Opinion
No. 6:17-cv-02043-HZ
05-03-2019
TIMOTHY S., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Kathryn Tassinari Mark Manning HARDER, WELLS, BARON & MANNING, P.C. 474 Willamette Street, Suite 200 Eugene, OR 97401 Attorneys for Plaintiff Renata Gowie Assistant United States Attorney District of Oregon 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Sarah Martin Social Security Administration Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 Attorneys for Defendant
OPINION & ORDER Kathryn Tassinari
Mark Manning
HARDER, WELLS, BARON & MANNING, P.C.
474 Willamette Street, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff Renata Gowie
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204 Sarah Martin
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant HERNÁNDEZ, District Judge:
Plaintiff Timothy S. seeks judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Commissioner's decision is reversed and remanded for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on November 26, 2014. Tr. 192, 194. Plaintiff alleged a disability onset date of June 20, 2012. Id. Plaintiff's date last insured is December 31, 2017. Tr. 213. His application was denied initially and on reconsideration. Tr. 128, 133, 139, 142. On February 17, 2017, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge (ALJ). Tr. 36. On April 17, 2017, the ALJ found Plaintiff not disabled. Tr. 23. The Appeals Council denied review. Tr. 1.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 9.
FACTUAL BACKGROUND
Plaintiff initially alleged disability based on sciatica, gout, lower back pain, depression, obesity, and high blood pressure. Tr. 217. He was 37 years old at the time of his alleged onset date and 41 years old at the time of the administrative hearing. Tr. 21. Plaintiff has a high school education and past relevant work experience as a caregiver, a groundskeeper, a dishwasher, and a cook helper. Tr. 21-22.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.
In step one, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Bowen v. Yuckert, 482 U.S. 137, 140 (1987). If so, the claimant is not disabled. 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. If not, the claimant is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c).
In step three, the Commissioner determines whether the impairment meets or equals "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 if the claimant, despite any impairment, has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled; if not, the burden shifts to the Commissioner in step five to 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 his burden and proves the claimant is able to perform other work which exists in the national economy, 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 his alleged onset date of June 20, 2012. Tr. 16. At step two, the ALJ determined that Plaintiff's obesity, sleep apnea, diabetes mellitus, and hypertension were not severe, but Plaintiff's "degenerative disk disease" was a severe impairment. Id. However, at step three, the ALJ determined that Plaintiff's severe impairment did not meet or medically equal the severity of a listed impairment. Tr. 18. At step four, the ALJ concluded that Plaintiff had the RFC to perform sedentary work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with the following limitations: "[T]he claimant can occasionally climb ramps and stairs, and he is able to occasionally climb ladders, ropes, or scaffolds. He can also occasionally balance, stoop, kneel, crouch, and crawl. The claimant requires the option to sit/stand/change positions at will." Id. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past relevant work as a caregiver, a groundskeeper, a dishwasher, or a cook helper. Tr. 21. But at step five, the ALJ found that jobs exist in significant numbers in the national economy that Plaintiff can perform, such as "telephone solicitor," "survey worker," or "food checker." Tr. 22. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 23.
STANDARD OF REVIEW
A court must affirm the Commissioner's denial of benefits unless 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 weighs the entire record, considering the evidence that both supports and detracts from the Commissioner's decision. 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). However, the court cannot rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray v. Comm'r, Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009).
DISCUSSION
Plaintiff contends that the ALJ erred by: (1) failing to give clear and convincing reasons for rejecting Plaintiff's testimony; and (2) only giving partial weight to the medical opinion of Samir Ale, M.D., Plaintiff's treating physician. The Court agrees.
I. Credibility Determination
The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. In assessing a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929. The first step is a threshold test in which the claimant must present objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second step of this analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Lingenfelter, 504 F.3d at 1036.
