Opinion
3:15-cv-02127-YY
03-20-2017
MENDY LEE HARMON, Plaintiff, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION :
INTRODUCTION
Plaintiff, Mendy Lee Harmon ("Harmon"), seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"), 42 USC §§ 401-33. This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). For the reasons set forth below, that decision should be REVERSED and REMANDED for further proceedings. /// /// ///
ADMINISTRATIVE HISTORY
Harmon protectively filed for DIB on January 13, 2012, alleging a disability onset date of September 5, 2011. Tr. 101. Her application was denied initially and on reconsideration. Tr. 101, 101-11, 114-27. On February 21, 2014, a hearing was held before Administrative Law Judge ("ALJ") Wayne Araki. Tr. 35-99. The ALJ issued a decision on March 24, 2014, finding Harmon not disabled. Tr. 19-28. The Appeals Council denied a request for review on September 10, 2015. Tr. 1-3. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 C.F.R. §§ 404.981, 422.210.
Citations are to the page(s) indicated in the official transcript of the record filed on March 29, 2016 (ECF #15).
BACKGROUND
Born in 1973, Harmon was 42 at the time of the hearing before the ALJ. Tr. 101. Harmon quit school during her junior year of high school after being involved in a serious automobile accident. However, she completed her GED in 1992. Tr. 38-39. She has past relevant work experience as a debt collector and lending service supervisor, most recently working for four years at Wells Fargo Bank, and prior to that for four or five years at U.S. Bank. Tr. 87-89. Harmon alleges she is unable to work due to the combined impairments of "very brittle" type 1 diabetes, depression, and polycystic ovarian disease. Tr. 101.
MEDICAL BACKGROUND
Harmon has a significant medical history of type 1 diabetes. Diagnosed in her early 20's, she immediately began taking insulin. Tr. 39-41. During the ensuing 20 years, she has undergone several hospitalizations, most recently in late October 2011. Tr. 39, 69, 276-78.
In March 2009, Harmon was absent from work due to extreme hypoglycemia that rendered her unconscious for two days. Fortunately, her supervisor called her mother, who asked the local sheriff's office to do a welfare check. The sheriff broke in to Harmon's home, found her passed out, and had her transported to the emergency room. Tr. 81. Following that incident, Harmon was approved for short term disability leave through June, but returned to work on May 9 because her FMLA leave was exhausted.
In August 2010, Harmon began treatment with Elizabeth Stephens, M.D., an endocrinologist specializing in the treatment of diabetes. Tr. 378. At that time, Harmon was continuing to experience episodes of hyperglycemia and "more concerning, hypoglycemia," despite the use of an insulin pump for glycemic control. Tr. 270. Dr. Stephens noted Harmon's "hypoglycemic unawareness," found her "at risk" for another "severe hypoglycemic event," and cautioned that any such event could be life threatening. Id.
Harmon was again off work beginning the last week of November 2010 due to fluctuating blood sugars. Tr. 392, 394. She apparently returned to work on January 12, 2011 (Tr. 339), but continued to have fluctuating blood sugars, which caused her to be off work again from February 3-9, 2011. Tr. 396-97. She was expected to return to work on February 9, 2011, with the caveat that she may need to be absent from work if incapacitated by hypoglycemia. Tr. 396-97. However, she again missed work February 20-21, 2011. Tr. 337.
On March 17, 2011, Dr. Stephens opined that Harmon may miss up to two days per month from work as result of issues related to her diabetes, although Dr. Stephens noted that "hopefully if things stabilize, it will be less frequently." Tr. 331. She also noted that Harmon would need "access to her meter at all times, the ability to check her blood sugars at all times, and the ability to eat/snack at her work station so she can deal with low blood sugars if they occur unexpectedly." Id.
In September 2011, Harmon again took short-term disability leave from work in order to stabilize her diabetes symptoms. Tr. 68, 78, 400. Dr. Stephens initially released Harmon to regular work on October 10, 2011, on the condition that she "need[ed] to be able to check her blood glucose regularly and respond with either insulin injections or food as needed." Tr. 401. However, a month later, Dr. Stephens restricted Harmon to working five hours per day. Tr. 402.
