Patricia Salazar v. Michael J Astrue, No. 2:2007cv08173 - Document 20 (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 PATRICIA SALAZAR, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 07-8173-MAN MEMORANDUM OPINION AND ORDER 17 Plaintiff filed a Complaint on December 27, 2007, seeking review of 18 the denial by the Social Security Commissioner ( Commissioner ) of 19 plaintiff s application for a period of disability ( POD ), disability 20 insurance benefits ( DIB ), and supplemental security income ( SSI ). 21 On February 7, 2008, the parties consented to proceed before the 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). The parties filed a Joint Stipulation on October 21, 2008, in 24 which: plaintiff seeks an order reversing the Commissioner s decision 25 and awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner s decision. The Court has taken the parties 28 Joint Stipulation under submission without oral argument. administrative proceedings; and defendant seeks an order SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On June 24, 2004, plaintiff filed applications for a POD, DIB, and 4 SSI, alleging an inability to work since June 1, 2003, due to obesity 5 and knee problems. 6 342-44.) 7 manager and sales attendant. (Administrative Record ( A.R. ) 31, 53-55, 100-01, Plaintiff has past relevant work experience as a theater (A.R. 87, 92.) 8 9 The Commissioner denied plaintiff s application initially (A.R. 31- 10 35) 11 plaintiff, who was represented by counsel, testified at a hearing before 12 Administrative Law Judge Barry S. Brown ( ALJ ). 13 July 10, 2006, the ALJ denied plaintiff s claims (A.R. 15-23), and the 14 Appeals Council subsequently denied plaintiff s request for review of 15 the ALJ s decision (A.R. 5-7). and on reconsideration (A.R. 38-43). On February 21, 2006, (A.R. 354-71.) On 16 17 SUMMARY OF ADMINISTRATIVE DECISION 18 19 In his written decision, the ALJ found that plaintiff has not 20 engaged in substantial gainful activity since June 1, 2003, plaintiff s 21 alleged disability onset date, and that plaintiff meets the insured 22 status requirements of the Social Security Act through December 31, 23 2006. 24 severe morbid obesity, osteoarthritis, headaches, and sleep apnea, but 25 she does not have any impairment or combination of impairments that meet 26 or medically equal one of the listed impairments in Appendix 1, Subpart 27 P, Regulations No. 4. 28 plaintiff has some depression, but the evidence does not show that it (A.R. 17.) The ALJ determined that plaintiff suffers from (A.R. 17-18.) 2 The ALJ also determined that 1 is of any severe degree. (A.R. 17.) 2 3 The ALJ stated that he considered plaintiff s obesity in 4 conjunction with Social Security Ruling 02-01p and Listings 1.01, 3.01, 5 and 4.01 relative to disorders of the musculoskeletal, respiratory, and 6 cardiovascular systems. 7 statements concerning the intensity, persistence, and limiting effects 8 of her subjective symptoms are not entirely credible. (A.R. 18, 20.) The ALJ found that plaintiff s (A.R. 18.) 9 10 In setting forth plaintiff s residual functional capacity ( RFC ), 11 the ALJ relied upon the opinion of Joselyn Bailey, M.D., a non- 12 examining, non-testifying medical expert, and found that: 13 14 [Plaintiff] has the residual functional capacity for light 15 work with the ability to lift and carry 25 pounds occasionally 16 and 10 pounds frequently, sit for two hours at a time, stand 17 for one hour at a time, and walk for one hour at a time, for 18 a total of eight hours of sitting, four hours of standing, and 19 four 20 [Plaintiff] is able to use her hands for simple repetitive 21 grasping and for pushing and pulling of arm controls, and 22 occasionally for fine manipulation. 23 repetitive pushing and pulling of leg controls. [Plaintiff] is 24 unable to squat or crawl, but can occasionally climb stairs 25 and frequently bend or reach. 26 at 27 machinery and driving automotive equipment. hours of unprotected walking heights, during an eight hour workday. She can use her feet for She is restricted from working being 28 3 around large fast moving 1 (A.R. 18.) 2 3 Based on his RFC assessment, the ALJ found that plaintiff is 4 capable of performing her past relevant work as a theater manager or 5 sales attendant. 6 finding that, even if plaintiff had a more restrictive RFC for no more 7 than sedentary work, there are jobs that exist in significant numbers in 8 the 9 Accordingly, the ALJ concluded that plaintiff was not under a disability 10 national (A.R. 21.) economy that In addition, the ALJ made the alternative plaintiff can perform. (A.R. from June 1, 2003, through the date of the ALJ s decision. 21-22.) (A.R. 22.) 11 12 STANDARD OF REVIEW 13 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to determine whether it is free from legal error and supported 16 by substantial evidence in the record as a whole. 17 F.3d 625, 630 (9th Cir. 2007). 