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finding harmful error where "[t]he VE's testimony, upon which the ALJ relied to make his disability determination, was based on an RFC that did not include all of plaintiff's limitations."
Summary of this case from Streeter v. SaulOpinion
NO. CV 13-02809-MAN
08-14-2014
ESTRELLA ORTIZ, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff filed a Complaint on April 29, 2013, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On January 6, 2014, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation that same day, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and the Commissioner requests that her decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.
SUMMARY OF ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for a period of disability, DIB, and SSI on December 29, 2008. (Administrative Record ("A.R.") 136-39, 143-46.) Plaintiff, who was born on October 31, 1980 (A.R. 30), claims to have been disabled since November 15, 2008, due to "[a]rthritis, disk problems, sciatic nerves, depression, anxiety, carpal tunnel, [and] headaches" (A.R. 159). She has past relevant work ("PRW") experience as a telemarketer. (A.R. 30.)
After the Commissioner denied plaintiff's claim initially and upon reconsideration, plaintiff requested a hearing. (A.R. 98, 104-17.) On February 26, 2010, Administrative Law Judge Dale A. Garwal (the "ALJ"), dismissed plaintiff's request for a hearing based on her failure to file the request in a timely manner. (A.R. 95-99.) On June 25, 2010, after finding good cause for plaintiff's late filing, the Appeals Council vacated the ALJ's order and remanded the case for further proceedings. (A.R. 102-03.)
On September 28, 2010, plaintiff, who was represented by a non-attorney representative, appeared and testified at a hearing. (A.R. 24, 71-90.) Vocational expert Sharon Spaventa ("VE") also testified. (Id.) On November 18, 2010, the ALJ denied plaintiff's claim (A.R. 24-32), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-5). That decision is now at issue in this action.
SUMMARY OF ADMINISTRATIVE DECISION
In his November 18, 2010 decision, the ALJ found that plaintiff met the insured status requirements of the Social Security Act through December 31, 2011, and had not engaged in substantial gainful activity since November 15, 2008, the alleged onset date of her disability. (A.R. 26.) The ALJ determined that plaintiff has the severe impairments of: "cervical and lumbar strain/sprain; sciatica; hepatitis; migraines; obesity; borderline personality disorder; depression; anxiety; [and] polysubstance dependence, in long time remission." (Id.) The ALJ concluded that plaintiff does not have an impairment or combination of impairments that meets or medically equals the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (A.R. 28.)
After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except she can only "lift/carry 20 pounds occasionally and 10 pounds frequently; sit/stand for 6 hours out of an eight-hour workday; [engage in] occasional bending or stooping; and [she is] limited to simple, routine tasks." (A.R. 29.) In making this finding, the ALJ considered the subjective symptom testimony of plaintiff, which the ALJ found was not entirely credible, as well as the medical evidence and opinions of record. (A.R. 29-30.)
Based on plaintiff's age, education, work experience, and RFC, as well as the testimony of the VE, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform," including the jobs of marker and hotel housekeeper. (A.R. 31.) Thus, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since November 15, 2008, the alleged onset date, through November 18, 2010, the date of the ALJ's decision. (Id.)
The ALJ determined that plaintiff "has at least a high school education and is able to communicate in English." (A.R. 30.)
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.
DISCUSSION
Plaintiff claims that the ALJ erred in failing to properly consider: (1) the medical evidence regarding her physical and mental impairments and limitations; (2) her subjective complaints; and (3) lay witness statements. (Joint Stipulation ("Joint Stip.") at 3.) I. Remand Is Warranted, Because The ALJ Failed To Properly Assess Plaintiff's Mental RFC.
Plaintiff contends that the ALJ failed to properly consider the medical evidence with respect to both her physical and mental impairments and limitations. (Joint Stip. at 6-16.)
It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(d), 416.927(d). In determining a claimant's RFC, an ALJ will consider all the relevant evidence in the record. 20 C.F.R. §§ 404.1545(a), 416.945(a). In so doing, the ALJ will consider all claimant's medically determinable impairments, including those that are not "'severe.'" Id.
A. The ALJ Failed To Properly Assess Plaintiff's Mental RFC.
Although the ALJ states in his decision that he credited the opinions of Dr. Glick, Dr. Donahue, and Dr. Stern in determining plaintiff's mental RFC, plaintiff argues that the ALJ's decision and hypothetical to the VE did not "accurately encompass [their] opinions." (Joint Stip. at 6-13.)
