Opinion
No. C 06-05032 SBA, [Docket Nos. 15, 17].
March 31, 2008
ORDER
REQUEST BEFORE THE COURT
Before the Court is plaintiff Deborah R. Clay's Motion for Summary Judgment (the "Motion") [Docket No. 15] and defendant's Cross Motion for Summary Judgment and In Opposition to Plaintiff's Motion for Summary Judgment (the "Opposition") [Docket No. 17]. Clay appeals defendant's decision she is neither disabled nor eligible for disability or supplemental security income benefits under Subchapters II or XVI, respectively, of the Social Security Act, 42 U.S.C. § 301 et seq.
Subchapter II of the Social Security Act, 42 U.S.C. § 401 et seq., governs old age, survivors, and disability insurance (OASDI) benefits, while subchapter XVI, 42 U.S.C. § 1381 et seq., governs Supplemental Security Income for the aged, blind, and disabled.
For the reasons discussed in this Order, the Court finds defendant erred in making its determination, in the first and fourth steps of the Social Security Administration's five-step disability analysis, under 20 C.F.R. § 404.1520(a)(4) and § 416.920(a)(4). More specifically, and as detailed below in this Order, with regards to the first step of the analysis, the Court finds there is not substantial evidence to support defendant finding Clay engaged in substantial gainful activity through August 22, 2002. With regards to the fourth step of the analysis, the Court finds there is not substantial evidence to support the residual functional capacity ("RFC") determined by defendant. Further, the Court also finds defendant applied the wrong legal standard in determining Clay's RFC. Lastly, the Court finds defendant applied the wrong legal standard in determining Clay's past relevant work.
Accordingly, the Court GRANTS the Motion, DENIES the Opposition, REVERSES defendant's decision regarding whether Clay is eligible for disability or supplemental security income benefits, and REMANDS this matter back to defendant to take certain actions, including holding an administrative hearing to redetermine Clay's RFC and past relevant work, in accordance with the Court's findings and conclusions stated herein.
BACKGROUND
I. 1952-2002
Clay was born in 1952. Docket No. 10 at 63 (Admin. Record ("AR")). She completed the twelfth grade in 1980. AR at 80. From 1987 through 1993, she rose from housekeeper to floor supervisor, at the Shattuck Hotel in Berkeley, then in 1997, worked as a stadium usher at the Oakland Coliseum for six months, then from 1998 or 1999 through 2002, was a certified nursing assistant at the Kyakameena Sanatorium in Berkeley. AR at 70, 76, 85, 287-89; see also AR at 67-71. On January 21, 2002, while assisting a sanatorium patient from a bed to a wheelchair, the patient grabbed Clay around her neck, who then experienced a sharp pain on the left side of her neck. AR at 22, 76, 215. She presented that same day at a Kaiser Permanente emergency room. AR at 207 para. 2 (Admin. Hr'g Ex. ("Ex.") "F10").
The Administrative Record does not indicate if this was through a G.E.D. or a continuation program.
A. Kaiser Permanente
From January 24, 2002 through June 19, 2002, Clay had fourteen visits with the Occupational Medicine Clinic at Kaiser Foundation Hospital East Bay ("Kaiser"). AR at 128-61 (Ex. "F1"). Her initial physical examination on January 24, 2002 found pain on cervical flexion or left rotation, with good extension, and no spurling. AR at 160. The doctor also found tender cervical muscles, including the right trapezius, and tender medial thoracic muscles, but no spine tenderness. Id. And, the doctor found Clay's shoulders had full range of motion with no tenderness, her lumbar had full range of motion, and she had no problem performing a straight leg raise. Id. He diagnosed a cervical thoracic strain, and recommended medication and physical therapy, with a follow-up visit in one week. Id. He also coded Clay's work status as "modified." Id. at 161.
On March 8, 2002, Clay had an MRI. AR at 206 (Ex. "F9"). As a result, Kaiser physicians noted a 3-mm broad-based C4-5 disc protrusion, left greater than right, resulting in a slight left anterior cord impingement. Id. at 146, 206. In April, Clay began using a cervical collar for pain, and doctors added acupuncture to her treatments. Id. at 141-42.
On June 19, 2002, Clay had her final Kaiser visit, as her treatment was transferred for reasons not indicated, to Rovner, M.D. Id. at 128. An examination on this date found pain and tightness across Clay's upper back with end-range range of motion, but no spurling. Id. The diagnosis was cervical neck disease, which had improved as expected. Id. at 129. The doctor recommended continued medication and acupuncture, and coded Clay's work status as "modified." Id. Her transfer sheet indicated she could lift or carrying no more than ten pounds, and should not attempt anything heavier. Id. at 216 (Ex. "F12"). She had no restrictions, however, on standing, walking, sitting, or driving. Id.
The Administrative Record does not mention this doctor again.
In her Motion, Clay's counsel indicates this record shows she made "very little improvement," citing to page 128 of the Administrative Record. Mot. at 11:11. This was Clay's statement, however, not Kaiser's. AR at 128.
B. Ortho-East: An Orthopaedic Medical Group, Inc. — Michael E. Hebrard, M.D.
On July 22 or 25, 2002, Clay saw Michael E. Hebrard, M.D. of Ortho-East: An Orthopaedic Medical Group, Inc. Id. at 207, 209-12, 214-15. He noted she had an intermittent sharp left-sided neck pain with occasional left forearm pain, impaired light touch sensation in her left hand, and minimal upper extremity weakness. Id. at 207 para. 2 (Ex. "F10); 215 ¶¶ 18-19 (Ex. "F11"). He also found her cervical spine had active and normal range of motion, and he noted her cervical disc dysfunction C4-5 with cord impingement. Id. at 215 ¶¶ 19-20. He kept her on modified work, with no lifting, pushing, or pulling more than ten pounds, and no neck twisting or turning. Id. at 210, 215 ¶ 26. He also modified her medication, referred her to Dr. Delmar Sanders for a second opinion, and scheduled her for a four-week follow-up visit. Id. at 215 ¶ 23.
The Administrative Record does not mention this doctor again.
On August 22, 2002, Dr. Hebrard diagnosed curved disc C 4-5 protruding and right cervical radiculitis, without spurling. Id. at 214. He continued Clay's medication and limitations, told her to return in four weeks, and referred her to Dr. St. John, a neurosurgeon. Id.
The Administrative Record does not indicate whether Clay kept this appointment.
In August 2002, Clay returned to work at the sanatorium, on modified duty, which consisted of helping to feed patients and passing trays around. AR at 275. After two weeks, however, the Sanatorium told her it would no longer provide her with modified duty and laid her off. AR at 270, 275.
C. James N. St. John, M.D.
On September 10, 2002, James N. St. John, M.D. evaluated Clay. Id. at 207 para. 1 (Ex. "F10"). She complained of left-side neck pain, accentuated by motion, and a brief period of left-arm pain and transient right-hand tingling, but no upper extremity weakness. Id. at 207 para. 4. Examination found no definite limitation of cervical motion, but did find pain with left lateral motion, affecting the region of the left trapezius. Id. at 208 para. 1. Palpation tenderness was found in the medial aspect of the left trapezius but not in the posterior cervical region. Id. The doctor diagnosed post-traumatic neck pain associated with MRI scan evidence of C4-5 disc protrusion. Id. at 208 para. 2. He concluded she should continue with conservative treatment, and should not return to strenuous labor, but limit herself to lifting no objects greater than 20 pounds, nor repetitively lift objects greater than 10 pounds. Id. at 208 para. 4.
Although referred by Dr. Hebrard, Dr. St. John's evaluation was performed for the State Compensation Insurance Fund (SCIF), the sanatorium's Workers' Compensation carrier. AR at 207, 217-226. The records also indicate, however, SCIF covered Dr. Hebrard's examinations. AR at 211, 213-14.
II. 2003 — Workers' Compensation Settlement
On October 22, 2003, Workers' Compensation awarded Clay $53,000 for a "life long permanent disability." Id. at 217, 224 (Ex. "F13), 271. Through a Workers' Compensation referral, she then obtained a certificate, after completing a four- to eight-month course in medical clerical work. AR at 269-270. She did not learn how to type, however. AR at 269-70, 284-85.
This course may have been taken in 2003 and 2004, or just 2004. The Administrative Record is unclear, and her counsel at that time, who is not her current counsel, did not provide documents which might have indicated the date of completion. Further, although Clay admitted at her hearing to having memory problems, AR at 270, the parties share some responsibility for not better developing her testimony, in her hearing, see AR at 264-99. Nonetheless, the Court has done the best it could to determine when certain events occurred.
III. 2004 — 2005
A. Clay applies for benefits with the SSA.
On or about June 8, 2004, Clay filed concurrent applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") with the Social Security Administration (the "SSA"). AR at 63-66, 256-259. She alleged she became disabled as of January 21, 2002, due to lower back and leg problems. AR at 28-30, 37, 72, 76. She was insured for DIB until September 30, 2004. AR at 72.
DIB are provided to a claimant by premiums funded through their payroll deductions. AR at 264. At a certain point after deductions end, the DIB end. Id. Thus, in order to qualify for DIB, a claimant must prove they became disabled while still covered by DIB. 42 U.S.C. § 423(c); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). In contrast to the date provided by Clay, the SSA indicates she was insured for DIB, through December 31, 2003, citing to the Administrative Record at 20 and 264. Opp'n at 2:10. The record appears to support both claimed dates. Neither party has indicated the discrepancy is an issue. The Court notes the alleged impairment onset date of January 21, 2002 precedes both coverage dates, while the ALJ's determined disability onset dates in January and March 2005, follow both coverage dates, see supra part II.B of the Court's Analysis.
In a Pain Questionnaire dated June 30, 2004, Clay indicated she suffered from lower-back pain as well as shoulder pain, and sometimes left-leg pain. AR at 82, 84. She said the pain could be brought on by walking or sitting too much, or from bending, stooping, or climbing steps. Id. She said her pain could last for 30 to 40 minutes at a time, and that rest could relieve it immediately, while medications, such as Vicodin or Tylenol #3, could address it in about a half hour. Id. Due to her pain, she said she could only walk or sweep for short periods, before having to rest. Id. at 83. Also, she found it difficult to climb stairs, sometimes having to rest in mid-flight. Id. She also said she could drive a little, wash the dishes, iron, and wash her clothes. Id. She said she could no longer jog, take long walks, or engage in her primary hobby, fishing. Id. Further, pain often made her stop what she was doing, and take a break. Id. at 84. Lastly, she indicated she could walk around the block, stand for 20 to 30 minutes at a time, and sit for 15 to 20 minutes at a time. Id.