18 evidence as a reasonable mind might accept as adequate to support a 19 conclusion. 20 a mere scintilla but not necessarily a preponderance. 21 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 22 record can constitute substantial evidence, only those reasonably 23 drawn from the record will suffice. 24 1063, 1066 (9th Cir. 2006)(citation omitted). 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 25 26 Although this Court cannot substitute its discretion for that of 27 the Commissioner, the Court nonetheless must review the record as a 28 whole, weighing both the evidence that supports and the evidence that 4 1 detracts from the [Commissioner s] conclusion. Desrosiers v. Sec y of 2 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 3 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 4 responsible for determining credibility, resolving conflicts in medical 5 testimony, and for resolving ambiguities. 6 1035, 1039-40 (9th Cir. 1995). The ALJ is Andrews v. Shalala, 53 F.3d 7 8 9 The Court will uphold the Commissioner s decision when the evidence is susceptible to more than one rational interpretation. Burch v. 10 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may 11 review only the reasons stated by the ALJ in his decision and may not 12 affirm the ALJ on a ground upon which he did not rely. 13 at 630; see also Connett, 340 F.3d at 874. 14 the Commissioner s decision if it is based on harmless error, which 15 exists only when it is clear from the record that an ALJ's error was 16 inconsequential to the ultimate nondisability determination. Robbins 17 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 18 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 19 F.3d at 679. Orn, 495 F.3d The Court will not reverse 20 21 DISCUSSION 22 23 Plaintiff alleges the following two issues: (1) whether the ALJ s 24 residual functional capacity assessment is supported by substantial 25 evidence; and (2) whether the ALJ s credibility analysis is supported by 26 substantial evidence. (Joint Stipulation ( Joint Stip. ) at 3.) 27 28 5 1 I. The ALJ s RFC Finding Is Not Supported By Substantial Evidence And 2 Should Be Re-Assessed On Remand. 3 Plaintiff contends that the ALJ s RFC assessment is not supported 4 5 by substantial evidence. 6 argues that the ALJ erred by: 7 of plaintiff s treating physician and, instead, relying on the opinion 8 of 9 plaintiff s RFC; and (B) failing to consider properly plaintiff s a non-examining, (Joint Stip. at 15.) Specifically, plaintiff (A) inadequately considering the opinion non-testifying medical expert 10 obesity in formulating the ALJ s RFC assessment. 11 15-16.) in determining (Joint Stip. at 3-9, For the following reasons, the Court agrees. 12 13 A. 14 The ALJ Improperly Rejected Plaintiff s Treating Physician s Opinion And Relied Upon The Opinion Of The Medical Expert. 15 16 By rule, the Social Security Administration favors the opinion of 17 a treating physician over non-treating physicians, and it is well- 18 settled that the opinions of treating doctors should be given more 19 weight than the opinions of doctors who do not treat the claimant. 20 Orn, 495 F.3d at 631-32. 21 given greater weight, because he is employed to cure and has a greater 22 opportunity 23 Magallanes 24 omitted). 25 contradicted by other medical evidence in the record, an ALJ may not 26 reject it without providing specific and legitimate reasons for doing so 27 which are supported by substantial evidence in the record. 28 Bowen, 849 F.2d 418, 422 (9th Cir. 1988). to v. know and Brown, Where, Generally, a treating physician s opinion is as 881 observe F.2d here, the 747, the patient 751 treating 6 (9th as an individual. Cir. 1989)(citation physician s opinion is Embrey v. 1 If there is substantial evidence in the record that contradicts 2 the opinion of a treating physician, such as an examining physician s 3 opinion supported by independent clinical findings, the opinion of the 4 treating physician is no longer entitled to controlling weight. 5 495 F.3d at 632. 6 opinion is not entitled to controlling weight does not mean that the 7 opinion is rejected. 8 cases, a treating source s medical opinion will be entitled to the 9 greatest weight and should be adopted, even if it does not meet the test Orn, However, a finding that the treating physician s Social Security Ruling 96-29 at 1 ( In many 10 for controlling weight. ). 11 regulations still require deference to the treating physician s opinion, 12 but the weight accorded to it is governed by the factors listed in the 13 regulations, such as length, nature, and extent of the treatment 14 relationship, frequency of examination, and supportability. 15 §§ 404.1527(d)(2), 416.927(d)(2); Orn, 495 F.3d at 632-33. In this instance, the Social Security 20 C.F.R. 16 17 In the instant case, the ALJ rejected the opinion of plaintiff s 18 treating physician, Tenzing Wangyal, M.D., in favor of the opinion of 19 the non-examining, non-testifying medical expert, Joselyn Bailey, M.D. 20 (A.R. 21.) 