1. The ALJ Failed To Properly Consider The Opinion Of Treating Physician Dr. Howard Glick.
On August 3, 2010, Dr. Howard Glick, plaintiff's treating physician, completed a "Mental Interrogatories" form. (A.R. 346-49.) Dr. Glick diagnosed plaintiff with major depressive disorder, post-traumatic stress disorder, and polysubstance dependence, and he assessed plaintiff a GAF score of 52. (A.R. 349.) Dr. Glick opined that plaintiff was moderately limited in 10 of 20 areas, including her ability to: (1) remember locations and work-like procedures; (2) understand and remember detailed instructions; (3) carry out detailed instructions; (4) maintain attention and concentration for extended periods; (5) perform within a schedule, maintain regular attendance, and be punctual within customary tolerances; (6) sustain an ordinary routine without special supervision unlimited; (7) complete a normal work day and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods; (8) accept instructions and respond appropriately to criticism from supervisors; (9) respond appropriately to changes in the work setting; and (10) set realistic goals or make plans independent of others. (A.R. 347-78.) He also opined that plaintiff would have difficulty working at a regular job on a sustained basis. (A.R. 348.)
A GAF score is the clinician's judgment of the individual's overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, at 32 (4th Ed. 2000). A GAF of 51-60 shows moderate symptoms, such as those that would affect speech or cause moderate difficulty in social, occupational, or school functioning. Id.
The ALJ purportedly gave Dr. Glick's medical opinion "significant weight based upon the long term treating relationship that he has had with [plaintiff] and [found that] it is in agreement with the consultative examination by Dr. Donohue." (A.R. 28.) The ALJ specifically observed that Dr. Glick found plaintiff to be "moderately limited in 10 of 20 areas of consideration," including "moderate difficulties" with respect to concentration, persistence, or pace ("CPP"). (A.R. 28.) In his RFC finding, however, the ALJ merely limited plaintiff to "simple, routine" tasks. (A.R. 29.) In addition, the ALJ omitted Dr. Glick's findings from the hypothetical posed to the VE.
Specifically, the ALJ's second hypothetical to the VE included a limitation to "simple, routine tasks" and light work, and the VE's corresponding opinion -- i.e., that the subject of the hypothetical could perform the jobs of marker and hotel/motel housekeeper -- is the basis for the ALJ's conclusion that plaintiff is not disabled due to the existence of jobs in significant numbers that she can perform. (A.R. 31, 88.) None of the ALJ's hypotheticals posed to the VE, however, mentioned any of the moderate mental functioning limitations found by Dr. Glick, including the moderate limitations in plaintiff's CPP. Nor was the VE apprised of such moderate limitations through any other means.
The ALJ's first and third hypotheticals contained limitations to, respectively, medium work and sedentary work, as well as "simple, routine tasks." (A.R. 87-88.)
An ALJ must include a limitation in a hypothetical posed to a vocational expert, as well as in an RFC determination, only if the record provides substantial evidence of such a limitation. See, e.g., Flores v. Shalala. 49 F.3d 562, 570 (9th Cir. 1995); Dupree v. Astrue, CV 10-3146-JCG, 2011 WL 651886, at *5 (C.D. Cal. Feb. 10, 2011). Given that the ALJ specifically stated that he accorded Dr. Glick's opinion "significant weight," there was substantial evidence of record that plaintiff is moderately limited in half of the mental functioning categories assessed by Dr. Glick, including in CPP. Limiting a claimant to "simple, routine tasks" without explanation, as occurred here, fails to adequately account for plaintiff's moderate difficulties in CPP and constitutes error.
