Opinion
3:20-cv-02279-HZ
05-22-2022
KELLY B., [1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
George J. Wall, Caitlin S. Laumaker Attorneys for Plaintiff. Renata Gowie, Heidi Triesch Social Security Administration Attorneys for Defendant.
George J. Wall, Caitlin S. Laumaker Attorneys for Plaintiff.
Renata Gowie, Heidi Triesch Social Security Administration Attorneys for Defendant.
OPINION & ORDER
MARCO A. HERNANDEZ United States District Judge
Plaintiff Kelly B. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”). This Court has jurisdiction pursuant to 42 U.S.C. 405(g) (incorporated by 42 U.S.C. 1383(c)(3)). The Court reverses the Commissioner's decision and remands this case for further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on September 28, 2018, alleging a disability onset date of April 7, 2018. Tr. 263, 270. Plaintiff later amended her alleged onset date to January 4, 2019. Tr. 289. Plaintiff's date last insured (“DLI”) is December 31, 2020. Tr. 16. Her application was denied initially and on reconsideration. Tr. 190-191, 205-210.
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 9-1.
On March 26, 2020, Plaintiff appeared with counsel for a hearing by telephone before an Administrative Law Judge (“ALJ”). Tr. 36-78. On October 1, 2020, the ALJ found Plaintiff not disabled. Tr. 24. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff alleges disability based on psoriatic arthritis, fibromyalgia, post-traumatic stress disorder (“PTSD”), degenerative disc disease, osteopenia, psychophysiological insomnia, bipolar disorder, anxiety, vitamin D and iron deficiency, back pain with left-side sciatica, and depression. Tr. 292. At the time of her alleged onset date, she was 51 years old. Tr. 22. She has at least a high school education and past relevant work experience as a warehouse supervisor, fast food worker, and cashier-checker. Tr. 22.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. SeeValentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, the agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (“RFC”) to perform their “past relevant work.” 20 C.F.R. 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after her alleged onset date. Tr. 16. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “lumbar degenerative disc disease, fibromyalgia, psoriatic arthritis, depressive disorder, and anxiety disorder.” Tr. 19. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 19. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform “light work” as defined in 20 C.F.R. 404.1567(b) and 416.967(b) with the following limitations:
she can stand and walk 10 minutes at one time up to 2 hours total in an 8-hour workday; can sit 1 hour at one time up [to] 8 hours total in an 8-hour workday; should not climb ladders, ropes, and scaffolds; can occasionally stoop, kneel, crouch, and crawl; has sufficient concentration, persistence, and pace to complete simple, routine tasks for a normal workday and workweek; should have only occasional contact with the general public and with co-workers.Tr. 18. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past relevant work. Tr. 22. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “Mail clerk (DOT # 222.687-014, light, SVP of 2; approximately 40, 000 jobs in the national economy); Garment sorter (DOT# 209.687-026, light, SVP of 2; approximately 25, 000 jobs in the national economy); and Weight recorder (DOT# 222.387-074, light, SVP of 2; approximately 50, 000 jobs in the national economy).” Tr. 23. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 24.
The job of “Mail Clerk” is listed in the U.S. Department of Labor's Dictionary of Occupational Titles (“DOT”) at 209.687-026, 1991 WL 671813. “Garment Sorter” is DOT 222.687-014, 1991 WL 672131.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's”) (internal quotation marks omitted).
DISCUSSION
Plaintiff contends that the ALJ erred by (1) improperly rejecting the medical opinion of her treating rheumatology provider, Carrie Schreibman, FNP, and (2) failing to include her reaching and manipulative limitations in the RFC. Pl. Brief 5, ECF 13.
I. Medical Opinion Evidence
New regulations about weighing medical opinion evidence apply to claims filed on or after March 27, 2017. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to give deference to any medical opinion, including treating source opinions. Id. Instead, the agency considers several factors. 20 C.F.R. 404.1520c(a), 416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability and consistency. 20 C.F.R. 404.1520c(b)(2), 416.920c(b)(2).
Under this framework, the ALJ is required to explain how supportability and consistency were considered and may explain how the other factors were considered. 20 C.F.R 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same, ” the ALJ is required to explain to how the other factors were considered. 20 C.F.R. 404.1520c(b)(3), 416.920c(b)(3).
Under the new regulations, as a licensed advanced practice registered nurse, Ms. Schreibman is an acceptable medical source. See 20 C.F.R. 404.1502(a)(7), 416.902(a)(7). But as a treating medical source, her opinion is no longer accorded more weight than other medical sources; rather, her treatment relationship to Plaintiff is considered a factor for the ALJ to consider. 20 C.F.R. 404.1520c, 416.920c.
Ms. Schreibman has treated Plaintiff for fibromyalgia and psoriatic arthritis since May 2018. Tr. 1431. She completed a “medical source statement” on July 15, 2020, in which she provided her opinion as to Plaintiff's functional limitations. Tr. 1431-1434. On a form that primarily required her to check boxes or circle answers, Ms. Schreibman stated that due to pain from fibromyalgia and psoriatic arthritis, Plaintiff could sit for no more than one hour and stand for no more than ten minutes at a time. Tr. 1432. Ms. Schreibman checked boxes indicating that Plaintiff could stand “less than 2 hours” and sit “about 4 hours” in an 8-hour workday. Tr. 1432. She wrote that with prolonged sitting, Plaintiff should elevate her legs to 90 degrees for 50% of an 8-hour workday. Tr. 1433. She also reported that Plaintiff would be limited to handling objects with her hands 10%, finger manipulations 20%, reaching forward 15%, and reaching overhead 5% of the time, and that Plaintiff would be “off task” due to limited attention and concentration “25% or more” of each workday. Tr. 1434. The ALJ incorporated the standing/sitting limitations into the RFC but did not include the handling, manipulation, reaching, or attention/concentration limitations specified by Ms. Schreibman. The ALJ found Ms. Schreibman's opinion to be “unpersuasive and poorly supported.” Tr. 21.
The ALJ provided three reasons for rejecting Ms. Schreibman's opinion. First, the ALJ found that Ms. Schreibman did not adequately explain how objective findings in the record support her opinion about the extent of Plaintiff's limitations. The ALJ need not accept the opinion of a provider, even a treating provider, if the “opinion is brief, conclusory, and inadequately supported by clinical findings.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). But Ms. Schreibman provided her opinion on a primarily check-box form, which gave her no space to explain her reasoning. The top of the form provided these instructions: “Please answer the following questions concerning your patient's impairments. Attach all relevant treatment notes, radiologist reports, laboratory and test results as appropriate.” Tr. 1431 (italics in original). Question 6 provided a single line to answer the following: “Identify the clinical findings, laboratory and test results that show your patient's medical Impairments.” In her answer, Ms. Schreibman simply wrote: “see medical records.”
Although the form did not provide an avenue to explain her opinion about Plaintiff's limitations, Ms. Schreibman supports her opinion by referring to Plaintiff's medical records. All of the records from her treatment of Plaintiff over the prior two years were available to the ALJ. Thus, a purported lack of the explanation on the part of Ms. Schreibman was not a valid reason for the ALJ to reject her opinion. SeeShawn G. v. Berryhill, No. 3:18-cv-312-SI, 2019 WL 1922520, at *4 (quoting Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014) (“If a check-box questionnaire . . . is based on significant experience . . . and supported by numerous records . . . it is entitled to weight that an otherwise unsupported and unexplained check-box form would not merit.”); Popa v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) (holding that a medical opinion provided in a check-box format is not a valid reason, in and of itself, to reject that opinion).
Second, the ALJ determined that Ms. Schreibman's medical opinion “appears to rely heavily on the subjective report of symptoms and limitations provided by [Plaintiff], which is not entirely reliable[.]” Tr. 21. “An ALJ may reject a treating physician's opinion if it is based to a large extent on a claimant's self-reports that have properly been discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ rejected Plaintiff's subjective testimony as to the limiting effects of her symptoms because it was not entirely consistent with the evidence in the record. Plaintiff does not contest this finding.
Plaintiff does object to the ALJ's reliance on the consultative opinion of Dr. Marc Stuckey, Psy. D. Based in part on Dr. Stuckey's opinion that Plaintiff had exaggerated her mental health symptoms, the ALJ found that Plaintiff's subjective report of her limitations may not be “entirely reliable.” Tr. 21, 815.
But the ALJ erred by failing to explain why he believed Ms. Schreibman's opinion is predominantly based on Plaintiff's subjective symptoms. The record shows that Ms. Schreibman evaluated and treated Plaintiff in her rheumatology practice on multiple occasions. Each visit, she performed a physical examination and made objective findings that are included in the record. For example, Ms. Schreibman's notes from a clinic visit on August 5, 2019, show physical exam findings of joint tenderness and synovitis in Plaintiff's third fingers of both hands. Tr. 1023. Ms. Schreibman's notes also show that Plaintiff had some psoriatic plaques and tender elbows. Tr. 1023. On that visit, Ms. Schreibman changed Plaintiff's medication for psoriatic arthritis because she determined that the prior treatment had not been working well. Tr. 1025. During a clinic visit on March 5, 2020, Ms. Schreibman found that Plaintiff had psoriasis on her elbows, mild nail pitting, “[l]ateral bony deformity left wrist, ” and tenderness with synovitis of her right third and fourth fingers as well as her left second, third, and fourth fingers. Thus, Ms. Schreibman's opinion was based on the objective findings she made in the course of treating Plaintiff. The ALJ erred by concluding that her opinion predominantly relied on Plaintiff's subjective symptoms.
Third, the ALJ found that Ms. Schreibman's opinion was inconsistent with the medical evidence as a whole. The ALJ summarized the record as showing “some physical symptoms but otherwise normal mobility, motility, and other neurologic signs.” Tr. 21. Despite the ALJ's citations to the record, the Court finds that their explanation lacks sufficient specificity to support their conclusion. “The ALJ must do more than offer [their] conclusions . . . [they] must set forth [their] own interpretations and explain why they, rather than the [medical providers] are correct.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). An ALJ “must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison, F.3d at 1009 (quoting Lingenfelter, 504 F.3d at 1035).
Although the ALJ claimed that Ms. Schreibman's opinion is “inconsistent with the evidence as whole, ” the ALJ did not explain what evidence contradicts her opinion. Tr. 21. In addition, the ALJ's citations to the record in support of this conclusion are not representative of the record as a whole. For example, the ALJ cited to an annual gynecological exam on April 15, 2019, in which the examining obstetrician did not report that Plaintiff had swelling or tenderness of any extremities. Tr. 748-752. The ALJ also cited to three chiropractic evaluations but did not explain the significance of those evaluations. Tr. 965, 968, 1410. Nowhere did the ALJ explain how these record citations undermine Ms. Schreibman's opinion that Plaintiff has limited ability to handle objects with her hands and fingers and to reach forward or overhead. Accordingly, the ALJ's decision to reject Ms. Schreibman's opinion was not supported by substantial evidence.
II. Failure to Include All of Plaintiff's Limitations in the RFC
In claiming that the ALJ erroneously failed to include Plaintiff's reaching and manipulative limitations in the RFC, Plaintiff essentially re-argues that the ALJ committed a harmful error in rejecting the opinion of her treating rheumatology provider. See Pl. Brief 11 (“Ms. Schreibman opined, and Dr. Taher concurred, that [Plaintiff] has a significant reaching and manipulative limitations. This was harmful error, as such limitations would have ruled the garment sorter job, which requires frequent reaching and handling.”). Plaintiff also objects to the ALJ's inclusion of the other two jobs, weight recorder and mail clerk, as they are precluded by Plaintiff's limitation to simple, routine tasks.
Plaintiff is correct that, according to the U.S. Department of Labor's Dictionary of Occupational Titles, the job of “garment sorter” requires reaching and handling “frequently” and fingering “occasionally.” DOT 222.687-014, 1991 WL 672131. In addition, one of the other jobs identified by the vocational expert, “mail clerk, ” requires reaching, handling, and fingering frequently. DOT 209.687-026, 1991 WL 671813. The third job, “weight recorder, ” requires handling frequently as well as reaching and fingering occasionally. DOT 222.387-074, 1991 WL 672108. The medical opinion of Plaintiff's treating rheumatology provider limited Plaintiff to reaching 5 to 15% of the time, handling objects with her hands 10% of the time, and finger manipulations 20% of the time. If the ALJ credited the treating provider's opinion, these limitations would be included in the RFC, which would preclude the jobs identified by the vocational expert. Therefore, the ALJ's error in rejecting the treating provider's opinion was not harmless.
Plaintiff also argues that both the mail clerk and weight recorder jobs require a reasoning level of 3, which is incompatible with the RFC that limits Plaintiff to simple, routine tasks. See DOT 209.687-026, 1991 WL 671813; DOT 222.387-074, 1991 WL 672108. Appendix C of the Dictionary of Occupational Titles includes a 6-level scale for “Reasoning Development.” DOT, Appendix C, 1991 WL 688702. Level 3 consists of the ability to “[a]pply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form [and] [d]eal with problems involving several concrete variables in or from standardized situations.”
Garment sorter requires a reasoning level of 2. DOT 222.687-014, 1991 WL 672131.
The Ninth Circuit has determined that a claimant's “limitation to simple, routine tasks is at odds with Level 3's requirements[.]” Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015); see Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (noting that a claimant's limitation to simple, routine tasks appears more consistent with reasoning level 2 than with reasoning level 3). Thus, the ALJ also erred by finding that Plaintiff could perform the mail clerk and weight recorder jobs despite her limited reasoning ability. Accordingly, the Court remands this case for the ALJ to properly consider whether sufficient numbers of jobs exist in the national economy that Plaintiff could perform given her limitations.
CONCLUSION
Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED for administrative proceedings.
IT IS SO ORDERED.