Opinion
CV 20-00567-TUC-JAS (LAB)
03-07-2022
Hayley DePorter, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Leslie A. Bowman United States Magistrate Judge.
The plaintiff, Hayley DePorter, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 11)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner. The ALJ's evaluation of DePorter's residual functional capacity (RFC) is not supported by substantial evidence. Specifically, the ALJ's finding that DePorter's fatigue would cause her to miss one day of work each month but would not necessitate additional breaks during the workday is not supported by substantial evidence.
PROCEDURAL HISTORY
On February 6, 2018, DePorter filed an application for disability insurance benefits. (Doc. 20-3, p. 15) She alleged disability beginning on January 25, 2018, due to “myotonic dystrophy, papillary thyroid cancer stage I, problems with dexterity/fine manipulation, fatigue/tiredness, [and] difficulty with concentration.” (Doc. 20-3, p. 15); (Doc. 20-7, p. 4) DePorter explains that myotonic dystrophy is “a rare genetic condition under the umbrella of muscular dystrophy, characterized by dysfunction in the peripheral muscles that causes them to fail to relax . . . [and] also causes fatigue, hypersomnia, fast heart rate, and muscle spasms.” (Doc. 21, p. 3) The impairment causes her “fatigue, intermittent foot, hand, and tongue cramping, forgetfulness, and difficulties with dexterity.” (Doc. 21, pp. 11-12)
DePorter's application was denied initially and upon reconsideration. (Doc. 20-3, p. 15) She requested review and appeared with counsel at a telephonic hearing before Administrative Law Judge (ALJ) Tin Tin Chen on May 29, 2020. (Doc. 20-3, pp. 15-23)
At the hearing, DePorter testified that she has trouble using her hands. (Doc. 20-3, p. 3 8) If she grips something hard, she has difficulty releasing her grip. Id. She explained that, “if I'm at a cashier position where I'm pulling change out of the door, my hands will seize, and I have a hard time handling the coins. . . .” Id. She further testified that, “the hardest thing about the myotonic dystrophy is how tired I am all of the time.” (Doc. 20-3, p. 42) “I could sleep anywhere, any time of the day for hours and still feel tired.” Id. DePorter testified that in spite of her impairment, she attended the Tucson Meet Yourself food festival in October. (Doc. 20-3, pp. 49-50) She went on two consecutive days for a few hours each day. Id. After her visits, she felt “exhausted.” Id.
Vocational expert John Komar also testified at the hearing. (Doc. 20-3, p. 29) He was asked by the ALJ to consider a person with DePorter's age, education, and past work, who could perform light work, who “can frequently handle and finger bilaterally but can only occasionally engage in fine manipulation bilaterally, ” and who would likely miss one day of work per month. (Doc. 20-3, pp. 63-64)) (emphasis added) Apparently, the ALJ believed that, due to fatigue, DePorter would likely be absent from work one day per month but would not require additional rest breaks during the workday. The expert testified that such a person would be able to perform DePorter's past relevant work as an administrative assistant. Id.
In her decision, dated July 1, 2020, the ALJ found that DePorter was not disabled because she can perform her past relevant work as an administrative assistant according to the testimony of the vocational expert. (Doc. 20-3, p. 22) On November 20, 2020, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Doc. 20-3, p. 2) She subsequently filed this action seeking the court's review. (Doc. 1)
Medical Opinions
In July of 2017, medical consultant Nick J. Mansour, M.D., reviewed the medical record for the state disability determination services. (Doc. 20-4, p. 11) He opined that DePorter can lift or carry 25 pounds occasionally and 10 pounds frequently. (Doc. 20-4, p. 10) She can stand and/or walk, with normal breaks, about 6 hours in an 8-hour workday. Id. She can sit, with normal breaks, about 6 hours in an 8-hour workday. Id. She also has some postural and manipulative limitations. Id.
