Opinion
Civil No. 04cv2167 LAB (RBB).
January 19, 2006
Plaintiff Vernell Bursey seeks judicial review of Social Security Commissioner Jo Anne B. Barnhart's determination that she is not entitled to disability benefits. On June 22, 2005, Bursey filed her Motion for Summary Judgment [doc. no. 13] and Memorandum in Support of Motion [doc. no. 14] requesting reversal of Administrative Law Judge ("ALJ") David L. Wurzel's February 27, 2004, finding that she was not disabled. Plaintiff argues that the ALJ erred at step five of the sequential evaluation of her claim by: (1) basing his conclusion that Bursey could perform jobs that exist in substantial numbers in the national economy on incomplete hypothetical questions posed to the vocational expert and (2) improperly rejecting Bursey's subjective complaints. (Pl.'s Mem. 8-9.)
The decision became final on September 7, 2004, when the Social Security Administration ("SSA") Appeals Council denied Plaintiff's request for review. (Admin. R. at 5.) Bursey asks the Court to reverse the Commissioner's determination and remand her case for the payment of benefits or, in the alternative, to reverse the Commissioner's determination and remand the case to the SSA for further proceedings. (Pl.'s Mem. 12.)
On July 19, 2005, the Commissioner filed a Cross-Motion for Summary Judgment [doc. no. 15] and a Memorandum in Support of Cross-Motion and in Opposition to Plaintiff's Motion [doc. no. 16]. On August 16, 2005, the Court found the matter suitable for decision without oral argument and vacated the August 22, 2005, hearing [doc. no. 17]. See S.D. Cal. Civ. L.R. 7.1(d)(1).
I. BACKGROUND
Plaintiff was forty-seven years old at the time of the ALJ's decision. (Admin. R. at 13.) She is currently forty-nine. (See id. at 94.) Bursey has a tenth-grade education and past work experience providing in-home support services. (Id. at 13-14.) Plaintiff filed an application for Supplemental Security Income ("SSI") on November 14, 2001, alleging disability beginning either in March 1991 or on January 1, 1996, due to arthritis, depression, degenerative disc disease, joint pain, cervical spine strain, neck and back spasm, dysthymic disorder, chronic pain and stiffness, headaches, and lack of sleep, among other medical problems. (See id. at 93, 120.) Bursey had previously filed four different applications for disability benefits — the most recent of which was denied on January 18, 1995. (Id. at 12, 115.)
Plaintiff's current application for disability benefits was denied on February 11, 2002. (Id. at 67.) On March 1, 2002, Bursey filed a request for reconsideration, which was subsequently denied. (Id. at 71-72.) On October 1, 2002, Plaintiff filed a timely request for an administrative hearing. (Id. at 77.) Judge Wurzel conducted the hearing on Bursey's application on August 18, 2003. (Id. at 26.) Plaintiff was unrepresented at the administrative hearing. (Id. at 32.) John Kilcher, a vocational expert, testified regarding Bursey's ability to work. (Id. at 57-63, 88.)
On February 27, 2004, Judge Wurzel issued his decision denying Plaintiff's application for benefits. (Id. at 25.) Bursey requested review of the decision on April 29, 2004. (Id. at 8.) The Appeals Council denied Plaintiff's request for review on September 7, 2004. (Id. at 5.)
II. MEDICAL EVIDENCE
A. Plaintiff's Physical Impairments
Bursey's medical records begin with her primary care doctor, Francisco Gil, M.D. (Id. at 195-98.) On October 30, 2001, Plaintiff was working as a caretaker, and she was taking no medications other than Excedrin and Sinequan, an antidepressant. (Id. at 215, 224.)
At the request of the Department of Social Services ("DSS"), on January 17, 2002, Plaintiff received an orthopaedic evaluation from Dr. Thomas R. Dorsey at Seagate Medical Group. (Id. at 167-71.) Dr. Dorsey based his evaluation of Plaintiff on her complaints, his examination, and the available medical records. (Id. at 167, 171.)
Bursey's chief complaints to Dr. Dorsey were aches and pains in her neck, shoulders, elbows, wrists, hands, lower back, feet, knees, and hips. (Id. at 167.) Plaintiff stated that the pain worsened with lifting, bending, walking, standing, and sitting. (Id.) Bursey also complained of headaches and told Dr. Dorsey that she had been diagnosed three years prior with a herniated disc in her neck. (Id.) However, Plaintiff was undergoing no treatment of any kind in January 2002, nor was she taking any medication other than over-the-counter Excedrin. (Id.)
Dr. Dorsey examined Bursey's cervical spine and found no evidence of paravertebral spasm, but he noted that Plaintiff's range of motion in rotation was decreased. (Id. at 168.) The range of motion in Bursey's lumbar spine was decreased only on flexion. (Id. at 169.) Plaintiff also had limited range of motion of her shoulders and decreased sensation in the small finger, ring finger, and thumb of her left hand. (Id.) Dr. Dorsey concluded that Bursey had no impairment-related physical limitations, and her complaints were unsupported by evidence of bone, muscle, or joint pathology. (Id. at 170-71.)
On March 1, 2002, Plaintiff saw Dr. William T. Chapman for a neurological follow-up visit. (Id. at 228.) It is unclear when Bursey first saw Dr. Chapman; the doctor's notes for earlier visits are not in the record. At the follow-up appointment, Plaintiff complained of pain in her neck, shoulders, and back, as well as numbness and tingling in her hands, which increased with activity and decreased with rest. (Id.) Dr. Chapman found all aspects of Bursey's neurological functioning normal, but he planned to order an MRI of Plaintiff's cervical spine because of her complaints of extreme pain. (Id.) The doctor was able to rule out radiculopathy (a disorder of the spinal nerve roots), and the only medication he recommended was Excedrin. (Id.); Stedman's Medical Dictionary 1484 (Marjory Spraycar et al., eds., 26th ed. 1995).
On April 11, 2002, Bursey visited Dr. Matt Meunier at UCSD Medical Center regarding a mass on her right wrist that had been increasing in size for approximately a year. (Admin. R. at 259.) Bursey told Dr. Meunier she was taking Claritin (an allergy medication), Prevacid (a stomach acid blocker), Excedrin, Celebrex (an anti-inflammatory), and Zoloft (an antidepressant) at the time. (Id.); WebMD Health: Drugs and Herbs, Claritin Oral, http://www. webmd.com/drugs/mono-204-LORATADINE+-+ORAL.aspx? (last visited Nov. 16, 2005); WebMD Health: Drugs and Herbs, Prevacid, http://www. webmd.com/drugs/mono-9143-LANSOPRAZOLE+DELAYED+RELEASE+-+ORAL.aspx? (last visited Nov. 16, 2005); WebMD Health: Drugs and Herbs, Celebrex, http://www.webmd.com/drugs/drug-16849-Celebrex+Oral.aspx? (last visited Nov. 16, 2005); WebMD Health: Drugs and Herbs, Zoloft, http://www.webmd.com/drugs/mono-8095-SERTRALINE+-+ORAL. aspx? (last visited Nov. 16, 2005).
Plaintiff underwent surgery to excise the mass on her right wrist, which Dr. Meunier suspected was a ganglion cyst, on April 16, 2002. (Admin. R. at 260, 262.) Bursey tolerated the surgery well, and there were no complications. (Id. at 262, 266.) Dr. Meunier prescribed Tylenol with codeine and told Plaintiff to keep her arm elevated with ice on it. (Id. at 260.)
On June 6, 2002, Plaintiff returned to UCSD for another postoperative follow-up appointment. (Id. at 253-56.) She complained to Dr. Daniel T. Robertson of continued pain in her wrist, as well as scarring and occasional clicking. (Id. at 253.) Dr. Robertson recommended keeping the scarred area out of the sun, continuing normal activities as tolerated, and returning in eight weeks for another appointment. (Id.)
