(SS) Coronado v. Commissioner of Social Security, No. 1:2010cv00594 - Document 18 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS recommending that the ALJ's decision be reversed and the case be remanded to the ALJ to make additional findings. Matter referred to Judge Ishii; Objections to F&R due within fifteen (15) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 8/2/2011. (Timken, A)
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(SS) Coronado v. Commissioner of Social Security Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JOSE JESUS CORONADO, 11 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) _____________________________________ ) 1:10-cv-00594-AWI-SKO FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT (Doc. 1) 18 19 I. BACKGROUND 20 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the 21 “Commissioner” or “Defendant”) denying his application for disability insurance benefits (“DIB”) 22 and supplemental security income (“SSI”) pursuant to Title II and XVI of the Social Security Act. 23 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties’ briefs, 24 which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States 25 Magistrate Judge.1 26 27 1 28 On May 18, 2010, the action was referred to the Honorable Sheila K. Oberto for all purposes. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; see also L.R. 301, 305. Dockets.Justia.com 1 II. FACTUAL BACKGROUND 2 Plaintiff was born in 1958 and previously worked as a handyman. (Administrative Record 3 (“AR”) 96, 109.) Plaintiff has obtained a General Education Development (“GED”) certificate, but 4 has had no further education or training. (AR 26.) Plaintiff filed the current applications for DIB 5 and SSI on January 24, 2007. (AR 15, 83-93.) Plaintiff alleges that he became unable to work on 6 June 1, 2006, due to “slipped discs” in his back, a “bad right knee,” a spur on his right heel, and 7 arthritis (AR 83, 108.)2 8 A. Medical Evidence 9 Plaintiff asserts that his inability to work is due to an injury that occurred on December 14, 10 2004, which resulted in back pain. (AR 108, 144.) Plaintiff also suffers from right knee pain and 11 arthritis. (AR 108.) Plaintiff saw Dr. San Tso, his treating physician, for general medical treatment 12 between 2005 and 2008. (AR 175-196.) 13 1. 14 Plaintiff began seeing Dr. San Tso on February 4, 2005, due to knee pain he had been Medical Records Prior to June 1, 2006 Plaintiff reported taking Vicodin3 and 15 experiencing during the prior month and a half. (AR 196.) 16 Codeine4 during this visit. (AR 196.) On February 7, 2005, an x-ray of his right knee revealed 17 inflammation, but no other significant impairments. (AR 209.) Following a magnetic resonance 18 imaging (“MRI”) scan of his lumbar spine on February 16, 2005, Plaintiff was diagnosed with 19 degenerative disc disease by Dr. Hamid Javaherian. (AR 207-08.) Plaintiff returned to Dr. Tso on 20 February 25, 2005, for a follow-up appointment and reported that his pain was better. (AR 195.) 21 Plaintiff was referred to Dr. Karl Gregorius, a treating physician, on March 15, 2005, for 22 degenerative disc disease treatment. (AR 205.) In a March, 23, 2005, letter, Dr. Gregorius stated 23 that Plaintiff had a pain level of four out of ten localized to his lumbar spine, less pain in his right 24 leg, no pain in his left leg, had undergone no physical therapy, and was not “a surgical candidate 25 26 2 Prior to the current application for benefits, Plaintiff filed another application for DIB, which was denied on reconsideration on June 3, 2005. (AR 103-04.) 27 3 28 Vicodin is a narcotic drug “trademark[ed] for combination preparations of hydrocodone bitartrate and acetaminophen.” Dorland’s Illustrated Medical Dictionary 2084 (31st ed. 2007). 4 Codeine is a narcotic drug. Dorland’s Illustrated Medical Dictionary 386 (31st ed. 2007). 2 1 because his pain ha[d] improved significantly since it was severe a month ago.” (AR 140, 204.) Dr. 2 Gregorius noted that Plaintiff would begin physical therapy and return in six weeks. (AR 140, 204.) 3 He also noted that he would extend Plaintiff’s temporary total disability (“TTD”) by eight weeks. 4 (AR 140, 204.) 5 On April 15, 2005, Plaintiff saw Dr. Tso for a follow-up appointment and reported that he 6 had seen Dr. Gregorius and was undergoing physical therapy. (AR 194.) Plaintiff returned to see 7 Dr. Gregorius on May 4, 2005. (AR 139, 203.) In a May 4, 2005, letter, Dr. Gregorius stated that 8 Plaintiff had “a constant, burning sensation in the lumbar spine . . . [and] burning in the shoulders, 9 on both sides.” (AR 139, 203.) Dr. Gregorius indicated that Plaintiff had no leg pain, had attended 10 physical therapy, where he learned exercises to do at home, and “it would [not] be advisable for 11 [Plaintiff] to have surgery . . . [because] his pain is all gone now.” (AR 139, 203.) Dr. Gregorius 12 noted that Plaintiff “will look for another line of work since I do not think he can go back to lifting, 13 bending and stooping.” (AR 139, 203.) Dr. Gregorius continued Plaintiff’s “TTD until he can find 14 another area of work” and would see him again as necessary. (AR 139, 203.) 15 On June 10, 2005, Plaintiff saw Dr. Tso for a follow-up appointment. (AR 193.) Dr. Tso 16 noted that Plaintiff was “not taking anything for pain . . . not working . . . having [an increase in] 17 pain . . . [and] cannot lift, bend or stretch . . . or sit for long periods of time.” (AR 193.) Dr. Tso 18 stated that Plaintiff “should be on disability.” (AR 193.) Dr. Tso noted prescriptions for Naproxen,5 19 Promethazine6 with Codeine, and Hydrocodone-acetaminophen.7 (AR 193.) 20 21 On July 14, 2005, Plaintiff saw Dr. Tso for a check-up. (AR 191.) Dr. Tso noted Plaintiff’s pain and degenerative disc disease. (AR 191.) 