Opinion
No: C-00-4703 EDL
November 9, 2001
Plaintiff Donald M. Hunter ("Plaintiff") brings this action challenging the final decision of the Commissioner of Social Security denying his disability benefits. Specifically, Plaintiff contends that the Administrative Law Judge ("ALJ") erred: (1) by failing to apply the appropriate standard of analysis of Plaintiff's claim under Listing 1.05C; and (2) in his determination that Plaintiff had the residual functional capacity ("RFC") for sedentary work. As discussed below, the Court affirms the ALJ's finding as to Listing 1.05C but remands for further proceedings to determine Plaintiff's RFC.
Listing 1.05C covers "other vertebrogenic disorders of the spine," with the following symptoms persisting for at least three months despite prescribed therapy and expected to last at last twelve months: (1) pain, muscle spasm, and significant limitation of motion in the spine; and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C (2001).
II. PROCEDURAL BACKGROUND
Plaintiff applied for disability insurance benefits under Title II of the Social Security Act on December 14, 1998, alleging that he had been disabled since November 1, 1996, due to a back injury. (Record ("Rec.") 12, 87-89.) Plaintiff had previously filed an application for disability insurance benefits on June 3, 1994, which was denied. The Social Security Administration ("SSA") denied Plaintiff's 1998 application on March 3, 1999 (Rec. 54) and denied Plaintiff's request for reconsideration on September 9, 1999 (Rec. 56).
It appears that the November 1, 1996 date on Plaintiff's disability claim may be a typographical error, as his injury occurred on November 19, 1996.
Civil Local Rule 16-5 requires Defendant to file a certified copy of the transcript of the administrative record when filing an answer. In addition to the transcript of the administrative hearing, the Record includes a copy of the ALJ'S decision and copies of Plaintiff's disability applications and medical records. Citations to specific pages of the Record in this memo refer to the Bates Stamp number located on the upper right hand side of each page in the Record.
At Plaintiff's request (Rec. 68), a hearing was held before Administrative Law Judge Robert W. Johnson ("ALJ") on March 6, 2000 (Rec. 21-52). Plaintiff was represented at this hearing by counsel. On April 18, 2000, the ALJ issued a decision finding Plaintiff not disabled under Title II of the Social Security Act. (Rec. 8, 11). Plaintiff subsequently filed a Request for Review with the SSA Appeals Council ("Council") on April 26, 2000 (Rec. 7). Plaintiff's request was denied on October 20, 2000, (Rec. 5), making the ALJ'S decision the final decision of the Commissioner of Social Security ("Defendant") and permitting Plaintiff to now bring this appeal. Plaintiff filed this action on December 18, 2000. Plaintiff filed a motion for summary judgment on August 20, 2001. Defendant then filed a Cross-Motion for Summary Judgment on September 17, 2001. Plaintiff did not file an opposition to Defendant's Cross-Motion for Summary Judgment.
III. FACTUAL BACKGROUND
A. Plaintiff's Biographical and Employment Background
As of the date of his administrative hearing, Plaintiff was a 37-year old male. Plaintiff was born on March 9, 1964, and is considered a "younger individual" under the Social Security regulations. (Rec. 25.) Plaintiff received a high school diploma in 1981 (Rec. 25, 343) and a vocational certificate in landscaping in 1991 (Rec. 26, 343). Plaintiff's past relevant work experience includes work as a warehouse worker, shipping and receiving clerk, and security guard (Rec. 29, 95, 128-29). Due to Plaintiff's felony record, he can no longer work as a security guard. (Rec.31, 41-42.)
