Teri L Armenta v. Michael J. Astrue, No. 5:2010cv01578 - Document 17 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, This matter will be remanded for further hearing consistent with this Memorandum Opinion. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 TERI L. ARMENTA, 12 Plaintiff, 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. EDCV10-1578 VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record ( AR ) before the Commissioner. The parties have filed the 25 Joint Stipulation ( JS ), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) could rely on 1 the testimony of the vocational expert as substantial 2 evidence; 3 2. 4 5 Whether the ALJ properly considered the medical evidence of limitations on Plaintiff s ability to use her hands. (JS at 4; 13.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes 10 that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded. 11 12 I 13 THE ALJ PROPERLY RELIED ON THE TESTIMONY OF THE VOCATIONAL EXPERT 14 In Plaintiff s first issue, she argues that the ALJ could not 15 properly rely upon the vocational expert s ( VE ) testimony, which 16 conflicted with the job definitions set forth in the Dictionary of 17 Occupational Titles ( DOT ), because the deviation between Plaintiff s 18 residual functional capacity ( RFC ) and the DOT job descriptions were 19 not explained by the VE. 20 disagrees with Plaintiff s analysis and her contention. For the reasons to be set forth, the Court 21 The ALJ determined that Plaintiff has the RFC to perform medium 22 work as defined in 20 C.F.R. § 404.1567(c), except for no more than 23 occasional 24 Plaintiff does not dispute the correctness of this RFC assessment. At 25 the administrative hearing (AR 20-43), testimony was taken from the 26 VE. 27 more than occasional fine or gross manipulation. (AR 40.) 28 response, the VE opined that Plaintiff could return to her prior work fine and gross manipulations bilaterally. (AR 19.) The ALJ posed hypotheticals which included a limitation to no 2 In 1 as a receptionist. 2 ALJ and the VE: 3 Q 4 The following discussion then ensued between the Would such an individual be able to perform the past work that you ve identified? 5 A I believe the work of receptionist could be done. 6 Q Even with the manipulation limitations? 7 A Well, in looking at that because they [sic] would be some 8 fine or gross, but on the other hand you re often using a 9 headset and you re on the phone talking for a good portion 10 of the day rather than doing any real keying, although 11 there s some ancillary duties that are done. 12 reduce the number of receptionist jobs from the total number 13 in the region or the United States, but there would be some 14 that could be done. 15 due to the amount of data entry in that one, and I think the 16 same would go for the loan officer. Waitress, I think would 17 eliminate waitress. 18 of walking around and most of the time they have something 19 in their hand either coming to or from a table. 20 receptionist to a limited basis would be the only one that 21 could be done. 22 It would I would eliminate the customer service That would be, I m sure there s a lot Probably (AR 40-41, emphasis added.) 23 24 The physical demands set forth in the DOT for the job of 25 receptionist include occasional fingering with frequent handling. (See 26 DOT 237.367-038.) 27 receptionists use headsets and require only occasional or little use 28 of their hands. The DOT does not specifically state that most Plaintiff asserts that the ALJ erred in failing to 3 1 elicit from the VE testimony that established whether or not the job 2 of receptionist as Plaintiff could perform it, considering her RFC, 3 deviated from the definition set forth in the DOT. 4 5 A. Applicable Law. 6 Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995) is a useful 7 starting point. In Johnson, the ALJ directed the VE to assume that 8 the claimant was restricted to sedentary work and had a number of non- 9 exertional limitations. In response, the VE testified that the 10 individual could not perform her former job but could work in certain 11 identified 12 strenuous category than sedentary. 13 was error because the ALJ had asked the VE to assume that she was 14 limited to sedentary work. (Id. at 1431, fn. 1.) 15 Sullivan, 903 F.2d 1273, 1277 (9th Cir. 1990), the Court indicated 16 that, Terry supports the proposition that although the DOT raises a 17 presumption as to the job classification, it is rebuttable. (Id. at 18 1435.) 