22 Dr. Gregorius examined Plaintiff again on August 31, 2005. (AR 141.) Dr. Gregorius 23 prepared a letter which did not report any physical therapy but did state that Plaintiff had a “tingling 24 25 5 26 27 Naproxen is “[a] nonsteroidal antiinflammatory drug . . . use in the treatment of pain, inflammation, osteoarthritis . . . [and] fever.” Dorland’s Illustrated Medical Dictionary 1251 (31st ed. 2007). 6 Promethazine is a drug “used to provide bedtime [sedation] . . . and as an ingredient in cough and cold preparations.” Dorland’s Illustrated Medical Dictionary 1549 (31st ed. 2007). 28 7 Hydrocodone-acetaminophen is a narcotic drug, which is a more powerful sedative than codeine, combined with a pain reliever and fever reducer. Dorland’s Illustrated Medical Dictionary 890, 12 (31st ed. 2007). 3 1 sensation down the right leg all the time” and that Plaintiff “does not want to consider surgery right 2 now,” although the possibility for surgery was discussed. (AR 141.) Plaintiff claimed to have “seen 3 a consultant in Mexico who advised him against having surgery . . . [and] fe[lt] like he would rather 4 live with his problem than have an operation.” (AR 141.) Plaintiff claimed to “work[] for a day and 5 then has to spend three days in bed.” (AR 141.) Additionally, Plaintiff complained of “an inability 6 to work.” (AR 141.) Dr. Gregorius noted that he “thinks the [Plaintiff] is permanently, totally, and 7 completely disabled from any occupation.” (AR 141.) He recommended Plaintiff “apply for Social 8 Security Disability.” (AR 141.) 9 On September 27, 2005, Plaintiff saw Dr. Tso for a follow-up appointment; he noted 10 Plaintiff’s daily exercises and that he was given the option of surgery with Dr. Gregorius. (AR 190.) 11 On December 12, 2005, Plaintiff was seen for a possible toe fracture to his right, little toe caused by 12 stubbing it on a desk, but an x-ray was negative. (AR 189, 201.) On April 5, 2006, Dr. Tso reported 13 that Plaintiff suffered from degenerative disc disease. (AR 188.) Dr. Tso also assessed Plaintiff as 14 disabled. (AR 188.) 15 2. 16 On September 13, 2006, Plaintiff saw Dr. Tso for cold symptoms, but did not report pain in 17 his back or knees, and a physical exam of his back was “within normal limits.” (AR 187.) Dr. Tso 18 did note, however, that Plaintiff was experiencing degenerative disc disease with radiculpathy. (AR 19 187.) On October 3, 2006, Plaintiff again saw Dr. Tso for cold symptoms but did not report pain in 20 his back or knees. (AR 186.) Medical Records After June 1, 2006 21 On April 26, 2007, Plaintiff was given a “complete orthopedic evaluation” by Dr. Nathan 22 Pliam, a consultative examining orthopedic surgeon. (AR 144-50.) Plaintiff complained of “back 23 pain and knee pain.” (AR 148.) Dr. Pliam observed that Plaintiff “sits and stands with normal 24 posture. The [Plaintiff] is able to arise from a chair without difficulty. The [Plaintiff] walks 25 normally. He can walk on his toes slowly with some apparent discomfort. He states that he is 26 unable to walk on his heels due to heel pain.” (AR 145-46.) Plaintiff’s range of motion for his 27 cervical spine was within normal limits, and his range of motion in his upper extremities, including 28 shoulders, elbows, wrists, hands and fingers, was within normal limits. (AR 146.) His range of 4 1 motion in his lower extremities, including hips, knees, ankles and feet, was also within normal 2 limits. (AR 147.) 3 After examining Plaintiff and reviewing his medical records, Dr. Pliam diagnosed him with 4 “[c]hronic low back pain with radiologically documented spondylosis at multiple levels.” (AR 148.) 5 Dr. Pliam opined that Plaintiff was limited as follows: 6 7 8 9 [L]ifting 20 pounds[] occasionally and 10 pounds repetitively. Bending should be limited to occasional. Sitting should be limited to two hours continuously for a cumulative total of six hours per day. Standing in one place should be limited to 30 minutes, continuously for a cumulative total of two hours per day. The [Plaintiff] should be precluded from posturally demanding activities such as crouching, crawling, squatting, climbing, etc. (AR 148.) 10 On May 8, 2007, Dr. John Meek, a non-examining State agency physician, reviewed 11 Plaintiff’s medical records and completed a physical residual functional capacity assessment on May 12 22, 2007. (AR 151-57.) Dr. Meek concluded that Plaintiff could occasionally lift 20 pounds, 13 frequently lift and/or carry (including upward pulling) 10 pounds, stand and/or walk (with normal 14 breaks) for a total of about six hours in an eight-hour workday, sit (with normal breaks) for a total 15 of about six hours in an eight-hour workday, push and/or pull (including operation of hand/foot 16 controls) for an unlimited time, within the limitations for lifting and carrying. (AR 154.) Dr. Meek 17 based these conclusions specifically on “multi-level degenerative changes” to Plaintiff’s lumbar 18 spine. (AR 154.) 19 Dr. Meek considered Dr. Gregorius’s letters, particularly the facts that Plaintiff’s prescribed 20 exercises reduced the pain in his right leg, the range of motion in his spine became normal, and Dr. 21 Gregorius noted that Plaintiff had declined surgery. (AR 157.) Dr. Meek opined that the severity 22 or duration of the symptoms was disproportionate to the expected severity or expected duration on 23 the basis of Plaintiff’s medically determinable impairments. (AR 157.) Additionally, Dr. Meek 24 commented that Plaintiff’s “allegation of knee pain and numbness . . . is not fully credible as [his] 25 26 27 28 5 1 gait is intact.” (AR 152.) Dr. Meek recommended a residual functional capacity (“RFC”)8 for light 2 work.9 (AR 152, 157.) 3 On September 24, 2007, Plaintiff underwent an x-ray to determine if he had acute 4 tuberculosis, due to a positive purified protein derivative skin test on September 21, 2007. (AR 180, 5 185.) The x-ray was negative for active tuberculosis but showed signs of spondylosis; he underwent 6 a computed tomography (“CT”) scan the same day for further evaluation. (AR 179-180.) In a letter 7 dated December 18, 2007, the CT scan yielded evidence of “degenerative changes of [his] thoracic 8 spine.” (AR 179.) 