21 22 Dr. Wangyal, an internal medicine physician of the Talbert Medical 23 Group, where plaintiff has regularly treated since March 2003, completed 24 a Physical Residual Functional Capacity Questionnaire, in which he 25 diagnosed plaintiff with, inter alia: 26 (2) morbid obesity - poor prognosis; and (3) back pain, chronic - poor 27 prognosis 28 plaintiff: due to weight. (A.R. (1) headaches - good prognosis; 252.) Dr. Wangyal opined that has bilateral pain in her lumbar and cervical spine and in 7 1 her feet, which is precipitated by fatigue, stress, and movement; has 2 impaired sleep affected by somatoform disorder; has emotional factors 3 that contribute to the severity of her symptoms and limitations; often 4 experiences symptoms severe enough to interfere with attention and 5 concentration and has a slight limitation in the ability to deal with 6 work stress; is not a malingerer; has impairments reasonably consistent 7 with her symptoms and functional limitations; can sit for at least six 8 hours in an eight hour work day, but can stand or walk for less than two 9 hours in an eight hour work day; is able to continuously sit for more 10 than two hours, but can stand only 15 minutes at a time; must get up and 11 walk around for five minutes, every 60 minutes; does not need a job 12 which permits shifting positions at will from sitting, standing, or 13 walking, but will sometimes need to take unscheduled five minute breaks, 14 at least once per shift, during an eight hour work day; if possible, 15 should elevate her legs with prolonged sitting, but elevation is not 16 necessary; can occasionally lift 10 pounds and frequently lift less than 17 10 pounds; has no significant limitations in doing repetitive reaching, 18 handling or fingering; can bend only 10 percent of the time during an 19 eight hour work day, and can never twist at the waist as both functions 20 are very difficult with her weight ; and should avoid concentrated 21 exposure to extreme cold, extreme heat, high humidity, chemicals, 22 solvents/cleaners, soldering fluxes, cigarette smoke, perfumes, fumes, 23 odors, dusts, and gases. 24 opined 25 experience good days and bad days, and plaintiff will likely be 26 absent from work as a result of her impairments or treatment about three 27 times a month. 28 limitations that plaintiff s (A.R. 255-57.) impairments (A.R. 257.) (such as are In addition, Dr. Wangyal likely to cause her to Finally, when asked to describe any other psychological 8 limitations, limited vision, 1 difficulty hearing, etc.) that would affect plaintiff s ability to work 2 at a regular job on a sustained basis, Dr. Wangyal opined that when she 3 has come in, she has had a chronic low level flat affect/depressive 4 appearance/ I suspect this will be a limiting factor to her success in 5 her work. (A.R. 258.) 6 7 By contrast, the non-examining, non-testifying medical expert, Dr. 8 Bailey, submitted a one-page response to an interrogatory sent to her by 9 the ALJ post-hearing, dated April 13, 2006, in which Dr. Bailey stated 10 that plaintiff has the following medical diagnoses: 11 7/1/04 (3F/1) [and] 2. Morbid Obesity - 12/10/03 (8F/24) for ten years 12 with Chronic Pain Syndrome (2F/17), (5F/1) and Headaches. 13 Dr. Bailey explained that [a]t [plaintiff s] young age of about 30 14 years old, her physical problems are related to being overweight. 15 this time she does not meet nor equal any of the Listings. 16 Bailey also submitted a one-page Physical Capacities Evaluation, dated 17 April 13, 2006, in which she opined that plaintiff retains the residual 18 functional capacity for generally light work, except for restrictions on 19 squatting, crawling, working at unprotected heights, being around moving 20 machinery, and driving automotive equipment. 21 further opined that plaintiff can occasionally crawl, use her hands for 22 fine manipulation, climb stairs, and frequently bend and reach. 1. Sleep Apnea - (A.R. 341.) (A.R. 340.) (Id.) At Dr. Dr. Bailey (Id.) 23 24 In discussing, and subsequently rejecting, Dr. Wangyal s opinion, 25 the ALJ simply stated that, [t]he record contains an assessment 26 submitted by [plaintiff s] physician, Dr. Tenzing Wangyal[,] under 27 Exhibit 10F[,] which reflects the capacity for generally sedentary work. 28 Other restrictions noted with respect to [plaintiff s] symptomatology 9 1 being severe enough to often interfere with attention and concentration 2 and causing her to be absent from work three times a month is excessive 3 and found to be without any objective basis. (A.R. 21.) 4 The 5 ALJ s stated reason for rejecting plaintiff s treating 6 physician s opinion falls short of the specific, legitimate standard 7 contemplated by Ninth Circuit precedent, because the ALJ must do more 8 than offer his conclusions ; instead, he must explain why and give 9 reasons for rejecting Dr. Wangyal s opinion regarding plaintiff s 10 residual functional capacity. Embrey, 849 F.2d at 421-22. 