Mansour offered a second opinion of DePorter's functional limitations in May of 2018. (Doc. 20-4, pp. 26-27) His opinion then was largely the same as it had been previously in July of 2017. (Doc. 20-4, pp. 26-27) Mansour's opinion did not contain any limitations due to fatigue. The ALJ found the opinions of the medical consultants generally “persuasive, ” but she believed that they improperly discounted DePorter's fatigue. (Doc. 20-3, pp. 20-21)
In July of 2018, DePorter's medical provider Alan Rogers, M.D., completed a Physical Residual Functional Capacity Questionnaire. (Doc. 20-8, pp. 154-155); (17F) Rogers opined that DePorter could sit for 3 hours and stand/walk for 1 hour in an 8-hour workday. Id. She would have to shift positions every 30 minutes. Id. Her handling, fingering, and reaching would be limited to 50% of the day. Id. She would need 3 additional breaks during the workday presumably due to “fatigue.” (Doc. 20-8, pp. 154-155) She would be absent from work 3-4 days per month. Id. Rogers's medical opinion is the only one in the record that concludes that DePorter would be absent from work a certain number of days per month due to fatigue. The ALJ found Rodgers's medical opinions to be “not persuasive.” (Doc. 20-3, p. 21)
In September of 2018, DePorter's treating physician, Holli Ann Horak, M.D., completed a Physical Residual Functional Capacity Questionnaire. (Doc. 20-8, p. 116); (11F) Horak opined that DePorter could sit for 8 hours and stand/walk for 1 hour in an 8-hour workday. Id. She could handle, finger, or reach 10% of the work day. Id. She would need an additional 3 breaks during the workday. (Doc. 20-8, p. 117) Horak stated that she could not assess how many days per month DePorter would be absent from work due to her impairments because her condition is chronic and progressive. Id. The ALJ found Horak's medical opinions to be “not persuasive.” (Doc. 20-3, p. 21)
The signature on the report is illegible, but DePorter identifies the provider using the medical records. (Doc. 21, p. 8, n. 2); see also (Doc. 20-3, p. 36)
In January of 2019, medical consultant Keith Shelman, M.D., reviewed the medical record for the state disability determination services on reconsideration. (Doc. 20-4, pp. 31, 50) He opined that DePorter can lift and/or carry 20 pounds occasionally and 10 pounds frequently. (Doc. 20-4, p. 47) She can stand and/or walk, with normal breaks, about 6 hours in an 8-hour day. Id. She can sit, with normal breaks, about 6 hours in an 8-hour day. Id. She also has some postural, manipulative and environmental limitations. (Doc. 20-4, pp. 47-49) Shelman's opinion did not contain any limitations due to fatigue.
In April of 2019, medical consultant Jay Shaw, M.D., completed a Physical Residual Functional Capacity Assessment. (Doc. 20-8, p. 139) (15F) Shaw opined that DePorter could lift and/or carry 20 pounds occasionally and 10 pounds frequently. (Doc. 20-8, p. 140) She could stand and/or walk, with normal breaks, about 6 hours in an 8-hour workday. Id. She could sit, with normal breaks, for about 6 hours in an 8-hour workday. Id. She also has certain postural and manipulative limitations. (Doc. 20-8, pp. 141-142) Shaw's opinion did not contain any limitations due to fatigue.
In January of 2019, Jeri B. Hassman, M.D., conducted an examination for the state disability determination services. (Doc. 20-8, p. 118); (12F) She diagnosed “history of myotonic dystrophy, ” “complaints of excess sleeping, ” “history of papillary thyroid cancer, ” “allegation of difficulty with concentration and complaints of fatigue.” (Doc. 20-8, p. 120) Hassman completed a Medical Source Statement of Ability to do Work-Related Activities (Physical). (Doc. 200-8, p. 122) She opined that DePorter can lift or carry 20 pounds occasionally and 10 pounds frequently. (Doc. 20-8, p. 122) At this point in the form, a question was presented, “On which of your findings have you based this conclusion?” Hassman stated, “Myotonic dystrophy, difficulty releasing her grip, excessive fatigue.” (Doc. 20-8, p. 122)
Hassman further opined that DePorter can stand and/or walk 6-8 hours in an 8-hour day. Id. Again, the question was presented, “On which of your findings have you based this conclusion?” Hassman stated, “Myotonic dystrophy, difficulty releasing her grip, excessive fatigue. Claimant needs frequent rest breaks .” (Doc. 20-8, pp. 122-123) (emphasis added)
Hassman further opined that DePorter has no sitting limitations. (Doc. 20-8, p. 123) She should never climb ladders, ropes, or scaffolds. (Doc. 20-8, p. 123) She should only occasionally climb ramps or stairs, stoop, kneel, crouch, crawl, or reach. Id. Hassman again stated that her findings are based on “Myotonic dystrophy, difficulty releasing her grip, excessive fatigue.” (Doc. 20-8, p. 122)
The following statement appears at the end of the Medica Source Statement form: “If your patient suffers from severe fatigue and cannot complete an 8-hour day or 40-hour workweek, please comment on what findings you have based this conclusion.” (Doc. 20-8, p. 124) Hassman added no comments. Id. Apparently, Hassman believed DePorter could work full-time provided she had frequent rest breaks during the workday, at least where the job required standing and walking. The ALJ stated that she found Hassman's medical opinions “persuasive.” (Doc. 20-3, p. 21)
CLAIM EVALUATION
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). “An individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she] would be hired if [she] applied for work.” 42 U.S.C. § 423(d)(2)(A).