Bursey returned to Dr. Gil on July 1, 2002, and was experiencing headaches and a possible herniated disc, so he referred her to neurologist Dr. Chapman. (Id. at 219.) On July 3, 2002, Dr. Chapman saw Plaintiff for her complaints of neck, back, wrist, shoulder, and hip pain. (Id. at 229.) The doctor noted that Bursey reported a decrease in pain with Celebrex. (Id.) She still complained of headaches, however, so Dr. Chapman suggested an MRI of Plaintiff's left cervical spine and referred Bursey to a neurosurgeon. (Id.)
On August 7, 2002, Plaintiff saw a doctor in UCSD Medical Center's Neurology Department for general aches and pains of the neck and right arm, as well as headaches. (Id. at 250-52.) Bursey told the doctor that she had been having these problems for the past ten years, and they had worsened during the last year. (Id. at 250.) Plaintiff also said her pain increased with activity, and she had a weak grip. (Id.) She said Celebrex, Excedrin, and relaxation helped some with the pain. (Id.)
Bursey told the doctor that, in addition to Celebrex and Excedrin, she was taking Sinequan (an antidepressant), Zoloft, Albuterol (an inhaler used to treat bronchitis), Claritin, and Nasacort (a nasal steroid). (Id.); WebMD Health: Drugs and Herbs, Albuterol, http://www.webmd.com/drugs/drug-5476-Albuterol+ Inhalation.aspx? (last visited Nov. 16, 2005); WebMD Health: Drugs and Herbs, Nasacort Nasal, http://www.webmd.com/drugs/drug-8561-Nasacort+Nasal.aspx? (last visited Nov. 16, 2005).
The physician at UCSD noted that Bursey had already been seen by Dr. Chapman, but Dr. Gil referred her to UCSD Neurology for a second opinion. (Admin. R. at 250.) Every aspect of the neurologic exam on August 7, 2002, was normal, except for results of abnormal motor strength and inconsistent sensory responses. (Id. at 251.) The doctor reviewed an April 17, 2002, MRI performed at Paradise Valley Hospital, which showed a mild disc bulge in Bursey's cervical spine. (Id. at 252.) The doctor's opinion was that the clinical exam showed strong evidence of myelopathy (a disorder of the spinal cord) and was consistent with cervical radiculopathy (a disorder of the spinal nerve roots). (Id.); Stedman's Medical Dictionary, supra, at 1166, 1484. The doctor referred Plaintiff to neurosurgery for evaluation of treatment options. (Admin. R. at 252.)
On August 22, 2002, Plaintiff saw Michael M. Seto, D.O., for a follow-up on her right wrist problems. (Id. at 291.) At the time, Bursey was still complaining of pain along the incision area. (Id.) She also mentioned stiffness, soreness, tingling, and shooting pain in the fingers of her right hand. (Id.) Plaintiff stated that she was taking Celebrex, Zoloft, Excedrin, Claritin, and Prevacid. (Id.) On physical examination, Dr. Seto found that Bursey had Tinel's signs in her right elbow and wrist (tingling felt with percussion over an injured nerve, indicating a partial lesion or early regeneration in the nerve). (Id.);Stedman's Medical Dictionary, supra, at 1619. The doctor also noted that Plaintiff had nerve subluxation (an incomplete dislocation between joint surfaces) when her right elbow was flexed. (Admin. R. at 291); Stedman's Medical Dictionary, supra, at 1693. However, Bursey's incision seemed to be healing well, and her sense of touch was intact. (Admin. R. at 291.) Dr. Seto thought the pain and tingling in Plaintiff's right elbow and wrist could be very early signs of cubital tunnel or carpal tunnel syndrome. (Id. at 292.) He recommended continuing with Celebrex and providing Bursey with splints for her right arm. (Id.)
Bursey saw a hand therapist the same day. (Id. at 290.) The therapist, Darlene Jacobsen, found mild hypertrophy (increase in bulk) of Plaintiff's right wrist, as well as mild adherence (sticking) and sensitivity to touch. (Id.); Stedman's Medical Dictionary, supra, at 28, 832. Jacobsen questioned Plaintiff's complaints of persistent pain in her right wrist. (Admin. R. at 290.) She mentioned pathophysiology, an "alteration in function as distinguished from structural defects[,]" as a possibility. (Id.); Stedman's Medical Dictionary, supra, at 1313. Jacobsen did not think a follow-up appointment was necessary. (Admin. R. at 290.)
On September 3, 2002, Bursey returned to the UCSD Neurosurgery Department complaining of headaches (tension type, coming from her neck), low back pain, and pain that traveled down both of her arms to her thumbs and small fingers and prevented her from sleeping. (Id. at 289.) The doctor diagnosed Plaintiff with Spurling's TTP (thrombotic thrombocytopenic purpura — "a rapidly fatal or occasionally protracted disease with varied symptoms . . ., including signs of central nervous system involvement . . .") of the cervical spine. (Id.); Neil M. Davis, Medical Abbreviations: 10,000 Conveniences at the Expense of Communications and Safety 217 (7th ed. 1995); Stedman's Medical Dictionary, supra, at 1470. The neurologist's opinion was that it would be reasonable to operate on Bursey's anterior cervical spine, but Plaintiff wanted more conservative treatment. (Admin. R. at 289); see Medical Abbreviations, supra, at 16, 207 (showing that "Sx" is shorthand for surgery). Bursey was prescribed Flexeril (a muscle relaxant) and a neck pillow and told to return in six weeks. (Admin. R. at 289); WebMD Health: Drugs and Herbs, Flexeril Oral, http://www. webmd.com/drugs/drug-11372-Flexeril+Oral.aspx? (last visited Nov. 16, 2005).
Bursey returned to UCSD's neurology and neurosurgery departments on November 5 and 6, 2002. (Id.) To the neurosurgery team, Plaintiff reported that she had had a headache for the past two days. (Id. at 287.) She tried to fill the prescription for Flexeril given to her on September 3, 2002, but it was not covered by her insurance. (Id.) Bursey still did not want to undergo surgery for her neck pain, although she rated it as a "10: Worst Pain Possible." (Id.) The neurologist found that Plaintiff had decreased range of motion in all directions due to muscle soreness. (Id.) The doctor prescribed Methocarbamol (a muscle relaxant) and told Bursey to return if her symptoms worsened or if she developed new symptoms. (Id.); WebMD Health: Drugs and Herbs, Methocarbamol Oral, http://www.webmd.com/drugs/drug-8677-Methocarbamol+Oral.aspx? (last visited Nov. 16, 2005).
The next day, November 6, 2002, Plaintiff saw the neurologist at UCSD. (Admin. R. at 285.) She reiterated that she did not want surgery, although she was having occasional spasms in her neck and found it "`difficult to describe [the] pain in [her] arms.'" (Id.) Bursey had no new complaints, however, and she stated that the Methocarbamol gave her some relief. (Id.) She was scheduled to return in six months, on May 7, 2003. (Id. at 286.)
On March 19, 2003, Dr. Dorsey completed a second orthopaedic consultation for the DSS. (Id. at 271-78.) When he examined Plaintiff's cervical spine, Dr. Dorsey found no evidence of paravertebral spasm, but he did notice limited range of movement. (Id. at 272.) In Bursey's lumbar spine, the doctor saw no evidence of splinting or spasm, although there was limited range of motion on flexion. (Id.) Dr. Dorsey noted a decreased range of motion in both of Plaintiff's shoulders and decreased sensation in all of the fingers of her left hand. (Id. at 273.) He concluded that Bursey had no physical limitations except mild restrictions on climbing, balancing, kneeling, crouching, crawling, and stooping, which she could perform on a frequent basis. (Id. at 275-78.) Dr. Dorsey found no evidence of significant orthopaedic pathology. (Id. at 274.)
