Opinion
No C-99-4776 VRW
February 27, 2001
ORDER
Plaintiff, Laura Goodenow-Boatsman, has filed this action under 42 U.S.C. § 405(g) seeking judicial review of defendant's denial of her application for Supplemental Security Income (SSI) disability benefits. Before the court are the parties' cross-motions for summary judgment. Plaintiff also makes an alternative motion for remand. For the reasons discussed below, the court DENIES plaintiff's motion for summary judgment, GRANTS plaintiff's motion for remand with instructions and DENIES defendant's motion for summary judgment.
I
On September 18, 1995, plaintiff filed an application for SSI benefits under Title XVI of the Social Security Act, alleging inability to work, as of June 11, 1991, due to degenerative disc disease, asthma and bipolar disorder. Tr 85-88, 109. Defendant denied the application as well as her request for reconsideration. Tr 89-92, 96-99. Plaintiff timely requested a hearing before an administrative law judge (ALJ) of the Social Security Administration (Administration) on June 17, 1996. Tr 34.
An ALJ conducted a hearing on September 17, 1997. Tr 38. At the time of the hearing, plaintiff was thirty seven years old and had a general equivalency degree (GED). Tr 41, 43. Prior to filing for SSI benefits, plaintiff had worked as a receptionist, a laundress, a seamstress and a cocktail waitress. Tr 144. The ALJ issued a decision on October 22, 1997, finding plaintiff "not disabled" within the meaning of the Social Security Act.
In the decision, the ALJ concluded that plaintiff "has asthma, spondylosis, and a depressive disorder, not otherwise specified." Tr 17. The ALJ also found, however, that plaintiff's impairments did not meet or equal a listed impairment in Appendix 1, Subpart P, Regulations No 4 (List). Id. He further noted that plaintiff's claim of inability to work was not credible and found her capable of performing light exertional work with the following nonexertional restrictions: (1) she could not tolerate moderate exposure to environmental irritants; and (2) she could not perform complex, detailed tasks. Id.
Based on these findings, the ALJ determined that plaintiff retained residual functional capacity (RFC) to return to her past relevant work (PRW) as a seamstress. Id. The ALJ alternatively found that plaintiff was able to engage in substantial gainful activity existing in significant numbers in the national economy. Id at 16-17. In arriving at this conclusion, the ALJ relied on the Medical-Vocational Guidelines (Grids), found in Appendix 2, Subpart P, Regulations No 4. Id. No testimony of a vocational expert was introduced.
On April 30, 1999, the Appeals Council denied plaintiff's request for review. Plaintiff now seeks judicial review of the ALJ's decision that found her not disabled.
The ALJ's decision to deny disability benefits will not be disturbed unless (1) the findings of fact are not supported by substantial evidence on the record or (2) the decision is based on a legal error. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). "Substantial evidence means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the record as a whole and review evidence both supporting and detracting from the ALJ's decision. Desrosiers v. Secretary of Health Human Serv, 846 F.2d 573, 576 (9th Cir. 1988) It is a well-settled role of the ALJ to make credibility determinations and to resolve conflicts in medical testimony. Andrews, 53 F.3d at 1039. If the evidence is "susceptible to more than one rational interpretation," the court will uphold the decision of the ALJ. Id at 1040. Nevertheless, a decision supported by substantial evidence must be set aside if improper legal standards were applied in reaching the decision. See Brawner v. Secretary of Health and Human Serv, 839 F.2d 432, 433 (9th Cir. 1987)
B
To collect disability insurance under the Social Security Act, plaintiff must establish that she suffers from a "disability." 42 U.S.C. § 423(a)(1)(D). "Disability" means "inability to engage in any substantial gainful activity by reasons of any medically determinable physical or mental impairment * * * which has lasted and can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Administration has implemented a five-step sequential analysis to determine whether or not a claimant is disabled. 20 C.F.R. § 404.1520; SSR 86-8. Five questions are posed in sequence until a finding of disability is affirmatively rejected or mandated by the rule.
