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holding that evidence that the plaintiff performed household chores, watched television, attempted crossword puzzles, drove, shopped, and read did not discredit the plaintiff's testimony
Summary of this case from Gamradt v. BarnhartOpinion
CV 00-3028-BR
February 7, 2001
RALPH WILBORN ETTA L. WILBORN Ralph Wilborn Etta Wilborn, P.C. Tucson, AZ Attorneys for Plaintiff.
KRISTINE OLSON United States Attorney WILLIAM W. YOUNGMAN Assistant United States Attorney Portland, OR. VICTORIA BLAIS Special Assistant United States Attorney Seattle, WA Attorneys for Defendant.
OPINION AND ORDER
Plaintiff Vicki Tomson seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) denying her application for supplemental security income (SSI) and disability insurance (DI) benefits. Defendant, in turn, has filed a Motion to Remand (#14) this action for further administrative proceedings. The parties agree the Commissioner's decision must be reversed and the action remanded. The primary issue is whether to remand for further administrative proceedings or to remand for direct payment of benefits.
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough and careful review of the record, the Court concludes this matter must be remanded for further proceedings. Accordingly, the Commissioner's decision is REVERSED and Defendant's Motion to Remand is GRANTED.
ADMINISTRATIVE HISTORY
On April 3, 1996, Tomson filed applications for SSI and DI in which she alleged she became disabled on February 9, 1996. (Tr. 5, 105-08). The applications were denied initially and on reconsideration. (Tr. 5, 86-89, 92-94). In December 1996, Tomson requested a hearing. (Tr. 95-98). At a hearing held before an Administrative Law Judge (ALJ) on May 22, 1998, Tomson was represented by a non-attorney representative. (Tr. 22). Tomsom and a vocational expert (VE) testified at the hearing. (Tr. 57-72, 72-79).
On July 31, 1998, the ALJ issued a decision denying Tomson's applications. (Tr. 19-35). The ALJ's decision became the final decision of the Commissioner on January 14, 2000, when the Appeals Council for the SSA denied Tomson's timely request for review. (Tr. 7-9). See Russell v. Bowen, 856 F.2d 81, 83-84 (9th Cir. 1988).
FACTUAL HISTORY
Tomson was born on August 9, 1951, and was 46 years old at the time of the hearing. (Tr. 57, 105). She completed twelfth grade and attended one and one-half years of vocational training before the onset of her disability. (Tr. 57, 122). Tomson's past relevant work experience included employment as a patient accounts representative, student loan processor, "bookkeeper/nanny," receptionist, child care aide, and teletype operator. (Tr. 32, 33, 58, 110, 122). Tomson alleges disability due to joint pain and disease, pulmonary sarcoidosis, chronic fatigue, obesity, and depression. (Tr. 24, 33, 116-17).
Tomson does not challenge the ALJ's summary of the evidence, but only her interpretation and application of the evidence. The parties agree the case must be remanded and dispute only the purpose of the remand.
STANDARDS
A claimant is disabled if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The initial burden of proof rests upon the claimant to establish his or her disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996). The Commissioner bears the burden of developing the record. DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g). See also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "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, 53 F.3d at 1039. The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, however, even if "the evidence is susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1039-40.
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert denied, 121 S.Ct. 628 (2000).
SUMMARY OF ALJ'S FINDINGS
The ALJ must engage in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520. Below is a summary of the five steps, which also are described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999):
Step One. The Commissioner determines whether claimant is engaged in substantial gainful activity. If so, claimant is not disabled. If claimant is not working in a substantially gainful activity, the Commissioner proceeds to evaluate claimant's case under Step Two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether claimant has one or more severe impairments. If not, claimant is not disabled. If claimant has a severe impairment, the Commissioner proceeds to evaluate claimant's case under Step Three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether claimant's impairment "meets or equals" one of the impairments listed in the SSA regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. If so, claimant is disabled. If claimant's impairment does not meet or equal one listed in the regulations, the Commissioner's evaluation of claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520(d).
