Cir. 2004)(stating that many people who are not grossly obese 8 and do not have arthritic knees find it distinctly uncomfortable to 9 stand for two hours at a time. See Barrett v. Barnhart, 355 F.3d 1065, To suppose that [the plaintiff, who 10 weighed more than 300 pounds and was only 5 feet 1 inch tall,] could do 11 so day after day on a factory floor borders on the fantastic ). 12 13 The ALJ is required to do more than simply state that he 14 considered all symptoms and the extent to which these symptoms can 15 reasonably 16 evidence. 17 account the impact of plaintiff s obesity on her other impairments, 18 whether severe or not, and the ALJ must explain how [he] reached [his] 19 conclusions. be accepted (A.R. 24.) SSR 02-1p. as consistent with the objective medical Rather, the ALJ must specifically take into His failure to do so here constitutes error. 20 21 Accordingly, remand is appropriate to allow the ALJ to re-assess 22 his RFC finding, paying particular attention to the significant impact 23 plaintiff s extreme obesity may have on her other impairments and on her 24 ability to perform work activities on a sustained and competitive basis. 25 /// 26 /// 27 /// 28 /// 19 1 IV. 2 The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 3 Plaintiff alleges that the ALJ erred in his consideration of 4 5 plaintiff s subjective symptom testimony. 6 48.) (Joint Stip. at 41-44, 47- For the reasons set forth below, the Court agrees. 7 8 Once a disability claimant produces objective evidence of an 9 underlying physical impairment that is reasonably likely to be the 10 source of her subjective symptom(s), all subjective testimony as to the 11 severity of the symptoms must be considered. 12 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 13 (9th Cir. 2001)(en banc); see also 20 C.F.R. § 404.1529(a) (explaining 14 how pain and other symptoms are evaluated). 15 finding of malingering based on affirmative evidence thereof, he or she 16 may only find an applicant not credible by making specific findings as 17 to credibility and stating clear and convincing reasons for each." 18 Robbins, 466 F.3d at 883. 19 absence of objective medical evidence supporting the degree of pain 20 alleged as a basis for finding that a plaintiff s testimony regarding 21 subjective symptoms is not credible. 22 601-02 (9th Cir. 1989); Stewart v. Sullivan, 881 F.2d 740, 743-44 (9th 23 Cir. 1989). Moisa v. Barnhart, 367 [U]nless an ALJ makes a Further, an ALJ may not rely solely on the Fair v. Bowen, 885 F.2d 597, 24 25 In her filings with the Commissioner and in her testimony, and 26 throughout the medical evidence of record, plaintiff described various 27 subjective 28 testified that she stopped working because of her back pain, diabetes, symptoms from which she 20 claims to suffer. Plaintiff 1 and arthritis. (A.R. 251.) 2 very tired and has a lot of pain on [sic] [her] back, for which she 3 takes medication. (A.R. 251-52.) Throughout the medical records, there 4 is evidence of plaintiff s complaints of: 5 extremities (A.R. 156, 210); lower leg paresthesia (id.); burning 6 sensation in her left greater toe and medial side of foot (A.R. 157); 7 shin numbness (id.); leg cramps (A.R. 154); decreased sensation to front 8 of lower legs (A.R. 202, 204-08); and bilateral leg pain (A.R. 148). 9 a Function Report - Adult, plaintiff stated that before her illnesses, 10 injuries, or conditions, she could bend over, do full house chores, 11 [and] walk long distances. 12 cooks and irons while seated, and is able to perform limited cleaning, 13 with breaks, approximately two to three times weekly. 14 Plaintiff 15 assistance. 16 difficulty talking to people, because she feels depressed, is unable to 17 handle stress, and gets scared easily. 18 that she can lift less than 25 pounds, walk a few blocks, stand for a 19 limited time, and while standing, [she] need[s] to take breaks [to] 20 sit every 15 minutes or so. (A.R. 97.) 21 plaintiff claimed that she has pain daily in her back and legs, and her 22 legs get numb but hurt at the same time [and her] back [has] just sharp 23 pain, which lasts sometimes a few hours, sometimes it s all day. 24 (A.R. 126.) 25 gabapentin daily for the pain, but the medications make her sleepy. 26 (A.R. 126-27.) claimed (A.R. that 95.) Plaintiff further testified that she gets (A.R. 93.) she cannot Plaintiff go neuropathy in her lower In She further stated that she grocery further (A.R. 26, 94.) shopping claimed (A.R. 97-98.) that without she has Plaintiff stated In a Pain Questionnaire, Plaintiff stated that she takes cyclobenzaprine and 27 28 In his written decision, the ALJ found that plaintiff suffers from 21 1 the severe impairments of obesity and back pain, both of which are 2 medically determinable impairments that reasonably could cause the 3 subjective pain symptoms and attendant limitations about which plaintiff 4 complains.15 5 statements regarding the nature and extent of her pain, without making 6 any specific findings regarding plaintiff s credibility. 