19 testimony which contradicts the DOT but only insofar as the record 20 contains persuasive evidence to support the deviation. (Id.) 21 Court found there was such persuasive testimony in the record, 22 including evidence of available job categories in the local rather 23 than the national market, and testimony matching the requirements of 24 a designated occupation with the specific abilities and limitations of 25 the claimant. (Id.) 26 explanation is satisfactory because the ALJ made findings of fact that 27 supported deviation from the DOT. (Id., fn. 7.) 28 jobs classified as light work, considered a more Plaintiff asserted that there Citing Terry v. The Court thus held that the ALJ may rely upon expert The The Court noted that in this case, the ALJ s The Court also noted that the DOT is not the only source of 4 1 admissible information concerning jobs. The Commissioner can take 2 administrative notice of any reliable job information including the 3 testimony of a VE. (Id. at 1435, citing Barker v. Shalala, 40 F.3d 4 789, 795 (6th Cir. 1994), Whitehouse v. Sullivan, 949 F.2d 1005, 1007 5 (8th Cir. 1991).) 6 In Massachi v. Astrue, 486 F.3d 1149 (9th Cir. 2007), the Circuit, 7 perhaps acknowledging the possible ambiguity in the above portion of 8 the Johnson opinion, noted the following: 9 For the first time, we address the question whether, 10 in light of the requirements of SSR 00-4p, an ALJ may rely 11 on 12 requirements of a particular job without first inquiring 13 whether the testimony conflicts with the Dictionary of 14 Occupational Titles. 15 a vocational expert s testimony regarding the We hold than an ALJ may not. (46 F.3d at 1152.) 16 17 In Massachi, the Court noted that Johnson had been decided prior 18 to the enactment of SSR 00-4p, but that nevertheless, Johnson had 19 instructed that an ALJ could rely upon expert testimony contradicting 20 the DOT only under circumstances in which persuasive evidence to 21 support the deviation had been demonstrated. (See Massachi, 486 F.3d 22 at 1153.) But, as Massachi made clear, SSR 00-4p provides unambiguous 23 guidance which requires the adjudicator to discharge an affirmative 24 responsibility to resolve conflict between a VE s testimony and 25 information provided in the DOT. (Id. at 1152.) 26 these procedural requirements ensure that the record is clear as to 27 why an ALJ relied on a vocational expert s testimony, particularly in 28 cases where the expert s testimony conflicts with the [DOT]. (Id. at 5 As Massachi noted, 1 2 1153.) It is clear to this Court that Massachi clarified any possible 3 ambiguity in Johnson, by requiring strict adherence to the 4 requirements of SSR 04p. 5 exist persuasive evidence in the record itself, which may be evidenced 6 by the ALJ inquiring into the VE s reasons for identifying jobs in 7 which there is a deviation between a claimant s exertional abilities, 8 as set forth in the hypothetical question, and the jobs actually 9 identified. Thus, if there is a deviation, there must 10 11 B. Analysis. 12 Plaintiff s position would, effectively, require a completely 13 literal interpretation to be applied to the Ninth Circuit s opinions 14 in Johnson and Massachi. 15 specifically use language to the effect of, Is there a deviation 16 between 17 question I have posed to you and the job requirements set forth in the 18 DOT, concerning the job which you have identified? 19 not believe that such exact language must be used to satisfy the 20 required 21 deviation was explained. In this case, the ALJ s question, Even with 22 the manipulation limitations,? (AR 40) is functionally equivalent to 23 an inquiry as to whether or not there was a deviation, and if so, 24 explain it. 25 in Plaintiff s RFC to occasional fine or gross manipulation, and 26 indicated that the job of receptionist as it is usually performed is 27 done using a handset for a good portion of the day rather than doing 28 any real keying, ... [which] would reduce the number of receptionist the physical parameters That is, it would require that an ALJ limitations of the set inquiry. forth The in issue the hypothetical The Court does is whether the The VE s answer to that question focused on limitations 6 1 jobs from the total number in the region or the United States, but 2 there would be some that could be done. (AR 40-41.) 3 It is clear from the above interchange that the ALJ was 4 specifically inquiring into a deviation between Plaintiff s RFC and 5 the DOT s identification of exertional requirements of the identified 6 job. 7 even with her physical limitations, Plaintiff could perform this 8 particular job. 9 the ALJ solicited sufficient explanation to allow for the deviation The VE responded in kind by identifying specific reasons why, In the JS, Plaintiff poses the question as whether 10 from the DOT. (JS at 7.) 