Opinion
CV-00-1412-ST
June 22, 2001
OPINION AND ORDER
INTRODUCTION
Claimant, Karin H. Cornett ("Cornett"), brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her request for disability insurance benefits under Title II of the Social Security Act. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order.
Larry G. Massanari became the Acting Commissioner of Social Security on March 29, 2001. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Larry G. Massanari is therefore substituted for Acting Commissioner William A. Halter as the defendant in this case.
PROCEDURAL BACKGROUND
Cornett filed her application for benefits on September 24, 1997. She alleged disability beginning January 1, 1997, due to carpal tunnel syndrome, left eye blindness, poor English skills and difficulty with stress. Her application was denied initially and upon reconsideration. Cornett then requested a hearing before an administrative law judge ("ALJ"). The hearing was held on April 14, 1999, in Portland, Oregon. Cornett, represented by an attorney, appeared and testified, as did a vocational expert ("VE"). After the hearing, Cornett amended her onset date to December 6, 1997. The ALJ considered the testimony and the evidence in the record and issued his decision on July 30, 1999. He found Cornett not disabled because she could perform other work existing in significant numbers in the national economy. On September 19, 2000, the Appeals Council declined to review the ALJ's findings. Thus, the ALJ's decision is the final agency decision, subject to review by this court. 20 C.F.R. § 404.981.
STANDARDS
The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir 1995), cert denied, 517 U.S. 1122 (1996). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months. . . ." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). In step two the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If not, the claimant is not disabled.
In step three the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. In step four the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e). If so, the claimant is not disabled. If the claimant cannot perform past relevant work, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(f). If the Commissioner meets this burden and proves that the claimant is able to perform other work which exists in the national economy, then the claimant is not disabled. Id.
The Commissioner's decision denying benefits will be disturbed only if it is based on legal error or it is not supported by substantial evidence in the record. Flaten v. Secretary of Health Human Serv's., 44 F.3d 1453, 1457 (9th Cir 1995). Substantial evidence is "more than a scintilla but less than a preponderance." Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir 1997). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten, 44 F.3d at 1457. The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir 1986).
STATEMENT OF THE FACTS
I. Witness Testimony
Cornett was 42 years old on the date of the hearing and is a high school graduate. She is 5'2" and weighs 270 pounds. For 15 years she worked as a housekeeper for the elderly but was forced to stop in December 1997 because of injuries suffered in an auto accident. Her "ankles were crushed" in the accident and she was unable to walk without assistance until November 1998. Tr. 34. At the time of the hearing, she was "headed for number 4 surgery." Id.
Citations are to the page(s) indicated in the official transcript of record filed with the Commissioner's Answer on February 23, 2001 (docket #9).
Cornett is in constant pain with her feet and ankles, and "when the pain gets so bad, it goes clear up into my hips." Tr. 35. She could not identify any particular activity which makes the pain worse or better and suffers from pain that is, on average, "between 8 and 10" on a scale of 0 (no pain) to 10 (the worst pain imaginable). Tr. 36. To relieve the pain, she takes nonprescription "Tylenol arthritic" three times a day. Id.
Cornett started using orthotic inserts in November 1998 which have helped. However, she can only walk "maybe a half a block but then I have to just turn around and say that's it. I'm out of here." Tr. 38. The pain forces her to stop, as it "feels like I'm walking on bones." Id. Standing is equally difficult and Cornett states that doing dishes "is an all day chore for me." Tr. 39. She is unable to lift or carry "because it hurts," uses a tool, a "picker upper," to pick things up off the floor, and has fallen several times. Tr. 39-40.
She has had symptoms of carpal tunnel syndrome since 1990 in both hands, but "it hasn't really got severe enough until here in the last couple years." Tr. 41. She experiences numbness and pain which prevent her from picking things up. Cornett's doctor recommended a nerve conduction study but Cornett stated that "when I was on the Oregon health plan they said it was too expensive and they had to conduct another test." Tr. 42. In order to alleviate the carpal tunnel symptoms, Cornett has been wearing splints at night. However, she has not noticed any improvement in her condition.
Cornett has been taking Paxil to treat depression for over a year because, as she explained, "since my car wreck I've been severely depressed." Tr. 46. She doesn't sleep much due to the pain and generally awakens at 5:00 am. She cooks, does laundry, and tries to maintain her home. However, since the accident, she has been unable to accompany her daughter to school activities and volunteer at her church. She is afraid to drive, her "memory is gone," and she is irritable when in pain. Tr. 48-49.