9 10 On October 15, 2007, Dr. Leonore Limos, a non-examining State agency physician, affirmed Dr. Meek’s findings and conclusions. (AR 167.) 11 On January 4, 2008, Plaintiff was seen by Dr. Tso for cold symptoms and “worsening pain 12 radiating to left leg in last few months.” (AR 178.) Dr. Tso recommended “contin[uing] with 13 stretches and pain management” and that Plaintiff be referred to physical therapy for overall 14 strengthening. (AR 178.) Dr. Tso prescribed Hydrocodone-acetaminophen and Promethazine with 15 codeine. (AR 178.) Dr. Tso’s medical record indicated that Plaintiff had previously been prescribed 16 Naproxen on August 23, 2007, and Vicodin on November 21, 2007 (AR 178), although no evidence 17 of a visit on either date appears in the record. 18 19 20 21 22 23 24 25 26 27 28 8 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. “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 9 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.964(b). 6 1 On March 3, 2008, Plaintiff was seen by Dr. Tso for cold symptoms, but he did not report 2 pain in his back or knee.10 (AR 176.) On April 15, 2008, Plaintiff was seen for “continu[ing] . . . 3 bilateral knee pain . . . [and] numbness to left leg.” (AR 175.) Dr. Tso noted that Plaintiff’s back 4 pain was stable. (AR 175.) 5 B. Administrative Proceedings 6 The Commissioner denied Plaintiff’s applications initially and again on reconsideration. (AR 7 51-55, 56-62.) Consequently, on June 4, 2008, Plaintiff was granted his request for a hearing before 8 an Administrative Law Judge (“ALJ”). (AR 66.) A hearing was held on June 25, 2008, before ALJ 9 Sandra K. Rogers. (AR 66-80.) Plaintiff and a Vocational Expert (“VE”) testified. (AR 22-41.) 10 1. 11 Plaintiff testified that he cannot “function the way [he] normally function[ed] . . . due to [his] 12 back.” (AR 25-26.) He attempted to remodel a house in 2006, but was unable to finish because of 13 his back. (AR 26.) He tried working since then, but he cannot complete the work; as a result, he 14 loses the work. (AR 26.) He was never paid for his incomplete work attempts. (AR 26-27.) Plaintiff’s Testimony 15 Plaintiff claimed to have “arthritis on the legs . . . all due to his back . . . [and] arthritis on [his 16 right] knee.” (AR 28.) He claimed his back pain was a constant “squeezing . . . [and] throbbing.” 17 (AR 29-30.) He rated his pain with medication as a five to six out of 10 but also stated it “goes to 18 10.” (AR 30.) He described his level-10 pain as “so bad that you’re ready to yell or go to the 19 emergency room.” (AR 30.) He stated that the longest time he can be on his feet at a time is 20 to 20 30 minutes (AR 30), the longest time he can sit in a chair is 20 to 30 minutes (AR 30-31), and the 21 heaviest object he could lift is 10 pounds (AR 31). To alleviate the pain, he would “[lie] down, raise 22 [his] legs, elevate [his] legs . . . take [his] medication . . . [and] do exercises that Dr. Gregorius 23 instructed [him] to do.” (AR 31.) He did not receive any type of pain injections for his various 24 ailments (AR 31), and declined surgery with Dr. Gregorius because “[s]urgery was not going to be 25 successful, due to the arthritis in the back, and the odds . . . didn’t seem real good.” (AR 31). 26 27 28 10 Dr. Tso’s medical record on March 3, 2008, indicates that Plaintiff began Promethazine with Codeine on February 19, 2008. (AR 176.) This is in direct conflict with Dr. Tso’s medical record on January 1, 2008, which indicates Plaintiff was first prescribed with this medication on January 1, 2008. (AR 178.) Further, there is no indication in the record that Plaintiff was seen by Dr. Tso, or any other physician, on February 19, 2008. The record is not clear as to when Plaintiff was prescribed various medications or when the medications were refilled. 7 1 Plaintiff claimed that six to seven hours each day were spent lying down or elevating his legs. (AR 2 32.) Additionally, every two to three days, he would use cold treatments on his back. (AR 32-33.) 3 He did not use any kind of support, such as a cane, brace, or crutches. (AR 33.) 4 On a normal day, Plaintiff would take medication “according to how [he felt] in the 5 morning.” (AR 33.) Plaintiff would water the grass, occasionally help his wife cook, and “play with 6 the kids, help them with their homework.” (AR 33-34.) He was unable to do household chores, 7 although he had previously been able to do so. (AR 34.) His condition prevented him from doing 8 recreational activities with his kids, such as taking them to the amusement park. (AR 34-35.) 9 Plaintiff testified that Dr. Tso “gave [him] disability” and told him that he was disabled and that he 10 could not work. (AR 32.) It was at this time that Plaintiff stopped working. (AR 32.) 11 Plaintiff testified that his pain medications caused side effects, such as dizziness and 12 sleepiness. (AR 35.) He was unable to take long trips and work due to his condition. (AR 35.) 13 Plaintiff had no previous involvement in “any kind of church, recreational, civic type clubs, groups 14 [or] anything like that . . . [because he was] constant[ly] working to get ahead.” (AR 35.) 15 2. 