B. QTC Medical Group, Inc.
On August 21, 2004, Clay presented at QTC Medical Group, Inc.-OK ("QTC") for a complete orthopedic evaluation, at the request of the California Department of Social Services, Disability and Adult Programs Division. AR at 162 (Ex. "F2"). An examination found a normal gait, and ability to heel-toe walk, with normal swing and stance phases. AR at 163. It also found no spasm or tenderness of the paravertebral musculature, no spurling, and normal cervical spine motion. AR at 164. The doctor also found a normal spinal contour and no tenderness in the lumbar paraspinal region. Id. Her straight leg raise was negative bilaterally, both sitting and supine. Id. Her shoulder range of motion was within normal limits, with no tenderness, and girdle muscle strength of 5/5. Id. Also impingement and Yergason tests were negative for her shoulders. Id. Other tests for the hands, wrists, elbows, hips, and knees were all unremarkable and within normal limits. Id. The doctor concluded Clay had some restriction in her lumbar spine range of motion, but found no evidence of cervical or lumbar radiculopathy. AR at 165. He also concluded Clay could lift 50 pounds occasionally and 25 pounds frequently; bend and stoop frequently; and, sit, stand, walk, kneel, climb, or use her upper extremities without limitation. Id.
State agencies often make the initial determination as to whether a person is disabled or not. See 42 U.S.C. § 421.
C. Procedural Developments with the SSA
On or about October 22, 2004, the SSA denied Clay's applications for benefits. AR at 28, 30-34, 260. On or about November 17, 2004, she timely requested reconsideration, and on or about January 13, 2005, the SSA affirmed its denial. AR at 29, 35, 37-42, 261.
D. North Oakland Medical Clinic — Bruce Thompson, M.D.
From November 3, 2004 through May 23, 2005, Clay had 12 visits at the North Oakland Medical Clinic ("North Oakland"). AR at 186-99 (Ex. "F7"). Her complaints were generally consistent and involved pain in her left leg when bearing weight, lower-back pain, and migraines, for which she took Vicodin. AR at 187-99. During this time, her left knee and lumbar were x-rayed on December 23. AR at 172-73 (Ex. "F5"). The former showed no significant joint disease, while the latter showed no compression deformities, a mild scoliosis and segmentation anomaly, and a possible asymmetrical transitional and narrowing of lumbosacral vertebra. AR at 173.
The first visit is indicated as a follow-up visit, but no prior records are provided. AR at 199.
On December 29, Clay was given a knee brace and referred for a knee MRI. AR at 195 (Ex. "F7"). The MRI, done on January 5, 2005, showed a bone lesion involving the posterolateral tibial plateau, most likely a combination of ostenecrosis and subchondral cyst formation. AR at 194. On February 28, 2005, North Oakland referred Clay to "ortho." AR at 189.
E. Aubrey A. Swartz, M.D., Pharm. D.
On March 4, 2005, Clay saw Aubrey A. Swartz, M.D., Pharm. D., an orthopedic surgeon, for the pain in her lower back and both knees. Id. at 176 para. 1 (Ex. "F6"). Clay told the doctor she felt the two issues were independent, as the knee pain was of recent onset, and the neck and lower-back pain were due to an auto accident in 2002. Id. Clay described headaches and pain in the right cervicothoracic region and in the low back across the lubosacral spine. Id. at 176 para. 6. She also said her left knee gave out at times. Id. She also indicated looking at the period from 2003 through her visit, she could bathe herself and get dressed; shop for groceries and lift and carry them, with help; sometimes cook, wash dishes, and iron; clean the house, with help; sweep, mop, or vacuum on rare occasions; and, drive. AR at 179. Dr. Swartz reviewed the 2002 MRI and found Clay's spine unremarkable, though he noted the C4-5 disc bulge. Id. at 176 para. 7. He also reviewed the more recent knee MRI and the lumbar x-ray. Id. at 176 para. 8.
The parties do not explain this entry. Clay's medical records make no other mention of any such accident. Dr. Swartz's records do show she wanted to avoid categorizing her impairments as work-related, AR at 181, 183, but none of her other records show any indication to do this.
His examination found a reasonable posture, normal lordotic curve, and a level pelvis. Id. at 176 para. 10. He also found her mildly tender in the cervical spine but no spasm. Id. at 177 para. 1. And, he found her tender to light touch in the lumbosacral spine, but without spine. Id. at 177 para. 3. In checking lumbar extension, Clay had too much pain to go beyond five degrees. Id. at 177, para. 4. He also found her sensitive to touch in both lower extremities. Id. at 177 para. 5. He found low back pain with a straight leg raise on the right at 30 degrees, and pain in the left posterior thigh or hamstring with a straight leg raise on the left at 40 degrees. Id. at 177 para. 10. He also found low back pain with right knee flexion to 20 degrees and left knee flexion to 35 degrees. Id. at 177 para. 11. Lastly, he found knee range of motion was 0 to 135 degrees, with cracking sensation on extension, but no tenderness, swelling, effusion, or discoloration in either knee. Id. at 178 para. 1. Her McMurray test was negative. Id. Dr. Swartz concluded Clay was "chronically deconditioned with recurrent mechanical strain of the neck, back, and probable early degenerative disease of both knees." Id. at 178 para. 2. He prescribed an anti-inflammatory, referred her to Alta Bates for physical therapy, and told her to return in two months. Id. at 178 para. 3.
The Administrative Record does not indicate whether Clay kept this appointment.
F. Bruce Thompson, M.D. and Clay's Employability Examination
In March 2005, Clay had been on General Assistance ("GA") since 2003 or 2004, which required her to look for at least 12 jobs per month. AR at 271. After completing her vocational training in 2003 or 2004, she had sought work in the medical clerical field, but never found any. AR at 269. She looked for any type of light work or filing position she could find. AR at 273. But, she was not sure if she could perform filing, however, as she had never done it. Id. Then, in 2004 or 2005, back, shoulder, neck, and arm pain, allegedly stemming from her 2002 injury, started to flare up. AR at 272.
See supra note 8 for a discussion regarding date inaccuracies.
In March 2005, when she found out from a friend she could obtain a medical waiver to avoid the GA's job-seeking requirement, she had an evaluation performed to obtain one. Id. Thus, on March 22, 2005, she had an employability examination with Bruce Thompson, M.D., of North Oakland. AR at 254-55 (Ex. "F15"). He completed a check-the-box Employability/Medical Statement provided by the Alameda County Social Services Agency. Id. His diagnosis was chronic low back pain, resulting in limited range of motion, with increased pain with activity. AR at 254. He concluded Clay was "unemployable" for 12 months or more, could lift up to five pounds, and could not climb, bend at the waist, reach, kneel, balance, or do knee bends. AR at 255.
G. Alta Bates Summit Medical Center
On May 24, 2005, the day after her last visit to North Oakland, AR at 187, Clay presented at Alta Bates, AR at 201-03, on a physical therapy referral from Dr. Swartz, AR at 178, para. 3, 202. Unfortunately, due to a loss of coverage, on or about June 5, 2005, Clay was only able to have an initial evaluation. AR at 201. The therapist's initial diagnosis was lumbar strain, and her assessment was severe muscle spasms in the lower trunk and lumbar spine area, with trunk and pelvis misalignment. AR at 203-04.
H. West Oakland Health Council
From August 1 through December 2005, Clay had seven visits at West Oakland Health Council ("West Oakland"). AR at 243-53 (Ex. "F14"). An August 5 MRI of her cervical spine showed mild degenerative changes, AR at 244, as did an MRI of her lumbar spine which also showed L5-S1 disc space narrowing, AR at 244-45. The records are not dictated and partially illegible, but show the following complaints: August 1: neck, back, and shoulder pain; August 25: neck and left leg pain, and right thumb numbness; September 9: lower-back pain; October 12: leftside neck pain and back pain; November 9: left-shoulder and lower-back pain; December: same as November 9; unknown date: right-knee, neck, and lower-back pain. AR at 243, 246-53. The only treatment apparently involved various medications. Id. In addition to ongoing diagnoses regarding lumbar issues, on August 1, September 9, and October 12, the staff diagnosed hemorrhoids, and on August 25, October 12, and the unknown date, the staff diagnosed depression or mood disorder and/or noted a Zoloft prescription.
The records for the last two visits are cut off at the top, where the dates are indicated. The second-to-last visit appears to have been in December. See AR at 252. It is unknown when the last visit occurred. See AR at 253. In addition, there are two possible additional visits on October 18 and 20, 2005 for a tetanus and diphtheria shot and a tuberculosis test, respectively. AR at 250.
IV. 2006
After the SSA affirmed its denial on reconsideration, Clay timely requested a hearing before an Administrative Law Judge (ALJ), and had one on March 2, 2006. AR at 43. David Calvert, a private attorney, represented her. AR at 19. In addition, an impartial vocational expert also testified. AR at 262-99.
This is not her current attorney.
At her hearing, Clay testified she had migraine "flares" sometimes twice a month and a migraine once a month, which could last all day. AR at 277. She also testified she could lift up to ten pounds, AR at 283, could walk around her block, but then she would have to stop, AR at 284, and could sit for about 30 minutes, before needing to stand and stretch, AR at 282. She also said she could go up stairs slowly, but was concerned about going down them, as her right knee could give out. AR at 284. She also said she could groom herself, but had difficulty getting out of the bathtub. AR at 283.
As for household tasks, she testified she could clean the bathroom and the kitchen. AR at 279. Her adult daughter, with whom she lived, did her own room and the vacuuming and the dusting. Id. With regards to the kitchen, Clay said could clean the top of the refrigerator, but for cleaning the bottom, she had to use a chair or bend down on her knees. AR at 283. She also said she could not do these tasks without resting during them. Id. As for the laundry, she could load the washer, but her daughter transferred the wet clothes to the dryer, though Clay could later unload and fold them. AR at 279. She also indicated she did minimal cooking, and once a month, she and her daughter went to the grocery store, where her daughter carried any heavy objects. AR at 280. Also, on a daily basis, Clay said she drove around Berkeley to visit friends, with whom she might watch television or take walks, and occasionally visited her mother in Oakland. AR at 280-82.
On March 15, 2009, the ALJ affirmed the denial. AR at 18-27. Clay requested the SSA's Appeals Council to review the ALJ's decision. AR at 7-9. On June 23, 2006, the Council denied her request. AR at 4-6.
On August 21, 2006, Clay timely sued the SSA, pro se, for judicial review, under 42 U.S.C. §§ 405(g) and 1383(c)(3). See Docket No. 1. Her current counsel substituted in, on August 1, 2007. See Docket No. 14. On February 29, 2008, Clay filed her Motion, alleging five errors for review. Specifically, she claimed the ALJ improperly rejected the opinions of her treating and examining physicians, improperly evaluated her credibility, incorrectly determined her residual functional capacity, failed to take expert testimony as required by Social Security Ruling 96-6p, and incorrectly found her 2002 employment was "substantial gainful activity." Mot. at 5 ¶¶ 1-5.