The five questions are: (1) Is the claimant engaging in substantial gainful activity?; (2) If not, does the claimant have a severe impairment?; (3) If yes, does the claimant's impairment meet or equal an impairment on the List?; (4) If not, does the impairment nevertheless prevent the claimant from doing past relevant work?; and (5) If not, is the claimant, in light of her age, education, job experience and residual functional capacity, still capable of performing other types of work that exist in the national economy? Id. At Step Four, the claimant bears the burden of establishing that she is unable to perform her past relevant work. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). If she meets this burden, then the burden of proof shifts to the Administration to demonstrate that the claimant can perform other types of work existing in the national economy. Id. The Administration can satisfy the burden in Step Five by either using the Grids when appropriate or taking a testimony from a vocational expert. Id.
III
As a preliminary matter, the court addresses defendant's waiver argument. Defendant contended that plaintiff in the administrative proceedings had failed to raise the issues she now presents to the court and consequently had waived them for failure to exhaust the administrative remedies. As defendant acknowledges in its supplemental citation (Doc 10), the United States Supreme Court has since held that Social Security claimants are not required to exhaust issues in order to preserve them for judicial review. Sims v. Apfel, 120 S.Ct. 2080 (2000). The court, therefore, can properly review arguments that plaintiff did not previously present to the Appeals Council.
Plaintiff makes three arguments attacking the ALJ's decision. First, plaintiff contends that the ALJ's decision to discredit plaintiff's testimony regarding her subjective complaints is not supported by substantial evidence. Second, plaintiff claims that there is no substantial evidence to support the ALJ's finding that plaintiff could return to her past relevant work as a seamstress or engage in substantial gainful activity in other types of work. Finally, plaintiff argues that the ALJ failed to consider the combined effects of all her impairments in determining her capacity to work.
A
The court first reviews plaintiff's claim that there is no substantial evidence in the record for the ALJ to discredit plaintiff's subjective complaints. The ALJ is required to make specific findings in rejecting plaintiff's subjective allegation of pain. Matthews v. Shalala, 10 F.3d 678, 679 (9th Cir. 1993). The same rule applies to other types of subjective symptoms beside pain. Byrnes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995). In determining plaintiff's credibility, the ALJ may consider plaintiff's reputation for truthfulness and inconsistencies either within her own testimony or between her testimony and her conduct. Light v. Social Sec Admin, 119 F.3d 789, 792 (9th Cir. 1997). Her daily activities may be considered in addition to testimony from physicians regarding the nature, severity and effect of the symptoms. Id. The ALJ must have clear and convincing evidence for disbelieving plaintiff's subjective symptoms if (1) medical evidence establishes an objective basis for some degree of the symptoms and (2) there is no evidence that plaintiff is malingering. Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989) The ALJ cannot rely only on a lack of medical support for the severity of plaintiff's symptoms to satisfy this burden. Light, 119 F.3d at 792. The court finds that the ALJ has satisfied the burden.
The ALJ concluded that plaintiff suffers from asthma, but disbelieved plaintiff's claim that she was precluded from performing any type of work in public because of it. The ALJ further found that plaintiff was capable of tolerating moderate exposure to environmental irritants despite plaintiff's insistence that she had to avoid all exposure. In explaining his reasoning, the ALJ wrote:
The fact that [plaintiff) says she cannot work because of asthma as she is allergic to cologne and odors, is not credible in light of her continued smoking which is probably worse for her than any colognes or odors she may be exposed to in the work place.
Tr 15.
Medical records suggest that although plaintiff had occasional acute exacerbations, her asthma was stable and under control with medications and nebulizers. Tr 261-63; 352-53. Plaintiff testified that her asthma was stable most of the time. Tr 50. Plaintiff went to an emergency room only several times over two years preceding the hearing when the home nebulizer could not adequately suppress asthma attacks. Tr 51. Despite repeated recommendations by doctors, plaintiff never stopped smoking and yet her asthma improved with medications and is now well-controlled. The ALJ pointed to specific evidence for disbelieving plaintiff's claim that she must avoid any and all exposure to environmental irritants.