Harmon has utilized a variety of modalities to treat her diabetes, including an insulin pump. Tr. 70-71. Her current treatment method involves checking her blood glucose levels and administering insulin injections multiple times per day, which Harmon claims impairs her ability to effectively manage her symptoms. See Tr. 378, 380-82. Harmon is unable to "feel her lows" Tr. 51 and sometimes does not recognize the symptoms of her high blood sugar either. Tr. 62. When her blood sugar level is too high, Harmon gets a very dry mouth, becomes lethargic, and can become nauseous. Tr. 51-52.
In a February 22, 2013 letter summarizing Harmon's diabetes treatment, Dr. Stephens states:
[Harmon] has had type 1 diabetes for approximately 20 years and was initially treated with an insulin pump. She has a history of severe hyperglycemia and hypoglycemia and has been hospitalized for both in the past. One episode of hypoglycemia was quite significant with two days of loss of consciousness. Following this, she has never recovered her ability to recognize hypoglycemia which makes it quite dangerous for her. In response to this, she checks her blood sugars frequently to try to keep them in target range between 100-200 to avoid hypoglycemia. Despite her efforts to monitor
frequently, follow up with me and the use of technology for glucose control, her diabetes management has remained challenging. At the time of her last evaluation with me in December 2012, her A1c was significantly elevated at 9.4% and has remained in this range for some time, again due to the challenges of her unpredictable blood glucose levels and concerns surrounding recurrent hypoglycemia. Different strategies have been tried including going off the insulin pump and going back to injections, but we have not had great success in terms of improvement. I do think this variab[ility] in her diabetes makes work very challenging for her and clearly her diabetes management and monitoring are going to be a priority for her overall health for the rest of her life.Tr. 378.
The medical record also includes diagnoses of depression related to grief and polycystic ovarian disease. Tr. 316, 323-24, 326. Plaintiff alleges she was unable to maintain employment due to her combined impairments, and missed so much work by January 2012, she was fired from her job. Tr. 35-36, 214.
DISABILITY ANALYSIS
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(i) & (b).
At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the 12-month durational requirement. 20 C.F.R. § 404.1520(a)(4)(ii) & (c). Absent a severe impairment, the claimant is not disabled. Id.
At step three, the ALJ determines whether the severe impairment meets or equals an impairment "listed" in the regulations. 20 C.F.R. § 404.1520(a)(4)(iii) & (d); 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Listing of Impairments). If the impairment is determined to meet or equal a listed impairment, then the claimant is disabled.
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite the limitations imposed by his or her impairments. 20 C.F.R. § 404.1520(e); Social Security Ruling ("SSR") 96-8P, 1996 WL 374184 (July 2, 1996).
At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv) & (e). If the claimant cannot perform past relevant work, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Tackett, 180 F3d at 1099; 20 C.F.R. § 404.1520(a)(4)(v) & (g).
The initial burden of establishing disability rests upon the claimant. Tackett, 180 F3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this burden, then the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v) & (g).
ALJ'S FINDINGS
At step one, the ALJ concluded that Harmon has not engaged in substantial gainful activity since September 5, 2011, the alleged onset date of disability. Tr. 21.
At step two, the ALJ determined that Harmon has the severe impairments of diabetes mellitus with neuropathy in the feet, and an affective disorder. Id.
At step three, the ALJ concluded that Harmon does not have an impairment or combination of impairments that meets or equals any of the listed impairments. Id. The ALJ found that Harmon has the RFC to perform light work, except:
She can lift or carry 20 pounds occasionally and 10 pounds frequently. She can stand or walk in two-hour intervals for a total of eight hours a day. She has no restriction in terms of sitting. She cannot climb ladders, ropes, or scaffolds. She can occasionally climb ramps or stairs. She can frequently balance, stoop, crouch, kneel, and crawl. She can have occasional exposure to extreme cold, extreme heat, humidity, and vibrations. She cannot work at heights or around moving machinery. She can understand, remember, and carry out instructions or tasks generally required by occupations with an SVP of 1-4. Confrontation, conflict resolution, mentoring, or supervision cannot be part of her job duties.Tr. 23.
Based on the testimony of a vocational expert ("VE"), the ALJ determined at step four that Harmon's RFC precluded her from returning to her past relevant work. Tr. 26.
At step five, the ALJ found that considering Harmon's age, education, and RFC, she was capable of performing jobs as a marker, garment sorter, and mail clerk. Tr. 27. Accordingly, the ALJ determined that Harmon was not disabled at any time through the date of the decision.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1205 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004)); see also Lingenfelter, 504 F.3d at 1035.
