Opinion
No. C 01-01715 SC
August 13, 2002
JUDGMENT
In accordance with the Court's Order Granting Claimant's Motion for Summary Judgment and Denying Defendant's Motion for Summary Judgment filed herewith, it is hereby ORDERED, ADJUDGED, and DECREED that:
Judgment shall be entered in this action in favor of CLAIMANT and against DEFENDANT. The Defendant's denial of Social Security disability benefits to Claimant is REVERSED, and Defendant is directed to pay to Claimant all disability insurance benefits to which he is entitled.
IT IS SO ORDERED.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Claimant Magdaleno Lopez Vasque ("Claimant") brings this action under 42 U.S.C. § 405 (g) seeking judicial review of Defendant's final decision that Claimant is not disabled within the meaning of sections 216(i) and 223 of the Social Security Act (the "Act"), 42 U.S.C. § 416(I), 423. Now before this Court are Claimant's motion for summary judgment and Defendant's cross-motion for summary judgment. Claimant asks this Court to reverse Defendant's decision and to direct Defendant to pay Claimant the benefits to which Claimant contends he is entitled. Defendant asks this Court to uphold Defendant's decision that Claimant is not entitled to disability benefits.
For the reasons set forth below, this Court hereby GRANTS Claimant's motion and directs Defendant to pay to Claimant the disability benefits to which Claimant is entitled.
II. BACKGROUND
A. Procedural History
Claimant filed an application for Social Security Disability Insurance ("SSDI") benefits on November 5, 1998. The claim was denied both initially and upon reconsideration. On June 30, 1999, a hearing was held before Administrative Law Judge John Flanagan ("ALJ"). In his ruling of July 27, 1999, the ALJ affirmed the previous denials of Claimant's application for SSDI benefits. On September 24, 1999, Claimant requested review of the ALJ's decision. On March 2, 2001, the Social Security Administration Appeals Council denied this request for review, thereby making the ALJ's denial of Claimant's application the Defendant's final determination in this matter. This action ensued.
B. Factual History
Claimant was born in Mexico on May 25, 1947. While growing up in Mexico, he completed the third grade, after which he received no further formal education. He came to the United States in 1970, and, some time in 1971-1972, he began working for MGM Brakes ("MGM"), a manufacturer of brakes for trucks and airplanes. He worked at MGM continuously until 1984, when he returned to Mexico for two years to care for his mother, who was ill. In 1986, Claimant returned to the United States and resumed work at MGM, where he worked continuously until November 26, 1997, the date on which he injured his back.
His job at MGM remained the same for the entire 23 years he worked there. Although the record contains references that label Claimant job at MGM as an "assembler" (Tr. 113, 182, 183) or a "production worker, (Tr. 154, 211) the job is most aptly called a machine operator and tester in production. This is apparent upon reading the only detailed description of Claimant's specific job duties that is in the record. It is Claimants own description of his job duties: I twist my body to get a [sic] assembled brake so I can test it. Lifted arms to put brake in machine pull and push to test brake. Pull out brake and bend to put brake down in a bent box." (Tr. 82) The physically demanding nature of Claimant's work is evident in the following description of Claimant's job duties provided by Dr. Gary McCarthy, Claimant's treating physician:
[Claimant's] basic duties were to reach, bend, carry materials and twist. He would stand more than two thirds of the day, walk up to one third of the day, grip and reach more than two thirds of the day, reach overhead and twist more than two thirds of the day, bend up to one third of the day, push and pull up to two thirds of the day, and lift upward of 50 pounds more than two thirds of the day.
(Tr. 141.)
In 1993, Claimant "began to experience pain in his right shoulder related to his work activities." (Tr. 121.) In 1994, Claimant underwent arthroscopy by Dr. Russell Striff, MD. Id. Claimant returned to work after surgery, but his right shoulder began once again to give him pain within three to four months. Id. Claimant then received an injection for his right shoulder from Dr. VanderWeeken. Id. Claimant's left shoulder began to bother him in 1996. Id.
While at work on November 26, 1997, Claimant was bending down to reach for a part in a bin when his back "popped" and he felt a sharp pain in his lower back accompanied by tingling all over his back and legs. (Tr. 142.) Claimant first sought treatment from Dr. VanderWeeken, who ordered an MRI, which was performed on December 12, 1997. (Tr. 142.) A neurosurgeon, Dr. David Scheetz, MD, reviewed the MRI and examined Claimant. Dr. Scheetz concluded that Claimant had "extensive degenerative disk disease at multiple levels form L1-L5" (Tr. 111.) and "acute herniation of L1-2 disk and marked lumbar stenosis at L1 through L5 level." (Tr. 112.) On March 31, 1998, Dr. Scheetz performed a "lumbar laminectomy, L1-L5 with micro diskectomy L1-L2." (Tr. 112.)
In June, 1998, Dr. Gary McCarthy, MD, an orthopedist, became Claimant's treating physician. On December 15, 1998, Dr. McCarthy completed a treating physician's final medical-legal evaluation ("FMLE") regarding Claimant's back injury. (Tr. 141.) This report, which was prepared in the context of Claimant's claim for worker's compensation benefits, concludes that Claimant "has sustained a disability to his back limiting him to Semi-Sedentary Work, Category G of the Guidelines for Work Capacity." (Tr. 148.)
On December 22, 1998, Dr. Alan Kimelman examined Claimant and completed an Ortho 90630 Consultative Disability Evaluation, which accounted for Claimant's back and shoulder injuries. (Tr. 193.) Dr. Kimelman has never been Claimant's treating physician. Rather, Dr. Kimelman examined Claimant in connection with Claimant's application for SSDI benefits.