The ALJ also rejected plaintiff's excess pain testimony and found her physically capable of performing light exertional work. In so doing, the ALJ considered the fact that the type of pain medications or therapies she received were indicative of more modest pain and not consistent with severe and debilitating pain. Tr 15. He also noted that despite plaintiff's claim of intolerable pain, she was still able to engage in a variety of daily activities such as shopping, driving a car, riding a bus, walking and socializing with friends. Id.
Carl F Metten, MD, was one of plaintiff's treating physicians for her back problem. In his chart entry of August 5, 1992, he commented that he had a long talk with plaintiff and expressed his doubt about plaintiff's motivation to get off welfare. Tr 198. Dr. Metten ordered an MRI, which confirmed on October 2, 1992, that plaintiff had disc degeneration at L4-5 and LS-S1. Tr 197. But Dr. Metten opined that a surgical correction was unnecessary to treat plaintiff's conditions while plaintiff insists her back is "inoperable." Tr 52, 196. Dr. Metten stated that there was nothing more he could do for her despite her continued complaint about pain. Tr 196.
A specialist in physical medicine and rehabilitation, Nam H Tran, MD, performed an orthopedic consultative examination on December 2, 1995. Tr 231-32. Dr. Tran concluded that plaintiff was precluded from lifting more than 25 pounds, but otherwise had very minimal limitations on physical activities. Id. Similar findings were reported in the Residual Physical Functional Capacity Assessments (Forms SSA-4734-U8) in 1991 and 1996. Doctors recommended that plaintiff exercise and remain active rather than being sedentary. Tr 262-63, 348. Instead, plaintiff spends her days reclining in a chair. Tr 52.
These medical opinions and findings are consistent with the ALJ's conclusion that plaintiff is capable of performing light work. The ALJ pointed to specific evidence to disbelieve plaintiff's claim that she has excessive pain that is so debilitating that precludes her from working at all.
The ALJ's findings were further supported by Dr. Clawson's opinion regarding plaintiff's hypochonriac tendencies. A licensed psychologist, LaVere E Clawson, Ph D, conducted a psychological evaluation of plaintiff on April 28, 1995, and reported that plaintiff had tested above normal limits on the hypochondriasis and hysteria scales. Tr 206. Dr. Clawson opined that the individuals fitting this profile would "present themselves as physically ill and obtain appreciable secondary gain from their symptoms." Id. This finding is significant because it is directly relevant to evaluation of plaintiff's credibility and lowers the standard of proof for discrediting plaintiff's testimony. See Swenson, 876 F.2d at 687 (the ALJ needs clear and convincing evidence if there is no evidence of malingering).
Plaintiff argues that the ALJ lacked sufficient bases for discrediting her testimony regarding excess pain and asthma symptoms. Without much discussion, plaintiff contends that it is unreasonable for the ALJ to find plaintiff not credible because of her addiction to nicotine (i.e., her inability to quit smoking). Pl B.R. at 12. The court disagrees. Plaintiff's smoking habit in this case serves as relevant evidence in discrediting plaintiff's testimony by illustrating inconsistencies between plaintiff's own conduct and the severity of asthma as claimed by plaintiff. The ALJ may properly consider such inconsistencies. Light, 119 F.3d at 792; see also Higgins v. Callahan, 983 F. Supp. 865, 871 (E.D. Mo 1997) ("Plaintiff's failure to stop smoking, when some of his impairments are related to his smoking habit, as his physicians recommended, militates against a finding of disability.") (citing Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)).
Plaintiff also complains that the ALJ only considered the type of daily activities she performs — not the level of activities she can sustain. Specifically, she contends that she can perform these activities only with severe limitations: she can drive only for a short distance because she cannot remain seated too long; she can walk only six or eight blocks at a time without taking a break; when she socializes with friends, they come to her place; when she shops, someone always helps with pushing a card or picking up an item from a low shelf. Id.