B. Medical Evidence
Plaintiff alleges that he is disabled due to a lower back injury, which aggravated a pre- existing back condition. (Rec. 283.) Plaintiff was crushed against a wall by a forklift for several minutes on November 19, 1996, and has not worked since then. Previously, in 1984, Plaintiff received a gunshot wound to the mid-back, and the bullet was not removed at that time. Plaintiff experienced intermittent back pain and spasms as a result. (Rec. 286.) The 1996 forklift accident caused an acute strain of Plaintiff's lower back and shifted the still-lodged bullet closer to Plaintiff's spine, causing him pain and reducing his range of movement. The bullet was finally removed in August 1997. Plaintiff's medical care was sporadic, and Plaintiff never completed the prescribed course of physical therapy for his injury. (Rec. 317.) As a result, the back strain became chronic and one examining doctor estimates that Plaintiff lost approximately one-quarter of his pre-injury capacity for bending, stooping, lifting, pushing, and pulling. (Rec. 318.) Plaintiff also has chronic degenerative disc disease in his lower back, which was diagnosed in January 2000. (Rec. 353.) The disc disease appears to be the source of Plaintiff's ongoing pain and requires surgery to correct. (Rec. 358.)
Plaintiff was first seen for his back injury by Dr. Brian Boni, on November 19, 1996, the day of the accident. (Rec. 287.) Dr. Boni reported that Plaintiff was "in no apparent distress" and had "no difficulty with gait," but experienced tenderness in the lower lumbar area at L4-5 and his range of motion was limited to about 30 degrees (10 degrees at extension). Lateral bending and rotation were both 30 degrees. Plaintiff was able to do a straight-leg raise to 90 degrees with no difficulty. Dr. Boni released Plaintiff to modified work the same day, with some restrictions. (Rec. 287.) An x-ray taken on November 19, 1996 revealed a normal lumbarsacral spine. (Rec. 288.)
Plaintiff was seen by a physical therapist on November 26, 1996 complaining of a "constant throbbing pain in his low back, which is worse with prolonged sitting, standing, or weightbearing on his right leg." (Rec. 286.) The physical therapist noted a limping gait and limited range of motion in the spine (forward flexion 25%), but with full rotation in the spine and full lateral flexion on both sides. Plaintiff was able to do a straight-leg raise on the left leg, and his strength in the lower extremities was within normal limits, except for the left dorsiflexors, which were rated 4/5. The physical therapist diagnosed an acute strain.
Plaintiff returned on December 2, 1996, stating that he was feeling worse than initially, and that no modified work was available for him. (Rec. 281.) Plaintiff complained of pain and a "stabbing sensation in each leg." Plaintiff's range of motion was described as "fair," with diffuse tenderness. Physical therapy was prescribed for Plaintiff, along with the continued restriction of modified work. (Rec. 281.) Plaintiff was released to work without restrictions on December 12, 1996. (Rec. 276.) He filed his claim for disability insurance benefits on December 14, 1996. (Rec. 87-89.)
Plaintiff began treatment with Dr. Douglas Abeles on January 17, 1997. (Rec. 258.) Plaintiff was given anti-inflammatory medications and started on a course of physical therapy. Plaintiff returned on February 7, 1997 complaining of pain in the mid-and lower back, especially over the area where the bullet remained lodged. Dr. Abeles' examination showed a decreased range of motion in the thoracic and lumbar spine, and he restricted Plaintiff from lifting more than 25 pounds. (Rec. 258.) Dr. Abeles saw Plaintiff again on June 25, 1997, removed Plaintiff's bullet on August 28, 1997, and saw Plaintiff once more on September 18, 1997. (Rec. 258.) Dr. Abeles indicated that Plaintiff had been doing well since the bullet was removed, and released Plaintiff to modified duty as of September 22, 1997, with a 30-pound lifting restriction and "unlimited desk work." (Rec. 258.) Plaintiff also was instructed to begin a work conditioning program. Plaintiff was seen for a follow- up visit on September 29, 1997, and indicated that he expected to return to full duty in three weeks. (Rec. 259.) Dr. Abeles saw Plaintiff again on November 3, 1997, at which time Plaintiff reported no pain, and Dr. Abeles again instructed Plaintiff to start a work conditioning program. (Rec. 259.)