In Brink v. Comm'r Soc. Sec. Admin., 343 Fed. Appx. 211 (9th Cir. Aug. 18, 2009), the ALJ accepted the medical evidence indicating that the claimant had moderate difficulties in CPP, but the hypothetical to the VE mentioned only a limitation to "simple, repetitive work" without including any particular limitations as to CPP. The Ninth Circuit held that this was reversible error. In so doing, the Ninth Circuit flatly rejected the Commissioner's argument that the phrase "'simple, repetitive work' encompasses difficulties with concentration, persistence or pace" and observed that the light work the ALJ found claimant could perform -- which included "repetitive, assembly-line type work" -- "might well require extensive focus or speed." Id. at 212. "The hypothetical question to the vocational expert should have included not only the limitation to 'simple-repetitive work,' but also [the claimant's] moderate limitations in concentration, persistence, or pace." Id. The Ninth Circuit reversed and remanded, because the ALJ's finding that the claimant could perform light work was based on an incomplete hypothetical question and was not supported by substantial evidence. Id.; see also Lubin v. Comm'r of Social Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. Feb. 8, 2013) (when the ALJ found that the claimant had moderate limitations in CPP, the ALJ erred in failing to include this limitation in the hypothetical posed to the VE; limiting the claimant to "one to three step tasks" "did not capture the limitation in concentration, persistence or pace found by the ALJ").
Numerous decisions in this district are in accord. For example, see Stevens v. Astrue, CV 12-3629-RNB, 2013 WL 36110, at *1 (C.D. Cal. Jan. 30, 2013) (finding that the ALJ's decision was not supported by substantial evidence when the ALJ stated he had given the "greatest weight" to a physician's opinion, which included a finding of moderate limitations in CPP, yet the ALJ failed to incorporate the moderate CPP limitations in his RFC finding and hypothetical to the VE and included only a limitation of unskilled work with limited public contact); Cruz v. Colvin, No. SACV 12-1143-JPR, 2013 WL 4082714, at *9 & n.9 (C.D. Cal. Aug. 13, 2013) (the ALJ's finding that the claimant was limited to "simple, repetitive tasks" did not accommodate, and conflicted with, a state agency physician's findings of moderate limitations in CPP); Smith v. Astrue, EDCV 10-633-PLA, 2011 WL 3962017, at *9 (C.D. Cal. Sept, 8, 2011) ("The phrase 'simple, repetitive work' does not encompass difficulties with concentration, persistence, or pace where there is evidence of such difficulties."); Bentancourt v. Astrue, EDCV 10-196-CW, 2010 WL 4916604, at *3-*4 (C.D. Cal. Nov.27, 2010) (when the ALJ accepted medical evidence that the claimant was limited in maintaining CPP but the hypothetical question to the VE included a restriction to "simple, repetitive work" and failed to mention the claimant's CPP limitations, the ALJ's finding that the claimant is capable of medium exertional work was "based on an incomplete hypothetical question and unsupported by substantial evidence").
See also, e.g., O'Connor-Spinner v. Astrue, 627 F.3d 614, 619-620 (7th Cir. 2010) (finding that employing terms like "unskilled work" or "simple, repetitive tasks," without explanation, fails to account for CPP limitations); Gill v. Colvin, CV-13-01573-PHX-BSB, 2014 WL 1950094, at *6 (D. Ariz. May 15, 2014) (an RFC that limited the claimant to "simple, unskilled tasks" was "incomplete" when the ALJ had accepted and assigned "great weight" to a physician's opinion that the claimant has moderate limitations in CPP).
Given the relevant authority cited above, the Commissioner's assertion that the ALJ "was not required to" include the moderate limitations in CPP assessed by Dr. Glick, and that the ALJ's inclusion of a limitation to "simple, routine tasks" adequately accounted for the moderate mental limitations found by Dr. Glick (Joint Stip. at 18), is unpersuasive. The ALJ plainly erred in failing to include in the hypotheticals posed to the VE the moderate limitations in CPP assessed by Dr. Glick. Because the ALJ's hypothetical question to the VE did not reflect all of plaintiff's limitations, "the expert's testimony has no evidentiary value to support a finding that [plaintiff] can perform jobs in the national economy." DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).
The Commissioner's reliance on Hoopai v. Astrue, 499 F.3d 1071, 1076-77 (9th Cir. 2007), is misplaced. The issue in Hoopai was whether the ALJ erred at step five by relying on the Grids rather than adducing evidence from a vocational expert. More specifically, the question was whether the ALJ erred in finding that the claimant's depression was not sufficiently severe to preclude reliance on the Grids. There was no issue, as here, regarding whether the ALJ erred in failing to include moderate mental limitations in the claimant's RFC and/or in the hypothetical posed to the vocational expert.