To support this contention, plaintiff cites many cases, but they are either inapplicable or distinguishable. Plaintiff first cites Byrnes v. Shalala, 60 F.3d 639 (9th Cir. 1995), for the proposition that the ALJ cannot solely rely on a lack of objective medical corroboration to refute plaintiff's allegation of subjective symptoms. That is not what the ALJ did in this case.
As discussed above, the ALJ referred to specific evidence in the record and did not solely rely on a lack of objective medical evidence for disbelieving plaintiff.
Plaintiff next cites Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988), and claims that plaintiff's credibility improves over time if plaintiff complains about her symptoms to care providers over a long period of time. Plaintiff misreads Smith. The Ninth Circuit merely stated that the claimant's credibility was enhanced because the claimant in that case reported the same symptom to his treating physician six years before he filed for disability and that report was consistent with his post-application allegation of subjective symptom. Id. Plaintiff in this case made her initial disability application in March 1991 with the alleged disability date in January 1991. Tr 64-76. These dates roughly correspond with the beginning of plaintiff's medical problems. Tr 316 (physician's care for asthma since 1990); Tr 304 (physician's care for low back pain since 1990). The court does not see any enhancement of plaintiff's credibility based on these facts.
Plaintiff also cites Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995), for the proposition that plaintiff's allegation of subjective symptoms may not be discredited unless the ALJ adduces evidence that plaintiff's activity level exceeds that claimed by plaintiff. In Orteza, the Ninth Circuit found that the ALJ made sufficient findings to support the determination that the claimant's complains for pain and fatigue were exaggerated. Id at 749. That determination partly relied on the fact that the claimant was capable of performing household chores consistent with demands of light work. Id. In that case, the claimant exhibited his ability to engage in activities more demanding than the activities plaintiff claimed he was limited to be his alleged disability. According to plaintiff, the level of her daily activities is below the demands contemplated for light exertional work. She is mistaken. Claimants have been found capable of performing light work in situations not unlike plaintiff's. See, e.g., Benefield v. Shalala, 1997 WL 195438 at *6 (N.D. Cal 1997) (claimant capable of light work when he had "a walking ability of one to two blocks and a sitting/standing capacity of 20 minutes."). Finally, plaintiff cites Cooper v. Bowen, 815 F.2d 557 (9th Cir. 1987), Vidal v. Harris, 637 F.2d 710 (9th Cir. 1981), and Irwin v. Shalala, 840 F. Supp. 751 (D or 1993), and argues that plaintiff should not be penalized for her attempts to engage in some level of daily activities to maintain normalcy in her life.
The error condemned in Vidal was that the ALJ found the claimant "not disabled" simply because he was capable of some daily activities and ignored his severe mental impairments. See Vidal, 637 F.2d at 713 (claimant, though capable of performing some tasks, would require significantly more training due to learning disability). In Irwin, the reviewing court questioned the ALJ' s credibility determination because the facts the ALJ relied upon turned out to be incorrect. See Irwin, 840 F. Supp at 763 (claimant drove 50 miles once every two months and not every week). In Cooper, the critical issue was whether the claimant could voluntarily control his alcohol consumption. See Cooper, 815 F.2d at 561. The ALJ in Cooper never inquired into the claimant's ability to control his drinking and found that he was "not disabled" because he was functional enough to assist with some household chores. Id.
This case is different. The ALJ in this case did not rely on plaintiff's activity level as the basis for determining the ultimate question of disability; rather, he only used it to assist him in making determination of plaintiff's credibility. Moreover, the ALJ considered accurate information regarding plaintiff's daily activities. Even if plaintiff is only capable of activities she claims she is, these activities are not inconsistent with the tasks contemplated for light work.
The ALJ sufficiently made specific findings to support his decision in discrediting plaintiff's allegations of subjective symptom. Therefore, the ALJ's findings that plaintiff has capacity to perform light work so long as the work does not involve moderate exposures to environmental irritants or complex, detailed tasks is proper. The court will not disturb the ALJ's credibility finding sufficiently supported by evidence.