II. Medical Evidence
A. Physical
Cornett's primary physical complaint is the continuing pain associated with her feet and ankles stemming from her December 6, 1997 automobile accident. Following the accident, James C. Krieg, M.D., operated on Cornett's left foot and put her right foot in a cast. By February 1998, Cornett's right foot was in a fracture walker boot but her left foot still had a cast. On March 4, 1998, Dr. Krieg operated again on Cornett's left foot in order to remove a deeply imbedded piece of wire that had "migrated." Tr. 198. By April 6, 1998, Cornett reported pain in her right foot but her left foot was "quite comfortable" and Dr. Krieg reported that "she has been bearing full weight. She uses a fracture walker boot on alternate legs at different times." Tr. 224. In June 1998, a CT scan revealed a nonunited fracture in the right foot, and on July 20, 1998, Dr. Krieg operated on the right foot.
By July 31, 1998, Dr. Krieg found Cornett healing well, though she still complained of pain in both feet. Dr. Krieg anticipated that Cornett would "begin resuming ambulation as tolerated, weaning from her fracture walker boots." Tr. 267. By August 27, 1998, Dr. Krieg noted that Cornett was using regular shoes, but continued to complain of pain in both feet. He planned to "try and increase her activities as tolerated" and noted that no x-rays were needed. Tr. 266. Dr. Krieg's last chart note of October 29, 1998, indicates that Cornett "still has significant activity-limiting pain," walks with a "bilateral antalgic gait," and has "tenderness throughout the left midfoot and over the right calcaneocuboid joint." Tr. 265. He prescribed orthotic inserts and noted that "she will try and increase her activity over the next few weeks." Id.
In April 1999, Dr. Krieg completed a "Medical Assessment of Ability to do Work-Related Activities," indicating that Cornett could occasionally lift 10 pounds, frequently lift five pounds, would have difficulty with pushing, and had "[s]ignificant limitation on walking/standing." Tr. 286-89.
In addition to the pain associated with her feet and ankles, Cornett has further physical complaints. She may have carpal tunnel syndrome, is blind in her left eye, is obese, and has battled hypertension for years. As early as March 1995, her medical records indicate a diagnosis of carpal tunnel syndrome in the left wrist. Tr. 246. Several years later, in February 1998, Amy Murray, M.D., assessed Cornett with hypertension, "modestly controlled" and carpal tunnel syndrome, "worse on the left with evidence of mild motor loss." Tr. 186-87. Dr. Murray noted that although Cornett was obviously limited by her December 1997 accident, "her carpal tunnel syndrome is a functionally limiting feature, as well." Tr. 188. Dr. Murray recommended EMG/nerve conduction studies and a brace to be worn at night, and she stated that Cornett should "be as conservative as possible as this is her dominant hand. She may, indeed, need to proceed on to surgical intervention." Id.
B. Mental
Cornett has had a number of mental health evaluations since her onset date in December 1997. First, on February 15, 1998, Jon L. Benson, Psy.D., diagnosed "Borderline Intellectual Functioning" and an "Adjustment Disorder with Depressed Mood." Tr. 191. In March 1998, State Agency Psychologist Peter LeBray conducted a "Mental Residual Functional Capacity Assessment" while in April 1998, State Agency Physician Ron Patton, M.D., conducted a "Physical Residual Functional Capacity Assessment." Dr. Patton found Cornett "Moderately Limited" in various functional areas, including the "ability to understand and remember detailed instructions" and the "ability to carry out detailed instructions." Tr. 208. On July 10, 1998, Patrice A. LaLonde, PMHNP, diagnosed Major Depressive Disorder, recurrent, chronic bilateral ankle pain, and noted that Cornett was to begin taking Paxil for depression and anxiety. On September 23, 1998, John D. Adler, Ph.D., evaluated Cornett and diagnosed her with an adjustment disorder, with depression and anxiety, possible multiple learning disorders, possible dependent personality disorder, obesity, hypertension, and "multiple injuries (ex:legs)." Tr. 262.
III. VE Testimony
The VE determined that a hypothetical claimant, taking into account the physical and mental residual functional capacity ("RFC") assessments completed by Dr. Patton and Psychologist Peter LeBray, would be unable to undertake Cornett's past work as a home health aide. That same hypothetical claimant, however, could instead work as an office helper, small parts assembler, or routing clerk. Next, the VE considered an additional requirement that the hypothetical claimant be able to sit or stand at will. According to the VE, this would not eliminate any of the identified jobs. The VE then considered the hypothetical claimant limited to sedentary jobs and concluded that such a limitation would eliminate the office helper position but not the small parts assembler or routing clerk positions. Lastly, the VE opined that his answers "would change" if the hypothetical claimant needed to miss two or more days per month. Tr. 64.