Moreover, the ALJ erred in failing to explain why he did not include Dr. Glick's moderate limitation findings -- findings the ALJ said he accorded "significant weight" -- in the RFC determination. The ALJ, failed, without any explanation, to incorporate in his non-exertional RFC determination most of the 10 areas in which Dr. Glick found plaintiff to be moderately limited, including sustaining an ordinary routine, responding to criticisms from supervisors, responding to changes in the work setting, and making goals and plans independently of others. Given that Dr. Glick's findings were substantially consistent with the medical evidence of record, particularly as to plaintiff's moderate CPP, the ALJ could not ignore or reject such findings without giving clear and convincing reasons for doing so. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); see also Betts v. Colvin, 531 Fed. Appx. 799, 800 (9th Cir. June 24, 2013) (reversing when the ALJ -- who stated that he gave the "greatest weight" to an examining physician's opinion, which included persistence and pace limitations -- failed to include such mental limitations in his RFC finding and provided no reasons for disregarding them); Stevens, 2013 WL 361100, at *1 (when the ALJ gave "greatest weight" to a physician's opinion that included moderate to marked CPP limitations, the ALJ's failure to provide the requisite reasons for not including such CPP limitations in his RFC determination and hypothetical to the VE was error).
As the ALJ noted: the state agency physician, Dr. Stern, also found that plaintiff is moderately limited in CPP (A.R. 27); and Dr. Glick's opinion was entitled to significant weight, because he was a long term treating physician and his opinion was "in agreement" with the findings of the consultative psychologist, Dr. Margaret Donahue (A.R. 27-28).
The ALJ's error was not harmless. The VE's testimony, upon which the ALJ relied to make his disability determination, was based on an RFC that did not include all of plaintiff's limitations. Thus, it is not clear from the record that the marker and hotel housekeeper jobs identified by the VE and which the ALJ found plaintiff could perform are, in fact, jobs that could be performed by a person with all of plaintiff's limitations, including her moderate mental functioning limitations. Accordingly, the ALJ's failure to proffer any reason for not including the moderate mental limitations assessed by Dr. Glick and/or to explain their rejection constitutes reversible error. On remand, the ALJ must properly consider and incorporate Dr. Glick's opinion or provide clear and convincing reasons for rejecting it.
2. The ALJ Failed To Properly Consider The Opinion Of Consultative Examiner Dr. Margaret Donohue.
On February 14, 2009, consultative psychologist Dr. Margaret Donohue conducted a complete mental evaluation of plaintiff. (A.R. 264-67.) After reviewing plaintiff's medical records and history and performing a mental status examination of plaintiff, Dr. Donohue diagnosed plaintiff with: depression, not otherwise specified; anxiety, not otherwise specified; and a history of trauma. (A.R. 267.) She also assessed plaintiff with a GAF score of 50. (A.R. 264-67.) Dr. Donohue noted that plaintiff was pleasant and cooperative and should be able to get along adequately with others. (Id.) However, Dr. Donohue further noted that plaintiff: would have some difficulty with the general public and is likely to easily feel overwhelmed; is considered competent to manage funds, but needs to use a calculator; and can do simple tasks but would have difficulty with anything detailed or complicated as a result of concentration problems. (Id.)
A GAF rating of 41-50 reflects "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR, at 34.
Plaintiff argues that the ALJ erred by failing to incorporate Dr. Donohue's assessment that plaintiff would have some difficulty with the general public and is likely to feel overwhelmed. (Joint Stip. at 8.) As he did with the opinion of Dr. Glick, although the ALJ noted that he credited the opinion of Dr. Donohue in assessing plaintiff's non-exertional RFC, it appears that the ALJ inexplicably incorporated only some of those limitations found by the consultative psychologist, to wit, through the ALJ's cursory limitation to "simple, routine" tasks. The ALJ's failure to proffer any reason for failing to incorporate and/or to explain the rejection of a significant aspect of Dr. Donohue's opinion constitutes error. Accordingly, on remand, the ALJ must properly consider and incorporate Dr. Donohue's opinion or provide the requisite reasons -- whether clear and convincing or specific and legitimate -- for rejecting it.