The second question is whether there is substantial evidence to support the ALJ's finding that plaintiff could return to her past relevant work as a seamstress or in the alternative engage in substantial gainful activity in other types of work. For the reasons discussed below, the case must be remanded for further development of the record.
Before the substance of the issue can be addressed, the court must first deal with plaintiff's collateral argument, dropped in a footnote, that a two-month employment as a seamstress does not constitute past relevant work. Defendant counters this argument by referring to a Specific Vocational Profile (SVP) in the Dictionary of Occupational Titles and SSR 82-62.
The SVP estimates one to three months to be an adequate learning period for this type of work. Def. Mem at 7 nS. SSR 82-62 specifies that past work experience is considered relevant when it (1) was done within the last 15 years, (2) lasted long enough for plaintiff to learn how to do it and (3) was substantial gainful activity. To be considered "relevant," the work experience only needs to last long enough for plaintiff "to have learned the techniques, acquired information, and developed the facility needed for average performance in the job situation. The length of time this would take depends on the nature and complexity of the work." SSR 82-62.
Plaintiff does not complain about the first or third prong of the test for determining past relevant work; she only challenges the duration requirement of the second prong. Throughout the appeals process, plaintiff has never raised this point. "[T]he ALJ is not required to develop the record with regard to an issue not even raised by the claimant." Benefield, 1997 WL 195438 at *2 (citing Santiago v. Secretary of Health and Human Serv, 944 F.2d 1, 6 (1st Cir. 1991)). Nor is the ALJ required to assume the task of doing the job for the claimant's lawyer in raising issues at the hearing. Benefield, 1997 WL 195438 at *2 (citing Jones v. Bowen, 699 F. Supp. 693, 696 (N.D. Ill 1988)). Neither plaintiff nor her counsel has alerted the ALJ that plaintiff objected to treating the seamstress job as past relevant work due to the shortness of employment. Under the circumstances of this case and in light of the definition of past relevant work under SSR 82-62, the court does not fault the ALJ for not developing the record on this issue. The court rejects plaintiff's claim that there was insufficient evidence to support the ALJ's treatment of the seamstress job as plaintiff's past relevant work.
To determine whether plaintiff has residual functional capacity to perform her past relevant work, the ALJ in Step Four must evaluate the work demands of the past relevant work and compare them to her present capacity. Villa v. Heckler, 797 F.2d 797-98 (9th Cir. 1986). Plaintiff's past relevant work is considered not only as she actually performed it, but as it is ordinarily performed in the national economy. SSR 82-61. To determine demands of past relevant work as actually performed or as performed in general, the ALJ may rely on the general job descriptions of the Dictionary of Occupational Titles (the DOT), along with its supplementary Selected Characteristics, as presumptively applicable to plaintiff's past relevant work. Villa, 797 F.2d at 798. In Step Four, the burden still rests with plaintiff and she must establish her inability to return to her former type of work and not just to her particular former job. Id. Plaintiff meets this burden and overcomes the presumption created by use of the DOT if she can demonstrate that the duties in her particular work as actually performed were not contemplated by the drafters of the DOT. Id. Plaintiff can also satisfy the burden by demonstrating that the same type of work as performed in the national economy actually involves demands higher than the DOT suggests. Id at 799 ("To succeed, [plaintiff] must demonstrate that the occupation described under the listing [of his PRW] requires heavy work [although the DOT classifies that type of work as medium work]."). Alternatively, plaintiff may challenge the ALJ's classification of her past relevant work according to the DOT; if the ALJ incorrectly categorized it, the job description becomes irrelevant. Id at 798.
SSR 82-62 is also instructive:
The claimant is the primary source for vocational documentation, and statements by the claimant regarding [PRW] are generally sufficient for determining the skill level; exertional demands and nonexertional demands of such work.
Determination of the claimant's ability to do PRW requires a careful appraisal of (1) the individual's statements as to which [PRW] requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the [DOT], etc., on the requirements of the work as generally performed in the economy.