11 the Court respectfully disagrees. There does not need to be literal 12 language in the interchange between an ALJ and a VE which uses the 13 word conflict, deviation, or similar words in order to satisfy the 14 requirement that the deviation or conflict, if any, be explained. 15 Here, there is no doubt that the ALJ effectively did inquire into the 16 deviation, 17 Plaintiff could still do the job, even with that deviation. 18 discussion between the ALJ and the VE not occurred, Plaintiff s 19 argument would have carried substantial weight. 20 actual facts in this case, the Court cannot find that the record 21 substantiates Plaintiff s argument, and accordingly, the Court cannot 22 find error as to the first issue. and the VE While Plaintiff believes the answer is no, responded specifically by indicating why Had this But looking at the 23 24 II 25 THE ALJ PROPERLY EVALUATED THE OBJECTIVE MEDICAL OPINIONS, 26 BUT NOT PLAINTIFF S SUBJECTIVE TESTIMONY REGARDING PHYSICAL 27 LIMITATIONS ON USE OF HER EXTREMITIES 28 Plaintiff s second issue is twofold. First, she asserts that the 7 1 ALJ did not correctly assess testimony of her treating physicians 2 regarding 3 particular, finger manipulation and dexterity. (JS at 13-17.) 4 separate analysis, Plaintiff asserts that the ALJ improperly rejected 5 her credibility regarding her subjective descriptions of her physical 6 abilities and pain. (JS at 17-20.) 7 8 the extent of limitations in use of her hands, in In a For the reasons to be set forth, the Court disagrees with Plaintiff s first contention, but agrees with the second. 9 10 A. Objective Evidence. 11 As the Court has already noted, the ALJ assessed that her RFC 12 precludes 13 manipulations bilaterally. (AR 19.) 14 ALJ reviewed the opinions of various physicians, including workers 15 compensation physicians and a consulting board-certified orthopedic 16 surgeon. (AR at 16-18.) 17 Plaintiff from more than occasional fine and gross In making this assessment, the The Court will briefly summarize the ALJ s review of these 18 opinions, as set forth in the decision. 19 AR at 211-315), the ALJ noted that this physician precluded heavy 20 work, repetitive work, and activities requiring finger dexterity. (AR 21 219.) Plaintiff 22 received workers Regarding Dr. Brourman (see compensation Agreed Medical 23 Examination ( AME ) from Dr. Eugene Harris on March 14, 2005. (AR 316- 24 323.) 25 repetitive fine motion of the right wrist and hand, power grasp or 26 torque with either hand, heavy lifting with either wrist or hand, and 27 that the only reasonable approach to return to the work environment 28 might be consideration of a voice-operated computer system. (AR 322.) Dr. Harris indicated precluded 8 Plaintiff from prolonged 1 Dr. Swan, a State Agency physician, assessed that Plaintiff could 2 perform the physical 3 limitations 4 fingering (fine manipulation). (AR 342.) in the demands areas of of medium handling work, (gross but would have manipulation) and 5 Dr. Conaty performed a consultative orthopedic examination on 6 August 6, 2007 at the request of the Department of Social Services. 7 (AR 333-337.) 8 fine manipulation. (AR 337.) Dr. Conaty limited Plaintiff to occasional gross and 9 The ALJ gave greatest weight to the assessments of Dr. Conaty, 10 stating that they were based on his detailed, objective findings, 11 ... (AR 17.) 12 Plaintiff complains that the ALJ completely ignored the opinion 13 of Dr. Harris, and that of Dr. Brourman, but the Court agrees with the 14 Commissioner s 15 inconsistent with that of the RFC finding of the ALJ. 16 limitations assessed by Dr. Harris do not conflict with those of the 17 ALJ. 18 reasonable approach to return to the work environment might be 19 consideration of a voice-operated computer system, the Court does not 20 perceive this to be an opinion addressed to Plaintiff s physical 21 capacity. 22 this regard should be entitled to very little weight, if any. 23 Dr. Harris functional assessments as to Plaintiff s physical capacity 24 which are relevant, and in that regard, the Court agrees that there is 25 no significant distinction, if there is any, between the ALJ s 26 assessment, and that of Dr. Harris. 27 28 If contention Plaintiff is that Dr. referencing Harris Dr. conclusion Harris was not The functional opinion that a Dr. Harris is not a vocational expert, and his opinion in It is The same can be said of Dr. Brourman s conclusions; that is, they do not really conflict in a substantial way with those of the 9 ALJ. 1 Indeed, the ALJ s decision noted Dr. Brourman s conclusion that 2 Plaintiff is precluded from heavy or repetitive work or work requiring 3 finger dexterity. (AR 16, citing 219.) 