11 when examined in the light of plaintiff s treatment record from March 12 2003, through January 2006, Dr. Wangyal s opinion is consistent with the 13 objective medical record as a whole. 14 records clearly document her morbid obesity, edema, osteoarthritis, 15 headaches, back and neck pain, shortness of breath, sleep apnea, 16 fatigue, flat affect, and depressive appearance. 1 (A.R. 178-79, 185- Moreover, Indeed, plaintiff s medical 17 18 19 20 21 22 23 24 25 26 27 28 1 The ALJ found that plaintiff has some depression but that it is not severe, because she has not maintained any ongoing care for a mental impairment except for a brief period of treatment with a psychologist. (A.R. 17.) However, Carol Cole, Psy.D, the psychologist with whom plaintiff treated from July 2003, through April 2004, opined in a July 10, 2004 letter to the Department of Social Services that plaintiff s sustained concentration is limited, she would have problems in adaptation, and her ability to persist in accomplishing a task would be severely limited. (A.R. 156.) Moreover, and critically, at the hearing, plaintiff testified that she participated in psychological treatment for a approximately five months but was forced to abandon treatment because she had no money to pay her therapist. (A.R. 368.) The Ninth Circuit has proscribed the rejection of a claimant s complaints for lack of treatment when the record establishes that the claimant could not afford it. Regennitter v. Comm r of Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995)( [a]lthough progress has been made in providing affordable medical care to the needy . . . many Americans are without 10 1 86, 200, 203, 210, 212, 214-15, 217, 258, 264-65.) 2 entirety, the record provides ample support for the opinion of Dr. 3 Wangyal, and the ALJ erred in rejecting his opinion without setting 4 forth 5 substantial evidence for doing so. 6 allow the ALJ the opportunity to remedy this error. the requisite specific and legitimate When viewed in its reasons based upon Accordingly, remand is required to 7 8 Furthermore, not only did the ALJ improperly reject the opinion of 9 Dr. Wangyal, but also, in assessing plaintiff s RFC, the ALJ relied on 10 the opinion of Dr. Bailey, the medical expert, whose opinion itself 11 would not constitute substantial evidence if she failed to review all 12 relevant medical records regarding plaintiff. (A.R. 21.) Cf. Morgan v. 13 Comm r 14 1999)( [o]pinions of a nonexamining, testifying medical advisor may 15 serve as substantial evidence when they are supported by other evidence 16 in the record and are consistent with it. ); see also 20 C.F.R. §§ 17 404.1545(a), 416.945(a) (RFC is an assessment based upon all of the of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 18 19 20 21 the means or opportunity to obtain necessary medical care. Social Security disability and SSI benefits exist to give financial assistance to disabled persons because they are without the ability to sustain themselves. It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him. )(citations omitted). 22 23 24 25 26 27 28 On remand, the ALJ should consider the impact of all of plaintiff s impairments, including plaintiff s depression, whether severe or not, on her ability to engage in and sustain full-time work. See 20 C.F.R. §§ 404.1545(e), 416.945(e) ( we will consider the limiting effects of all your impairment(s), even those that are not severe, in determining your residual functional capacity ); see also Smolen, 80 F.3d at 1290 ( the ALJ must consider the combined effect of all of the claimant s impairments on [his] ability to function, without regard to whether each alone was sufficiently severe. ); Erickson v. Shalala, 9 F.3d 813 (9th Cir. 1993)( The ALJ must consider all factors that might have a significant impact on an individual's ability to work . )(emphasis in original). 11 1 relevant evidence). Dr. Bailey did not testify at the hearing, but set 2 forth her opinion regarding plaintiff s impairments in a one-page, 3 cursory response to an interrogatory sent to her post-hearing by the 4 ALJ, and a one-page Physical Capacities Evaluation form. (A.R. 340-41.) 5 As Dr. Bailey did not testify at the hearing, plaintiff s counsel was 6 not afforded the opportunity to cross-examine her regarding what records 7 she reviewed in forming her opinion or with respect to the soundness of 8 her opinion.2 9 plaintiff s It is unclear whether Dr. Bailey actually reviewed medical records in their entirety in formulating her 10 opinion, given that Dr. Bailey cites only four exhibits in support of 11 her diagnoses.3 12 assessment is her reliance on a stale December 2003 treatment note from 13 Talbert 14 plaintiff s morbid obesity. Medical (A.R. 340.) Group that The most troubling aspect of Dr. Bailey s she used to support (A.R. 200, 340.) her diagnosis of This December 2003 15 16 17 18 19 20 21 22 2 In a letter to the ALJ dated May 25, 2006, plaintiff s counsel commented on Dr. Bailey s response and specifically requested an opportunity to cross examine Dr. Bailey at a supplemental hearing. (A.R. 116.) However, the ALJ ignored plaintiff s counsel s request to cross-examine Dr. Bailey and adopted Dr. Bailey s opinion with respect to plaintiff s RFC as his own. See Solis v. Schweiker, 719 F.2d 301, 302 (9th Cir. 1983)( A claimant in a disability hearing is not entitled to unlimited cross-examination, but rather such cross-examination as may be required for a full and true disclosure of the facts. 