Opinion
Case No. 6:17-cv-706-CL
10-31-2018
Michelle R., Plaintiff, v. Commissioner of Social Security Administration, Defendant.
KATHRYN TASSINARI MARK A. MANNING Harder, Wells, Baron & Manning, P.C. 474 Willamette, Suite 200 Eugene, OR, 97401 BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney District of Oregon 1000 SW Third Ave., Suite 600 Portland, OR 97204-1011 LISA GOLDOFTAS Special Assistant United States Attorney Office of the General Counsel 701 Fifth Ave., Suite 2900 M/S 221A Seattle, WA 98104-7075 Of Attorneys for Defendant
OPINION AND ORDER KATHRYN TASSINARI
MARK A. MANNING
Harder, Wells, Baron & Manning, P.C.
474 Willamette, Suite 200
Eugene, OR, 97401 BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-1011 LISA GOLDOFTAS
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
Opinion and Order
CLARKE, Magistrate Judge:
Plaintiff Michelle R. ("Plaintiff") seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision is REVERSED and the case REMANDED for further proceedings.
Procedural Background
Plaintiff filed applications for Social Security Income ("SSI") and Disability Insurance Benefits ("DIB") on November 5, 2012, alleging disability as of October 1, 2009. Tr. 16. Her applications were denied initially and upon reconsideration, and a hearing was held on May 1, 2015, before an Administrative Law Judge ("ALJ"); Plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 73-102. At the hearing, Plaintiff amended her alleged disability onset date to January 16, 2012, and withdrew her application for DIB. Tr. 16. On June 24, 2015, ALJ John Michaelsen issued a decision finding Plaintiff not disabled. Tr. 16-29. Plaintiff requested timely review of the ALJ's decision and, after the Appeals Council denied her request for review, filed a complaint in this Court. Tr. 1-3.
Factual Background
Born in 1964, Plaintiff was 47 years old on the alleged disability onset date. Tr. 27. She graduated high school and completed three years of college. Tr. 254. She previously worked as a broker at an insurance brokerage. Tr. 254. She alleges disability due to fibromyalgia; thyroid disease; and asthma. Tr. 253.
On January 16, 2012, Plaintiff underwent a total abdominal hysterectomy and a left salpingo-oophorectomy. Tr. 321. Plaintiff reported pain, fatigue, and weight gain after her surgery, and on June 8, 2012, she underwent a second procedure involving lysis of adhesions and vaginal trachelectomy. Tr. 421. Following her second surgery, Plaintiff stated that her pain was completely resolved with no residual complaints, and her surgeon opined that her incisions were healing "beautifully" and her postoperative course was "excellent." Tr. 413. Later, on June 27, 2013, Plaintiff underwent a pelvic ultrasound which revealed an ovarian cyst. Plaintiff was counseled to improve her diet, exercise more, and her nurse practitioner encouraged her to seek naturopathic or acupuncture-related remedies. Tr. 340, 344.
Plaintiff was diagnosed with fibromyalgia by a rheumatologist on November 12, 2014, and was prescribed Gabapentin. Tr. 378. On December 10, 2014, Plaintiff stated that she would "just tough out the flares" and not take her fibromyalgia prescriptions daily, as recommended. Tr. 596.
Plaintiff also experienced mild oropharyngeal dysphagia, or difficulty swallowing, at various times throughout the adjudicatory period, as well as neck tension, breathing discomfort, and voice hoarseness. Tr. 700. Plaintiff worked with a speech therapist and speech and language pathologist, who taught her swallowing exercises to manage her conditions. Tr. 494.