In a confusing argument, plaintiff complains that the ALJ failed to fully credit the opinion of the state agency reviewing physician, Dr. Thomas D. Stern. (Joint Stip. at 7.) As plaintiff notes, the ALJ failed to consider Dr. Stern's opinion that she was "not significantly limited" with respect to sustained concentration and persistence. (A.R. 280.) However, earlier in the same report, Dr. Stern found that plaintiff does have a moderate functional limitation with respect to maintaining CPP (A.R. 276), and the ALJ acknowledged this finding (A.R. 27). Given this internal inconsistency within Dr. Sterns's report, plaintiff has not shown any reversible error with respect to the ALJ's treatment of Dr. Stern's opinion.
Plaintiff also argues within this claim that, at step 3, the ALJ's "paragraph B" findings are inconsistent with the opinions of Dr. Glick and Dr. Donohue, and that an RFC finding which is more "severe" than limiting plaintiff to "simple, routine tasks" is warranted. Given the Court's foregoing finding of reversible error and the need to remand for a proper consideration of the opinions of Dr. Glick and Dr. Donohue, the Court need not address this contention separately, because the ALJ's conclusions may change regarding his step 3 analysis as well as his mental RFC assessment of plaintiff.
B. The ALJ Properly Assessed Plaintiff's Physical RFC.
Plaintiff argues that the ALJ failed to properly assess her physical RFC, because he did not properly consider either the opinion of consultative examiner Dr. Simmonds or plaintiff's impairments of migraines, hepatitis, and carpal tunnel syndrome, as well as the impact of her obesity. (Joint Stip. at 13-16.)
1. The ALJ Properly Considered The Opinion Of Consultative Examiner Dr. John Simmonds.
On February 13, 2009, consultative examiner Dr. John Simmonds conducted an orthopaedic examination of plaintiff. (A.R. 259-63.) After reviewing plaintiff's medical records, including "MRIs [which] were consistent with mild degenerative disc disease of the lumbosacral spine" and physically examining plaintiff, Dr. Simmonds opined that plaintiff could: push, pull, lift, and carry 50 pounds occasionally and 25 pounds frequently; walk and stand for six hours with no assistive device; frequently bend, stoop, crouch, kneel, crawl, and walk on uneven terrain and climb ladders; and work at heights on a frequent basis. Dr. Simmonds also found that plaintiff would have neither sitting nor fine and gross manipulative movement restrictions. (See A.R. 259-60, 262.)
Plaintiff argues that the ALJ's physical RFC determination, i.e., light work with occasional bending or stooping, is not supported by substantial evidence, because there are no medical opinion or evidence that supports the ALJ's RFC physical limitations. (Joint Stip. at 13-14.) Although no medical opinion wholly reflects the ALJ's physical RFC determination, Dr. Simmonds, whose opinion is uncontradicted and was relied upon by the ALJ, opined that plaintiff could do medium work without any restrictions. The ALJ nevertheless assessed plaintiff with a more restrictive RFC -- limiting her to light work with occasional bending or stooping -- than that assessed by Dr. Simmonds.
Plaintiff further argues that the ALJ's RFC determination fails to incorporate a November 17, 2009 lumbar spine MRI (taken 9 months after Dr. Simmonds examined plaintiff), which reflected L5-S1 "desiccative disc changes with a left lateral 'annular tear' and a 3-4mm left lateral disc protrusion." (Joint Stip. at 14.) However, it appears that the ALJ was aware of the November 2009 MRI results (A.R. 27), and as a result, assessed plaintiff with a more restrictive RFC that than assessed by Dr. Simmonds.
There is no apparent reversible error in the ALJ's assignment of a more restrictive physical restriction (light work) than that found by Dr. Simmonds.
2. The ALJ Properly Considered Plaintiff's Obesity.
The ALJ found, at step 2, that plaintiff has the severe impairment of obesity. (A.R. 26.) At the commencement of his step 4 analysis, the ALJ noted that he took plaintiff's obesity into consideration in assessing her RFC. (A.R. 28.) As plaintiff observes, however, the ALJ's decision does not contain any further analysis of the impact of plaintiff's obesity on her ability to work. Thus, plaintiff argues the ALJ failed to adequately determine the effects of plaintiff's obesity in combination with her other impairments and the resulting effect on her ability to work. (Joint Stip. at 14-15.)
