Opinion
CV 20-00409-TUC-RM (LAB)
04-13-2022
Katy Ann Whittaker, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN, UNITED STATES MAGISTRATE JUDGE
The plaintiff, Katy Ann Whittaker, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 11)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner. The ALJ's evaluation of Whittaker's residual functional capacity (RFC) is not supported by substantial evidence. The ALJ based her RFC on the administrative medical findings of Carol Hutchinson, D.O. Hutchinson, however, conducted her evaluation before definitive MRI studies of Whittaker's spine were available.
PROCEDURAL HISTORY
On August 31, 2017, Whittaker filed an application for disability insurance benefits and an application for supplemental security income. (Doc. 20-3, p. 14) She alleged disability beginning on May 28, 2017, due to liver disease, fibromyalgia, chronic fatigue, diabetes, degenerative disc disease, high cholesterol, depression, and obesity. (Doc. 20-3, p. 14); (Doc. 20-7, p. 16)
Whittaker's applications were denied initially and upon reconsideration. (Doc. 20-3, p. 14) She requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Laura Speck Havens on July 11, 2019. (Doc. 20-3, p. 33) In her decision, dated September 26, 2019, the ALJ found that Whittaker was not disabled because she can perform her past relevant work as a customer complaint clerk. (Doc. 20-3, p. 25) In the alternative, the ALJ found that there are jobs in the national economy that she can perform considering her age, education, work experience, and residual functional capacity - Cashier II, Marker, and Sales Attendant. (Doc. 20-3, p. 26) Whittaker requested review, but on July 29, 2020, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 20-3, p. 2) She subsequently filed this action appealing that final decision. (Doc. 1)
Medical Record
In November of 2017, Dennis Swena, M.D., reviewed the medical record for the state disability determination services. He opined that Whittaker's physical impairments were not severe. (Doc. 20-4, p. 16)
On reconsideration, Carol Hutchinson, D.O., reviewed the medical record for the state disability determination services in February of 2018. (Doc. 20-4, pp. 28-32) She opined that Whittaker could lift and/or carry 20 pounds occasionally and 10 pounds frequently. Id. She could stand or walk about 6 hours in an 8-hour day. Id. She could sit about 6 hours in an 8-hour day. Id. She could occasionally climb ramps, stairs, ladders, ropes, or scaffolds. Id. She could occasionally kneel, crouch, or crawl. Id. She should avoid concentrated exposure to extreme heat, humidity, fumes, odors, dusts, gases, poor ventilation, and hazards. Id. The ALJ's assessment of Whittaker's residual functional capacity (RFC) appears to have been based primarily on Hutchinson's opinions.
In May of 2018, MRI studies were conducted of Whittaker's lumbar vertebrae. (Doc. 20-3, p. 22, Ex. 22F/3); (Doc. 20-13, pp. 43-44) These studies showed “moderate to severe degenerative disc disease.” (Doc. 20-13, pp. 43-44) Cervical MRI studies were conducted in June of 2018. (Doc. 20-3, p. 22) Needle electromyography (EMG) was also conducted in June of 2018. Id.
In June of 2019, Nora Saul, FNP, completed a Physical Residual Functional Capacity Questionnaire. (Doc. 20-18, pp. 80-81) Saul opined that, because of her back and neck pain, Whittaker could stand or walk for 0 hours in an 8-hour day. Id. She could sit for 7 hours in an 8-hour day, but she must change positions every 20 minutes. Id. She can handle objects only 10% of the time. She would need four additional breaks during the day. Id. She would likely be absent from work 3-4 days per month due to her impairments. Id.
CLAIM EVALUATION
To qualify for disability benefits the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). “An individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she] would be hired if [she] applied for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If so, then the claimant is not disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a determination at step two, the ALJ uses medical evidence to evaluate whether the claimant has an impairment that significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes there is no severe impairment, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and no further inquiry is necessary. If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545, 416.945.
“There are two ways for the [ALJ] to meet the burden of showing that there is other work in ‘ significant numbers' in the national economy that [the] claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 [the grids].” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
The ALJ's Findings
At step one of the disability analysis, the ALJ found that Whittaker “has not engaged in substantial gainful activity since May 28, 2017, the alleged onset date. . . .” (Doc. 20-3, p. 17) At step two, she found Whittaker “has the following severe impairments: fibromyalgia, diabetes, degenerative disc disease, obesity, asthma, and migraine headaches . . . .” (Doc. 20-3, p. 17)
At step three, the ALJ found that Whittaker's impairments did not meet or equal the criteria for any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R., Part 404. (Doc. 20-3, p. 19)
The ALJ then analyzed Whittaker's residual functional capacity (RFC). She found that Whittaker “has the residual functional capacity to perform light work . . . except the claimant can sit 6 hours out of an 8-hour day, stand 6 hours out of an 8-hour day, and walk 6 hours out of an 8-hour day. The claimant can occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds. She can occasionally climb stairs and ladders, kneel, crouch, and crawl and frequently balance and stoop. The claimant can have only occasional exposure to heights, moving machinery, humidity, temperature extremes, dust, fumes and smoke.” (Doc. 20-3, p. 21) The ALJ's assessment of Whittaker's residual functional capacity appears to have been based primarily on the opinions of the non-examining state agency consultant, Hutchinson.
At step four, the ALJ found that Whittaker “is able to perform past relevant work as a customer complaint clerk.” (Doc. 20-3, p. 25) This finding was based on the testimony of the vocational expert, who opined at the hearing that a person with the RFC proposed by the ALJ could perform this job. Id. At step five, the ALJ found in the alternative, based on the testimony of the vocational expert, that, considering her age, education, work experience, and residual functional capacity (RFC), Whittaker can work as a Cashier II, Marker, or Sales Attendant. (Doc. 20-3, pp. 25-26)
STANDARD OF REVIEW
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the [Commissioner's] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
The Commissioner need not accept the claimant's subjective testimony of disability, but if she decides to reject it, she must justify her decision. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). “[W]ithout affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion
Whittaker maintains that the ALJ's evaluation of her RFC is not supported by substantial evidence. Specifically she argues the ALJ should not have discounted her subjective testimony of disability or the opinions of her treating nurse practitioner, Nora Saul. The court agrees that the ALJ's evaluation of Whittaker's RFC is not supported by substantial evidence, but it identifies a more fundamental reason. See also 42 U.S.C. § 405(g) (“The court shall have the power to enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security. . . .”).
When evaluating Whittaker's RFC, the ALJ rejected her subjective testimony and discounted the opinions of her treating nurse practitioner. Instead, the ALJ relied primarily on the prior administrative medical findings of Carol Hutchinson, who found that Whittaker could perform light work with a few additional limitations. (Doc. 20-3, p. 24) (“The undersigned finds the prior administrative medical findings of Carol Hutchinson, D.O., persuasive.”) Specifically, Hutchinson found that Whittaker could lift and/or carry 20 pounds occasionally and 10 pounds frequently, could stand or walk about 6 hours in an 8-hour day, and could sit about 6 hours in an 8-hour day. (Doc. 20-4, pp. 28-32) Hutchinson's assessment was conducted in February of 2018. (Doc. 20-4, pp. 28-32)
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
Whittaker's lumbar MRI studies, however, were not conducted until May of 2018. (Doc. 20-3, p. 22, Ex. 22F/3); (Doc. 20-13, pp. 43-44) The Commissioner acknowledges that these studies showed “moderate to severe degenerative disc disease.” (Doc. 26, p. 4) (citing AR 1084-85); (Doc. 20-13, pp. 43-44) Cervical MRI studies were conducted in June of 2018. (Doc. 20-3, p. 22) Needle electromyography (EMG) was also conducted in June of 2018. Id.
Hutchinson's evaluation of Whittaker's functional limitations, therefore, was conducted before definitive objective medical evidence of her degenerative disc disease was available. Her findings regarding Whittaker's exertional and postural limitations are therefore unreliable. The ALJ's evaluation of Whittaker's RFC, which was based on Hutchinson's findings, is not supported by substantial evidence. See, e.g., Rowe v. Comm'r of Soc. Sec., 2021 WL 3565442, at *6 (N.D. Cal. 2021) (“The Court finds that Dr. Rubio's opinion does not qualify as substantial evidence. His February 2017 assessment predates a substantial portion of the medical records, including the April 2017 MRI of Rowe's cervical spine . . . and the March 2018 MRI of her lumbar spine.”).
In other words, her findings are not supported by or consistent with the medical record as a whole contrary to the Commissioner's argument. See (Doc. 26, p. 10) (citing 20 C.F.R. § 404.1520c(b)(2))
The ALJ did review the MRI studies herself and did find that Whittaker's allegation of disabling back pain was inconsistent with medical records indicating normal gait, clear lungs, and conservative treatment. (Doc. 20-3, pp. 23-24) The ALJ, however, is not a medical doctor and cannot calculate an RFC directly from the raw medical record. See Rosales v. Astrue, 2011 WL 2565406, at *7, n. 8 (C.D. Cal. 2011) (“[T]he ALJ's inclusion of additional limitations ‘in light of the MRI findings' constitutes a medical finding that the ALJ is not qualified to make.”); Langston v. Comm'r of Soc. Sec., 2019 WL 3546836, at *5 (E.D. Cal. 2019) (“The ALJ is not a doctor and is not qualified to substitute [her] own interpretation of the medical evidence for the opinion of medical professionals.”); Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) (“An ALJ cannot arbitrarily substitute [her] own judgment for competent medical opinion . . . and [she] must not succumb to the temptation to play doctor and make [her] own independent medical findings. Rather, the ALJ's RFC determination or finding must be supported by medical evidence, particularly the opinion of a treating or an examining physician.”) (punctuation modified); see also Hartley v. Colvin, 2015 WL 9997207, at *7 (D. Ariz. 2015) (collecting cases), report and recommendation adopted, 2016 WL 407370 (D. Ariz. 2016).
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.