Step Four. The Commissioner determines whether claimant is able to perform work he or she has done in the past. If so, claimant is not disabled. If claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(e).
Step Five. The Commissioner determines whether claimant is able to do any other work. If not, claimant is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show there are a significant number of jobs in the national economy that claimant can do. The Commissioner may satisfy this burden through the testimony of a vocational expert (VE) or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates there are a significant number of jobs in the national economy claimant can do, claimant is not disabled. If the Commissioner does meet this burden, claimant is disabled. 20 C.F.R. § 404.1520(f)(1); Tackett, 180 F.3d at 1099.
The burden of proof is on the claimant as to Steps One through Four. Tackett, 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that claimant can perform. Id.
In this matter, the ALJ first determined Tomson had not engaged in substantial gainful activity since February 9, 1996. (Tr. 33). Second, the ALJ found Tomson had severe impairments, including "severe" pulmonary sarcoidosis with fatigue; major depression, improved with medications; obesity; and joint pain. (Tr. 33). Third, the ALJ concluded Tomson did not have an impairment or any combination of impairments listed in or medically equal to the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
Fourth, the ALJ found Tomson had retained the following residual functional capacity:
The claimant has the residual functional capacity to perform the physical exertion and nonexertional requirements of sedentary work except that she is unable to work in close contact with co-workers and the general public; must work inside; and must work where she is free of pollution and extremes of hot or cold. . . .
Id. The ALJ found Tomson is unable to perform her past relevant work. Id. Tomson agrees with the ALJ's findings relating to the first four steps.
Fifth, the ALJ concluded Tomson was not disabled at any time through July 31, 1998. (Tr. 34). After considering Tomson's exertional capacity for sedentary work as well as her age, educational background, and previous work experience, the ALJ determined there are a significant number of jobs in the national economy that Tomson can perform. Id. The ALJ found Tomson can perform a significant number of jobs in the national economy such as "addresser, and surveillance system monitor" even with her limitations. (Tr. 34). The ALJ concluded "[t]here are 206,000 jobs such as these in the economy of the United States." Id.
DISCUSSION
At Step Five, Tomson challenges the ALJ's findings concerning Tomson's residual functional capacity as well as the ALJ's determination that Tomson is able to perform jobs that exist in significant numbers in the national economy. Tomson contends the Commissioner's decision should be reversed because it is based on improper legal standards and is not supported by substantial evidence. Tomson maintains: (1) the record is fully developed; (2) the Court should accept certain improperly rejected evidence as true; and (3) the ALJ's decision should be reversed and the case remanded for the immediate payment of benefits.
The Commissioner agrees his decision is not free from error. The Commissioner concedes, moreover, the ALJ erred in the following respects:
(1) She failed to provide legally sufficient reasons for rejecting the lay testimony of Tomson's daughter, Rhonda Tomson, concerning Plaintiff Tomson's activities of daily living;
(2) She failed to provide legally sufficient reasons for rejecting the opinions of two non-examining state agency reviewing physicians regarding restrictions on Tomson's ability to function;
(3) She failed to obtain and to consider the Mental Residual Functional Capacity Questionnaire form completed by an examining psychologist, Dr. Gary L. Gregor, Ph.D, with respect to Tomson's ability to perform work activities;
(4) The hypothetical question the ALJ posed to the VE was inaccurate due to the three errors noted above; and
(5) The ALJ's assessment of Tomson's residual functional capacity was inaccurate as a result of the three errors admitted.
Nevertheless, the Commissioner argues the matter should be remanded for further proceedings to correct defects in the original administrative decision.
Both Tomson and the Commissioner agree this case should be decided under the Court's authority pursuant to sentence four of 42 U.S.C. § 405(g). Sentence four provides:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.