LEGAL STANDARD
I. Standard of Review
The substantial evidence standard governs a district court's review of a final decision made by the Commissioner of the SSA. As 42 U.S.C. § 405(g) states:
Any 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 such decision by a civil action. . . . As part of the Commissioner's answer the Commissioner of Social Security shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have 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, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . .42 U.S.C. § 405(g) (emphasis added); Udd v. Massanari, 245 F.3d 1096, 1100 (9th Cir. 2001); Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997).
When the Appeals Council declines to review an ALJ's decision, it stands at the Commissioner's final decision. Bass v. Social Sec. Admin., 872 F.2d 832, 832 (9th Cir. 1989).
A court may reverse an ALJ if his or her findings "are based on legal error or are not supported by substantial evidence." McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Evans, 110 F.2d at 1483 (quoting Flaten v. Sec'y of Health and Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). "Substantial evidence is `more than a mere scintilla,' but `less than a preponderance.'" Evans, 110 F.2d at 1483 (quoting Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990) (citations omitted)). "If the record considered as a whole can reasonably support either affirming or reversing the Commissioner's decision [a court] must affirm." McCartey, 298 F.3d at 1075.
II. The Five-Step Disability Inquiry
To establish a claimant's eligibility for disability benefits under the Social Security Act, it must be shown that: (a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and (b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. See 42 U.S.C. § 423(d)(2)(A). If a claimant meets both requirements, he or she is "disabled."Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); see 42 U.S.C. §§ 416(i), 423(d), 1382c(3)(A).
"The SSA regulations provide a five-step sequential evaluation process for determining whether a claimant is disabled [within the meaning of the Social Security Act]. 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proof for steps one through four, and the Commissioner has the burden of proof for step five." Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
All regulatory citations herein are to the 2008 Code of Federal Regulations. The 404-series regulations in title 20 address DIB, while the 416-series regulations address SSI. The two series have many regulations which parallel each other or are similar in content. Hence, they are often cited together, in cases where as here, a claimant has applied for both DIB and SSI.
The five steps of the inquiry are:
1. Is claimant presently working in a substantially gainful activity? If so, then the claimant is not disabled within the meaning of the Social Security Act. If not, proceed to step two. See 20 C.F.R. §§ 404.1520(b), 416.920(b).
2. Is the claimant's impairment severe? If so, proceed to step three. If not, then the claimant is not disabled. See 20 C.F.R. §§ 404.1520(c), 416.920(c).
3. Does the impairment "meet or equal" one of a list of specific impairments described in 20 C.F.R. Part 220, Appendix 1? If so, then the claimant is disabled. If not, proceed to step four. See 20 C.F.R. §§ 404.1520(d), 416.920(d)
4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is not disabled. If not, proceed to step five. See 20 C.F.R. §§ 404.1520(e), 416.920(e).
5. Is the claimant able to do any other work? If so, then the claimant is not disabled. If not, then the claimant is disabled. See 20 C.F.R. §§ 404.1520(f), 416.920(f).Bustamante, 262 F.3d at 954.
ANALYSIS
For the following reasons, the Court holds the ALJ erred in steps one and four of the SSA's five-step analysis, and remands for a redetermination of findings and conclusions for the fourth step of the analysis.
I. There was not substantial evidence to support the ALJ finding Clay engaged in substantial gainful activity through August 22, 2002.
A person who performs substantial gainful activity ("SGA") is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). "Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical or mental activities, and gainful, i.e., work activity performed for pay or profit. See 20 C.F.R. § 404.1572." Tackett, 180 F.3d at 1098 n. 4. It involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). Actual pay or profit is not required. Id. §§ 404.1572(b), 416.872(b). An individual who exceeds certain earning amounts set in the C.F.R. is presumed able to engage in substantial gainful activity. Id. §§ 404.1574, 404.1575, 416.974, 416.975.
The ALJ found Clay sustained a workplace injury on January 21, 2002, the date she alleged she became disabled. AR at 22 para. 6. He also found she was released to work on modified duty on July 25, 2002, and returned to work in early August 2002, but then her employer eliminated modified duty, and laid her off, on August 22, 2002. Id. Subsequently, she looked for other work, undertook vocational rehabilitation, and looked for work again. Id. The ALJ thus concluded Clay stopped working in 2002, not due to any alleged impairments, but because she was laid off. See id. Applying 20 C.F.R. § 404.1520(b) and § 416.920(b), he thus found her work in August 2002 was substantial gainful activity ("SGA"), and not an unsuccessful work attempt ("UWA"). Id. He did not, however, find she performed any SGA after August 2002. AR at 22 para. 6-23 para. 1.
Clay argues, based on these facts, her August 2002 work was not SGA, but was a UWA, and points the Court to Social Security Ruling ("SSR") 05-02. Mot. at 17:11-20. SSR 05-02 discusses how to distinguish SGA from a UWA, and draws its authority from, inter alia, 20 C.F.R. § 404.1574 and § 416.974. Title 20 C.F.R. § 404.1574 provides the SSA determines whether a claimant has engaged in SGA or a UWA by considering earnings and certain other criteria. 20 C.F.R. §§ 404.1574(a)-(b), 416.974(a)-(b); SSR 05-02 para. 4.
The first criteria for demonstrating a UWA is the claimant's work must stop or drop below SGA level, for 30 days or more, due to an impairment or the removal of special conditions essential to perform work. 20 C.F.R. § 404.1574(c)(1)-(2), 416.974(c)(1)-(2); SSR 05-02 para. 8. Second, after the gap of 30 or more days, if the claimant then works for a period of less than three months, then at the end of that period, the person must cease work completely or drop below SGA level, due to their impairment or the removal of special conditions essential to perform work. 20 C.F.R. § 404.1574(c)(1), (3), 416.974(c)(1), (3); SSR 05-02 para. 10. "Special conditions" include special assistance from employees, irregular hours, special equipment or work suited to an impairment, et seq. 20 C.F.R. § 404.1573(c); 20 C.F.R. § 416.973(c); SSR 05-02 para. 13.
The SSA does not oppose Clay's arguments on this issue. In reviewing the ALJ's findings, the Court notes he did not discuss Clay's earnings. The Court further notes the facts show Clay stopped working in January 2002 due to an "impairment." Further, when she returned to work, after being gone more than 30 days, she was given work suited to her impairment. She only worked, however, for two weeks, because her employer took away her work suited to her impairment, making it impossible for her to work. Subsequently, she did not work at all.
While the ALJ may have reasonably believed Clay could have achieved a SGA, by working as a medical-clerical filer, had she found such work, this is not the standard applied by 20 C.F.R. § 404.1574 or § 416.974. Further, it is unclear whether such a belief would have been reasonable, when Clay had never performed such filing, and did not know whether she had she skills or the physical ability to do it. Regardless, the Court finds the facts before the ALJ did not provide substantial evidence to find Clay's August 2002 work was SGA. Thus, the Court holds Clay did not engage in SGA after January 21, 2002.
Clay argues the Ninth Circuit held in Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007) that the SSA considers a claimant's work period which last for less than nine months, to be part of his or her "trial period," under 20 C.F.R. § 404.1592, and not evidence of SGA. Mot. at 17:16-19. Lingenfelter involved a man with well-documented leg and foot pain and degeneration, who only worked nine weeks out of a seven-year period, because he had no money on which to live. Id. at 1030-33 Further, the Lingenfelter court, in reversing an ALJ for finding the man incredible, held if a person can work nine months for a "trial period" without being considered non-disabled, "then a nine week unsuccessful work attempt is surely not a clear and convincing reason for finding that a claimant is not credible regarding the severity of his impairments." Id. at 1039. Lingenfelter has no application to Clay's SGA or UWA issue.
II. Clay did not oppose the ALJ finding that she did not have any severe impairments prior to January 10, 2005.
Although Clay did not oppose the ALJ's findings in the second step of the SSA's five-step analysis, the Court reviews them in detail, as they play a significant and substantial role in supporting and explaining the ALJ's findings in the fourth step of the analysis, which Clay does oppose.
A. The Legal Standard
At the second step, [the SSA] consider[s] the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement in § 404.1509, or a combination of impairments that is severe and meets the duration requirement, [the SSA] will find that you are not disabled.20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
The duration requirement is twelve continuous months past and/or future, unless the impairment is expected to result in death. Id. §§ 404.1509, 416.909.
A severe impairment is "any impairment or combination of impairments which significantly limits [a person's] physical or mental ability to do basic work activities. . . ." Id. §§ 404.1520(c), 416.920(c). "Basic work activities" include, but are not limited to, "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;" "seeing, hearing, and speaking;" carrying out instructions; responding appropriately to co-workers, et seq. Id. §§ 404.1521(b)(1), 416.920(b)(1).
In contrast, an impairment or combination of impairments is not severe "when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work. . . ." SSR 85-28 para. 12; see 20 C.F.R. §§ 404.1521(a), 416.920(a). Claims of pain or symptoms alone, cannot support finding a severe impairment, which must be supported by a medical diagnosis. SSR 96-4p (symptoms); SSR 96-3p (pain). The SSA will not combine two or more unrelated impairments, to determine if a person meets the duration test. 20 C.F.R. § 404.1522(a); § 416.922(a). If, however, a person has two or more impairments which overlap in time, the SSA will consider them in the aggregate in determining total severity, but only for those periods of time when they overlap. 20 C.F.R. § 404.1522(b); § 416.922(b).
In other words, if each impairment independently is not severe, but together they form a "severe" combination, the time test will be satisfied only if the overlapping period exceeds twelve months. 20 C.F.R. § 404.1522(b); § 416.922(b).
B. The ALJ's Findings
In making his findings, the ALJ proceeded under 20 C.F.R. § 404.1520(c) and § 416.920(c), and made a detailed analysis of Clay's medical records from Kaiser, QTC, Dr. Swartz, and North Oakland. AR at 23-24. In particular, the ALJ found Clay had established three severe impairments: degenerative disk disease, degenerative joint disease regarding her knees, and headaches or migraines. AR at 23 heading 3. He also found the earliest date she established them was January 10, March 4, and January 11, 2005, respectively.
In regards to Clay's cervical issues, the ALJ found she injured her neck on January 21, 2002. AR at 23 para. 3. He noted, however, while her pain may have initially been debilitating, it did not keep her from performing modified duty work, limited to lifting or carrying ten pounds, by August 2002. AR at 23 para. 4. Nor did the pain stop her from pursing a lengthy vocational course, or later pursuing at least twelve job interviews per month, in search of filing work. Id. And, the ALJ notes, by August 2004, Clay had normal cervical range of motion and no complaints of related pain. AR at 23 para. 5. After that time, he noted, she never again complained of cervical pain or a related limited movement. Id. He thus found her documented period of cervical impairment was eight months. Id.