ALJ'S DECISION
The ALJ determined that Cornett had not engaged in any substantial gainful work activity since December 6, 1997. Pursuant to the second step of the sequential evaluation process, he then determined that the medical record evidences a number of "severe" impairments, including bilateral foot pain status post ankle fractures, obesity, borderline intelligence, an adjustment disorder with depressed mood, carpal tunnel syndrome, and blindness in the left eye.
At the third step in the evaluation process, the ALJ determined that Cornett's severe impairments, alone or in combination, do not meet or equal the requirements set forth in the Listing of Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings"). The ALJ then proceeded to the fourth step in the evaluation process and discussed Cornett's residual functional capacity ("RFC"), which describes the range of work activities that a claimant can perform despite her impairments. The ALJ determined that Cornett's statements concerning her impairments and their impact on her ability to work were not entirely credible and did not fully credit Dr. Krieg's April 1999 assessment. Instead, based "on the record in its entirety," the ALJ determined that Cornett was capable of a reduced range of light work.
Based on this RFC, the ALJ proceeded to step five of the evaluation process and determined with the assistance of the VE that Cornett could not return to any of her past relevant work but is capable of making a vocational adjustment to work at other jobs which exist in substantial numbers in the economy. Thus, the ALJ found Cornett not disabled.
DISCUSSION
Cornett argues that the ALJ erred because he failed to: (1) properly evaluate Cornett under the Listings; (2) fully credit Cornett's testimony; (3) fully credit Dr. Krieg's opinion; and (4) present a complete hypothetical question to the VE.
I. Listings
Cornett first argues that the ALJ erred at step three of the sequential evaluation process in finding that she did not meet the requirements for inclusion under Listing 9.09, "Obesity," or, alternatively, under Listing 1.03, "Arthritis of a major weight-bearing joint." She also asserts that the ALJ erred because he did not consider whether the combination of her impairments was equivalent to any of the Listings.
A. Legal Standard
At step three of the Commissioner's sequential evaluation process, the ALJ is required to determine whether Cornett's impairment or combination of impairments meets or equals a Listing as set forth at 20 C.F.R. pt 404, Subpt. P, app 1. 20 C.F.R. § 404.1520(d). The claimant, however, bears the burden of producing medical evidence in order to establish the requisite medical findings. Yuckert, 482 US at 146 n5.
B. Analysis
1. Listing 9.09
Listing 9.09 requires that a claimant meet certain height and weight standards and also have one of the following additional impairments: pain or limited movement in a weight-bearing joint (arthritis), hypertension, congestive heart failure, chronic venous insufficiency, or respiratory disease. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 9.09 (1998). The ALJ found that Cornett did not satisfy this listing because her obesity "is not accompanied by the additional impairments required to meet 9.09." Tr. 14. Cornett correctly asserts that this conclusion may have been in error because she met or equaled the weight and height requirement and can point to evidence of arthritis in her foot. See Tr. 250 (Mark Scott Krause, M.D. found that "Coronal images suggest mild arthritic change at the talocalcaneal joint").
Before this court addresses Cornett's argument, however, it must decide whether Listing 9.09 applies because it was deleted and replaced with a more restrictive standard on October 25, 1999. See Revised Medical Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed Reg 46122, 46123 (August 24, 1999) SSR 00-3P, Policy Interpretation Ruling — Title II and XVI: Evaluation of Obesity, May 15, 2000 (2000 WL 628049). This change occurred after the ALJ issued his decision in this case, but before the Appeals Council denied review. The Commissioner argues that claims pending hearing or appeal on October 25, 1999, including this one, should be evaluated only under the new regulations that replaced Listing 9.09. Cornett responds that the ALJ considered Listing 9.09 in his decision predating October 25, 1999, and thus the court should not "retroactively" apply the new regulations to her claim for review.
Absent direction from any court of appeal on this issue, various district courts disagree as to whether Listing 9.09 should be applied to claims pending after October 25, 1999. One court, for example, adopted the analysis employed in an unpublished opinion, Nash v. Apfel, 2000 WL 710491 (10th Cir June 1, 2000), in finding that "the Commissioner has failed to demonstrate that the agency had a specific intent to apply the 1999 deletion retroactively." Rudolph v. Apfel, 2000 WL 1916317, *7 (D Kan Dec 29, 2000). Rudolph evaluated the claim for benefits under Listing 9.09 as it existed at the time of the administrative hearing. Id; see also Harris v. Apfel, 2001 WL 309048, *4 n1 (D Kan Feb 21, 2001) (same analysis, citing both Nash and Rudolph). Most other courts, however, are of the opposite view in concluding that "the new rules have prospective effect and, therefore, apply to cases pending at the time the rules took effect." Wooten v. Apfel, 108 F. Supp.2d 921, 924 (E.D. Tenn 2000); Castrejon v. Apfel, 131 F. Supp.2d 1053, 1056 (E.D. Wis 2001); Allen v. Apfel, 2001 WL 253120 *14 (E.D. La, March 14, 2001); Fulbright v. Apfel, 114 F. Supp.2d 465, 476 (W.D.N.C. 2000); see also James v. Apfel, 2001 WL 430746 *4 (W.D. Wash April 13, 2001) (Listing 9.09 held "no longer applicable" when it was deleted after the ALJ's decision but before the Appeals Council denied review).