On August 6, 2013, an x-ray of Plaintiff's lumbosacral spine revealed "advanced disc space narrowing at L4-L5 and L5-S1" vertebrae, in addition to "severe facet joint arthrosis" at the L4-L5 and L5-S1 vertebral levels. Tr. 455. On October 31, 2012, Plaintiff was diagnosed with lower back pain. Tr. 383. On November 15, 2013, an MRI of Plaintiff's lumbar spine revealed "advanced disc space narrowing," as well as "disc space narrowing desiccation" and "annular fissures" at the L4-L5 and L5-S1 vertebral levels. Tr. 625. Also on November 15, 2013, an MRI of Plaintiff's cervical vertebrae revealed disc desiccation from the C3 to C6 vertebral levels, with the most severe desiccation at C5-C6. Tr. 623. Plaintiff reported neck and shoulder pain in early 2015, and briefly attended physical therapy to help manage her condition. Tr. 655-57.
Plaintiff also experienced asthmatic symptoms, but on May 3, 2012, her physician noted that her asthma was "well controlled" with medication. Tr. 442. In stuffy, indoor settings, Plaintiff stated that she used her inhaler up to 10 times per week. Tr. 586. Plaintiff also sought treatment for hearing loss and reported feeling "wobbly" while standing still. Tr. 579. On September 11, 2013, Plaintiff saw a hearing specialist, who determined that she suffered from "serious effusion of her right ear," and mixed hearing loss bilaterally. Tr. 796. Plaintiff underwent a procedure to insert a tube in her right ear; subsequent audiological testing revealed moderate low frequency sensorineural loss in her right ear and mild low and mid-frequency sensorineural loss, but "excellent" word recognition in both ears. Tr. 560.
Plaintiff was prescribed a small amount of Xanax for panic attacks on October 31, 2013. Tr. 371. On March 4, 2014, Plaintiff stated that Xanax briefly helped, but her symptoms returned shortly after taking it. Tr. 583. She was prescribed Klonopin, but did not tolerate the medication and was prescribed Ativan shortly afterwards. Tr. 584-85. Plaintiff was diagnosed with PTSD on July 28, 2014. Tr. 589. In February 2015, Plaintiff began therapy and was diagnosed with an anxiety disorder. Tr. 600, 817. By March 2015, Plaintiff's mood improved and she experienced fewer anxiety attacks and "less intense symptoms in general." Tr. 812. Her overall functionality had also improved. Tr. 812.
Disability Analysis
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r, 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. § 416.920(a)(4). The five-step sequential process asks the following series of questions: 1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. § 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. § 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two. 2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. § 416.920(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. § 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three. 3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds beyond step three. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four. 4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five. 5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 416.920(a)(4)(v); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); see also 20 C.F.R. § 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found Plaintiff had not engaged in substantial gainful activity since she filed her application, November 5, 2012. Tr. 18.
At step two, the ALJ determined Plaintiff had the following severe impairments: asthma; fibromyalgia; and a history of post-traumatic stress disorder ("PTSD"). Tr. 19. The ALJ determined that Plaintiff's hearing loss; borderline sleep apnea; and hysterectomy did not rise to the level of severe. Tr. 19.
At step three, the ALJ found that Plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 19-20. Because Plaintiff did not establish disability at step three, the ALJ continued to evaluate how Plaintiff's impairments affected her ability to work during the relevant period. The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform light work except she:
can lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for six hours out of an eight-hour workday with regular breaks; she can sit for six hours out of an eight-hour workday with regular breaks; she is limited to no more than occasional climbing, crouching, kneeling, crawling or stooping. The claimant is limited to no more than frequent overhead reaching, and would need to avoid exposure to unprotected fumes, dust, gases, poor ventilation and other noxious odors.Tr. 20.
However, on March 2, 2017, the Appeals Council amended the ALJ's assessed RFC and added additional limitations associated with Plaintiff's mental impairments. Tr. 5-9. The Appeals Council found that, in addition to the ALJ's assessed limitations, Plaintiff could perform "simple, repetitive routine tasks with no more than occasional interaction with coworkers and the general public." Tr. 7.
At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 27. At step five, the ALJ found that there were jobs existing in significant numbers in the national economy that Plaintiff could perform, including routing clerk, photocopy machine operator, and garment sorter. Tr. 28.