The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in the testimony. Tommasetti, 533 F.3d at 1039. In addition, conflicts between a claimant's testimony and the objective medical evidence in the record can undermine a claimant's credibility. Morgan v. Comm'r, Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
When the ALJ's credibility findings are supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that a claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
Plaintiff has the severe impairment of "degenerative disc disease." Tr. 16. Plaintiff states that the pain caused by his impairment radiates from his lower back into his right leg, prohibiting him from standing longer than five minutes, sitting longer than ten minutes, bending, lifting, and walking up stairs. Tr. 50, 225. He states that his pain causes him to toss and turn at night so he cannot sleep, and it is difficult for him to shower because he must lean against the wall. Tr. 227-28. He further states that his pain causes balance issues, although he does not use a cane. Tr. 53. Despite taking his prescribed medication and using over-the-counter heat rubs, he continues to have pain. Tr. 50, 53. Plaintiff quit his most recent job as a newspaper delivery person because his pain prevented him from sitting, walking, and repeatedly getting in and out of his truck. Tr. 259. Plaintiff is currently homeless, and he either stays in a local shelter or sleeps in his truck parked on the street. Tr. 225.
Plaintiff's activities of daily living depend on whether he stays at the homeless shelter or in his truck. When Plaintiff stays at the shelter, he attends church, goes to his mother's house, and eats meals that are prepared for him by the shelter. Tr. 226-27. In addition, Plaintiff performs chores for approximately twenty to thirty minutes total per day, consisting of drying dishes and wiping down the piano, tables, and "window seals." Tr. 228. When Plaintiff sleeps in his truck, he feeds his dog, reads, and eats sandwiches and canned goods heated on a propane stove. Tr. 226-27. In addition, Plaintiff walks his dog for approximately ten minutes three or four times per day. Tr. 228. Plaintiff states that his hobbies are hunting, fishing, and reading, but he has not hunted or fished since 2012 because of his back pain. Tr. 229.
The ALJ provided two reasons for discounting Plaintiff's credibility as to the severity of his symptoms: (1) Plaintiff's activities of daily living; and (2) inconsistencies between Plaintiff's testimony and the objective medical evidence. Tr. 19-20. Plaintiff contends that these reasons are neither clear nor convincing. Pl.'s Br., 9, ECF 10. The Court agrees.
A. Activities of Daily Living
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti, 553 F.3d at 1039. There are two grounds for using daily activities to form the basis of an adverse credibility determination: (1) when activities meet the threshold for transferable work skills; and (2) when activities contradict a claimant's other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). However, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), and "[t]he mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping . . . does not in any way detract from [his] credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). Only when an activity is "inconsistent with [the c]laimant's claimed limitations" does it impact a claimant's credibility. Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his conclusion on the claimant's credibility. Id. at 722-23.
The ALJ found that Plaintiff's activities of daily living were inconsistent with the degree of limitation he alleged. First, the ALJ cited an emergency treatment record from April 2013 after an engine block dropped on Plaintiff's foot. Tr. 20. The ALJ stated that "this would suggest that [Plaintiff's] activity level was more than he has alleged." Id. There is no evidence, however, to support the ALJ's inference. The treatment record does not mention—and the ALJ did not ask Plaintiff—how the engine block fell on Plaintiff's foot.
Elsewhere in the decision, the ALJ recites Plaintiff's activities of daily living in determining that Plaintiff's mental impairments cause no more than a "mild limitation in any of the functional areas" of the Paragraph B criteria. Tr. 17-18. But Plaintiff's activities of daily living do not contradict his testimony that he cannot sit for more than ten minutes, cannot stand for more than five minutes, and has difficulty bending, lifting, and walking up stairs. Plaintiff engages in chores at the shelter throughout the day for twenty to thirty minutes at a time. Tr. 228. Plaintiff walks his dog for ten minutes three or four times per day. Id. Plaintiff spends most of his day lying down reading. Tr. 226. His mother washes his laundry for him because his clothes are too heavy for him to lift. Tr. 56. Plaintiff even testified that he has difficulty dressing himself because it is too painful to bend down and put on his pants. Id. Plaintiff's daily activities are not transferable work skills, and none of Plaintiff's daily activities are inconsistent with his claimed limitations. Accordingly, this is not a clear or convincing reason for discounting Plaintiff's testimony.