This court agrees with the Commissioner and the latter cases cited above that Listing 9.09 no longer applies to this case. When the Commissioner published the final rule deleting Listing 9.09 on August 24, 1999, he stated that he would soon provide additional guidance for the evaluation of obesity in social security appeals. See 64 FR 46122, 46125. Less than a year later, in May 2000, the Commissioner published that guidance in Social Security Ruling ("SSR") 00-3p. The Commissioner issues SSRs to clarify the Social Security Act's implementing regulations and the agency's policies and they are binding on all components of the SSA even though they do not have the force of law. 20 C.F.R. § 402.35(b)(1). Because they represent the Commissioner's interpretation of the agency's regulations, courts give them some deference. Bunnell v. Sullivan, 947 F.2d 341, 346 n3 (9th Cir 1991) (en banc). SSR 00-3p expressly provides that the deletion of Listing 9.09 had an immediate prospective effect, but without affecting individuals previously found disabled under the Listing:
The final rules deleting listing 9.09 apply to claims that were filed before October 25, 1999, and that were awaiting an initial determination or that were pending appeal at any level of the administrative review process or that had been appealed to court. The change affected the entire claim, including the period before October 25, 1999. This is our usual policy with respect to any change in our listings.
SSR-003p (2000 WL 628049 at *7).
In this case, Listing 9.09 was deleted while Cornett's claim was pending appeal to the Appeals Council. Therefore, SSR 00-3p clearly directs the court to apply the new regulations, rather than Listing 9.09, to Cornett's claim. See also Castrejon, 131 F. Supp.2d at 1056 ("The answer to this question of whether or not Listing 9.09 applies on remand is found at SSR 00-3p"). SSR 00-3p furthermore demonstrates the Commissioner's "specific intent" to apply the 1999 deletion "retroactively." Accordingly, this court finds Cornett's argument moot as Listing 9.09 is no longer in force. As the court stated in Allen, 2001 WL 253120 at *14, "an award in this case cannot be made on the basis of a Listing which no longer exists, and which Listing was deleted prior to the final adjudication of the claim in this case." Instead, this court will review the ALJ's decision to ensure compliance with the rules designed to replace Listing 9.09.
2. Listing 1.03
Cornett argues that even if Listing 9.09 is no longer applicable, the ALJ erred because he did not consider the regulations which replaced Listing 9.09. In the revised Listings, the Commissioner "added guidance about the evaluation of claims for benefits involving obesity to the prefaces of the musculoskeletal, respiratory, and cardiovascular body system listings," each of which consist of the same following language:
Effects of obesity. Obesity is a medically determinable impairment that is often associated with disturbance of the musculoskeletal system, and disturbance of this system can be a major cause of disability in individuals with obesity. The combined effects of obesity with musculoskeletal [or "respiratory system" or "cardiovascular system"] impairments can be greater than the effects of each of the impairments considered separately. Therefore, when determining whether an individual with obesity has a listing-level impairment or combination of impairments, and when assessing a claim at other steps of the sequential evaluation process, including when assessing an individual's residual functional capacity, adjudicators must consider any additional and cumulative effects of obesity.64 FR 46122, 46128-46129 (emphasis added).
The Commissioner described the new regulations as necessary "to ensure that adjudicators understand that we consider obesity to be a medically determinable impairment that can be the basis for a finding of disability." 64 FR 46122, 46123. "[O]besity in combination with other impairments must be considered when evaluating disability at the listings step." Id (emphasis added).
Cornett specifically directs this court's attention to Listing 1.03, which mandates a finding of disability if there is evidence of arthritis of a major weight-bearing joint (due to any cause) with a "history of persistent joint pain and stiffness with signs of marked limitation of motion or abnormal motion of the affected joint on current physical examination" combined with:
A. Gross anatomical deformity of hip or knee (e.g. subluxation, contracture, bony or fibrous ankylosis, instability) supported by X-ray evidence of either significant joint space narrowing or significant bony destruction and markedly limiting ability to walk and stand; or
B. Reconstructive surgery or surgical arthrodesis of a major weight-bearing joint and return to full weight-bearing status did not occur, or is not expected to occur, within 12 months of onset.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.03.