FINDINGS
I. Step Two —Polycystic Ovarian Disease
Harmon assigns error to the ALJ's omission of polycystic ovarian disease at step two of the sequential evaluation process. The step two inquiry is "a de minimus screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Yuckert, 482 U.S. at 153-54). The issue is whether the impairment significantly impairs the claimant's ability to perform basic work activities for at least 12 months. See 20 C.F.R. §§ 404.1509; 404.1520(a)(4)(ii). Step two impairments "may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citation and internal quotation marks omitted) (emphasis in original); see also SSR 85-28, 1985 WL 56856, at *3 (Jan. 1, 1985). However, errors at step two may be harmless so long as the ALJ considers all of the claimant's functional limitations subsequent steps, including those arising from the omitted impairment. Lewis, 498 F.3d at 911; Molina v. Astrue, 674 F.3d 1104, 1116 (9th Cir. 2012) (ALJ's error is harmless where it is inconsequential to the ultimate non-disability determination) (citations omitted).
The Commissioner concedes the ALJ did not mention polycystic ovarian disease in his written decision, presumably because Harmon did not allege the condition in her application for benefits. However, the Commissioner contends that any error in omitting polycystic ovarian disease was harmless, because Harmon failed to identify how the impairment caused more than a minimal limitation on her ability to do basic work.
The record does not reveal any specific functional limitation arising from Harmon's polycystic ovarian disease. Harmon maintains that her relevant symptoms include irregular bleeding and hirsuitism. Tr. 383, 389. She also argues that, although her symptoms were controlled with appropriate medication, she was often unable to afford treatment.
Even assuming Harmon's polycystic ovarian disease is an "active problem," and that it is inadequately controlled by medication because of financial constraints, Harmon has failed to provide any evidence that her symptoms have more than a minimal effect on her ability to perform basic job duties. Harmon's assertion that the ALJ ignored the symptoms described is unavailing because the ALJ is tasked with considering functional limitations, not symptoms, in formulating an RFC. Webb, 433 F.3d at 687. Absent allegations of such limitations, the court finds the Commissioner's error in failing to identify polycystic ovarian disease as one of Harmon's impairments is harmless. Lewis, 498 F.3d at 911.
II. Harmon's Symptom Testimony
The ALJ must consider a claimant's symptom testimony, including statements regarding the claimant's pain and workplace limitations. 20 C.F.R. § 404.1529. The ALJ is responsible for determining the credibility of such statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Unless there is affirmative evidence showing the claimant is malingering, the Commissioner's reasons for rejecting the claimant's subjective testimony must be clear and convincing. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). The ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Id. (citing Reddick, 157 F.3d at 722). A negative credibility finding made solely because the claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The inclusion of some invalid credibility rationales is not necessarily fatal to the ALJ's overall evaluation of plaintiff's subjective symptom testimony. Batson, 359 F.3d at 1197.
A. Harmon's Testimony
Harmon testified that she has had diabetes for over 20 years. During a period of that time, she used an insulin pump for several years, but her doctor determined it was not helping her regulate her blood sugars, so discontinued it. Tr. 42. For another period of time, she took one shot of long-acting insulin (Lantus) per day. Tr. 44-45. However, by the time of the hearing, she was taking five to seven shots per day, including two of Levamir, and up to five of Novolog. Tr. 43-44, 48.
When her blood sugar level is elevated, Harmon experiences a variety of symptoms, including extremely dry mouth, nausea, heavy breathing, and lethargy. Tr. 51-52. She lost the ability to detect hypoglycemia after the March 2009 incident in which she lost consciousness for two days. Tr. 51, 378. She checks her blood sugars in the morning, again at meals, and at bedtime, adjusting her dose of Novolog accordingly. Tr. 51-54.
B. ALJ's Reasoning
Harmon asserts the ALJ's credibility evaluation did not meet the clear and convincing legal standard because the ALJ failed to specifically identify what testimony was not credible and what evidence undermined her credibility.
