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finding substantial evidence supported the ALJ's finding that claimant received conservative treatment where plaintiff was treated with anti-inflammatory medication, injections, and narcotic pain medication
Summary of this case from Hernandez v. ColvinOpinion
Case No. ED CV 14-846-SP
07-13-2015
LITA MARTINEZ, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
On May 2, 2014, plaintiff Lita Martinez filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking a review of a denial of a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents four disputed issues for decision: (1) whether the Administrative Law Judge ("ALJ") properly rejected the opinion of examining physician Dr. Adam Cash; (2) whether the ALJ properly considered plaintiff's credibility; (3) whether the ALJ properly considered the opinion of a lay witness; and (4) whether the ALJ erred at step five. Memorandum in Support of Plaintiff's Complaint ("P. Mem.") at 3-13; Memorandum in Support of Defendant's Answer ("D. Mem.") at 2-12.
Having carefully studied the parties's moving papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, although the ALJ properly discounted plaintiff's and the lay witness's credibility, the ALJ improperly rejected the opinion of plaintiff's examining physician without providing specific and legitimate reasons supported by substantial evidence for doing so, and also erred at step five. The court therefore remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was forty-six years old on the alleged disability onset date, has a ninth grade education. AR at 154, 173. She has past relevant work as a bus driver and retail cashier. Id. at 33.
On February 14 and 15, 2011, plaintiff filed applications for a period of disability, DIB and SSI due to a shattered ankle, back injury, seizures, short term memory, and depression. Id. at 40-41, 172. Both applications were denied initially and upon reconsideration, after which she filed a request for a hearing. Id. at 47-52, 57-61, 65.
On November 2, 2012, the ALJ held a hearing. Id. at 26-39. Although plaintiff was represented by counsel at the hearing, she did not attend or testify. The ALJ heard testimony from Dr. Lowell Sparks, a medical expert, and Luis Mas, a vocational expert ("VE"). See id. On December 21, 2012, the ALJ denied plaintiff's claim for benefits. Id. at 11-20.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since August 9, 2010, the alleged onset date. Id. at 13.
At step two, the ALJ found that plaintiff suffered from the following severe impairments: status post open reduction and internal fixation on the left ankle fracture; low back pain; a seizure disorder; depression; a mood disorder; and anxiety. Id. at 14.
At step three, the ALJ found that plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the "Listings"). Id.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"), and determined that plaintiff had the RFC to perform sedentary work with the limitations that plaintiff can: lift, carry, push, or pull ten pounds occasionally and less than ten pounds frequently; stand or walk for about two hours in an eight-hour workday; sit for about six hours in an eight-hour workday; and climb, stoop, kneel, crouch, and crawl on an occasional basis. Id. at 15. Plaintiff was precluded from work requiring balancing or the use of ladders, ropes, and scaffolds; and must avoid all exposure to extreme cold and hazards such as work around dangerous unguarded machinery or at unprotected heights. Id. The ALJ also limited plaintiff to simple, repetitive tasks that do not require interaction with the general public. Id.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
The ALJ found, at step four, that plaintiff was incapable of performing her past relevant work as a bus driver and retail cashier. Id. at 18.
At step five, the ALJ found that there were jobs that existed in significant numbers in the national economy that plaintiff could perform, including lens gauger, table worker, and addresser. Id. at 19. Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act ("SSA"). Id. at 20.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 1-3. The ALJ's decision stands as the final decision of the Commissioner.
III.
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
DISCUSSION
A. The ALJ Failed to Provide Specific and Legitimate Reasons for Rejecting the Opinion of an Examining Physician
Plaintiff argues that the ALJ failed to properly consider the opinion of Dr. Adam Cash, the consultative psychologist. P. Mem. at 3-5. Specifically, plaintiff argues the ALJ implicitly rejected Dr. Cash's opinion by failing to adopt his opined limitations. Id.
Psychologists are considered acceptable medical sources whose opinions are accorded the same weight as physicians. 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Accordingly, for ease of reference, the court will refer to Dr. Cash as a physician.
In determining whether a claimant has a medically determinable impairment, among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§ 404.1527(b), 416.927(b). In evaluating medical opinions, the regulations distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1527(c), (e) 416.927(c),(3); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). The opinion of the treating physician is generally given the greatest weight because the treating physician is employed to cure and has a greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).