The ALJ incorrectly identified Clay's March 22, 2005 examination as performed by Kaiser, when it was actually performed by Bruce Thompson, M.D. of North Oakland. See AR at 23 para. 5, 254-55. The error did not affect his analysis.
Actually, because the ALJ failed to review Clay's West Oakland records, see infra part IV.C.1.c.v, he failed to note neck-pain complaints on August 1 and 25, and October 2, 2005. See AR at 243, 246, 249. Clay, however, cannot combine these complaints with her 2002 neck-pain complaints to create a continuous twelve-month impairment period.
As for Clay's lower back, knees, and migraines, the ALJ noted her August 2004 examination was unremarkable for these issues. AR at 23 para. 6. He also noted she did not complain about these symptoms until November 2004 or later. Id. Turning first to her degenerative disc condition, the ALJ did not find any documented evidence of it, until Dr. Swartz's March 4, 2005 orthopedic examination, which found a tender lumbosacral spine, positive straight leg raising, and sensitivity in the lower legs. Id. at 23 para. 7-24 para. 1. The ALJ also noted, in 2004, Clay's straight leg raise was negative, and she did not exhibit lower extremity sensitivity. Id. As a result, he did not find this condition documented until March 4, 2005. Id.
In his findings, the ALJ discusses a February 2004 lumbar-spinal radiology report. AR at 23 para. 6. He is apparently basing the date on Dr. Swartz's report, which incorrectly states a December 23, 2004 x-ray was performed on February 23, 2004. See id. at 173, 176 para. 8. The error does not affect the ALJ's findings or conclusion.
As for Clay's degenerative knees, the ALJ noted her December 2004 x-ray showed no significant joint disease. AR at 24 para. 2. And, at that time, her knees showed no swelling or tenderness, though she had some limited range of motion. AR at 24 para. 2, 196. Subsequently, a January 10, 2005 MRI of her knees showed a possible cyst or osteonecrosis. AR at 24 para. 3. The ALJ found this consistent with Dr. Swartz's March 2005 observations leading to a diagnosis of "probable early degenerative disease of both knees[,]" which he found consistent with Clay's alleged statement to Dr. Swartz that the knee pain was "of recent onset." AR at 24 paras. 2-3, 176 para. 1, 178 para. 2. As a whole, the ALJ was willing to give Clay the benefit of the doubt, and though the support was scant, he found her knee degeneration documented as early as January 2005. AR at 24 para. 3.
The ALJ indicates these symptoms were documented in a January 2005 visit to North Oakland, but it appears these were documented in a December 29, 2004 visit. See AR at 24 para. 2 (citing Ex. "F7" at 10), 196 (which is Ex. "F7" at 10, dated Dec. 29, 2004).
Turning to her migraines, the ALJ noted Clay had them under control with medication, in December 2004, then reported a two-to-three day flare on January 14, 2005, following which she did not complain about them until a May flare. AR at 24 para. 4. On these facts, the ALJ found a documented severe impairment as of January 11, 2005. Id.
The ALJ found Clay did not complain about headaches in her February 28, 2005 visit, but the records clearly show she complained about migraines, though she may not have been suffering from them during her visit. AR at 189. Also, the ALJ found she did not complain about them during her next visit, on March 14, 2005, prompted by a trip to Kaiser due to influenza, but migraines are listed under diagnoses and medical problems sections of the clinic's records for this date. AR at 188. Nonetheless, as the ALJ found this impairment severe as of January 2005, the errors did not affect his analysis.
III. Clay did not effectively oppose the ALJ's finding she did not have an impairment or combination of impairments which met or medically equaled an Appendix 1 impairment.
At the third step, the SSA considers the medical severity of a claimant's impairments. 20 C.F.R. §§ 1520(a)(4)(iii), 416.920(a)(4)(iii). If a claimant has an impairment that meets or equals one of the listings in 20 C.F.R. Part 220, Appendix 1, and meets the duration requirement, the SSA will find them disabled. Id.; Bustamante, 262 F.3d at 954. Appendix 1 "describes for each of the major body systems impairments [the SSA] considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. §§ 404.1525(a), 416.925(a). Thus, if a clamant has an impairment which meets the duration requirement and is listed in Appendix 1 or is equal to a listed impairment, the SSA will find them disabled without considering their age, education, or work experience. Id. §§ 1520(d), 416.920(d). An impairment not matching an Appendix 1 listing, may still qualify as severe, if it is "medically equivalent" to a listing, under criteria established by 20 C.F.R. § 404.1526 or § 416.1526. Id. §§ 404.1525(c), 404.1526, 416.925(c), 416.926.
In this case, in a short paragraph, the ALJ considered Clay's medical records from QTC, Dr. Swartz, and Dr. St. John to determine her impairments did not meet, exceed, or medically equal any impairment listed in Appendix 1. AR at 24-25. Clay's only argument on this issue, was buried in an argument at the end of her Motion, requesting remand for an immediate award of benefits rather than for further proceedings. Mot. at 17:25-19:3. In this part, Clay claimed if the ALJ had "properly weighted" her treating physicians' opinions, he would have found her impairments met or equaled listing § 1.04. Mot. at 18:22-23. Clay, however, did not explain her reasoning, or to which opinions she was referring. The Court notes, if Clay were relying on Dr. Thompson's employability examination, her reliance was misplaced, as the ALJ properly rejected this examination. See infra discussion in part IV.C.1.c.iii. If Clay were alternatively or also relying on other opinions, she failed to provide the Court any analysis, so it could assess and rule on her argument. Thus, the Court turns its attention to the next step in the ALJ's analysis.
IV. There was not substantial evidence to support the ALJ's determination of Clay's residual functional capacity.
In her Motion, Clay raised four issues, arguing the ALJ failed to properly weigh the health care providers' opinions, properly determine her credibility, recontact her physicians or an outside medical expert, or properly determine her RFC. For the reasons discussed below, the Court finds the ALJ erred in the fourth step of the SSA's five-step disability analysis, where he ignored Alta Bates' and West Oakland's supervising physicians' opinions, where he failed to make reasonable efforts to determine Clay's credibility, where he failed to provide specific findings stating clear and convincing reasons for finding her partially credible, and where he failed for a number of reasons to properly determine her residual functional capacity ("RFC"). In addition, the Court finds there is insufficient evidence to determine whether or not he had a duty to recontact Dr. Thompson to clarify the bases for his employability opinions.
A. The Legal Standard
"At the fourth step, [the SSA] considers [its] assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, [the SSA] will find that you are not disabled." 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The RFC determination precedes the past relevant work determination. Id. §§ 404.1545(a)(5), 416.945(a)(5). In this case, the ALJ performed these determinations separately, first determining Clay's RFC.
The determination of Clay's past relevant work is discussed infra in part V.
A clamant's RFC is the most they can still do despite their limitations. Id. §§ 404.1545(a)(1), 416.945(a)(1). The SSA assesses a claimant's RFC based on all the relevant evidence in their case record. Id. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). The determination, however, turns solely on a claimant's medically determinable impairments, whether severe or not. Id. §§ 404.1545(a)(2), 416.945(a)(2); SSR 96-8p paras. 7, 17-18. It does not turn on a claimant's age, body build, e.g., height or weight, or prior activities. SSR 96-8p para. 1 ¶ 2, para. 7. While the claimant bears the burden of producing evidence for determining their RFC, the SSA will make reasonable efforts to develop a complete medical history for the pertinent twelve-month period, by contacting the claimant's providers or arranging for a consultative examination, if necessary. 20 C.F.R. §§ 404.1512(c)-(f), 404.1545(a)(3), 404.912(c)-(f), 416.945(a)(3). More specific legal standards are provided as needed below.
B. The ALJ's Findings
The ALJ, after considering Clay's entire record, concluded she had the RFC to lift and carry up to 20 pounds, but only 10 pounds repetitively, and would miss work approximately once per month due to migraines. AR at 25 heading 5. He also found that as she could stoop frequently, but not continuously, this issue posed no additional restriction. Id. In reaching his findings, the ALJ considered Clay's symptoms under 20 C.F.R. § 404.1529 and § 416.929 and SSRs 96-4p and -7p, and considered opinion evidence under 20 C.F.R. § 404.1527 and § 416.927 and SSRs 96-2p, -5p, and -6p. AR at 25 para. 2.
Under these sections and rulings, the ALJ made five sets of factual findings. AR at 25-26. First, he considered all the information discussed in part II.B infra, in his second-step determination of Clay's non-severe and severe impairments. AR at 25 para. 3. In this regard, he found Clay recovered "swiftly" from her 2002 cervical impairment, and thus, neither it nor her 2002 work history supported a lower RFC than he determined. Id.
Second, he considered Clay's hearing testimony. AR at 25 para. 4. He noted she alleged she suffered migraine flares once or twice a month, but her medical records did not support this. Id. He also noted she said she could lift only ten pounds, and could walk around the block, before having to stop to rest. Id. In contrast, however, he noted she also testified she could clean the bathroom and kitchen, sometimes cook, shop, and daily drive to visit friends in Berkeley or her mother in Oakland. Id. He also noted she could care for herself, save for difficulty exiting the tub. Id. Lastly, he noted she claimed she could clean the bottom of the refrigerator by kneeling. Id. He thus found Clay only partially credible with regards to her testimony regarding her alleged lifting and walking limitations. Id.
Third, he considered Dr. Thompson's March 22, 2005 employability examination, prepared so Clay could avoid the GA job search requirement. AR at 25 para. 5. The ALJ noted Dr. Thompson declared Clay "unemployable," limited to lifting five pounds, and unable to reach, balance, climb, kneel, do knee bends, or bend at the waist. AR at 25 para. 5-26 para. 1. The ALJ also noted Dr. Thompson's only comments in his examination form stated Clay had chronic low back pain which limited her range of motion and caused her pain with increased activity. AR at 26 para. 1. In contrast, the ALJ noted Clay testified to higher lifting limits and to performing tasks Thompson said she could not perform. Id. The ALJ also noted Dr. Thompson provided no narrative backup to his conclusions, nor were they supported by the indicated symptoms. Id. Lastly, the ALJ noted the determination of Clay's RFC was not a medical conclusion, but an administrative finding for him to make. Id. As a result, he gave no weight to Dr. Thompson's examination, in finding Clay's RFC. Id.
Fourth, he accorded little weight to QTC's August 21, 2004, examination, performed for the State of California, which found Clay could perform "medium work," as it occurred before Clay's lower back and knee symptoms had become severe impairments. AR at 26 para. 2.