Accordingly, the ALJ concluded Plaintiff was not disabled under the Act. Tr. 29.
Standard of Review
The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and his or her findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" is "more than a mere scintilla, but less than a preponderance." Bray v. Comm'r, 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.
This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id.
Discussion
Plaintiff alleges the ALJ erred by: (I) rejecting Plaintiff's subjective symptom testimony; (II) rejecting the "other source" medical opinions of Cameron Derbyshire, physician's assistant, and Amanda Force, physical therapist; (III) excluding severe impairments at step two; and (IV) failing to find "other work" in the national economy that Plaintiff is capable of performing.
I. Plaintiff's Subjective Symptom Testimony
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews, 53 F.3d at 1039. However, the ALJ's findings must be supported by specific, cogent reasons. Reddick, 157 F.3d at 722. Unless there is affirmative evidence showing that the claimant is malingering, the ALJ's reason for rejecting the claimant's testimony must be "clear and convincing." Id. The ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Id. The evidence upon which the ALJ relies must be substantial. Reddick, 157 F.3d at 724. General findings (e.g., "record in general indicates improvement") are an insufficient basis to support an adverse credibility determination. Id. at 722. The ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Examples of clear and convincing reasons for rejecting Plaintiff's testimony include inconsistencies between her testimony and her conduct; daily activities inconsistent with the alleged symptoms; inadequately explained failure to seek treatment; severity and effect of the symptoms complained of; and the ability to work after allegedly becoming disabled. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1040; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); Bray, 554 F.3d at 1227; Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007).
On January 20, 2013, Plaintiff completed an Adult Function Report indicating that pain and exhaustion limited her ability to work. Tr. 281. Plaintiff stated that she walked her dog once per day, did not experience difficulty with activities of personal care, and shopped at stores once per week. Tr. 283-84. Plaintiff also indicated that she was unable to perform yardwork, experienced difficulty handling money and getting along with family, friends, neighbors, and others. Tr. 284-86. Plaintiff stated that she did not handle changes in routine or stress well, and stated that her conditions affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, see, memorize information, complete tasks, concentrate, understand, follow instructions, and use her hands. Tr. 286-87. Plaintiff also stated that she could walk for five minutes before requiring rest, and could pay attention for five minutes. Tr. 286.
On May 1, 2015, Plaintiff testified at an administrative hearing, and stated that her amended disability onset date was tied to her hysterectomy in January 2012. Tr. 83. After her hysterectomy, Plaintiff required a separate surgery several months later which allegedly caused an inability to read or sleep, and caused panic attacks and pain. Tr. 83. Additionally, Plaintiff alleged that her throat was damaged during her hysterectomy, causing trouble with breathing, speaking, and swallowing. Tr. 83. Plaintiff testified that she last worked in 2005, but could not remember why she stopped working. Tr. 85. Plaintiff testified that reduced mental clarity, pain, and panic attacks prevent her from working, and further testified that fatigue and exhaustion significantly affect her functioning. Tr. 86, 91.
The ALJ rejected Plaintiff's subjective symptom testimony. First, the ALJ noted that Plaintiff demonstrated little propensity to work in her lifetime. See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002). While she testified that she ceased working in 2005 for unknown reasons, the record shows earnings only up to 1996. Therefore, because Plaintiff ceased working almost 16 years before her alleged disability onset date, the ALJ did not err in rejecting her subjective testimony. Moreover, even assuming Plaintiff ceased working in 2005, it is not apparent that her lack of employment was related to her impairment, as she stated that she could not remember why she ceased working. An ALJ may discredit a plaintiff's testimony if she stopped working for reasons other than her impairments. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). While Plaintiff argues that the mere possibility that she stopped working for reasons other than her impairment does not satisfy the requisite standard of evidence for discrediting her testimony, the ALJ's interpretation of the record was rational and cannot be overturned by this Court. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1996 (9th Cir. 2004). As such, the ALJ did not err in using Plaintiff's lack of employment before the adjudicatory period to discredit her subjective testimony.
