(SS) Henderson vs. Commissioner of Social Security, No. 1:2014cv01161 - Document 18 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the ALJ's Decision be Affirmed and Judgment be Entered for Defendant. Matter referred to Judge O'Neill. Objections to F&R due within fourteen (14) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 1/8/2016. (Timken, A)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 OCTAVIO J. HENDERSON, Plaintiff, 11 12 13 Case No. 1:14-cv-01161-LJO-SKO v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, OBJECTIONS DUE: 14 DAYS 14 Defendant. 15 16 FINDINGS AND RECOMMENDATIONS THAT THE ALJ'S DECISION BE AFFIRMED AND JUDGMENT BE ENTERED FOR DEFENDANT _____________________________________/ 17 INTRODUCTION 18 19 Plaintiff Octavio J. Henderson ("Plaintiff") seeks judicial review of a final decision of the 20 Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for 21 Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the 22 "Act"). 42 U.S.C. §§ 1381-83. The matter is currently before the Court on the parties' briefs, 23 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 24 Magistrate Judge. 25 For the reasons set forth below, the undersigned RECOMMENDS that the ALJ's decision 26 be REVERSED and REMANDED for further administrative proceedings and that judgment be 27 entered for Plaintiff and against Defendant Carolyn W. Colvin, Acting Commissioner of Social 28 Security. 1 2 BACKGROUND Plaintiff was born on July 21, 1970, and he completed a General Education Degree 3 certificate in 1998. (AR 43, 210.) He previously worked as a truck driver, a dock loader, a cook, 4 and a mental health counseling aid. (AR 210-11.) He stopped working in November 2006 5 because the company he worked for closed down, but he believes his conditions caused him to 6 become disabled one month after he was laid off. (AR 210.) Plaintiff alleges disability due to 7 limited movement in his back, hip, and lower leg; lumbago; numbness in legs and hips; and 8 asthma. (AR 209.) 9 A. Relevant Medical Evidence 10 1. 11 In December 2008, Plaintiff was examined by Young W. Park, M.D. (AR 314.) Plaintiff's Physical Medical Evidence 12 problems were limited to asthma and lumbago, and no other complaints were noted. (AR 314.) In 13 December 2009, Plaintiff told Dr. Park he was experiencing back spasms and tenderness. 14 (AR 309.) 15 In February 2010, Plaintiff underwent a lumbar spine x-ray, which showed partial 16 sacralization of L5 on the left, but the posterior elements and joints were otherwise normal as were 17 disc spaces and sacroiliac joints. (AR 313.) In March 2010, Plaintiff again reported back spasms 18 and tenderness to Dr. Park. (AR 308.) 19 In April 2010, Plaintiff was seen by Jay H. Yoo, M.D., at a rehabilitation and pain clinic. 20 (AR 416-17.) Plaintiff reported a two-year history of severe low back pain radiating down his 21 right leg for which he had been taking Vicodin and Soma. (AR 416.) He underwent a lumbar 22 spine x-ray in February 2010 which revealed normal disc space, but there was partial sacralization 23 of the L5 on the left. (AR 416.) Dr. Yoo noted that while Plaintiff did not use any assistive 24 devices, he had a severe limping gate. (AR 416.) On examination, a straight-leg raising test 25 showed severe back pain elicitation, but there was no significant tenderness over the lower lumbar 26 area. (AR 416.) Dr. Yoo recommended a magnetic resonance imaging ("MRI") scan of the 27 lumbar spine, and he replaced Plaintiff's Vicodin prescription with Lortab. (AR 417.) 28 2 1 An MRI of Plaintiff's lumbar spine was obtained on June 1, 2010. (AR 334.) The 2 radiologist provided the following impression: 3 4 5 6 1. There is congenitally narrow AP diameter of the lumbar spinal canal. 2. There is a ventral and left-sided disc extrusion at L4-5 measuring 5 to 6 mm in size resulting in moderate to severe canal and bilateral foraminal stenosis. 3. There is mild to moderate canal and bilateral foraminal stenosis at L2-3 and L5S1. 4. There is mild canal and mild to moderate bilateral foraminal stenosis at L3-4. 7 (AR 334.) 8 Plaintiff saw Dr. Yoo again on July 9, 2010. (AR 414-15.) Dr. Yoo indicated the MRI 9 scan from April showed ventral and left-sided disc extrusion at L4-L5 measuring 5 to 6 mm in size 10 and resulting in moderate to severe canal and bilateral foraminal stenosis. (AR 414.) He 11 recommended Plaintiff continue with gentle home exercises for stretching and ambulation, and he 12 refilled Plaintiff's prescription for Lortab. (AR 414.) No review of the June 2010 MRI was noted. 13 In September 2010, a physical examination note from George T. Bella, M.D., indicated 14 Plaintiff was out of all his pain medication, and he was reporting feelings of fatigue. (AR 351.) 15 Plaintiff's physical activity was noted to be normal. (AR 351.) In November 2010, Plaintiff saw 16 Dr. Bella and complained he was not sleeping well and was experiencing mood swings. 17 (AR 342.) He was referred to Ashok M. Parmar, M.D. 18 On December 17, 2010, Plaintiff was seen for a comprehensive initial pain management 19 consultation with Dr. Parmar. (AR 347-50.) Dr. Parmar indicated he reviewed Plaintiff's June 20 2010 MRI, which showed congenitally narrow AP diameter of the lumbar spinal canal, lumbar 21 spinal stenosis at multiple levels, and a 6mm disc extrusion at L4-L5. (AR 347.) Plaintiff 22 reported he had undergone physical therapy without pain relief, but he denied any interventional 23 procedure for his pain or surgery. (AR 347.) Plaintiff reported his pain level at an 8 to 10 out of 24 10 that worsened with prolonged sitting, standing, walking, and coughing. (AR 347.) Plaintiff 25 also reported the pain interfered with his sleep. (AR 347.) Dr. Parmar noted Plaintiff was 26 negative for a history of depression or anxiety. (AR 348.) Upon examination, Dr. Parmar 27 recommended Plaintiff undergo a series of three lumbar epidural injections under fluoroscopy to 28 relieve the back pain and radicular symptoms. (AR 350.) 3 1 On February 7, 2011, Plaintiff was seen by state agency physician Juliane Tran, M.D., for 2 a comprehensive orthopedic evaluation. (AR 318-21.) Plaintiff reported back pain since 2000 3 after having picked up a heavy box. (AR 318.) Plaintiff reported he was scheduled for a lumbar 4 epidural injection, but he had not had the procedure yet. (AR 318.) He indicated his back pain 5 radiated to his upper left leg, and he could walk no more than a half block to one block due to 6 pain. (AR 318.) On examination, the straight leg raising test was negative in the seated position, 7 and his pain presented without radicular symptoms. The Piriformis test and the Faber's test were 8 both negative. (AR 320.) Dr. Tran indicated Plaintiff's back pain was likely due to lumbar 9 degenerative disc disease, but he had no lumbar sacral radiculopathy and a normal sensory exam 10 with symmetrical reflexes. (AR 320.) Dr. Tran opined Plaintiff was limited to lifting no more 11 than 20 pounds occasionally, and 10 pounds frequently; sitting or standing no more than six hours 12 in a day; was precluded from climbing, balancing, or working at heights; had no visual or 13 manipulative restrictions; was limited to frequent bending and stooping, but was precluded from 14 kneeling and crouching. (AR 321.) 15 On February 18, 2011, state agency physician A. Khong, M.D., reviewed Plaintiff's records 16 and completed a physical residual functional capacity form. (AR 322-26.) Dr. Khong opined 17 Plaintiff could occasionally lift 20 pounds, and frequently lift 10 pounds; could sit, stand, or walk 18 for approximately six hours in an eight-hour workday; and could occasionally climb stoop, kneel, 19 crouch, and crawl. (AR 323-24.) 20 Plaintiff was next seen by Dr. Yoo in December 2011 and reported severe low-back pain 21 with left leg radiation. (AR 412.) Dr. Yoo noted Plaintiff had been followed by Dr. Ashok for 22 pain management, but Plaintiff's pain remained between 7 or 8 out of 10, mostly in the left lower 23 back radiating to his left knee. (AR 412.) Dr. Yoo recommended Plaintiff continue with Lortab 24 and Soma and that he return in two months for follow-up. (AR 412.) 25 In February 2012, Plaintiff was again seen by Dr. Yoo reporting severe pain in his neck 26 through his lower back and left hip. (AR 410.) Dr. Yoo wrote a prescription for bilateral axillary 27 crutches and refilled Plaintiff's prescription for Lortab and Soma. (AR 410.) 28 4 1 Plaintiff followed-up again with Dr. Yoo in April 2012 and reported persistent pain mostly 2 in his legs and lower back. (AR 409.) Dr. Yoo refilled Plaintiff's prescription for Lortab and 3 Soma and recommended Plaintiff continue his home exercises and make an effort to lose weight. 