a. Meets
As Cornett points out, the ALJ did not consider obesity when he analyzed whether Cornett met Listing 1.03. Applying the Listings as they existed at that time, and not the revised Listings, the ALJ simply stated that "[Cornett's] musculoskeletal impairments do not meet the requirements of any listing under 1.00." Tr. 14. Since he did not have the benefit of SSR 00-3p, he did not consider Cornett's obesity in relation to Listing 1.03 or in conjunction with her mental or other impairments. Although the
Appeals Council's decision post-dated SSR 00-3p, it also did not apply the revised Listings. Cornett's obesity is not an irrelevant consideration in this case. According to SSR 00-3p:
We may also find that obesity, by itself, is medically equivalent to a listed impairment. . . . For example, if the obesity is of such a level that it markedly limits the individual's ability to walk and stand, it may substitute for arthritis (and its associated criteria) of a weight-bearing joint with "gross anatomical deformity of a hip or knee" in listing 1.03A, and we will then make a finding of equivalence.
2000 WL 628049 at *4.
Here, the record contains medical evidence of Cornett's difficulty walking and standing, which likely is affected by her obesity. For example, in August 1998, Dr. Krieg noted that Cornett "continues to complain of pain throughout the left midfoot and right hindfoot. She feels that this is essentially unchanged from preop., and the left foot may even be a bit worse than preop." Tr. 266. In October 1998, Dr. Krieg noted that Cornett "still has significant activity-limiting pain." Tr. 265. Thus, this case must be remanded so that the ALJ can evaluate the effects of obesity, in combination with Cornett's other serious limitations, on Listing 1.03.
b. Equals
If a claimant has more than one impairment, the Commissioner must determine "whether the combination of [the] impairments is medically equal to any listed impairment." 20 C.F.R. § 404.1526(a); see Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir 1990) (holding that ALJ erred by failing to consider evidence of equivalence). The claimant's symptoms "must be considered in combination and must not be fragmentized in evaluating their effects." Lester v. Chater, 81 F.3d 821, 829 (9th Cir 1995) (citations omitted). A finding of equivalence must be based only on medical evidence. 20 C.F.R. § 404.1529(d)(3).
Here, the ALJ failed to provide the parties with a thorough discussion of equivalency but stated simply that "[n]o treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairment." Tr. 15. Cornett argues that this one-sentence boilerplate "discussion" is insufficient. In Marcia, the ALJ made a similar boilerplate statement that "[t]he claimant has failed to provide evidence of medically determinable impairments that meet or equal the Listings to Subpart P of Regulation 4." Marcia, 900 F.2d at 176. Marcia found this statement insufficient and reversed and remanded to the Secretary for proper consideration of step three equivalence, stating that "in determining whether a claimant equals a listing under step three of the Secretary's disability evaluation process, the ALJ must explain adequately his evaluation of . . . the combined effects of the impairments." Id at 176-77.
More recently, in Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir 2001), the Ninth Circuit distinguished Marcia. It noted that in Lewis, although the ALJ did not fully discuss the combined effects of the claimant's impairments, or compare them to any listing, the claimant "offered no theory, plausible or otherwise, as to how his seizure disorder and mental retardation combined to equal a listed impairment. Nor has he pointed to evidence that shows that his combined impairments equal a listed impairment." Therefore, the Ninth Circuit found in Lewis that the ALJ did not err by failing to fully discuss equivalency.
Here, as in Marcia and Lewis, the ALJ did not fully discuss the combined effects of Cornett's impairments, or compare them to any listing. However, as in Lewis, Cornett has offered no theory or medical evidence tending to show that her combined impairments equal a listed impairment. Thus, although the ALJ's statement was brief and involved no discussion, Cornett's argument fails.
Nevertheless, as explained above, obesity must be considered in the analysis of Listing 1.03, including an analysis of equivalency. See SSR-003 (2000 WL at *4) ("Obesity may be a factor in both `meets' and `equals' determinations"). Because the ALJ's decision was issued before the rule change at issue, he most likely did not consider obesity when declaring that Cornett did not equal any listed impairment. Upon remand, the ALJ must consider obesity when he considers whether Cornett equals any of the listed impairments. At that time, the ALJ will have the opportunity to engage in a more detailed and thorough written analysis.
Because this case is remanded for further proceedings, this court will address other arguments raised by Cornett which may affect those proceedings.
II. Discrediting Cornett's Testimony
Cornett next asserts that the ALJ erred in discrediting her testimony and thus failed to present the VE with a complete hypothetical.