Here, the record shows that, although plaintiff never raised the issue of her weight, the ALJ nonetheless examined the record, acknowledged her obesity, and determined that her obesity was a severe impairment at step 2. (See i.e., A.R. 75-78, 80, 159, 211, 222.) The record further indicates that, although several of plaintiff's physicians noted her obesity, none opined that plaintiff's obesity contributed to her limitations. (See A.R. 314, 316, 318, 319, 356, 359, 361, 363, 367, 375, 380.) Plaintiff also does not cite any evidence of a physician or other medical provider indicating that plaintiff's obesity exacerbated her impairments or resulted in any functional limitation. (See Joint Stip. at 14-15.)
Although the ALJ also found that plaintiff had a severe impairment of "cervical and lumbar strain/sprain," plaintiff has presented no medical evidence or testimony that her weight caused or exacerbated her complaints of back pain. Plaintiff's medical records do not indicate that her weight had any effect on her back pain or her ability to work, and there is no documented recommendation for weight loss to ameliorate her back pain. Rather, it appears that plaintiff was being treated primarily with pain medication and some physical therapy for her back pain. (A.R. 375-80, 385, 391, 396. 398-99, 400-02, 404-05); see Burch, 400 F.3d at 683-84 (finding the ALJ's failure to consider obesity was not reversible error, where there was no evidence that claimant's obesity limited her functioning, and the only evidence related to obesity was a doctor's observation of weight gain, notation of obesity, and recommendation that claimant participate in a weight loss program).
Because plaintiff did not provide any evidence of functional limitations related directly or indirectly to her obesity that would have impacted the ALJ's analysis, the ALJ was not required to consider the effect of plaintiff's obesity in combination with her other impairments. See Garcia v. Comm'r of Soc. Sec. Admin., 498 F. App'x 710, 712 (9th Cir. 2012); Burton v. Barnhart, 310 F. App'x 960 n.1 (9th Cir. 2009) (finding the ALJ did not err in failing to consider adequately claimant's obesity when claimant does not specify how his obesity limits his functional capacity or how it exacerbates his currently existing condition). Indeed, Dr. Simmonds, the consultative physicians to whose opinion the ALJ properly gave great weight in assessing plaintiff's RFC, was cognizant of her height and weight, as well as her other claimed impairments including her lower back pain, and nonetheless concluded that she retained the functional capacity to perform work at a medium exertional level with no restrictions. (A.R. 259-62.)
Based on the record before the Court, the ALJ adequately considered plaintiff's obesity in his RFC determination by finding, at step 2, that plaintiff's obesity is severe and relying on Dr. Simmonds findings, who accounted for plaintiff's weight in his opinion. See Burch, 400 F.3d at 684; Garcia, 498 F. App'x at 712 (ALJ did not fail to consider obesity when he recognized claimant's obesity as severe and relied on functional limits suggested by doctors who recognized it). Plaintiff has not set forth, and there is no evidence in the record of, any functional limitation(s) resulting from her obesity which the ALJ failed to consider. See Burch, 400 F.3d at 684. Accordingly, the ALJ did not commit reversible error in his consideration of plaintiff's obesity.
3. The ALJ Properly Considered Plaintiff's Headaches And Hepatitis.
Although the ALJ found plaintiff's headaches and hepatitis to be severe impairments, plaintiff argues that the ALJ's RFC findings do not reflect any functional limitations resulting from such limitations. (Joint Stip. at 15.) Notably, the Ninth Circuit has rejected the argument that a finding of a severe mental impairment at step 2 automatically corresponds to limitations on a claimant's ability to perform work activities. Bray v. Comm'r of SSA, 554 F.3d 1219, 1228-29 (9th Cir. 2009); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (mere existence of symptoms or impairment is insufficient proof of disability).
Moreover, plaintiff did not present medical evidence demonstrating a functional impact from her headaches and hepatitis, evidence that would call into question the ALJ's decision to discount plaintiff's headaches and hepatitis as giving rise to a functional limitation. See Houghton v. Comm'r of Soc. Sec. Admin., 493 Fed. App'x. 843, 845 (9th Cir. 2012) (rejecting claim that ALJ failed to consider evidence of claimant's heart condition, sleep apnea, right heel injury, diabetes with neuropathy in the right leg, or obesity where claimant had "not shown that the ALJ discounted significant probative evidence of functional limitations or work-related restrictions" arising from the conditions); Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding that the ALJ need only discuss evidence that is significant and probative); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (same).