B. Bursey's Mental Impairments
On February 1, 2002, Plaintiff saw psychiatrist Dr. Mounir Soliman at Seagate Medical Group at the request of the DSS. (Id. at 162.) Dr. Soliman based his evaluation on Bursey's reports of symptoms and on the records provided to him by DSS. (Id.) Plaintiff reported that her chief complaints were bipolar disorder and "a medical problem." (Id.) She stated that she had a history of periods of depression, sometimes lasting for weeks, followed by periods of hypomania, when she felt extremely happy and had more energy and a greater ability to concentrate. (Id.)
Bursey told Dr. Soliman that her psychiatric and medical problems prevented her from working full-time, but she was able to work part-time. (Id. at 162-63.) Plaintiff also admitted that she was able to cook, clean, shop, drive, and take care of personal hygiene and financial responsibilities. (Id. at 163-64.)
Dr. Soliman found Bursey pleasant, cooperative, alert, and oriented to person, place, and time. (Id. at 164.) He also noted that Plaintiff's abstract thinking was normal, and her insight was good. (Id.) However, Bursey's mood was depressed, and signs and symptoms pointed to decreased sleep and energy. (Id.) Dr. Soliman diagnosed Plaintiff with bipolar disorder, back pain, and headaches. (Id.) He estimated Bursey's Global Assessment of Functioning ("GAF") score at sixty-eight, which corresponds with "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . ., but generally functioning pretty well. . . ." (Id. at 165); Diagnostic and Statistical Manual of Mental Disorders: Fourth Edition Text Revision ("DSM-IV-TR") 34 (4th ed. 2000). Dr. Soliman opined that Plaintiff would be "able to withstand the stress and pressures associated with an eight-hour workday. . . ." (Admin. R. at 165.) The doctor gave Bursey a fair prognosis and wrote that "her psychiatric condition is considered treatable and manageable as an outpatient." (Id.)
A week later, on February 8, 2002, Dr. Ed O'Malley, a board certified psychiatrist, filled out a Psychiatric Review Technique Form at the SSA's request. (Id. at 173-87.) Dr. O'Malley found that Bursey had bipolar disorder, but her impairment was not severe. (Id. at 173, 176, 185, 187.) The doctor's opinion was that Plaintiff had only mild restrictions in activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace. (Id. at 183.) He concluded that Bursey experienced no extended episodes of decompensation. (Id.) According to Dr. O'Malley, Plaintiff's mental status was intact, and she could perform complex tasks. (Id. at 185.)
Bursey began seeing Rolan Kimbrough, a Marriage and Family Therapist, at San Diego County Mental Health on March 11, 2002. (Id. at 232-40.) Plaintiff told Kimbrough she was depressed, could barely eat, could not concentrate, and was having problems with county medical services. (Id. at 233.) She stated that she had come to San Diego Mental Health because of worsening depression symptoms and an inability to function and care for her daughter, who had sickle cell anemia. (Id. at 238.) Bursey reported that she had a prior history of treatment for depression, anxiety, and anorexia. (Id. at 233.) She said medications she had previously taken included Sinequan, Elavil (an antidepressant), and Vistaril (an antihistamine), and her current medications were Sinequan and Claritin. (Id. at 233, 235); WebMD Health: Drugs and Herbs, Elavil, http://www.webmd.com/drugs/drug-1807-Elavil+Oral.aspx? (last visited Nov. 16, 2005).
Plaintiff described her medical problems as being disabling, but Kimbrough made no diagnosis of disability. (Admin. R. at 234.) Kimbrough suggested Bursey could benefit from counseling and a medication evaluation. (Id. at 236.) He diagnosed her with major depression and estimated her GAF at fifty-five, which indicates "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." (Id.);DSM-IV-TR, supra, at 34. The therapist noted that "she could be considered an appropriate candidate for further clinic sessions[,]" depending on the outcome of her MSE (Mental Status Examination), whether she continued to demonstrate motivation for treatment, and whether she could adhere to the rules and guidelines of the Southeast Mental Health Center. (Admin. R. at 238); Medical Abbreviations, supra, at 140.
The following week, Bursey returned to Kimbrough for an individual counseling session. (Admin. R. at 241.) She described herself as feeling slightly more depressed than she had felt during the previous visit. (Id.) Plaintiff also complained of decreased appetite, poor concentration, and forgetfulness. (Id.)
On March 19, 2002, Plaintiff completed a Mental Status Examination with Dr. Neil Kline. (Id.) He diagnosed her with recurrent major depression and prescribed a low dose of Zoloft (because Bursey insisted on a low dose). (Id.) Plaintiff explained she had benefitted from the low dose of Sinequan she had previously taken, but she did not want to resume taking Sinequan because it was "too sedating." (Id.)
Bursey returned for a follow-up appointment with Dr. Kline on April 9, 2002. (Id. at 242.) He noted a modest response to the low dose of Zoloft and an absence of side effects. (Id.) Dr. Kline increased the Zoloft to fifty milligrams (from twenty-five) and indicated that in the future he might increase the dose to seventy-five milligrams for greater efficacy. (Id.)
On April 24, 2002, Plaintiff failed to show up for a scheduled counseling session with Roland Kimbrough. (Id.) Bursey did attend her May 7, 2002, appointment with Dr. Kline, however. (Id.) Plaintiff told Dr. Kline that her daughter was very ill with sickle cell anemia; this was a major stressor for Bursey, although she said the Zoloft was helping to calm her down. (Id.) Plaintiff's dosage of Zoloft had increased to seventy-five milligrams per day by the time she returned to see Dr. Kline on May 7. (Id.) The doctor prescribed 100 milligrams of Zoloft daily, to be increased to 125 milligrams after two weeks if necessary. (Id.)
On June 4, 2002, Plaintiff missed a medication management appointment with Dr. Kline and did not meet with him until July 2, 2002. (Id. at 243.) On that date, Bursey requested an increase in her Zoloft dosage to help her deal with the stress of her daughter's illness and to make sleeping easier. (Id.) Dr. Kline prescribed 125 milligrams per day (up from 100 milligrams daily), plus twenty-five milligrams of Sinequan at bedtime. (Id.)
On March 19, 2003, Dr. Soliman performed his second and final complete psychiatric evaluation and medical source statement regarding Plaintiff's mental condition. (Id. at 279-84.) He based his assessment on Bursey's complaints and the records he received from the DSS. (Id. at 279.) Plaintiff's chief complaints were depression and anxiety. (Id.) She said she developed depression after a series of car accidents that resulted in back and neck pain, and her depression became worse after the birth of her daughter. (Id.)
Bursey told Dr. Soliman that her depression and anxiety had previously been treated with Valium, Doxepin (a tricyclic antidepressant), and Zoloft, but she was no longer taking any prescription medication for the condition because her Medi-Cal coverage had expired in November 2002. (Id. at 280); WebMD Health: Drugs and Herbs, Doxepin Oral, http://www.webmd.com/drugs/drug-8647-Doxepin+HCl+Oral.aspx? (last visited Dec. 13, 2005). Plaintiff reported feeling sad, depressed, hopeless, helpless, and unable to enjoy life. (Admin. R. at 280.) She also said she felt worthless because her physical condition was affecting her ability to care for her son, and she was unable to concentrate on daily activities. (Id. at 280.) Bursey claimed her medical and psychiatric conditions made it impossible for her to work. (Id.) However, she was able to cook, clean, shop, run errands, care for her personal hygiene and financial responsibilities, drive a car, and socialize with family, friends, and neighbors. (Id. at 281.)
In his examination of Plaintiff, Dr. Soliman found her mental status normal and healthy, except he noted weak long-term memory and a depressed mood with signs and symptoms of decreased energy and concentration. (Id.) Dr. Soliman diagnosed Bursey with major depression of the mild-to-moderate range and estimated her GAF at sixty-eight. (Id. at 165, 282.) His opinion was that Plaintiff's mental condition would allow her to withstand the stress of an eight-hour workday because she was able to understand, carry out, and remember simple and complex instructions, and she could interact with coworkers, supervisors, and the general public. (Id. at 282.) Dr. Soliman gave a fair prognosis and stated that Bursey would benefit from restarting antidepressant medication and receiving appropriate outpatient psychiatric treatment. (Id.)