* * *
Adequate documentation of [PRW] includes factual information about those work demands which have a bearing on the medically established limitations. Detailed information about strength, endurance, manipulative ability, mental demands and other job requirements must be obtained as appropriate.
The ALJ made a finding that plaintiff as a seamstress "was not required to work in exposure to moderate levels of environmental irritants." Tr 17. The ALJ further stated that plaintiff is "able to return to this type of work." Id. Plaintiff complains that the ALJ has no basis for these assertions. Defendant contends that the ALJ could properly consult the DOT and classify work as a seamstress as "Sewing Machine Operator I," which the DOT states does not involve any exposure to environmental irritants. Defendant is correct that the ALJ could rely on the DOT, but plaintiff is also correct; there is nothing in the record to indicate that the ALJ did rely on the DOT to develop "adequate documentation" regarding the demands of plaintiff's past relevant work as required by SSR 82-62.
The court searched in the record for description regarding the level of environmental exposure involving plaintiff's past relevant work as a seamstress. The Vocational Report (Form SSA-3369-F6), completed on or about November 3, 1995, has information about various demands of plaintiff's seamstress work, but there is no reference regarding exposure to environmental irritants on the job. Tr 146. Plaintiff also testified at the hearing about her past relevant work, but she mentioned nothing regarding environmental exposure when working as a seamstress. Tr 47-48.
Nothing in the record can explain how the ALJ reached his conclusion that working as a seamstress, either as actually performed or as performed in the national economy, does not involve exposure to environmental irritants. The ALJ apparently presumed that work as a seamstress involves less than moderate — if any — exposure to environmental irritants. That may in fact be the case. But there is a "gap in [the ALJ's] reasoning that must be filled on remand." Villa, 797 F.2d at 799 (internal quotation marks omitted). The ALJ could properly rely on the DOT, but there is no indication in the record that he did. Even assuming that the ALJ did rely on the DOT, plaintiff was deprived of an opportunity to challenge the classification of a seamstress job as "Sewing Machine Operator I" or to rebut the presumption created by the DOT.
Plaintiff claims the ALJ erred by not eliciting the testimony of a vocational expert regarding the level of environmental exposure when working as a seamstress. Plaintiff is mistaken. Because the burden of proof in Step Four is with plaintiff to establish that plaintiff cannot return to her past relevant work, the ALJ was not required to engage a vocational expert; testimony of a vocational expert may be required only in Step Five after the burden shifts to the Administration. Matthews, 10 F.3d at 681 (a vocational expert's testimony useful but not required in Step Four). Nevertheless, the ALJ was required to develop an adequate record on plaintiff's past relevant work and demands of her past relevant work regarding environmental irritants. The ALJ failed to do so.
Although the ALJ found that plaintiff was capable of returning to her past relevant work, he proceeded to Step Five of the sequential evaluation. If the ALJ's conclusion in Step Five is correct, a remand is not necessary despite his omission in Step Four.
Plaintiff contends that the ALJ erred when he decided that plaintiff should avoid "moderate" exposure to environmental irritants as opposed to "all" exposure because there was conflicting evidence regarding plaintiff's tolerance of such irritants. Plaintiff also argues that the ALJ could not use the Grids even as a framework because plaintiff had both exertional and nonexertional limitations.
In Step Five, the burden shifts to the Administration to establish that despite plaintiff's inability to return to her past relevant work she can perform other types of work in the national economy, given her age, education, and work experience. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). The Administration can satisfy this burden by either using the Grids in appropriate circumstances or taking a testimony of a vocational expert. Id. When plaintiff suffers from both exertional and nonexertional impairments, the ALJ must first consult the Grids to determine whether the exertional impairment alone will qualify her for a finding of disability. Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th Cir. 1989). If the exertional impairments alone are insufficient to find disability, then the ALJ must use the Grids as a framework for considering how the nonexertional limitations further diminish the types of work plaintiff can perform. Id. In other words, "the [G]rids serve as a ceiling and the ALJ must examine independently the additional adverse consequences resulting from the nonexertional impairment." Id. The use of the Grids as a framework is mandatory and not discretionary. Id at 1156. When plaintiff's nonexertional impairments are sufficiently severe so as to limit significantly the range of types of work permitted by her exertional limitations, a vocational expert's testimony must be taken to assist the ALJ in making his independent assessment regarding adverse effects of plaintiff's nonexertional impairments. Burkhart, 856 F.2d at 1340.