The ALJ noted that Harmon "reported she was unable to work due to diabetes and depression . . . [and] reiterated her allegations at the hearing . . . testifying that her diabetes remained uncontrolled." Tr. 23. This was apparently a reference to Harmon's hearing testimony that "I don't feel that I . . . would be able to go back to work on a full-time basis or even a part-time basis because my body - it's been so long since it's dealt with any kind of restriction or consistent schedule." Tr. 85. Following that observation, the ALJ summarized Harmon's testimony regarding her specific diabetes symptoms. Tr. 23. The ALJ then stated that Harmon's statements about the "intensity, persistence, and limiting effects of these symptoms are not entirely credible for the following reasons" (id.), after which the ALJ described a variety of medical records in four paragraphs (Tr. 24). First, the ALJ stated that the medical evidence did not support Harmon's allegations of disabling limitations. Id. The ALJ then noted that Harmon was able to live alone and successfully manage her insulin levels with a monitor, improved with treatment following a hospital stay in October 2011, controlled her depression with medication, had no activity restrictions, and was released to work in October 2011. Id.
The ALJ pointed to evidence that Harmon denied fatigue, vision problems, and numbness in her lower extremities. Id. The ALJ further noted Harmon reported no acute hypoglycemia episodes leading up to December 2013, and that she reported having avoided hospitalization over the past year in February 2014. Id. Overall, that ALJ found that Harmon had "received very little treatment since late-2011." Id.
Finally, the ALJ discussed Harmon's depressive symptoms, noting that they were most acute following the death of her father-figure in 2011. Id. The ALJ further noted that Harmon had increased depression and anxiety again in September 2013 related to financial stressors, but records after December 2013 do not record significant depressive symptoms. Id.
Even in the face of treating physician opinions to the contrary, the ALJ retains the authority to make the "ultimate determination of disability." Tommasetti, 533 F.3d at 1041 (citation omitted). Thus, to the degree the ALJ's opinion rejected Harmon's ultimate conclusions about her ability to work, the ALJ did not err.
However, while the ALJ adequately summarized many of the available medical records, that summary omits any clear and convincing reason to reject the symptoms Harmon testified that she experiences. Nothing in the record or in the ALJ's summary casts doubt on Harmon's symptom testimony and the ALJ, therefore, erred in rejecting it. Because, as discussed in more detail next, the record does not adequately elucidate the scope and duration of Harmon's ongoing intermittent limitations due to her diabetes, this matter ultimately requires further proceedings.
III. Medical Opinion Evidence
Harmon assigns several errors to the ALJ's assessment of the medical opinions of record. The ALJ is responsible for resolving conflicts in the medical record, including conflicting physicians' opinions. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and non-examining physicians. The opinions of treating physicians are generally accorded greater weight than the opinions of non-treating physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Lester, 81 F.3d at 830). A treating physician's opinion that is not contradicted by the opinion of another physician can be rejected only for "clear and convincing" reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If, however, a treating physician's opinion is contradicted by the opinion of another physician, the ALJ must provide "specific, legitimate reasons" for discrediting the treating physician's opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Specific, legitimate reasons for rejecting a physician's opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency with the medical records, inconsistency with a claimant's testimony, or inconsistency with a claimant's activities of daily living. Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014); Tommasetti, 533 F.3d at 1041.
A. Drs. Stephens and Wolfe —Diabetes-Related Impairment
Harmon argues the ALJ impermissibly assigned little weight to several discrete medical opinions regarding her ability to work, which were provided by her endocrinologist, Dr. Stephens, and primary care provider, Valerie Wolfe, M.D. The ALJ's written decision includes a list of the opinions, including the date and a summary of each, followed by two paragraphs explaining why the ALJ gave the opinions "little weight." Tr. 25-26. The ALJ found the doctors' opinions that plaintiff would be unlikely to maintain full-time employment inconsistent with Harmon's "independent functioning, her longitudinal treatment history, her relative lack of diabetic treatment since 2011, her lack of mental health care, and her performance on physical and mental status examinations." Tr. 25-26. The ALJ agreed that Harmon "is unable to return to the stressful demands of her past relevant work," but concluded that she "remains capable of performing semi-skilled work that does not involve confrontation, conflict resolution, mentoring, or supervision." Tr. 26.