4 Plaintiff was to return to the clinic in three months. (AR 409.) 5 In an undated form, Dr. Parmar opined Plaintiff could not work; could not stand or sit for 6 more than 15 minutes at a time; could do no lifting whatsoever; and could never bend or 7 manipulate his hands. (AR 396.) In the comment section, Dr. Parmar noted Plaintiff suffered 8 from severe low back pain. (AR 396.) 9 On November 4, 2011, Dr. Parmar completed a longer form regarding Plaintiff's functional 10 capacity specific to his cervical spine. (AR 397-401.) Dr. Parmar opined Plaintiff's diagnosis was 11 lumbar disc protrusion and his prognosis was guarded. (AR 397.) Plaintiff had significant 12 limitation of motion, and he could sit, stand, and walk less than two hours per day. (AR 398.) He 13 opined Plaintiff requires a job that permits him to shift between standing, sitting, and walking at 14 will; Plaintiff must use an assistive device when standing or walking; Plaintiff can never lift any 15 weight; Plaintiff can never look down, turn his head right or left, look up, or hold his head in a 16 static position. (AR 398.) Dr. Parmar also noted that emotional factors contributed to the severity 17 of Plaintiff's symptoms, and he identified depression and anxiety as emotional conditions that 18 affected Plaintiff. Oddly, Dr. Parmar checked a box that stated Plaintiff's impairments were not 19 reasonably consistent with the symptoms and functional limitations described; he also noted that 20 Plaintiff's symptoms would never be severe enough to interfere with Plaintiff's attention and 21 concentration to perform simple work tasks. (AR 399.) He opined Plaintiff would be incapable of 22 tolerating even "low stress" jobs; Plaintiff should only rarely engage in twisting, stooping, 23 crouching, or climbing ladders or stairs; but Plaintiff had no significant limitations with reaching, 24 handling, or fingering. (AR 401.) 25 Dr. Parmar also completed a lumbar spine residual functional capacity questionnaire. 26 (AR 402-06.) Like Plaintiff's cervical spine impairments, Dr. Parmar noted Plaintiff's lumbar 27 impairment was affected by emotional factors such as anxiety, but he also noted that Plaintiff's 28 pain or symptoms would never be severe enough to interfere with the attention and concentration 5 1 needed to perform simple work tasks. (AR 403.) He opined Plaintiff could not lift any amount of 2 weight, he should never twist, stoop, crouch, climb ladders or stairs, but he also checked a box 3 indicating Plaintiff would never miss work as a result of his impairments or treatment. (AR 405.)1 4 2. 5 In January 2011, Plaintiff contacted a crisis hotline requesting mental health services. (AR Mental Health Medical Evidence 6 353.) He reported back pain and indicated he had never received any mental health treatment; he 7 self-medicated his symptoms with marijuana and "meth." (AR 353.) The intake worker reported 8 Plaintiff was tearful and paranoid but receptive to mental health intervention. (AR 353.) Plaintiff 9 was referred to Oildale Community Health Clinic ("Oildale"), and an appointment was set for 10 February 1, 2011. (AR 353.) On March 8, 2011, a treatment note from Oildale Community 11 Health Clinic indicated Plaintiff was seen for an episodic mood disorder. (AR 364.) Plaintiff 12 reported he was having difficulty falling asleep, he was moody, and he had difficulty getting out 13 of bed. (AR 364.) Plaintiff reported he was independent and was able to complete tasks, but 14 noted he was going through pain management for back problems. (AR 364.) Plaintiff reported he 15 completed high school and took two years of college courses in family psychology, but he 16 discontinued school when he began working. (AR 364.) 17 Plaintiff was seen again at Oildale on March 30, 2011. (AR 361.) He reported recurrent 18 anxiety, poor sleep, and aches and pains; he was observed to be inattentive, irritable, and 19 distracted. (AR 361.) Plaintiff was seen again on April 13, 2011, at Oildale where it was noted 20 his affect and mood were somewhat irritated, but he was properly attired and groomed and made 21 good eye contact. Plaintiff was seen again on May 23, 2011, and it was noted he showed fair 22 resolve to participate in treatment and had good insight about mental health issues as well as a 23 good sense of judgment. (AR 358.) 24 On June 22, 2011, Plaintiff was examined by Nick Garcia, Ph.D. (AR 368-72.) His major 25 complaints were back, hip, and left-leg pain; hypertension; and depression. (AR 368-72.) 26 Plaintiff was diagnosed with depression and was reportedly taking Depakote, Risperdal, 27 Trazedone, and Divalproex. (AR 369.) At that time, Plaintiff was able to perform light chores, 28 1 Dr. Parmar's check-box opinions are internally inconsistent. 6 1 but he relied on his girlfriend to take care of the finances. He was also able to drive, cook, and 2 grocery shop with the assistance of a wheelchair. (AR 369.) Plaintiff's gait and posture were 3 noted to be unremarkable. Dr. Garcia opined Plaintiff appeared to have moderate emotional and 4 behavioral problems which would impede his ability to socialize with others and impede his 5 ability to take care of his self-care needs. He also opined Plaintiff demonstrated no deficits with 6 regard to persistence, pace, or concentration; but he appeared to have moderate emotional and 7 behavioral problems that would impede his ability to interact with co-workers in a competitive job 8 situation. (AR 372.) 9 On August 2, 2011, state agency physician J. K. Martin, M.D., reviewed Plaintiff's medical 10 records and completed a mental residual functional capacity form. (AR 378-80.) Dr. Martin 11 found Plaintiff moderately limited in his ability to understand, remember, and carry out detailed 12 instructions; maintain attention and concentration for extended periods; work in coordination with 13 or proximity to others without being distracted by them; complete a normal workday and 14 workweek without interruptions from psychologically based symptoms and to perform at a 15 consistent pace without an unreasonable number and length of rest periods; accept instructions and 16 respond appropriately to criticism from supervisors; get along with co-workers or peers without 17 distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and to 18 adhere to basic standards of neatness and cleanliness; and respond appropriately to changes in the 19 work setting. (AR 378-80). Dr. Martin found Plaintiff markedly limited in his ability to interact 20 appropriately with the general public. (AR 379.) In the narrative portion of the form, Dr. Martin 21 provided the following RFC opinion: 22 23 24 25 26 [Plaintiff is] [c]apable of understanding, remembering and carrying out simple instructions over the course of a normal workweek without extra supervision. Affective symptoms would impose difficulty with detailed instructions. Limited to no public contact and a setting which did not have social interactions as a predominant requirement, limiting interpersonal contact to brief and superficial interactions. Capable of adapting to changes in a routine setting. (AR 380.) 27 28 7 1 2 B. Administrative Proceedings The Commissioner denied Plaintiff's application initially and again on reconsideration; 3 consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 834 89, 94-100.) On December 10, 2012, the ALJ held a hearing. Plaintiff testified, through the 5 assistance of counsel, and a Vocational Expert ("VE") testified. (AR 37-76.) 6 1. 7 Plaintiff testified he had a driver's license, but he does not drive because when he sits for Plaintiff's Hearing Testimony 8 longer durations of time the seats become uncomfortable. (AR 43.) He last worked in 2006 in 9 auto detailing which he did for approximately one month. (AR 44.) Before auto-detailing, he 10 worked as a pizza cook for about four or five months. (AR 44.) Before that he drove a truck for 11 approximately a year. (AR 45.) He also worked with Crestwood Behavioral Health as a 12 counselor. (AR 45.) He stopped working in 2006 because his condition was "just getting too 13 bad." (AR 46.) At the time of the hearing, he could only lift between 10 and 20 pounds and when 14 standing he must lean up against something until he becomes comfortable. (AR 47.) Without 15 assistance he can walk up to a block or about 10 minutes, and he can sit for about 10 minutes. 16 (AR 47-48.) He believes the cause of his inability to sit or stand for a longer period stems from 17 his degenerative disc disease. (AR 53.) 18 On a typical day, he will have someone assist him with dressing; he has two boys who go 19 to school, and he tries to "accommodate them" if he can; he does very little around the house and 20 his medication causes him to sleep a lot. (AR 48.) He does not cook, clean, or grocery shop; he 21 watches television and reads when he is awake. (AR 49.) He does no yard work, and he can no 22 longer participate in running as a hobby. He does not attend his sons' school functions unless it is 23 just for a short period of time. (AR 50.) His medications are for hypertension and pain; he also 24 has an inhaler and takes medication for anger, anxiety, cholesterol, and high blood pressure. 25 (AR 51.) He experiences many side effects, including emotional highs and lows and anger. 26 (AR 51.) He recalled an event earlier in the year where police officers were called to locate him, 27 and they brought a mental health worker out to the house. (AR 52.) In the past, when he was out 28 of medication he obtained a medical marijuana card, but marijuana was not an "everyday thing." 8 1 (AR 52.) The prescription medication makes him drowsy, lethargic, and nauseated; he reported 2 difficulty maintaining motivation. (AR 54.) He has asthma attacks when there is a fragrance or 3 the wind blows a certain way; it happens every day. (AR 55.) His asthma has resulted in 4 emergency room treatment. 5 He experiences consistent pain up and down his back and into his neck; he experiences 6 numbness so he has to shift positions frequently. The cane he uses helps to take off some pressure 7 and provides some relief. (AR 58.) At home he supports his leg when he watches television and 8 keeps a pillow behind him to lie on. (AR 58.) 9 2. 10 Testimony of Vocational Expert A Vocational Expert ("VE") also testified at the hearing. (AR 65-76.) Plaintiff's past work 11 was characterized as a psychiatric aide, Dictionary of Occupational Titles ("DOT") 355.377-014, 12 which is classified as medium work with an SVP2 of 4; a truck driver, DOT 905.663-014, which is 13 classified as medium work with an SVP of 4; short order cook, DOT 313.374-014, which is 14 classified as light work with an SVP of 3; and automobile detailer, DOT 915.687-034, which is 15 classified as medium work with an SVP of 2. 16 The ALJ posed a hypothetical question for the VE to consider. The ALJ asked the VE to 17 consider a person with the same education, work history, and of the same age as Plaintiff who 18 could lift 20 pounds; complete an eight-hour workday if given the option to alternate between 19 sitting and standing as needed in up to 30-minute increments; who must be in a work environment 20 without dust or environmental pollutants or fumes that would trigger an asthma attack; and who 21 can work in proximity to others, but not as part of a team. In posing this hypothetical, the ALJ 22 noted the DOT does not discuss a sit/stand option for any jobs it lists and asked the VE whether 23 there was something in the VE's work history that would give him expertise to discuss jobs that 24 provide a sit/stand option. (AR 69.) The VE testified he has been a vocational rehabilitation 25 counselor for approximately 24 years, he has completed hundreds of job analyses, and he is in 26 "constant convocation with [his] colleagues regarding this issue." (AR 70.) The VE stated an 27 individual limited as posed in the hypothetical would not be able to perform any of Plaintiff's past 28 2 SVP refers to the specific vocational preparation needed for a job. DICOT, App. C, 1991 WL 688702. 9 1 relevant work, but there were alternative jobs such a person could perform including ticket seller, 2 DOT 211.467-030; photocopying machine operator, DOT 207.685-014; and office helper, DPT 3 239.567-010. 4 Plaintiff's counsel asked the VE whether there would be any environmental restrictions 5 applicable to that alternative work, and the VE responded there would not be environmental 6 hazards at those jobs. (AR 71.) Plaintiff's counsel then asked whether the officer worker job 7 could still be performed if the hypothetical person also needed to use an ambulatory device; the 8 VE testified such a person could still perform that work. (AR 72.) Plaintiff's counsel also asked if 9 a person was off-task 20 percent of the time because of medications, and he was required to use an 10 inhaler three or four time a day, whether that would impact the person's ability to perform the 11 work identified. The VE testified that, depending on the work-setting, a person could be off task 12 that long and still perform the work. On the other hand, an assembly line worker, for example, 13 could not be off task for that amount of time and still perform the work. (AR 73.) Plaintiff's 14 counsel then asked the VE to assume a person who was required to keep one leg elevated on a 15 stool to accommodate back pain and who must alternate between sitting and standing in 10- and 516 minute intervals. The VE testified that only about 25 percent of ticket sellers are required to stand 17 all day, but most places provide a stool and if a person were to bring his or her own stool to 18 elevate a leg that would not be a problem. (AR 75.) 19 5. 20 On January 10, 2013, the ALJ issued a decision, finding Plaintiff not disabled. (AR 20- The ALJ's Decision 21 31.) Specifically, the ALJ found that Plaintiff (1) had not engaged in substantial gainful activity 22 since February 26, 2010, the date of Plaintiff's application; (2) has the following severe 23 impairment or a combination of impairments: degenerative disc disease of the lumbar spine, 24 obesity, asthma, anxiety, personality disorder, and depression; (3) does not have an impairment or 25 combination of impairments that meets or equals one of the impairments set forth in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1; (4) is unable to perform his past relevant work; and (5) could 27 perform other jobs in significant numbers in the national economy. (AR 20-31.) 28 10 The ALJ determined that Plaintiff has the residual functional capacity ("RFC")3 to perform 1 2 light work, but he must be given the option to alternate between sitting and standing as needed in 3 up to 30-minute increments; he cannot work where exposed to dust or pollutants; and cannot work 4 as part of a team but is able to work in proximity to others. (AR 24.) 5 Plaintiff sought review of this decision before the Appeals Council. (AR 14-16.) On May 6 27, 2014, the Appeals Council denied review. (AR 3-7.) Therefore, the ALJ's decision became 7 the final decision of the Commissioner. 20 C.F.R. § 404.981. 8 SCOPE OF REVIEW 9 The ALJ's decision denying benefits "will be disturbed only if that decision is not 10 supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 11 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its 12 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). 13 Instead, the Court must determine whether the Commissioner applied the proper legal standards 14 and whether substantial evidence exists in the record to support the Commissioner's findings. See 15 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). "Substantial evidence is more than a mere 16 scintilla but less than a preponderance." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th 17 Cir. 2008). "Substantial evidence" means "such relevant evidence as a reasonable mind might 18 accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 19 (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court "must 20 consider the entire record as a whole, weighing both the evidence that supports and the evidence 21 that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a 22 specific quantum of supporting evidence." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 23 2007) (citation and internal quotation marks omitted). 24 25 26 27 3 RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. 28 11 1 2 APPLICABLE LAW An individual is considered disabled for purposes of disability benefits if he or she is 3 unable to engage in any substantial, gainful activity by reason of any medically determinable 4 physical or mental impairment that can be expected to result in death or that has lasted, or can be 5 expected to last, for a continuous period of not less than twelve months. 42 U.S.C. 6 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The 7 impairment or impairments must result from anatomical, physiological, or psychological 8 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic 9 techniques and must be of such severity that the claimant is not only unable to do her previous 10 work, but cannot, considering her age, education, and work experience, engage in any other kind 11 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 12 1382c(a)(3)(B), (D). 