Opinion
Case No. 3:14-cv-00117 TMB
09-03-2015
Xia Her, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
Joseph A. Kalamarides, Kalamarides & Lambert Incorporated, Anchorage, AK, for Plaintiff. Catherine Cecilia Escobar, Social Security Administration, Seattle, WA, Gary M. Guarino, U.S. Attorney's Office, Anchorage, AK, for Defendant.
Joseph A. Kalamarides, Kalamarides & Lambert Incorporated, Anchorage, AK, for Plaintiff.
Catherine Cecilia Escobar, Social Security Administration, Seattle, WA, Gary M. Guarino, U.S. Attorney's Office, Anchorage, AK, for Defendant.
ORDER REMANDING FOR AN AWARD OF BENEFITS
Docket 10
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Claimant, Xia Her, filed an application for Supplemental Security Income which Defendant, the Commissioner of Social Security, denied. Claimant has exhausted her administrative remedies and seeks relief from this Court, arguing that the Commissioner's decision that she is not disabled within the meaning of the Social Security Act is not supported by substantial evidence. Claimant seeks a remand of the Commissioner's decision and an award of benefits.
Dkt. 10.
Claimant has filed an opening brief on the merits, construed by this Court as a motion for summary judgment. Defendant opposes, arguing the denial of benefits is supported by substantial evidence and free of legal error; Claimant replied. For the reasons set forth below, Claimant's Motion for Summary Judgment at Docket 10 is GRANTED and this matter is REMANDED for an award of benefits.
Id.
Dkt. 13.
Dkt. 14.
II. STANDARD OF REVIEW
The findings of the Administrative Law Judge ("ALJ") or Commissioner of Social Security regarding any fact shall be conclusive if supported by substantial evidence. A decision to deny benefits will not be overturned unless it either is not supported by substantial evidence or is based upon legal error. "Substantial evidence" has been defined by the United States Supreme Court as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Such evidence must be "more than a mere scintilla," but is "less than a preponderance." In making its determination, the Court considers the evidence in its entirety, weighing both the evidence that supports and that which detracts from the Commissioner's conclusion. If the evidence is susceptible to more than one rational interpretation, the ALJ's conclusion must be upheld.
See 42 U.S.C. § 405(g) (2010).
Matney ex rel Matney v. Sullivan , 981 F.2d 1016, 1019 (9th Cir. 1992)(citing Gonzalez v. Sullivan , 914 F.2d 1197, 1200 (9th Cir. 1990)).
Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)(quoting Consol. Edison Co. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
Perales , 402 U.S. at 401, 91 S.Ct. 1420; Sorenson v. Weinberger , 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975).
Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985).
Gallant v. Heckler , 753 F.2d 1450, 1452–53 (9th Cir. 1984).
III. DETERMINING DISABILITY
The Social Security Act (the "Act") provides for the payment of disability insurance benefits ("DIB") to people who have contributed to the Social Security program and who suffer from a physical or mental disability. In addition, supplemental security income benefits ("SSI") may be available to individuals who are blind, disabled, or are 65 or over, but who do not have insured status under the Act. Disability is defined in the Social Security Act as follows:
42 U.S.C. § 423(a) (2011).
42 U.S.C.§ 1381 (2011).
[I]nability to engage in 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 continuo us period of not less than 12 months.
42 U.S.C.§ 423(d)(1)(A) (2011).
The Act further provides:
An individual shall be determined to be under a disability only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his 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 he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.
42 U.S.C. § 423(d)(2)(A) (2011).
The Commissioner has established a five-step process for determining disability. Claimant bears the burden of proof at steps one through four. The burden shifts to the Commissioner at step five. The steps, and the ALJ's findings in this case, are as follows:
Tackett v. A p fel 180 F.3d 1094, 1098 (9th Cir. 1999).
Id.
Step 1. Determine whether the claimant is involved in "substantial gainful activity." The ALJ concluded Claimant had not engaged in substantial gainful activity since April 11, 2012, the application date. Tr. 15 .
Step 2. Determine whether the claimant has a medically severe impairment or combination of impairments. A severe impairment significantly limits a claimant's physical or mental ability to do basic work activities, and does not consider age, education, or work experience. The severe impairment or combination of impairments must satisfy the twelve-month duration requirement. The ALJ concluded that Claimant has the following severe impairments: varicose veins, an affective disorder, and a dependent personality disorder. The ALJ found that Claimant's impairments are "severe" because "the combined medical evidence of record supports a finding that they have caused more than a minimal effect on the claimant's ability to perform basic work activities." Tr. 16 . Step 3. Determine whether the impairment is the equivalent of a number of listed impairments listed in 20 C.F.R. § 404, Subpt. P, App. 1 that are so severe as to preclude substantial gainful activity. If the impairment is the equivalent of one of the listed impairments and meets the duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation goes on to the fourth step. According to the ALJ, Claimant does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. Tr. 16 .
Residual Functional Capacity . Before proceeding to step four, a claimant's residual functional capacity ("RFC") is assessed. This RFC assessment is used at both step four and step five. In evaluating her RFC, the ALJ concluded that Claimant had the RFC to perform light work, with some limitations. Tr. 18 .