III. THE ADMINISTRATIVE HEARING
A. Plaintiff's Testimony
Plaintiff testified at the administrative hearing on August 18, 2003. (Id. at 28-56.) She was not represented by an attorney. (Id. at 28.) Bursey testified that she dropped out of school after the tenth grade because she was pregnant, and she never returned. (Id. at 33.) Nor did Plaintiff ever obtain a GED, although she took classes at a community college to study for it. (Id. at 34-35.) Bursey also had some on-the-job training in the food service industry but no other education or training. (Id. at 33.) Plaintiff told the ALJ that she last worked in 1999, but the record indicated Bursey had last worked in 2000. (Id. at 34-35.) The ALJ also pointed out that Plaintiff did not start working until 1996, when she was about forty years old. (Id. at 35-36.) Bursey testified that she did not work during the first two decades of her adult life because she was busy taking GED classes and raising her daughter, and she "had a lot of problems with depression during that time." (Id.)
Plaintiff said her first job was as a provider of in-home support services for her mother. (Id. at 37-38.) From 1996 to 1998 or 1999, the County of San Diego paid Bursey to shop, cook, do laundry, and clean for her mother. (Id.) Plaintiff's second job was as a childcare provider for a mother receiving public assistance. (Id. at 39.) Bursey did this part-time in 1999 and 2000. (Id. at 39-40.) Plaintiff's third and last job was as a part-time home health aide for her daughter in 2001. (Id. at 40.) Bursey's oldest daughter is borderline schizophrenic, so Plaintiff assisted her with shopping, cooking, cleaning, washing, billpaying, and planning. (Id. at 41.) Bursey stopped taking care of her daughter in the fall of 2001 because "it was putting a toll on [her] body." (Id. at 42.) She has not worked since. (Id.) Judge Wurzel classified Plaintiff's work as a home support services provider for her mother as her only past relevant work because Bursey's other two jobs were part-time. (Id. at 43.)
At the time of the administrative hearing, Plaintiff lived with her twenty-one-year-old daughter, who had sickle cell anemia and received disability benefits. (Id.) They lived in a two-story house, and Bursey's bedroom was located on the second floor. (Id. at 44.) Plaintiff testified that the last time she drove a car was in 2002. (Id. at 55.)
When asked by the ALJ why she can no longer work for a living, Plaintiff responded that she has "serious problems" with her neck, lower back, and legs. (Id.) Bursey's pain is caused by arthritis and a herniated disc in her neck. (Id.) She also complained of depression, weakness, headaches, and muscle spasms. (Id. at 46.)
Plaintiff's medications include the antidepressants Sinequan and Zoloft, as well as Excedrin, all of which she took on a daily basis until her Medi-Cal and San Diego County mental health insurance coverage expired in early 2003. (Id. at 47-49.)
Bursey testified that she received Medi-Cal coverage until her younger daughter turned twenty-one in November of 2002. (Id. at 53.) Then, she received mental health treatment for a few months from San Diego County Mental Health Services until all of her financial assistance expired, and she did not attempt to renew it. (Id. at 53-54.)
B. Vocational Expert's Testimony
Dr. John P. Kilcher, a certified vocational expert, rehabilitation counselor, and disability management specialist, also testified at the August 18, 2003, administrative hearing. (Id. at 56-63, 88-89.) Dr. Kilcher classified Plaintiff's past work as a home attendant, generally performed at the medium exertional level, but performed closer to a light level of exertion by Bursey. (Id. at 57-58.) He testified that the home attendant position is a semiskilled job, with a specific vocational preparation ("SVP") of 3. (Id. at 58.)
The ALJ posed two hypothetical questions to Dr. Kilcher to determine what types of jobs would be available to Plaintiff depending on her specific limitations. (Id. at 58-59, 61.) The first hypothetical was a person of the same age, education, and work history as Bursey, with the ability to: (1) lift and carry ten pounds frequently and twenty pounds occasionally; (2) sit, stand, or walk for six hours in an eight-hour workday; and (3) push or pull to operate machinery only rarely. (Id. at 58.) This hypothetical also included: (1) no climbing of ladders, ropes, or scaffolds except in emergency; (2) no reaching or working above shoulder height with her upper extremities; (3) no concentrated exposure to chemicals, dust, fumes, or gases; and (4) no frequent head or neck movements or prolonged positioning of the neck, although occasionally performing these activities would be acceptable. (Id.)
Dr. Kilcher testified that under this first hypothetical ("A"), Plaintiff would not be able to perform her past work. (Id. at 59.) He also stated that Bursey does not have any transferable semi-skills. (Id.) Nevertheless, Dr. Kilcher believed that, even with the physical limitations of hypothetical A, Plaintiff could perform other full-time work that exists in substantial numbers in the national economy. (Id. at 59-61.) As examples of other work, Dr. Kilcher suggested jobs as an assembler, an inserting machine operator, or a hand packer. (Id. at 60-61.) These jobs are all classified as light, unskilled work, with an SVP of 2. (Id.)
In August 2003, there were 4,100 assembler jobs available in the San Diego County region and 850,000 available nationally. (Id. at 60.) There were 400 inserting machine operator jobs available in the San Diego region and 320,000 available nationally. (Id.) At the same time, 2,500 hand packer jobs were available in San Diego, and 550,000 were available nationally. (Id. at 61.)
Judge Wurzel then presented Dr. Kilcher with a second hypothetical scenario, hypothetical B. (Id.) The ALJ retained all physical limitations from hypothetical A and added "a further mental limitation to unskilled work. . . ." (Id.) Dr. Kilcher testified that, even with the mental limitation, Bursey could still perform the jobs available to her under hypothetical A. (Id.)
C. Plaintiff's Objections to the Vocational Expert's Testimony
Bursey questioned to the vocational expert's testimony regarding other work she could perform. (Id. at 61-63.) Plaintiff argued she could not work as an assembler or a hand packer because of carpal tunnel and arthritis in her hands and joints. (Id. at 62-63.) Bursey also said she could not perform the inserting machine operator job because it requires standing, and "that's an issue" for her. (Id. at 63.)
IV. THE ALJ'S DECISION
In his decision, the ALJ recounted Plaintiff's medical, work, and educational history, as well as the evidence presented at the administrative hearing, and applied the five-step sequential evaluation process prescribed by federal regulations to the facts in this case. (Id. at 12-23.) Judge Wurzel then made the following findings:
1. The claimant was first fully and currently insured for disability insurance benefits beginning October 1, 2000, and remained so insured only through December 31, 2003, not thereafter.
2. The claimant has not engaged in substantial gainful activity since October 9, 2001.
3. The claimant has the following medically determinable impairments that in combination are considered "severe" under the Social Security Act and regulations: Degenerative disc disease, cervical spine; status post excision of ganglion cyst, right wrist, April 2002; arthropathy, both shoulders; and major depressive disorder.
4. The claimant's medically determinable impairments, alone or in combination, do not meet or equal any listing in Appendix 1, Subpart P, Regulations No. 4.
5. Subjective allegations about the claimant's impairments and about the effect of resulting functional limitations on ability to work are not fully credible for the reasons given in the body of the decision.
6. The claimant retains the residual functional capacity to perform work activity at the light exertional level, with the following nonexertional limitations: never climbing ladders, ropes or scaffolds except in an emergency; no reaching or working at or above shoulder height with either upper extremity; avoiding concentrated exposure to chemicals, dust, fumes and gases; no frequent head or neck movements; no prolonged positioning of the neck; and mentally limited to unskilled work.
7. The claimant is unable to perform the requirements of her past relevant work as a home attendant, either as actually done or as generally done in the national economy. This finding is supported by the testimony of a vocational expert.
8. Born May 5, 1956, the claimant was 44 years old on her date first insured, and is 47 years old at the time of this decision; for purposes of evaluation under the medical-vocational guidelines, she is considered a "younger individual."
9. The claimant has a limited, tenth-grade education, but is literate and able to communicate in English.
10. The claimant has a semi-skilled work background, but has no skills or semi-skills transferable to other work within the limitations of her residual functional capacity. This finding is supported by the testimony of a vocational expert.
11. Given the claimant's medical-vocational profile, if her residual functional capacity were the full range of light work, medical-vocational guideline 201.19 would direct a finding of "not disabled." Since, the claimant's residual functional capacity for light work is reduced by nonexertional limitations, however, medical-vocational guideline 201.19 does not direct any disposition of this case, but must instead be used as a framework for decision.
12. Using medical-vocational guideline 201.19 as a framework for decision, I find that there are jobs that the claimant is able to perform and sustain on a regular and continuing basis that exist in significant numbers in the national economy; for example: Assembler (DOT# 706.684-022, light, unskilled at SVP-2), with 4,100 jobs locally and 850,000 jobs nationally; office machine operator (DOT# 208.685-018, light at SVP-2), with 400 jobs locally and 320,000 jobs nationally; and hand packager (DOT# 920.687-018, light, unskilled at SVP-2), with 2,500 jobs locally and 550,000 jobs nationally. This finding is supported by the testimony of a vocational expert.
13. The claimant has not been under a "disability," as defined in the Social Security Act, at any time from her date first insured of October 1, 2000, through the date of this decision. (Id. at 23-25.) Based on all of the above, the ALJ concluded that Bursey is not eligible for Disability Insurance Benefits or Supplemental Security Income. (Id. at 25.)
V. STANDARD OF REVIEW
To qualify for disability benefits under the Social Security Act, an applicant must show that: (1) He or she suffers from a medically determinable impairment that can be expected to last for a continuous period of twelve months or more or result in death, and (2) the impairment renders the applicant incapable of performing the work that he or she previously performed or any other substantially gainful employment that exists in the national economy. See 42 U.S.C.A. § 423(d)(1)(A), (2)(A) (West Supp. 2005). An applicant must meet both requirements to be classified as "disabled." Id.Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3) (West Supp. 2005). This Court should affirm the Commissioner's decision "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003) (citing Pagter v. Massanari, 250 F.3d 1255, 1258 (9th Cir. 2001)).
Substantial evidence is what "`a reasonable person might accept as adequate to support [the ALJ's] conclusion,'" considering the record as a whole. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). It means "`more than a mere scintilla but less than a preponderance'" of the evidence.Howard ex. rel. Wolff v. Barnhart, 341 F.3d at 1011 (quotingSandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). The Court considers the record as a whole, including the evidence that supports and the evidence that detracts from the ALJ's decision. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citing Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997);Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990)).
To determine whether a claimant is "disabled," the Social Security regulations use a five-step process outlined in 20 C.F.R. § 404.1520. If an applicant is found to be "disabled" or "not disabled" at any step, there is no need to proceed further.Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (citations omitted). Although the ALJ must assist the applicant in developing a record, the applicant bears the burden of proof during the first four steps. Tackett v. Apfel, 180 F.3d 1094, 1098 n. 3 (9th Cir. 1999). If the fifth step is reached, however, the burden shifts to the Commissioner. Id. at 1098. The steps for evaluating a claim are:
Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is "not disabled" within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant's case cannot be resolved at step one and the evaluation proceeds to step two.
Step 2. Is the claimant's impairment severe? If not, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant's impairment is severe, then the claimant's case cannot be resolved at step two and the evaluation proceeds to step three.
Step 3. Does the impairment "meet or equal" one of a list of specific impairments described in the regulations? If so, the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant's impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant's case cannot be resolved at step three and the evaluation proceeds to step four.
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is "not disabled" and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at step four and the evaluation proceeds to the fifth and final step.
Step 5. Is the claimant able to do any other work? If not, then the claimant is "disabled" and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the burden of showing that there is other work in "significant numbers" in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is "not disabled" and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is "disabled" and therefore entitled to disability benefits.Id. at 1098-99 (footnotes and citations omitted).
Section 405(g) permits this Court to enter a judgment affirming, modifying, or reversing the Commissioner's decision. 42 U.S.C. § 405(g). The matter may also be remanded to the Social Security Administrator for further proceedings. Id.
VI. DISCUSSION
A. The ALJ Improperly Found Plaintiff Able to Do Work That Exists in Substantial Numbers in the National Economy.The ALJ's analysis of Bursey's case was not resolved through the first four steps of the five-step process laid out inTackett. (See Admin. R. at 13-14, 17-18, 21-22.) At step five, Judge Wurzel concluded that Plaintiff was able to do work other than her previous occupation and that there were a significant number of jobs in the national economy she could perform. (Id. at 23.)
Bursey argues that "[t]he ALJ's finding that [Plaintiff] could do the jobs identified by the vocational [expert] witness is based on legal error and not supported by substantial evidence." (Pl.'s Mem. 8.) Essentially, Bursey asserts that Judge Wurzel posed incomplete hypothetical questions to the vocational expert and that those questions did not properly address Plaintiff's mental limitations related to her severe major depressive disorder. (Id.) She complains that the ALJ failed to include Plaintiff's "mild-to-moderate difficulties in maintaining concentration, persistence, or pace" in the hypotheticals posed to Dr. Kilcher. (Id.) Instead, Judge Wurzel added "a further mental limitation to unskilled work." (Id.; Admin. R. at 61.)
In his discussion of residual functional capacity, the ALJ found that Bursey is "mentally limited to unskilled work." (Admin. R. at 18.) Plaintiff alleges that a limitation to unskilled work is not a mental limitation. (Pl.'s Mem. 8.) Rather, "unskilled work" refers to the amount of time it takes a typical worker to learn how to perform at the average level in a job with an SVP of 1 or 2. (Id. at 8-9 (citing U.S. Dep't of Labor, Dictionary of Occupational Titles app. C at 1009 (rev. 4th ed. 1991)).)
Bursey is correct. The Dictionary of Occupational Titles ("DOT") is routinely used to determine the skill level of a past job and whether the claimant can perform other work in the national economy. Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); see also Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997) (citing Terry, 903 F.2d at 1276) (stating DOT is generally used to determine whether appropriate jobs exist for the claimant). The DOT's job categories and supplementary "selected characteristics" are used to classify jobs as "skilled, semiskilled, and unskilled." Terry, 903 F.2d at 1276.
The DOT lists a specific vocational preparation (SVP) time for each described occupation. Using the skill level definitions in 20 CFR 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the DOT.Kuleszo v. Barnhart, 232 F. Supp. 2d 44, 54 n. 8 (W.D.N.Y. 2002) (citation omitted).
In this case, the vocational expert testified that Plaintiff's home attendant position had an SVP of 3, semiskilled, and was performed at a light exertional level. (Admin. R. at 57-58.) Dr. Kilcher testified that Bursey had no transferable job skills, but even with a "mental limitation to unskilled work," there were still a significant number of jobs in the national economy that she could perform. (Id. at 59, 61.) Judge Wurzel accepted the expert's testimony and concluded that, because Plaintiff was "able to perform and sustain work in jobs existing in significant numbers in the national economy, [she was] not under a `disability'. . . ." (Id. at 23.) Presumably, the ALJ concluded that Bursey's mild-to-moderate difficulties in maintaining concentration, persistence, and pace allowed her to perform unskilled work but not skilled or semiskilled work.
Plaintiff argues that because Judge Wurzel failed to include her mental limitations in the hypothetical posed to the vocational expert, Dr. Kilcher's testimony has no evidentiary value and cannot support the ALJ's finding at step five. (Pl.'s Mem. 9.) In the hypotheticals posed to Dr. Kilcher, Judge Wurzel did not include any mental restrictions or limitations other than a "mental limitation to unskilled work." (See Admin. R. at 61.)