16 The VE characterized Plaintiff’s past relevant work in “maintenance/repair” as heavy .11 (AR 17 36.) The VE considered two hypothetical sets of limitations. (AR 37-38.) The VE testified that a 18 person of Plaintiff’s age, education and work experience who could lift 20 pounds occasionally and 19 10 pounds frequently; stand or sit about six hours in an eight-hour workday; occasionally climb 20 ramps and stairs; occasionally balance, stoop, kneel, crouch, and crawl; but could never climb 21 ladders, ropes, or scaffolds could not perform Plaintiff’s past relevant work. (AR 37.) However, 22 jobs in the national or regional economy existed that a hypothetical person with these limitations 23 could perform, including cashier, garage attendant, and information clerk. (AR 37.) Given these 24 limitations, there would be 90,000 jobs as a cashier, 10,000 jobs as a garage attendant, and 10,000 25 jobs as an information clerk. (AR 37.) Vocational Expert’s Testimony 26 27 28 11 “Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. If someone can do heavy work, we determine that he or she can also do medium, light, and sedentary work.” 20 C.F.R. §§ 404.1567(d), 416.964(d). 8 1 The VE considered a second hypothetical person of Plaintiff’s age, education, and past work 2 experience who was limited to lifting 20 pounds occasionally, 10 pounds repetitively; bending 3 limited to occasional; sitting limited to two hours continuously, for a cumulative total of six hours 4 per day; standing in one place limited to 30 minutes continuously, for a cumulative total of two hours 5 per day; precluded from posturally demanding activities such as crouching, crawling, squatting, and 6 climbing. The VE testified that these limitations would erode the number of cashier, garage 7 attendant, and information clerk jobs. Given these limitations, there would be 15,000 to no jobs as 8 a cashier; 10,000 jobs as a garage attendant, and 3,000 jobs as an information clerk. (AR 38.) 9 Although these jobs would not allow for sitting and standing at will, the remaining jobs have 10 flexibility in the posture in which the work can be done, allowing the second hypothetical person to 11 perform them. (AR 38.) If the hypothetical person was required to sit for exactly six hours each day 12 and stand for exactly two hours each day, the number of garage attendant jobs would be reduced to 13 zero, but the number of cashier and information clerk jobs would remain the same. (AR 39.) 14 3. 15 On October 1, 2008, the ALJ issued a decision finding Plaintiff not disabled from June 1, 16 2006, through the date of her decision. (AR 12, 21.) The ALJ found that Plaintiff (1) meets the 17 insured status requirements of the Social Security Act through December 1, 2010, (2) has not 18 engaged in substantial gainful activity since June 1, 2006, (3) has two severe impairments: lumbar 19 spondylosis and hypertension, (4) does not have an impairment or combination of impairments that 20 meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 21 1, and (5) has an RFC which allows him to perform light work available in the national economy. 22 (AR 17-20.) ALJ’s Decision 23 The ALJ did not consider medical evidence prior to June 1, 2006, stating that this period was 24 not in dispute. (AR 19.) The ALJ gave less weight to the examining opinion of Dr. Pliam regarding 25 Plaintiff’s inability to stand due to Plaintiff’s de minimis treatment record and the opinions of Drs. 26 Meek and Limos. (AR 19.) The ALJ described Plaintiff’s treatment record as de minimis because 27 he alleged disability on June 1, 2006, but did not seek treatment until September 13, 2006. (AR 19.) 28 Plaintiff’s treating physician, Dr. Tso, made note of his degenerative disc disease with radiculopathy 9 1 on this date. (AR 19, 178.) Additionally, Plaintiff did not report back or knee pain again to his 2 treating physician until January 4, 2008, but had been seen for cold symptoms between September 3 2006 and January 2008. (AR 19, 186.) Further, Dr. Tso recommended that he continue to stretch 4 and exercise to relieve his pain at the January 2008 appointment. (AR 19, 178.) The ALJ gave 5 greater weight to the opinions of Drs. Meek and Limos due to Plaintiff’s de minimis treatment 6 record, his ability to work after his injury in 2004 with no worsening condition, and his failure to 7 pursue surgery. (AR 19.) The ALJ found Plaintiff’s subjective complaints about the limiting effects 8 of his alleged symptoms were not fully credible to the extent they were inconsistent with the RFC 9 assessment. (AR 18-19.) 10 In an undated letter, received by the Appeals Council on July 15, 2009, Plaintiff sought 11 review of this decision. (AR 7.) On August 3, 2009, the Appeals Council denied review. (AR 3-6.) 12 Therefore, the ALJ’s decision became the final decision of the Commissioner. 13 §§ 404.981, 416.1481. 14 C. 20 C.F.R. Plaintiff’s Contentions on Appeal 15 On April 3, 2010, Plaintiff filed a complaint for review of the ALJ’s decision by this Court. 16 (Doc. 1.) Plaintiff seeks a reversal of the final decision of the Commissioner asserting that the ALJ 17 erred by improperly rejecting Plaintiff’s testimony and the opinions of Drs. Gregorius and Pliam, 18 improperly relying on VE testimony, and failing to appropriately apply Social Security Rulings 19 (“SSR”) 82-59, 96-7p, 96-8p and 00-4p.12 20 III. SCOPE OF REVIEW 21 The ALJ’s decision denying benefits “will be disturbed only if that decision is not supported 22 by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 23 1998). In reviewing the Commissioner’s decision, the Court may not substitute its judgment for that 24 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 25 determine whether the Commissioner applied the proper legal standards and whether substantial 26 27 12 28 SSRs are “final opinions and orders and statements of policy and interpretations” that the Social Security Administration has adopted. 20 C.F.R. § 402.35(b)(1). Once published, these rulings are binding precedent upon ALJs. Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); Gatliff v. Comm'r of Soc. Sec. Admin., 172 F.3d 690, 692 n.2 (9th Cir. 1999). 10 1 evidence exists in the record to support the Commissioner’s findings. See Lewis v. Astrue, 498 F.3d 2 909, 911 (9th Cir. 2007). 