Fifth, the ALJ considered neurosurgeon Dr. St. John's opinions regarding Clay's RFC, save to note her headaches and migraines were not at issue during this September 10, 2002 exam. AR at 26 para. 3. Thus, to incorporate these into her RFC, the ALJ noted her testified frequency of one migraine or two flares per month, should have generated at least five migraines or ten flares, while she treated at North Oakland. Id. These records, however, only showed two flares. Id. Despite these issues with her credibility, he also considered she might not have reported every incident to clinic personnel. Id. Thus, based on her medically determinable impairments, he found her alleged symptoms were credible, but less so her testimony regarding their intensity, duration, or limiting effects. Id.
C. Analysis of Clay's Arguments
1. The ALJ properly weighted all of the medical sources' opinions, except for Alta Bates and West Oakland, which he improperly ignored.
Clay first argues Kaiser, Dr. Hebrard, Dr. Thompson at North Oakland, Dr. Swartz, Alta Bates, and West Oakland were Clay's treating or examining physicians, and the ALJ improperly rejected their opinions, in favor of Dr. St. John's or the ALJ's own lay opinion, without providing specific, legitimate reasons supported by substantial evidence. Mot. at 12-19. The SSA essentially argues the ALJ provided several specific reasons for reaching his findings all of which were supported by substantial evidence and the law. Opp'n at 6:2-3.
a. The treating versus non-treating sources.
Title 20 C.F.R. § 404.1527 states, "In deciding whether you are disabled, we will always consider the medical opinions in your case record together with the rest of the relevant evidence we receive." 20 C.F.R. §§ 404.1527(b), 416.927(b). "Medical opinions are statements from physicians and psychologists or other acceptable medical sources. . . ." Id. §§ 404.1527(a)(2), 416.927(a)(2). An "[a]cceptable medical source . . . includes treating sources, nontreating sources, and nonexamining sources." Id. §§ 404.1502 para. 1, 416.902 para. 1; see Lester v. Chater, 81 F.3d 821, 830, 830 n. 7 (9th Cir. 1995).
A "treating source" means a physician, psychologist, or other acceptable medical source who provides or has provided a claimant with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with them. 20 C.F.R. §§ 404.1502 para. 7, 416.902 para. 7. An "ongoing relationship" has "a frequency consistent with accepted medical practice for the type of treatment and/or evaluation required for [their] medical condition(s)." Id. A physician who supervises a team of persons who together have an "ongoing relationship" with a claimant, qualifies as a "treating physician." Benton v. Barnhart, 331 F.3d 1030, 1037-39 (9th Cir. 2003).
In contrast, a "nontreating source" means a physician, psychologist, or other acceptable medical source who has examined a claimant, but does not have nor ever had an ongoing treatment relationship with them. 20 C.F.R. §§ 404.1502 para. 6, 416.902 para. 6. This includes any acceptable medical source with whom the claimant's only relationship is or was not based on their need for treatment or evaluation but only for obtaining a report to support a disability claim. Id. A "nonexamining source" means a physician, psychologist, or other acceptable medical source who has not examined a claimant, but who provides a medical or other opinion in their case. Id. para. 5.
Under 20 C.F.R. § 404.1502 and § 416.902, Clay's health care providers, fall into the following categories. Clay had fourteen visits at Kaiser from January 24 through June 19, 2002. Although the physician who signed off on her visits is difficult to determine, and appears to have changed over time, a team of Kaiser providers had an ongoing relationship with Clay. Thus, given Kaiser was the HMO discussed in Benton, establishing that supervising physicians qualify as treating sources where their team has an ongoing relationship with a patient, Kaiser's supervising physicians qualify as treating sources. For the same reasons, North Oakland's physicians who supervised Clay's treatment over 12 visits from November 3, 2004 through May 23, 2005, were treating sources. Likewise, the physicians who supervised Clay's treatment over seven visits to West Oakland were treating sources.
In contrast, Dr. Hebrard only saw Clay twice, and Dr. St. John, QTC, Dr. Swartz, and Alta Bates only saw her once. Thus, these physicians and the entities' physicians were examining sources.
b. None of the treating sources were controlling.
Regardless of its source, the SSA evaluates every medical opinion received. Id. §§ 404.1527(d), 416.927(d). If a treating source opinion meets certain criteria, the SSA will give it controlling weight. Id. §§ 404.1527(d)(2), 416.927(d)(2). Certain decisions, however, such as determining a claimant's RFC, are reserved to the SSA only, and may not be controlled by any acceptable medical source. Id. §§ 404.1527(e)(2), 416.927(e)(2); SSR 96-5p paras. 6, 8; Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Thus, even though Clay's supervising physicians at Kaiser, North Oakland, and West Oakland were treating sources, their opinions were not controlling on the ALJ's determination of Clay's RFC.
c. The weighting process.
For treating sources which are not controlling, or for other acceptable medical sources, the SSA weighs the following six factors: (1) Examining Relationship: The SSA generally accords more weight to an examining source, than a non-examining source. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). (2) Treating Relationship: The SSA generally accords more weight to an treating source, than a non-treating source. Id. §§ 404.1527(d)(2), 416.927(d)(2). In weighing such a source, the SSA will consider the length, frequency, and nature of treatment, including whether any testing was done. Id. (3) Supportability: The SSA generally accords more weight to a medical source who presents greater relevant evidence to support their opinion, particularly medical signs, laboratory findings, explanations, or reviews of other source's records and opinions. Id. §§ 404.1527(d)(3), 416.927(d)(3). (4) Consistency: The SSA generally accords more weight to an opinion consistent with the record as a whole. Id. §§ 404.1527(d)(4), 416.927(d)(4). (5) Specialization: The SSA generally accords more weight to a specialist's opinion in their area, than a non-specialist's opinion on the same topic. Id. §§ 404.1527(d)(5), 416.927(d)(5). (6) The SSA will also consider other relevant factors, such as how well the source understands how the SSA's disability programs operate. Id. §§ 404.1527(d)(6), 416.927(d)(6). See also SSR 96-5p paras. 7, 9-10 (In determining a reserved issue, the SSA must never ignore medical opinions, but must apply § 404.1527(d) and § 416.927(d) factors to them.).
As the Ninth Circuit has held:
As a general 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. At least where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. We have also held that "clear and convincing" reasons are required to reject the treating doctor's ultimate conclusions. 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.Benton, 331 F.3d at 1037-39 (quoting Lester, 81 F.3d at 830 (citations omitted)).
In this case, as discussed below, the ALJ properly weighted all of the medical sources' opinions, except for Alta Bates and West Oakland, which he completely ignored. Clay's primary argument on the weighting issue is the ALJ should have given Dr. Thompson's employability examination more weight than Dr. St. John's examination, because the former was a treating source, while the latter was not.
To help explain why Clay is incorrect, the Court first restates her physicians' lift conclusions, noting the ALJ concluded she could lift at most 20 pounds, and only 10 pounds repetitively. In June 2002, Kaiser treating physicians indicated Clay could carry no more than 10 pounds, as did Dr. Hebrard, an examining physician, in July and August 2002. In September 2002, Dr. St. John, an examining physician, indicated she could carry 20 pounds, but only 10 pounds repetitively. Two years later, in August 2004, in a California disability examination, QTC said Clay could lift 50 pounds occasionally and 25 pounds frequently. Then, in March 2005, Dr. Thompson, a treating physician, in her employability examination, indicated she could only lift 5 pounds, and could not climb, bend, reach, kneel, or balance. The Court now examines how the ALJ weighted Dr. St. John's opinion against those of Clay's other physicians.
i. QTC
In determining Clay's RFC, the ALJ disregarded QTC's "high" analysis, as preceding the March 2005 onset or diagnosis of her severe back and knee impairments, a decision Clay does not challenge. The Court notes the ALJ's specific and legitimate reason for rejecting QTC's physicians' opinion, inconsistent with those of Clay's other physicians, is supported by substantial evidence.
In fact, Clay incorrectly claims Dr. St. John has the most "optimistic" RFC, Docket No. 18 at 5:14-18 (Pl.'s Reply), but clearly QTC's outlier RFC deserves this award.
ii. Kaiser and Dr. Hebrard
Likewise, substantial evidence supports the ALJ accepting Dr. St. John's opinion, over those of Kaiser's supervising physicians and Dr. Hebrard. The latter, who works in physical rehabilitation, sent Clay to Dr. St. John, a neurosurgeon, to bring his speciality to bear on her spinal issues. Further, although he only examined her once, Dr. St. John reviewed her Kaiser records, her MRI, interviewed her, performed specialized examinations, and explained all this in a detailed narrative supporting his diagnoses. Although the ALJ did not expressly state these specific and legitimate reasons in the record, his detailed review of Dr. St. John's records, and his use of them in his opinion, permits the Court to reasonably infer such specific and legitimate reasons in support of his findings. See Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989) (reviewing court may draw legitimate inferences where not expressly stated by ALJ). Thus, the Court finds substantial evidence supported the ALJ weighting Dr. St. John's opinion over those of Dr. Hebrard and Kaiser's supervising physicians.iii. Dr. Thompson
Turning to Dr. Thompson, the ALJ noted Clay sought an employability examination so she could avoid the GA job-search requirement. He also correctly noted there was no clinical backup, testing, or narrative explanation attached to Alameda County's two-page check-the-box form. "[A]n ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported . . . by objective medical findings. . . ." Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (internal citation omitted). He further correctly noted the boxes Dr. Thompson checked, indicating Clay could not bend, reach, kneel, et seq. were completely contradicted by Clay's own testimony regarding her limitations and regularly daily activities. See id. (ALJ may discredit a treating opinion unsupported by the record as a whole). And, he correctly noted, Dr. Thompson's opinion or checked boxes were not controlling on the RFC issue, which fell to him, as the ALJ, to determine. See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2); SSR 96-5p paras. 6, 8; Vertigan, 260 F.3d at 1049. As such, the ALJ provided specific and legitimate reasons, supported by substantial evidence, for favoring Dr. St. John's examining opinion over Dr. Thompson's treating opinion.In opposition, Clay argues the ALJ should have given Dr. Thompson's examination more weight, because at that time, Dr. Thompson was her "treating" physician at North Oakland, where she received regular treatment. The Court disagrees with Clay's conclusion for three reasons.
First, under Benton, it is unclear Dr. Thompson was Clay's treating physician. Clay's North Oakland medical records are attached to the Administrative Record as Exhibit "F7." See AR at 186-99. In them, Dr. Thompson's name only appears on pages 192, 194, and 197, in address blocks for lab reports, or typed by a radiologist on a film report, ordered by North Oakland. Neither his name nor his initials appear on any other North Oakland records. Thus, there is no evidence to indicate he had personally treated Clay prior to the employability examination, nor met with any staff or used her treatment records to complete the check-the-box form. As Benton, 331 F.3d at 1037-39, makes clear, a physician must be part of a treating team, to have a treating opinion. It is insufficient to merely work in the same office, or be a name used to order tests.