In any event, Dr. Simmonds, to whose opinion the ALJ properly gave great weight in assessing plaintiff's RFC, was aware of plaintiff's history of migraine headaches. (A.R. 259, 262.) Thus, the ALJ adequately considered plaintiff's headaches in his assessment of her RFC.
The Court does not find, aside from the ALJ's determination that plaintiff had a severe impairment of hepatitis, any indication in plaintiff's medical record that she suffered from hepatitis. Plaintiff also does not cite to the record indicating that she suffered from hepatitis. (See Joint Stip. at 15.)
4. The ALJ's Consideration Of Plaintiff's Carpal Tunnel Syndrome, While Erroneous, Was Harmless.
Plaintiff argues that although evidence in the record establishes she suffered from carpal tunnel syndrome, the ALJ failed to incorporate manipulative limitations in his RFC determination. (Joint Stip. at 15-16.) Unlike her obesity, hepatitis, and headaches, plaintiff's carpal tunnel syndrome was not found to be a severe impairment by the ALJ. (A.R. 20.) However, in her disability application, plaintiff claimed she was unable to work due to carpel tunnel syndrome. (A.R. 159.) Plaintiff's medical records confirm that plaintiff did suffer from carpal tunnel syndrome. (A.R. 379, 391, 394, 399, 401.) Thus, the ALJ's failure to discuss plaintiff's carpal tunnel syndrome in his decision constitutes error. See 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2) (in assessing RFC, ALJ will consider "all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not 'severe' ").
The Court finds that this error is harmless for several reasons, however. First, although there is evidence that plaintiff had carpal tunnel syndrome, all references to it, with the exception of one on September 3, 2009, were made in 2005, which pre-dates plaintiff's disability onset date. (See A.R. at 379, 391, 394, 399, 401); see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) ("Medical opinions that predate the alleged onset of disability are of limited relevance."). Second, and most significantly, there is no evidence that any treating or examining physicians opined that plaintiff's carpal tunnel syndrome imposed any functional limitations on her ability to work. Finally, Dr. Simmonds, in assessing plaintiff's physical RFC, noted that plaintiff's "motor examination reveals essentially normal strength by manual muscle testing in all major muscle groups of the upper and lower extremities, graded at 5/5"; as a result, Dr. Simmonds determined that plaintiff could perform fine and gross manipulative movements without restrictions. (A.R. 262.) Accordingly, the ALJ's failure to address plaintiff's carpal tunnel syndrome constitutes harmless error and does not warrant reversal.
* * * * *
In sum, the ALJ's physical RFC determination was supported by substantial evidence.
C. Until The ALJ Has Properly Considered The Medical Opinion Evidence, The Court Cannot Assess The Adequacy Of The Hypothetical Posed To The VE.
Plaintiff also contends within this claim that the ALJ failed to pose a proper hypothetical to the VE, because the hypothetical posed did not include all of plaintiff's impairments. (Joint Stip. at 19.)
In posing a hypothetical to a vocational expert, the ALJ must accurately reflect all of the claimant's limitations. Embrey v. Bowen, 849 F.2d 418, 422-24 (9th Cir. 1988). For a vocational expert's testimony to constitute substantial evidence, the hypothetical question posed must "consider all of the claimant's limitations." Andrews, 53 F.3d at 1044 (holding that hypothetical questions that do not include all of the plaintiff's limitations are insufficient and warrant remand).
Here, the hypothetical may be incomplete to the extent it does not reflect appropriately, in whole or in part, the medical opinion evidence of record with respect to plaintiff's mental limitations. On remand, the ALJ must either properly reject the opinions of Dr. Glick and Dr. Donohue in accordance with the appropriate legal standards or incorporate all plaintiff's mental functioning limitations that are not properly rejected into the hypothetical posed to the VE. II. On Remand, The ALJ Should Also Revisit His Assessment Of Plaintiff's Credibility.
Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the symptoms must be considered. Moisa v. Barnhart, 367 F.3d 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.2002).
Here, the ALJ found that "[a]fter careful consideration of the evidence . . . [plaintiff]'s medically determinable impairments could reasonably be expected to cause the alleged symptoms." (A.R. 30.) Further, the ALJ cited no evidence of malingering by plaintiff. Nonetheless, the ALJ concluded that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not credible" to the extent they vary from the ALJ's own RFC assessment. (Id.) Accordingly, the ALJ's reasons for finding that plaintiff was not credible with respect to her subjective symptom and pain testimony must be "clear and convincing."
As acknowledged by the ALJ, plaintiff testified at the hearing that she is unable to work due to "migraine headaches, back and neck pain, depression, anxiety, bell palsy and ongoing treatment for drug addiction." (A.R. 29, 75-80.) Plaintiff also stated that she has a problem getting along with others and likes to be alone. (A.R. 79.)
The ALJ found plaintiff to be not entirely credible, because: (1) the objective medical evidence did not support the extent of plaintiff's allegations of pain; and (2) plaintiff's pain and mental health concerns are not so severe and frequent as to prevent substantial gainful activity. (A.R. 30.)
The ALJ does not appear to have considered inconsistencies in plaintiff's daily activities and conservative pain treatment as reasons for finding her not credible. (See A.R. 30.) While the Commissioner now offers these as reasons to explain the ALJ's adverse credibility finding, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 ("We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely"). The Court also finds the ALJ's second reason for rejecting plaintiff's subjective pain testimony to be unclear. It is unclear whether, in stating that plaintiff's pain and mental health concerns are not so severe and frequent as to prevent substantial gainful activity, the ALJ reached this conclusion because plaintiff's medical records fail to show the severity and frequency of her medical conditions (as plaintiff argues) or because plaintiff was treated conservatively (as defendant argues). Thus, on remand, when reassessing plaintiff's credibility, the ALJ must provide clear and convincing reasons so that a reviewing court may know the basis for the ALJ's decision and have the ability to assess the propriety of that decision.
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As this case is being remanded for the ALJ to consider the opinions of Dr. Glick and Donohue, which may support some of plaintiff's complaints and alleged limitations that the ALJ deemed to be unsupported by the objective medical evidence, the Court does not reach plaintiff's claim that the ALJ erred in finding plaintiff to be not credible. Rather, the Court directs that plaintiff's credibility be reassessed on remand. III. The ALJ Erred In Rejecting The Lay Witness Statements Of Juanita Martinez.
"In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work." Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout, 454 F.3d at 1053) (internal quotation marks omitted). "[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [the claimant's] condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d), 416.913(d) ("[W]e may also use evidence from other sources to show the severity of your impairment(s). . . . Other sources include, but are not limited to . . . spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy."). Such testimony is competent evidence and "cannot be disregarded without comment." Bruce, 557 F.3d at 1115 (quoting Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (internal quotation marks omitted). When rejecting the testimony of a lay witness, an ALJ must give specific reasons that are germane to that witness. Id.
Here, the ALJ rejected the lay witness statements of plaintiff's aunt, Juanita Martinez, because the "opinion and statements of [plaintiff's] treating psychiatrist and consultative examiners are more objective and less likely to be influenced by sympathy for the [plaintiff] or other emotional factors." (A.R. 30.) It thus appears that the ALJ rejected Martinez's statements solely because she allegedly was biased as a family member. However, an ALJ may not presume bias on the part of a claimant's family members simply because they are related to the claimant. See Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) ("[t]he fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony"); see also Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (ALJ improperly rejected lay witness testimony of the plaintiff's mother on the basis of presumed bias).
As this case is being remanded for proper consideration of plaintiff's mental limitation, and in turn, plaintiff's credibility, the ALJ must also reconsider the testimony and statements of Martinez regarding her observations of plaintiff's subjective symptoms. The ALJ must provide, if they exist, appropriate reasons for rejecting the observations of Martinez regarding plaintiff's limitations. IV. Remand Is Required.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.
Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. On remand, the ALJ must credit Dr. Glick's and Dr. Donohue's opinions or provide appropriate reasons supported by substantial evidence for rejecting those opinions. Once these issues are properly addressed and clarified, the ALJ can determine what impact, if any, this has on his assessment of both plaintiff's and Ms. Martinez's statements regarding plaintiff's limitations. The ALJ may also need to reassess plaintiff's RFC, in which case additional testimony from a VE likely will be needed to determine what work, if any, plaintiff can perform.
CONCLUSION
Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: August 14, 2014
/s/_________
MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE