Opinion
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT.
Bernard Zimmerman United States Magistrate Judge.
Plaintiff Anita Hernoko timely appeals from a final decision by the Commissioner of Social Security (the "Commissioner") under 42 U.S.C. § 405(g) denying review of the Administrative Law Judge's ("ALJ") decision. In her motion for summary judgment, she asks that the case be remanded with instructions to award disability benefits. Defendant has made a cross-motion for summary judgment. Because the Appeals Council denied review, the decision of the ALJ becomes the decision of the Commissioner for purposes of review. The ALJ found that since plaintiff was capable of performing light work with certain restrictions, she was not disabled and therefore not eligible for disability benefits. Tr. at 20.
The Commissioner's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001).
The alleged onset of plaintiff s disability was September 13, 2001, when she was dismissed after three years from her job as an administrative assistant. This job involved lifting packages, filing and sitting at her desk for several hours. Plaintiff s disability, back and neck pain, resulted from her fall when her office chair broke on March 30, 2000. Plaintiff returned to work but her pain worsened, and she had to miss work often because of her back pain and doctors' appointments. Plaintiff claims her employer discharged her because of this. On June 6, 2003, plaintiff applied for disability benefits. After denials initially and upon reconsideration, plaintiff filed a timely request for an administrative hearing, which occurred on January 5, 2005. The ALJ denied plaintiff's application on March 23, 2005, and the Appeals Council subsequently denied plaintiff's request for review.
Following the standard five step process for evaluating plaintiff's claim, see 20 C.F.R. § 404.1520, the ALJ found at step one that she had not engaged in substantial gainful activity since September 13, 2001. Tr. at 13. At step two, the ALJ accepted that a combination of plaintiff s impairments, including obesity, abdominal pain, osteoarthritis, myofascial pain syndrome and depression, interfered with her ability to perform basic work. Id. At step three, the ALJ found that none of her impairments, or a combination, met the severity for any of the Listed Impairments in Appendix 1 to Subpart P of Social Security Regulations No. 4. Id. At step four, the ALJ found that plaintiff could not perform her past work. Tr. at 18. Once a claimant establishes that she cannot perform past work, the burden shifts to the Commissioner to determine if there is a significant number of other jobs that she can perform. At step five, the ALJ found that plaintiff could perform two types of jobs: Small Products Assembler and Cashier II. Id.
Plaintiff contends that the ALJ committed legal error because he improperly rejected the opinion of plaintiff's treating physician and the subjective testimony of plaintiff and her husband; and the ALJ posed an incomplete hypothetical question to the vocational expert at the hearing. Because at least one of these contentions has merit, the ALJ's decision contains legal error, and the case must be remanded.
Because a treating doctor is familiar with the patient's history, her opinion deserves greater weight than the opinions of other physicians. Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). In order to reject an uncontroverted treating doctor's ultimate conclusions, the ALJ must provide "clear and convincing" reasons. Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995) (quoting Embrev v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)); Rodriguez, 876 F.2d at 762. Even if another doctor's opinion contradicts that of the treating physician, the ALJ must provide "^specific and legitimate reasons' supported by substantial evidence" to reject the opinion of the treating physician. Lester, 81 F.3d at 830 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)); Embrev, 849 F.2d at 421. To say only that the objective findings do not support the treating physician's conclusions is inadequate. Embrev, 849 F.2d at 421. Furthermore, the subjective elements of a treating physician's opinion are also important and should be given substantial weight. The ALJ may disregard them only with clear and convincing reasons. Id.