In fact, the "Supervising M.D." box is always blank, in these records, AR at 187-91, 193, 196, 198-99, except for December 29, 2004, when the clinician put his or her initials in the Clinician box and the Supervising M.D. box., id. at 195.
Second, even if Dr. Thompson were Clay's treating physician at the time of the examination, the boxes checked are not supported by any information in her North Oakland records. That is the form does not mention her records, nor do her records mention the form. Also, there are no narratives, lab tests, or clinical data in her medical records which would support the boxes checked in the form. Also, the form itself is not part of her North Oakland records, but is attached to the Administrative Record as a separate Exhibit "F15." See AR at 254-55. Thus, under Batson, the ALJ was within his right to devalue Dr. Thompson's treating opinion.
Third and last, the boxes checked in the form, indicating Clay can essentially do nothing, are contradicted by every other medical opinion in the Administrative Record. Thus again, under Batson, the ALJ was within his right to favor Dr. St. John's examining opinion over Dr. Thompson's treating opinion.
The Court notes, however, if Dr. Thompson qualifies as a treating physician, then for purposes of determining Clay's RFC, the ALJ should have recontacted him to clarify the bases for his opinions expressed in the employability examination. See infra part IV.C.3.
iv. Dr. Swartz
Clay argues the ALJ improperly weighted Dr. St. John's September 2002 opinion over Dr. Swartz's March 2005 opinion. Mot. at 12-19. The Court first notes both doctors only examined Clay once. Thus, neither is prima facie entitled to superior weight. Second, the Court notes the ALJ analyzed both reports in detail, using Dr. Swartz's to find Clay disabled in step two, and using Dr. St. John's to validate his RFC in step four.Turning to Clay's argument, it appears to run as follows: In September 2002, Dr. St. John found she could lift at most 20 pounds, and repetitively lift 10 pounds. Then, her condition worsened, such that the ALJ found her disabled based on Dr. Swartz's March 2005 examination. As a result, she concluded, her lift capacity should be lower in 2005, than in 2002. But, she notes, the ALJ found her RFC matches Dr. St. John's 2002 assessment.
While Clay's argument is logical, Dr. Swartz did not provide a lift capacity, in his report. Further, based on the Administrative Record before the Court, it is difficult to quantitatively establish how much worse Clay was in 2005 than in 2002. Thus, as discussed in part IV.b infra, the ALJ's error was failing to obtain more information on the lift capacity issue, not necessarily improperly favoring one opinion over another. Whether the ALJ had favored Dr. St. John over Dr. Swartz, or vice-versa, without a lift assessment in the latter's report, the Court would be hard pressed to find substantial evidence in support of the ALJ's reasoning, given the Administrative Record before the Court.
v. Alta Bates and West Oakland
In contrast to the foregoing physicians, the ALJ failed to mention at all the opinions provided from May through December 2005, by Alta Bates' examining physicians or West Oakland's treating physicians. These were Clay's most recent opinions presented at her March 2006 hearing. In determining a claimant's RFC, an ALJ is required to consider all relevant evidence, and may not ignore any treating or examining opinions. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1), 416.920(e), 416.945(a)(1). Here, not only did the ALJ without explanation, ignore Clay's most recent medical opinions, but these records indicated she was still dealing with old impairments like neck and back pain, and new ongoing impairments, specifically, depression, mood issues, and hemorrhoids. In determining an RFC, an ALJ must consider all impairments, severe or not. Id. §§ 404.1545(a)(2), 416.945(a)(2); SSR 96-8p paras. 7, 17-18. Here, the ALJ did not do this.
At the same time, however, in the fourth step of the disability analysis, Clay has the burden to present her evidence to the ALJ. Id. §§ 404.1512(c), 404.1545(a)(3), 404.912(c), 416.945(a)(3). There is no indication, however, she ever claimed to the ALJ these conditions impaired her ability to work. Because the Court is remanding this matter for a redetermination of the fourth step of the analysis, the Court need not, and will not, resolve this issue here. On remand, Clay may present these impairments more directly, if she wishes, and the ALJ may properly consider the Alta Bates and West Oakland records in determining her RFC.
2. The ALJ failed to make reasonable efforts to determine Clay's credibility, and he failed to provide specific findings stating clear and convincing reasons for his determinations.
Clay's second argument is the ALJ concluded she was partially credible, based only on her testimony of her activities, instead of considering the whole case record, and failed to state specific clear and convincing reasons for doing so. Mot. at 14:1-3.
a. Legal Standard
According to the SSA, "[a] symptom is an individual's own description of his or her physical or mental impairment(s)." SSR 96-7p para. 4. To admit symptom testimony, an ALJ uses a two-step process. 20 C.F.R. §§ 404.1529(a), 416.929(a); SSR 96-7p para. 4; Batson, 359 F.3d at 1196. First the claimant must identify one or more medically determinable impairments through objective medical evidence which could reasonably be expected to produce the alleged symptom. 20 C.F.R. §§ 404.1529(a), 416.929(a); SSR 96-7p para. 5 sub-para. 1; Batson, 359 F.3d at 1196.
Second, once an underlying physical or mental impairment(s) that could reasonably be expected to produce the individual's pain or other symptoms has been shown, the adjudicator must evaluate the intensity, persistence, and limiting effects of the individual's symptoms to determine the extent to which the symptoms limit the individual's ability to do basic work activities. For this purpose, whenever the individual's statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the adjudicator must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.
SSR 96-7p para 5 sub-para. 2; see 20 C.F.R. §§ 404.1529(a), (c), 416.929(a), (c); see Batson, 359 F.3d at 1196.
"The entire case record" includes medical opinions, the claimant's statements, et seq. SSR 96-7p para 5. sub-para. 2. "When additional information is needed to assess the credibility of the individual's statements about symptoms and their effects, the adjudicator must make every reasonable effort to obtain available information that could shed light on the credibility of the individual's statements." SSR 96-7p para. 6. Additional information an ALJ may consider includes a claimant's daily activities; the location, duration, frequency, and intensity of their symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medications; treatment, other than medication; measures to relieve symptoms, e.g., lying flat on one's back; et seq. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 96-7p para. 6.
If an ALJ determines a claimant's statements are not credible, he or she must provide "specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p para. 2 ¶ 5. The Ninth Circuit requires "specific findings stating clear and convincing reasons." Batson, 359 F.3d at 1196 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
b. Analysis
The ALJ made two credibility determinations regarding Clay's testimony. First, he found her claim of suffering one to two migraine flares a month unsupported by her medical records. While it is true her records did not specifically indicate her migraine frequency, in determining a claimant's credibility, an ALJ must consider the entire record, and may not reject a claimant's testimony based solely on medical evidence. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2).
Further, SSR 96-7p cautions there may be many reasons a claimant may not always seek treatment for a given symptom, such as cost, medical advice against the need to, the ability to treat on one's own, et seq. SSR 96-7p para. 25. Clay testified she treated her flares by taking Fioricet and laying down for the day. AR at 277-78. Thus, to the extent she had her medication when a flare occurred, she would not need to see a provider. In fact, the ALJ conceded Clay may not have reported every incident to her providers. The point here, however, is if the ALJ had questions about this issue, he should have asked Clay about it in her hearing. This is because he had a duty to "make every reasonable effort to obtain available information that could shed light on the credibility of [Clay's] statements." He did not do this, however. Nor did he provide clear and convincing specific reasons, drawn from the entire record, for rejecting her given flare frequency.
In this regard, the Court notes the ALJ may have missed some reports she made to her physicians. See note 24 supra.
For his second credibility determination, the ALJ found Clay's allegations she could only lift ten pounds and walk around the block, before stopping to rest, inconsistent with her testimony regarding her activities. The Court notes that Clay testified she cleaned the bathroom and the kitchen, sometimes cooked, shopped, and drove daily to visit friends in Berkeley or sometimes to her mother's in Oakland. She also said she could care for herself, save for difficulty exiting the tub. And, she said she could sit on a chair or kneel down to clean the bottom of the refrigerator.
The Court notes Clay's activity testimony has remained consistent since she completed her Pain Questionnaire in June 2004, saw Dr. Swartz in March 2005, and testified at her hearing in March 2006.
The ALJ did not explain how Clay's activity testimony was inconsistent with her lifting or walking testimony. First, the ALJ provided no analysis as to how lifting ten pounds related to any of her activities. Clay even testified her daughter did the heavy lifting at the grocery store, and moved the wet clothes from the washer to the dryer.
As for her walking limitation, the ALJ apparently felt it conflicted with Clay's level of activity. He never asked her, however, how often she cleaned, how big the task was, or how long it took her. In fact, she testified she had to rest while doing her chores, and rarely swept, mopped, or vacuumed. Further, while driving is not absolute proof she has difficulty walking, it is consistent with such having such difficulty. Nor does it appear she ever drove very far, nor did much more than watch television when she arrived at her friends' homes. Lastly, her need to use a chair or to kneel to clean the bottom of the refrigerator, is consistent with her walking testimony, and with her knee-related disabilities. As Clay noted, she need not be "utterly incapacitated to be disabled," citing to Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Mot. at 14:23-25.
In opposition, the SSA essentially conceded the ALJ failed to provide specific clear and convincing statements regarding Clay's credibility, but under Magallanes v. Bowen, urged the Court to draw inferences on the ALJ's behalf. Opp'n at 8:22-27. First, the SSA argued Clay was not credible because when she claimed she was disabled in 2002, she was doing modified work, took vocational training, and looked for 12 jobs per month. Id. at 9:1-11. The SSA failed to explain how any of this made Clay incredible. The Court notes, the ALJ found during this period Clay was impaired for at least 8 months, but not 12, and hence was not "severely" impaired or disabled. A mistake of law does not make Clay incredible.
The SSA further argued that evidence Clay was incredible was seen in that she did modified work in 2002, and admitted she could do filing work, back in 2003, but at the same time, she claimed she was disabled during these periods and unable to do any work. Id. at 9:23-10:3. The Court already held, however, Clay's August 2002 labor was a UWA and that it was improperly speculative for the ALJ to consider Clay's possible file clerk career as suggesting otherwise. See supra part I.
The SSA then argued Clay's was incredible, implying she overstated her medical conditions, as her medical records allegedly only showed "mild" degenerative changes in her spine and knees. Opp'n at 10:11-13. As the SSA conceded, however, medical records by themselves are insufficient to show Clay incredible. Id. at 10:13-14. The SSA then argued Clay's daily activities showed her incredible. Id. at 10:19-20. The Court, however, already found otherwise. The SSA's final argument was the ALJ did not find Clay entirely incredible, and did give her light work, even though in the SSA's opinion, she could do medium work. Id. at 10:2-6. The Court notes, however, as the ALJ did not properly determine Clay's past relevant work, see infra part V, the SSA's final argument is unavailing.