7 Indeed, the entirety of the ALJ s analysis of plaintiff s credibility is 8 as follows: (A.R. 23.) However, the ALJ rejected plaintiff s (A.R. 26.) 9 10 [Plaintiff] 11 prolonged periods. 12 pounds and walk 3 to 4 blocks before needing to rest for 10 13 minutes. [Plaintiff] also alleges that she needs to sit while 14 cooking and ironing and must take breaks while performing the 15 household chores that she does two to three times weekly. alleges difficulty standing and walking for She claims she can lift less than 25 16 17 After considering the evidence of record, the undersigned 18 finds that [plaintiff s] medically determinable impairments 19 could reasonably be expected to produce the alleged symptoms, 20 but that [plaintiff s] statements concerning the intensity, 21 persistence and limiting effects of these symptoms are not 22 entirely credible. 23 . . . . 24 25 15 26 27 28 Although the ALJ found that plaintiff s diabetes with neuropathy was not a severe impairment, that finding was, as discussed supra, erroneous. (A.R. 24.) The record evidence establishes that plaintiff s diabetes with neuropathy is a medically determinable impairment that reasonably could cause the pain and attendant limitations about which plaintiff complains. (A.R. 156-57, 202, 204-08, 210.) 22 1 In her Function Report - Adult, [plaintiff] stated that she 2 cooks and irons while seated and takes breaks while doing 3 household chores. 4 and watching television. She reported that her hobbies are reading 5 6 (A.R. 26.) 7 pain and attendant limitations, without setting forth any clear and 8 convincing reasons for doing so, constitutes error. The ALJ s rejection of plaintiff s subjective complaints of 9 10 Although the Commissioner now attempts to justify the ALJ s 11 insufficient credibility analysis by offering post-hoc rationale to 12 support it (Joint Stip. at 44-47), a reviewing court cannot affirm the 13 denial of benefits based on a reason not stated or a finding not made by 14 the ALJ, and defendant s after-the-fact attempt to supply an acceptable 15 basis for the ALJ s decision to reject the credibility of plaintiff s 16 subjective symptom statements is unavailing. 17 (noting that a reviewing court is constrained to review the reasons the 18 ALJ asserts, and an ALJ s decision cannot be affirmed on the basis of 19 evidence he did not discuss); Pinto v. Massanari, 249 F.3d 840, 847-48 20 (9th Cir. 2001)(an agency decision cannot be affirmed based on a ground 21 that the agency did not invoke in making its decision); see also Barbato 22 v. Comm r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 23 1996)(remand is appropriate when a decision does not adequately explain 24 how a decision was reached, [a]nd that is so even if [the Commissioner] 25 can 26 conclusions, for the Commissioner s decision must stand or fall with 27 the reasons set forth in the ALJ s decision, as adopted by the Appeals 28 Council )(citation omitted). offer proper post hoc explanations 23 See, e.g., Connett at 874 for such unexplained Accordingly, 1 the ALJ s rejection of plaintiff s credibility, 2 without setting forth clear and convincing reasons for the rejection, 3 constitutes reversible error. 4 if they exist and are in accordance with the requisite legal standards, 5 for discrediting plaintiff s pain testimony. On remand, the ALJ must provide reasons, 6 7 V. Remand Is Required. 8 9 The decision whether to remand for further proceedings or order an 10 immediate award of benefits is within the district court s discretion. 11 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 12 useful purpose would be served by further administrative proceedings, or 13 where the record has been fully developed, it is appropriate to exercise 14 this discretion to direct an immediate award of benefits. 15 ( the decision of whether to remand for further proceedings turns upon 16 the likely utility of such proceedings ). 17 outstanding issues that must be resolved before a determination of 18 disability can be made, and it is not clear from the record that the ALJ 19 would be required to find the claimant disabled if all the evidence were 20 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. 21 22 Here, remand is appropriate to allow the ALJ an opportunity to 23 remedy the above-mentioned deficiencies and errors. 24 v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for further 25 proceedings is appropriate if enhancement of the record would be 26 useful); 27 1989)(remand appropriate to remedy defects in the record). McAllister v. Sullivan, 28 24 888 F.2d See, e.g., Benecke 599, 603 (9th Cir. 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 DATED: September 29, 2009 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25
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