On November 24, 1997, Plaintiff saw Dr. Abeles one more time and reported no significant pain at rest or with most activities, and mild intermittent mid-back pain with heavy lifting of more than 100 pounds. (Rec. 259.) Dr. Abeles found that Plaintiff walked without difficulty and had a full range of motion in his cervical, thoracic, and lumbar spine. The neurological examination was completely normal with normal sensory and motor functions. Based on this information, Dr. Abeles declared Plaintiff's condition permanent and stationary. (Rec. 259.) As a result of this finding, apparently workers' compensation would no longer pay for further rehabilitation or physical therapy.
Plaintiff was independently examined in 1998 and 1999 by two different physicians in connection with his disability insurance claim. On January 28, 1998, Plaintiff was examined by Dr. B. Ravi Nayak, who diagnosed Plaintiff with a chronic thoracolumbar musculoligamentous sprain. (Rec. 314-18.) Although Plaintiff complained of intermittent pain in his mid-back and constant pain in his lower back, Dr. Nayak found Plaintiff had a full range of motion in his back, normal neurological responses, and normal muscle strength. (Rec. 316.) Dr. Nayak noted diffuse tenderness in the thoracic and lumbar paraspinal muscles, but no muscle spasms. (Rec. 316.) Dr. Nayak concluded that because Plaintiff was released to return to work before completing his physical therapy, and did not complete the therapy, Plaintiff had lost an estimated one-quarter of his preinjury capacity for bending, stooping, lifting, pushing, and pulling. (Rec. 316.) Dr. Nayak affirmed these conclusions in a supplemental report dated August 7, 1998. (Rec. 311-12.)
Plaintiff was also examined by Dr. John Lavorgna on February 1, 1999. (Rec. 328.) Dr. Lavorgna found that Plaintiff's flexion in the thoracolumbar spine was limited to 70 degrees, but otherwise he had a full range of motion and normal neurological responses. Dr. Lavorgna wrote, "[Plaintiff] has a limited range of motion of the thoracolumbar spine on examination. Otherwise there are no objective findings. I would not assign a limited sitting, standing, or walking impairment. I would limit lifting to 20-25 pounds frequently and 30-35 pounds occasionally during an 8-hour workday." (Rec. 331.)
Plaintiff's medical records were reviewed by Dr. Lola Lee Van Compenoile on March 3, 1999. (Rec. 334-41.) Dr. Van Compenoile assigned a diagnosis of"LBP" (presumably meaning "lower back pain") and noted some relatively minor exertional limitations resulting from Plaintiff's impairment.
The following month, on April 1, 1999, Plaintiff was seen by Dr. David Wren, Jr. (Rec. 321.) Plaintiff told Dr. Wren that approximately two months earlier, he began experiencing pain and paresthesia in his left arm along with a sensation of swelling, shakiness, and weakness. Plaintiff also complained of "constant pain" in his lower back and his mid-back, near where the bullet was removed. (Rec. 323.) Plaintiff told Dr. Wren that he attended approximately four
sessions of physical therapy before it was disallowed due to Dr. Abeles' report of November 24, 1997 declaring Plaintiff permanent and stationary. (Rec. 324.) Dr. Wren's examination disclosed "no palpable myospasm," a somewhat limited range of motion (forward flexion 80 degrees, extension 15 degrees, right lateral bending 30 degrees, left lateral bending 35 degrees), and normal motor function. (Rec. 325.) However, based on Plaintiff's complaints, Dr. Wren requested authorization for magnetic resonance imaging (MRI) of the thoracic lumbar spine to determine the cause of Plaintiff's pain. (Rec. 326.)
Plaintiff was seen by Dr. Cecilia Hardey, Ph.D., for a psychiatric evaluation on August 12, 1999. (Rec. 342-45.) Dr. Hardey's diagnosis indicates a psychogenic pain disorder (i.e., pain resulting from a mental or psychological cause). Dr. Hardey concluded, "[Plaintiff] appears to be experiencing a considerably more acute type of pain than his actual diagnosis would warrant," and recommended vocational rehabilitation. (Rec. 345.) Dr. Craig A. Smith, a non-examining psychiatrist, found that Plaintiff had "no medically determinable psychiatric impairment." (Rec. 347, 350.)