"If a vocational expert's hypothetical does not reflect all the claimant's limitations, then the `expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.'" Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (quoting DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (citations omitted)); see also Thomas, 278 F.3d at 956 (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)) (considering vocational expert's testimony unreliable if it does not "include `all of the claimant's functional limitations, both physical and mental' supported by the record"). Because the ALJ concluded that Bursey's depressive disorder limited her ability to maintain concentration, persistence, and pace (Admin. R. at 18), he should have included those restrictions in the hypotheticals posed to Dr. Kilcher.
The Commissioner argues that Judge Wurzel's second hypothetical included all limitations he considered part of her residual functional capacity. (Def.'s Mem. 7.) Defendant claims "the ALJ did not find that [Plaintiff's] difficulties [with concentration, persistence, and pace] significantly limit Plaintiff's residual functional capacity." (Id. n. 3.) According to the Commissioner, because Bursey's problems maintaining concentration, persistence, and pace were "minimal functional limitation[s]," they need not have been specifically included in the hypothetical questions posed to the vocational expert. (Id.) The Commissioner argues that "a limitation to unskilled work is a mental limitation" because "the regulations define skill requirements in terms of mental abilities" (e.g., "`[u]nskilled work . . . needs little or no judgment. . . .'"). (Id. n. 4 (quoting Pl.'s Mem. 9 (citing 20 C.F.R. § 404.1568 (2005))).)
However, the Ninth Circuit requires all limitations supported by the record evidence to be included in the hypothetical posed to the vocational expert if the ALJ is to rely on the expert's answer in determining whether the claimant can perform work that exists in substantial numbers in the national economy.Matthews, 10 F.3d at 681; Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (placing emphasis on the word "all"). InMatthews, the court distinguished DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991), where the ALJ's hypothetical failed to include the claimant's mental impairment that may have proved a significant limitation, from Matthews's situation. InMatthews, the omitted limitation was irrelevant to whether the claimant could perform his past work. Matthews, 10 F.3d at 681.
In this case, although Bursey's mild-to-moderate difficulties in maintaining concentration, persistence, or pace may not be as significant in limiting her work activities as DeLorme's mental impairments, they are relevant to her ability to do the jobs identified by the vocational expert — assembler, office machine operator, and hand packer. Compare DeLorme, 924 F.2d at 843-44 (showing DeLorme had been hospitalized for severe depression), with (Admin. R. at 18, 60-61); see also Ramirez v. Barnhart, 372 F.3d 546, 555 (3d Cir. 2004) (concluding ALJ's hypothetical was insufficient because the addition of a pace limitation may have changed the vocational expert's answer).
Without specifically considering Bursey's concentration, persistence, and pace limitations, but after limiting her to unskilled work, Dr. Kilcher concluded that Plaintiff could perform jobs that exist in substantial numbers in the national economy. (Admin. R. at 60-61.) Evidence of limitations on concentration, persistence, and pace may be incorporated into a hypothetical without specifically restating the difficulties.See Thomas, 278 F.3d at 956 (finding hypothetical sufficient when it specifically incorporated medical expert's testimony regarding concentration, persistence, and pace limitations);Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (holding that hypothetical regarding someone capable of simple, repetitive, routine tasks adequately captured claimant's difficulties with concentration, persistence, and pace). However, the hypothetical must sufficiently address the claimant's specific limitations. A restriction to one- and two-step tasks or a limitation to simple jobs will generally not adequately represent a claimant's concentration, persistence, and pace limitations. Ramirez, 372 F.3d at 554-55; Newton, 92 F.3d 688, 695 (8th Cir. 1996).
In Newton v. Chater, 92 F.3d at 695, the court noted that "[a] vocational expert cannot be assumed to remember all of a claimant's impairments from the record." The ALJ had found that the claimant "often" had difficulties with concentration, persistence, or pace, but the problems were not included in the hypothetical to the vocational expert. In later testimony, the expert stated that concentration and persistence problems may manifest themselves on the job on a daily basis "`regardless of . . . what the job require[s] from a . . . skill standpoint.'"Id. It was unclear whether the expert's original response would have been different if the hypothetical included all of Newton's functional limitations. On remand, any hypothetical was to include limitations of concentration, persistence, or pace. Id.
Judge Wurzel's hypothetical is akin to the hypotheticals inNewton and Ramirez and easily distinguishable from the more detailed limitations in Thomas and Howard. The ALJ limited Bursey to unskilled work without telling the vocational expert which specific mental restrictions necessitated that limited skill level. (See Admin. R. at 61.) Because Dr. Kilcher's opinion was not based on all of Plaintiff's limitations, it has no evidentiary value. Matthews, 10 F.3d at 681. Thus, Judge Wurzel's finding that Bursey is able to perform work that exists in significant numbers in the national economy is not supported by substantial evidence.
Because the ALJ found that, based on the medical record, mild-to-moderate restrictions of Plaintiff's ability to maintain concentration, persistence, and pace exist (Admin. R. at 18), he was required to include them in his hypotheticals. Furthermore, there is no evidence — expert or vocational — to support the speculative finding that Bursey's affective disorder and her resulting mental restrictions still permit her to perform work at an unskilled level, or any level at all. Because Judge Wurzel's decision to limit Plaintiff to unskilled work provides no rationale, it cannot be subjected to meaningful review. See Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 125 (3d Cir. 2000) (stating that "ALJ may not make speculative conclusions without any supporting evidence").
This problem is exacerbated here, because Bursey was not represented by counsel at the administrative hearing. "The ALJ has a duty to develop the record in Social Security cases."DeLorme v. Sullivan, 924 F.2d at 849. The duty is "especially important" in cases involving mental impairments. Id. In addition, when the claimant is unrepresented, "the ALJ must be especially diligent in exploring for all the relevant facts."Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
Defendant alternatively argues that the ALJ's finding at step five is independently supported by his reliance on Medical-Vocational Guideline 201.19. (Def.'s Mem. 7.) However, the Commissioner may only make use of the Medical-Vocational Guidelines (or "grids") at step five of the sequential evaluation process "when the grids `completely and accurately represent a claimant's limitations.'" Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1101). "`[A] claimant must be able to perform the full range of jobs in a given category' in order for the Commissioner to appropriately rely on the grids." Id. at 827-28 (quoting Tackett, 180 F.3d at 1101).
If the claimant suffers from severe nonexertional limitations not contemplated by the grids, the Medical-Vocational Guidelines are not applicable, and the ALJ is required to hear testimony from a vocational expert to establish at step five whether the claimant is disabled. Tackett, 180 F.3d at 1102 (citations omitted). Judge Wurzel recognized this when he stated that "[s]ince [Bursey's] capacity for light work is reduced by nonexertional limitations, medical-vocational guideline 201.19 does not direct any disposition of this case. . . ." (Admin. R. at 22.) Nevertheless, the ALJ referenced Medical-Vocational Guideline 201.19 "as a framework for decision." (Id.)
This limited use of the grids was appropriate. The Ninth Circuit has held that "[w]hen they do not adequately take into account claimant's abilities and limitations, the Grids are to be used only as a framework, and a vocational expert must be consulted." Thomas, 278 F.3d at 960 (citing Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000)).
The ALJ found that Plaintiff has nonexertional limitations outside the Medical-Vocational Guidelines. (Admin. R. at 22.) Therefore, he could not rely solely on the grids in making his decision, and he was required to consult a vocational expert.Id.; Bruton, 268 F.3d at 828; Tackett, 180 F.3d at 1102. Judge Wurzel's reliance on Medical-Vocational Guideline 201.19 cannot serve as an independent basis for his finding at step five that Plaintiff is not disabled.