On January 27, 1999, a medical consultant for the Social security Administration prepared a Physical Residual Functional Capacity Assessment. (Tr. 203.) The ALJ asserts that this document's conclusions are "compatible with an exertional capacity for light work." (Tr. 14.) Notably, however, there is no evidence that the person who completed this report ever physically examined Claimant.
On April 13, 1999, McCarthy performed a treating physician's FMLE with respect to Claimant's shoulder injuries. (Tr. 120.) Dr. McCarthy concluded that claimant "has sustained a disability to his upper extremities precluding Repetitive Overhead work, Pushing and Pulling, as well as Heavy Lifting." (Tr. 125.) Regarding the cause of Claimant's shoulder disability, Dr. McCarthy stated:
[Claimant] has sustained a cumulative injury to his shoulders due to his work duties upward of 60 to 70 hours per week, being extremely repetitive with respect to reaching, pushing and pulling, as well as the specific injury to his right shoulder in 1991 . . . It is definitely related to his work. . . . [Claimant] is an extremely stoic individual and, as I stated before, a company man who wanted to work and not make trouble for his employer.
(Tr. 125.)
Also, on April 13, 1999, Dr. McCarthy completed a Medical Source Statement Concerning the Nature and Severity of an Individual's Physical Impairment ("MSS"). He prepared the MSS specifically in relation to Claimant's application for SSDI benefits. Taking into account Claimant's back and shoulder disabilities, Dr. McCarthy concluded that Claimant is not capable of performing either light work or sedentary work on a sustained basis. (Tr. 127, 128.)
III. LEGAL STANDARD
A. Standard of Review.
According to the Act, "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a review of decision by a civil action" in federal district court 42 U.S.C. § 405 (g) (2001). A district court should affirm an ALJ's decision "if it is supported by substantial evidence and based upon the application of correct legal standards." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
A district court should review the record as a whole, not merely the evidence tending to support a finding. Cox v. Califano, 587 F.2d 988, 990 (9th Cir. 1978). "If the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, the court may not substitute its judgment for that of the [Commissioner]." Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1998)
B. Standard for Determining Disability
An individual with a disability is entitled to benefits under the Social Security Act ("the Act"). 42 U.S.C. § 423 (a)(1)(D). One definition of "disability" under the Act is an "inability to any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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).
To determine whether an applicant for DI benefits is disabled with in the meaning of the Act, Defendant follows a five-step process. which is set forth in 20 C.F.R. § 404.1520. The Ninth Circuit provided a summary of these five steps in Lester v. Chater, 81 F.3d 821, 828 n. 5 (1999):
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. It not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
IV. DISCUSSION
Claimant alleges that the ALJ made several errors in the process of determining that Claimant is not eligible for SSDI benefits. Specifically, Claimant identifies at least six errors. They are: (1) the ALJ's finding that Claimant has the residual functional capacity ("RFC"); to perform light work, (2) ALJ's finding that Claimant can return to his past relevant work ("PRW"), (3) The ALJ's finding that Claimant can communicate in English, (4) the ALJ'S failure, in assessing claimants RFC, appropriately to weigh Dr. McCarthy's medical opinions, (5) the ALJ's failure to consider the combination of claimant's impairments when determining Claimants RFC, and (6) the ALJ'S finding that claimant's subjective complaints were not credible.
Because some of the allegedly erroneous determinations are related to each other, and because the issues they address can arise at more than one place in the five-step sequential analysis for the determination of eligibility for disability benefits, we shall proceed by following the logic of that sequential process, and we will address Claimant's allegations as they arise in that process.
A. Steps 1-3
There is no dispute regarding the application of the first three steps of the five-step disability determination process to this case. Regarding step one, Claimant has stated, and the ALJ has found, that Claimant has not been gainfully employed since November 26, 1997, the date on which Claimant injured his back. (Tr. 11, 16.) Regarding step two, it is undisputed that Claimant has at least one severe impairment. (Tr. 16.) Regarding step three, it is undisputed that none of Claimant's impairments is listed in 20 C.F.R. § 404, Subpart P, App. 1. As a result, it is necessary to proceed to step four of the five-step process.
B. Step 4
Step four is where the disagreement begins. The question at step four is whether Claimant can perform his PRW. 20 C.F.R. § 404.1520(e) states the rule:
Your impairment must prevent you from doing past relevant work. If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairment, we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.
The Social Security Administration has issued the following policy statement setting forth the test for whether a claimant can perform his or her PRW:
POLICY STATEMENT: Under sections 404.1521(e) and 416.920(e) of the regulations, a claimant will be found to be "not disabled" when it is determined that he or she retains the RFC to perform:
1. The actual functional demands and job duties of a particular past relevant job; or
2. The functional demands and job duties of the occupation as generally required by employers throughout the national economy.
Soc. Sec. Rul. 82-61 at *2, 1982 WL 31387 (S.S.A.).
Further, "work experience applies (is relevant) when it was done within the last 15 years, lasted long enough for the person to learn to do it and was substantial gainful activity." Id., at *1. (citing 20 C.F.R. § 404.1565 (a) and 20 C.F.R. § 416.965 (a)).
1. RFC to Perform a Particular Past Relevant Job
Nothing in the record suggests that Claimant can perform the actual functional demands of any job he held in the 15 years prior to November 26, 1997. Indeed, even the ALJ's assessment of Claimant's RFC, which Claimant alleges is erroneous, is clearly incompatible with the demands of Claimant's job at MGM Brakes. For example, the ALJ found that Claimant "retains the residual functional capacity to lift up to 20 pounds occasionally or 10 pounds frequently . . . [and] can sit for a total of 6 hours in an 8-hour workday." (Tr. 16.) This is a far cry from lifting upward of 50 pounds more than two thirds of the day, as Claimants job at MGM required. (Tr. 141.) Claimant's treating physician, Dr. McCarthy state the matter most succinctly in his FMLE of December 15, 1998. After stating that Claimant is "permanent and stationary," (Tr. 145.) which means that Claimant's condition is not expected to improve, Dr. McCarthy wrote, "I do not feel Mr. Lopez can return to work as a machine operator and tester for MGM Brakes."(Tr. 148.)
2. RFC to Perform PRW as it is Generally Performed
Since Claimant cannot perform the actual functional demands and duties of a particular past relevant job, we next ask whether Claimant can perform his PRW as it is generally performed in the national economy. Resolution of this question requires comparison of Claimant's RFC to his PRW. 20 C.F.R. § 404.1520 (e).
a. Assessing Claimant's RFC
The ALJ found that Claimant "can still do light work within the context of SSR 83-10." (Tr. 16.) Claimant alleges this is error because (1) the ALJ erroneously discredits the medical opinions submitted by Dr. McCarthy, Claimant's treating physician, and (2) the ALJ wrongly found Claimant's subjective complaints not to be credible.
(1). Discrediting Dr. McCarthy's Opinions
Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians). As a rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.
Lester, 81 F.3d at 830 (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)).
Even if the treating doctor's opinion is contradicted by another doctor, the Commissioner may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record for so doing.
The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician.
Id. (internal citations omitted).
There can be no doubt that the ALJ discredited Dr. McCarthy's medical opinions. The ALJ made two comments that suggest that he was overly skeptical of Dr. McCarthy's FMLEs. In addition, the ALJ provided two reasons for weighing these very same FMLEs more heavily than Dr. McCarthy's MSS dated April 13, 1999, effectively rejecting the conclusions in the MSS. As we shall see, none of these reasons, individually or in combination, can reasonably support the ALJ's skepticism of the FMLEs or his decision to reject the conclusions set forth in the MSS.
The first FMLE, dated December 15, 1998, addressed Claimant's back injury. The second FMLE, dated April 13, 1999, addressed Claimant's shoulder injury.
The first comment the ALJ made impugning the credibility of the FMLEs is that Dr. McCarthy prepared the FMLEs in the context of claimant's claim for worker's compensation ("WC") benefits. The ALJ implied that the FMLEs should be regarded with skepticism because California's WC system is "an adversarial system," (Tr. 12.) and because no medical evidence form the side opposing Claimant's WC claim is in the record in the instant case. This is not a legitimate basis for viewing a medical opinion with extra skepticism. "In rejecting the examining psychologist's opinion, the ALJ considered it to be significant that his reports were clearly obtained by the claimant's attorney for the purpose of litigation. The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them." Lester v. Chater, 81 F.3d at 832 (internal citations omitted). Instead, the ALJ must introduce evidence of "actual improprieties" before he can discredit the medical opinion of a treating physician. Id.
Admittedly, the Ninth Circuit has held that an ALJ may question the credibility of a treating physician where that physicians s opinion letter had been solicited by the claimant's counsel and where the ALJ also presents other valid reasons (for example, "actual improprieties") for rejecting that physician's opinion. Burkhart v. Bowen, 856 F.2d 1335, 1339 (1988). In the instant case, however, the ALJ has presented no other valid reason to discredit Dr. McCarthy's FMLEs. Therefore, the Burkhart rule does not validate the ALJ's attacks on the FMLEs.
The second comment the ALJ made impugning the credibility of the FMLEs is that different terminology is used to describe functional capacity in the context of worker's compensation, on the one hand, and in the context of SSDI, on the other. (Tr. 13.) While it is true that the California WC system and the SSDI system each use some different terms to describe functional capacities, this fact alone does not provide a reasonable basis to discredit for purposes of determining eligibility for SSDI an opinion of a treating physician that uses the language of the California WC regime. For the difference in vocabulary reasonably to support the ALJ's decision to discredit the FMLEs, the ALJ would have to show that the actual terms the doctor used in the FMLEs, which were prepared specifically in reference to Claimant's WC claim, have meanings that are inconsistent with the terms he used in the MSS, which was prepared specifically on reference to Claimant's SSDI claim. The ALJ did not make this showing, despite the fact that he asserted that there is a "contrast" (Tr. 13.) between the functional assessment in Dr. McCarthy's FMLEs, on the one hand, and his MSS, on the other.
In fact, the ALJ cannot make such a showing, because there is no such "contrast." The ALJ claimed that Dr. McCarthy admitted that Claimant "could perform semi-sedentary to even heavy exertion within the context of the State's worker's compensation criteria." (Tr. 12, 13.) Regarding heavy exertion, the ALJ was simply mistaken; nowhere in the record does Dr. McCarthy state that Claimant can perform heavy exertion. Regarding semi-sedentary work, Dr. McCarthy did indeed say in one of the FMLEs that Claimant is limited to semi-sedentary work due to "a disability to his back." (Tr. 146.) In the California WC context, saying someone is limited to performing "semi-sedentary" work contemplates the individual can do work approximately 50% of the time in a sitting position, and approximately 50% of the time in a standing or walking position, with a minimum of demands for physical effort whether standing, walking, or sitting. California Dept. of Industrial Relations, Schedule for Rating Permanent Disabilities, Spine and Torso Guidelines 2-15 (April 1997). This is fully consistent with the opinion Dr. McCarthy rendered in the Social Security context, which was that Claimant cannot perform "sustained sedentary work on a regular and continuing basis, i.e. 8 hours a day, 5 days a week." (Tr. 127.) "Sedentary work" in the Social Security regime is "work performed primarily in a seated position." SSR 83-10 at *5, 1983 WL 31251 (S.S.A.). This means that "sitting would generally total approximately 6 hours of an 8-hour workday." Id. In other words, Dr. McCarthy's conclusion in the WC context that Claimant can perform "semi-sedentary" work means he can sit for no more than approximately four hours in an eight-hour workday, and Dr. McCarthy's conclusion in the Social Security context that Claimant cannot perform sustained sedentary work means that Claimant cannot sit for six to eight hours of an eight-hour workday. Plainly, there is no inconsistency between these two conclusions.
We note also that, while the ALJ implied that Dr. McCarthy's FMLEs are less than reliable, he did not formally discredit them. "In establishing the claimant's RFC, I give little weight to the less than credible testimony provided at the hearing. I also give little weight to Dr. McCarthy's . . . [MSS] for the reasons mentioned." (Tr. 15.) This means that the ALJ should have considered the FMLEs when he concluded that "the remainder of the record indicates that claimant retains the RFC for light work," id., and that Claimant "can sit for a total of 6 hours in an 8-hour workday." (Tr. 15.) However, as explained above, the FMLEs state that claimant can perform only "semi-sedentary" work, a conclusion which clearly conflicts with the ALJ's conclusion that Claimant "can sit for a total of 6 hours in an 8-hour workday." (Tr. 15.) Therefore, the ALJ must have given more weight to the opinion of Dr. Kimelman, an examining physician who concluded that Claimant can sit for up to 6 hours per 8-hour workday (Tr. 193-202.), than to the opinions of Dr. McCarthy, Claimant's treating physycian. As explained above, rejecting the option on a treating physician in favor of an opinion from a non-treating physician is legal error under Lester v. Chater, 81 F.3d at 830, when as here, the ALJ failed to provide "specific and legitimate reasons supported by substantial evidence for so doing."
The first reason the ALJ cited for giving more weight to the FMLEs than to the MSS — and "little weight" to the MSS (Tr. 14.) is that Dr. McCarthy signed the FMLEs, but not the MSS, under the pain of perjury. There is no requirement that medical reports of treating physicians be signed at all, much less signed under pain of perjury. In any event, no one alleges that Dr. McCarthy did not sign the MSS, because he plainly did sign it. (Tr. 133.) Therefore, the fact that Dr. McCarthy did not sign the MSS under the pain of perjury is not a legitimate reason for rejecting, or even discounting, Dr. McCarthy's MSS.
The second reason the ALJ cited for giving more weight to the FMLEs than to the MSS is that the functional assessment in the MSS is "clearly in great variance with" the functional assessment in either of the FMLEs. (Tr. 13.) According to the ALJ, the FMLEs "appear to be much more consistent with the medical evidence and . . . [Dr. McCarthy's] recommendation that the claimant participate in vocational rehabilitation." (Tr. 13-14.) The ALJ concluded that he "[found] no way to reconcile Dr. McCarthy's conflicting functional assessments when given to the state of California on the one hand, and then given in a much more restrictive version to the Social Security Administration." (Tr. 13.)
As stated above, the ALJ may not reject a medical opinion of a claimant's treating physician "without providing specific and legitimate reasons supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d at 830 (internal citations omitted). In this case, the ALJ has not provided the necessary evidence to support his assertion that the functional assessment in the MSS is "in great variance with" the assessments in the FMLEs. Instead, the ALJ merely stated his conclusion and cited, in support of it, certain functional limitations that appear in the MSS.
To be sure, the ALJ did strongly imply that the MSS "clearly" contradicts the following two conclusions contained in the FMLEs: (1) that Claimant "can perform semi-sedentary to even heavy exertion within the context of the State's . . . [WC] criteria," (Tr. 13.), and (2) that Claimant is a candidate for vocational rehabilitation. (Tr. 13.) However, neither of these alleged contradictions is a legitimate reason to discredit the MSS, because it is by no means "clear" that the contradictions exist.
Regarding the first alleged contradiction, we have explained above that: (1) nothing in the record indicates that Dr. McCarthy concluded that Claimant can perform "heavy exertion," and (2) there is no inconsistency between (a) Dr. McCarthy's conclusion, in the FMLE of December 15, 1998, that Claimant can perform semi-sedentary work (Tr. 148.), and (b) his conclusion in the MSS that Claimant is not capable of "performing sustained sedentary work." (Tr. 127.) Since this firs alleged contradiction is no contradiction at all, it is not a legitimate reason to discredit the MSS.
Regarding the second alleged contradiction, it is true that Dr. McCarthy concluded that Claimant "should be considered a candidate for vocational rehabilitation." (Tr. 143.), The ALJ said this means that Claimant "is still able to perform some form of lighter exertional activities" (Tr. 13.), a conclusion which, if true, would be at odds with the MSS. However, the ALJ misinterpreted the meaning of Dr. McCarthy's statement about vocational rehabilitation. The statement actually means that Claimant's
expected permanent disability as a result of [his] injury, whether or not combined with the effects of a prior injury or disability, if any, permanently precludes, or is likely to preclude, . . . [Claimant] from engaging in his . . . usual occupation or the position in which he . . . was engaged at the time of injury.
Cal. Labor Code §§ 4635(a), 4636 (2002). In other words, Dr. McCarthy has concluded that Claimant cannot return to his past relevant work. As such, it is absolutely clear that Dr. McCarthy's conclusion that Claimant is a candidate for vocational rehabilitation: (1) does not contradict the functional assessment he set forth in the MSS, and (2) refutes rather than supports the ALJ's conclusion that Claimant is capable of performing light work. Therefore, it is also clear that this second alleged contradiction is not a legitimate reason to discredit the MSS.
Not only did the ALJ fail to provide specific and legitimate reasons to support his conclusion that the MSS conflicts with the FMLEs, but he never even acknowledged the most obvious explanation for the differences between the functional assessment in the MSS and the functional assessments in the FMLEs: the fact that the FMLEs each account for only one of Claimant's injuries, while the MSS accounts for both. This is despite the fact that the ALJ is obligated to consider the effects of Claimant's injuries in combination when assessing Claimant's RFC. 20 C.F.R. § 404.1520 (a). Had the ALJ properly considered the combined effects of Claimant's injuries, he could not reasonably have concluded that there is "no way to reconcile" the functional assessment in the MSS with the functional assessments in the FMLEs.
The ALJ has failed to provide even one reason why the MSS should not be interpreted in this light.
Take lifting, for example. The MSS says that Claimant can lift a maximum of five pounds for up to one hour per eight-hour workday. (Tr. 129.) The FMLE that addresses Claimant's back injury notes that Claimant's pain is made worse by lifting (Tr. 146.), and the FMLE that addresses Claimant's shoulder injury says that Claimant "has sustained a disability to his upper extremities precluding . . . Heavy Lifting." (Tr. 125.) To discredit the MSS, it is insufficient for the ALJ to imply without explaining that the limitation on lifting in the MSS cannot be reconciled with the combination of the lifting limitations imposed in response to each of Claimant's two injuries. Yet this is all the ALJ did — even though it is perfectly easy to reconcile the five-pound lifting limitation with the FMLEs by acknowledging that the combination of both injuries may limit Claimant's ability to lift more than either injury might on its own; common sense tells us that one uses and stresses both one's back and one's shoulders when one lifts and carries items.
Similar logic refutes the ALJ's unadorned implications that the requirement in the MSS that Claimant lie down for two hours of each eight-hour workday and the limitations in the MSS on standing and walking cannot be reconciled with the FMLEs.
Regarding the requirement to lie down: not only did the ALJ fail to support his implication with substantial evidence, but a review of the record as a whole that accounts for the combined effects of Claimant's back and shoulder injuries tends strongly to refute the ALJ's implication. After all, (1) Claimant has undergone surgery on his shoulder and extensive back surgery, (2) even Dr. Kimelman, whose opinion the ALJ seems to respect more than Dr. McCarthy's, stated that Claimant's back surgery was only "minimally successful in reducing pain," (Tr. 193.), and (3) Claimant has performed a physically strenuous job for over 23 years — a job where he "worked upward of 60-70 hours per week" (Tr. 125.) and where he "lifted upward of 50 pounds more than two thirds of the day." (Tr. 141.)
Regarding the limits on standing and walking: a review of one record as a whole again tends to refute the ALJ's unsupported implication. The ALJ implied that Dr. McCarthy's conclusion in the MSS that Claimant can: (1) stand for up to 15 minutes at a time for a total of one hour in an eight-hour workday (Tr. 129.), and (2) walk for 10 minutes at a time for a total of one hour an eight-hour workday cannot be reconciled with Dr. McCarthy's conclusion in his FMLEs or with the rest of the evidence in the record. The FMLE of December 15, 1998, indicates that Claimant "complains of pain in his lower back with radiation into his legs, made worse with walking, prolonged sitting, bending and twisting, as well as lifting . . . [and that] his legs feel tired." (Tr. 145.) Even Dr. Kimelman's report confirms this; he writes that "[b]ending, squatting, prolonged sitting or standing or carrying heavy items aggravate pain complaints." (Tr. 193.) (emphasis added.) While the FMLE of December 15, 1998, does indicate that Claimant reports that "he can stand for 20-30 minutes" (Tr. 142.), this is hardly sufficient grounds for the ALJ to conclude that "there is no way to reconcile" the limitations on standing in the MSS with those in the FMLEs. Furthermore, while it is true that one hour each of standing and walking may seem inconsistent with the semi-sedentary rating that implies that a worker would stand/walk for up to four hours in an eight-hour workday, the requirement that Claimant lie down for two hours in an eight-hour workday, accounts for the two-hour difference. If Claimant sits for four hours and lies down for two hours in an eight-hour workday, he has only two hours left in the day; these are the two hours Dr. McCarthy has allotted to sitting/standing.
This is true for at least two reasons. First, it is easy to imagine that Dr. McCarthy limited Claimant to 15 minutes of standing at a time to avoid the onset of pain that Claimant experiences when he stands for 20-30 minutes. Reconciliation is, therefore, easy here. Second, and most importantly, when an ALJ rejects an opinion of a claimant's treating physician, the burden on the ALJ to provide specific and legitimate reasons supported by substantial evidence in the record to support that rejection. Lester v. Chater, 81 F.3d at 830. In the instant case, the ALJ presented no such evidence.
This requirement is presumptively valid under Lester v. Chater, 81 F.3d at 830.
As demonstrated above, the evidence as a whole cannot reasonably support the ALJ's conclusion that no reconciliation is possible between the functional assessment in the MSS and the functional assessments in the FMLEs. As a result, neither the ALJ's categorical denial of any reconciliation between the MSS and the FMLEs nor the ALJ's rejection of the MSS is supported by substantial evidence. Accordingly, the MSS shall be given full credit as a matter of law. Lester v. Chater, 81 F.3d at 834 ("Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion as a matter of law.") (internal citations omitted).
(2). Discrediting Claimant's Subjective Complaints
Claimant also argues that the ALJ erred in concluding that Claimant's subjective complaints were not credible. For the ALJ to reject the claimant's complaints, the ALJ must "make an explicit credibility finding" that is "supported by a specific, cogent reason for the disbelief." Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (internal citations omitted). Once the claimant produces "medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain . . ., the [Commissioner] may not discredit the claimant's allegation of the severity of pain solely on the ground that the allegations are unsupported by objective evidence." Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). In this case, the ALJ cited seven reasons for finding Claimant's subjective complaints not to be credible. As discussed below, none of these reasons, individually or in combination, provides sufficient basis for the ALJ's finding regarding Claimant's credibility.
The ALJ's first reason for discrediting Claimant's subjective complaints is that Claimant "is not receiving any kind of ongoing medical care related to pain or the treatment of his symptoms." (Tr. 14.) However, the record contains a history of significant post-operative care. Claimant had extensive back surgery on March 31, 1998, followed by doctor's visits on April 7, 1998, June 15, 1998, July 20, 1998, September 21, 1998, and November 30, 1998. Claimant had 24 physical therapy sessions between May 8, 1998, and July 17, 1998, during which time Claimant neither missed nor canceled a single appointment. (Tr. 192.)
It is true that the record contains no evidence that Claimant has visited a doctor for his injuries after November 30, 1998, but this alone cannot reasonably lead to the conclusion that his complaints are not credible. First, we have no evidence that Claimant has not sought treatment after November 30, 1998. Second, there is evidence that Claimant is taking pain medications. (Tr. 97, 102, 142, 194.) Third, the medical evidence we do have indicates that his back and shoulder disabilities are "permanent and stationary . . ." (Tr. 124, 145.) Fourth, even Dr. Kimelman, whose opinion the ALJ held in such high regard, reported that Claimant's back surgery was only "minimally successful in treating pain." (Tr. 193.) Notably, Dr. Kimelman also reported that Claimant has pain when performing a task as simple as removing his shoes. (Tr. 193.) And fifth, the medical opinions clearly corroborate Claimant's complaints that his shoulder and back pain result from his work-related shoulder and back injuries, respectively. Regarding Claimant's shoulder pain, Dr. McCarthy wrote:
[Claimant] has sustained a cumulative injury to his shoulders due to his work duties upward of 60 to 70 hours per week, being extremely repetitive with respect to reaching, pushing and pulling, as well as the specific injury to his right shoulder in 1991. . . . [The shoulder injury] is definitely related to his work. Mr. Lopez is an extremely stoic individual and, as I stated before, a company man who wanted to work and not make trouble for his employer.
(Tr. 125.) Regarding Claimant's back pain, Dr. McCarthy wrote, "The mechanism of [Claimant's back] injury is consistent with the onset of L1-2 disc herniation. His spinal stenosis was quiescent and was brought to light by this injury." (Tr. 146.) So, when considered with the record as a whole, the absence of evidence of doctor visits after November 30, 1998, cannot reasonably be said to constitute a specific, cogent reason to discount the credibility of Claimant's subjective complaints. Rather, it is a mere scintilla of support for the ALJ's finding that Claimant's subjective complaints are not credible.
The ALJ's second reason for discrediting Claimant's subjective complaints is that "the general nature, onset, duration, location and intensity of . . . [Claimant's] symptoms are vague and non-specific." (Tr. 14.) First, this is clearly not true. To cite just one example, we know that Claimant's back pain began on November 26, 1997, the date he felt a snap in his back. As a result of this, Claimant received extensive medical treatment, which is documented in the record. Second, even if the ALJ's conclusion were correct, the ALJ has not met his burden of supporting his contention adequately. Lester v. Chater, 81 F.3d at 834 ("General findings [of vague symptoms, etc.] are is insufficient rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.") In this case, the ALJ has singled-out none of Claimant's testimony for this purpose, nor has he identified any specific evidence that supports his contention. Therefore, the ALJ's assertion that Claimant's symptoms are vague and non-specific is not supported by substantial evidence.
The ALJ's third reason for discrediting Claimant's subjective complaints is that "there is no indication of aggravating or precipitating factors except if the claimant tries to over-exert and engage in medium or heavy exertional activities, i.e. it appears these are his only physical preclusions." (Tr. 14.) As demonstrated by the medical reports as well as the testimony of Claimant and of Claimant's wife, this is plainly false and unsupported by substantial evidence in the record.
The medical reports demonstrate that Claimant experiences pain even when he does not over-exert himself. For example, Dr. Kimelman reported that: (1) Claimant has pain when removing his shoes (Tr. 195.), and (2) "bending, squatting, prolonged sitting or standing or carrying heavy items aggravate pain complaints." (Tr. 193.) In similar fashion, Dr. McCarthy reported that: (1) Claimant "reports that he cannot bend, twist, or lift. He can stand for 20-30 minutes," (Tr. 141.), (2) Claimant "complains of pain in his lower back whit radiation into his legs, made worse with walking, prolonged sitting, bending, and twisting, as well as lifting," (Tr. 148.), (3) Claimant "was particularly bothered at rest by his shoulder," (Tr. 121.), and (4) Claimant "complains that overhead work bothers him. Lifting bothers him, as well as pushing and pulling." (Tr. 121.)
Claimant testified that: (1) he can walk only 10 minutes before pain begins (Tr. 28.), (2) he can sit only 10-15 minutes before pain begins (Tr. 29.), and (3) he encounters problems with prolonged standing, causing him to rest frequently by changing positions or by reclining 4-5 times per day, for about 30 minutes each. (Tr. 29.)
Claimant's wife testified that: (1) Claimant almost drowned in a pool because he could not move his arms and shoulders well enough to keep himself afloat (Tr. 32.), and (2) Claimant "loves walking and he can't walk for a long time anymore." (Tr. 33.)
The ALJ's fourth reason for discrediting Claimant's subjective complaints is that if Claimant "had all the medical evidence related to his worker's compensation and Social Security claims stricken from the record, there is virtually no other ongoing care from any treating source." (Tr. 14.) This may be true. However, even if it were true, it could not possibly be deemed evidence that Claimant's subjective complaints are not credible. There is no requirement that a claimant provide medical evidence unrelated to WC or SSDI claims to bolster the credibility of his own subjective complaints. There is a good reason for the absence of such a rule: it would create a standard that is literally impossible to meet. After all, any medical evidence an SSDI applicant provides to support his application for SSDI benefits is, by definition, related to his SSDI claim.
The rule that actually governs this situation is quite different than the one the ALJ implied. Once the claimant produces "medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain . . ., the [Commissioner] may not discredit the claimant's allegations of the severity of pain solely on the ground that the allegations are unsupported by objective evidence." Bunnell v. Sullivan, 947 F.2d at 343. The ALJ has violated this rule; the absence of medical evidence unrelated to Claimant's WC or SSDI claims is not a legitimate reason to discredit the credibility of Claimant's subjective complaints.
The ALJ's fifth reason for discrediting Claimant's subjective complaints is that Claimant's "surgeries have been successful." (Tr. 14.) To the extent that the surgeries have brought Claimant some relief from his pain, the ALJ's statement is partially true. However, one must not pretend that the surgeries erased all, or even most of Claimant's systems; even Dr. Kimelman reported that Claimant's back surgery was only "minimally successful in reducing pain."(Tr. 192.) More fundamentally, however, the ALJ again ran afoul of the Bunnell rule. Bunnell v. Sullivan, 947 F.2d at 343 (Once the claimant produces "medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain . . ., the [Commissioner] may not discredit the claimant's allegations of the severity of pain solely on the ground that the allegations are unsupported by objective evidence."). This means that, even if Claimant's surgery were completely successful, that, by itself, still would not be a legitimate reason to discredit the credibility of Claimant's subjective complaints.
The ALJ's sixth reason for discrediting Claimant's subjective complaints is that Claimant "did not undergo biofeedback, acupuncture, attend a pain clinic, use a TNS unit or have physical findings consistent with chronic pain." (Tr. 14-15.) Instead, the ALJ said Claimant's "general physical examination was normal." (Tr. 15.) To support this contention, the ALJ cited Dr. Kimelman's report. (Tr. 193.)
Here again, the ALJ was clearly wrong. First, there is evidence that Claimant underwent 24 physical therapy sessions. (Tr. 192.) Second, the very report cited by the ALJ reveals that Claimant: (1) continues to suffer pain from both his shoulder and back injuries (Tr. 193.), and (2) experiences pain when simply removing his shoes. (Tr. 195.) Furthermore, the ALJ again ran afoul of the Bunnell rule. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc) (Once the claimant produces "medical evidence of an underlying impairment which is reasonably likely to be the cause of the alleged pain . . ., the [Commissioner] may not discredit the claimants' allegations of the severity of pain solely on the ground that the allegations are unsupported by objective evidence."). This sixth reason, therefore, is not a legitimate reason to discredit the credibility of Claimant's subjective complaints.
The ALJ's seventh reason for discrediting Claimant's subjective complaints is that, "at the hearing, the claimant testified in a relaxed manner and did not appear to have any pain or discomfort which could be observed by a layman." (Tr. 15.) The ALJ correctly acknowledged that his assessment of Claimant's demeanor at the hearing is insufficient, on its own, to discredit claimant's subjective complaints. Id. As shown above, none of the other reasons cited by the ALJ for discrediting Claimant's subjective complaints is legitimate. As a result, the ALJ's assessment of Claimant's demeanor at the hearing stands alone as it tries to support the ALJ's finding that Claimant's subjective complaints are not credible. Yet standing alone, it cannot succeed. The unavoidable conclusion is that the ALJ has not provided a legally sufficient basis for his finding that Claimant's subjective complaints are not credible.
The ALJ's erroneous decisions to discredit Dr. McCarthy's medical opinions and to find Claimant's subjective complaints not to be credible led the ALJ to conclude erroneously that Claimant is capable of performing light work. Properly considered, the record shows that Claimant is capable of performing less that the full range of sedentary work. (Tr. 127.)
b. Assessing Claimant's PRW
Claimant argues that the ALJ erred in classifying Claimant's PRW as that of a "general assembler," an occupation that can be performed at the light level of exertion. Claimant is correct. The correct classification, as far as the record is concerned, is "assembler, automotive," an occupation that cannot be performed at anything lower than the medium level of exertion. (Tr. 35-36.) The vocational expert explicitly testified that: (1) there are no jobs that can be performed at the light level of exertion in the "assembler, automotive" classification (Tr. 36.), and (2) Claimant cannot perform his PRW if he is restricted to jobs at or below the light level of exertion. (Tr. 36.)