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. § 404.1520. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4). If so, then the claimant is not disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4). In making a determination at step two, the ALJ uses medical evidence to evaluate whether the claimant has an impairment that significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes there is no severe impairment, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4); 20 C.F.R. Pt. 404, Subpt. P, App.1. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled, and no further inquiry is necessary. If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
The fourth step requires the ALJ to consider whether the claimant has sufficient residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. § 404.1520(a)(4). If yes, then the claim is denied. Id. If the claimant cannot perform any past relevant work, then the AL J must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. 20 C.F.R. § 404.1520(a)(4).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. § 404.1545.
“There are two ways for the [ AL J] to meet the burden of showing that there is other work in ‘significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2 [the grids].” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
The ALJ's Findings
At step one of the disability analysis, the ALJ found that DePorter “has not engaged in substantial gainful activity since January 25, 2018, the alleged onset date. . . .” (Doc. 20-3, p. 17) At step two, she found DePorter “has the following severe impairment: myotonic dystrophy . . . .” (Doc. 20-3, p. 17)
At step three, the ALJ found that DePorter's impairment did not meet or equal the criteria for any impairment found in the Listing of Impairments, Appendix 1, Subpart P, of 20 C.F.R, Part 404. (Doc. 20-3, p. 18)
The ALJ then analyzed DePorter's residual functional capacity (RFC). She found that DePorter “has the residual functional capacity to perform light work . . . except she can frequently climb ramps and stairs, but never climb ladders, ropes or scaffolds. She can frequently stoop, kneel, crouch, and crawl. She [can] frequently handle and finger bilateral, but can only occasionally engage in fine manipulation bilateral. The claimant will miss one day of work per month” (Doc. 20-3, p. 21) (emphasis added)
At step four, the ALJ found that DePorter “is capable of performing past relevant work as an administrative assistant.” (Doc. 20-3, p. 22) This finding was based on the testimony of the vocational expert at the hearing. Id.
STANDARD OF REVIEW
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. § 405(g). The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the [Commissioner's] decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
The Commissioner need not accept the claimant's subjective testimony of disability, but if she decides to reject it, she must justify her decision. Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). “[W]ithout affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.” Id.
Discussion
DePorter argues that the ALJ's evaluation of her RFC (residual functional capacity) is not supported by substantial evidence. (Doc. 21, pp. 1-2) She does not contest the ALJ's finding that she has the ability to perform the exertional requirements of light work at least part of the day. Instead, she maintains that the ALJ failed to properly account for her fatigue, which prevents her from working full-time.
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b).
Specifically, she argues that the ALJ failed to provide clear and convincing reasons for discounting her subjective testimony of disabling fatigue. She also asserts that the ALJ improperly discounted the medical opinions supplied by her treating physicians, Alan Rogers, M.D., and Holli Ann Horak, M.D. Both physicians opined that DePorter would need 3 additional breaks during the workday due to her fatigue. See (Doc. 20-8, pp. 154-155); (17F) (Doc. 20-8, p. 117) Assuming without deciding that the ALJ properly discounted DePorter's subjective testimony and the opinions of Rogers and Horak, the court still finds that the ALJ's RFC determination is not supported by substantial evidence as it relates to DePorter's fatigue. See also 42 U.S.C. § 405(g) (“The court shall have the power to enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security. . . .”).