1. Further Proceedings Are Necessary Because the Appeals Council Did Not Consider Dr. Beggs's Note and Further Development of the Record Is Required
Tomson contends the Commissioner erred when he rejected without explanation the opinion of one of Tomson's treating physicians, Dr. James Neil Beggs, M.D., that Tomson is "unable to work." Tomson argues such failure by the Commissioner requires the Court to credit the treating physician's opinion as true as a matter of law. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (when "the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion `as a matter of law'") (citations omitted). Tomson maintains acceptance of Dr. Beggs's opinion as true irrefutably establishes that Tomson is disabled, and, therefore, the case must be remanded for payment of benefits. See Ramirez v. Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993) (case remanded for payment of benefits when the record was fully developed and the Appeals Council had considered and improperly rejected a treating physician's opinion that had been submitted as new evidence after the ALJ issued his opinion).
The Commissioner counters that Dr. Beggs's note is conclusory, unsupported by objective medical evidence, and constitutes a disability opinion that is reserved for the Commissioner. Additionally, the Commissioner observes Tomson did not submit Dr. Beggs's handwritten note to the ALJ and did not attempt to introduce it until after the period set by the Appeals Council for introducing new evidence had expired. The Commissioner asserts the appropriate remedy is to remand the case to permit the ALJ to consider Dr. Beggs's opinion, to further develop the record, and to allow the VE to answer questions concerning this additional evidence.
The March 16, 1998, note by Dr. Beggs, written on a sheet from a prescription pad, stated in its entirety:
Vicki has Hyperlipidemia, Hypertension, Sarcoidosis, and Arthrolgias. She's unable to work.
(Tr. 14).
Although the opinion of a treating physician should be given great deference, it "is not necessarily conclusive as to either the [claimant's] physical condition or the ultimate issue of disability." Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ, therefore, is not bound by opinions of the claimant's treating physicians on the ultimate issue of disability. Nevertheless, neither the ALJ nor the Appeals Council can reject the uncontroverted opinion of a claimant's treating physician on the ultimate issue of disability "`without presenting clear and convincing reasons for doing so.'" Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)).
When the opinion of another doctor contradicts the treating physician's opinion, "the Secretary can disregard the latter only by setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Ramirez, 8 F.3d at 1453 (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)) (internal quotations omitted).
In this instance Tomson submitted Dr. Beggs's memorandum after the deadline for receiving new evidence had elapsed. Dr. Beggs's March 16, 1998, written statement was not submitted to the ALJ before the May 22, 1998, hearing or before the ALJ issued her opinion on July 31, 1998. Furthermore, in an April 28, 1999, letter to Tomson's non-attorney representative, the SSA alerted Tomson that she was required to submit any new and material evidence to the Appeals Council within 45 days. (Tr. 15). In the April 1999 letter, Tomson was also notified no further extensions of time would be granted to submit additional evidence "in the absence of extraordinary circumstances." Id. The SSA wrote, "[i]f nothing is received within the next 45 days, the Council will proceed with its action on this case based on the present record." Id.
On July 23, 1999, after the period set by the SSA for receiving additional evidence had expired, Tomson's Social Security Disability Consultant submitted Dr. Beggs's note to the Appeals Council. (Tr. 13-14). In a letter dated July 23, 1999, the consultant characterized the March 16, 1998, note as "[a] medical report from treating physician" Dr. Beggs and asked that the report be added to Tomson's file. Id. Tomson's representative provided no statement addressing the significance, if any, of Dr. Beggs's memorandum or explaining what, if any, "extraordinary circumstances" excused Tomson from complying with the deadline set by the SSA for receiving new evidence. Id. Tomson also did not request an extension of the deadline for supplementing the record with new evidence. Id. Ultimately, Dr. Beggs's memorandum was not "received" and made part of the record reviewed by the Appeals Council nor was Dr. Beggs's opinion considered by the Appeals Council when it denied Tomson's request for review of the ALJ's decision. (Tr. 7-9).
The Court has reviewed Tomson's medical records; the transcript of the May 22, 1998, hearing; and other evidence in the record. (Tr. 1-355). On the facts of this case, the Court finds the Appeals Council erred when it declined to consider the new evidence Tomson submitted in July 1999 and when it denied review of the ALJ's decision in January 2000. (Tr. 7-9).
Although it is appropriate for the Appeals Council to manage its workload by establishing reasonable deadlines for submission of supplemental evidence concerning pending matters, the Appeals Council possessed Dr. Beggs's note for over five months and could have considered it before issuing its decision to deny review. When "new and material" evidence is submitted to the Appeals Council in connection with a request for review of an ALJ's decision, 20 C.F.R. § 404.970(b) provides in part:
The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
Also, 20 C.F.R. § 404.976(b)(1) states in relevant part:
The Appeals Council will consider all the evidence in the administrative law judge hearing record as well as any new and material evidence submitted to it which relates to the period on or before the date of the administrative law judge hearing decision.
Tomson relies on Ramirez to support his argument that this Court must: (1) regard Dr. Beggs's opinion as if it were supplemental evidence considered by the Appeals Council; (2) treat the record as complete; and, therefore, (3) remand this case for an award of benefits. Ramirez, however, is distinguishable from this case because in Ramirez the Appeals Council examined and considered the additional material submitted after the ALJ hearing. 8 F.3d at 1452. See also Harman, 211 F.3d at 1179 (a reviewing court "properly may consider the additional materials because the Appeals Council addressed them in the context of denying [the claimant's] request for review").
Here, the Appeals Council did not examine or consider the additional evidence. Instead the Appeals Council tacitly rejected Dr. Beggs's memorandum as untimely and did not include it as part of the record under review. Because Tomson did not observe or seek to extend the deadline set by the SSA for submitting new evidence and the Appeals Counsel did not address the supplemental evidence of Dr. Beggs's opinion, the Court is not persuaded a remand for payment of benefits is warranted.
A decision whether to remand for further proceedings generally "turns upon the likely utility of such proceedings." Harman, 211 F.3d at 1179. In Harman, the court remanded the case for further proceedings, reasoning in part as follows:
While we properly may consider the additional evidence presented to the Appeals Council in determining whether the Commissioner's denial of benefits is supported by substantial evidence, it is another matter to hold on the basis of evidence that the ALJ has had no opportunity to evaluate that Appellant is entitled to benefits as a matter of law. The appropriate remedy in this situation is to remand this case to the ALJ; the ALJ may then consider, the Commissioner then may seek to rebut and the VE may answer questions with respect to the additional evidence.
Id. at 1180. See also Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996) (The Court may "direct an award of benefits where the record has been fully developed and where further administrative proceedings would serve no useful purpose").
This Court, exercising its discretion, holds this matter should be remanded for a further evidentiary hearing. The Court finds the record has not been fully developed in that the Commissioner failed to consider Dr. Beggs's opinion. In addition, Dr. Beggs's opinion must be clarified as to the date he thinks Tomson became "unable to work," the period Tomson was "unable to work," and the permanent or temporary status of Tomson's inability to work. See Regennitter v. Comissioner of Social Sec. Admin., 166 F.3d 1294, 1300 (1999) (when an examining physician's improperly rejected testimony was credited as true, remand for further proceedings was warranted to determine the date on which the claimant became disabled).
Further administrative proceedings will serve the useful purpose of allowing the ALJ to take into account Dr. Beggs's March 16, 1998, opinion as well as any supplemental evidence provided by Dr. Beggs. The ALJ will also be able to evaluate Dr. Beggs's opinion in light of evidence already in the record and any additional evidence that may be submitted at a supplementary hearing. The VE also may answer questions concerning the additional evidence, if necessary.
2. Additional Proceedings Relating to Step Five Are Necessary to Access the Effect of Fatigue on Tomson's Residual Functional Capacity and Ability to Work
Tomson asserts the Commissioner erred when he did not fully credit Tomson's testimony about her symptoms and impairments. She specifically contends her allegations and testimony concerning her experience of fatigue demonstrate she is able to work only a four-hour work day. When the Commissioner improperly rejects a claimant's testimony regarding her limitations, such testimony is credited as true on review as a matter of law. Lester, 81 F.3d at 834 (citing Varney v. Secretary of Health and Human Service, 859 F.2d 1396, 1401 (9th Cir. 1988) (Varney II)).
Relying on Social Security Ruling (SSR) 96-8, Tomson maintains her statements establish she is unable to work on a "regular and continuing basis" and, therefore, she is disabled. Accordingly, Tomson urges the Court to reverse the Commissioner's decision and remand this case for an award of benefits.
SSR 96-8p provides in relevant part: "RFC [residual functional capacity] is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." SSR 96-8p, 1996 WL 374184, at *1 (SSA July 2, 1996). At Step 5, "[a] `regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. at *2 (footnote omitted).
Tomson testified at the May 22, 1998, hearing that she suffers from "chronic fatigue." (Tr. 66). She also testified, "I just don't have any energy" and "I sleep a lot." (Tr. 67).
Furthermore, she stated "by noon I'm usually ready to lay down again" and "[s]ometimes I'll sleep a couple of hours, get up, go back and lay down about 2:00 or 3:00 and sleep again." Id. In written statements submitted to the ALJ, Tomson also commented that "twice a day I lay down and sleep," and "[e]ven if I've had a good night's sleep . . . after Noon I'm extremely fatigued." (Tr. 131).
Relying on written responses to a questionnaire completed by Tomson's daughter, the ALJ concluded "[d]espite the claimant's allegations of joint pain, fatigue, and depression, she has remained capable of performing a reasonable range of routine activities." (Tr. 31). The ALJ found, therefore, "[a]ny allegation by the claimant that she would be unable to perform sedentary work with additional limitations cannot be found fully credible." Id.
If the Commissioner finds a claimant is able to spend a substantial part of her day performing physical functions that are transferable to a work setting, that finding is sufficient to discredit a claimant's allegations. Morgan, 169 F.3d at 600 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Tomson acknowledges her daughter's written comments show Tomson "`performed household chores, watched television, did crossword puzzles, drove, shopped and read.'" Nevertheless, Tomson points out her daughter's written assessment actually reflects Tomson performed such activities on a limited and infrequent basis. Tomson alleges her daughter's written summary, taken as a whole, shows Tomson is unable to perform sedentary work on a regular and continuous basis.
The Commissioner maintains the ALJ properly rejected Tomson's testimony and allegations regarding her symptoms and impairments because evidence before the ALJ reveals Tomson's activities of daily living are within the normal range of unimpaired people. At the same time, the Commissioner concedes he erred in not providing legally sufficient reasons for rejecting the statements of Tomson's daughter concerning the limited and infrequent nature of Tomson's reported daily activities. The Commissioner requests this matter be remanded and the ALJ be instructed to consider the remarks of Tomson's daughter in full.
Viewing the record as a whole, and as the ALJ found, Tomson submitted medical evidence of underlying impairments consistent with her complaints. (Tr. 33). Additionally, the ALJ did not find that Tomson was malingering. Under such circumstances, the Commissioner's reasons for rejecting Tomson's testimony must be clear and convincing. Regennitter, 166 F.3d at 1296 (citing Lester, 81 F.3d at 834).
In evaluating residual functional capacity, the ALJ must "consider subjective symptoms such as fatigue and pain." Smolen, 80 F.3d at 1291 (citing SSR 88-13 and 20 C.F.R. § 404.1529(d)). The ALJ also must give full consideration to the testimony of family members regarding the way such impairments affect a claimant's ability to work. Smolen, 80 F.3d at 1288 (citing 20 U.S.C. § 404.1513(e)). An ALJ can reject information provided by lay witnesses only by giving legitimate, specific reasons germane to each witness whose testimony is rejected. Regennitter, 166 F.3d at 1298 (citation omitted). As the Commissioner acknowledges, "[i]mproperly rejected lay-witness testimony must be given full credit as true" on review. See Schneider v. Commissioner of Social Sec. Admin., 223 F.3d 968, 976 (9th Cir. 2000) (crediting lay witness evidence the ALJ rejected and remanding case for payment of benefits). See also Reddick, 157 F.3d at 728. In this instance, the ALJ did not provide clear and convincing reasons for rejecting Tomson's testimony about the disabling affects of her symptoms and impairments, including her experience of fatigue.
With one exception discussed below, the statements by Tomson's daughter describing her mother's restricted activity level do not constitute sufficient evidence to discredit Tomson's testimony about limitations on her ability to perform sedentary work on a regular and continuous basis. Other evidence relied upon and findings made by the ALJ also fall short of clear and convincing reasons to discount Tomson's statements. When compared to other summaries of Tomson's activity level cited by the ALJ, Tomson's October 1996 report of her daily activities to clinician Barbara Olson does not support the ALJ's finding it is highly probable that Tomson has a tendency to "over-state the functional effects of her impairments." (Tr. 31).
Furthermore, a note attributing a comment to Tomson that she was "working on cross stitch" in February 1998 does not sufficiently contradict her May 1998 testimony that she could no longer perform cross stitch. Id. The ALJ found Tomson's medical treatment to have been "largely successful" concerning her sarcoidosis, but she also determined Tomson's history of medical treatment was "appropriate to her impairments." Id. Such evidence does not constitute clear and convincing reasons to find Tomson's credibility diminished with respect to her reports of fatigue.
Crediting evidence and remanding for an award of benefits is appropriate when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.
Harman, 211 F.3d at 1178 (quoting with approval Smolen, 80 F.3d at 1292).
As noted above, the Commissioner failed to provide legally sufficient reasons in this case for rejecting Tomson's oral testimony and written statements concerning her symptoms and impairments, including her experience of fatigue. Additionally, the Commissioner agrees he erroneously failed to consider and did not give sufficient reasons for rejecting the complete written account by Tomson's daughter. There remains, however, at least one outstanding issue that must be resolved before a determination of disability can be made.
With respect to her experience of fatigue, Tomson reported she is required to nap two or more times daily for "4 hours." (Tr. 129). On the basis of that statement, Tomson argues she can only work a four-hour day and is unable to engage in regular and continuous work as defined in SSR 96-8p. Tomson argues any purported inconsistency between her accounts and her daughter's written statement is "imaginary and supported by no evidence." Tomson's daughter, however, reported that Tomson's daily naps last only "2 hours." (Tr. 167). The Court concludes the record has not been fully developed concerning the number of hours Tomson is required to nap and whether Tomson's consistent fatigue renders her disabled.
The Court concludes the Commissioner must resolve this inconsistency in the average number of hours per day Tomson must nap to combat fatigue before a determination of disability can be made. Tomson and her daughter must be permitted an opportunity to submit additional evidence clarifying the affect of fatigue on Tomson's ability to function. Further, the ALJ must fully consider testimony by Tomson and her daughter concerning Tomson's level of daily life activity.
Tomson also relies upon Kornock v. Harris to support her argument that the appropriate remedy in this case is to remand with an order for the immediate payment of benefits. 648 F.2d 525 (9th Cir. 1980). Kornock, however, is distinguishable. There the court noted a new administrative hearing would serve "no useful purpose" as the claimant was deceased and the ALJ would be "without benefit of [claimant's] further testimony." Id. at 527.
Once such additional evidence is provided, the ALJ must inquire of the VE whether there are a significant number of jobs in the national economy that Tomson can perform in light of the limitations on her functioning. The VE also must take into account that an individual's residual functional capacity refers to one's capacity to perform sustained work-related physical and mental activities in a work setting on a regular and continuing basis. See SSR 96-8p. Tomson is disabled if the VE concludes there are no such jobs Tomson can perform on an ongoing basis "8 hours a day, for 5 days a week" or on "an equivalent work schedule."
Tomson admits a claimant's documented activity level bears on a claimant's credibility when such activities are inconsistent with the claimant's alleged limitations. See Reddick, 157 F.3d at 722. Relying on Reddick, however, Tomson argues there is no need for further testimony by the VE and, therefore, this case should be remanded for the immediate payment of benefits.
In Reddick, the claimant was diagnosed with chronic fatigue syndrome (CFS) and sought judicial review of a denial of Social Security DI benefits. 157 F.3d at 719. The ALJ found the claimant satisfied the disability criteria at Steps One, Two and Three, but determined at Step Four the claimant could perform her past relevant work and was not disabled. Id. at 721. The central issues were whether the ALJ properly discounted testimony by the claimant, her treating doctor, and an examining doctor concerning her disability from fatigue. Id. at 719.
The Ninth Circuit, in Reddick, reversed the trial court's entry of summary judgment in the Commissioner's favor. Id. The court held the ALJ erred when he concluded the claimant had exaggerated her symptoms, when he failed to account for the effects of fatigue in assessing the claimant's residual functional capacity, and when he rejected the opinions of treating and examining physicians that the claimant was disabled. Id. at 722-23, 724-25, 726-27. Having concluded the ALJ erred in his determination at Step Four, the court then proceeded to consider whether at Step Five the evidence in the record showed the claimant was able to perform other work existing in significant numbers in the national economy. Id. at 728-29. The court noted it had held in prior cases that a remand for further proceedings was unnecessary when the record was fully developed. Id. at 728 (citations omitted). The court remanded the case with instructions that the ALJ award benefits. Id. at 730.
Tomson contends the Reddick court did not consider VE testimony relevant to a disability determination at Step Five before deciding to remand for payment of benefits. In fact, however, the court expressly held "[t]estimony of a vocational expert is required" and the Commissioner is not permitted to rely solely on Medical-Vocational Guidelines to match a claimant with appropriate work at Step Five because CFS results in non-exertional limitations. Id. at 729.
See 20 C.F.R. Part 404, Subpt. P, App. 2 § 200.00(b).
The court noted, in Reddick, "a vocational expert did testify about the nature of Claimant's limitations" at the claimant's hearing. Id. The court quoted the relevant section of the hearing transcript and noted the VE testified in part if the claimant "were to require just one day per week of rest, she would be unable to perform her past work or any other work." Id. and 729 n. 13. The court then determined, as "`sedentary work is the lowest classification'" under the regulations, a remand for additional proceedings "would serve no useful purpose." 157 F.3d at 729-30 (citation omitted). In Reddick, therefore, the VE testified that limitations in functional capacity due to fatigue would render the claimant unable to engage in any work.
In the present matter, however, there was no testimony by the VE that limitations in Tomson's functional capacity due to fatigue would render her disabled. As the Ninth Circuit recently summarized, "[i]n cases where the vocational expert has failed to address a claimant's limitations as established by improperly discredited evidence, we consistently have remanded for further proceedings rather than payment of benefits." Harman, 211 F.3d at 1180 (citation omitted).
The Court concludes there are sufficient unanswered questions in the record concerning the extent of fatigue experienced by Tomson and the disabling affect of such fatigue to warrant remanding the case for further administrative proceedings. As noted, following admission of further evidence from Tomson and her daughter regarding the effect of fatigue on Tomson's functional capacity, an opinion from the VE that includes consideration of this evidence is required to complete the record before a disability determination can be made.
3. On Remand The ALJ Must Address and Correct Other Deficiencies in the Record Identified by Tomson and the Commissioner
Tomson has raised several additional alleged errors that she contends require reversal of the ALJ's decision. The Court agrees such matters must be addressed and the record corrected on remand regarding such issues.
For instance, Tomson asserts, and the Commissioner concedes, the ALJ's determination of Tomson's residual functional capacity is also deficient because it failed to include the mental and physical limitations assessed by two state agency non-examining physicians. One such physician, a psychologist, concluded Tomson was moderately limited in certain mental activities. (Tr 133-34). A second state agency non-examining physician noted certain additional exertional restrictions. (Tr. 173-80). The Commissioner acknowledges the ALJ did not include these mental and exertional limitations in her hypothetical to the VE or in her assessment of Tomson's residual functional capacity. Accordingly, the Commissioner admits the ALJ's error requires reversal. On remand, the ALJ must attend to and cure such deficiencies. Also, the ALJ must explain the weight given to such opinions in her decision as required under SR 96-6p.
SSR 96-6p provides in pertinent part, "[ALJs] and the Appeals Council may not ignore . . . [medical and psychological consultants and physicians'] opinions and must explain the weight given to these opinions in their decisions." SSR 96-6p, 1996 WL 374180, at *1 (SSA July 2, 1996).
Tomson also argues the ALJ's vocational hypothetical was insufficient in that it did not contain the ALJ's own finding that Tomson experiences deficiencies of concentration, persistence, or pace that "often" result in a failure to complete tasks in a timely manner in work settings or elsewhere. (Tr. 38). The ALJ made such a finding on the Psychiatric Review Technique Form (PRTF) that was attached to the ALJ's decision. Id. The Commissioner concedes the ALJ, however, did not include mental limitations noted on the PRTF in her decision and her evaluation of Tomson's residual functional capacity is, therefore, deficient. In light of this reversible error the ALJ also must consider on remand Tomson's functional limitations of concentration, persistence, and pace and the degree of such limitations pursuant to 20 C.F.R. § 404.1520a(c)(1)-(4) and 416.920a(c)(1)-(4).
20 C.F.R. § 404.1520a and 416.920a pertain to "Evaluation of mental impairments."
Further, the parties agree the ALJ erred when she failed to obtain or to include in the record a Mental Residual Functional Capacity Questionnaire completed by an examining psychologist, Dr. Gregor, and failed to consider Dr. Gregor's Questionnaire before reaching a decision. Accordingly, on remand the ALJ must obtain this medical evidence and properly consider it when she assesses Tomson's residual functional capacity.
Finally, Tomson asserts the ALJ erred at Step Five when she accepted national data from the VE concerning two jobs that exist in significant numbers in the economy that the ALJ found Tomson could perform. Tomson states the ALJ violated SSR 83-14 because she did not include in her decision a statement of the incidence of other work available to Tomson in the region in which Tomson resides or in "several regions of the country." The Court agrees. On remand the ALJ must obtain testimony from the VE relating to Step Five that any other work Tomson may be found capable of performing is available in significant numbers nationally and regionally in satisfaction of SSR 83-14.
SSR 83-14, 1983 WL 31254 (SSA 1983). With respect to determinations of disability based on a combination of exertional and nonexertional impairments SSR 83-14 provides in relevant part:
There must be findings of fact and recitation of the evidence which supports each finding. . . . Whenever a vocational resource is used and an individual is found to be not disabled, the determination or decision will include (1) citations of examples of occupations/jobs the person can do functionally and vocationally and (2) a statement of the incidence of such work in the region in which the individual resides or in several regions of the country.
Id. at *6.
CONCLUSION
Based on the foregoing, the Commissioner's decision is REVERSED and Defendant's Motion to Remand (#14) this action for further administrative proceedings is GRANTED.
IT IS SO ORDERED.