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2011).
Step 4. Determine whether the impairment prevents the claimant from performing work performed in the past. At this point the analysis considers the claimant's residual functional capacity and past relevant work. If the claimant can still do his or her past relevant work, the claimant is deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that Claimant did not have past relevant work experience pursuant to 20 C.F.R. § 416.965. Tr. 22 .
Step 5. Determine whether the claimant is able to perform other work in the national economy in view of his or her age, education, and work experience, and in light of the residual functional capacity. If so, the claimant is not disabled. If not, the claimant is considered disabled. Based on the testimony of the vocational expert, the ALJ found that there are jobs that exist in significant numbers in the national economy that Claimant can perform, including small parts assembler and fabricator, and small products cleaner and polisher. Tr. 23 .
Claimant bears the burden of proof at steps one through four. The burden shifts to the Commissioner at step five. The Commissioner can meet this burden "(a) by the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2." In this case, the ALJ based its determination on the testimony of a vocational expert.
Tackett , 180 F.3d at 1098.
Id.
Id. at 1099.
IV. DISCUSSION
A. Issues on Appeal
The Court finds no error in the ALJ's analysis and findings under Step 1 (Substantial Activity), and Claimant does not contest the ALJ's findings under this step. Nor does Claimant complain of error at Step 2 or Step 3. Rather, Claimant complains that the ALJ erred in rejecting the opinion of the treating physician, the ALJ's decision that Claimant's testimony was not credible was unsupported, and the ALJ's determination of Claimant's RFC was flawed.
1. Treating physician's opinion
The ALJ did not credit the opinion of Claimant's treating physician, Dr. Sharon Smith. Generally, the ALJ must give more weight to the opinion of a treating physician over the opinion of a non-treating physician. Specifically,
The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant.
Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons supported by substantial evidence in the record. Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. The ALT must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.
Reddick v. Chater , 157 F.3d 715, 725 (9th Cir. 1998); see also Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996)(internal citations and quotation marks omitted).
Dr. Smith's opinion was that Claimant (1) could not perform full-time work activities, and (2) was limited to standing and walking for short periods of time. The ALJ gave little weight to this opinion because it was inconsistent with Claimant's reports and was not supported by Dr. Smith's own treatment records of Claimant's improvement. Instead of giving weight to the treating physician's finding—that Claimant was unable to work or attend school for at least 12 months—the ALJ gave great weight to Drs. Campbell's and Feigin's opinions, a one-time examining consultative physician and a non-examining medical expert, respectively. The ALJ found that Dr. Feigin's opinions—based on review of Claimant's medical evidence of record available up to July 2012—showed that Claimant had mild restriction in the area of daily activities, and moderate difficulties maintaining social functioning, concentration, persistence, or pace. Even though Dr. Feigin never examined or treated Claimant, the ALJ nonetheless gave his opinion great weight because it claimed that Dr. Feigin is well-versed in the Social Security Administration's definitions and regulations defining disability. The ALJ also gave great weight to Dr. Campbell's opinion even though Dr. Campbell is a psychiatrist who was hired to evaluate Claimant's mental health and not her physical condition.
While there is evidence in the record that (1) Claimant's pain improved when she wore the compression stockings, and that (2) Claimant's mental health occasionally improved especially when she made efforts to meditate, listen to music, and play with her children, there is no evidence in the record, aside from these sporadic improvements, that Claimant is capable of working an eight-hour workday. The ALJ focused on select portions of Dr. Smith's reports where she noted that Claimant was feeling better or appeared happier, but ignored the reports that indicated that Claimant was still in pain and had trouble walking or sitting for long periods of time. The ALJ erred in failing to give weight to Dr. Smith's opinions, because it did not provide clear and convincing reasons supported by substantial evidence in the record to reject those opinions. As such, the ALJ's decision relying solely on the opinions of two non-examining physicians was error.
2. Claimant's credibility
The ALJ found that Claimant's testimony was not credible since Claimant's statements concerning the intensity, persistence, and limiting effects of her symptoms were inconsistent with the RFC assessment. The ALJ determined that Claimant's condition continued to improve especially when she wore the compression stockings and that Claimant's self-reported activities of daily living depict an individual who possesses a greater range of functional abilities than Claimant has alleged in her appeal. The ALJ found that Claimant's hearing testimony of her inability to perform household chores contradicted notes from several doctor visits with Dr. Smith, who noted that Claimant was able to care for her children and cook and clean while wearing her compression stockings. The ALJ found that since Claimant was able to care for her eight children, Claimant's allegations of entirely debilitating symptoms were not fully credible. But a claimant does not need to "be utterly incapacitated to be eligible for benefits." Furthermore,
Tr. 19.
Tr. 20.
Tr. 19.
See Tr. 20-21 ("The Claimant testified that she was unable to drive or prepare her own meals, but she reported being capable of preparing her own meals, and she similarly reported being able to drive and leave the house on her own")
Fair v. Bowen , 885 F.2d 597, 603 (9th Cir. 1989).
[m]any home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication. Yet if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit an allegation of disabling excess pain.