3 “Substantial evidence is more than a mere scintilla but less than a preponderance.” Ryan v. 4 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence” means “such 5 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 6 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 7 U.S. 197, 229 (1938)). The Court “must consider the entire record as a whole, weighing both the 8 evidence that supports and the evidence that detracts from the Commissioner’s conclusion, and may 9 not affirm simply by isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 10 11 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). IV. APPLICABLE LAW 12 An individual is considered disabled for purposes of disability benefits if he or she is unable 13 to engage in any substantial, gainful activity by reason of any medically determinable physical or 14 mental impairment that can be expected to result in death or that has lasted, or can be expected to 15 last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 16 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 17 impairments must result from anatomical, physiological, or psychological abnormalities that are 18 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 19 such severity that the claimant is not only unable to do his previous work, but cannot, considering 20 his age, education, and work experience, engage in any other kind of substantial, gainful work that 21 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). 22 The regulations provide that the ALJ must undertake a specific five-step sequential analysis 23 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the 24 claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 25 If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment 26 or a combination of impairments significantly limiting her from performing basic work activities. 27 Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the 28 claimant has a severe impairment or combination of impairments that meets or equals the 11 1 requirements of the Listing of Impairments (“Listing”), 20 C.F.R. 404, Subpart P, App. 1. Id. 2 §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant 3 has sufficient RFC despite the impairment or various limitations to perform her past work. Id. 4 §§ 404.1520(f), 416.920(f). If not, in the Fifth Step, the burden shifts to the Commissioner to show 5 that the claimant can perform other work that exists in significant numbers in the national economy. 6 Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in 7 the sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098- 8 99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 9 10 V. DISCUSSION A. Plaintiff’s Credibility 11 The ALJ found that Plaintiff’s statements about his subjective limitations were not entirely 12 credible to the extent they were not consistent with the RFC assessment. (AR 19.) As an initial 13 matter, there is disagreement between Plaintiff and the Commissioner regarding the reasons the ALJ 14 articulated for discounting Plaintiff’s credibility. Plaintiff asserts the ALJ found him not entirely 15 credible regarding the extent of his limitations because Plaintiff was able to work after his alleged 16 onset date with no worsening of his condition, his de minimis treatment record, and his declination 17 to undergo surgery. (Plaintiff’s Opening Brief (Doc. 15), at 9.) The Commissioner asserts that the 18 ALJ did not discredit Plaintiff because he did not pursue surgery, but discredited him “because the 19 allegations were inconsistent with [his] daily activities and the medical evidence.” (Commissioner’s 20 Opposition Brief (Doc. 16), at 12:15-17.) 21 1. 22 In evaluating the credibility of a claimant’s testimony regarding subjective pain, an ALJ must 23 engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ 24 must determine whether the claimant has presented objective medical evidence of an underlying 25 impairment that could reasonably be expected to produce the pain or other symptoms alleged. Id. 26 The claimant is not required to show that her impairment “could reasonably be expected to cause the 27 severity of the symptom she has alleged; she need only show that it could reasonably have caused 28 some degree of the symptom.” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. Legal Standard 12 1 2007)). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only 2 reject the claimant’s testimony about the severity of the symptoms if she gives “specific, clear and 3 convincing reasons” for the rejection. Id. As the Ninth Circuit has explained: 4 7 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. 8 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 9 omitted); see also Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); 10 20 C.F.R. §§ 404.1529, 416.929. Other factors the ALJ may consider include a claimant’s work 11 record and testimony from physicians and third parties concerning the nature, severity, and effect of 12 the symptoms of which he complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 5 6 13 2. 14 In this case, the ALJ found that Plaintiff’s medically determinable impairments could 15 reasonably be expected to produce the alleged symptoms. Therefore, absent affirmative evidence 16 of malingering, the ALJ’s reasons for rejecting Plaintiff’s testimony must be clear and convincing. 17 The ALJ’s decision is ambiguous in addressing Plaintiff’s credibility. The credibility 18 determination overlaps and blends with the ALJ’s discussion of the weight given to the opinions of 19 Drs. Pliam and Meek. As a result, it is difficult to understand all of the reasons the ALJ considered 20 in making the credibility finding. (AR 19.) This ambiguity is reflected in the parties’ disagreement 21 about the reasons the ALJ attempted to articulate in finding Plaintiff not entirely credible. The ALJ’s Reasons For Rejecting Plaintiff’s Credibility Are Inadequate 22 The ALJ provided the following analysis: 23 Although the claimant alleges that he became disabled on June 1, 2006, he did not seek treatment from his treating physician between then and September 13, 2006. At that time his doctor wrote that the claimant was experiencing degenerative disc disease with radiculopathy (Exhibit 8F/13). Although he sought treatment for various cold symptoms and perhaps a sinus infection in the interim, he does not appear to have returned to seek treatment for his back and leg pain until January 2008. His doctor recommended that he stretch and exercise (Exhibit 8F/4). When he next returned, in April 2008, he mentioned the knee pain, but not back pain (Exhibit 8F/1). 