The ALJ in Step Three found that plaintiff did not have a listed impairment. Tr 17. The ALJ found that plaintiff's exertional impairments limited her to light work. Tr 16. The ALJ determined that plaintiff also had nonexertional impairments: her intolerance of exposure to moderate environmental irritants and her inability to perform complex, detailed tasks. Id. The ALJ's decision indicates that he used the Grids as a framework in Step Five as required. Id ("she could perform substantial gainful activity existing in significant numbers in the national economy, within the Framework of Rule 202.20, of Table No. 2, Appendix 2, Subpart P, Regulations No. 4.") (emphasis added).
Plaintiff refers to Residual Physical Functional Capacity Assessments (Forms SSA-4734-U8) and points out that on two occasions the Administration determined that plaintiff should avoid "all" exposure to irritants. Tr 175, 191. Only once plaintiff was found intolerant of "moderate" exposure. Tr 242. Plaintiff insists that the ALJ impermissibly chose to believe that plaintiff could tolerate "moderate" exposure. But the ALJ could properly resolve such conflicts within the record. It is a proper function of the ALJ. Andrews, 53 F.3d at 1039.
The ALJ made a specific finding that plaintiff had nonexertional limitations; namely, her environmental and mental limitations. Tr 16. Having made these findings, because these nonexertional limitations significantly limit the range of light work available to plaintiff, the ALJ was required to take a vocational expert's testimony. Burkhart, 856 F.2d at 1341. He did not do so. The ALJ cannot assume the role of a vocational expert. Id. The court, therefore, cannot affirm the ALJ's decision on the alternate ground.
In sum, the ALJ failed to develop an adequate record regarding job demands of plaintiff's past relevant work as a seamstress in Step Four. The ALJ also omitted in Step Five testimony of a vocational expert to guide him in assessing the types of light work available to plaintiff in light of her nonexertional limitations. A remand is required to cure these defects.
Finally, plaintiff argues that the ALJ failed to consider the combined effects of all her impairments in determining her residual capacity to work. Specifically, plaintiff complains that the ALJ's decision fails to indicate that he considered the combined effects of the following: (1) exertional limitations due to her physical conditions; and (2) nonexertional limitations due to her back pain, environmental restrictions and emotional problems. Plaintiff relies on Beecher v. Heckler, 756 F.2d 693 (9th Cir. 1985), to support this contention.
In Beecher, the claimant suffered from both physical and psychological problems, but the ALJ found him not disabled by exclusively relying on medical reports pertaining only to the claimant's physical conditions. Id at 694-95. In doing so, the ALJ ignored a psychiatrist's uncontroverted report that cast doubt on claimant's ability to work. Id at 695. The Ninth Circuit found that the ALJ failed to refute the psychiatrist's report and his finding of "not disabled" was not supported by substantial evidence. Id.
The record in this case indicates that plaintiff has numerous physical conditions: degenerative disc disease; scar tissue over 64% of her body due to burns; lymph edema secondary to burns; tingling and numbness in feet; varicose veins; swelling and bruising of ankles; left knee pain; and neurodermatitis (nervous rash). Other than plaintiff's disc problem, there is no medical report to suggest that these conditions contribute to her inability to perform her past relevant work (Step Four) or other types of work (Step Five). Unlike in Beecher, the ALJ in this case need not consider the effects of these conditions in the absence of a medical opinion indicating that they somehow impede plaintiff's ability to work. See Nisenbaum v. Callahan, 1999 WL 92650, *6 (N.D. Cal 1999) (distinguishing Beecher); Benefield, 1997 WL 195438 at *10 (same); see also Santiago, 944 F.2d at 6 (impairments irrelevant unless important elements of work).