4 indicated that Plaintiff has lost approximately 66% or two-thirds pre- 5 injury capacity for performing finger dexterity activities. (Id.) 6 These restrictions were articulated by Dr. Brourman in a workers 7 compensation context, but they were considered by the ALJ, and the 8 Court does not perceive that there is a material distinction between 9 Dr. Brourman s assessment that Plaintiff has lost two-thirds pre- 10 injury capacity for performing finger dexterity activities, and the 11 ALJ s 12 manipulations bilaterally. restriction to no more than Dr. Brourman specifically occasional fine and gross concerns the ALJ s 13 14 B. Credibility Findings. 15 The second part of Plaintiff s issue 16 evaluation of her credibility concerning subjective pain complaints. 17 The ALJ determined that Plaintiff would not experience severe or 18 disabling pain or any other disabling symptoms. (AR 17.) 19 followed by his recital of five evaluative factors which come within 20 the parameters of Social Security Ruling ( SSR ) 96-7p. (AR 17-18.) This is 21 Plaintiff asserts that there is no evidence of malingering. (JS 22 at 18, citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); 23 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The Commissioner 24 argues that in fact, there is evidence of malingering, and references 25 the 26 compensation physician, who cited the claimant s exaggeration of her 27 symptoms, as evidenced by reporting overwhelming complaints of pain 28 and ALJ s analysis related of functional the opinion limitations 10 of not Dr. Harris, supported by a workers objective, 1 clinical findings. (AR 16, citing AR 322.) 2 read Dr. Harris opinion as supporting a conclusion of malingering, or 3 even an exaggeration of subjective complaints. 4 Harris opinion should include the previous paragraph of his report, 5 in which he noted that the general impression of [Plaintiff] is that 6 she is appropriate and believable. (AR 321.) 7 paragraph, 8 somewhat overwhelming, contains no discussion that would lead one to 9 conclude that Dr. Harris believed that Plaintiff was exaggerating or 10 which although noting But the Court does not subjective A fair reading of Dr. Even the following complaints that are malingering. 11 Certainly, the longitudinal medical record in this case indicates 12 that for years, Plaintiff has been in pain in both of her upper 13 extremities. 14 one, she stated that, 15 A review of the Disability Reports is consistent. I am in constant pain. My hands are very weak. 16 not able to sleep the pain weak [sic] me up. 17 I am I am not able to write or even comb my daughter s hair. (AR 147.) 18 19 20 In another report, she indicated the following: I have become very frustrated not being able to do the 21 things I used to do. I can t care for my daughter, doing 22 her hair, washing, ironing etc. 23 can write approximately two checks to pay bills at a time, 24 then I have to stop to rest my arms. 25 driving and usually have to depend on others to make me 26 places. 27 pain extends all the way to my shoulders. (AR 160.) I can t use a computer. I I have difficulties My arms swell from my hands to my elbow, and the 28 11 In 1 Plaintiff s testimony regarding her subjective pain was 2 consistent with both her written reports and the consensus of various 3 physicians who examined her over the years. 4 abilities, she indicated she could hold a cup of coffee with both 5 hands, but she has dropped them. 6 she can fill out a check. 7 unbearable and she drops the pen. 8 husband does the chopping and cutting, or her mother comes over to 9 help her. As to her functional She has some problems writing, but If she does too much writing the pain gets She can not lift pans. She does some cooking, but her If she does, she may drop them. 10 Pain shoots up her arm and her hand will literally fall asleep. She 11 takes Motrin, which sometimes helps if she needs to drive. 12 braces on her elbows, mostly at night. 13 mostly little loads, and again, her mother will come over to help. 14 She can do a little bit of dishwashing. 15 of the dishwasher. 16 her arms elevated for an amount of time so she mostly just pulls her 17 hair back. 18 32.) She wears She does very little laundry, She can empty the lower level With regard to her own grooming, she can not keep She loses strength if she keeps her arms elevated. (AR 27- 19 With this review of Plaintiff s subjective complaints in mind, 20 the Court can now examine the ALJ s stated reasons for depreciating 21 Plaintiff s credibility. He first indicated that no treating or 22 examining ever 23 permanently disabled due to physical impairments. (AR 17.) 