The MRIs requested by Dr. Wren were not authorized until January 2002. The MRI of the lumbar spine revealed that Plaintiff suffers from chronic degenerative disc disease in his lower back, specifically "chronic degenerative disc disease at L4-5 associated with a minimal broad-based dorsal osteophylitic ridge and/or disc bulge impinging on the anterior surface of the thecal sac in the midline." (Rec. 353 [emphasis added].) The MRI of Plaintiff's thoracic spine was normal. (Rec. 354.)
Plaintiff saw Dr. Wren on February 7, 2000, following the MRIs. Plaintiff complained of slight pain and muscle spasm in the upper back, but no leg pain. Dr. Wren diagnosed a scapularthoracic strain and lumbar disc disorder, and prescribed vocational rehabilitation. (Rec. 355.)
Finally, Dr. Wren completed a "Medical Assessment of Ability to Do Work-Related Activities (Physical)" on March 3, 2000. (Rec. 356-59.) Dr. Wren primarily diagnosed Plaintiff with lumbar disc bulging and degeneration, and secondarily with left arm radiculitis (i.e., inflammation of a spinal nerve). (Rec. 356.) Dr. Wren assigned the onset of these diagnoses as November 19, 1996 based on Plaintiff's medical history, examination, x-rays, and the MM scan. (Rec. 356.) Dr. Wren assigned certain work restrictions and a residual functional capacity ("RFC") for light work. Dr. Wren also opined that Plaintiff's condition would improve only with surgery. (Rec. 358.)
Regarding Plaintiff's subjective pain, Plaintiff consistently complained of pain in his lower back, except when seeing Dr. Abeles on November 24, 1997. (Rec. 259.) Dr. Wren reported on April 1, 1999 that on a scale of one to ten, Plaintiff rated his pain about a six, increasing to ten (severe pain) when sitting in one position for longer than thirty minutes, lifting more than forty pounds, or standing or walking for more than one hour. (Rec. 324.) But Dr. Hardey, the psychologist, noted that the level of pain reported by Plaintiff was inconsistent with the physical manifestations of his condition. (Rec. 345.)
IV. LEGAL ANALYSIS
A. Standard of Review
"The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405 (g). The Commissioner's findings may be set aside only if they are based on legal error or are not supported by substantial evidence. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citing Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). "Substantial evidence is more than a scintilla, but less than a preponderance. [It is] relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (quoting Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).
To determine whether substantial evidence supports the Commissioner's findings, the court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id. (quoting Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). If the evidence can reasonably support either affirming or reversing the Secretary's conclusion, the court may not substitute its judgment for that of the Secretary. See id. (citing Flaten v. Secretary of Health Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).
B. Definition and Determination of Disability
To qualify for disability insurance benefits, Plaintiff must demonstrate that he is unable to engage in substantial gainful activity because of a medically determinable physical or mental impairment, which can be expected to result in death or last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
The SSA uses a five-step sequential evaluation process to determine whether a claimant is disabled. 20 C.F.R. § 404.1520; see also Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987); Reddick, 157 F.3d at 721. First, the SSA determines whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520 (b). If the claimant is not engaged in substantial gainful activity, the SSA proceeds to step two to determine whether the claimant has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520 (c). If the claimant is found to have a severe impairment, the SSA proceeds to step three to "determine whether the impairment is equivalent to one of a number of listed impairments ("Listings") that the Secretary acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. § 404.1520 (d). The SSA presumes that a claimant is disabled if his impairment meets or equals one of the listings. Id.