The ALJ also discredited Plaintiff's testimony because she gave inconsistent statements about her level of functionality. See Tommasetti, 533 F.3d at 1040. As noted above, Plaintiff generally stated that she was completely unable to work due to fatigue, pain, a lack of mental clarity, and alleged throat complications stemming from a surgical procedure. However, Plaintiff postponed her physical therapy appointments for several weeks to drive to California to take care of her elderly parents. Tr. 664. The ALJ noted that Plaintiff's ability to care of her parents, as well as drive hundreds of miles without incident, aptly demonstrated that her level of functioning exceeded her testified limitations. Plaintiff argues that there is no evidence that she actually visited California. However, Plaintiff's biweekly physical therapy appointments were scheduled with a one-week gap between appointments, except the appointment after she stated she would be leaving for California, which occurred three weeks later. Tr. 501. Thus, the ALJ did not err in rationally interpreting the record to determine that Plaintiff took care of her parents during the three-week hiatus from physical therapy.
The ALJ further rejected Plaintiff's testimony because it conflicted with her activities of daily living. See Orn, 495 F.3d at 636. Plaintiff alleged that she performed few household chores, but maintained her RV without any assistance and shopped weekly. Additionally, Plaintiff took regular walks with friends, went on a hike with her sister in Seattle in July 2013, and vacationed in the Caribbean during the adjudicatory period. Tr. 339. While these activities are not particularly onerous, they refute Plaintiff's allegations that she would be completely unable to work, particularly her assertion that she would miss work four to five times per week if she were fully employed. Tr. 95. Therefore, the ALJ did not err in discrediting Plaintiff's subjective symptom testimony.
II. "Other Source" Medical Opinions
As the Social Security Administration's rules provide:
[M]edical sources who are not "acceptable medical sources," such as ... licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handed primarily by physicians and psychologists. Opinions from these medical sources ... are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file.SSR 06-03p, at *3.
Factors the ALJ should consider when determining the weight to give an opinion from those "important" sources include: the length of time the source has known the claimant and the number of times and frequency that the source has seen the claimant; the consistency of the source's opinion with other evidence in the record; the relevance of the source's opinion; the quality of the source's explanation of his opinion; and the source's training and expertise. SSR 06-03p, at *4. On the basis of the particular facts and the above factors, the ALJ may assign a not-acceptable medical source either greater or lesser weight than that of an acceptable medical source. SSR 06-03p, at *5-*6. A. Cameron Derbyshire, Physician's Assistant
On April 23, 2015, Cameron Derbyshire, PA-C, completed a medical opinion statement diagnosing Plaintiff with fibromyalgia, history of pelvic adhesions, vaginal wall cyst, anxiety disorder, hypothyroidism, hiatal hernia, asthma, allergic rhinitis, degenerative disc disease of the lumbar and cervical spine. Tr. 639. PA-C Derbyshire estimated that Plaintiff could stand for 2 hours and sit for 6 hours in an average eight-hour workday, and her conditions would cause her to miss work two days per month, as well as require her to take additional breaks two days per month. Tr. 636. PA-C Derbyshire also opined that Plaintiff would be 30 percent less productive than her working peers. Tr. 637. PA-C Derbyshire noted that he could only give an opinion about Plaintiff's condition from September 2014 to April 2015, the time that Plaintiff was directly under his care. Tr. 642.
The ALJ gave little weight to PA-C Derbyshire's opinion. As noted above, PA-C Derbyshire explicitly stated that his opinion applied only to the period of time encompassing about eight months between 2014 and 2015. Tr. 642. The ALJ seemingly misinterpreted this statement and noted that "this opinion allegedly applies back to January 16, 2012." Tr. 27. The opening page of PA-C Derbyshire's opinion did state that it applied from January 16, 2012 until the present, but PA-C Derbyshire explicitly disagreed with the date range and wrote that the opinion applied only to the period Plaintiff was under his care. Tr. 642. Thus, to the extent the ALJ used discrepancies with the date range to discredit PA-C Derbyshire's opinion, the ALJ erred.