In her decision, the ALJ explained that she found the opinions of the state agency consultants to be “persuasive” at least where they concluded that DePorter can perform light work “with additional postural, manipulative, and environmental limitations.” (Doc. 20-3, p. 20) The ALJ decided, however, that the state agency consultants failed to allow for her fatigue, which the ALJ acknowledged would affect her ability to work. (Doc. 20-3, p. 21) The ALJ then stated as follows: “Moreover, as discussed above, the claimant's condition results in fatigue that will likely cause her to miss one day of work per month.” Id.
Apparently, the ALJ decided that DePorter's fatigue would preclude her from working one day per month rather than necessitating that she take additional breaks during each work day. The ALJ did not, however, provide substantial evidence to support her conclusion.
Presumably, there are some claimants whose impairments will necessitate additional breaks during the work day while there are others who will usually be able to work a full 8-hour day but will likely miss work one or more days per month. Deciding between the two possibilities requires an inquiry into the nature of the impairment. One might presume that a person suffering from migraine headaches would fall into the second group because while migraine headaches may be disabling, they usually affect the sufferer only on those days when the headaches are triggered, rather than all the time. A person with Chronic Obstructive Pulmonary Disease (COPD), on the other hand, would probably fall into the first group because that impairment affects the sufferer all the time. The ALJ in this case seemed to believe that DePorter's impairment falls into the second group - she would usually be expected to put in an 8-hour day but would occasionally be absent from work. She did not, however, provide substantial evidence to support this finding.
Of course, there are those claimants whose impairments are so debilitating that they would need both accommodations, but the court assumes without deciding that DePorter is not so limited.
In her decision, the ALJ explained generally that while “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (Doc. 20-3, p. 19) She then described DePorter's myotonic dystrophy and her allegation of disabling fatigue. The ALJ continued as follows:
Despite the above abnormalities, the claimant has done well with treatment. Routine follow up notes demonstrate the claimant is generally doing well. (Ex. 9F/3; 23F/23). The claimant also participated in physical therapy to improve her lower back pain. (Ex. 22F). The claimant responded well to treatment and her treatment provider discharged her after four months. (Ex. 22F/11-12). Furthermore, the claimant has had physical examinations consistent with the above residual functional capacity. Most notably, although she has had difficulty releasing her grip, the claimant has demonstrated a normal grip strength in both hands. (Ex. 12F/3). During her consultative examination, the claimant demonstrated a normal range of motion in her upper extremities, normal dexterity in her fingers, and a normal coordination in her fingers. (Ex. 12F/3). The claimant was also able to stand and walk on her toes, bend down and pick up something from the floor, dress and undress independently, and get on and off the examination table and in and out of a chair. (Ex. 12F/2). Moreover, physical examinations] have generally revealed an intact sensation, a normal gait, and a normal strength in her upper and lower extremities. (Ex. 10F/3; 12F/2; 21F/5).(Doc. 20-3, p. 20)
The medical evidence cited by the ALJ (normal grip strength, normal gait, the ability to dress and undress independently) helps to establish that DePorter has exertional, postural, and manipulative limitations consistent with the demands of light work. DePorter, however, does not contest the ALJ's finding that she can perform light work for some portion of the day. She argues instead that she is unable to perform light work on a full-time basis. The evidence cited by the ALJ, however, does not establish that DePorter has the stamina necessary to work a full 8-hour day, with normal breaks, five days per week. The fact that DePorter has “done well with treatment” is some evidence that her functional limitations are not as severe as they might have been otherwise, but by itself, it says nothing about her problems with stamina and fatigue. (Doc. 20-3, p. 20)
The ALJ then described “other evidence in the record” that she believed was relevant. She wrote as follows:
The claimant has also demonstrated functional abilities consistent with the above residual functional capacity. Early during the period at issue, the claimant reported she enjoys baking, shopping, crafting, and planning parties. (Ex. 8F/2). Although the claimant te tified her abilities to perform these activities has decreased, she admitted she continued to do some throughout the period at issue. For example, the claimant testified she bakes cakes and pies for friends, and she baked a wedding cake during the period at issue. The claimant testified she received assistance to decorate her baked goods. The claimant testified that even though her hands begin to ache during projects, she tries to ignore the pain, and only “sometimes” stops. She further testified she attended an outdoor food festival twice in 2019, for at least a couple of hours at [a] time, but as long as half a day. Moreover, the claimant testified she is able to drive and she does not have trouble releasing her grip on the steering wheel.