24 25 26 27 28 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 At the consultative examination, the claimant told the examining doctor that he injured his back at work in 2004. Again, the undersigned observes that the claimant was able to work despite his condition until 2006. The doctor noted that an MRI showed multi-leveled degenerative changes of the claimant’s lumbar spine, with central stenosis and a disc herniation. The claimant stated that he had been offered surgery but declined because there was only a 50 percent chance that it would result in improvement. The doctor noted that the claimant had a decreased range of motion of his lumbar spine. Although the claimant reported some numbness in his lower extremities, examination revealed that his sensation was intact. The claimant also did not have radicular signs. Despite his reported knee pain, the examination of his knees was completely normal. The doctor did not diagnose the claimant with any impairment of the knees. The orthopedist concluded that the claimant could lift 20 pounds occasionally and 10 pounds frequently. He can occasionally bend. He can sit for six hours a day if he is given normal rest breaks. He can stand for a total of two hours a day and would be precluded from crouching, crawling, or squatting (Exhibit 2F). The undersigned gives somewhat less weight to the portion of this opinion regarding the claimant’s inability to stand, as it is less consistent with the claimant’s de minimis treatment records and the opinions of the other physicians of record. In contrast, [Dr. Meek] concluded that the claimant could perform a full range of light work that does not require him to climb ladders, ropes, or scaffolds. The claimant would occasionally be able to climb ramps or stairs, and occasionally balance, stoop, kneel, crouch, or crawl. The doctor imposed no other limitations (Exhibit 4F). Given the claimant’s de minimis treatment history, his ability to work for quite some time despite his impairment with no worsening of his condition, and his failure to pursue surgery, the undersigned gives greater weight to this exhibit. (AR 19.) 16 As an initial matter, the fact that neither party agrees on the reasons why the ALJ discredited 17 Plaintiff tends to suggest that the ALJ did not set forth a particularly cogent discussion of all the 18 factors influencing the credibility determination. To the extent that the ALJ appeared to reject 19 Plaintiff’s credibility because of a “de minimis” treatment record, the ALJ refused to consider any 20 medical records prior to June 2006. (AR 19 (“The undersigned has not considered the claimant’s 21 medical records before the claimant’s alleged onset date, June 1, 2006, as that period is not in 22 dispute.”) However, the longitudinal medical record has relevance to Plaintiff’s credibility. 23 Social Security Ruling 96-7p, which provides guidance to the ALJ in considering a 24 claimant’s credibility, specifically explains that “an individual’s attempts to seek medical treatment 25 for pain or other symptoms and to follow that treatment once it is prescribed lends support to an 26 individual’s allegations of intense and persistent pain or other symptoms for the purpose of judging 27 the credibility of the individual statements.” SSR 96-7p, 1996 WL 374186, at * 7 (July 2, 1996). 28 Thus, Plaintiff’s 2005 treating records that bear directly on his back impairment and the pain he 14 1 suffers as a result are relevant and should have been considered. These records tend to corroborate 2 Plaintiff’s allegations that he had been seeking treatment since his injury in 2004, he had repeatedly 3 sought out treatment in 2005 and was referred to specialists, but he viewed his treatment options as 4 exhausted by 2006 when he alleges he became completely disabled. The medical records prior to 5 June 2006 show that Plaintiff sought treatment and supports Plaintiff’s explanation that the reason 6 he did not seek more treatment in 2006 was that he was already doing everything that the doctors had 7 told him to do, and he was simply at home implementing the treatment regime. The 2005 treating 8 physicians’ records could materially affect the ALJ’s credibility determination. 9 Social Security Ruling 96-7p also explains that “[p]ersistent attempts by the individual to 10 obtain relief of pain or other symptoms, such as by increasing medications, trials of a variety of 11 treatment modalities in an attempt to find one that works or that does not have side effects, referrals 12 to specialists, or changing treatment sources may be a strong indication that the symptoms are a 13 source of distress to the individual and generally lend support to an individual’s allegations of 14 intense and persistent symptoms.” SSR 96-7p, 1996 WL 374186, at *7. The medical evidence prior 15 to June 2006 contains information relevant to these factors. Thus, to the extent that the ALJ 16 determined Plaintiff’s treatment record was de minimis, but refused to consider approximately 18 17 months of treating records, this is a legally insufficient reason to discredit Plaintiff, and it ignores 18 relevant and probative evidence. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ 19 must explain why significant probative evidence has been rejected); see also Magallanes v. Brown, 20 881 F.2d 747, 755 (9th Cir. 1989). 21 Plaintiff asserts that the ALJ improperly found him not credible because he did not pursue 22 surgery. The Commissioner disputes that the ALJ’s credibility determination was predicated on 23 Plaintiff’s failure to pursue surgery. It unclear how Plaintiff’s decision not to pursue the surgery 24 suggested by Dr. Gregorius in 2005 was considered by the ALJ in determining credibility. The ALJ 25 noted Plaintiff’s refusal to pursue surgery, but did so only in relation to the weight of the medical 26 evidence without any explanation as to why it mattered. (See AR 19.) 27 In any event, to the extent that the ALJ rejected Plaintiff’s credibility because he refused 28 surgery, this is not a clear and convincing reason. The ALJ did not relate the observation that 15 1 Plaintiff refused surgery to any discussion about how it impacted Plaintiff’s credibility. Further, the 2 only doctor who discussed surgery with Plaintiff as a treatment option was Dr. Gregorius. (See AR 3 31, 141.)13 Dr. Gregorius’ treatment notes are from 2005, and these records were not considered by 4 the ALJ. Additionally, Plaintiff offered testimony at the hearing as to why he did not pursue surgery 5 when Dr. Gregorius presented it as a treatment option. (AR 31.) SSR 96-7p provides that “the 6 adjudicator must not draw any inferences about an individual’s symptoms and their functional effects 7 from a failure to seek or pursue regular medical treatment without first considering any explanations 8 that the individual may provide, or other information in the case record, that may explain infrequent 9 or irregular medical visits or failure to seek medical treatment.” SSR 96-7p, 1996 WL 374186, at 10 *7. Plaintiff’s explanation as to why he did not pursue surgery was not adequately discussed. 11 The Commissioner states that inconsistencies between Plaintiff’s testimony and the medical 12 record were part of the ALJ’s basis for rejecting Plaintiff’s credibility. While the ALJ noted that 13 some of Plaintiff’s statements to Dr. Pliam regarding his symptoms were not corroborated by the 14 medical findings (AR 19), this is not a clear and convincing reason to reject Plaintiff’s credibility 15 about his pain symptoms. Isolated statements made to Dr. Pliam without a discussion of the overall 16 record is not an adequate consideration of credibility. The ALJ’s decision “‘cannot be affirmed 17 simply by isolating a specific quantum of supporting evidence.’” Aukland v. Massanari, 257 F.3d 18 1033, 1035 (9th Cir. 2001) (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). 19 Moreover, these are not the inconsistencies that the Commissioner asserts the ALJ found. 20 Rather, the Commissioner asserts that the ALJ found Plaintiff’s testimony to be inconsistent with 21 Drs. Meek and Limos’ opinions that Plaintiff could engage in light work. This does not meet the 22 requisite level of specificity to explain how Plaintiff’s testimony is inconsistent with the medical 23 evidence. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (to reject claimant’s subjective 24 complaints, ALJ must provide specific, cogent reasons). Further, Plaintiff’s testimony related mostly 25 to his pain, and pain is often not corroborated or observed in medical findings. Fair v. Bowen, 885 26 F.2d 597, 601 (9th Cir.1989) (“pain is a completely subjective phenomenon” and “cannot be 27 28 13 Plaintiff reported to Dr. Pliam that Dr. Gregorius had recommended surgery, but Plaintiff explained to Dr. Pliam that the odds that surgery would relieve his pain were not particularly favorable. (AR 144.) 16 1 objectively verified or measured”). More importantly, this rationale is not articulated by the ALJ; 2 it is a post-hoc argument which the Court cannot consider. See, e.g., Pinto v. Massanari, 249 F.3d 3 840, 847-48 (9th Cir. 2001) (an agency decision cannot be affirmed based on a ground that the 4 agency did not invoke in making its decision). The Commissioner also asserts that Dr. Meek found 5 Plaintiff’s subjective complaints were only partially credible. This too was never discussed by the 6 ALJ as part of the credibility determination. See id. 7 The Commissioner contends that the ALJ found Plaintiff’s testimony inconsistent with his 8 daily activities. (Doc. 16, at 12.) A claimant is not required to be completely incapacitated to qualify 9 for disability benefits; however, daily home activities are relevant evidence to consider in a 10 credibility analysis where such activities are transferable to the workplace. Fair, 885 F.2d at 603. 11 Here, the only discussion of Plaintiff’s daily activities was the ALJ’s recitation of Plaintiff’s 12 statement of his limitations, which preceded the ALJ’s discussion of Plaintiff’s credibility. (See AR 13 18.) Along with Plaintiff’s statement of his limitations, the ALJ noted that, “[d]espite the pain, he 14 remains able to do some household tasks, such as watering his grass and helping his children with 15 their homework.” (AR 18.) The decision does not reflect that the ALJ found Plaintiff less credible 16 in light of his daily activities. 17 Nevertheless, even if the Court could infer that the ALJ found Plaintiff not credible because 18 he was able to water the grass and help his children with homework, this is not clear and convincing 19 rationale to warrant an adverse credibility determination. “[T]he mere fact that a plaintiff has carried 20 on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, 21 does not in any way detract from [a claimant’s] credibility as to [a claimant’s] overall disability.” 22 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Daily activities are grounds for an adverse 23 credibility finding if a claimant “is able to spend a substantial part of [the] day engaged in pursuits 24 involving the performance of physical functions that are transferable to a work setting.” Orn v. 25 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citations and internal quotation marks omitted). 