Plaintiff's treating doctor, Dr. Jonathan Francis, is a pain management specialist who has been seeing plaintiff since September 2001. On September 14, 2001, Dr. Francis recommended plaintiff refrain from working and instead seek additional treatment. Tr. at 297-98. On March 30, 2004, based on three years of treatment, Dr. Francis felt that plaintiff was still not able to return to work because of pain and, possibly, depression. Tr. at 230. The objective findings to support his conclusion were limited mobility and function of the lumbar and cervical spinal areas. Plaintiff's MRI showed reduced foramina and osteoarthritic changes in areas of her cervical spine, as well as exaggerated lumbar lordosis of the lumbar spine. Tr. at 229. Dr. Francis further found that plaintiff s claims of pain were credible and that she was unable to walk for more than one to two hours per day. He stated that she could sit for only an hour at a time with a fifteen minute break, for a total of three hours per day. Dr. Francis opined that plaintiff would not be able to appear at a job consistently, and she would be unable to work at all one to two times per week. Id. He corroborated plaintiff s complaints of increasing pain, explaining that "[i]n some patients, the fascial inflammation can take some time to resolve after the injury." Id.
The ALJ discredited Dr. Francis' opinion because he characterized it as "based primarily on claimant's subjective complaints" and because it was contradicted by a non-treating physician, Dr. William A. Jackson Ross, Sr. Dr. Ross is an orthopaedic surgeon who saw plaintiff once in 2001, in connection with plaintiff's worker's compensation claim. Tr. at 17. The ALJ found Dr. Ross' report to be the most credible. The reports of the other doctors fell between Dr. Ross' findings and Dr. Francis' recommendations, with Dr. Mark Chan, her previous treating physician, recommending vocational modifications and Dr. Stephen Dell, a neurosurgeon, remarking on "the persistence of [plaintiff's] symptoms so many months after injury." Tr. at 150. Similar to the other doctors, Dr. Robert Fox, a neurologist, concurred in the diagnosis of back strain and myofascial pain syndrome. Tr. at 213. He did not address plaintiff's ability to work.
State agency medical consultants did consider plaintiff s ability to work in August 2003 and December 2003, finding a residual functional capacity ("RFC") for medium work and recommending plaintiff return to her prior work with limits on bilateral reaching and heavy lifting. Tr. at 200, 223. The ALJ disagreed, deeming plaintiff s RFC was for light work but "the limit to only occasional reaching [was] not warranted by the medical evidence." Tr. at 17. During the administrative hearing, the ALJ asked the vocational expert if there were any jobs at the light or sedentary levels that fit a hypothetical of no reaching or lifting at or above the shoulder level repetitively. When the vocational expert responded that there were no such jobs, the ALJ suggested bench assembly. Tr. at 436. After further clarification, the vocational expert agreed that bench assembly would involve repetitive use of the hands at desk level but not anything at or above shoulder level.
The ALJ accorded Dr. Francis' opinion less weight because he concluded that the doctor "recognizes that the objective findings do not support [plaintiff's] reported level of pain, suggests psychological factors, but then opines rather extreme limitations." Id. Not only did this analysis fail to list with specificity and clarity the reasons for rejecting Dr. Francis' opinion, it mischaracterized it and improperly purported to rely on some portions of it while ignoring others.
Dr. Francis did not state that his objective findings did not support the level of pain reported, as the ALJ concluded. Tr. at 15. Dr. Francis actually stated that while the findings for plaintiff s "pain symptoms are not terribly severe," and "there may be some contribution from psychological factors, likely some depression, ... I do not feel that [plaintiff] is able to return to work." Tr. at 230. Dr. Francis also stated that he had "no reason at all to feel that [plaintiff was] exaggerating her symptoms." Id.
The ALJ likewise misinterpreted Dr. Francis' statement that he was "hopeful that [plaintiff's] symptoms would diminish within the next one to two years," Tr. at 230, to mean that plaintiff s "symptoms should diminish in the next one to two years," Tr. at 15, undermining plaintiff's claims of worsening pain. Tr. at 17. Throughout his analysis of the report of the treating physician, instead of according it the weight to which it was entitled, the ALJ improperly singled out certain statements, which he mischaracterized, while ignoring the bulk of Dr. Francis' conclusions, which supported plaintiff. See Berqfield v. Barnhart, 361 F.Supp.2d 1102, 1113 (D. Ariz. 2005)(ALJ improperly relied on doctor's conclusion that condition was stable while ignoring conclusion that condition was disabling); Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984).