A. Legal Standards
In evaluating a claimant's claim of subjective symptom testimony, the ALJ must determine whether the claimant has produced objective medical evidence of an underlying impairment which could reasonably be expected to produce the symptoms alleged. 20 § C.F.R. § 404.1529(a); Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir 1996). If the claimant produces such evidence and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281, citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir 1993). The ALJ's credibility determination is to be guided by a consideration of: (1) ordinary techniques of credibility evaluation such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. Id at 1284.
B. Analysis
The ALJ cited to no evidence of malingering, and the record is replete with evidence of underlying impairments. Therefore, the ALJ's stated reasons for partially rejecting Cornett's testimony must be "clear and convincing." Id at 1281. He stated:
The claimant testified that she can walk only 1 block. However, she reported to a nurse practitioner that she walks at a brisk pace for a minimum of 1/2 hour, sometimes cutting it short due to pain (Exhibit 16F-4). The claimant's testimony that she takes no prescription pain medication but experiences pain at an "8 to 10" on a scale of 1 to 10 is inconsistent. Despite her complaints of severe pain at the hearing, she appeared quite comfortable. She testified that she still volunteers at her child's school and is involved at her church, although she has cut back on these activities. She has received no treatment for carpal tunnel syndrome other than splints she wears occasionally at night. She testified that she has suffered from carpal tunnel syndrome since 1990. However, she was able to work despite this condition until 1997 when she was in an unrelated auto accident. Her testimony of memory problems is inconsistent with her psychological evaluations which have revealed no memory difficulties (Exhibits 5F-2, 13F-3).
Tr. 16
After a review of the record, this court finds that the ALJ's proffered reasons for partially rejecting Cornett's testimony regarding her pain and memory loss are clear and convincing and supported by the evidentiary record. First, at the hearing in April 1999, Cornett stated that she can walk "a block without really, without sitting for a while and then I can go maybe a half a block but then I have to just turn around and say that's it. I'm out of here." Tr. 38. As the ALJ pointed out, Agnes White, FNP, reported just two months earlier on February 11, 1999, that Cornett:
states she continues to take her daily walk, although she is limited by she weather at times. She states she does walk at a brisk pace in the morning time after waking up and she walks for a minimum of a-half an hour. At times, she needs to cut that walk short due to pain in her feet which is a result of the accident she had a year ago.
Tr. 278.
Cornett argues that this reference is isolated and inconsistent with the bulk of the medical records indicating substantial limitations on Cornett's ability to walk and stand. However, the Ninth Circuit has stated that "to find the claimant not credible, the ALJ must rely on reasons unrelated to the subjective testimony (e.g. reputation for dishonesty), on conflicts between his testimony and his own conduct, or on internal contradictions in that testimony." Light v. Social Security Admin., 119 F.3d 789, 792 (9th Cir 1997). Here, the record demonstrates Cornett's overall improvement throughout 1998 and early 1999, despite her continuing pain. For example, Dr. Krieg noted in October 1998 that Cornett still had pain and difficulty walking, but the only treatment he recommended was shoe inserts and an increase in activity. Thus, Cornett's statement at the hearing conflicted with her previous statement to Ms. White and with the evidence of her limitations in the medical record.
Cornett further argues that the medical records support her allegations of pain, and no evidence supports a finding that she is a malingerer. She is only partly correct. The record does evidence a great deal of pain, but not the foot and ankle pain to the extent she alleged at the hearing. As the ALJ pointed out, Cornett takes no prescription medicine and continues with activities, albeit at a reduced level. This would appear to be inconsistent with high levels of constant pain. The record does not indicate that a lack of money has limited Cornett's access to pain medication, but shows that she has never complained to a medical provider about constant pain, taken any prescription pain drugs, or sought or received any specialized treatment for the same.
Cornett further protests that the record supports her testimony concerning carpal tunnel pain and the ALJ assumed incorrectly that she was working full time until her accident in December 1997. Although Cornett stated at the hearing that she worked full time cleaning houses until her accident in December 1997 (Tr. 32), her earnings record from 1997 indicates that she only worked part-time. Tr. 112, 114. Also, as Cornett points out, Dr. Krause indicated in September 1997 that Cornett "claimed to have bilateral wrist pain which is keeping her from working as a maid." Tr. 238. However, the ALJ's erroneous assumption is immaterial since he found that carpal tunnel syndrome was a severe impairment and included in his hypothetical to the VE an inability "to perform frequent, forceful flexion with the left upper extremity." Tr. 17.
Lastly, Cornett testified that she no longer can remember telephone numbers, addresses, and birthdays as she had in the past but, as the ALJ pointed out, the record contains no medical evidence of such a memory impairment. Cornett argues that she was not tested for this specific impairment, and even if she had been, any inconsistency is not enough to discredit her testimony. Again, Cornett is partly correct. Certainly, the ALJ should not discredit all of Cornett's testimony because some of her symptoms could not be objectively verified. However, given that Cornett cannot point to any evidence in the record to support her complaints, and in the face of contradictory evidence, the ALJ's decision to reject her testimony about memory loss is without error.