Next, the ALJ noted that PA-C Derbyshire primarily oversaw Plaintiff's therapy related to her ability to swallow and talk. Tr. 27. Presumably, the ALJ believed that PA-C Derbyshire would be unfamiliar with conditions unrelated to Plaintiff's dysphagia and, therefore, gave little weight to opinions about those conditions. However, PA-C Derbyshire's scope of treatment was broader than the ALJ's interpretation of the record. For instance, PA-C Derbyshire referred Plaintiff to physical therapy to treat pain in her cervical spine and shoulder Tr. 657-58. Further records show that PA-C Derbyshire treated Plaintiff for anxiety, fibromyalgia, "vertebral artery insufficiency," vaginal pain, and hypothyroidism. Tr. 590-91, 605-06. In short, the record demonstrates that PA-C Derbyshire functioned as Plaintiff's primary care provider and was familiar with the totality of her conditions during the period that he gave his opinion. As such, the ALJ erred in discrediting PA-C Derbyshire's opinion.
The ALJ further noted that Plaintiff's activities of daily living conflicted with the restrictions outlined by PA-C Derbyshire. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). As discussed in the previous section, Plaintiff maintained her RV without assistance, shopped weekly, took regular walks with friends, went on a hike with her sister in Seattle in July 2013, and vacationed in the Caribbean. Tr. 339. These activities, most of which could be completed at Plaintiff's own pace, do not conflict with the restrictions outlined by PA-C Derbyshire, which generally comported with sedentary level work. Therefore, the ALJ's interpretation of Plaintiff's activities of daily living is not supported by substantial evidence.
Additionally, the ALJ gave little weight to PA-C Derbyshire's opinion because it was inconsistent with medical evidence. See Tommasetti, 533 F.3d at 1041. The ALJ does not explain, however, how the opinion conflicts with the medical evidence of record. Indeed, the ALJ's recitation of the medical evidence reveals numerous impairments that are not under control through medical intervention, which could result in the limitations opined by the physician's assistant. For instance, the ALJ noted that objective testing showed severe disc disease in Plaintiff's lumbar region, yet there is no indication that this condition was resolved with surgery or other methods. Tr. 23-24. Plaintiff's pelvic pain returned after two surgical operations in 2012, and in 2015 Plaintiff saw a specialist to attempt to resolve her symptoms. Tr. 513. After several months of treatment without resolution, the specialist, Dr. Connie DeMarco, M.D., planned a further invasive surgery to attempt to discover the cause of Plaintiff's pelvic pain. Tr. 509. Thus, the record contains ample evidence of impairments that could reasonably be expected to result in the restrictions outlined by PA-C Derbyshire. Because the ALJ did not specifically explain the medical evidence that conflicted with relevant restrictions, the ALJ's reasoning is not sufficiently specific or germane. See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (an ALJ must give specific and germane reasons to discount lay witness testimony). B. Amanda Force, Physical Therapist
On April 20, 2015, Amanda Force, physical therapist, completed a medical opinion statement diagnosing Plaintiff with fibromyalgia, cervicalgia, lumbago, and pain in her left shoulder. Tr. 635. PT Force estimated that Plaintiff could stand for 60 minutes and sit for 60 minutes in an average eight-hour workday, and her conditions would cause her to miss work more than two days per month, as well as require her to take additional breaks more than two days per month. Tr. 636. PT Force also opined that Plaintiff would be 50 to 60 percent less productive than her working peers. Tr. 637.