Thus, having considered the Administrative Record, and the parties' arguments, the Court finds the ALJ erred in determining Clay's credibility for two reasons. First, he violated the legal standard by failing to make reasonable efforts to determine Clay's credibility. And second, the Court finds a lack of substantial evidence, as he failed to provide specific findings stating clear and convincing reasons for his determinations.
3. If Dr. Thompson were Clay's treating physician, then the ALJ failed to recontact him.
For her third argument, Clay argues the ALJ erred by not contacting her physicians, citing to Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996), Mot. at 13:4-12, or by failing to bring in an outside medical expert, under SSR 96-6p, Mot. at 16:24-17:8. The SSA argues the only "recontact" law applicable to Clay's matter is 20 C.F.R. § 404.1527(c) and § 416.927(c), which only apply when an ALJ has insufficient information to determine disability, which was not the case here. Opp'n at 7:17-21, 12:27-13:13.
Turning first to Clay's argument regarding Smolen, in that matter, the ALJ was faced with opinions from two treating physicians, which were in agreement. Smolen, 80 F.3d at 1285, 1288. The opinions had been prepared in response to written questions and information provided by the claimant's attorney. Id. at 1286. One of these physicians did not testify at the claimant's hearing. Id. at 1288. The ALJ, rejected the non-testifying physician's written opinions, but failed to provide clear and convincing reasons why. Id. Instead, he indicated he rejected them because he "did not know the basis for [the physician's] opinions and thought that they might have been based on unwarranted assumptions." Id.
In reversing, the court held if the ALJ thought he needed to know the basis of the physician's opinions, he should have subpoenaed the physician or submitted further questions to him, id. (citing 42 U.S.C. § 405(d); 20 C.F.R. §§ 404.950(d), 404.1527(c)(3)), or continued the hearing to augment the record, Smolen, 80 F.3d at 1288 (citing 20 C.F.R. § 404.944)). Turning to this case, the SSA correctly notes Smolen is inapplicable here, as the ALJ never indicated he needed to know the basis for any of Clay's physicians' opinions. While the ALJ correctly noted Dr. Thompson failed to provide any basis for why he checked the boxes he did, on Clay's employability examination, the ALJ never expressed any curiosity as to what Dr. Thompson's reasons might have been.
Switching now to SSR 96-6p, the purpose of this SSR is "[t]o clarify Social Security Administration policy regarding the consideration of findings of fact by State agency medical and psychological consultants and other program physicians and psychologists. . . ." SSR 96-6p para. 1. The SSR explains that an ALJ should generally treat these persons' opinions as issued by a non-examining physician or psychologist. Id. para. 4. Clay fails to explain how this SSR relates to her matter, which involved no such non-examining sources. Thus, the Court finds SSR 96-6p is inapplicable to her matter.
While Clay failed to directly identify the governing "recontact" law for this matter, the SSA did likewise, when it argued this matter was governed by 20 C.F.R. § 404.1527(c) and § 416.927(c). As a result, the SSA argued the ALJ only had to recontact Clay's physicians if he were unable to decide on the evidence whether or not she was disabled. See 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3). As he did make this determination, the SSA argued he did not have to recontact Clay's physicians. While the SSA correctly interpreted these regulations, the Court notes they address a determination of a claimant's disability, but not their RFC.
As the Ninth Circuit has held, "[i]n Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Smolen, 80 F.3d at 1288 (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). "This duty exists even when the claimant is represented by counsel." Id. SSR 96-8p, which states the SSA's policy regarding determining RFCs, states an ALJ " must . . . make every reasonable effort to ensure that the file contains sufficient evidence to assess RFC." SSR 96-8p para. 17 (emphasis added). Likewise, SSR 96-5p, which states the SSA's policies for determining "issues reserved to the Commissioner," including a claimant's RFC, expressly states:
Because treating source evidence (including opinion evidence) is important, if the evidence does not support a treating source's opinion on any issue reserved to the Commissioner and the adjudicator cannot ascertain the basis of the opinion from the case record, the adjudicator must make "every reasonable effort" to recontact the source for clarification of the reasons for the opinion.
SSR 96-5p para. 25 (emphasis added).
In turn, 20 C.F.R. § 404.1512(d)(1) and § 416.912(d)(1) state:
"Every reasonable effort" means that [the SSA] will make an initial request for evidence from your medical source and, at any time between 10 and 20 calendar days after the initial request, if the evidence has not been received, [the SSA] will make one followup request to obtain the medical evidence necessary to make a determination. The medical source will have a minimum of 10 calendar days from the date of [the] followup request to reply, unless [the SSA's] experience with that source indicates that a longer period is advisable in a particular case.20 C.F.R. §§ 404.1512(d)(1), 416.912(d)(1).
Further, 20 C.F.R. § 404.1512(f) and § 416.912(f) state, "[i]f the information [the SSA] need[s] is not readily available from the records of your medical treatment source, or [the SSA is] unable to seek clarification from your medical source, [the SSA] will ask you to attend one or more consultative examinations at [the SSA's] expense." Id. §§ 404.1512(f), 416.912(f).
The only treating physician, whose opinion the ALJ found unsupported by the evidence, was Dr. Thompson's, as expressed in the checked boxes of Alameda County's employability examination form. As the Court noted, it is unclear whether Dr. Thompson has a sufficient connection to Clay to qualify as a treating physician. See supra part IV.C. 1.c.iii. Assuming he was, however, the parties have not indicated whether the ALJ recontacted him to seek clarification regarding his employability opinions. The parties, however, may address these issues on remand.
The Court notes while Smolen might seems similar to SSR 96-5p, Smolen held the ALJ must recontact a physician, or take other steps, only if the ALJ wanted to know the basis of his or her opinion. In contrast, SSR 96-5p provides if certain deficiencies exist in the administrative record, the ALJ must recontact a claimant's physician, regardless of their curiosity level.
The Court also notes it may seem questionable to recontact a physician whose opinion deviates substantially from every other physician and contradicts Clay's own testimony. The benefit of recontact, however, is to clarify this deviation. In the alternative, if recontact is unsuccessful, then the benefit would be to conduct a consultative examination, which ideally would provide a current value for Clay's lifting capacity, and other measurable capacities, e.g., sitting, standing, et seq.
4. The ALJ improperly determined Clay's RFC.
Neither party adequately addresses this issue, but as explained below, the ALJ applied the wrong legal standards in determining Clay's RFC, and there is not substantial evidence to support the RFC he determined for her.
a. Legal Standard
When a claimant requests a hearing before an ALJ to review a determination of their RFC, the ALJ determines it, rather than deferring to an earlier determination below. 20 C.F.R. §§ 404.1546(c), 416.946(c). The ALJ determines a claimant's RFC by considering their ability to meet certain physical, mental, sensory, or other requirements of work. Id. §§ 404.1545(a)(4), 416.945(a)(4). The goal is to assess the claimant's ability to do sustained work-related activities, on a regular and continuing basis, for eight hours a day, for five days a week, or an equivalent work schedule. SSR 96-8p para. 1 ¶ 1, para. 6. Thus, the ALJ considers any inability to sit, stand, walk, lift, carry, push, pull, or perform other physical functions, including manipulative or postural functions like reaching, handling, stooping, or crouching. Id. §§ 404.1545(b), 416.945(b). The SSA also considers any inability to understand, remember, follow instructions, or respond appropriately to supervision, co-workers, or work pressures. Id. §§ 404.1545(c), 416.945(c). And, the SSA considers any environmental impairments, e.g., visual or auditory, skin disorders, epilepsy, which affect a person's ability to function within certain types of environments, such as those with extreme temperatures, et seq. Id. §§ 404.1545(d), 416.945(d). The ALJ must consider each strength demand separately, and consider how each identified medical impairment or symptom, like pain, causes a functional limitation or impairment in a claimant's "exertional capacity." SSR 96-8p para. 1 ¶ 6, paras. 10, 20-21. This is true, even if the final RFC assessment will combine activities, such as considering a claimant's exertional capacity to walk/stand, lift/carry, or push/pull. Id. para. 20. The ALJ must do the same analysis for each non-strength and mental demand, and for any applicable environmental demands, to determine if a claimant has any "non-exertional" limitations or impairments. Id. para. 1 ¶ 6, paras. 10, 22-23. The ALJ must keep in mind some symptoms, like pain, may affect both strength demands and other demands, such as an manipulation or concentration. Id. para. 24.
These are defined as "strength" demands. SSR 96-8p para. 20.
These are defined as "non-strength" or "non-physical-strength" demands. SSR 96-8p para. 22.
These are defined as "mental" demands. SSR 96-8p ¶ 6, para. 22.
These are defined as "environmental" demands. SSR 96-8p ¶ 6, para. 22.
Although there is a tendency among the parties to use the terms "sedentary," "light," or "medium" work in discussing Clay's RFC as determined by the ALJ in the first part of the fourth step of the SSA's five-step analysis, see, e.g., Mot. at 15:9-16:10, such terminology is inappropriate during this part of the step.
The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis including the functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy.
SSR 96-8p para. 1 ¶ 4.
At step 4 of the sequential evaluation process, the RFC must not be expressed initially in terms of the exertional categories of "sedentary," "light," "medium," "heavy," and "very heavy" work because the first consideration at this step is whether the individual can do past relevant work as he or she actually performed it.
SSR 96-8p, para. 10.
The Court notes the parties might have avoided this error, had they tailored their arguments to the SSA's five-step process, and indicated which step of the process they were addressing with their arguments. Instead, the parties merely advanced arguments, leaving it to the Court to determine to which step of the process they were directed. Nonetheless, the Court notes the parties' papers were otherwise reasonably well drafted.
For example, "the individual can walk for 5 out of 8 hours and stand for 6 out of 8 hours[.]" SSR 96-8p para. 20.
Lastly:
The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis . . . and describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. The adjudicator must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.Id. para. 24.
This includes discussing all symptoms, such as pain, any supporting evidence for them, resolving any inconsistencies therein, and logically explaining how the symptoms affect the claimant's ability to work. Id. paras. 25-26.
b. Analysis
The ALJ concluded Clay had the RFC to lift 20 pounds at most, but 10 pounds repetitively, to miss one day a month due to migraines or migraine flares, and to stoop frequently but not continuously. As an initial matter the Court considers whether the ALJ properly considered the seven strength demands, in determining Clay's RFC. Turning first to sitting and standing, Clay indicated in her June 8, 2004 Pain Questionnaire that she could sit for 15 to 30 minutes at time and stand for 15 to 20 minutes at a time. These medical limitations are consistent with lower-back or knee impairments. The ALJ, however, failed to address them in his narrative or explain what functional limitations they caused. He also failed to explain how the evidence in Clay's case file supported them or not. Thus, for failing to consider the strength demands of sitting and standing, the Court reverses the ALJ's RFC determination, for failure to apply the correct legal standard.
She testified to 30 minutes at a time, at her hearing.