26 Therefore, to conclude that daily activities warrant an adverse credibility determination, “[t]he ALJ 27 must make specific findings relating to [the daily] activities and their transferability[.]” Id. (citation 28 and internal quotation marks omitted). The ALJ did not make specific findings regarding Plaintiff’s 17 1 daily activities or their transferability to a work setting. Nor did the ALJ discuss how this impacted 2 Plaintiff’s credibility, if at all. To the extent that daily activities were a reason for discounting 3 Plaintiff’s credibility – and it does not appear that they were – it is not a clear and convincing reason 4 sufficient to justify the ALJ’s adverse credibility determination. 5 The Court cannot conclude that the ALJ’s credibility analysis is legally sufficient. The 6 credibility determination is not based on all the relevant evidence of record because the treating 7 records prior to June 2006 were not considered. This is especially important because one of the 8 reasons the ALJ discussed in rejecting Plaintiff’s credibility was the de minimis treatment record. 9 Beyond not considering all the relevant records, the reasons stated for rejecting Plaintiff’s credibility, 10 to the extent that the Court and the parties can discern them, are not clear and convincing. 11 B. Weight of the Medical Evidence 12 1. 13 Plaintiff argues that the ALJ erred by failing to give weight to Dr. Pliam’s finding that 14 Plaintiff can only stand for a total of two hours in an eight-hour workday. Even assuming, arguendo, 15 that Dr. Pliam’s opinion was improperly rejected, Plaintiff has not established how any error was 16 prejudicial. Shinseki v. Sanders, __ U.S. __, 126 S.Ct. 1696 (2009) (claimant carries the burden to 17 establish how agency error is prejudicial). The VE provided testimony that there were significant 18 jobs that Plaintiff could perform even if he was limited to standing no more than two total hours per 19 day, pursuant to Dr. Pliam’s opined limitation. (AR 38-39.) Thus, any error in disregarding Dr. 20 Pliam’s opinion was harmless in light of the fact that the limitation opined by Dr. Pliam was 21 incorporated into the limitations that the VE considered in giving testimony regarding Plaintiff’s 22 ability to do alternative work. See Stout v. Comm’r, 454 F.3d 1050, 1055-56 (9th Cir. 2006). Any Error in the ALJ’s Consideration of Dr. Pliam’s Opinion Is Harmless 23 2. 24 Plaintiff argues that the ALJ rejected Dr. Gregorius’ August 2005 opinion that Plaintiff is 25 totally and permanently disabled without providing legally sufficient reasons for doing so. As 26 discussed above, the Court finds that the medical records prior to June 2006 are relevant, particularly 27 to the credibility analysis, and should have been considered by the ALJ. Those records, which 28 include Dr. Gregorius’ opinion that Plaintiff is totally and permanently disabled, will be considered Dr. Gregorius’ Opinion that Plaintiff is Permanently Disabled 18 1 by the ALJ on remand. To the extent that these records contain medical findings that are relevant 2 and probative, they must be considered. 3 C. VE’s Testimony and Conflicts with the Dictionary of Occupational Titles 4 Plaintiff asserts that the ALJ did not explicitly inquire whether the VE’s testimony conflicted 5 with the Dictionary of Occupational Titles (“DOT”), which is required pursuant to SSR 00-4p. (Doc. 6 15, at 16.) The Commissioner concedes that the ALJ failed to follow SSR 00-4p, but argues that 7 Plaintiff failed to identify any actual inconsistency between the DOT and the VE’s testimony. (Doc. 8 16, at 13-14.) Pursuant to SSR 00-4p, an ALJ has an affirmative duty to inquire of a VE whether 9 the testimony given regarding the requirements of a job conflicts with the DOT and, if so, whether 10 there is a reasonable explanation for the conflict. Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th 11 Cir. 2007). Such a failure by the ALJ is a procedural error and will be considered harmless where 12 there is no conflict with the DOT or whether the VE provides sufficient support for the conclusion. 13 Id. at 1154 n.19; see Bray, 554 F.3d at 1233 (“When there is a conflict between the VE evidence and 14 the DOT, it is a duty of the ALJ to inquire on the record as to the reason for the inconsistency before 15 relying on the VE’s evidence.”). 16 Here, the ALJ relied on the VE’s testimony that, given Plaintiff’s limitations, he could 17 perform work as a cashier and an information clerk. (AR 20, 39.) The ALJ also explicitly found that 18 this testimony is consistent with the information contained in the DOT. (AR 21.) Plaintiff has 19 presented no argument how the VE’s testimony actually conflicted with the requirements of the jobs 20 identified in the DOT, only that the ALJ erred in a technical sense by not inquiring of the VE 21 whether his testimony was consistent with the DOT. Plaintiff has not carried his burden to show 22 how this procedural error was prejudicial. Sanders, 129 S.Ct. at 1706. 23 VI. RECOMMENDATIONS 24 Based on the foregoing, the Court finds that the ALJ’s decision is not supported by 25 substantial evidence and therefore RECOMMENDS that the ALJ’s decision be reversed and the case 26 be remanded to the ALJ to make additional findings. 27 28 19 1 These findings and recommendations are submitted to the district judge assigned to this 2 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fifteen (15) 3 days of service of this recommendation, any party may file written objections to these findings and 4 recommendations with the Court and serve a copy on all parties. Such a document should be 5 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 6 review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 7 The parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 IT IS SO ORDERED. 11 Dated: ie14hj August 2, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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