Harmon contends that because the ALJ addressed both doctors' opinions together, he categorically failed to provide sufficiently specific analysis to reject those opinions. No statute, regulation, or case law requires an ALJ to assess doctors' opinions separately. Rather, to accord diminished weight to a physician's opinion, an ALJ must proffer valid rationales, supported by substantial evidence, which must either be specific-and-legitimate or clear-and-convincing, depending on whether the opinion is contradicted. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (quoting Reddick, 157 F.3d at 725). In so doing, the ALJ "must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Reddick, 157 F.3d at 725 (citation omitted).
Here, the ALJ did not simply gloss over the opinions of Drs. Stephens and Wolfe, but provided a short summary of the medical opinions he took issue with, and indicated why those opinions were not given full weight. Tr. 25-26. Because the ALJ largely rejected the listed opinions for the same reasons, it was not necessarily improper to address the doctors' opinions together.
Additionally, several chart notes of record were co-signed by Drs. Stephens and Wolfe. Tr. 304-06, 310-12, 314-16, 319-21, 322-24, 328-30, 332-34, 339-41, 354-55, 358.
Nevertheless, the ALJ's rationales must be reviewed as to each doctor. The ALJ indicated that the doctors' opinions were inconsistent with Harmon's independent functioning. Tr. 25. In support, the ALJ found Harmon had mild restriction in her activities of daily living, noting that she had not submitted a function report, but was able to live alone "with no indication of any significant problems tending to her daily activities." Tr. 22. The evidence cited by the ALJ in support of that statement is a letter dated August 26, 2010, over a year before Harmon's alleged onset date. Tr. 270. At the time of the hearing on February 21, 2014, Harmon testified that she had lived at her then-current address for three years (Tr. 37), but had lived on that property for seven years. Tr. 37. She also was not living alone. Tr. 60, 66-67. While it is accurate that the record does not contain a function report, that observation misses the mark. The question is whether the ongoing, intermittent restrictions imposed by Harmon's diagnosed and longstanding impairments preclude her from performing work that exists in significant numbers in the national economy.
The ALJ found next that the longitudinal record and absence of treatment after 2011 was inconsistent with the doctors' opinions. Earlier in the decision, the ALJ explained that although Harmon had a distant history of hospitalizations related to diabetes prior to her alleged onset date, she had no hospitalizations after an incident of hyperglycemia without diabetic ketoacidosis in October 2011, when she was advised to go to the emergency room. Tr. 24, 69, 276, 280-82. The ALJ further explained that following the October incident which required a short hospitalization, Dr. Stephens released her to regular work. Id. The ALJ continued to summarize the record, noting that neither Drs. Stephens nor Wolfe treated Harmon from late 2011 until late 2012. Id. The ALJ explained that Harmon had relatively few recorded incidences of neurological deficiency in her lower extremities, and despite not seeing her doctor for a year, reported no acute episodes of severe diabetes symptoms. Id.
Harmon argues that despite avoiding hospitalization, her blood sugar levels were nevertheless unpredictable, which caused symptoms such as pain, nausea, vomiting, and pain/numbness in her toes, which precluded regular work. However, there is little corroborating clinical evidence of record, as Harmon apparently sought no treatment after October 2011 until late 2012. Tr. 24. Harmon next sought treatment in September 2013, where she reported stress about her financial situation, and noted pain in her big toe, although the doctor felt it was unrelated to neuropathy. Tr. 24, 387. Dr. Stephens noted Harmon was monitoring her glucose levels daily, and advised her to return for a re-check in 2-3 months. Id. In December 2013, it was noted diabetes control was an "ongoing issue." Tr. 383, 404-05. Later, in a February 2014 opinion, Dr. Wolfe indicated Harmon's diabetes would cause her "intermittent" impairment that would interfere with her ability to sustain attention and concentration performing even simple work tasks, up to 20% of the workweek. Tr. 404. Dr. Wolfe explained: "she cannot control her diabetes - which is a frequent occurrence in brittle diabetes type 1." Tr. 405.