The ALJ also erred in failing to articulate specific, legitimate reasons for disregarding the treating physician's opinion. Embrey, 849 F.2d at 421. He did not explain why he thought his interpretation of the evidence was correct, and did not give proper weight to Dr. Francis' interpretation of the subjective complaints of his patient. Id.
Additionally, the ALJ improperly dismissed subjective testimony by plaintiff and her husband. While the ALJ's credibility determinations are entitled to deference, once a claimant produces objective evidence of an impairment that could cause pain, the ALJ may not discredit the claimant's allegations of pain, even when there is insufficient evidence to fully corroborate the severity of the pain, without making specific findings. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Nguyen v. Chafer, 100 F.3d 1462, 1467 (9th Cir. 1996)(citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); see also Lester, 81 F.3d at 834 ("Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.")(internal quotation marks omitted).
Defendant argues that Dodrill and its progeny relied on an earlier version of 20 C.F.R. § 404.1513(d), which was superseded in 2000. Even so, Dodrill appears to remain good law. In 2001, the Ninth Circuit cited it for the proposition that an ALJ should take into account lay witness testimony unless the ALJ expressly determines to disregard such testimony. Lewis, 236 F.3d at 511. Lewis also cited Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984), which defendant cites for the proposition that the ALJ need not expressly give reasons for disregarding lay witness testimony. In Vincent, however, the lay witness testimony conflicted with the medical evidence; that is not the case here.
Plaintiff testified that because of her pain, she could not concentrate and had to adjust her position every hour, massaging her back and treating it with hot packs. She testified that she must spend two to three hours everyday lying down because of the pain. Tr. at 425-26. The ALJ's reasons for dismissing her testimony are not clear and convincing. The ALJ did not find plaintiff credible because her treating physician had only recommended conservative treatment and plaintiff consistently declined stronger pain medications. Tr. at 17. But plaintiff's treating physician explained that her "extreme[] reluctance to take medication" curtailed his willingness to prescribe more serious pain medication. Tr. at 229. At the administrative hearing, plaintiff attributed her reluctance to take strong medications to her fear that they could cause heart attacks or strokes and exacerbate her other health conditions for which she was already taking medications. Tr. at 428. She also stated that many medications upset her stomach, heartburn or ulcer. Id. In light of her belief that "medicine is not going to help" and make her gain weight, when her doctors had already diagnosed her as obese, plaintiff's desire to eschew strong medications is understandable. Tr. at 429. "Where a claimant provides evidence of a good reason for not taking medication for her symptoms, her symptom testimony cannot be rejected for not doing so." Smolen v. Chafer, 80 F.3d 1273, 1284 (9th Cir. 1996). Plaintiff also testified that alternative treatments, such as physical therapy and massage, seemed to work better than medications. Tr. at 427.
Second, the ALJ cited plaintiff s "extensive travel" as a reason to discount her pain testimony. Tr. at 16. He remarked that travel over long distances would likely be painful for someone in plaintiff's condition. Id. The "extensive travel" consisted primarily of a trip to Indonesia in 2001 to attend her father's funeral and a trip to Indonesia a year later to visit her mother; trips which do not suggest travel for pleasure. And airplane travel is different from work. During airplane travel, plaintiff would presumably not have to concentrate as she would during a job. She generally would be able to move, stand and change positions as needed. "The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits." Berqfield, 361 F.Supp.2d at 1112. See also Gallant v. Heckler, 753 F.2d 1450, 1453-54 (9th Cir. 1984)(reversing and remanding for benefits in a similar case, where the claimant suffered back pain but could take care of himself, cook, swim and walk).
The ALJ also should have articulated his reasons for discounting plaintiff s husband's testimony, identifying the medical evidence on which he was relying. "[T]estimony from lay witnesses who see the claimant every day is of particular value." Smolen, 80 F.3d at 1289. Plaintiff's husband observes his wife every day and can explain or discuss her daily behavior. He testified that his wife's condition has deteriorated. She suffers from "constant back pain, shoulder pain, to the point where she just has to lay in the bed." Tr. at 419. She cannot walk very far, and she cannot bend to pick up items on the floor. Tr. at 420-21. He has taken on most of the household chores because plaintiff's pain precludes her from doing laundry, taking out the garbage or lugging groceries. He must give her frequent massages to ease her pain. Because her insurance and workers' compensation have stopped covering her, plaintiff and her husband pay for her weekly or biweekly massage treatments out of their own pockets. Tr. at 420. In summarizing but not addressing this testimony, the ALJ committed legal error.
Finally, the ALJ erred in his hypotheticals to the vocational expert during the administrative hearing. The ALJ's hypothetical assumed no repetitive use at or above the shoulder level for the upper extremities. Tr. at 435-36. After some prodding from the ALJ, the expert testified that there were two types of jobs that plaintiff could perform: Small Products Assembler and Cashier II. Tr. at 438-39. However, the ALJ's hypothetical did not include the "moderate limitation in her ability to maintain concentration, persistence, and pace," which the ALJ found to be present. Tr. at 17. Furthermore, the ALJ assumed that plaintiff had no limitations on the number of hours she could stand per day. Although Dr. Francis, plaintiff's treating physician, did not discuss this specific limitation, it is unreasonable to assume that plaintiff could stand for five hours to complete a full eight-hour workday, when she would not be able to sit for more than three hours every day and walk for more than one to two hours per day. Tr. at 230. When plaintiff's attorney asked the vocational expert the number of jobs available for a person who could sit for only three hours per day, the vocational expert replied that there were no such jobs because that precluded working a full eight-hour day. Tr. at 442. The ALJ asked the vocational expert to assume that plaintiff could stand for five hours, and the vocational examiner then agreed plaintiff could perform the assembler and cashier jobs. The ALJ further clarified there was no need for plaintiff s attorney to ask about "[a]ny combination of factors that reduces the sit/stand/walk below eight hours a day" because "by definition they can't work," which was the point of the attorney's hypothetical. Tr. at 443. Because plaintiff cannot sit and/or stand for eight hours, there are no jobs available for her. Without these additional limitations, the hypotheticals provide no valuable evidence. Gallant, 753 F.2d at 1456 (hypotheticals are useful only if they are supported by medical evidence and include all of the claimant's impairments).
Additionally, the ALJ failed to address the vocational expert's answer to questions posed by claimant's attorney, that there were no jobs available for a person who would likely miss at least four days of work a month, as Dr. Francis thought likely, because employers typically tolerate only one unscheduled absence per month. Tr. at 440-1. The ALJ also did not address his stipulation, in response to a question, that most, perhaps all, employers do not permit lying down on the job. Tr. at 443. Had the ALJ considered these answers, the ALJ would have had to decide at step five that there were no jobs plaintiff could perform, and she was thus disabled and entitled to benefits.
In cases where the record is fully developed and further administrative proceedings would serve no purpose and merely delay the award of benefits, the court has the discretion to remand for an award of benefits. Lewis, 236 F.3d at 518; Rodriguez, 876 F.2d at 763; Gallant, 753 F.2d at 1453-54 (reversing and remanding for benefits because a person who cannot walk, sit or stand for over an hour without pain does not have the capacity to do most jobs in the economy). Because the ALJ improperly discredited Dr. Francis' opinion that plaintiff should not work, the subjective testimony of plaintiff and her husband and the hypotheticals establishing the absence of jobs for plaintiff, he committed legal error. There are no outstanding issues to be resolved before a determination of disability can be made, and it is clear from the record that the Commissioner would be required to find plaintiff disabled were the legal errors remedied and the evidence credited. Smolen, 80 F.3d at 1292. Accordingly, IT IS HEREBY ORDERED that plaintiff's motion for summary judgment is GRANTED and defendant's cross-motion for summary judgment is DENIED. The case is remanded to the Commissioner, with instructions to calculate and pay plaintiff disability benefits. Defendant shall submit an appropriate form of judgment forthwith.