In conclusion, the ALJ's decision to partially discredit Cornett's testimony is supported by adequate evidence in the record.
III. Discrediting Dr. Krieg's Opinion
Cornett also argues that the ALJ erred because he failed to fully credit Dr. Kreig's April 1999 assessment by stating that "Dr. Kreig [sic] has provided no basis to support his assessment (Exhibit 17F). My assessment of the claimant's residual functional capacity is based on the record in its entirety." Tr. 16.
A. Legal Standard
"The opinion of a treating physician is normally given deference because `he is employed to cure and has a greater opportunity to know and observe the patient as an individual.'" Morgan v. Commissioner of the Social Sec. Admin., 169 F.3d 595, 600 (9th Cir 1999), quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir 1987). When a treating physician's opinions and conclusions are not contradicted by another physician, they may be rejected only for "clear and convincing" reasons. Lester, 81 F.3d at 830. Even if a treating physician's opinion is contradicted by another physician, the Commissioner may not reject the opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record. Id. This may be accomplished by the ALJ "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir 1998).
B. Analysis
Because the ALJ did not specifically refer to a contradictory medical opinion as the basis for discrediting Dr. Krieg's opinion, he must provide "clear and convincing" reasons for doing so. Lester, 81 F.3d at 830. This he has failed to do.
Dr. Krieg indicated that Cornett could occasionally lift/carry 10 pounds, frequently lift/carry five pounds, would have difficulty pushing, and had significant limitations walking/standing. Contrary to the ALJ's comment that there was "no basis to support his assessment," Dr. Krieg's assessment was supported by adequate medical evidence. Dr. Krieg's clinical notes reveal a continuing course of treatment for Cornett's painful and debilitating accident and document her symptoms of foot and ankle pain. In October 1998, for instance, his final clinical note states that Cornett "has been wearing sneakers, and has been ambulating with some difficulty" and "still has significant activity-limiting pain." Tr. 265.
Although Dr. Krieg's clinical notes only continue through October 1998, Cornett's medical condition at that time could certainly preclude her from heavy lifting, carrying, or pushing, and significantly impact her ability to walk and/or stand. If the ALJ felt that Dr. Krieg's April 1999 assessment was lacking a clinical basis, he should have explained his reasoning and obtained timely medical information. Because the ALJ erred in rejecting Dr. Krieg's opinions, this court should credit those opinions as true. Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir 1994).
In April 1998, some four months after Cornett's auto accident, and one year prior to Dr. Krieg's assessment, Dr. Patton entertained a much more optimistic view of Cornett's physical abilities. He surmised that Cornett could occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds. Tr. 215-22. The ALJ instructed the VE to consider this assessment, rather than Dr. Krieg's assessment. Dr. Patton, however, is a non-examining physician, and his opinion cannot by itself constitute substantial evidence to justify rejection of either a treating or an examining doctor's opinion, particularly without any discussion. See Lester, 81 F.3d at 831.
If fully credited, Dr. Krieg's lifting/carrying restrictions would limit Cornett to sedentary work and foreclose the "light" office helper position identified by the VE. However, contrary to Cornett's argument, it is unclear whether Dr. Krieg's assessment would preclude all jobs identified by the VE and require an award of benefits. For example, upon questioning by the ALJ, the VE identified two sedentary jobs with a sit/stand option. The sit/stand option appears to take into account Cornett's "significant" limitations walking and standing. Therefore, upon remand, the ALJ must give renewed consideration to Dr. Krieg's assessment and the resulting VE testimony.
Light work entails "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). Sedentary work, however, "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 404.1567(a).
IV. Hypothetical to VE
Upon remand, the ALJ likely will need to propose a new hypothetical question to the VE. Nevertheless, this court will address Cornett's arguments concerning certain limitations posed in the pending hypothetical question to the VE which may also be included in a new hypothetical question. Cornett argues that the hypothetical was flawed because it did not encompass all of her limitations, particularly her mental impairments and her inability to engage in fine motor skills.
A. Legal Standard
In the final step of the five-step evaluation of disability claims, the Commissioner must consider "whether, in light of his RFC, age, education, and work experience, [the claimant] has the capacity to perform other work." Yuckert, 476 U.S. at 471. In making that determination, the ALJ may elicit testimony from a VE, but "`the hypothetical [posed to the VE] must consider all of the claimant's limitations.'" Light, 119 F.3d at 793, quoting Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir 1994). "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir 1988) (citations omitted). The ALJ need not present the VE with every asserted limitation and symptom in the record. Instead, the ALJ's function is to winnow these down and present the VE with those limitations supported by evidence in the record. See id. However, if a VE's hypothetical does not reflect all the claimant's limitations, then the "expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy." Delorme v. Sullivan, 924 F.2d 841, 850 (9th Cir 1991).
B. Analysis
1. Mental
The VE considered various hypotheticals presented by the ALJ, all of which included the mental RFC as expressed in Exhibit 8F. Tr. 57. Exhibit 8F is an RFC Assessment prepared by state agency non-examining psychologist Peter LeBray, dated March 10, 1998. See Tr 208-10. Cornett argues that the VE erred in depending on Exhibit 8F because Dr. Adler and Ms. LaLonde determined that Cornett's Global Assessment of Functioning ("GAF") was 51 and 50, respectively. Essentially, Cornett argues that these two latter sources reported a more dismal psychiatric diagnosis and that they, rather than Mr. LeBray, should have been credited. However, even if Dr. Adler and Ms. LaLonde were credited, their assessments would not have made a significant difference in the hypotheticals assigned to the VE.
First, Mr. LeBray did not find Cornett "markedly limited" in any way, but found her "moderately limited in several areas," concluded that she "can understand, remember and carry out simple paced (low key) tasks/routines," but "should not frequently engage public — gets along on casual, routine basis," and does best with a set routine and "help setting realistic plans." Tr. 210.
Dr. Adler, who diagnosed Cornett with a GAF of 51, opined that Cornett's ability to adapt to stress "is fairly adequate," her memory and concentration were "adequate," and her cognitive skills "are not in the borderline retarded range, but rather are below average (or they may be close to the borderline ranger or its upper limit)." Tr. 262. Ms. LaLonde, who diagnosed Cornett with a GAF of 50, opined that Cornett's short and long term memory and insight was intact and her judgment was fair. She did not make any findings that Cornett would be severely handicapped in any functioning area, but diagnosed depression and recommended Paxil "to help alleviate symptoms of depression and anxiety associated with living in an abusive relationship." Tr. 294-95.
A GAF of 51 is equivalent to "moderate difficulty in social, occupational, or school functioning." Cornett's Appendix B (emphasis added).
Even if the ALJ should have included in his hypothetical the RFC assessments by Dr. Adler and Ms. LaLonde, those assessments would not have precluded any of the positions offered by the VE. In fact, Mr. LeBray's assessment, credited by the ALJ, was the most restrictive, as he found that Cornett had "moderate" limitations in a number of functional areas. Therefore, even if the ALJ did err in using Exhibit 8F, his error was harmless.
2. Manual Dexterity
Lastly, Cornett argues that all of the positions identified by the VE involve "frequent" reaching, fingering, and handling, which she cannot do because of her carpal tunnel syndrome. Substantial evidence, however, supports the ALJ's decision to present the VE with a hypothetical which includes the ability to do such work.
The ALJ instructed the VE to consider the physical RFC as expressed in Exhibit 10F which was performed by Dr. Patton on April 30, 1998. Dr. Patton noted that Cornett should be "limited from forceful repetitive gripping with her left hand" (her dominant hand) and "no frequent forceful flexion [with the left hand]." Tr. 216, 218. He did not preclude reaching, fingering, or handling altogether. Based on this physical RFC, the VE identified two sedentary positions: routing clerk and small parts assembly. The VE specifically considered "no forceful repetitive activity" in his calculations and noted that it would not preclude the jobs he identified because "these are not forcible types of work." Tr. 61.
Therefore, the critical issue is whether the ALJ erred by relying on Dr. Patton's assessment of Cornett's gross and fine manipulation. The only significant evidence to the contrary was Cornett's testimony that she experiences numbness and pain which prevent her from picking things up. As discussed above, however, the ALJ properly discredited this testimony. In February 1998, Dr. Murray assessed Cornett with carpal tunnel syndrome, "worse on the left with evidence of mild motor loss." Tr. 187. Dr. Murray noted that Cornett's carpal tunnel syndrome was a "functionally limiting feature," but she failed to describe how and to what extent it limited Cornett's activities. The medical evidence, while it supports a finding of some limitation, does not support a conclusion that Cornett lacks the ability to perform work associated with reaching, fingering, and handling. Instead, Dr. Patton's assessment is uncontradicted by any other medical opinion and is supported by the evidence in the record. In short, the ALJ did not err in depending on Dr. Patton's assessment.
ORDER
For the reasons set forth above, the Commissioner's decision is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and this matter is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, including a full and fair consideration of the effect of Cornett's obesity on her capacity for work and a proper evaluation of Dr. Krieg's assessment.