Id.
Courts have awarded benefits to claimants who are able to perform household chores such as cooking and cleaning the dishes.
Gallant , 753 F.2d at 1453(granting benefits to claimant who testified he did no housework, but cooks a meal for himself and his nephew or sister-in-law and does the dishes).
It is not unreasonable to conclude from Claimant's testimony that despite her pain, she is able to care for her children. It is also reasonable to conclude from testimony that Claimant relies heavily on support from her older children and husband when he is home in caring for her younger children Inconsistencies in her testimony may be due to (1) the language barrier, as Claimant cannot speak English and all communications were through an interpreter, or (2) the fact that Claimant's pain level and depression seemed to fluctuate on a daily basis.
The ALJ also noted that Claimant testified that she was limited to walking for no longer than two minutes before having to stop and rest, yet at a different time reported being able to walk for at least 10 minutes before having to stop and rest. Again, the medical evidence clearly supports that Claimant's ability to perform activities such as walking varies due to her pain level. Whether Claimant is able to walk for 2 or 10 minutes is not substantial evidence proving that she is (1) not credible or (2) able to work an eight-hour workday.
Tr. 21.
The ALJ's finding that Petitioner lacked credibility is not supported by substantial evidence. "Where the ALJ improperly rejects the claimant's testimony regarding his limitations, and the claimant would be disabled if his testimony were credited, ‘we will not remand solely to allow the ALJ to make specific findings regarding that testimony.’... Rather, that testimony is also credited as a matter of law."
Lester v. Chater , 81 F.3d 821, 834 (9th Cir. 1996)(citing Varney v. Sec'y of Health and Human Serv. , 859 F.2d 1396, 1401 (9th Cir. 1988)).
3. Residual Functional Capacity
Claimant argues that the ALT erred in determining that she had a RFC to perform light work. The ALT found that the medical evidence does not support Claimant's claim of entirely debilitating symptoms. The ALJ also found that Claimant's condition improved with the compression stockings so that Claimant could perform household chores and other activities. The Physical Work Performance Evaluation conducted on February 18, 2013, by Dr. Smith's office indicated that Claimant ‘self-limited’ due to pain in her right leg and foot. The report also indicated that Claimant did not place a lot of weight on her right foot, used her cane most of the time, and even grasped her leg while sitting. Additional comments from the report indicated that: (1) Claimant's husband was seen putting her shoes and socks on following the examination; (2) Claimant said she goes shopping but rides in the electric cart; (3) Claimant said she does not go out much; (4) Claimant said she spends most of the day lying down or sitting; and (5) Claimant's children are mostly capable of caring for themselves.
Tr. 18.
Tr. 19.
Id.
Tr. 282.
Id.
Tr. 282.
Dr. Campbell only assessed Claimant's mental health. He determined Claimant's prognosis was ‘poor.’ Dr. Feigin found that both of Claimant's impairments, (1) varicose veins of lower extremities and (2) affective disorders were severe and found that Claimant was able to perform sedentary work. However, the ALJ found that Claimant was able to perform light work.
Tr. 263.
Tr. 52.
Tr. 56.
Tr. 18.
The vocational expert testified that a hypothetical individual with Claimant's RFC would be capable of performing the requirements for jobs in the small products assembler and fabricator industry and small products cleaner and polisher industry. However, Claimant testified that sitting caused her pain and numbness in her right leg, and that she was limited to sitting for no more than five minutes before having to get up. The ALJ asked the vocational expert whether an individual who is unable to engage in sustained work activity for a full eight-hour workday on a regular and consistent basis due to a combination of medical conditions and associated pain would be able to be employed in one of the jobs the vocational expert identified above. The vocational expert responded as follows, "that kind of individual would not be competitive in any jobs that I know that...would fit within her vocational profile."
Tr. 23.
Tr. 19.
Tr. 44.
The ALJ's failure to consider the vocational expert's testimony regarding how Claimant's limitation due to her inability to sit for prolonged periods of time impacted the jobs she could perform was in error, in light of this Court's previous determination regarding credibility. After evaluating the evidence and considering Claimant's testimony and the treating physician's opinion the Court finds that Claimant would be unable to perform in the ‘sedentary/light categories' positions identified by the vocational expert. The Court further concludes that a remand for further consideration of other vocations would be fruitless, because "[a person] who cannot walk, stand or sit for over one hour without pain does not have the capacity to do most jobs available in the national economy."
Gallant , 753 F.2d at 1454(quoting Delgado v. Heckler , 722 F.2d 570, 574 (9th Cir. 1983) ).
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V. CONCLUSION
The Court has carefully reviewed the administrative record, including extensive medical records. The Court concludes, based upon the record as a whole, that the ALJ's decision denying disability benefits to Claimant was not supported by substantial evidence. The ALT erred in rejecting the opinion of the treating physician, in finding that Claimant can perform light work with limitations, and in determining that Claimant was not credible.
Based on the foregoing, Claimant's Motion for Summary Judgment at Docket 10 is GRANTED and this matter is REMANDED for an award of benefits .
IT IS SO ORDERED.