Considering the above, the undersigned finds the claimant can perform work at the light exertional level. To prevent exacerbation of the claimant's pain and hand difficulties, the undersigned has provided additional postural and manipulative limitations. Furthermore, to account for the claimant's subjective complaints of fatigue, the undersigned finds the claimant will miss one day of work per month.(Doc. 20-3, p. 20) Again, the evidence cited by the ALJ (can bake cakes and pies with assistance, can drive, attended an outdoor food festival twice) shows that DePorter has exertional, postural, and manipulative limitations consistent with light work. It does not, however, establish that she has the stamina to work a full 8-hour day with normal breaks. The only evidence arguably related to stamina is the section discussing the “outdoor food festival.” Id. The ALJ notes that DePorter attended this festival “for at least a couple of hours at [a] time, but as long as half a day.” Id. This is some evidence that DePorter can work half-time. It is not substantial evidence that she can work a full 8-hour day without additional breaks. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1103 (9th Cir. 1999) (Evidence that Tackett took a four-day road trip to California, without more, is insufficient to counter the opinion of Tackett's treating physicians and the ALJ's own medical examiner that Tackett needs to shift positions “every 30 minutes or so.”).
The ALJ's analysis of the medical opinions in the record also fails to provide substantial evidence to support her treatment of DePorter's fatigue. The ALJ stated that she found the opinions of DePorter's treating physicians to be “not persuasive.” (Doc. 20-3, p. 21) She found the opinions of state agency consultants to be “persuasive” for the most part, but they failed to account for her fatigue. (Doc. 20-3, pp. 20-21)
Then, the ALJ stated that she found “persuasive” the opinion of the examining consulting physician, Jerri B. Hassman, M.D. (Doc. 20-3, p. 21) She explained that “Dr. Hassman's opinion is generally consistent with the record as a whole.” Id. Hassman, however, found that DePorter suffers from “excessive fatigue” and, because of that fatigue, she “needs frequent rest breaks.” (Doc. 20-8, pp. 122-123) (12F) (emphasis added) And yet, the ALJ apparently rejected Hassman's opinion that DePorter “needs frequent rest breaks” in favor of her own conclusion that DePorter could usually be expected to work a full 8-hour day but would likely miss one day of work per month. It is unclear why the ALJ came to this conclusion. The ALJ is not a medical doctor and ordinarily “is not qualified to substitute [her] own interpretation of the medical evidence for the opinion of medical professionals.” Langston v. Comm 'r of Soc. Sec, 2019 WL 3546836, at *5 (E.D. Cal. 2019); see also Banks v. Barnhart, 434 F.Supp.2d 800, 805 (CD. Cal. 2006) (“An ALJ cannot arbitrarily substitute [her] own judgment for competent medical opinion . . . and [she] must not succumb to the temptation to play doctor and make [her] own independent medical findings.”); Hartley v. Colvin, 2015 WL 9997207, at *7 (D. Ariz. 2015) (collecting cases), report and recommendation adopted, 2016 WL 407370 (D. Ariz. 2016).
The court is aware that the AL J is not required to accept every part of a medical opinion. She can pick and choose what parts she wants to adopt and what parts she wants to reject, but she must give reasons explaining her decision. Here, it is unclear why the AL J found the bulk of Hassman's opinion “persuasive, ” but rejected her finding that DePorter “needs frequent rest breaks.” (Doc. 20-8, pp. 122-123) (12F) Presumably, the ALJ believed DePorter's fatigue would be adequately accommodated by a qualification in the RFC that she would likely miss one day of work per month, but she does not explain why that is so. As the court explained above, there is a difference between those claimants who need additional breaks during the workday and those claimants who could usually work a full 8-hour day but might miss work a number of days during the month. Hassman seems to think that DePorter falls within the first group. If the ALJ thinks differently, she must provide substantial evidence to support her contrary findings.
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings.
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.