The ALJ gave little weight to PT Force's opinion for the same reasons he gave little weight to PA-C Derbyshire's opinion. However, in this case, the ALJ's reasoning is sufficient to meet the specific and germane standard necessary to give little weight to an "other source" medical opinion. PT Force treated Plaintiff for slightly more than two months in early 2015, yet her opined limitations reach back to Plaintiff's alleged disability onset date in January 2012. Tr. 635. Given that Plaintiff's conditions have progressively deteriorated, it is incongruous that PT Force could reasonably give an opinion about Plaintiff's functioning three years before she began treatment. particularly considering there is no evidence in the record that PT Force had a longitudinal treatment relationship with Plaintiff. As such, the treating relationship with PT Force stands in stark contrast to Plaintiff's treatment by PA-C Derbyshire. Additionally, Plaintiff's activities of daily living conflict with the restrictions outlined by PT Force. See Ghanim, 763 F.3d at 1162. Unlike PA-C Derbyshire, PT Force assessed debilitating limitations, including the ability to stand for only 15 minutes continuously and 60 minutes total in an eight-hour period, as well as sit continuously for 30 minutes and 60 minutes total in an eight-hour period. Tr. 635. Plaintiff's ability to maintain her RV, vacation in the Caribbean, drive to California to take care of her parents, and hike with her sister contradict PT Force's assessed limitations. As such, the ALJ did not err in granting PT Force's opinion little weight.
III. Severe Impairments at Step Two
At step two, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. Step-two findings must be based upon medical evidence. 20 CFR §§ 404.1520(a), 416.920(a). An impairment is "not severe" if it "does not significantly limit [the claimant's] ability to do basic work activities." Id. At step two, the inquiry is "a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
The ALJ found that asthma, fibromyalgia, and PTSD were severe impairments at step two. Tr. 19. The ALJ found that Plaintiff's hearing loss, borderline sleep apnea, and hysterectomy were non-severe impairments. Tr. 19. Plaintiff argues that her degenerative disc disease of the lumbar and cervical spine, vaginal wall cyst/neuroma, and anxiety should be considered severe impairments.
The Commissioner correctly argues that, because step two was decided in Plaintiff's favor, any error at step two is harmless and cannot be the basis for remand. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (if step two was decided in plaintiff's favor, any step two error is harmless). The Court, however, construes Plaintiff as arguing that the ALJ erred by failing to include limitations related to degenerative disc disease of the lumbar and cervical spine, vaginal wall cyst/neuroma, and anxiety in Plaintiff's RFC. See id. (when assessing a plaintiff's RFC, the ALJ must include limitations imposed by all impairments, even those considered non-severe).
The regulations require the ALJ to evaluate a claimant's ability to work using the RFC. 20 C.F.R. §§ 416.920(e); 416.945(b)-(c); SSR 96-8p, 1996 WL 374184, at *1. The Ninth Circuit has stated the regulations require "only that the ALJ discuss how the evidence supports the [RFC] and explain how the ALJ resolved material inconsistencies or ambiguities in the evidence;" the "ALJ is not required . . . to engage in a function-by-function analysis under SSR 96-8p." Mason v. Comm'r, 379 Fed. Appx. 638, 639 (9th Cir. 2010); see also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ("Preparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary").
MRIs and x-rays confirm objectively Plaintiff's degenerative disc disease of the lumbar spine and cervical spine. On August 6, 2013, an x-ray of Plaintiff's lumbosacral spine revealed "advanced disc space narrowing at L4-L5 and L5-S1" vertebrae, in addition to "severe facet joint arthrosis" at the L4-L5 and L5-S1 vertebral levels, and on November 15, 2013, an MRI of Plaintiff's lumbar spine revealed "advanced disc space narrowing," as well as "disc space narrowing desiccation" and "annular fissures" at the L4-L5 and L5-S1 vertebral levels. Tr. 455, 625. Also on November 15, 2013, an MRI of Plaintiff's cervical vertebrae revealed severe disc desiccation at C5-C6. Tr. 623. The ALJ assessed an RFC consistent with a modified range of light work, allowing Plaintiff to lift and carry 20 pounds occasionally, with occasional climbing, crouching, kneeling, crawling, or stooping, with frequent overhead reaching. Tr. 20. However, it is unclear if the ALJ's RFC reasonably accommodates Plaintiff's lumbar and cervical impairments, as the functionality of the lumbar and cervical spinal areas affects nearly every physical action taken during employment. Additionally, the ALJ did not discuss Plaintiff's lumbar and cervical impairments, or link them to specific limitations in the RFC, depriving the Court of the opportunity to review the ALJ's reasoning. While the Commissioner argues that there is no evidence Plaintiff's lumbar and cervical impairments persisted for more than one year, the record shows that Plaintiff complained of back pain as late as April, 2015. Tr. 508.