24 ALJ appears to be conflating the issue of disability with that of 25 subjective pain. 26 complaints and still not be disabled. The issue is whether subjective 27 pain impacts a claimant s functional abilities. Consequently, the 28 first cited reason is essentially irrelevant. physician has opined that she is totally and But the A claimant can have credible subjective pain 12 1 The ALJ next cited the opinion of Dr. Conaty with regard to 2 Plaintiff s 3 manipulations. 4 evidence, but of credibility. In any event, Dr. Conaty s opinion that 5 Plaintiff could perform occasional gross and fine manipulations, which 6 the ALJ adopted in formulating an RFC assessment, is no different, 7 essentially, than Plaintiff s own description of her abilities. 8 example, when Plaintiff said that she could lift a coffee cup with 9 both hands, but might drop it, that is certainly not inconsistent with finding ability to perform occasional gross and fine Again, the question is not one of objective medical 10 a that she can only do occasional 11 manipulations. 12 gross and For fine no applicability to the credibility determination. Thus, the second reason set forth in the decision has 13 The ALJ s third reason makes reference to a comparison between 14 Plaintiff s pain complaints and her ability to do such things as 15 writing, laundry, and the like, which are typically referred to as 16 activities of daily living (ADL). (AR 18.) The ALJ also observed that 17 there is no evidence of muscle atrophy in either of her hands or arms. 18 While this may be the case, there is also no question that Plaintiff 19 has experienced carpal tunnel syndrome and that she underwent a right- 20 sided de Quervain s release on January 4, 2005 (performed by Dr. 21 Brourman) (AR 246-247), following a right carpal tunnel release on 22 December 2, 2003, which was also performed by the same physician. (AR 23 272-273.) Indeed, not a single physician whose opinions are contained 24 in this record has opined that Plaintiff does not suffer from these 25 conditions, and indeed, one physician, Dr. Harris, remarked that 26 because 27 extremities had apparently not been successful in ameliorating her 28 pain, he would not recommend that she undergo a similar procedure on the surgical procedures 13 performed on Plaintiff s right 1 her left side. 2 symptoms on her left side could be cured with surgical intervention, 3 he also noted that the insurance company had cut off her care. (See 4 Dr. Brourman s report of April 10, 2006, at AR 218.) 5 The fourth Although Dr. Brourman maintained that Plaintiff s stated reason, that there is no evidence that 6 Plaintiff is using strong narcotic pain relievers, but only Motrin as 7 of August 2007, is simply not borne out by the record, and indeed, the 8 ALJ acknowledged in the same breath that Plaintiff testified she is 9 also using Darvocet for pain relief. (AR 18.) Further, the ALJ 10 apparently gave no credence to Plaintiff s testimony that she has side 11 effects from medications ( I have a weak tummy. At best, the Darvocet 12 does make me tired so I only take that when it s at night time because 13 - ... the Motrin will upset my stomach if I don t eat so that s the 14 only thing. ). (AR 26-27.) 15 stronger medications have been prescribed by any physician, or that 16 Plaintiff is not compliant with the recommendations of her doctors. 17 Thus, the Court discounts the fourth stated reason. In any event, there is no indication that 18 Finally, the ALJ depreciated Plaintiff s credibility because she 19 has not undergone any upper extremity surgery since January 4, 2005. 20 (AR 16.) 21 to undergo left-side surgery because of the lack of success of the 22 surgery on her right side. 23 have been distinctly unsuccessful, and he remarked that Plaintiff s 24 declination 25 appropriate, considering the patient s response to the surgery on the 26 right wrist and hand. (AR 321.) 27 was addressed by the ALJ, who simply criticized Plaintiff for not 28 having further surgeries after 2005. Plaintiff has stated to her physicians that she is hesitant to undergo As Dr. Harris observed, these surgeries surgery on her left extremities is None of this discussion, however, 14 1 The Court finds that none of the credibility factor reasons 2 stated in this administrative decision can be upheld. 3 no question that this matter must be remanded for further hearing, and 4 that Plaintiff s subjective pain complaints must be evaluated de novo. 5 None of the reasons stated in the decision will be relied upon when 6 this matter is reheard, nor will an inference be drawn that Plaintiff 7 is malingering or exaggerating her symptoms, as the existing records 8 do not support such a conclusion. 9 10 11 Thus, there is For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 12 13 14 DATED: August 22, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15
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