5 U.S.C. § 556(d). ). On remand, the ALJ should, at the very least, address plaintiff s counsel s request for cross-examination and, if the ALJ determines the request should be denied, the ALJ should state his reasons for denying plaintiff s counsel the opportunity to cross-examine Dr. Bailey. 23 3 24 25 26 27 28 In support of her diagnosis of sleep apnea, Dr. Bailey cites a July 2004 sleep study report by S.K. Mostafavi, M.D., F.C.C.P. from Advanced Sleep Medicine Services, Inc. (A.R. 152); in support of her diagnosis of morbid obesity, Dr. Bailey cites a December 2003 treatment note from Talbert Medical Group that reveals no particular weight for plaintiff, only that she was over scale weight (A.R. 200); in support of her diagnosis of chronic pain symdrome, Dr. Bailey cites a June 2004 pulmonary consultation report by Ramesh R. Patel, M.D., F.C.C.P., and an August 2004 follow-up clinic note by Babak Kasravi, M.D., from Los Angeles Cardiology Associates (A.R. 150, 157). 12 1 treatment note failed to document any particular weight for plaintiff, 2 mentioning only that plaintiff s weight was over scale, i.e., more 3 than 350 pounds. (A.R. 200.) 4 testified at the hearing that her weight had increased to 490 pounds, 5 i.e., a possible weight increase of 139 pounds over the weight reflected 6 on the December 2003 treatment note. 7 Dr. Bailey s interrogatory response, it is unclear whether Dr. Bailey 8 was aware of plaintiff s significant weight increase to 490 pounds as of 9 the date of the hearing in February 2006 -- a critical fact that must 10 In February 2006, however, plaintiff (A.R. 357.) Given the brevity of be, and should have been, considered in formulating plaintiff s RFC. 11 12 Accordingly, remand is required for proper consideration of the 13 physicians opinions in accordance with the governing legal standards, 14 and for re-assessment of plaintiff s RFC. 15 16 B. 17 The ALJ Failed To Assess Plaintiff s Obesity Properly In Formulating His RFC Assessment. 18 19 Social Security should Ruling ( SSR ) consider the 02-1p effect provides obesity has that upon the 20 Administration the 21 individual s ability to perform routine movement and necessary physical 22 activity within the work environment. . . . 23 obesity with other impairments may be greater than might be expected 24 without obesity. . . . 25 on whether obesity caused any physical or mental limitations. The combined effects of [W]e will explain how we reached our conclusions 26 27 28 While obesity itself is not a disabling impairment, Listings 1.00Q, 3.00I, and 4.00F describe 13 muscular, respiratory, and 1 cardiovascular problems that can result in limitations arising from 2 obesity. Applicable regulations provide that:4 3 4 Obesity is a medically determinable impairment that is often 5 associated 6 respiratory, and cardiovascular] system, and disturbance of 7 this system can be a major cause of disability in individuals 8 with 9 [musculoskeletal, respiratory, and cardiovascular] impairments 10 can be greater than the effects of each of the impairments 11 considered separately. Therefore, when determining whether an 12 individual with obesity has a listing-level impairment or 13 combination of impairments, and when assessing a claim at 14 other steps of the sequential evaluation process, including 15 when assessing an individual s residual functional capacity, 16 adjudicators must consider any additional and cumulative 17 effects of obesity. with obesity. disturbance The combined of the effects [musculoskeletal, of obesity with 18 19 20 C.F.R. Pt. 404, Subpt. P, Appx. I, § 1.00Q, 3.00I, and 4.00F. 20 In 21 addition to the Commissioner s regulations, SSR 02-01p 22 recognizes obesity as a medically-determinable impairment and states 23 that administrative law judges should consider the combined effects of 24 obesity with other impairments under the Listing of Impairments when 25 26 27 28 4 Listing 1.00Q addresses musculoskeletal impairments; Listing 3.00I addresses respiratory impairments; and Listing 4.00F addresses cardiovascular impairments. 14 a claimant s RFC.5 1 assessing 2 Institutes of Health s (NIH) classification and diagnosis of obesity 3 according to Body Mass Index (BMI), considers anyone with a BMI over 30 4 to be obese. 5 obesity. 6 35.0-39.9. 7 greatest risk for developing obesity-related impairments, includes BMIs 8 greater than or equal to 40. 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. 9 10 In the present case, the ALJ failed to discharge the 11 Administration s responsibilities under SSR 02-1p. The medical evidence 12 conclusively establishes that plaintiff suffers from extreme obesity, 13 also termed morbid obesity, a finding that is well-documented by the 14 record and uncontested by the Commissioner.6 15 testified that she weighs 490 pounds and is approximately 5 8 tall. 16 (A.R. 357.) Using plaintiff s weight of 490 pounds and height of 5 8 , 17 plaintiff s BMI 18 guidelines and do not correlate with any specific degree of functional 19 loss, plaintiff s resulting BMI calculation suggests that her extreme 20 obesity likely has a profound impact on her ability to perform work is 74.5.7 Although the At the hearing, plaintiff BMI levels are flexible 21 22 5 24 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. 25 6 23 26 The ALJ found that plaintiff suffers from severe morbid obesity, along with severe osteoarthritis, headaches, and sleep apnea. (A.R. 17.) 27 7 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/>. 15 1 activities and presents a significant issue that the ALJ should have 2 carefully explored in greater detail in assessing her RFC. SSR 02-01p. 3 4 In assessing plaintiff s RFC, the ALJ concluded, in reliance on the 5 medical expert s opinion, that plaintiff is capable of engaging in light 6 work and retains the capacity to walk for four hours and stand for four 7 hours daily. 8 of Dr. Bailey or a detailed analysis by the ALJ of the impact of 9 plaintiff s morbid obesity on her ability to perform work activities, it 10 is difficult to accept the conclusion that plaintiff, who weighs nearly 11 500 pounds, suffers from severe osteoarthritis and significant pain in 12 her neck, back, and knees, and suffers from medically documented edema 13 in her lower extremities, is capable of walking for four hours a day and 14 standing for four hours a day on a regular and continuing basis. 15 Barrett v. Barnhart, 355 F.3d 1065, 1068 (7th Cir. 2004)(stating that 16 many people who are not grossly obese and do not have arthritic knees 17 find it distinctly uncomfortable to stand for two hours at a time. 18 suppose that [the plaintiff] could do so day after day on a factory 19 floor borders on the fantastic. ). (A.R. 18, 21.) Without the benefit of cross-examination See To 20 21 The ALJ is required to do more than simply state that he 22 considered the effects of plaintiff s morbid obesity on her other 23 impairments; rather, the ALJ must explain how [he] reached [his] 24 conclusions, and his failure to do so constitutes error. 25 remand is appropriate to allow the ALJ to re-assess his RFC finding, 26 paying 27 extreme obesity may have on her other impairments and on her ability to 28 perform work activities on a competitive and sustained basis. particular attention to the 16 significant impact Accordingly, plaintiff s 1 2 II. The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 3 4 Plaintiff alleges that the ALJ erred in his consideration of 5 plaintiff s subjective symptom testimony. (Joint Stip. at 16-18, 21.) 6 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. § 416.929(a)(explaining how 14 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 Both in her filings with the Commissioner and in her testimony, 26 plaintiff described various subjective symptoms from which she claims to 27 suffer. 28 difficulties, At the hearing, she weighed plaintiff 300 testified pounds, 17 but that that prior her to her weight had 1 increased to 490 pounds as of February 2006. 2 stated that she intends to undergo gastric bypass surgery as soon as the 3 surgery is approved, because she is 320 pounds over weight and surgery 4 will save [her] life. 5 can t wipe [her] own feces, can t shower [her]self, can t stand on 6 [her] feet or legs longer than a minute, [has] shortness of breath, [and 7 has] constant headaches. 8 do much of anything [because she is] becoming immobile, is tired all 9 the time, and can t care for [her]self the way normal people do. (A.R. 90.) (A.R. 357.) Plaintiff Plaintiff further stated that she (A.R. 79.) Plaintiff stated that she can t 10 (A.R. 80, 83.) 11 legs, including her feet, ankles, and toes, and right arm. 12 360-61.) 13 and spends approximately nine hours lying down during the day. (A.R. 14 100, 368.) 15 has kidney stones, and suffers from shortness of breath. 16 Plaintiff further testified that she has sleep apnea, which causes her 17 to stop breathing in the middle of the night and is treated with a 18 breathing machine, but she cannot afford the machine. 19 Plaintiff 20 difficulty concentrating, cannot take care of her personal hygiene and 21 grooming, and no longer socializes as she did in the past. 22 64.) 23 dizziness, 24 prescription medication she takes to relieve her pain. 25 Plaintiff also testified that she has not been able to drive a car for 26 the past three years, because her right foot is extremely swollen and 27 falls asleep. 28 perform housework, does not participate in any recreational activities, Plaintiff complained of a lot of pain in her back and (A.R. 90, Plaintiff stated that she can barely move and walk around Plaintiff also testified that she gets headaches every day, stated that she feels depressed most of (A.R. 362.) (A.R. 363.) the time, has (A.R. 363- Plaintiff further testified that she suffers from diarrhea, stomach pain, and (A.R. 366.) slurring words as a result of the (A.R. 365.) Plaintiff testified that she does not 18 1 requires assistance dressing herself, and cannot go shopping by herself. 2 (A.R. 367.) 3 psychologist in the past, but she was forced to stop her treatment 4 because she had no money to pay the psychologist. Plaintiff further testified that she has treated with a (A.R. 368.) 5 6 In his written decision, the ALJ found that plaintiff suffers from 7 severe morbid obesity, osteoarthritis, headaches, and sleep apnea, all 8 of which are medically determinable impairments that reasonably could 9 cause the subjective pain and attendant limitations about which 10 plaintiff complains. 11 statements concerning the intensity, persistence and limiting effects 12 of her limitations, setting forth the following reasons for doing so: 13 (1) plaintiff s symptoms in combination are managed conservatively, 14 primarily with medications and plaintiff is not described as a 15 surgical candidate relative to her complaints, nor has she required a 16 series of hospitalizations, participation in physical therapy or a pain 17 clinic, or other aggressive treatment commonly utilized for chronic and 18 debilitating pain ; (2) her symptoms related to sleep apnea appear to be 19 amenable to treatment with use of a CPAP; (3) plaintiff s subjective 20 complaints are inconsistent with the assessment made by her treating 21 physician; and (4) the objective medical evidence does not support 22 plaintiff s claims of disabling limitations to the degree alleged. 23 (A.R. 20.) 24 reasons do not withstand scrutiny. (A.R. 17.) However, the ALJ rejected plaintiff s When examined in the light of the record as a whole, these 25 26 The ALJ s rejection of plaintiff s subjective complaints based, in 27 part, on the fact that plaintiff s symptoms are managed conservatively, 28 primarily with medications, that plaintiff has not been described as a 19 1 surgical candidate relative to her complaints, and that plaintiff has 2 not required other aggressive treatment, are not convincing reasons to 3 reject plaintiff s credibility. 4 symptoms are managed with medication is not a proper reason to reject 5 her 6 complaints, namely her swollen lower extremities, inability to care for 7 her personal hygiene, shortness of breath, and virtual immobility, are 8 directly related to her morbid obesity and persist with or without pain 9 medication. Moreover, there is no substantial evidence in the record to 10 support the ALJ s inference that plaintiff s debilitating pain and 11 symptoms would be alleviated if she were to secure more aggressive 12 treatment. 13 credibility of allegations of pain based, in part, on plaintiff s record 14 of receiving minimal and conservative treatment, he must make detailed 15 findings of fact so that a reviewing court may determine whether 16 substantial evidence supports the ALJ s conclusion. 17 meet his burden here. 18 Schwieker, 654 F.2d 631, 634-635 (9th Cir. 1981). credibility, While because it is the The ALJ s conclusion that plaintiff s majority permissible of for plaintiff s an ALJ to subjective evaluate the The ALJ failed to Fair, 885 F.2d at 601-02; Lewin v. See 19 20 A second reason cited by the ALJ for rejecting plaintiff s 21 subjective symptom testimony -- that plaintiff s symptoms related to 22 sleep apnea appear to be amenable to treatment with use of a CPAP -- is 23 not a convincing basis upon which to reject plaintiff s testimony. 24 While the ALJ s statement appears to be true to the extent that the 25 medical evidence demonstrates that with the use of CPAP titration 26 plaintiff s sleep apnea may be treatable (A.R. 152-54), plaintiff 27 testified that she is unable to afford such a CPAP machine. 28 While an unexplained failure to seek treatment may cast doubt on a 20 (A.R. 363.) 1 claimant s credibility, such an inference is 2 plaintiff is indigent. 3 Circuit has proscribed the rejection of a claimant s complaints for 4 lack of treatment when the record establishes that the claimant could 5 not afford it. 6 at 1284; Gamble, 68 F.3d 319 at 322. 7 rejecting plaintiff s subjective complaints also is not convincing. See Fair, 885 F.2d at 602. unreasonable where Indeed, the Ninth Regennitter, 166 F.3d at 1297; see also Smolen, 80 F.3d Accordingly, this reason for 8 9 The ALJ also rejected plaintiff s subjective pain testimony 10 because, in his view, the objective evidence did not support plaintiff s 11 claims of disabling limitations to the degree alleged. 12 settled that an ALJ may not discredit a claimant s subjective claims of 13 disabling pain for the sole reason that the alleged degree of pain is 14 not fully supported by objective medical evidence. 15 at 601-02; Stewart, 881 F.2d at 743-44. 16 F.2d 1403, 1407 (9th Cir. 1986), the Ninth Circuit stated explicitly 17 that excess pain, by definition, is pain that is not supported by 18 objective medical findings. Thus, the ALJ erred by requiring plaintiff 19 to adduce medical evidence sufficient to corroborate the severity of her 20 alleged pain and other symptoms. It is well- See Fair, 885 F.2d Indeed, in Cotton v. Bowen, 799 See Bunnell, 947 F.2d at 346. 21 Accordingly, 22 the ALJ s rejection of plaintiff s credibility, 23 without setting forth clear and convincing reasons for the rejection, 24 constitutes reversible error.8 On remand, the ALJ must provide reasons, 25 26 27 28 8 Another reason stated by the ALJ for rejecting plaintiff s credibility was that plaintiff s subjective complaints were inconsistent with the her treating physician s assessment. (A.R. 20.) While this assertion is not entirely incorrect, this reason alone is not sufficient to reject plaintiff s credibility. 21 1 if they exist and in accordance with the requisite legal standards, for 2 discrediting plaintiff s pain testimony. 3 4 III. Remand Is Required. 5 6 The decision whether to remand for further proceedings or order an 7 immediate award of benefits is within the district court s discretion. 8 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 9 useful purpose would be served by further administrative proceedings, or 10 where the record has been fully developed, it is appropriate to exercise 11 this discretion to direct an immediate award of benefits. 12 ( the decision of whether to remand for further proceedings turns upon 13 the likely utility of such proceedings ). 14 outstanding issues that must be resolved before a determination of 15 disability can be made, and it is not clear from the record that the ALJ 16 would be required to find the claimant disabled if all the evidence were 17 properly evaluated, remand is appropriate. 18 appropriate remedy to allow the ALJ the opportunity to remedy the above- 19 mentioned deficiencies and errors. 20 F.3d 21 appropriate if enhancement of the record would be useful); McAllister v. 22 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)(remand appropriate to remedy 23 defects in the record). 587, 593 (9th Cir. Where no Id. at 1179 However, where there are Id. Here, remand is the See, e.g., Benecke v. Barnhart, 379 2004)(remand for further proceedings is 24 25 Plaintiff contends, and the Court agrees that, because plaintiff 26 has non-exertional limitations, it was improper for the ALJ to rely on 27 the 28 testimony from a vocational expert to make the alternative finding that, Medical-Vocational Guidelines 22 (the Grids ) without seeking 1 even if plaintiff is incapable of performing light work, she is capable 2 of performing sedentary jobs that exist in significant numbers in the 3 national economy that plaintiff can perform. 4 claimant 5 exertional limitations, the ALJ may apply the Grids, at step five, to 6 match the claimant with appropriate work. 7 1195, 1208 (9th Cir. 2000); Reddick v. Chater, 157 F.3d 715, 729 (9th 8 Cir. 1998); Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). 9 However, an ALJ may apply the grids in lieu of taking testimony of a 10 vocational expert only when the grids accurately and completely describe 11 the claimant s abilities and limitations and not in cases where the 12 Grids do not accurately account for a claimant s limitations. 13 157 F.3d at 729 (emphasis added); see also Holohan, 246 F.3d at 1208 (as 14 the Grids are based only on strength factors, they are sufficient to 15 meet the Commissioner s burden at step five only when a claimant 16 suffers only from exertional limitations ). 17 by failing to seek testimony from a vocational expert and further 18 proceedings are required. 19 claimant had non-exertional limitations, it was error not to seek the 20 testimony of a vocational expert). suffers only from exertional (A.R. 21-22.) limitations, but When a not non- Holohan v. Apfel, 246 F.3d Reddick, Accordingly, the ALJ erred See Reddick, 157 F.3d at 729 (because the 21 22 CONCLUSION 23 24 Accordingly, for the reasons stated above, IT IS ORDERED that the 25 decision of the Commissioner is REVERSED, and this case is REMANDED for 26 further proceedings consistent with this Memorandum Opinion and Order. 27 28 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 23 1 copies of this Memorandum Opinion and Order and the Judgment on counsel 2 for plaintiff and for defendant. 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 7 DATED: August 17, 2009 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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