In propounding hypotheticals to the vocational expert at Clay's hearing, however, the ALJ assumed Clay could sit and stand for six out of eight hours per day. AR at 292-96. The ALJ did not explain how he determined these functional limitations, nor does their use at Clay's hearing substitute for the narrative analysis required by SSR 96-8p.
With regards to walking, Clay has consistently maintained, including at her hearing, that she can walk around the block, but must then stop to rest. She has also indicated difficulty with stairs, due to the exertion of climbing, and concerns with her right knee failing on descent. Unlike sitting and standing, the ALJ did analyze Clay's medical limitations on walking, in his narrative, but appeared to dismiss them due to alleged issues with Clay's credibility. As the Court failed to find the ALJ's credibility determination supported by law or substantial evidence, see part IV.C.2.b supra, the Court reverses the ALJ's RFC determination, on the issue of walking, for failure to apply the correct legal standard and because it is not supported by substantial evidence.
The Administrative Record is silent, however, as to how often Clay encounters stairs, and in what number of steps and flights.
With regards to lifting, carrying, pushing, and/or pulling, the Court first notes there is no indication in the ALJ's narrative that he considered each of these separately, even if he intended to combine them in one or more combinations, when determining Clay's RFC. See SSR 96-8p para. 20. In fact, he does not mention pushing or pulling at all in his narrative. The Court thus reverses the ALJ's RFC determination, on the issues of lifting, carrying, pushing, and pulling, for failure to apply the correct legal standard.
He did utilize these concepts at Clay's hearing, however, as discussed supra in note 40. This does not substitute, however, for analyzing them in his narrative.
With regards to lifting and carrying, the Court notes the ALJ appeared to draw the most support for concluding Clay could lift or carry 20 pounds maximum and 10 pounds repetitively, from Dr. St. John's September 10, 2002 examination. While it was a fairly detailed and thorough examination, it was done two to two-and-half years prior to the onset dates of her severe impairments, and it was three-and-a-half years prior to her hearing. While the Court agrees the ALJ properly weighted Clay's physicians' opinions, relative to each other, nonetheless, whether these opinions are considered in isolation or in the aggregate, they do not comprise substantial evidence to support a maximum capacity of 10 pounds versus 20 pounds. That is to say, there is substantial evidence to find Clay's maximum capacity is within this range of possibilities, but there is not substantial evidence to precisely identify whether it is specifically 10 or 20 pounds. Nor will the Administrative Record allow for any greater precision without more data on this topic, either by recontacting Clay's physicians, or more ideally, obtaining current lift and carry capacities. The Court thus reverses the ALJ's RFC determination, on the issues of lifting and carrying, as there is not substantial evidence to support it.
Also, to the extent the ALJ based Clay's lifting and carrying capacity on his credibility determination of her claim she could only lift ten pounds, the Court reverses the ALJ's RFC determination, on this issue, for failure to apply the correct legal standard and because it is not supported by substantial evidence. See part IV.C.2.b supra.
With regards to the ALJ's functional determination based on the medical limitation of Clay's migraines and flares, as it turned on his improper determination of Clay's credibility, the Court reverses this functional determination, for failure to apply the correct legal standard and because it is not supported by substantial evidence. See part IV.C.2.b supra.
Likewise, as the ALJ's functional determination that Clay could stoop frequently but not continuously turned on his determination of Clay's credibility, the Court reverses it for failure to apply the correct legal standard and because it is not supported by substantial evidence. See part IV.C.2.b supra. In particular, the Court notes the only pertinent evidence the ALJ appeared to analyze regarding Clay's ability to stoop, was her ability to kneel to clean the bottom of the refrigerator, for which the record provides no frequency.
Lastly, because the ALJ failed to consider Clay's records from Alta Bates and West Oakland, he failed to consider her neck pain, depression, mood disorder, and hemorrhoid impairments in determining her RFC, in violation of 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); SSR 96-8p paras. 7, 17-18. See part IV.C.1.c.v supra. The Court thus reverses the ALJ's RFC determination, on this issue, for failure to apply the correct legal standard.
V. The ALJ applied the incorrect legal standard in determining Clay's past relevant work.
"At the fourth step, [the SSA] considers [its] assessment of your residual functional capacity and your past relevant work. If you can still do your past relevant work, [the SSA] will find that you are not disabled." 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The RFC determination precedes the past relevant work determination. Id. §§ 404.1545(a)(5), 416.945(a)(5). Once the ALJ determined Clay's RFC, he proceeded to determine her past relevant work. See AR at 26.
The determination of Clay's RFC is discussed supra in part IV.
"Past relevant work" is work a claimant performed within the past 15 years, that was SGA, and that lasted long enough for them to learn to do it. Id. §§ 404.1560(b)(1), 416.960(b)(1). The determination may involve evidence provided by the claimant, persons familiar with their work, vocational experts, or Department of Labor materials, such as the Dictionary of Occupational Titles. Id. §§ 404.1560(b)(2), 416.960(b)(2). The determination does not involve a claimant's "vocational factors of age, education, and work experience or whether [their] past relevant work exists in significant numbers in the national economy." Id. §§ 404.1560(b)(3), 416.960(b)(3).
As defined by the SSA:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.Id. §§ 404.1567(a), 416.967(a).
In contrast:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.Id. §§ 404.1567(b), 416.967(b).
In contrast, "[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." Id. §§ 404.1567(c), 416.967(c).
In this case, the parties argued about whether Clay could perform sedentary or light work. See Mot. at 15:9-16:21 (ALJ's improper weight of medical opinions caused an improper past relevant work determination); Opp'n at 7:22-8:18 (disagreeing with Clay's analysis). The parties failed to realize, however, the issue was moot, as the ALJ had failed to apply the correct legal standard for determining Clay's past relevant work.
At Clay's hearing, the ALJ put the following question to the vocation expert:
I have some hypothetical questions for you, as you answer these please assume a person of the same age, education and experience as the clamant has. And for the first hypothetical assume further that the person can lift and carry . . ., can stand and walk . . ., and can sit. . . . Would a person with these limitations be able to perform any of the claimant's past work . . .?
For brevity, the Court has omitted the capacity details as they are irrelevant to the issue at hand.
After the expert's answer, the ALJ asked, "As a second hypothetical, assume further that the person cannot lift. . . . Would a person with those additional restrictions still be able to perform all of the claimant's past work . . .? Id. at 292-93. After the expert clarified his answer to the first hypothetical, he answered the ALJ's second hypothetical. Id. at 293. The ALJ then asked, "As a third hypothetical assume in addition to all the limitations stated before for about 10 months of the year the claimant might miss work one day per month because of headaches." Id. at 293. After the ALJ answered, there was a brief exchange about whether Clay's skills or vocational training would transfer to the sedentary level. Id. at 293-94.
The ALJ then asked, "As a fourth hypothetical, assume in addition all the limitations stated before, that the person cannot lift, push. . . . Could a person with those limitations still be able to perform all of the claimant's past work . . .? Id. at 294. The ALJ answered in the negative. Id. The ALJ then asked the expert to consider whether Clay could perform "other jobs," taking into account her vocational training. Id. After a short discussion on this issue, id. at 294-95, the ALJ asked, "As a fifth hypothetical, assume in addition to all the restrictions stated before that the person can lift and carry. . . . Would that erode any of the numbers you gave after the fourth hypothetical?" Id. at 295-96. The expert answered, and the questioning shifted to claimant's attorney. Id. at 296.
For every hypothetical, the ALJ had the vocational expert "assume a person of the same age, education and experience as the clamant has." See AR at 292. Then, in his narrative, the ALJ made it clear his determination as to what past relevant work Clay could do, turned entirely on the "testimony of the vocational expert." AR at 26 para. 4. While vocational factors may be considered for the fifth-step determination of "other work," see 20 C.F.R. §§ 404.1560(c), 416.960(c), this is absolutely prohibited for the fourth step determination of "past relevant work," see id. §§ 404.1560(b)(3), 416.960(b)(3) (determination does not involve a claimant's vocational factors of age, education, or work experience); Garcia v. Sec'y of Health and Human Servs., 46 F.3d 552, 555-56 (6th Cir. 1995); Williams v. Sullivan, 970 F.2d 1178 (3d Cir. 1992), reh'g denied, cert. denied, 507 U.S. 924 (1992); 55 Fed. Reg. 11009, 11009-10 (Mar. 26, 1990) (Amendments in 1990, to § 404.1560 and § 416.960, expressly stating principle, merely restated longstanding SSA policy of not considering vocational factors when considering past relevant work in the fourth step of its five-step disability analysis.).
Because the ALJ applied the wrong legal standard, when he used vocational factors to determine Clay's past relevant work, the Court reverses his determination and remands for a determination under the correct legal standard. In remanding the Court notes SSR 82-62 states, "[w]hen deciding whether a claimant is disabled under title II or title XVI, the 15-year period is generally the 15 years prior to the time of adjudication at the initial, reconsideration or higher appellate level." SSR 82-62 para. 9 ¶ 1. The Court further notes at her hearing the ALJ considered Clay's work as a housekeeper from 1987 through 1989, even though 15 years prior to her hearing was March 2, 1991. See AR at 76, 291. On remand, under SSR 86-26, any determination of Clay's past relevant work should be limited to the 15 years prior to her administrative hearing on remand, unless the ALJ explains in his narrative the grounds for exceeding such period. See SSR 82-62 para. 8.
Because the ALJ ultimately disregarded Clay's housekeeper work as too strenuous, in determining what past relevant work she could do, AR at 26 para. 4, his initial consideration of such work is not grounds for reversal.
VI. The Court remands for further development of the Administrative Record.
Clay requests as relief that the Court remand for an immediate determination of benefits, alleging there is no need to further develop the Administrative Record, under Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Mot. at 17:25-19:3. The SSA opposes. Opp'n at 13 n. 7. As there is clearly a need to further develop the record, the Court declines Clay's request to remand for an immediate award of benefits.
CONCLUSION
Accordingly, the Court GRANTS Deborah R. Clay's Motion for Summary Judgment [Docket No. 15], DENIES defendant's Cross Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment [Docket No. 17], REVERSES defendant's decision regarding whether Clay is eligible for disability or supplemental security income benefits, and REMANDS this matter back to defendant to take certain actions, including holding an administrative hearing to redetermine Clay's RFC and past relevant work, in accordance with the Court's findings and conclusions stated herein. Such actions shall include, but are not limited to, properly considering Clay's medical records generated by Alta Bates Summit Medical Center and West Oakland Health Council; determining whether Bruce Thompson, M.D. was Clay's treating physician, under Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 2003), and if so, recontacting him to clarify his medical opinions; and, if Dr. Thompson so qualifies for recontact, but defendant is unsuccessful in recontacting him, then arranging for a consultative examination.
IT IS SO ORDERED.