At step five of the disability analysis, the Commissioner carries the burden of showing that Bursey can perform other work that exists in significant numbers in the national economy.Tacket, 180 F.3d at 1099. Here, the Commissioner's showing falls short. Because the ALJ was required to rely on the testimony of a vocational expert and his hypotheticals to the vocational expert were incomplete, the expert's testimony has no evidentiary value, and a remand is appropriate. See Bruton, 268 F.3d at 828-29; DeLorme, 924 F.2d at 850-51. B. The ALJ's Rejection of Bursey's Subjective Complaints Was Proper and Is Supported by Substantial Evidence in the Record.
Plaintiff's second argument for reversal of Judge Wurzel's decision is that his rejection of her subjective complaints "is based on legal error and is not supported by substantial evidence." (Pl.'s Mem. 9.) The ALJ "conclude[d] that [Bursey's] allegations of debilitating pain and disabling functional limitations [were] not fully credible." (Admin. R. at 21.) In addition to finding Plaintiff's demeanor at the administrative hearing poor, Judge Wurzel gave fifteen other reasons for rejecting Bursey's subjective complaints. (Id. at 20-21.)
An ALJ may reject a claimant's subjective pain or symptom testimony entirely if the claimant fails to produce any objective medical evidence of an impairment that could reasonably be expected to produce the claimed symptoms or pain. Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). The severity of pain need not be proved by objective medical evidence; the medical evidence must only show that some degree of the claimed symptom could result from the impairment. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (citing Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1994); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). The level of pain experienced from a given physical impairment varies from person to person. Id. (citingFair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). The severity of the pain is an individual, subjective phenomenon that no social security claimant is required to prove through objective medical evidence. Id. n. 2.
If the claimant produces objective medical evidence of impairments, and the ALJ concludes the claimant is not malingering, the ALJ may not reject the claimant's subjective pain or symptom testimony without "`specific findings stating clear and convincing reasons for doing so.'" Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (quotingSmolen, 80 F.3d at 1284). "Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be `clear and convincing.'" Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted).
Plaintiff presented objective medical evidence of degenerative disc disease of the cervical spine, a right wrist condition postganglion cyst removal, arthropathy of the shoulders, and a major depressive disorder, all of which Judge Wurzel found to be severe under the Social Security Act. (Admin. R. at 23, 169, 236, 241, 252, 260, 262, 266, 273, 282, 289.) These impairments could expected to produce some degree of pain and functional limitation.
Although the ALJ found that Bursey's "demeanor as a witness at hearing was poor," he did not conclude that Plaintiff was malingering. (See id. at 21.) Therefore, Judge Wurzel was required to give specific, clear and convincing reasons supported by the record evidence for rejecting Plaintiff's subjective complaints of pain and disabling symptoms. See Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999) (finding reasons given by ALJ not sufficient when not supported by substantial evidence in the record).
The ALJ must relate the evidence specifically to those complaints of pain he is rejecting. Smolen, 80 F.3d at 1284 (requiring ALJ to "state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion"); see also Varney v. Sec'y of Health Human Servs. (Varney I), 846 F.2d 581, 584 (9th Cir. 1988) (holding that ALJ's failure to "isolate particular complaints of pain and discuss the evidence suggesting that those complaints [we]re not credible. . . . [was] improper as a matter of law"), modified on reh'g, Varney v. Sec'y of Health Human Servs. (Varney II), 859 F.2d 1396, 1401 (9th Cir. 1988). The Court will consider each of Judge Wurzel's reasons for rejecting Bursey's complaints.
1. Reasons Not Supported by Substantial Record Evidence
The ALJ's first, second, fourth, ninth, eleventh, and fifteenth reasons are not supported by the record and cannot serve as justifications for rejection of Plaintiff's subjective complaints. Judge Wurzel first noted that Plaintiff did "not exhibit any atrophy, weight change or difficulty moving." (Admin. R. at 20.) Dr. Dorsey measured Bursey's limbs, which indicated no atrophy. (Id. at 168, 272.) The ALJ impermissibly drew his own conclusion about the symptoms that should flow from Plaintiff's impairments. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (noting that ALJ should not substitute his medical judgment for that of a doctor). However, from December 10, 2001, through March 19, 2003, Plaintiff's weight climbed from 130 pounds to 136 pounds, then to 142 pounds. (Id. at 119, 168, 172.) Additionally, Bursey did have difficulty moving, and this is confirmed by Dr. Dorsey's findings of limited range of motion in Bursey's spine and upper body. (Id. at 168-69, 272-73.) The ALJ's first reason for not crediting Bursey's subjective complaints is not supported by substantial evidence.
Second, the ALJ stated that Plaintiff "does not have any neurological deficits." (Id. at 20.) Medical records indicate "strong evidence" of myelopathy, a disorder of the spinal cord, and cervical radiculopathy, a disorder of the spinal nerve roots. (Id. at 252); Stedman's Medical Dictionary, supra, at 1166, 1484. Neurosurgery was recommended. (Admin. R. at 285, 287.) Judge Wurzel did not reject or discredit this evidence. (See id. at 16, 19.)
The ALJ's fourth and eleventh reasons are that "on January 17, 2002, Dr. Dorsey diagnosed [Bursey] with multiple orthopedic complaints without evidence of significant bone, muscle, or joint pathology; and opined that [she] had no impairment-related physical limitations . . . [,]" and "on March 19, 2003, Dr. Dorsey diagnosed the claimant with multiple somatic complaints, without evidence of significant orthopedic pathology, and assessed only mild postural limitations. . . ." (Id. at 20-21.) Plaintiff argues that Judge Wurzel improperly relied on Dr. Dorsey's opinion because Dr. Dorsey did not review Bursey's medical records, including the MRI performed on April 17, 2002. (Pl.'s Mem. 11.)
The April 17, 2002, MRI revealed left parasagittal C5-6 disc herniation with effects on Bursey's spinal cord, a mass effect on the left C6 nerve root, and a mild disc bulge at C6-7. (Admin. R. at 252.) At the time of Dr. Dorsey's first evaluation of Bursey, the MRI had not yet been performed, and there were no other significant records in Plaintiff's disability file. Nevertheless, because Bursey later developed evidence of significant bone and joint pathology (degenerative disc disease, ganglion cyst, and arthropathy), Dr. Dorsey's January 17, 2002, opinion cannot serve as a clear and convincing reason for rejecting Plaintiff's subjective complaints.
Furthermore, Dr. Dorsey relied only on Bursey's reported medical history and symptoms in forming his opinion. (Id. at 271.) Dr. Dorsey not have a copy of the MRI and incorrectly stated that "there is no radiography of the cervical spine" in Plaintiff's medical records. (Id. at 19.)
When determining the weight to give a physician's opinion, the SSA generally considers the consistency of the opinion with the record as a whole, whether the physician's opinion is in his or her area of specialty, and any other factors that tend to support or contradict the opinion (such as "the extent to which [the physician] is familiar with the other information in [the claimant's] case record"). 20 C.F.R. § 404.1527(d) (3)-(6) (2005). Dr. Dorsey's opinion should not have been given great weight because it was not consistent with UCSD medical records, and the doctor was not familiar with the other records.
As his ninth reason for discrediting Bursey's allegations, the ALJ relied on an April 16, 2002, medical assessment showing "good results" after the ganglion cyst excision surgery on Plaintiff's right wrist. (Admin. R. at 21.) This statement is not supported by the medical records. While Dr. Meunier stated on the day of the surgery that Plaintiff "tolerated the procedure well[, and t]here were no complications[,]" Bursey continued to complain of catching, pain, clicking, and scarring of her right wrist for several weeks after the operation. (Id. at 254-55, 262, 287, 290-94.) The ALJ's ninth listed reason for rejecting Plaintiff's complaints of wrist pain is not sufficient to discredit her testimony.
Finally, as his fifteenth reason for finding Bursey's subjective claims were not credible, the ALJ concluded that Plaintiff's activities of daily living (washing dishes, dusting, shopping, occasional cooking, making her bed, cleaning, doing laundry, watching television, reading newspapers, driving, taking care of her personal hygiene, and leaving the house six days per week for three to four hours at a time) were inconsistent with her complaints. (Id. at 21.) "With respect to the claimant's daily activities, the ALJ may reject a claimant's symptom testimony if the claimant is able to spend a substantial part of her day performing household chores or other activities that are transferable to a work setting." Smolen, 80 F.3d at 1284 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). However, "many home activities may not be easily transferable to a work environment where it might be impossible to rest periodically or take medication." Id. (citing Fair v. Bowen, 885 F.2d at 603).
The evidence on which Judge Wurzel relied in concluding that Bursey engaged in a wide range of daily activities was an undated Daily Activities Questionnaire Plaintiff filled out sometime after November 14, 2001, when she filed her application for benefits. (Admin. R. at 20-21, 138-43.) The daily activities listed by the ALJ are also contradicted by the description in Bursey's Work Activity Report of December 8, 2001, of her only physical limitation being an inability to lift or reach for objects over her head. (Id. at 136.) In the written statement from Bursey, made on February 28, 2002, as part of her Reconsideration Disability Report, she stated that she "can't keep up with [her] daily chores," and on September 26, 2002, Plaintiff claimed that she is "unable to do [her] daily chorse [sic]." (Id. at 144, 146, 149, 154-55.)
Judge Wurzel noted the inconsistencies in Bursey's descriptions of her daily activities, but in spite of indications of a deteriorating condition, the ALJ determined that the undated statement was the most credible. (Id. at 19-20.) "The ALJ is responsible for determining credibility and resolving conflicts in medical testimony and ambiguities." Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098). Inconsistencies may provide an additional reason for finding the individual's claims of disabling functional limitations and excess pain less credible. Light, 119 F.3d at 792. However, the undated questionnaire is insufficient evidence to support this last justification for rejecting Plaintiff's subjective complaints.
2. Clear and Convincing Reasons Supported by the Record
In spite of the shortcomings described above, Judge Wurzel gave many clear and convincing reasons for discrediting Bursey's pain allegations. The third reason was that Plaintiff "does not have an impairment that interferes with her ability to sit, stand or walk." (Id. at 20.) This is a clear and convincing reason to reject Bursey's testimony that she is unable to work. The conclusion is also supported by the record because no doctor opined that Plaintiff is limited in her sitting, standing, or walking abilities. Additionally, after examining Bursey, Dr. Dorsey believed she generally had no physical limitations, and specifically, he found no effect on her abilities to stand, walk, or sit. (Id. at 171, 275-76.)
The ALJ's fifth and twelfth reasons reference Dr. Soliman's February 1, 2002, and March 19, 2003, findings that Plaintiff had a GAF score of sixty-eight and could handle the stresses of working full-time at both simple and complex jobs without mental limitations. (Id. at 20-21.) A GAF of sixty-eight corresponds to some mild symptoms or difficulty functioning, but it means that the individual is generally performing fairly well.DSM-IV-TR, supra, at 34. Dr. Soliman's opinion directly contradicts Bursey's allegation that she is unable to work. Plaintiff's other mental health records are generally consistent with Dr. Soliman's opinion. (See Admin. R. at 183, 185, 233-44.) Therefore, this is a clear and convincing reason for rejecting Bursey's allegation that her depression prevents her from working.
The ALJ's sixth reason was that the only pain medication prescribed for Plaintiff on March 1, 2002, after a normal neurological examination, was Excedrin. (Id. at 20.) Evidence that nonprescription medication reduced a claimant's pain is a clear and convincing reason for rejecting excess pain testimony.Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998).
Judge Wurzel's seventh, tenth, and thirteenth reasons were that Plaintiff received only conservative treatment for her impairments. (Id. at 21.) Conservative treatment often suggests a lower level of pain and functional limitation than that which the claimant reports. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995).
The ALJ also found that Bursey received conservative mental health treatment at San Diego County Mental Health for four months. (Admin. R. at 21.) The conservative nature of the treatment is a clear and convincing reason for discrediting her allegations.See Johnson, 60 F.3d at 1434. Plaintiff's mental health treatment lasted several months until her medical benefit coverage through San Diego County ("County") expired. (Admin. R. at 53-54.) Bursey could have applied for reinstatement of her County mental health benefits, but she chose not to do so because she was in the process of moving. (Id. at 54.) A claimant's decision not to pursue treatment may also constitute a clear and convincing reason for rejecting her subjective symptom testimony.Smolen, 80 F.3d at 1284 (permitting ALJ to consider an "inadequately explained failure to seek treatment" in finding claimant's testimony less credible).
Judge Wurzel further noted that treatment of Bursey's neck pain has been conservative. (Admin. R. at 21.) Surgery was recommended, but Plaintiff opted to proceed with more conservative treatment. (Id. at 285, 287, 289.) There is no explanation in the record regarding why Bursey declined surgery. (See id.) Plaintiff's unexplained failure to undergo surgery for her neck pain, as well as conservative rather than aggressive treatment, constitute clear and convincing reasons to discredit her subjective symptom testimony. See Smolen, 80 F.3d at 1284; Johnson, 60 F.3d at 1434.
In his eighth reason, Judge Wurzel stated that "no treating or examining physician has opined that [Bursey] is totally and permanently disabled." (Admin. R. at 21.) The Ninth Circuit has agreed that where "[n] one of the doctors who examined [the claimant] expressed the opinion that he was totally disabled" or that he could not work, the ALJ had a clear and convincing reason to reject the claimants's subjective pain testimony. See Matthews v. Shalala, 10 F.3d at 680.
The ALJ stated in his fourteenth reason that Plaintiff had no prescription medication for pain or mental illness at the time of the administrative hearing. (Admin. R. at 21.) The absence of prescription pain medication in August 2003 cannot serve as a clear and convincing reason for rejecting Bursey's testimony because Plaintiff's Medi-Cal insurance coverage expired in November 2002. (Id. at 48); see Smolen, 80 F.3d at 1284 (holding that because claimant had no insurance and could not afford treatment, the fact that she was not taking medication was not a clear and convincing reason for discrediting her testimony). However, as noted earlier, Plaintiff had the ability to reinstate her mental health benefits at San Diego County Mental Health Services, but she failed to do so. (See Admin. R. at 54.) Bursey's inadequately explained failure to reinstate her benefits and obtain psychotropic medication for her depressive disorder is a clear and convincing reason to reject her subjective allegations regarding that impairment. See id.
Although not all of the reasons Judge Wurzel gave for discrediting Bursey's subjective "allegations of debilitating pain and disabling functional limitations" satisfy the clear and convincing standard, a majority of the significant reasons set forth in the ALJ's decision are clear and convincing and supported by the record evidence. Therefore, Judge Wurzel's rejection of Plaintiff's subjective complaints was proper. C. This Matter Should Be Remanded for Further Proceedings.
Remand for an award of benefits is appropriate if the record is clear that there are no "outstanding issues that must be resolved before a proper disability determination can be made." Vertigan v. Halter, 260 F.3d 1044, 1053 (9th Cir. 2001) (quoting Varney II, 859 F.2d at 1401). Here, however, there is an issue that remains to be resolved. In order to find at step five of the sequential evaluation process that Bursey is not disabled, a vocational expert must be asked a hypothetical question that incorporates all of Plaintiff's limitations, including her mental difficulties regarding concentration, persistence, and pace.
VII. CONCLUSION
For the reasons set forth above, Plaintiff's Motion for Summary Judgment should be GRANTED IN PART AND DENIED IN PART; Defendant's Cross-Motion for Summary Judgment should be DENIED. This matter should be remanded to the Administrative Law Judge for further proceedings consistent with this Report and Recommendation.
This Report and Recommendation will be submitted to the United States District Court judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b) (1). Any party may file written objections with the Court and serve a copy on all parties on or before February 6, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed on or before February 17, 2006. The parties are advised that failure to file objections within the specified time may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.