As the vocational expert testified in front of the ALJ, Claimant has worked in the occupation called "assembler, automotive" for "his entire work life." (Tr. 35.)
Therefore, while the ALJ's statement that general assembly jobs are available at the sedentary level of exertion (Tr. 15.) may be correct, it is irrelevant at Step 4 of the disability determination process, because Claimant's occupation was not that of a "general assembler."
However, it should also be noted that neither "general assembler" nor "assembler, automotive" seems to describe the functional requirements of Claimant's job as well as "Quality Assurance Monitor," which is defined as follows:
806.367.018 QUALITY ASSURANCE MONITOR (auto mfg.)
Inspects and tests assembled motor vehicle, components, and parts as vehicle and subassemblies proceed through states of assembly process, performing any combination of following tasks. to assure that assembly work and materials meet establishment and regulatory standards, using conventional and electronic test equipment and machines: . . . Inspects and test chassis parts components, such as engine and transmission, and suspension, brake, and exhaust systems.
U.S. Department of Labor, Dictionary of Occupational Titles, Vol. II, Fourth Edition, (1991). This description seems perfectly to match the functional description of Claimant's work, at MGM quoted earlier in this Order.
A definitive classification of Claimant's PRW is not, however, essential to a final determination of Claimant's ability to return to his PRW as it is generally performed in the national economy. The record shows that when a worker must "lie down and rest two to three times a day for 30 minutes, there is no job in the United States [that he can perform]. The employment base is eroded." (Tr. 38, 39.) The medical evidence indicates that Claimant must lie down and rest for two hours in an eight-hour workday. (Tr. 129.) Therefore, there are no jobs in the national economy that Claimant can perform. By definition, then, Claimant does not have the RFC to perform his PRW, no matter how his PRW is classified.
It should also be noted that the ALJ's conclusion that Claimant is still capable of performing his PRW directly contradicts no fewer than three documents produced by the Social Security Administration that make the opposite conclusion. (Tr. 45, 47, 55.)
C. Step 5
Because Claimant is not able to perform his PRW, we proceed to Step 5 of the sequential analysis for disability determination. The question here is whether Claimant, given his RFC and his age, education, and work experience, can engage in any other substantial gainful work which exists it the national economy. SSR 83-10 at *1, 1983 WL 31251 (S.S.A.).
To answer this question, we look first to the Medical-Vocational Rules that appear at 20 C.F.R. Pt. 220, App.2.
In using the rules of Appendix 2, we compare an individual's circumstances, as indicated by the findings with respect to RFC, age, education, and work experience, to the pertinent rule(s). Where the findings regarding each factor coincide with the criteria for the corresponding factor in a rule, that rule applies and directs a decision of "Disabled" or "Not disabled." Where one or more of the criteria of a rule are not met, no decision is directed; instead, the rules are used . . . as guidance for decision making.
SSR 83-10 at *1, 1983 WL 31251 (S.S.A.). Rule 201.09 directs a determination of "disabled" when a claimant: (1) has a maximum sustained work capability that is limited to sedentary work as a result of one or more severe medically determinable impairments, (2) is closely approaching advanced age, (3) has an education characterized as "limited or less," and (4) has unskilled or no previous work experience. 20 C.F.R. Pt. 220, App. 2, Rule 201.09.
Claimant satisfies the first requirement of Rule 201.09, because his severe, medically determinable impairments reduce his maximum sustained work capability to less than the full range of sedentary work. (Tr. 127.)
In fact, even Claimant's back injury alone precludes Claimant from performing light work, because, as discussed above, Dr. McCarthy's restriction of Claimant to "semi-sedentary" work (Tr. 148.) precludes a finding that Claimant is capable of performing "light work" as defined in SSR 83-10 at *5, 1983 WL 31251 (S.S.A.)
Claimant satisfies the second requirement of Rule 201.09. Advanced age is defined as age 55 and over. 20 C.F.R. Pt. 220, App. 2, Rule 201.00(d). One who is age 50-54 is "approaching advanced age." 20 C.F.R. Pt. 220, App. 2, Rule 201.00(g). Claimant was born on May 25, 1947. This means (1) he was 50 years old on November 26, 1997, the day he injured his back, and (2) he is 55 years old today.
Claimant satisfies the third requirement of Rule 201.09. His education is indisputably "limited" — the record clearly indicates that Claimant has only a third grade education. (Tr. 27.)
Because Rule 201.09 rather than 202.09 governs this case, there is no need for this Court to decide whether Claimant is "illiterate or unable to communicate in English" as Rule 202.09 requires.
Claimant also satisfies the fourth requirement of Rule 201.09. The testimony of the vocational expert before the ALJ clearly states that, for "his entire work life . . . [Claimant has] worked in . . . an unskilled job." (Tr. 35, 39.)
Therefore, Rule 201.09 directs a decision that Claimant is disabled.
IV. CONCLUSION
For the reasons set forth above, this Court hereby: (1) GRANTS Claimant's motion for summary judgment, (2) DENIES Defendant's cross-motion for summary judgment, and (3) directs Defendant to pay to Claimant all disability insurance benefits to which he is entitled.
IT IS SO ORDERED.