13 The regulations provide that the ALJ must undertake a specific five-step sequential 14 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine 15 whether the claimant is currently 16 20 C.F.R. §§ 404.1520(b), 416.920(b). engaged in substantial gainful activity. If not, in the Second Step, the ALJ must determine 17 whether the claimant has a severe impairment or a combination of impairments significantly 18 limiting her from performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the 19 Third Step, the ALJ must determine whether the claimant has a severe impairment or combination 20 of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 21 20 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the 22 ALJ must determine whether the claimant has sufficient residual functional capacity despite the 23 impairment or various limitations to perform her past work. Id. §§ 404.1520(f), 416.920(f). If 24 not, in the Fifth Step, the burden shifts to the Commissioner to show that the claimant can perform 25 other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g), 26 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there 27 is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 28 20 C.F.R. §§ 404.1520, 416.920. 12 1 DISCUSSION 2 A. ALJ's Consideration of the Medical Evidence 3 Plaintiff contends the ALJ erred in considering the opinions of Drs. Garcia and Martin by 4 failing to adopt the limitations they opined Plaintiff suffers with respect to his ability to deal with 5 the public and perform simple, repetitive tasks. 6 1. 7 The medical opinions of three types of medical sources are recognized in Social Security Legal Standard 8 cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not 9 treat the claimant (examining physicians); and (3) those who neither examine nor treat the 10 claimant (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 11 Generally, a treating physician’s opinion should be accorded more weight than opinions of 12 doctors who did not treat the claimant, and an examining physician’s opinion is entitled to greater 13 weight than a non-examining physician’s opinion. Id. Where a treating or examining physician’s 14 opinion is uncontradicted by another doctor, the Commissioner must provide “clear and 15 convincing” reasons for rejecting the treating physician’s ultimate conclusions. Id. If the treating 16 or examining doctor’s medical opinion is contradicted by another doctor, the Commissioner must 17 provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons 18 must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine v. 19 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The ALJ can meet this burden by 20 setting forth a detailed and thorough summary of the facts and conflicting clinical evidence, 21 stating her interpretation thereof, and making findings. Tommasetti v. Astrue, 533 F.3d 1035, 22 1041 (9th Cir. 2008). 23 2. 24 Plaintiff contends Dr. Garcia made two findings the ALJ erroneously failed to incorporate The ALJ's Consideration of Dr. Garcia's Opinion Was Proper 25 into the RFC even though the ALJ assigned evidentiary weight to Dr. Garcia's opinion. Dr. Garcia 26 found Plaintiff (1) has moderate emotional and behavior problems that would impede his ability to 27 socialize with others and impede his ability to take care of his self-care needs; and (2) would have 28 moderate emotional and behavioral problems which would impede his ability to interact with co13 1 workers in a competitive job situation. Plaintiff argues these findings implicate his ability to work 2 with the public, yet no limitation for working with the public was included in the RFC. 3 The Commissioner argues Dr. Garcia did not opine Plaintiff would be unable to interact 4 with co-workers, only that he would be impeded in his ability to socialize with others and interact 5 with co-workers. There was sufficient evidence that this limitation was not particularly severe in 6 that Plaintiff reported he lived with his roommate and girlfriend, had family and peer interactions, 7 and spent time with his sons. The ALJ interpreted Dr. Garcia's relatively benign examination 8 findings to mean that Plaintiff would have some difficulty interacting with others, but that he 9 would not be entirely precluded from doing so. Thus, the ALJ restricted Plaintiff from work as 10 part of a team but found he could work in proximity to others. This RFC assessment did not 11 ignore Dr. Garcia's opinion. 12 Dr. Garcia found Plaintiff had moderate emotional and behavioral problems that would 13 impede his ability to socialize with others and his ability to interact with co-workers in a 14 competitive job situation. (AR 372.) Although Plaintiff argues this should have been construed as 15 a preclusion of any public contact, Dr. Garcia did not opine Plaintiff was unable to interact with 16 others. The ALJ credited Dr. Garcia's opinion and reasonably translated Plaintiff's "impeded" 17 social abilities into the RFC by restricting Plaintiff from work as part of a team but noted he would 18 be able to work in proximity to others. (AR 24.) The propriety of the ALJ interpreting limitations 19 opined by physicians and translating them to meaningful and concrete restrictions for purposes of 20 the RFC determination was considered in Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 21 2008). There, the ALJ formulated an RFC restricting a claimant to simple, routine, and repetitive 22 sedentary work requiring no interaction with the public. On appeal, the plaintiff argued that 23 restriction failed to adequately capture the deficiencies in pace and other mental limitations 24 described by two physicians. The court held the ALJ's RFC for simple, repetitive tasks was a 25 reasonable translation of the plaintiff's limitations in pace and other mild and moderate mental 26 limitations. The court reasoned the ALJ was not required to adopt the exact language of the 27 limitations identified by the physicians. Id. 28 14 1 Here, Dr. Garcia's notation that Plaintiff's emotional and behavioral problems would 2 "impede" his ability to socialize with others and interact with co-workers was not a concrete 3 limitation; it was a limitation the ALJ was required to interpret in the context of the record. The 4 record reflects Plaintiff had some degree of limitation in socializing and interacting with others. In 5 March 2011, Plaintiff reported to a treating physician that he did not socialize or go out in public 6 because "he does not do well with other people." (AR 364.) Dr. Garcia reported Plaintiff 7 appeared overly sensitive to remarks perceived as disrespectful or racist, and Plaintiff reported 8 becoming easily angered. (AR 372.) 9 On the other hand, Plaintiff was able to sufficiently interact with the public and others at 10 his numerous medical evaluations and examinations with Drs. Park, Yoo, Tran, Bella, Parmar, and 11 Garcia; he interacted with therapists and counselors for mental health counseling at Oildale; and 12 he participated in a course of physical therapy. There were no reports Plaintiff was unable to 13 socialize or interact with any of these professionals or their respective staff personnel to receive 14 care and treatment, although Plaintiff reportedly refused to wait for treatment on occasions and 15 would leave if he could not be seen immediately upon his arrival. (AR 308.) In December 2010, 16 he was observed to be pleasant at examination. (AR 348.) In May 2011, while it was noted 17 Plaintiff was somewhat indifferent and apathetic, he demonstrated a fair resolve to participate in 18 treatment. (AR 358.) In short, Plaintiff was able to sufficiently interact with others to obtain 19 medical treatment and mental health counseling. Beyond his interactions with medical 20 professionals, Plaintiff reported he enjoyed spending time with his girlfriend and sons, he lived 21 with a roommate and his girlfriend without apparent problem, and he kept in contact with his 22 mother frequently and his siblings occasionally. (AR 364, 368.) Taken as a whole, the record 23 does not support an inability to socialize or interact with the public. The ALJ found Plaintiff 24 unable to work on a team, but able to work in proximity to others. Interpreting Plaintiff's 25 "impeded" social ability as a limitation to team work but not a complete preclusion from working 26 in proximity to others or dealing with the public was reasonable and supported by substantial 27 evidence. The ALJ did not reject Dr. Garcia's opinion, but formulated a limitation that was an 28 appropriate interpretation of Dr. Garcia's opinion and was supported by sufficient evidence. 