Dr. Wolfe's assessment is consistent with that of Dr. Stephens, who repeatedly expressed that Harmon's diabetes symptoms were uncontrolled and unpredictable. In a February 2013 opinion letter, Dr. Stephens explained that Harmon "never recovered her ability to recognize hypoglycemia which makes it quite dangerous for her." Tr. 378. She further expressed that despite attempts to control Harmon's diabetes via several modalities, "we have not had great success in terms of improvement." Id. Dr. Stephens also indicated "diabetes makes work very challenging for her and clearly her diabetes management and monitoring are going to be a priority for her overall health." Id. The opinion letter was generally consistent with Dr. Stephens' work releases in 2011 and 2013, which initially returned Harmon to regular work following her October 2011 hospitalization (Tr. 401), but eventually limited her to only five hours per day to allow her to better monitor her blood sugar levels (Tr. 402). Furthermore, although Harmon did not require hospitalization, both Drs. Stephens and Wolfe continued to endorse Harmon's inability to consistently control her diabetes as an ongoing—and functionally limiting—issue in 2013 and 2014. Tr. 383, 404-05.
Despite opinions from Drs. Stephens and Wolfe endorsing significant functional limitations due to her unpredictable diabetic condition, the ALJ essentially concluded that because Harmon did not require hospitalization, the opinions were erroneous. In so doing, the ALJ rejected the express opinions of two physicians who had treated Harmon over a period of many years, up until nearly the time of the hearing. Moreover, as a licensed endocrinologist, the regulations dictate that Dr. Stephens's opinions be accorded enhanced weight. 20 C.F.R. § 404.1527(c)(5). Treating physicians are generally given greater weight than the state agency reviewing physicians because they are more likely to intuit the longitudinal picture of a claimant's medical picture, and "bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone . . . ." 20 C.F.R. § 404.1527(c)(2). Indeed, treating physicians are to be given controlling weight when their opinions are supported by substantial evidence and acceptable clinical findings. Orn, 495 F.3d at 631 (citations omitted). Here, rather than relying on Harmon's treating physicians to elucidate a somewhat sporadic treatment record involving isolated but acute episodes of severe symptoms requiring hospitalization, undergirded by an undercurrent of a persistent and difficult-to-manage life-threatening condition, the ALJ disregarded their expert opinions.
Rather than drawing a contrast to the medical record, the doctors' medical opinions were consistent with each other and the numerous chart notes. Throughout the record, Harmon's diabetic condition is referred to as "brittle," "uncontrolled," and "unpredictable." Despite attempting a wide variety of treatments and medications, both doctors affirmatively indicated that by no fault of her own, Harmon's condition is exceedingly difficult to manage. Tr. 378, 404-05. Dr. Stephens indicated work would be "very challenging" because Harmon has difficulty recognizing her life-threatening hypoglycemia. Tr. 378. Similarly, Dr. Wolfe explained Harmon's condition is frequently uncontrolled, which is an "acute life-threatening situation." Tr. 405. Dr. Stephens indicated more than once that Harmon's condition requires frequent monitoring of blood sugars and administering treatment each day, which would impact her ability to complete a full workday. Tr. 378, 401, 402. The doctors' opinions are thus consistent with the longitudinal history, and fill in gaps in the medical record during the times when Harmon did not require emergency medical attention.
The Commissioner also argues the ALJ correctly found that Harmon's performance on physical examinations inconsistent with the findings of Drs. Stephens and Wolfe. However, the rationale fails, as the ALJ did not identify clinical findings in support of his finding with any degree of specificity. See Garrison, 759 F.3d at 1012 (ALJ errs to reject a medical opinion by using boilerplate language which fails to provide a substantive basis for doing so) (citation omitted).
Given the circumstances, the ALJ's decision to disregard Drs. Stephens and Wolfe is at odds with both the letter and intent of the Act. Accordingly, the ALJ's findings as to the opinions of Drs. Stephens and Wolfe as to Harmon's diabetes limitations should be rejected.
B. Dr. Hennings —Depression-Related Impairment
Harmon also contends the ALJ failed to properly evaluate the medical opinion of Dr. Bill Hennings as to her level of mental impairment. Specifically, Harmon argues the ALJ failed to adopt Dr. Hennings's opinion that she is moderately limited in maintaining attention and concentration for extended periods. Tr. 119, 123. Although state agency physicians typically do not examine SSA applicants, the ALJ is required to consider their opinions and explain the weight given to them. SSR 96-6p, 1996 WL 374180 at *1 (July 2, 1996).
The ALJ rejected Dr. Hennings's opinion that Harmon was limited to repetitive tasks, finding it was not supported by the evidence. Tr. 25-26. In support, the ALJ noted Harmon had received little mental health treatment and the medical record did not support significant social or cognitive impairment. Id. Indeed, while Harmon's treatment notes include evidence of depression, her physicians noted that her mental health symptoms were exacerbated by the death of a father-figure family friend, months prior to the alleged onset date. Tr. 326. The record contains numerous clinical visits that reflect normal mental health examinations. Tr. 24, 306, 311, 315, 320, 323, 329, 341, 350, 355. By December 2013, Dr. Stephens reported that Harmon was no longer depressed. Tr. 24, 382.
The ALJ is the final arbiter of conflicts and ambiguities in the medical record. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). This record contains ambiguous evidence regarding the extent and functional effects of Harmon's mental health condition. Even so, the rationale the ALJ's provided was specific and legitimate: the ALJ found there was no clinical evidence supporting such a restriction, there were many instances of clinical visits where Harmon did not endorse depression, and her depression symptoms appeared to be primarily circumstantial, including the death of a family member and financial stressors. Tr. 25; see Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (ALJ not required to accept medical opinion that is brief, conclusory, or inadequately supported by clinical findings) (citation omitted). While Harmon proposes another interpretation of the medical evidence, the ALJ's reasoning is rational and supported by substantial evidence. Accordingly, the ALJ's rejection of Dr. Hennings's opinion should be upheld.
IV. RFC Formulation
Harmon assigns error to the following portion of the ALJ's RFC formulation: "[Harmon] can understand, remember, and carry out instructions or tasks generally required by occupations with an SVP of 1-4." Tr. 23. Harmon argues that SVP (specific vocational preparation) is a quantification of the time it takes a typical worker to learn a job, rather than a quantification of a claimant's functional ability. Harmon contends that the RFC resulted in an inappropriate hypothetical question to the VE, because "by specifying that the hypothetical worker could perform unskilled and semiskilled work, the ALJ effectively instructed the vocational expert to testify that [Harmon] could perform those occupations, notwithstanding her mental impairments." Plaintiff's Reply Brief, p. 5.
An SVP of 1-2 denotes the preparation time required for unskilled work, while the preparation time required for semi-skilled work corresponds to an SVP of 3-4. SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000). --------
Harmon's argument is unpersuasive. Including an SVP range in an RFC is not per se legal error. See, e.g., Burkenbine v. Colvin, No. 3:14-cv-01539-AC, available at 2016 WL 543148, at *11 (D.Or. Feb. 8, 2016) (slip opinion). Clearly, the ALJ was using the term as shorthand for unskilled or semiskilled work. Even assuming for the sake of argument that the ALJ erred by positing that Harmon was able to perform semi-skilled work, the error was harmless because the ALJ ultimately identified three jobs with SVP 2 (unskilled) at step five. Tr. 27. Accordingly, Harmon cannot show that the alleged error was material to the Commissioner's final decision. Molina, 674 F.3d at 1115 (an error is harmless where it is inconsequential to the ultimate non-disability determination) (citations omitted).
V. Remedy
When a court determines the Commissioner's decision includes legal error and/or is unsupported by substantial evidence, the court may affirm, modify, or reverse the decision "with or without remanding the case for a rehearing." 42 U.S.C. § 405(g); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Here, the ALJ failed to provide legally adequate reasons to discredit the opinions of Drs. Stephens and Wolfe, both of whom personally treated Harmon over a period of years.
In determining whether to remand for further proceedings or immediate payment of benefits, the Ninth Circuit employs the "credit-as-true" standard when the following requisites are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and further proceedings would serve no useful purpose, and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the plaintiff disabled on remand. Garrison, 759 F.3d at 1020. Even if all of the requisites are met, however, remand for further proceedings is warranted, "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Id. at 1021. "Serious doubt" can arise when there are "inconsistencies between the claimant's testimony and the medical evidence," or if the Commissioner "has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts into serious doubt" whether the claimant is disabled under the Act. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (internal quotation marks omitted)).
The first requisite of the remand inquiry is met, as the ALJ erred in evaluating a portion of the medical opinion evidence. Thus, the next step is to determine if the record is fully developed and to consider the utility of further proceedings.
Harmon contends that the record is complete, arguing the opinions of Drs. Stephens and Wolfe stand uncontradicted by any treating or examining opinion evidence of record, which, if fully credited, directs a finding of "disabled." The Commissioner maintains that further proceedings are needed in order to determine how Harmon could manage to avoid treatment for a year between late 2011 and 2012 if she was disabled, and to consider when Harmon became disabled, noting she reported improvement in December 2013.
