Opinion
CASE NO. 2:15-CV-01708-TSZ-DWC
07-26-2016
SUZANNE CASIANO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT Noting Date: August 12, 2016
The District Court has referred this action, filed pursuant to 42 U.S.C. § 405(g), to United States Magistrate Judge David W. Christel. Plaintiff seeks judicial review of the denial of Plaintiff's application for Disability Insurance Benefits ("DIB").
The Court concludes the Administrative Law Judge ("ALJ") erred by failing to properly evaluate the opinions of one examining physician and two state agency medical consultants. Therefore, the undersigned recommends the entry of an Order reversing the ALJ's decision, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings.
PROCEDURAL & FACTUAL HISTORY
On October 23, 2012, Plaintiff filed an application for DIB. See Dkt. 9, Administrative Record ("AR") 12, 203, 205, 207. Plaintiff alleges she became disabled on January 10, 2009, due to a failed L5-S1 fusion, rheumatoid arthritis, osteoarthritis, and other physical and mental conditions. AR 228, 232. Plaintiff's application was denied upon initial administrative review and on reconsideration. See AR 78, 104. A hearing was held before an ALJ on May 6, 2014, at which Plaintiff, represented by counsel, appeared and testified. See AR 31.
On June 20, 2014 the ALJ issued his decision, finding Plaintiff was not disabled within the meaning of Sections 216(i) and 223(d) of the Social Security Act. AR 24. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on September 3, 2015, making that decision the final decision of the Commissioner of Social Security (the "Commissioner"). See AR 1, 20 C.F.R. § 404.981, § 416.1481. On October 29, 2015, Plaintiff filed a Complaint seeking judicial review of the Commissioner's final decision. Dkt. 1.
Plaintiff argues the denial of benefits should be reversed and remanded for payment of benefits or, in the alternative, for further proceedings, because the ALJ: (1) erred in rejecting the opinions of several medical professionals; (2) erred in evaluating Plaintiff's credibility; and (3) improperly found that Plaintiff could perform past relevant work or, alternatively, other work that exists in significant numbers in the economy. Dkt. 11, pp. 2-19.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits only if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)).
DISCUSSION
I. Whether the ALJ Properly Evaluated the Medical Opinion Evidence.
A. Standard
The ALJ has the responsibility to determine credibility and resolve ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988). Where the medical evidence in the record is not conclusive, "questions of credibility and resolution of conflicts" are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 942 (9th Cir. 1982). Determining whether or not inconsistencies in the medical evidence "are material (or are in fact inconsistencies at all) and whether certain factors are relevant to discount" the opinions of medical experts "falls within this responsibility." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999).
The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician or psychologist. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). However, "[i]n order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record." Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (citing Lester, 81 F.3d at 831). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick, 157 F.3d, at 725 (citing Magallanes, 881 F.2d at 751). In addition, the ALJ must explain why the ALJ's own interpretations, rather than those of the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22). The ALJ "may not reject 'significant probative evidence' without explanation." Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). The "ALJ's written decision must state reasons for disregarding [such] evidence." Flores, 49 F.3d at 571.
B. Application of Standard
1. Raymond West, M.D.
Dr. West examined Plaintiff on September 12, 2011. AR 408. During the evaluation, Plaintiff described a history of a fracture of L3, L4, and L5 and associated low back surgery. AR 408. Plaintiff described lower lumbar pain radiating bilaterally to both legs, ranging from 6 to 10 on the pain scale. AR 409. Plaintiff also described left-hand osteoarthritis which has impaired her ability to use her left hand. AR 409. On physical examination, Dr. West noted Plaintiff favored her right side when sitting in a chair and on the examination table. AR 410. Dr. West also noted Plaintiff exhibited difficulties performing a range of diagnostic exercises, including walking heel-to-toe, standing on one foot, standing on toes, squatting and back bending. AR 411. Specifically, Plaintiff demonstrated "10% of normal" squatting, reduced range of back bending, and slow pace with apparent pain. AR 411. Plaintiff had positive bilateral straight leg raise tests, poor left-hand grip, and was unable to jump and demonstrate shoulder joint range of motion. AR 411-12. At several points, Plaintiff cried during examination. AR 411-12.
Dr. West diagnosed Plaintiff with: painful left shoulder, status post injury; painful back, status post injury; painful right thumb, etiology uncertain; painful right hand and wrist, etiology uncertain; history of connective tissue disorder, exact nature uncertain; insomnia; and depression. AR 412. As a result of these impairments, Dr. West opined Plaintiff would be able to sit for up to four hours in an eight-hour day, provided she was in a comfortable chair and could move about for short periods. AR 413. Dr. West further opined Plaintiff would be able to lift 15 pounds across a room occasionally, lift 10-12 pounds less frequently from room to room, would be able to grasp and hold small light objects on an infrequent basis, and should not squat, kneel, crawl, climb, push, or pull, except in emergencies. AR 413. Finally, Dr. West opined Plaintiff would be able to stand no more than 20 minutes and walk no more than a mile at a time, and could stand or walk for no more than three to four hours in an eight hour work day. AR 412. However, in discussing Plaintiff's standing and walking limitations, Dr. West indicated "if imaging studies become available, this opinion may require qualification." AR 412.
The ALJ gave little weight to Dr. West's opinion for the following three reasons:
[1][Dr. West's opinion is] based on the claimant's self-reports and [2] [is] not consistent with the medical findings in the record as a whole. As noted above, the claimant's alleged limitations are not credible. [3] Dr. West notes that his opinion of the claimant's physical limitations may change if imaging studies become available. ([AR 412]). On January 20, 2014, magnetic resonance imaging showed no significant findings of the low back to account for the claimant's complaints of constant daily back pain. ([AR 591]).AR 21 (numbering added). Plaintiff argues these were not specific and legitimate reasons for the ALJ to give little weight to Dr. West's opinion, and the Court agrees.
First, an ALJ may discount a physician's opinion "if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommaseti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (quoting Morgan, 169 F.3d at 602). However, this is distinguishable from a situation where the doctor provides his or her own observations in support of the opinion. See Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1199-1200 (9th Cir. 2008) ("an ALJ does not provide clear and convincing reasons for rejecting an examining physician's opinion by questioning the credibility of the patient's complaints where the doctor does not discredit those complaints and supports his ultimate opinion with his own observations"); see also Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). "When an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion." Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here, Dr. West documented Plaintiff's subjective history and experience of pain; however, Dr. West also conducted a physical examination, where he noted positive straight leg raise testing, reduced ability to squat, and reduced left-hand grip strength. AR 410-12. There is no indication the ALJ relied "more heavily" on Plaintiff's self reports than on his own physical examination findings when assessing Plaintiff's limitations. See Ghanim, 763 F.3d at 1162. Indeed, many of Dr. West's opined limitations are, in fact, inconsistent with Plaintiff's subjective reports during the examination. Compare AR 409 (Plaintiff reports she is unable to bend or squat) with AR 413 (Dr. West found Plaintiff was able to bend occasionally). Thus, the ALJ's finding is not supported by substantial evidence.
Second, the ALJ's finding that Dr. West's opinion was inconsistent with the medical findings in the record as a whole is a bare, conclusory statement offered without support in the record. In order to reject the opinion of a treating or examining physician, an ALJ must do more than state his or her conclusions; he or she must set forth their own interpretations and explain why they, rather than the doctors', are correct. Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)). See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). See also, e.g., McAllister v. Sullivan, 888 F.2d 599, 602-03 (9th Cir. 1989) (finding similar reasoning for rejecting a treating physician's opinion was "broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed"). To simply state Dr. West's opinion is inconsistent with the medical findings in the record as a whole "does not achieve the level of specificity our prior cases have required[.]" Embrey, 849 F.2d at 421-22. Moreover, other medical findings in the record not discussed by the ALJ actually support Dr. West's opinion. For example, numerous records document positive straight leg raise tests, tenderness to palpitation in her low back, and difficulty moving. See AR 435, 439, 480, 489-90, 501, 506, 534, 542, 598. Plaintiff's medical records also document crepitus in her thumb, reduced range of motion in her left wrist, tenderness throughout her left hand, and reduced muscle strength in her left arm. See AR 380, 390, 394, 396, 404, 406, 453, 471, 501, 539. This is precisely the sort of record support the ALJ claims Dr. West's opinion lacks.
Third, the ALJ indicated "Dr. West notes that his opinion of the claimant's physical limitations may change if imaging studies become available." AR 21. The ALJ then cites a subsequent MRI scan showing "no significant findings of the low back to account for the claimant's complaints of constant daily back pain" to conclude Dr. West's opinion should be afforded little weight. AR 21. But, this finding is unsupported by substantial evidence. Significantly, the ALJ does not actually cite to an MRI report, but instead cites to a SOAP note from Michael Curtin, D.C. which briefly mentions an MRI report. AR 21, 591. The note indicates the MRI report does not contain significant findings to support Plaintiff's subjective complaints of pain. But, Dr. West opined to standing and walking limitations based on more than Plaintiff's subjective complaints of pain. Dr. West relied on other objective evidence, such as positive straight leg raise tests, tachycardia, and the presence of a surgical scar on Plaintiff's lumbar spine. AR 412. The SOAP note, in short, does not undermine the objective evidence supporting Dr. West's standing and walking limitations. In any event, even if the ALJ properly discounted Dr. West's standing and walking limitations based on Dr. West's indication that these limitations "may require qualification," Dr. West did not similarly qualify his opined sitting, lifting, carrying, postural, and manipulative limitations. See AR 412-13.
SOAP is an acronym for "Subjective, Objective, Assessment, and Plan." Balla v. Idaho State Bd. of Correction, 119 F.Supp.3d 1271, 1279 (D. Id. 2015). SOAP notes track clinical progress in a patient. See Marsh v. Colvin, 792 F.3d 1170, 1171 (9th Cir. 2015).
Because the ALJ did not offer a specific and legitimate reason, supported by substantial evidence, for giving Dr. West's opinion little weight, the ALJ erred. Further, the ALJ's RFC finding includes less restrictive standing, sitting, and lifting limitations than those opined to by Dr. West. Compare AR 17 with AR 412-13. Thus, the error is not "inconsequential to the ultimate nondisability determination," but is harmful error requiring remand. Molina v. Astrue 674 F.3d 1104, 1117 (9th Cir. 2012).
2. Sorin Rhone, M.D.
Dr. Rhone examined Plaintiff on February 21, 2013. AR 500. During Dr. Rhone's evaluation, Plaintiff relayed a history including a fractured first vertebra due to a motor vehicle accident, AC joint separation surgical repair in 2004, a L4-5 Fusion in 2008, and an open reduction of a fractured wrist. AR 500. On examination, Dr. Rhone documented blood pressure of 160/100, reduced left arm strength and reduced range of motion in her wrist, left knee, and spine. AR 501. Dr. Rhone also observed flattening of Plaintiff's lumbosacral lordosis. AR 501. Dr. Rhone diagnosed Plaintiff with status-post fusion of L4-5, arterial hypertension, bronchial asthma, polyarthritic pain with recurrent arthralgia involving major joints and persistent arthralgia in the lower back, and osteoarthritis. As a result of these conditions, Dr. Rhone opined Plaintiff had "some limitations with her left hand at the present time because of trouble with her wrist." AR 502. Dr. Rhone further opined Plaintiff could occasionally sit, stand, and walk short distances within the confines of an apartment or an office, but Plaintiff could never climb, twist, bend, stoop, squat, kneel, crawl, reach and work above shoulders. AR 502. Finally, Dr. Rhone opined Plaintiff could seldom handle 10 pounds, lift, carry, push, and pull by using her right hand. AR 502.
The ALJ discussed Dr. Rhone's opinion in the same section as Dr. West, and gave Dr. Rhone's opinion little weight for two of the same reasons:
[1][Dr. Rhone's opinion is] based on the claimant's self-reports and [2] [is] not consistent with the medical findings in the record as a whole. As noted above, the claimant's alleged limitations are not credible.AR 21 (numbering added). The ALJ also gave a third reason unique to Dr. Rhone:
[3] Dr. Rhone reports that, among other things, the claimant could never reach ([AR 502]). Yet, the claimant reaches in her daily activities, which include cooking, driving, and providing care for her three children ([AR 417]). In December 2010, the claimant was noted to lift her children constantly ([AR 393]).AR 21 (numbering added).
As with Dr. West, the ALJ's first two reasons for giving Dr. Rhone's opinion less weight are not specific and legitimate reasons supported by substantial evidence. Dr. Rhone conducted a review of Plaintiff's medical records and performed a physical examination. AR 500-01. During his examination, Dr. Rhone documented reduced range of motion in Plaintiff's left wrist and knee, noted reduced grip strength and flattening of her lumbosacral lordosis. AR 401. Further, Dr. Rhone indicated he based his opined limitations on these objective findings. AR 502. There is no indication the ALJ relied more heavily on Plaintiff's self reports than on objective findings from his clinical examination. See Ghanim, 763 F.3d at 1162. Likewise, the ALJ's conclusion Dr. Rhone's opinion is unsupported by the medical evidence in the record as a whole lacks the requisite specificity to explain why the ALJ found Dr. Rhone's opinion to be flawed. See Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22); Garrison v. Colvin, 759 F.3d at 1012.
However, the ALJ's third reason for discounting Dr. Rhone's opinion, inconsistency between Plaintiff's daily activities and ability to reach, is a specific and legitimate reason supported by substantial evidence. Dr. Rhone opined Plaintiff could never reach. AR 421. But, the ALJ cites several items in the record which indicate Plaintiff's self-described daily activities—such as cooking, driving, and performing general child care—involve at least some degree of reaching. AR 393, 417. The ALJ properly relied on this inconsistency to discount Dr. Rhone's opinion. See Morgan, 169 F.3d at 600-02.
Plaintiff argues the ALJ misread Dr. Rhone's opinion. Dr. Rhone opined Plaintiff "can never climb, twist, bend, stoop, squat, kneel, crawl, reach and work above shoulders." AR 502. Plaintiff argues the absence of a serial comma between the word "reach" and the phrase "and work above shoulders" necessarily means Dr. Rhone opined Plaintiff could not reach above her shoulders, but was otherwise able to reach in other directions. Even assuming Plaintiff's interpretation of Dr. Rhone's opinion is valid, it would still be rational to interpret the phrase "reach and work above shoulders," in the context of a larger list of limitations, as two separate limitations. See Bryan Garner, The Redbook: A Manual on Legal Style, 4 (2d ed. 2006) ("The serial comma is never incorrect, but omitting it sometimes results in awkwardness, a miscue, or even ambiguity."). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff also argues the ALJ's interpretation of Dr. Rhone's opinion is materially inconsistent. Dr. Rhone concluded Plaintiff retained some capacity to lift, carry, push, and pull using her right hand. AR 502. Plaintiff argues Dr. Rhone could not have meant Plaintiff was entirely unable to reach, as lifting, carrying, pushing, and pulling require reaching. Thus, Dr. Rhone's opinion should be read as only restricting Plaintiff's ability to reach above shoulders. Dkt. 9, p. 11. However, under Program Operations Manual System ("POMS") § DI 25001.001, "Medical Vocational Quick Reference Guide," reaching is distinct from lifting, pushing, pulling, and carrying. POMS defines "reaching" as "[e]xtending the hands and arms in any direction." POMS § DI 25001.001(64). Pulling, by contrast, is defined as "[e]xerting force upon an object so that the object moves toward the force." POMS § DI 25001.001(61). See also POMS § DI 25001.001(62) (Pushing is defined as "[e]xerting force upon an object so that the object moves away from the force.") POMS § DI 25001.001(43) (Lifting is defined as "[r]aising or lowering an object from one level to another. Includes upward pulling."); POMS § DI 25001.001(8) (Carrying is defined as "[t]ransporting an object; usually holding it in the hands, arms, or on the shoulder."). Notably, none of these definitions require or include an ability to "reach." Further, Social Security Ruling ("SSR") 96-8P classifies "lifting, carrying, pushing, and pulling" as exertional limitation, but classifies "reaching" as a separate, manipulative limitation. See SSR 96-8P, available at 1996 WL 374184, at *5-*6. Thus, "reaching" is an activity distinct from lifting, pushing, pulling, and carrying, as those terms are defined by the Social Security Administration. Plaintiff has not demonstrated how the ALJ's interpretation of Dr. Rhone's opinion is inconsistent. See Thomas, 278 F.3d at 954.
Because the ALJ offered a specific and legitimate reason, supported by substantial evidence, for giving Dr. Rhone's opinion less weight, the ALJ did not err.
3. Michael Brown, Ph.D. and Carla van Dam, Ph.D.
Two state agency medical consultants reviewed Plaintiff's medical records and rendered opinions on Plaintiff's residual functional capacity. Dr. Brown opined Plaintiff was moderately limited in her ability to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace without an unreasonable number and length of rest periods.AR 88. Dr. Brown further explained: "[Plaintiff's] mental health limits reduce extended periods of concentration, impacting detailed tasks, [symptoms] may reduce daily attendance. However [Plaintiff] can persist the majority [of] the time." AR 88.
As part of Plaintiff's request for reconsideration of the denial of her initial application for benefits, Dr. van Dam reviewed Plaintiff's records and opined Plaintiff was moderately limited in her ability to: maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically based symptoms; and perform at a consistent pace without an unreasonable number and length of rest periods. AR 100-01. As with Dr. Brown, however, Dr. van Dam further explained: "[Plaintiff's] mental health limits reduce extended periods of concentration, impacting detailed tasks, [symptoms] may reduce daily attendance. However [Plaintiff] can persist the majority [of] the time." AR 100.
The ALJ found Dr. van Dam's psychiatric review technique ("PRT") analysis to be "persuasive." AR 16. See also AR 22 (finding Dr. van Dam's evaluation was persuasive in the context of assessing Plaintiff's residual functional capacity). By contrast, the ALJ discounted Dr. Brown's PRT analysis, to the extent Dr. Brown found Plaintiff had moderate limitations in maintaining social functioning. AR 16. However, the ALJ did not discuss Dr. Brown's PRT analysis as to Plaintiff's moderate limitations in concentration, persistence and pace, nor did the ALJ address either Dr. Brown or Dr. van Dam's RFC findings. AR 16. Plaintiff argues the ALJ erred by failing to properly evaluate all of Dr. Brown and Dr. van Dam's opined limitations. The Court agrees.
At Step Two of the sequential evaluation, Social Security Regulations require all those who review an application for disability to assess the severity of mental impairments in compliance with the psychiatric review technique articulated in 20 C.F.R. § 404.1520a. "Specifically, the reviewer must determine whether an application has a medically determinable impairment . . . rate the degree of functional limitation for four functional areas . . . determine the severity of the mental impairment (in part based on the degree of functional limitation) . . . and then, if the impairment is severe, proceed to step three of the disability analysis . . . ." Keyser v. Comm'r, Soc. Sec. Admin., 648 F.3d 721, 726 (9th Cir. 2011).
An ALJ is not required to adopt an opinion from an acceptable medical source; however, in order to reject all or part of a medical opinion, an ALJ must offer at least a specific and legitimate reason for doing so. See Nguyen, 100 F.3d at 1466 (citing Lester, 81 F.3d at 831). See also Flores, 49 F.3d at 571 (an ALJ "may not reject 'significant probative evidence' without explanation."). An ALJ errs by purporting to give great weight to a physician's opinion, yet failing to include all of the physician's opined limitations in the RFC. See Betts v. Colvin, 531 Fed.Appx. 799, 800 (9th Cir. 2013) (finding the ALJ committed reversible error by purporting to give great weight to an examining physician, yet failing to include many of the physician's opined limitations in the RFC). Here, though the ALJ found Dr. van Dam's PRT analysis "persuasive," the ALJ failed to offer any reason for disregarding Dr. van Dam's RFC findings, such as moderate limitations in Plaintiff's ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. AR 100. Also, while the ALJ discounted parts of Dr. Brown's opinion, the ALJ did so by specifically focusing on Dr. Brown's opinions as to Plaintiff's social functioning; the ALJ failed to address Dr. Brown's opined limitations as to Plaintiff's concentration and persistence. Cf. Dale v. Colvin, ___ F.3d. ___, 2016 WL 2909237, at *3-*4 (9th Cir. 2016) (holding an ALJ erred by dividing the opinion of an other medical source into two parts, but only offering germane reasons to discount one of the two parts of the other medical source's opinion).
Both Dr. Brown and Dr. van Dam opined Plaintiff's moderate limitations would reduce extended periods of concentration and might reduce her daily attendance. AR 88, 100. The ALJ's failure to incorporate these limitations into the RFC finding, or otherwise provide specific and legitimate reasons for rejecting these limitations, renders the ALJ's RFC finding incomplete and unsupported by substantial evidence. See Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012); Betts, 531 Fed.Appx. at 800.
Defendant argues the ALJ did not err because the RFC finding was "consistent" with Dr. Brown's and Dr. van Dam's opinions. See Turner v. Comm'r of Soc. Sec, 613 F.3d 1217, 1222-23 (9th Cir. 2010). However, the ALJ's RFC finding does not include any limitations which would account for Dr. Brown and Dr. Van Dam's opinions concerning Plaintiff's reduced attendance, or inability to complete a normal workday or week without interruption from psychologically based symptoms. Thus, the ALJ's RFC finding was not consistent with Dr. Brown and Dr. van Dam's opinion, and the ALJ's failure to provide specific and legitimate reasons for discounting their opinions was harmful error.
4. Medea Karr, ARNP
Ms. Karr was Plaintiff's treating nurse practitioner. See AR 533-44. She prepared an opinion letter in support of Plaintiff's application for disability benefits. See AR 566. Ms. Karr opined Plaintiff was unable to repetitively lift, carry, or handle objects because of unpredictable contractures in her left hand. AR 566. Ms. Karr further opined Plaintiff could sit for up to 20 minutes at a time, stand in a stationary position for 15 to 20 minutes, and could walk for 4-5 minutes before experiencing pain. AR 566. In Ms. Karr's opinion, should Plaintiff attempt to exceed these limitations, she would experience a severe pain flare which could incapacitate her for several days. AR 566. Ultimately, Ms. Karr "[could] not envision an environment in which [Plaintiff] could work fulltime." AR 566.
Nurse Practitioners are considered "other sources," rather than "acceptable medical sources" under Social Security regulations. See 20 C.F.R. §§ 404.1513(d)(1) & (3). Thus, the ALJ only needs to provide arguably germane reasons to reject their testimony. Turner, 613 F.3d at 1224; Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). Here, the ALJ gave Ms. Karr's opinions little weight for the following two reasons:
[1] The notes rely on the claimant's own subjective perceptions and she is not fully credible in her allegations, as noted above. [2] The limitations suggested are also inconsistent with the clinical findings in the record as a whole. For instance, the nurse practitioner states that the claimant could walk for only four or five minutes before needing to stop and that if she exceeds such limits, the claimant usually has pain flare up for days afterwards that "cause her to stay in bed most of the day with hot packs and/or ice packs and very limited movement." ([AR 566]). Yet, Dr. Lemberg reports that the claimant could walk for 20 minutes (AR 497]). On December 23, 2013, the claimant exercised for 11 minutes and 11 seconds of the Bruce protocol on a treadmill. This is with increasing speed and elevation of the treadmill ([AR 580-81]). The examining physician reports that the claimant demonstrated "excellent functional capacity for an active individual this age." She also had a normal echo Doppler study and no ischemia. Significantly, the physician notes that all segments of the heart tracing are normal and that the claimant's estimated right ventricular ejection fraction post exercise is 65 to 70
percent ([AR 581]). At the May 6, 2014, hearing, the claimant testified that her back becomes painful when she drives for more than 20 minutes.AR 21 (numbering added). Plaintiff argues these were not germane reasons to reject the opinion of an other medical source.
As with Dr. West and Dr. Rhone, the ALJ's conclusion Ms. Karr relied upon Plaintiff's subjective symptom testimony rather than her own independent examination is not supported by substantial evidence in the record. See AR 554-64. See also Ghanim, 763 F.3d at 1162. However, the ALJ's other reason for discounting Ms. Karr's opinion—inconsistency with clinical findings in the record as a whole—is a germane reason for discounting Ms. Karr's opinion. In rejecting lay testimony, the ALJ need not cite to the specific record as long as "arguably germane reasons" for dismissing the testimony are noted and substantial evidence supports the ALJ's decision. Lewis, 236 F.3d at 512. Moreover, the ALJ did, in fact, cite specific items in the record which contradict Ms. Karr's opinion. For example, though Ms. Karr opined Plaintiff would be unable to walk for more than four or five minutes, Plaintiff had reported to another physician her ability to walk up to 20 minutes at a time. AR 497. This was a germane reason to discount Ms. Karr's opinion.
II. Other Alleged Errors.
Plaintiff also alleges several other errors in the ALJ's decision. Specifically, the Plaintiff alleges the ALJ erred in assessing her subjective symptom testimony, erred in finding Plaintiff could perform her past relevant work, and erred in finding Plaintiff could perform other work which exists in significant numbers in the national economy. The ALJ will necessarily have to reconsider these issues due to the harmful errors in evaluating the medical opinion evidence discussed above. Therefore, the Court need not address these allegations in great detail.
A. Plaintiff's Subjective Symptom Testimony
If an ALJ finds a claimant has a medically determinable impairment which reasonably could be expected to cause the claimant's symptoms, and there is no evidence of malingering, the ALJ may reject the claimant's testimony only "by offering specific, clear and convincing reasons." Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993)). See also Reddick, 157 F.3d at 722. However, sole responsibility for resolving conflicting testimony and questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1999) (citing Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971); Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980)). Where more than one rational interpretation concerning a plaintiff's testimony can be drawn from substantial evidence in the record, a district court may not second-guess the ALJ's determinations. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). See also Thomas, 278 F.3d at 954. In addition, the Court may not reverse a subjective symptom testimony determination where that determination is based on contradictory or ambiguous evidence. See Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). That some of the reasons for discrediting a claimant's testimony should properly be discounted does not render the ALJ's determination invalid, as long as that determination is supported by substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
Here, the ALJ reasonably considered the degree to which the objective medical evidence supported her testimony, as well as Plaintiff's activities of daily living, which the ALJ found were inconsistent with Plaintiff's testimony she had severe limitations in her ability to sit and stand, and was unable to even hold a pen or pencil to write. AR 18-19. Carmickle, 533 F.3d at 1161 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); Molina, 674 F.3d at 1113. However, the ALJ also improperly relied on Plaintiff's receipt of unemployment benefits and her sporadic work history to discount her testimony. The record does not indicate whether Plaintiff asserted she was capable of full-time, rather than merely part-time, work, in her applications for unemployment benefits. See Carmickle, 533 F.3d at 1161-62 (where the record "does not establish whether [the claimant] held himself out as available for full-time or part-time work," such a "basis for the ALJ's credibility finding is not supported by substantial evidence," as "[o]nly the former is inconsistent with his disability allegations"). Further, while a lack of motivation to work may be a clear and convincing reason to discount a claimant's subjective symptom testimony, the ALJ's conclusion here was unsupported by substantial evidence. Thomas v. Barnhart, 278 F.3d. 947, 959 (9th Cir. 2002). The ALJ's conclusion, based on the fact Plaintiff had previously stayed home to care for her young children and left work in the ninth month of pregnancy Plaintiff lacked motivation to work, was purely speculative. See SSR 86-8, available at 1986 WL 68636, at *8. Finally, an evaluation of a claimant's testimony relies, in part, on an accurate assessment of the medical opinion evidence. See 20 C.F.R. §§ 404.1529(c), 416.929(c). As this case must be remanded for further proceedings in any event, the ALJ should also reevaluate Plaintiff's subjective symptom testimony on remand.
B. Step Four and Step Five Analysis
Plaintiff argues the ALJ improperly relied on vocational expert testimony which deviated from the Dictionary of Occupational Titles ("DOT") to conclude Plaintiff could not perform her past relevant work, or other work existing in significant numbers in the national economy. Specifically, Plaintiff argues her past relevant work, as well as the other jobs opined to by the vocational expert, all required at least General Educational Development Reasoning Level Two or above. Plaintiff argues Level Two reasoning is incompatible with the restriction to "simple tasks" contained in the RFC. Defendant contends any error at Step Four or Step Five was harmless, because the Ninth Circuit has suggested "an RFC limitation to 'simple' or 'repetitive' tasks is consistent with Level Two reasoning." Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1003-04, n.6 (9th Cir. 2015).
The Court is persuaded by the Ninth Circuit's dicta in Rounds, and agrees with Defendant that the "Library Page" position is consistent with a restriction to "simple tasks." Regardless of whether the ALJ erred at Step Four and Step Five, however, the ALJ erred in assessing the medical opinions from Dr. West, Dr. Brown, and Dr. van Dam. An ALJ's failure to properly evaluate all of the medical opinion evidence may result in a flawed RFC finding. See Hill, 698 F.3d at 1162; SSR 96-8-p, 1996 WL 374184 at *2. Thus, on remand, the ALJ will necessarily have to reconsider Plaintiff's RFC, and proceed on to Step Four and Step Five, as appropriate.
The Vocational Expert testified Plaintiff would be able to perform the position of "Library Page," DOT 249.687-014. AR 69. The Library Page position is classified as light work, with Level Two reasoning. AR 69. The Vocational Expert further testified there are approximately 115,000 Library Page positions available in the national economy, and approximately 3,000 of those positions are in Washington State. AR 69.
CONCLUSION
Based on the above stated reasons and the relevant record, the undersigned recommends this matter be reversed and remanded, pursuant to sentence four of 42 U.S.C. § 405(g), for further proceedings consistent with this Report and Recommendation. The undersigned also recommends judgment be entered for Plaintiff and the case closed.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on August 12, 2016, as noted in the caption.
Dated this 26th day of July, 2016.
/s/_________
David W. Christel
United States Magistrate Judge