Plaintiff's vaginal pain is, similarly, a severe impairment affecting Plaintiff's functioning for more than one year. On May 2, 2014, Plaintiff's physician noted that Plaintiff suffered from ovarian cysts and cystic lesions of the vaginal cuff, which caused significant pain in her abdomen. At an appointment in January 2015, Plaintiff continued to suffer from significant vaginal pain. Tr. 517. As of April 2015, Plaintiff planned to undergo exploratory surgery to help resolve her pain. Tr. 509. It is unclear whether the ALJ considered Plaintiff's vaginal pain in formulating her RFC. While the ALJ summarized the medical evidence relating to Plaintiff's condition, the ALJ did not specifically discredit her testimony about her pain, and there is no indication in the record that her pain was resolved.
Therefore, because the Court remands the case for further proceedings to consider the opinion of PA-C Derbyshire, the ALJ should also consider the effect of Plaintiff's cervical and lumbar spine impairments, as well as her vaginal pain, on her physical functionality.
Plaintiff also argues that limitations related to her anxiety and PTSD should be incorporated into the RFC. However, such limitations were already added by the Appeals Council upon Plaintiff's request for review. Indeed, the Appeals council agreed that Plaintiff's mental impairments were severe, and limited Plaintiff to "simple, repetitive routine tasks with no more than occasional interaction with coworkers and the general public" in the RFC. Tr. 7. Plaintiff has not identified specific deficiencies in the amended RFC related to her mental functioning..
IV. Step Five
"While the claimant has the burden of proof at steps one through four, the burden of proof shifts to the [Commissioner] at step five to show that the claimant can do other kinds of work." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (citations omitted). The Commissioner shows that a claimant is capable of working by determining the claimant's RFC and posing hypothetical questions to a VE that incorporate the claimant's limitations. Id. The VE lists jobs the hypothetical claimant is capable of performing, and the ALJ determines, "given the claimant's RFC, age, education, and work experience" if she can find work in the national economy. Id.
Plaintiff argues that the jobs assigned by the ALJ are in excess of the limitations caused by her impairments. Because the ALJ's refutation of PA-C Derbyshire's opinion was insufficient, and the ALJ did not adequately consider the limitations associated with Plaintiff's spinal and vaginal impairments in the RFC, the ALJ's step five determination is no longer supported by substantial evidence, and should be reassessed on remand.
Remand
"The decision whether to remand a case for additional evidence, or simply to award benefits is within the discretion of the court." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). Generally, when a court reverses an administrative decision, " 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.' " Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989); Smolen, 80 F.3d at 1292.
While the ALJ erred by failing to provide legally sufficient reasons to reject the "other source" opinion of PA-C Derbyshire, and failed to adequately explain the omission of limitations associated with Plaintiff's spinal pain and vaginal pain from the RFC, further proceedings will be useful for the disposition of Plaintiff's claim. The ALJ will either accept or reject the opinion of PA-C Derbyshire, and will formulate a new RFC incorporating limitations associated with Plaintiff's lumbar and cervical spine impairments, as well as her vaginal cysts and/or neuroma.
Conclusion
Based on the foregoing, the Commissioner's decision denying Plaintiff's application for SSI is REVERSED and this case REMANDED for further proceedings.
DATED this 31 day of October, 2018.
/s/_________
Mark Clarke
United States Magistrate Judge