The Commissioner's first argument is unavailing; the Commissioner presents no reason why further proceedings would elucidate the gap in treatment. Moreover, despite having an opportunity to inquire about the gap in treatment during the hearing, the ALJ did not do so.
The Commissioner's assertion that Harmon reported improvement in December 2013 is also not well supported by the record. Harmon was treated in December 2013, where it was noted that her hypoglycemia "was an ongoing issue but no severe episodes recently thank goodness." Tr. 383. However, there was no specific indication that Harmon reported her diabetes symptoms had improved. Compare Tr. 382-84 with Tr. 386-87, 387-90. Indeed, both Dr. Stephens, in February 2013, and Dr. Wolfe, in February 2014, indicated Harmon's condition was no less unpredictable than it had been previously, and no less life-threatening. Tr. 378, 403-04.
The Commissioner does not respond to Harmon's assertion that the opinions of Drs. Stephens and Wolfe, who as treating physicians are generally assumed to have the most knowledge and understanding of a claimant's complete clinical picture, stand uncontradicted by treating or examining physicians. See 20 C.F.R. § 404.1527(c)(2); Garrison, 759 F.3d at 1012 ("Even when contradicted, a treating or examining physician's opinion is still owed deference and will often be entitled to the greatest weight . . . even if it does not meet the test for controlling weight.") (quoting Orn v. Astrue, 495 F.3d at 633) (internal quotation marks omitted). Nonetheless, the Court notes that the state agency physicians, having reviewed the record through mid-2012, indicated that Harmon has a history of "less than adequate medical compliance" with her diabetes, her "glucose is variable . . . due to overcorrection on the part of the claimant," and she was "not following recommended diet & noted to overcompensate w/ her insulin." Tr. 106, 119, 123. Although Drs. Stephens and Wolfe both report that Harmon has difficulty monitoring and maintaining her glucose levels effectively, neither doctor opined on whether the variability was due to Harmon's choices of diet or improperly medicating herself. "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for . . . benefits." Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006).
The Commissioner must consider the claimant's ability to perform work on a regular and continuing basis, which "means 8 hours a day, for 5 days a week, or an equivalent work schedule." SSR 96-8P, 1996 WL 374184 at *1. The "adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis (i.e. 8 hours a day, for 5 days a week, or an equivalent work schedule)." Id at *7. In cases involving transitory or intermittent, but substantially incapacitating, impairments, the "ultimate question . . . is whether [claimant's] sporadic incapacity prevents [the claimant] from performing any substantial gainful activity within the meaning of the Social Security Act." Totten v. Califano, 624 F.2d 10, 12 (4th Cir. 1980). Additionally, "the capability to work only a few hours per day does not constitute the ability to engage in substantial gainful activity[.]" Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (citing Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980)).
It is somewhat unclear how much, if at all, Harmon's physical symptoms—aside from her glucose levels—improved after her most recent hospitalization. On the one hand, the fact that Harmon has not had any acute emergency suggests she has since been able to control her condition somewhat better, and both her treating doctors seem to anticipate some periods of blood sugar stabilization. On the other hand, those same doctors elude to work being a "challenge" for Harmon, and one limits her to a five hour a day work schedule. The difficulty is that the doctors' opinions give no particularly clear picture of the functional restrictions imposed during periods of blood sugar instability, nor do they clearly quantify the expected duration and frequency of such limitations. This leaves the Commissioner and the court in the untenable position of having to speculate as to the exact nature and duration of Harmon's intermittent periods of "complete impairment" (Tr. 404) and other periods when, while perhaps not completely impaired, she has functional restrictions which render her disabled for purposes of obtaining benefits.
In short, issues of fact remain as to the extent and duration of the improvement of Harmon's diabetes condition, the extent to which Harmon is able to control the condition's symptoms through medication or treatment modalities, and the exact nature, duration and functional limitations imposed during periods when Harmon experiences blood sugar level fluctuations.
RECOMMENDATION
For the reasons discussed above, the Commissioner's decision should be REVERSED AND REMANDED for further proceedings on an open record.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due Monday, April 03, 2017. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED March 20, 2017.
/s/Youlee Yim You
Youlee Yim You
United States Magistrate Judge