If the claimant's impairment does not meet or equal one of the listings, the SSA proceeds to step four to determine the claimant's residual functional capacity, which is then used to decide whether the claimant's impairment "prevents [him] from performing work [he] has performed in the past." 20 C.F.R. § 404.1520 (e). The SSA considers the claimant not disabled if he is able to perform his past work. Id. If the claimant cannot perform his past work, the SSA proceeds to step five to determine whether the claimant can perform other work in the national economy, considering his age, education and work experience. 20 C.F.R. § 404.1520 (f). If the claimant cannot perform other work, the SSA finds him disabled. 20 C.F.R. § 404.1520(f)(1).
Here, the ALJ resolved Plaintiff's claim at step five, by determining that he had the residual functional capacity ("RFC") for sedentary work, and found that Plaintiff was not disabled. The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since the date of his injury, November 19, 1996. (Rec. 12.) At step two, the ALJ determined that Plaintiff's back impairment was severe within the meaning of the Regulations. (Rec. 12.)
At step three, the ALJ determined that Plaintiff had not met or medically equaled the specifications of the Listings under 20 C.F.R. Part 404, Subpart P, Appendix 1 (2001). (Rec. 12.) Although the ALJ did not question Plaintiff's degenerative disc disease, the ALJ held, based on repeated negative neurologic examinations, that the severity of Plaintiff's impairment did not meet or equal any of the Listings, including Section l.05C. (Rec. 12-13.) The ALJ did not specifically address whether Plaintiff had met each element of Listing 1.05C (pain, muscle spasm, significant limitation of motion in the spine, significant motor loss with muscle weakness, and sensory and reflex loss, persisting for at least three months despite prescribed therapy and expected to last twelve months). (Rec. 12-13.)
At step four, the ALJ found that Plaintiff retained the RFC for a full range of sedentary work activities, giving him "the benefit of the doubt" that he could only do sedentary work even though several doctors opined that Plaintiff could perform more strenuous "light work." (Rec. 13.) At step 5, the ALJ concluded that Plaintiff could not perform his past relevant work of warehouseman or security officer (guard), which require medium and light exertion, respectively. However, in light of Plaintiff's RFC for full sedentary work, the Medical-Vocational Guidelines set forth in the regulations directed a finding of "not disabled." 20 C.F.R. Pt. 404, Subpt. P, App. 2 (2001).
C. Issues for Review
On review, Plaintiff contends that the ALJ: (1) applied an improper standard of analysis in determining that Plaintiff did not meet the Listings; and (2) erred in assessing Plaintiff's residual functional capacity. As explained below, the Court affirms the ALJ'S determination that Plaintiff did not show that he met or equaled the relevant Listing, but remands for further consideration of Plaintiff's RFC.
1. Meeting or Equaling the Listing
Plaintiff contends that the ALJ failed to apply the proper standard of analysis in determining that Plaintiff did not meet the criteria for Listing 1.05C or any other listing. Plaintiff contends that because the ALJ agreed that Plaintiff suffers from a degenerative disc disease in his spine, with a disc bulge impinging on the thecal sac at L4-5, by implication the ALJ found that all the specific criteria of Listing 1.05C were present, yet incorrectly reasoned that the level of severity was not present. The ALJ made no such finding. Plaintiff also contends that the ALJ improperly used neurological test results in reaching his decision.
The burden rests upon Plaintiff to show that his condition meets or equals an impairment set forth in the Listings. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To meet a listed impairment, Plaintiff must establish that he meets each characteristic of a listed impairment relevant to his claim and must have every finding specified in the Listing. Id; Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 20 C.F.R. § 416.925(d)(2001). To equal a listed impairment, Plaintiff must establish "symptoms, signs, and laboratory findings "at least equal in severity and duration' to the characteristics of a relevant listed impairment...." Id. (citing 20 C.F.R. § 404.1526 (a)).