Nevertheless, the ALJ is not bound by the opinion of the treating physician. Smolen, 80 F.3d at 1285. If a treating physician's opinion is uncontradicted, the ALJ must provide clear and convincing reasons for giving it less weight. Lester, 81 F.3d at 830. If the treating physician's opinion is contradicted by other opinions, the ALJ must provide specific and legitimate reasons supported by substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide specific and legitimate reasons supported by substantial evidence in rejecting the contradicted opinions of examining physicians. Id. at 830-31. The opinion of a non-examining physician, standing alone, cannot constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. Comm'r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 813, 818 n.7 (9th Cir. 1993).
1. Dr. Cash
Dr. Cash examined plaintiff on May 25, 2011. AR at 955-59. Dr. Cash administered many tests including a complete psychological evaluation and mental status examination. Id. at 956. During the examination, Dr. Cash observed that, inter alia, plaintiff was tense, cried on and off, was oriented, had pressured speech, and had a labile affect. Id. at 956-57. Dr. Cash noted that: plaintiff's performance on the Trails A - Trails B test was indicative of attention and concentration problems; anxiety and mood difficulties interfered with plaintiff's performance on the WAIS-III test, in which her scores were extremely low and likely an underestimate of her cognitive capacity; and she had impaired memory. Id. at 957-58. Accordingly, Dr. Cash opined that plaintiff was experiencing symptoms of generalized anxiety, panic, and a depressed mood, as well as pain and adjustment difficulties. Id. at 959. Dr. Cash further opined that plaintiff: had the ability to understand simple instructions but that she would have moderate difficulty remembering and carrying them out; would experience moderate to marked difficulties with concentration, persistence, and pace; had a moderately impaired ability to socialize in the workplace; had a moderate ability to tolerate stress; and was a mild risk for emotional breakdown in the workplace. Id. at 959.
2. State Agency Physicians
Two State Agency psychiatrists, Dr. N. Haroun and Dr. D. Funkenstein, examined plaintiff's medical records and Dr. Cash's opinion. Id. at 967-68, 983-85. Both physicians noted that although plaintiff was not treated by a psychologist, her medical examination reflected problems with anxiety. See id. at 967, 983. Dr. Haroun opined that there was no evidence that plaintiff had any severe mental impairment for a continuous 12-month period and that plaintiff could perform simple, unskilled tasks in a non-public setting. Id. at 968. Dr. Funkenstein adopted Dr. Haroun's opinion. Id. at 984.
3. The ALJ's Findings
With respect to her mental limitations, the ALJ concluded that plaintiff had the RFC to perform simple, repetitive tasks not requiring interaction with the general public. Id. at 15. In reaching that determination, the ALJ discussed the findings of Dr. Cash, Dr. Haroun, and Dr. Funkenstein, but did not state the weight he gave to each of the opinions. See id. at 16-17. Based on his RFC determination, however, it is clear that the ALJ gave great weight to the opinions of the State Agency physicians and far less weight to Dr. Cash's opinion. Plaintiff's RFC as determined by the ALJ simply does not account for the many mental limitations opined by Dr. Cash.
Although the ALJ may reject Dr. Cash's opinion and give greater weight to the opinions of the State Agency physicians, the ALJ must provide specific and legitimate reasons supported by substantial evidence for doing so. Lester, 81 F.3d at 830-31. Here, the ALJ failed to cite any reasons. Even assuming that the ALJ discounted Dr. Cash's opinion because it was inconsistent with the State Agency physicians' opinions, their opinions, by themselves, cannot constitute substantial evidence. Widmark, 454 F.3d at 1067 n.2; Morgan, 169 F.3d at 602. Accordingly, the ALJ erred by failing to cite specific and legitimate reasons supported by substantial evidence for rejecting Dr. Cash's opinion. B. The ALJ Properly Considered Plaintiff's and the Lay Witness's Credibility
Plaintiff argues that the ALJ failed to a make proper credibility determinations. P. Mem. at 6-11. Specifically, plaintiff contends that the ALJ failed to provided clear and convincing reasons for discounting her credibility and germane reasons for discounting her daughter's credibility. Id.
1. Plaintiff
Plaintiff did not testify at the hearing before the ALJ; however, the record contains her statements to SSA and to medical providers. The ALJ found plaintiff was "only a partially credible witness." AR at 16.