Pain is a nonexertional limitation independent of a physical, exertional limitation that causes it. Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (per curiam). As discussed above, although plaintiff may suffer from low back pain, the ALJ properly made a credibility finding and found that plaintiff was capable of performing light work. Dr. Metten, plaintiff's treating orthopedist, believed she was fit to work. Dr. Tran's medical findings were consistent with the ALJ's conclusion that plaintiff was capable of tolerating light work. As discussed above, the court sees no reason to upset the ALJ's findings on this point. Unlike in Beecher, the ALJ in this case need not consider the effects of plaintiff's pain because the ALJ has properly discredited it.
Verified mental impairments are nonexertional limitations as well. Beecher, 756 F.2d at 695. There is no psychiatric or psychological report that suggests plaintiff's ability to work was diminished due to her mental or emotional conditions. To the contrary, Dr. Smith found that plaintiff was capable of dealing with the public, interacting with co-workers and supervisors, maintaining concentration to carry out simple instructions and withstanding day-to-day work stress. The ALJ was entitled to rely on the doctor's opinion. In addition, the ALJ acknowledged and took into account plaintiff's inability to handle complex, detailed tasks based on Dr. Smith's opinion in assessing plaintiff's work capability. There is nothing in the record to controvert that opinion except plaintiff's self-serving testimony. But even her own testimony indicates that depression was controlled by medication at the time of hearing. Tr 53.
Based on the foregoing, the combined effects that the ALJ must consider derive from plaintiff's (1) disc conditions, (2) intolerance of moderate environmental irritants and (3) inability to carry out complex, detailed tasks. These three limitations are expressly mentioned in the ALJ's findings. They are an integral part of the analysis in Steps Four and Five of the sequential evaluation: in Step Four, the ALJ is required to compare the demands of plaintiff's past relevant work to plaintiff's present capacity reduced by the aforementioned three impairments; in Step Five, plaintiff's exertional limitation sets a framework under the Grids and the ALJ further limits the range of work available to plaintiff in light of her nonexertional impairments. The ALJ is not required to consider any other impairments because they were disbelieved or did not contribute to plaintiff's inability to work.
IV
For the foregoing reasons, the court DENIES plaintiff's motion for summary judgment (Doc #6-1), GRANTS plaintiff's motion for remand (Doc #6-2), and DENIES defendant's motion for summary judgment (Doc #8). On remand, the ALJ shall decide whether, in light of plaintiff's environmental limitation, she is able to perform her past relevant work as a seamstress. To accomplish this, the ALJ may supplement the record with any means specified in SSR 82-62. After review of an adequately developed record, if the ALJ finds that plaintiff cannot return to her past relevant work, the burden shifts to the Administration to prove the existence of other types of work in the national economy that plaintiff can perform. In Step Five, the ALJ must engage assistance of a vocational expert and make the requisite findings with regard to adverse effects of plaintiff's inability to tolerate moderate environmental irritants and to carry out complex, detailed tasks.
IT IS SO ORDERED.
JUDGMENT
This action came on for decision before the court, the Honorable Vaughn R. Walker, District Judge, presiding, and the issues having been duly considered and a decision having been duly rendered.
IT IS ORDERED AND ADJUDGED that plaintiff's motion for summary judgment is DENIED and defendant's motion for summary judgment is DENIED. Plaintiff's motion for remand is GRANTED. On remand, the ALJ shall decide whether, in light of plaintiff's environmental limitation, she is able to perform her past relevant work as a seamstress. To accomplish this, the ALJ may supplement the record with any means specified in SSR 82-62. After review of an adequately developed record, if the ALJ finds that plaintiff cannot return to her past relevant work, the burden shifts to the Administration to prove the existence of other types of work in the national economy that plaintiff can perform. In Step Five, the ALJ must engage assistance of a vocational expert and make the requisite findings with regard to adverse effects of plaintiff's inability to tolerate moderate environmental irritants and to carry out complex, detailed tasks.