B. Inconsistent Objective Medical Evidence
Under certain circumstances, the ALJ can discount a claimant's testimony when that testimony is not supported by the objective medical evidence. See Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (consulting physician "did not believe that [the plaintiff's] 'graphic and expansive' pain symptoms could be explained on physical basis"); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (discounting the plaintiff's testimony when MRIs and X-rays showed only mild findings). However, this may not be the ALJ's sole reason for discounting a claimant's testimony: "the Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick, 157 F.3d at 722.
The ALJ found Plaintiff's subjective symptom testimony inconsistent with the objective medical evidence. Though the ALJ noted significant MRI results, he also emphasized that there was no consistent evidence showing decreased motor strength, reflexes, or sensation, and the results of the straight-leg raising test had been inconsistent. Tr. 18-20. The ALJ noted that the most recent imaging of Plaintiff's back in March 2015 showed a broad-based disc protrusion causing moderate canal stenosis at L2-L3, an annular fissure extending to the foraminal level, a moderate concentric canal stenosis at L3-L4, and a disc protrusion potentially affecting the descending S1 nerve root and the L5 nerve root. Tr. 19. The ALJ found that a physical examination from July 2012 was inconsistent with this MRI because at that time, Plaintiff only had some pain with straight-leg raising. Tr. 19-20. The ALJ also found the MRI imaging inconsistent with an August 2012 examination finding that Plaintiff had a normal range of motion, normal gait, and negative straight-leg raise on the right. Id.
Although the ALJ cited earlier exams where Plaintiff's symptoms were not as severe, more recent exams are consistent with Plaintiff's subjective testimony. In May 2014, Plaintiff's back examination revealed decreased reflexes in the lower right extremity. Tr. 20. In December 2014, Plaintiff was noted as having an antalgic gait with lower vertebral herniation and sciatica, evidence of degenerative joint disease, and a positive straight-leg raising test on the right. Tr. 327. In February 2015, Plaintiff had 2+ bilateral patellar reflexes and was diagnosed with lumbar stenosis with neurogenic claudication. Tr. 427. In addition, Plaintiff's May of 2015 medical records demonstrate that Plaintiff had an abnormal gait, station, and range of motion. Tr. 480-81. The treating physician noted that Plaintiff appeared uncomfortable while seated and rose stiffly. Tr. 481. Again, in October 2015, Plaintiff had a positive straight-leg raising test. Tr. 20.
Thus, while the ALJ describes inconsistencies between Plaintiff's initial examinations in 2012 and his MRI results, the record shows Plaintiff's pain and other symptoms worsening or stabilizing since his initial exam, and the objective medical evidence is largely consistent with Plaintiff's symptom testimony. Accordingly, this is not a clear or convincing reason for discounting Plaintiff's subjective symptom testimony.
II. Medical Opinion Evidence
Plaintiff argues that the ALJ erred in only giving partial weight to the opinion of Samir Ale, M.D., a treating physician. If no conflict arises between medical source opinions, the ALJ generally must accord greater weight to the opinion of a treating physician over that of a reviewing physician. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). If a treating physician's opinion is not contradicted by another physician, the ALJ may reject it only for clear and convincing reasons. Id. Even if one physician is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Id. However, the ALJ may reject physician opinions that are "brief, conclusory, and inadequately supported by clinical findings." Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
Beginning in December 2014, Dr. Ale examined Plaintiff every three to four months. Tr. 488. In an evaluation dated December 16, 2016, Dr. Ale diagnosed Plaintiff with spinal stenosis with radiculopathy and neurogenic claudication, lumbar facet arthropathy, and diabetic peripheral neuropathy. Id. Dr. Ale opined that Plaintiff must be able to change position at will every fifteen to twenty minutes while sitting, standing, or walking, and Plaintiff needs an unscheduled ten to fifteen-minute break every hour. Tr. 489-91. Further, Dr. Ale found that without needing to rest or being in significant pain, Plaintiff can walk zero city blocks, sit for twenty minutes at a time up to one-hour total in a work day, and stand or walk ten minutes at a time for zero hours in a work day. Tr. 490. However, Dr. Ale also noted that Plaintiff did not have any repetitive reaching, handling, or fingering limitations. Tr. 491.