15 1 3. 2 Plaintiff argues Dr. Martin, a non-examining physician, specifically reviewed Dr. Garcia's The ALJ's Consideration of Dr. Martin's Opinion 3 examination findings and opined Plaintiff should be limited to "no public contact and a setting 4 which did not have social interactions as a predominant requirement, limiting interpersonal contact 5 to brief and superficial interactions." (AR 380.) The ALJ rejected this opinion reasoning that 6 there is "no evidence [Plaintiff] would have difficulties interacting with the public." (AR 29.) 7 Plaintiff argues this basis for rejecting Dr. Martin's opinion is not legally sufficient and is 8 unsupported by substantial evidence. 9 As to Plaintiff's cognitive functioning, Dr. Garcia concluded Plaintiff had no deficits with 10 regard to persistence, pace, or concentration, thus there was no basis to further limit Plaintiff to 11 simple, repetitive tasks. The Commissioner asserts the clinical findings are relatively 12 unremarkable as to Plaintiff's mental limitations, and Plaintiff points to no other evidence in the 13 record which supports Dr. Martin's opined limitation for simple, repetitive tasks. However, even 14 if Plaintiff should have been limited to simple, repetitive tasks, this error is not prejudicial because 15 the work identified by the VE was limited only to simple work at reasoning level 2, which 16 encompasses a limitation to simple, repetitive work. 17 The record reflects no evidence of an inability to deal with the public other than Plaintiff's 18 own statements he did not enjoy going out in public and did not like dealing with people. As 19 discussed above, these statements are at odds with evidence showing Plaintiff was successfully 20 able to interact with physicians, counselors, and their respective staffs to obtain treatment. He was 21 also able to maintain relationships with his family, his children, a girlfriend, and a roommate. 22 Moreover, Dr. Garcia's opinion that Plaintiff was socially "impeded" was not evidence of an 23 inability to deal with the public. In this regard, Dr. Martin's opinion that Plaintiff should be 24 precluded from public contact at a job is not supported, and the ALJ did not err in rejecting Dr. 25 Martin's opinion on this basis. 26 As for the limitation to simple, repetitive tasks opined by Dr. Martin, which Plaintiff 27 argues should have been included in the RFC, the ALJ did not discuss the opined limitation or 28 offer a basis to reject it. However, even if the ALJ erred in failing to credit Dr. Martin's opinion in 16 1 this regard, Plaintiff has not demonstrated the error is prejudicial. McLeod v. Astrue, 640 F.3d 2 881, 888 (9th Cir. 2010) (to justify further administrative proceedings, claimant must demonstrate 3 a substantial likelihood of prejudice; merely probability is not enough). The VE identified jobs 4 Plaintiff could perform that require only level-2 reasoning skills (see DICOT 207.685-014, 5 photocopying-machine operator; DICOT 239.567-010, office helper), which is consistent with a 6 limitation to simple, repetitive work. See Meissl v. Barnhart, 403 F. Supp. 2d 981, 984-85 (C.D. 7 Cal. 2005). Thus, even had the simple, repetitive job limitation been included in the RFC, it 8 would not have changed the availability of alternative work. 9 B. 10 The ALJ Properly Credited the VE's Testimony Regarding a Sit/Stand Option Pursuant to the ALJ's RFC determination, Plaintiff must be given the option to alternate 11 between sitting and standing (a "sit/stand" option) as needed in up to 30-minute increments at any 12 job he performs. Even with this limitation, the ALJ determined Plaintiff could perform "light" 13 exertional-level work based on the testimony of the VE, who opined such work would include a 14 sit/stand option. The DOT, however, does not address a sit/stand option for any job it identifies. 15 Plaintiff argues the VE's testimony that jobs listed in the DOT can nevertheless be performed with 16 a sit/stand option is necessarily inconsistent with the DOT. Plaintiff maintains the ALJ was 17 required to obtain a reasonable explanation to explain and justify the conflict, but the VE did not 18 explain the basis for the variance from the DOT job descriptions. (Doc. 13, 7:16-8:9.) 19 At Step Five, the ALJ must determine whether there is alternative work the claimant can 20 perform in light of the claimant's RFC. 20 C.F.R. §§ 404.1520(f), 416.920(f). In determining 21 whether appropriate jobs exist for the claimant, the ALJ generally will refer to the DOT. Light v. 22 Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997), Social Security Ruling ("SSR") 00-4p, 23 2000 WL 1898704 ("In making disability determinations, we rely primarily on the DOT 24 (including its companion publication, the SCO) for information about the requirements of work in 25 the national economy."). In addition to the DOT, the ALJ may rely on the testimony of vocational 26 experts who testify about specific occupations a claimant can perform in light of his RFC. 20 27 C.F.R. § 404.1560(b)(2); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 28 17 1 2009). SSR 00-4p provides the following guidance regarding occupational evidence from a VE in 2 relation to information included in the DOT: 3 4 5 6 7 8 9 10 Occupational evidence provided by a VE or VS [vocational specialist] generally should be consistent with the occupational information supplied by the DOT. When there is an apparent unresolved conflict between the VE or VS evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about whether the claimant is disabled. At the hearings level, as part of the adjudicator's duty to fully develop the record, the adjudicator will inquire, on the record, as to whether or not there is such consistency. Neither the DOT nor the VE or VS evidence automatically "trumps" when there is a conflict. The adjudicator must resolve the conflict by determining if the explanation given by the VE or VS is reasonable and provides a basis for relying on the VE or VS testimony rather than on the DOT information. 11 12 The ALJ may rely on VE testimony that contradicts the DOT, but only insofar as the 13 record contains persuasive evidence to support the deviation. Light, 119 F.3d at 793; Johnson v. 14 Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995); Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 15 2007). Although evidence provided by a VE "generally should be consistent" with the DOT, 16 "[n]either the DOT nor the VE . . . evidence automatically 'trumps' when there is a conflict." 17 SSR 00-4p at *2. Thus, the ALJ must first determine whether a conflict exists, and if it does, the 18 ALJ must then determine whether the VE's explanation for the conflict is reasonable and whether 19 a basis exists for relying on the expert rather than the DOT. Id. at *2-3. Only after determining 20 whether the VE has deviated from the DOT, and whether any deviation is reasonable, can an ALJ 21 properly rely on the VE's testimony as substantial evidence to support a disability determination. 22 Massachi, 486 F.3d at 1152-54. Evidence sufficient to support a deviation from the DOT may be 23 either specific findings of fact regarding Plaintiff's ability to perform particular jobs, or inferences 24 drawn from the context of the expert's testimony. See Johnson, 60 F.3d at 1435 n. 7 (ALJ 25 provided sufficient support for deviation by noting that the VE described characteristics and 26 requirements of jobs in the local area consistent with claimant's RFC); Terry v. Sullivan, 903 F.2d 27 1273, 1279 (9th Cir. 1990) (ALJ may infer support for deviation where VE’s understanding of 28 applicable legal standards is clear from context). 18 1 District courts in this circuit are split as to whether there is a conflict between the DOT and 2 VE testimony where the DOT is silent on a job requirement – i.e., a sit/stand option. The majority 3 of courts find that even though the DOT is silent as to this particular job requirement, a VE's 4 testimony that certain work can be performed by a claimant with a need for a sit/stand option is 5 not inconsistent. Edwards v. Colvin, No. 2:13-cv-1461-DAD, 2015 WL 673441, at *4 (E.D. Cal. 6 Feb. 17, 2015); Gilmour v. Colvin, No. 1:13-cv-0553-BAM, 2014 WL 3749458, at *8 (E.D. Cal. 7 July 29, 2014); Forrest v. Comm'r Soc. Sec. Admin., No. 14-5421, 2014 WL 6185309, at *4 (6th 8 Cir. 2014) (unpublished) ("But the DOT does not discuss whether jobs have a sit/stand option . . . 9 and therefore the vocational expert's testimony supplemented, rather than conflicted with, DOT 10 job descriptions."); Zblewski v. Astrue, 302 Fed. Appx. 488, 494 (7th Cir. 2008) (unpublished) 11 ("Because the DOT does not address the subject of sit/stand options, it is not apparent that the 12 testimony conflicts with the DOT."); Stain v. Colvin, No. CV 13-1973-SH, 2014 WL 2472312, at 13 *2 (C.D. Cal. June 2, 2014). 14 At least three district courts in this circuit have concluded a VE's testimony that jobs could 15 be performed with a sit/stand option is inconsistent with the DOT's silence on the matter. 16 Edwards v. Astrue, 2013 WL 1891764, at *9-10 (N.D. Cal. May 6, 2013) (finding apparent 17 conflict where VE testifies jobs can be performed with a sit/stand requirement and the DOT is 18 silent about that requirement); Valenzuela v. Astrue, 2009 WL 1537876, at *3 (N.D. Cal. June 2, 19 2009) (same), Smith v. Astrue, No. C 09-03777-MHP, 2010 WL 5776060, at *11-12 (N.D. Cal. 20 Sept. 16, 2010) (same). 21 Even assuming, without deciding, there is a conflict when the VE testifies that a person 22 who requires a sit/stand option can perform work identified by the DOT, the ALJ did not err in 23 resolving the conflict. The ALJ posed a hypothetical to the VE including the sit/stand limitation 24 and asked whether an individual would be able to perform any alternative work. (AR 69.) In 25 posing this hypothetical, the ALJ acknowledged the DOT "does not discuss the sit/stand option," 26 and asked whether there was anything in the VE's work history that gave him expertise to discuss 27 jobs that provide a sit/stand option. (AR 69.) The VE responded as follows: 28 19 Yes, your honor. I have been a vocational rehabilitation counselor for approximately 24 years and I have completed hundreds of job analyses and I'm also in constant convocation with my colleagues regarding this issue. 1 2 3 (AR 70.) The VE then testified that a person who required a sit/stand option would be able to 4 perform work as a ticket seller, photocopy machine operator, and office helper. (AR 70.) The VE 5 explained his specific experience4 in conducting hundreds of job analyses and conferring with his 6 colleagues regarding this particular issue to give testimony about the specific jobs the VE believed 7 a person with that limitation could perform. (AR 70.) Even assuming there was a conflict 8 between the VE testimony and the DOT, this testimony sufficiently identifies a reasoned basis 9 under SSR 00-4p and Massachi, 486 F.3d at 1153 to defer to the VE's testimony over the DOT's 10 silence on this issue. The ALJ did not err in relying on the VE's testimony about the work that 11 could be performed even where a person requires a sit/stand option. 12 C. 13 14 Subsequent Grant of Benefits Does Not Warrant Remand As New and Material Evidence Plaintiff contends he was awarded SSI benefits on February 9, 2015, in a subsequent 15 decision which constitutes new and material evidence that requires remand. Pursuant to Luna v. 16 Astrue, 623 F.3d 1032 (9th Cir. 2010), a subsequent award of benefits may create an ambiguity 17 and conflict with a prior non-disability finding. Plaintiff acknowledges the subsequent disability 18 finding in Luna was issued only one day after a prior non-disability finding. In Plaintiff's case, the 19 non-disability finding was made on January 10, 2013, and the subsequent grant of benefits 20 awarded disability as of October 30, 2014. Even though the non-disability and subsequent 21 disability finding are not one day apart like Luna, Plaintiff argues the subsequent disability finding 22 is nonetheless potentially in conflict with the first non-disability finding made nearly two years 23 earlier. Plaintiff asserts this is so because both his applications concern disability under SSI, and 24 the effective date of an SSI award may not, as a matter of law, predate the date of the SSI 25 application. An award of disability under SSI does not necessarily correlate to the actual onset 26 date of the disability itself. Thus, in considering Plaintiff's subsequent SSI application, the 27 28 4 This testimony goes beyond the VE's curriculum vitae and status as a vocational expert generally. This testimony lays a specific foundation for the VE's testimony regarding the sit/stand limitation as applicable to the work identified. 20 1 Commissioner would not have considered whether Plaintiff actually became disabled before 2 October 30, 2014 (the date of Plaintiff's subsequent SSI application). Plaintiff argues under these 3 circumstances, the existence of a subsequent disability finding for SSI purposes requires remand 4 so the ALJ can evaluate whether the records forming the basis of the subsequent disability finding 5 relate back to the time period relevant to Plaintiff's currently pending SSI claim – i.e., the claim 6 presently before the Court. 7 The Commissioner argues Luna is distinguishable and does not provided support for a per 8 se remand whenever there is a subsequent application and grant of benefits. The courts are 9 required to address the assertions of error before it, regardless of whether the claimant satisfied the 10 statutory and regulatory burdens under a different application. Plaintiff merely points to a generic 11 award letter on a subsequent SSI claim and provides no information for a court to determine 12 whether the subsequent award had a reasonable possibility of changing the outcome of the first 13 decision, which is necessary to find that the evidence is material. Moreover, even if Luna were 14 applicable, Plaintiff's subsequent disability starting on October 30, 2014, is not at or near the time 15 of the date of the non-disability finding in January 2013. As such, the subsequent disability 16 finding does not create any conflict or ambiguity with the January 2013 decision that must be 17 resolved. 18 Pursuant to 42 U.S.C. § 405(g), "[t]he court may, . . . at any time order additional evidence 19 to be taken before the Commissioner of Social Security, but only upon a showing that there is new 20 evidence which is material and that there is good cause for the failure to incorporate such evidence 21 into the record in a prior proceeding." New evidence is considered "material" when it "'bear[s] 22 directly and substantially on the matter in dispute,' and if there is a 'reasonabl[e] possibility that 23 the new evidence would have changed the outcome of the . . . determination.'" Bruton v. 24 Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (quoting Booz v. Sec'y of Health & Human Servs., 25 734 F.2d 1378, 1380 (9th Cir. 1984)). 26 In Luna, Carmen Luna, the claimant, applied for DIB and SSI alleging an onset date of 27 November 30, 2002. After her application was denied, she requested a hearing before an ALJ and 28 amended her alleged disability onset date to March 26, 2003. The ALJ denied Luna's application 21 1 in January 2006, the Appeals Council denied Luna's request for review, and Luna then filed a 2 complaint in district court. While this application was pending on appeal, Luna filed a second 3 application for DIB and SSI, which was granted in August 2007. On the second application, Luna 4 was found disabled as of January 28, 2006, which was one day after the ALJ found Plaintiff not 5 disabled for purposes of her first application. On appeal to the district court as it pertained to 6 Luna's first application, the parties agreed the matter should be remanded to the agency to 7 reconcile the denial of benefits based on Luna's first application with the grant of benefits on her 8 second application, but they did not agree to the terms of the remand. Luna argued the second 9 application grant clearly indicated she was disabled for the earlier time period covered by the first 10 application, so the proper remedy was a remand for payment of benefits for the earlier time period. 11 The district court instead granted the Commissioner's motion to remand for further administrative 12 proceedings to determine whether Luna was actually disabled during the period of time relevant to 13 her first application. Luna appealed that determination. 14 The appellate court affirmed a remand for further proceedings reasoning finding there was 15 a reasonable possibility that the subsequent grant of benefits was based on new evidence not 16 considered by the ALJ as part of the first application, and further consideration of those factual 17 issues was appropriate to determine whether the decision on the first application should be 18 different. The court distinguished the need for further proceedings from Bruton v. Massanari, 19 which also involved a subsequent grant of benefits while an initial application was pending on 20 appeal. In Bruton, the court held the initial denial and subsequent award of benefits were easily 21 reconcilable on the record before the court, and no remand was warranted. The second application 22 in Bruton involved different evidence, a different time period, and a different age classification, 23 which the court found distinguishable from Luna. In Luna, the court only had a Notice of Award 24 letter with a one-day difference between the non-disability finding and the disability finding. 25 Because the evidence was limited in this way, the court reasoned Luna may have "presented 26 different medical evidence to support the two applications, or there might be some other reason to 27 explain the change." Luna, 623 F.3d at 1035. With this uncertainty, a remand for further factual 28 proceedings was determined to be the appropriate remedy. Id. 22 1 This case is distinguishable from Luna. Here, there is a 658-day difference (nearly two 2 years) between the two disability determinations whereas in Luna the date difference between the 3 disability determinations was only one day.5 Although, like Luna, Plaintiff has submitted only 4 the Notice of Award letter on the subsequent decision and not the decision showing the reasoning 5 of the ALJ or a summary of the evidence considered in conjunction with the subsequent 6 application, the lack of temporal proximity of the disability and non-disability is a critical 7 distinction from Luna. The Luna court expressly agreed with Bradley v. Barnhart, 463 F. Supp. 8 2d 577, 580-81 (S.D.W. Va. 2006) that "in certain circumstances, an award based on an onset date 9 coming in immediate proximity to an earlier denial of benefits is worthy of further administrative 10 scrutiny to determine whether the favorable event should alter the initial, negative outcome on the 11 claim." Here, there is no "immediate proximity." Without such proximity, the "reasonable 12 possibility" that the subsequent disability finding was based on evidence both new and material to 13 the first decision is substantially diminished. Although Plaintiff argues the temporal proximity 14 potentially could have been closer had the subsequent application involved a DIB claim rather 15 than one for SSI, this contention is only speculation and does not equate to a reasonable 16 possibility. Plaintiff does not describe the evidence considered in conjunction with the subsequent 17 application or even submit the second decision to the Court; Plaintiff only offers the Notice of 18 Award letter for consideration. It is Plaintiff's burden to establish the materiality of new evidence 19 – i.e., that the new evidence has a reasonable probability of changing the outcome. 42 U.S.C. 20 § 406(g). This burden has not been satisfied by a Notice of Award letter in a subsequent 21 determination finding disability nearly two years after the period in which Plaintiff was 22 determined not disabled. 23 D. The ALJ Failed to Offer Clear and Convincing Reasons to Discredit Plaintiff 24 Plaintiff contends the ALJ provided no specific reasons for finding Plaintiff not fully 25 credible. Rather, the ALJ only noted a few activities in which Plaintiff participates that are not 26 relevant to Plaintiff's alleged impairments, and this is insufficient to meet the clear and convincing 27 28 5 On Plaintiff's first application for SSI, Plaintiff was found not disabled between February 2010 and January 10, 2013, and on the second application Plaintiff was found disabled as of October 30, 2014. 23 1 standard. The Commissioner responds Plaintiff's daily activities were just one of the ample 2 reasons the ALJ discussed in finding Plaintiff not fully credible, all of which are supported by 3 substantial evidence. 4 1. 5 In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ Legal Standard 6 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, 7 the ALJ must determine whether the claimant has presented objective medical evidence of an 8 underlying impairment that could reasonably be expected to produce the pain or other symptoms 9 alleged. Id. The claimant is not required to show that her impairment "could reasonably be 10 expected to cause the severity of the symptom she has alleged; she need only show that it could 11 reasonably have caused some degree of the symptom." Id. (quoting Lingenfelter, 504 F.3d at 12 1036). If the claimant meets the first test and there is no evidence of malingering, the ALJ can 13 only reject the claimant's testimony about the severity of the symptoms if he gives "specific, clear 14 and convincing reasons" for the rejection. Id. As the Ninth Circuit has explained: 15 16 17 18 19 The ALJ may consider many factors in weighing a claimant’s credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant’s reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant’s daily activities. If the ALJ’s finding is supported by substantial evidence, the court may not engage in second-guessing. 20 Tommasetti, 533 F.3d at 1039 (citations and internal quotation marks omitted); see also Bray v. 21 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); 20 C.F.R. §§ 404.1529, 22 416.929. Other factors the ALJ may consider include a claimant's work record and testimony 23 from physicians and third parties concerning the nature, severity, and effect of the symptoms of 24 which he complains. Light, 119 F.3d at 792. 25 2. 26 The ALJ first summarized Plaintiff's hearing testimony and then concluded that Plaintiff's Plaintiff's Lay Statements Regarding Physical Pain and Mental Symptoms 27 statements concerning intensity, persistence, and the limiting effects of his symptoms were not 28 entirely credible. The ALJ then proceeded to summarize various portions of the medical record 24 1 and treatment history. This summary was not an analysis, but a recitation of the facts. In 2 discussing treatment in December 2011, the ALJ noted that Plaintiff "did not seek out mental 3 health treatment after December 2011, which suggests that [Plaintiff's] symptoms may not be as 4 severe as alleged." (AR 28.) Finally, the ALJ concluded with the following discussion of the 5 evidence: 6 7 8 9 10 11 In sum, the above residual functional capacity assessment is supported by substantial weight of the objective evidence that shows degenerative disc disease with radicular symptoms, but an ability to perform heel and toe walking, independent ambulation as well as intact motor strength and reflexes (Exs. 3F, 7F, 9F, 18F, 19F, 20F). In addition, the claimant acknowledges an ability to lift 20 pounds and he has been able to exercise (Ex. 18F, testimony). Further, in 2012, he reported good pain control with medication (Ex. 18F). Lastly, the claimant did not seek out mental health treatment after December 2011, which suggests that his symptoms are not particularly bothersome. 12 (AR 29.) Under the Ninth Circuit's recent decisions in Garrison v. Colvin, 759 F.3d 995 (9th Cir. 13 2014) and Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014), this discussion is not sufficiently tied 14 to consideration of Plaintiff's credibility and does not reach the clear and convincing level of 15 reasoning necessary to support an adverse credibility finding. The Commissioner's argument 16 relies primarily on post-hoc reasoning which the Ninth Circuit has explained cannot be used to 17 support the ALJ's determination. Burrell, 775 F.3d at 1138 ("Our decisions make clear that we 18 may not take a general finding – an unspecific conflict between [the claimant's] testimony about 19 daily activities and her reports to her doctors – and comb the administrative record to find specific 20 conflicts."). 21 The Commissioner contends the ALJ found Plaintiff's missed counseling appointments an 22 adverse credibility factor. The ALJ's mere observation of missed appointments, however, was not 23 accompanied by any analysis or indication the ALJ considered this as a credibility factor. The 24 Commissioner also notes the ALJ recounted Plaintiff's treatment, which the Commissioner 25 construes as "conservative," that Plaintiff failed to follow through with recommended treatment, 26 and Plaintiff reported normal physical activities to his physician on at least one occasion. The 27 ALJ did not articulate these reasons as a basis to discount Plaintiff's credibility. A decision that 28 merely records facts – such as missed appointments or the types and nature of treatment obtained – 25 1 without any analysis of those facts does not constitute a specific, clear, and convincing basis to 2 support a credibility finding. In Burrell, 775 F.3d at 1138, the ALJ decision noted no record of 3 primary care for headaches, neck, or back pain. The Commissioner argued the ALJ found the 4 claimant's testimony about her headaches contradicted by the record, which showed she had no 5 treatment for headaches. The court rejected this argument on two grounds: (1) the ALJ never 6 discussed a conflict with the medical record as a basis for the adverse credibility determination 7 and the mere notation for a lack of treatment for headaches was not a credibility analysis; and (2) 8 four different medical records showed reports of headaches and neck pain. 9 Similar to Burrell, the ALJ did not predicate the adverse credibility finding on Plaintiff's 10 missed appointments, his refusal to seek recommended treatment, or what the Commissioner 11 characterizes as conservative treatment. Rather, Plaintiff's missed appointments were merely 12 noted; the ALJ made no finding what the missed appointments implied. Also, the ALJ only 13 recorded Plaintiff's treatment but did not characterize it as "conservative" or explain how the 14 treatment was so minor that it undercut Plaintiff's lay statements. While the Court may make 15 inferences regarding the ALJ's reasoning, it cannot infer an entire credibility analysis where there 16 is none. See Burrell, 775 F.3d at 1138. 17 The Commissioner contends the ALJ considered Plaintiff's daily activities as a credibility 18 consideration. Like Burrell, the daily activities noted by the ALJ are not analyzed – how or why 19 these activities were considered relevant by the ALJ is not discussed. Specifically, the ALJ noted 20 only that Plaintiff "reported that he gets up in the morning, gets help getting dressed, does some 21 light dusting, watches television, reads, and uses three-pound hand weights. He does not vacuum 22 or sweep, cook, do dishes, grocery shop, do yard work, do hobbies, or use a computer." (AR 24.) 23 In Burrell, the appellate court found the ALJ's failure to elaborate which daily activities conflicted 24 with a specific portion of Plaintiff's testimony rendered the reasoning not sufficiently specific to 25 satisfy the clear and convincing standard. Pursuant to Burrell, the mere mention of certain daily 26 activities in the ALJ's decision without any analysis is insufficient support for an adverse 27 credibility determination. 28 26 1 The decision reflects the ALJ noted Plaintiff's statements of pain and physical limitation, 2 but apparently rejected the extent of these statements. Plaintiff testified he experiences constant 3 pain and while medication relieves the pain to some extent, the pain remains constant at 4 approximately 5 out of 10. Plaintiff also stated he cannot stand for more than 5 minutes, walk for 5 more than 20, or sit for more than 10 minutes due to pain. The ALJ necessarily rejected these 6 statements in finding that Plaintiff remained able to perform light work, which requires a person to 7 lift 20 pounds occasionally, and 10 pounds frequently, and light work also requires "a good deal of 8 walking or standing." The Commissioner argues the ALJ rejected these statements because 9 Plaintiff reported good pain relief with medication. Even assuming this reasoning was sufficiently 10 tied to an actual credibility analysis rather than general support for the RFC, the reasoning is not 11 clear and convincing because it is not supported by substantial evidence. 12 The record reflects Plaintiff consistently reported pain even with medication. In 2009, 13 Plaintiff complained of back pain and was given a prescription for Soma and Vicodin and referred 14 to physical therapy. (AR 309.) He was referred to pain management, but the ALJ noted Plaintiff 15 kept leaving before the appointments if he could not be seen immediately. (AR 308.) 16 Nevertheless, in April 2010, Plaintiff was seen for pain management, where he reported his pain 17 ranged from a 4 to an 8 on a 10-point scale. (AR 315.) In September 2010, Plaintiff was seen 18 again for refills of his pain medication, and he was sent for another pain management consultation 19 that took place in December 2010. (AR 347.) Plaintiff rated his pain as an 8 to 10 in intensity, 20 describing it as constant, aching, throbbing, and burning in nature. (AR 347.) During a pain 21 management appointment in 2011, Plaintiff reported his back pain was decreased to a 4 or 5 out of 22 10 with medication. In December 2011, Plaintiff indicated his pain remained between a 7 or an 8 23 out of 10, but Lortab brought the pain down to a 4 or a 5 out of 10. (AR 412.) In February 2012 24 Plaintiff reported his pain was currently an 8 out of 10, but Lortab gave him "fairly good pain 25 relief." (AR 410.) Plaintiff also reported taking Soma, which also provided "good pain relief." 26 (AR 410.) In April 2012, Plaintiff again reported pain as a 6 out of 10 (AR 409), but in July 2012 27 reported experiencing persistent spasms over the previous months before the examination with an 28 intensity of 9 or 10 out of 10. (AR 442.) 27 1 Although Plaintiff reported reduced pain with medication, he never rated his pain as less 2 than a 5 out of 10 to his doctors and explained at the hearing his back pain was constant and while 3 the medication "helps alleviate" the pain, it was never gone. (AR 61.) Without medication, his 4 pain was at a 9 or a 10 out of 10, but with the medication he can "do a five sometimes" in terms of 5 pain. (AR 61.) When viewing the record as a whole, Plaintiff's few isolated reports of pain 6 reduction with medication is not a clear and convincing reason to discount Plaintiff's pain 7 testimony, especially in view of Plaintiff's hearing testimony that while the pain was lessened with 8 medication it was still significant and constant. 9 The Commissioner argues that as part of the credibility determination, the ALJ considered 10 the medical opinions of record, which did not support the extent of limitation Plaintiff alleged. 11 While the ALJ noted the RFC was supported by the weight of the medical information, the ALJ 12 did not reason Plaintiff's pain testimony was rejected on that basis. However, even if such 13 reasoning could be inferred from the decision, lack of corroborating medical evidence must be 14 considered in conjunction with other credibility factors and may not serve as the sole basis to 15 reject pain testimony. Here, all other reasoning the Commissioner asserts the ALJ articulated are 16 either insufficient or reasoning that was not offered by the ALJ at all. Thus, inconsistency with 17 the medical evidence remains as the only basis to reject Plaintiff's physical pain testimony – which 18 is insufficient. 19 As to his mental health symptoms, the ALJ noted Plaintiff did not seek out mental health 20 after December 2011, suggesting that his psychological symptoms were not "particularly 21 bothersome." (AR 29.) Even assuming this was a legally sufficient basis to reject Plaintiff's lay 22 testimony about his mental health symptoms, the credibility analysis as to Plaintiff's subjective 23 pain testimony is not clear and convincing and requires remand. 24 The Commissioner has aptly demonstrated there may be substantial evidence to support an 25 adverse credibility determination on several grounds; therefore, remand for further consideration is 26 warranted rather than crediting Plaintiff's pain testimony as true. Burrell, 775 F.3d at 1141 (where 27 "evidence in th[e] record not discussed by the ALJ suggests that [the claimant] may not be 28 credible," the proper remedy is remand rather than application of the credit-as-true doctrine). 28 1 CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial 3 evidence and therefore RECOMMENDS that the ALJ's decision be REVERSED and 4 REMANDED for further administrative proceedings and that judgment be entered for Plaintiff and 5 against Carolyn W. Colvin, Acting Commissioner of Social Security. 6 These findings and recommendations are submitted to the district judge assigned to this 7 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen 8 (14) days of service of this recommendation, any party may file written objections to these 9 findings and recommendations with the Court and serve a copy on all parties. Such a document 10 should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The 11 district judge will review the magistrate judge's findings and recommendations pursuant to 12 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the 13 specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 14 1153 (9th Cir. 1991). 15 16 IT IS SO ORDERED. 17 Dated: January 8, 2016 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 29
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