Here, Plaintiff sought to demonstrate that his spinal condition met or equaled Listing 1.05C, "Other vertebrogenic disorders of the spine." 20 C.F.R. Pt. 404, Subpt. P, App. 1, § l.05C (2001) (hereafter, "Listing 1.05C"). To do so, Plaintiff must show all of the following symptoms persisting for at least three months despite prescribed therapy, which are expected to last at least twelve months: (1) pain, muscle spasm, and significant limitation of motion in the spine; and (2) appropriate radicular distribution of significant motor loss with muscle weakness and sensory and reflex loss. Id. Although Plaintiff did experience pain, limitation of motion in the spine, and intermittent muscle spasms, none of the physicians who treated or examined him after December 2, 1996 (Rec. 281) reported any neurological findings of motor loss, muscle weakness, or sensory or reflex loss. (Rec. 258, 316-17, 329-31, 325.) Plaintiff points to the November 26, 1996 report of his physical therapist (Rec. 286) as evidence of the orthopedic and neurological findings required to meet Listing 1.05C, but has no evidence that each required element persisted for the requisite time period.
Indeed, Plaintiff cannot show the continued presence of any of the neurological symptoms described in section (2) of Listing 1.05C after November 26, 1996. The ALJ correctly relied on Plaintiff's lack of neurological symptoms in his decision when he wrote, "Yet repeated neurologic examinations have been negative (Exhibits 7F/3, 9F7-8, 10F/6, 11F/3-4)," and cited to the reports of treating physicians Drs. Abeles and Wren and examining physicians Drs. Nayak and Lavorgna. (Rec. 13; see also medical reports at Rec. 259, 316-17, 325, 330-31.) Even assuming that Plaintiff could meet the requirements of section (1) of Listing 1.05C for the required time period, it is clear that he cannot meet any of the requirements of subsection (2), and thus Plaintiff has not met his burden of showing that his impairment meets Listing 1.05C. Because Plaintiff could not show a symptoms of motor loss, muscle weakness, or sensory or reflex loss after November 26, 1996, Plaintiff likewise cannot show that he equals the characteristics of Listing 1.05C.
The ALJ was entitled to rely on the neurological testing results in Plaintiff's case, and indeed was required to do so by 20 C.F.R. Part 404, Subpt. P, App. 1, § l.OOB (hereafter, "Section l.00B"). Section 1.00B directs that an evaluation of an impairment caused by disorders of the spine be established by a clinical diagnosis based on adequate history, physical examination (both orthopedic and neurologic), and roentgenograms [x-rays]. Id. Section 1.00B further directs, "Since abnormal findings may be intermittent, their continuous presence over a period of time must be established by a record of ongoing treatment." Id. Finally, "[r]esidual neurological abnormalities which persist after it has been determined clinically or by direct surgical or other examination that the ongoing or progressive condition is no longer present, cannot be considered to satisfy the required findings in 1.05C." Id. Plaintiff's argument that the ALJ should have relied solely on Plaintiff's treatment history and disregarded the neurological testing results is misguided.
For all of these reasons, the ALJ did not err at step three in finding that Plaintiff did not meet or equal the criteria set forth in the Listings.
2. Residual Functional Capacity
Plaintiff also contends that the ALJ erred in assigning Plaintiff an RFC of the full range of sedentary work, and in failing to address the specific findings of Plaintiff's treating physician, Dr. Wren. In essence, Plaintiff complains that the ALJ improperly rejected the opinion of Plaintiff's treating physician.
Case law and the applicable Social Security regulations provide that, generally speaking, the opinion of a treating physician is given more weight than that of an examining physician or non-examining physician. E.g., Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); 20 C.F.R. § 404.1527(d), 404.416.927(d); cf. Regula v. Delta Family-Care Disability Survivorship Plan, 266 F.3d 1130, 1139 (9th Cir. 2001) (applying treating-physician rule to ERISA disability cases). This is because the treating doctor "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes, 881 F.2d at 751. The treating physician's opinion, however, is not conclusive. Id. "The ALJ may disregard the treating physician's opinion whether or not that opinion is contradicted." Id.; see also Andrews, 53 F.3d at 1041.
Where, as here, the opinion of a treating physician conflicts (at least partially) with the report of an examining physician, in order to reject the treating physician's opinion the ALJ "must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Magallanes, 881 F.2d at 751; see also Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). The ALJ can show specific and legitimate reasons based on substantial evidence by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof and making findings." Magallanes, 881 F.2d at 751, 753, 755 ("To the extent that other physicians' conflicting opinions rested on independent objective findings, those opinions constitute substantial evidence."); see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).
Here, the ALJ did not expressly address all of the limitations noted by Plaintiff's most recent treating physician, Dr. Wren. The ALJ's ruling does correctly state, "The most recent report from Dr. Wren (a treating physician) indicates that claimant can perform at least the full range of sedentary work (Exhibit 19F/2 [Rec. 357]). Indeed, at the end of his report, Dr. Wren appears to sign an RFC for light work (Exhibit 19F/3 [Rec. 358])." (Rec. 13.) But in the same report, Dr. Wren also indicated that Plaintiff could not walk, stand, or sit for more than one-half hour without interruption. (Rec. 356.) And although he stated that Plaintiff could work an eight-hour day five days per week with frequent rest periods, Dr. Wren also opined that without such breaks, Plaintiff could work four to six hours per day. (Rec. 357.) The ALJ did not expressly address this limitation in his determination that Plaintiff retained the RFC for sedentary work.
Plaintiff points out that individuals who must alternate periods of sitting and standing are by definition unable to perform sedentary work. E.g., Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984); Fraga v. Sullivan, 828 F. Supp. 737, 740 (N.D.Cal. 1993); see also Soc. Sec. Ruling 83-12 (limitation of alternating standing and sitting is incompatible with sedentary work). The cases cited plaintiff, however, involved more severe limitations than present in this case. In Fraga v. Sullivan, 828 F. Supp. 737, 740 (N.D.Cal. 1993), the plaintiff testified that she was "unable to perform sedentary work without experiencing severe pain and without alternating periods of standing and sitting." In Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984), the plaintiff's back pain precluded him from prolonged sitting (of more than ten minutes) or standing for more than one-half hour. But Dr. Wren characterized Plaintiff's pain as "constant slight to moderate pain becoming moderate with certain activities: prolonged sitting, standing, walking, weight lifting, climbing, pulling, pushing." (Rec. 357 (emphasis added).)
To the extent that Dr. Wren's assignment of a thirty-minute maximum period for any one activity is inconsistent with his finding in the same report that Plaintiff could perform at least the full range of sedentary work, the ALJ is entitled to resolve this ambiguity, but must explain his reasoning. (Rec. 357-58.) See Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (existence of internal inconsistencies in treating physicians' reports is relevant evidence, and ALJ is responsible for resolving ambiguities in medical evidence). The ALJ did not adequately explain his conclusion that Plaintiff's claimed limitation of requiring alternate periods of sitting and standing was unsupported by the medical evidence. Dr. Wren's report, although internally inconsistent, indicates that Plaintiff can walk, stand, and sit for only one-half hour without interruption. (Rec. 356.) The ALJ discredited this aspect of Dr. Wren's report without discussing his reasons for doing so. The ALJ also did not address the effect of Social Security Ruling 83-12 on his assessment of Plaintiff's residual functional capacity.
It may be that the ALJ discredited Dr. Wren's report to the extent that it was based on Plaintiff's own subjective complaints, which the ALJ determined were not credible, as the ALJ may properly do provided he sets forth such reasoning in his findings. The ALJ may also have given less weight to Dr. Wren's opinion, even though he was one of Plaintiff's treating physicians, because
Plaintiff's other treating physician, Dr. Abeles, and the examining and consulting physicians concluded that Plaintiff retained the capacity for light work. The reports of the other physicians may well constitute substantial evidence of Plaintiff's RFC for the full range of sedentary work, but the ALJ must set forth more fully his reasons in light of Dr. Wren's restrictions. The Court therefore remands this case back to the ALJ for further findings on the issue of Plaintiff's RFC.
V. CONCLUSION
This case is remanded to the ALJ for further proceedings in accordance with this order. This ruling disposes of docket entries 14 and 15.