The ALJ must make specific credibility findings, supported by the record. Social Security Ruling ("SSR") 96-7p. To determine whether testimony concerning symptoms is credible, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider several factors in weighing a claimant's credibility, including: (1) ordinary techniques of credibility evaluation such as a claimant's reputation for lying; (2) the failure to seek treatment or follow a prescribed course of treatment; and (3) a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47.
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan, 246 F.3d at 1203 n.1 (internal citations omitted).
At the first step, the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 16. At the second step, because the ALJ did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for discounting plaintiff's credibility. Here, the ALJ discounted plaintiff's credibility because: (1) plaintiff engaged in basic work related activity after her alleged onset date; (2) plaintiff engaged in vigorous exercise at home; (3) plaintiff's seizures were well-controlled with the use of medication; (4) her musculoskeletal complaints were "minimally remediable" with the use of conservative medical management; (5) plaintiff failed to follow up with a primary care physician; and (6) she received conservative treatment. Id.
The ALJ's first ground for an adverse credibility finding was that plaintiff worked after her alleged onset date. Id. A plaintiff is not disabled if she can engage in substantial gainful activity. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). Here, the record reflects that plaintiff earned $3,063.64 in 2011, providing some sort of in-home support service. AR at 163, 167. Other than presumptively being insufficient to constitute substantial gainful activity, it is unclear in what capacity plaintiff worked, for how long, and the duties of her job. Without more information, plaintiff's limited work activity in 2011 is insufficient to discount her symptoms. Indeed, plaintiff may have attempted to work but stopped due to pain or other symptoms. See Lingenfelter, 504 F.3d at 1037-38 (the fact that a claimant tried to work and failed because of his impairments is not a clear and convincing reason to discount his credibility); Micci v. Colvin, 2015 WL 1239502, at *9 (C.D. Cal. Mar. 17, 2015) (plaintiff's ability to work three hours a day three to five days a week in home health care is insufficient to discount his complaints because it was not inconsistent with his complaints).
The second ground cited by the ALJ for finding plaintiff less credible was her "vigorous exercise" several times a week, including cardiovascular exercise. AR at 16. While limited exercise, particularly if part of a treatment plan, would not detract from a claimant's credibility, an exercise routine inconsistent with a claimant's purported limitations would. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (the mere fact that a claimant can engage in limited walking for exercise does not detract from her credibility as to her overall disability). Plaintiff reported to Dr. James R. Wilson, an emergency room physician, that she exercised two to three times a week for an hour at a time, half of it which consisted of cardiovascular work on a treadmill. AR at 1013. Although the ALJ characterized plaintiff's exercise as "vigorous," the actual intensity of plaintiff's exercise is unclear. Nevertheless, plaintiff's statement about engaging in exercise, including thirty minutes of cardiovascular, contradicts her statement that she can only walk ten minutes before needing to rest for fifteen minutes. Compare id. at 216, 1013. Moreover, contrary to plaintiff's assertion, there is no evidence that a physician advised her to engage in this exercise program. Accordingly, plaintiff's exercise routine is a clear and convincing reason for finding plaintiff less credible.
The ALJ's third, fourth and sixth grounds for discounting plaintiff's credibility were that medicine controlled her seizures and conservative treatment alleviated her musculoskeletal symptoms. Id. at 16; see Warre v. Comm'r, 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for purposes of determining eligibility for SSI benefits."); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of conservative treatment is sufficient to discount a claimant's testimony regarding severity of an impairment.") (internal quotation marks and citation omitted). Plaintiff does not appear to dispute that medication effectively controls her seizures. As for the conservative medical management of her musculoskeletal symptoms, plaintiff contends that the narcotic medication and non-steroidal injections have not controlled her pain. P. Mem. at 7.
The Ninth Circuit and its district courts have generally viewed the use of narcotic pain medication as non-conservative treatment. See LapierreGutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir. 2010) (treatment consisting of "copious" amounts of narcotic pain medication, occipital nerve blocks, and trigger point injections was not conservative); see, e.g., Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (treatment with narcotics, steroid injections, trigger point injections, epidural injections, and cervical traction was not conservative). But in these cases, the claimants typically used narcotic medications in conjunction with other treatments that were also not conservative. The use of narcotic medication, by itself, may be considered conservative treatment. See Huizar v. Comm'r, 428 Fed. Appx. 678, 680 (9th Cir. 2011) (finding that plaintiff responded to conservative treatment, which included the use of narcotic medication); Higinio v. Colvin, 2014 WL 47935, at *5 (C.D. Cal. Jan. 7, 2014) (holding that, despite the fact that plaintiff had been prescribed narcotic medication at various times, plaintiff's treatment as a whole was conservative); Grisel v. Colvin, 2014 WL 1315894, at *12 (C.D. Cal. Apr. 2, 2014) (use of narcotic pain medication was conservative when it provided relief and was not in combination with other treatments).
Here, plaintiff was treated almost exclusively with anti-inflammatory medication and injections and narcotic pain medication. See, e.g., AR at 565,612, 678, 680, 684, 941; see Tommasetti, 533 F.3d at 1040 (describing the use of an anti-inflammatory as conservative); Garcia v. Colvin, 2014 WL 6750288, at *4 (C.D. Cal. Dec. 1, 2014) (Torodal injection constituted conservative care); Peterson v. Colvin, 2014 WL 583239, at *5 (C.D. Cal. Feb. 12, 2014) (anti-inflammatory injection was considered conservative treatment). In 2010, plaintiff received one Decadron injection, a corticosteroid anti-inflammatory. See id. at 684. While regular steroid injections are generally regarded as non-conservative treatment, a single steroid injection is not viewed the same. See Veliz v. Colvin, 2015 WL 1862924, at *8 (C.D. Cal. Apr. 23, 2015) (single steroid injection did not undermine ALJ's finding that plaintiff received conservative treatment); Gonzales v. Colvin, 2015 WL 685347, at *11 (C.D. Cal. Feb. 18, 2015) (treatment consisting of medication and a single steroid injection was conservative). Therefore, as a whole, substantial evidence supports the ALJ's finding that plaintiff received conservative treatment.
On one occasion, plaintiff reported to an emergency room physician that she had back surgery scheduled. AR at 311. On another occasion, plaintiff told an emergency room physician that she was scheduled for a lumbar epidural treatment. Id. at 485. There is no evidence to support either statement.
Plaintiff further contends that the treatment did not alleviate her pain and thus was not a basis for discounting her credibility. See Tommasetti, 533 F.3d at 1040 (plaintiff's favorable response to conservative treatment undermined her allegations). Plaintiff's frequent trips to the emergency room support her contention that the pain medication and Toradol injections were not effective. But this, as will be discussed below, has to be viewed in conjunction with plaintiff's failure to seek the care of a private physician to provide continuous treatment. Because plaintiff has never sought actual treatment, as opposed to emergency care, for her pain, it cannot be said that plaintiff's treatment plan was ineffective when there was no treatment plan. As such, the evidence can reasonably support either affirming or reversing the ALJ's finding that plaintiff received conservative care and that it was effective. In this situation, this court must defer to the ALJ's finding.
Finally, the ALJ discounted plaintiff's credibility because she did not follow up with her primary care physician. AR at 16; see Tommasetti, 533 F.3d at 1039. Although plaintiff reported pain, other than a handful of visits to a worker's compensation physician, plaintiff did not seek treatment from a private physician. Instead, plaintiff relied on the emergency departments of various hospitals. See, e.g. id. at 418, 522-23, 526, 561, 684-85. At many of these visits, the emergency room physician instructed her to follow up with her own private physician. See, e.g., id. at 419, 523, 608, 624, 685. On at least four occasions, plaintiff reported to an emergency room physician that she had an appointment with a treating physician already scheduled or would follow up with her physician, but the record contains no evidence of any visit to a primary care or other physician. See id. at 311, 533, 553, 685. In addition, on at least three occasions, plaintiff left the hospital emergency room without a full evaluation or receiving instructions - once after she already obtained her prescription and once after the physician refused to prescribe narcotics. See id. at 312, 453, 568-69. Such actions suggest that plaintiff's primary concern was temporary relief rather than permanent relief. See id. at 568. Because plaintiff never pursued regular treatment or followed up on the emergency room physicians' recommendations, the ALJ properly found that her lack of treatment was a sufficient reason to find plaintiff less credible.
There is evidence suggesting that plaintiff has a private, treating physician and receives physical therapy, but there are no records of either. See AR at 176, 179, 311-12, 653.
Accordingly, although plaintiff's work activity in 2011 was not a clear and convincing reason supported by substantial evidence, the ALJ's remaining reasons for finding plaintiff less credible were clear and convincing and supported by substantial evidence. See Batson v. Comm'r, 359 F.3d 1190, 1195-97 (9th Cir. 2004) (ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but such error was harmless because the ALJ's remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record).
2. Lay Witness - Plaintiff's Daughter
Plaintiff contends that the ALJ improperly discounted her daughter's credibility without providing sufficient reasons. P. Mem. at 9-10. Plaintiff's daughter Raylene Munguia, submitted a Third Party Function Report. AR at 179-86. In that report, Munguia reported, inter alia, that she helped plaintiff with errands, plaintiff did not sleep well, plaintiff sometimes needed help dressing, plaintiff was in constant pain, plaintiff had concentration issues, and plaintiff could stand for no more than seven minutes at a time. See id.
"[L]ay testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence and therefore cannot be disregarded without comment." Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal quotation marks, ellipses, and citation omitted); see Smolen, 80 F.3d at 1288; see also 20 C.F.R.§§ 404.1513(d)(4), 416. 913(d)(4) (explaining that the Commissioner will consider all evidence from "non-medical sources[,]" including "spouses, parents and other caregivers, siblings, other relatives, friends, neighbors, and clergy"). The ALJ may only discount the testimony of lay witnesses if he provides specific "reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ("Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and give reasons germane to each witness for doing so.").
Here, the ALJ discounted Munguia's opinion on the grounds that it was "exaggerated, embellished, and self-serving." AR at 16. Specifically, the ALJ found that: (1) Munguia's comments that plaintiff could no longer work, perform her own daily routines, and exercise were contradicted by plaintiff's own statements; (2) contrary to Munguia's claim that plaintiff did not sleep well, plaintiff did not complain of insomnia; (3) Munguia's statements regarding plaintiff's self-care activities were contradicted by plaintiff; and (4) plaintiff contradicted Munguia's statement about her ability to perform household chores. Id. The ALJ's overarching reason for discounting Munguia's report was that it was contradicted by plaintiff's own statements. Some of the ALJ's findings are germane and supported by substantial evidence.
First, the ALJ found that Munguia's response that plaintiff could no longer work, do her own daily routines, and exercise was contradicted by the fact that plaintiff worked in 2011 and engaged in a "vigorous" home exercise program. Id. at 16. As discussed above, plaintiff's work did not constitute substantial gainful activity and there was insufficient evidence as to the duration, intensity, and type of work that was performed, as well as the reasons for starting and stopping. Thus, it was not germane. The ALJ also did not explain how plaintiff's statements contradicted Munguia's statement regarding plaintiff's daily routines. As for Munguia's statement about plaintiff's ability to exercise, as discussed above, plaintiff's statements to Dr. Wilson do contradict this specific statement. Therefore, although plaintiff's remarks about her work and daily routine were not substantial evidence of contradictory statements, the conflicting statement about plaintiff's ability exercise constituted a germane reason supported by substantial evidence for finding Munguia less credible.
Second, the ALJ concluded that plaintiff's statement to Dr. Cash that she had no difficulty with self-care activities and could perform them independently contradicted Munguia's claim that plaintiff required assistance. Munguia wrote that plaintiff "sometimes" needed help with putting on shoes and pants, sometimes was in too much pain to shave, and needed help to retrieve and move certain objects. AR at 180. The statement cited by the ALJ as contradictory was plaintiff's reporting to Dr. Cash that she had no problems with self-care. Id. at 956. The statement reported by Dr. Cash was so brief, and the limitations described by Munguia so minimal, that it is a stretch to conclude that these statements were contradictory. Nonetheless, they technically do conflict to a limited extent.
The third reason the ALJ gave for discounting Munguia's report was that although she reported that plaintiff woke up repeatedly at night, plaintiff never asserted insomnia or difficulty sleeping. AR at 16. The ALJ was incorrect. In her Function Report (which Munguia completed for her (see id. at 218)), plaintiff stated that she cannot sleep because of constant pain. Id. at 212. Moreover, she told Dr. Cash that she had sleep difficulties and was slower in all activities due to fatigue and pain. Id. at 956.
Finally, the ALJ found Munguia not credible because she stated that plaintiff did not do housework and yard work, while plaintiff told Dr. Cash that she performed household chores. Id. at 16, 181, 956. The ALJ properly noted this clear inconsistency was a basis for a negative credibility finding.
Therefore, although not to the "exaggerated" and "embellished" levels the ALJ describes, the ALJ cited at least two arguably germane reasons for dismissing Munguia's report.
In sum, the ALJ provided some clear and convincing reasons supported by substantial evidence for finding plaintiff less credible and some germane reasons supported by substantial evidence for discounting Munguia's credibility. As such, the ALJ did not err in discounting plaintiff's and her daughter's credibility. C. The ALJ Erred at Step Five
Plaintiff argues that the ALJ erred by relying on the vocational expert's testimony. P. Mem. at 11-13. Specifically, plaintiff contends that even assuming the ALJ's RFC determination was correct, the ALJ still erred because the VE's proffered job numbers were clearly erroneous and unreliable. Id. Plaintiff argues the ALJ's step five finding was thus not supported by substantial evidence. Id.
At step five, the burden shifts to the Commissioner to show that the claimant retains the ability to perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a finding that a claimant is not disabled at step five, the Commissioner must provide evidence demonstrating that other work exists in significant numbers in the national economy that the claimant can perform, given his or her age, education, work experience, and RFC. 20 C.F.R. §§ 404.1512(f), 416.912(f). The Commissioner may satisfy this burden through the testimony of a vocational expert. Lounsburry, 468 F.3d at 1114.
In response to a hypothetical that includes the limitations the ALJ found credible, a VE may testify as to "(1) what jobs the claimant, given his or her [RFC], would be able to do; and (2) the availability of such jobs in the national economy." Tackett, 180 F.3d at 1101. "A VE's recognized expertise provides the necessary foundation for his or her testimony." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). Accordingly, VE testimony is substantial evidence. See Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995) ("'[T]he ALJ was within his rights to rely solely on the vocational expert's testimony.'") (quoting Conn v. Sec'y, 51 F.3d 607, 610 (6th Cir. 1995)); see also Bayliss, 427 F.3d at 1218, n.4 (Federal Rules of Evidence do not apply in social security hearings). But where the VE testimony is fundamentally flawed, remand is appropriate. See, e.g., Farias v. Colvin, 519 Fed. Appx. 439, 440 (9th Cir. 2013) (remand required where VE provided employment data for a different occupation than the one he opined claimant could perform).
ALJs routinely rely on the Dictionary of Occupational Titles ("DOT") "in evaluating whether the claimant is able to perform other work in the national economy." Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1) (DOT is a source of reliable job information). The DOT is the rebuttable presumptive authority on job classifications. Johnson, 60 F.3d at 1435. An ALJ may not rely on a VE's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the DOT, and if so, the reasons therefor. Massachi, 486 F.3d at 1152-53 (discussing Social Security Ruling 00-4p).
At the November 2, 2012 hearing, in response to the ALJ's hypothetical, the VE testified that a person with plaintiff's RFC would be able to perform the jobs of lens gauger (DOT 716.687-030), table worker (DOT 739.687-182), and addresser (DOT 209.587-010). AR at 33-34. The VE testified that there were approximately 464,000 jobs nationally and 50,000 jobs regionally for lens gauger, 410,000 jobs nationally and 47,000 jobs regionally for table worker, and 724,000 jobs nationally and 97,000 jobs regionally for addresser. Id. at 34. The VE testified that he derived the numbers from the Bureau of Labor Statistics ("BLS") and cross-referenced the numbers with Occupational Employment Statistics ("OES") and Employment Development Department ("EDD") data. Id.
Plaintiff contends that the VE's testimony cannot constitute substantial evidence because the VE's job numbers do not correspond to BLS data. P. Mem. at 12-13. In support, plaintiff presents evidence that purports to undermine the reliability of the VE's testimony. Id., Exs. A-C. Specifically, plaintiff asserts that the BLS reports that the jobs of lens gauger and table worker fall into an OES group consisting of 782 occupations and there are an estimated 450,000 jobs nationally for that group, and the job of addresser falls into an OES group consisting of seven occupations and there are an estimated 96,000 jobs nationally for that group. Id. at 12, Exs. A-C. In contrast, the VE testified that there were 464,000 jobs nationally for lens gauger, 410,000 jobs nationally for table worker, and 724,000 jobs nationally for addresser. AR at 34. Plaintiff maintains that the VE's numbers are impossible given that it would mean that there are about double the number of lens gauger and table worker jobs nationally than for the entire OES group of 782 occupations. P. Mem. at 12. Similarly, the VE's number reflect more jobs nationally for addresser than the OES group of seven occupations. Id.
Defendant is correct that a lay interpretation of raw job numbers, by itself, is insufficient to undermine a VE's analysis. See Cardone v. Colvin, 2014 WL 1516537, at *5 (C.D. Cal. Apr. 18, 2014) ("[P]laintiff's lay assessment of the raw vocational data derived . . . does not undermine the reliability of the VE's opinion."); Vera v. Colvin, 2013 WL 6144771, at *22 (C.D. Cal. Nov. 21, 2013) ("[L]ay assessment of the data derived from [job data sources] does not undermine the reliability of the VE's testimony" where the plaintiff "failed to introduced any VE opinion interpreting the data from those sources and the significance of the information reflected on the various reports is not entirely clear."); Valenzuela v. Colvin, 2013 WL 2285232, at *4 (C.D. Cal. May 23, 2013) (rejecting plaintiff's assessment, in part, because it "was unaccompanied by any analysis or explanation from a vocational expert or other expert source to put the raw data into context"). But when the VE's job numbers are fundamentally flawed, remand is appropriate. See Farias, 519 Fed. Appx. at 440 (remanding because "[n]o 'reasonable mind' could accept the employment numbers proffered by the VE.").
Here, the raw numbers indicate that the VE's jobs numbers are fundamentally flawed. First, the VE testified that there 464,000 lens gauger jobs and 410,000 table worker jobs nationally. Both jobs fall under the same OES category - inspectors, testers, sorters, samplers, and weighers - which comprises of 782 occupations. According to the BLS and OES data, there are approximately 454,010 jobs nationally for this category. The VE's numbers for lens gauger and table worker - just two out of the 782 occupations - exceed the OES category numbers by more than double. Likewise, the VE's testimony that there are 724,000 addresser jobs nationally is more than seven times the number of jobs listed in its OES category. It does not appear that these numbers can be reconciled even with expert analysis. Second, the VE appears to admit to providing numbers for the OES category rather than specific jobs. When asked about the number of addresser jobs, the VE testified that he believed there were nine sub-categories of addresser under the OES and that the approximately 100,000 regional addresser jobs included all the sub-categories. See AR at 35. According to the BLS, the addresser job is one of seven specialty occupations, each with their own DOT codes, in the OES group of word processors and typists and not the other way around. In other words, addresser is the sub-category of the OES group and not the reverse. The VE should be testifying to the number of jobs for addresser and not the OES category that the addresser job falls under. See Darling v. Colvin, 2013 WL 4768038, at *4-*6 (C.D. Cal. Sept. 4, 2013) (remanding because the VE's proffered job numbers may have pertained to the entire OES statistical group rather than the individual job). Although the VE did not testify that he applied this logic to the jobs of lens gauger and table worker, the court assumes he did.
The EDD data, which is California specific, should only affect the analysis of the regional numbers. Because the VE testified that he also relied on the EDD and plaintiff presented no evidence concerning the EDD data, this court will only discuss the national job numbers. This court assumes, however, that if plaintiff's national job numbers are fundamentally flawed, then his regional job numbers are likewise flawed. --------
Thus, although a plaintiff's lay analysis is generally insufficient to undermine the reliability of a VE's testimony, here, because the raw numbers raise questions about the reliability of the VE's testimony and both his numbers and methodology appear to be fundamentally flawed, the ALJ erred in relying on the VE's testimony at step five. The ALJ must reexamine the VE to further develop the record in this regard.
V.
REMAND IS APPROPRIATE
The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this discretion to direct an immediate award of benefits where: "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinions; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with instructions to calculate and award benefits). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must "remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled." Garrison, 759 F.3d at 1021.
Here, remand is required to further develop the record. On remand, the ALJ shall reconsider the opinion provided by Dr. Cash and either credit his opinion or provide specific and legitimate reasons supported by substantial evidence for rejecting it. The ALJ should also further develop the record and inquire about and obtain additional medical records, if any. In addition, the ALJ must obtain further testimony from a VE to clarify the job numbers. The ALJ shall then assess plaintiff's RFC and proceed through steps four and five to determine what work, if any, plaintiff is capable of performing.
VI.
CONCLUSION
IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. DATED: July 13, 2015
/s/_________
SHERI PYM
United States Magistrate Judge