The ALJ gave Dr. Ale's opinion partial weight. Tr. 20. First, the ALJ found Dr. Ale's opinion that Plaintiff had "extreme limitations, in terms of standing/walking/sitting" inconsistent with the objective medical evidence showing that Plaintiff had no diminished strength in the lower extremities. Tr. 21. Second, the ALJ emphasized medical evidence showing that Plaintiff's pain was "stable." Id.
These reasons are not specific and legitimate. Throughout the time that Dr. Ale treated Plaintiff, Plaintiff had medical conditions capable of causing his level of pain, even if Plaintiff did not have diminished strength in his lower extremities. Specifically, Plaintiff's 2012 and 2015 MRI results showed disc herniations, disc protrusion, disc intrusion, annular tears, narrowed spinal canals, degenerative changes in the spine, mild deformity of the cord, and disc material displacing the descending right S1 root. Tr. 394-95, 432-33. Plaintiff has repeatedly visited medical professionals throughout this time complaining of low back pain. For example, in May 2015, one of Plaintiff's treating physicians noted that Plaintiff appeared uncomfortable when seated, sat with his weight on his left buttock, rose stiffly from a seated position, had tenderness, and had an abnormal gait, station, and range of motion. Tr. 480-81. In addition, the stability of Plaintiff's symptoms does not indicate that the pain is resolved, only that it is not getting worse. See, e.g., Kimberly S. v. Comm'r, Soc. Sec. Admin., 3:17-cv-01956-HZ, 2018 WL 6198275, at *6 (D. Or. Nov. 28, 2018) (finding that a plaintiff's stable mood was unrelated to the opinion of a nurse practitioner that the plaintiff had marked limitations); Kirk M. v. Comm'r, Soc. Sec. Admin., 6:17-cv-01663-HZ, 2018 WL 6651525, at *4 (D. Or. Dec. 19, 2018) (finding that a plaintiff's stable glaucoma did not mean the plaintiff was no longer visually impaired). As the ALJ's reasons are not specific and legitimate, the ALJ erred in giving little weight to Dr. Ale's opinion.
III. Remand for Further Proceedings
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test. Id. Except in the rare circumstances when all three parts are met, remanding for further proceedings is the proper course. Treichler v. Comm'r, Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). First, the record must be fully developed so that further administrative proceedings would serve no useful purpose. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Second, the ALJ must fail to provide sufficient legal reasons for rejecting the claimant's testimony or a medical opinion. Id. Third, the ALJ would be required to find the claimant disabled if the improperly discredited evidence was credited as true. Id. When all three parts are met, "a case raises the 'rare circumstances' that allow us to exercise our discretion to depart from the ordinary remand rule" and to instead remand for an award of benefits. Treichler, 775 F.3d at 1101.
The Court finds the ordinary remand rule is the proper course in this case. Though Dr. Ale found that Plaintiff had significant functional limitations, he also opined that Plaintiff's medical problems would never prevent him from being able to maintain a regular work schedule. Tr. 488-92. In addition, Sharon B. Eder, M.D., a reviewing physician, concluded that Plaintiff could sit, stand, or walk for a total of six hours in an eight-hour workday. The ALJ—not the district court—should resolve these conflicts. Accordingly, the Court remands this case for further proceedings.
CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for further administrative proceedings.
IT IS SO ORDERED.
Dated this 3 day of May 2019.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge