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finding "no medical documentation establishing the need for an assistive device" where all mentions of claimant's cane were "traceable to Plaintiff's self-reports and to his medical sources' observations that he presented with an assistive device"
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Case No. 1:14-cv-02096-SKO
05-10-2016
JOE PRECILIANO FLORES, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ON PLAINTIFF'S SOCIAL SECURITY APPEAL
I. INTRODUCTION
Plaintiff, Joe Preciliano Flores ("Plaintiff"), seeks judicial review of a final decision of the Commissioner of Social Security ("Defendant") denying his application for Supplemental Security Income ("SSI") and Disability Income Benefits ("DIB") pursuant to Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1381-83. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.
The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.)
II. FACTUAL BACKGROUND
Plaintiff was born on November 22, 1961, and applied for SSI benefits on November 12, 2010, and DIB benefits on December 28, 2011, alleging disability beginning on August 17, 2010. (Administrative Record ("AR") 19; 117-20.) Plaintiff claims he is disabled due to back problems, memory problems, hip trouble, hernia, and arthritis. (See AR 19; 92; 320.)
A. Relevant Medical Evidence
On November 17, 2009, an MRI of Plaintiff's right knee showed mild tricompartmental osteoarthritis with osteophyte formation, mild lateral patellar subluxation, and internal meniscal degenerations (AR 281-82) and an MRI of his left knee showed slightly less severe tricompartmental osteoarthritis with lateral patellar subluxation and minimal joint fluid (AR 283-84).
On March 8, 2010, Plaintiff reported pain in his right knee worse than in his left knee, with discomfort and multiple episodes of buckling. (AR 210.) Dr. Robert Canton, M.D., observed effusion, tenderness, gross palpable crepitus, pain, and a positive McMurray's sign in Plaintiff's right knee. (AR 210.) Dr. Canton opined Plaintiff would immediately require an operative arthroscopy with meniscectomy, shaving, and debridement, and would ultimately require total knee replacement. (AR 210.)
On June 28, 2010, Plaintiff told Dr. James Kraus, M.D., that he was "too scared" to go through with his knee surgery, and reported that he planned to wait to see if the pain became "so bad he will do it." (AR 266.) Plaintiff noted pain medication helped with the pain. (AR 266.) Dr. Kraus observed crepitus in both knees. (AR 267.)
On September 9, 2010, Plaintiff was seen for pain management of both knees and his lower back and requested a higher dosage of pain medication. (AR 262.) On September 29, 2010, nurse practitioner Karen Schaaf, F.N.P., observed Plaintiff was using a cane for ambulation and noted tenderness in the lateral lumbar area with muscle spasm and bilateral knee crepitus and stiffness. (AR 260.) On November 4, 2010, NP Schaaf observed tenderness in Plaintiff's lateral lumbar area with muscle spasm, restricted lumbar range of motion secondary to pain, bilateral knee crepitus, and tenderness to palpation in the right knee. (AR 256.) On December 27, 2010, Plaintiff told physician assistant Christine Cavanaugh, P.A., that he needed knee replacements but want not going to have them yet. (AR 253.)
On December 13, 2010, NP Schaaf completed a residual functional capacity questionnaire and opined Plaintiff would constantly experience symptoms severe enough to interfere with his ability to attend and concentrate on simple work-related tasks and would require the ability to recline or lie down in excess of typical breaks, to shift positions at will, and to take frequent unscheduled breaks throughout the workday. (AR 211-12.) NP Schaaf opined Plaintiff could sit for ten minutes at one time and for two hours total, stand or walk for five minutes at one time and for one hour total in an eight hour workday, and occasionally lift and carry ten pounds or less. (AR 211-12.) NP Schaaf also opined Plaintiff would likely be absent more than four times per month, could not walk long distances, and had impaired movement due to his physical impairments. (AR 212.)
On March 25, 2011, PA Cavanaugh observed stiffness in the knees when Plaintiff attempted to stand and noted he had to "halt somewhat" until he was able to stand completely erect. (AR 247.) Plaintiff told PA Cavanaugh he had to wait until he turned 52 to get knee replacements, as he had been told they only last 10 years. (AR 247.) On May 14, 2011, Plaintiff again reported he could not have a knee replacement until he was 52, and PA Cavanaugh observed Plaintiff's knees were quite stiff when he attempted to stand and he "takes a moment to straighten his legs before he can get going." (AR 244.)
On May 17, 2011, Plaintiff reported he was doing well on his Norco for pain relief without side effects, but still had pain. (AR 242.) NP Schaaf observed crepitus and pain with movement of both legs. (AR 243.) On June 14, 2011, NP Schaaf observed crepitus and restriction with range of motion in both knees. (AR 240.) On July 8, 2011, NP Schaaf noted Plaintiff was using a cane to ambulate and observed tenderness in Plaintiff's lateral lumbar area with muscle spasm, restricted lumbar range of motion, and crepitus in Plaintiff's bilateral knees. (AR 236-37.)
On August 10, 2011, Plaintiff reported pain in his knees and back, and NP Schaaf observed tenderness to palpation of Plaintiff's lumbar spine, restricted lumbar range of motion secondary to pain, and crepitus and stiffness with movement. (AR 233-34.) Plaintiff indicated his medications enabled him to be mobile. (AR 233.) On September 30, 2011, Plaintiff reported one kind of Norco made him drowsy and he requested a different formulation. (AR 228.) Plaintiff again reported he was too scared to do the knee surgery. (AR 228.) On October 3, 2011, Dr. Anand Magoon, D.O., assessed Plaintiff with chronic pain and lumbago and indicated he was not clear as to why Plaintiff was prescribed chronic narcotics. (AR 226-27.) Dr. Magoon also noted Plaintiff was prescribed bupropion (an antidepressant), fluoxetine (an antidepressant), and pravachol (hyperlipidemia). (AR 227.)
On October 13, 2011, Fernando Esparza, P.A., recommended Plaintiff walk or engage in another aerobic activity for thirty minutes, five days per week. (AR 232.) On October 20, 2011, associate clinical social worker Sandra Centeno, A.S.W., noted Plaintiff reported chronic pain and was receiving weekly counseling to maintain his sobriety. (AR 224.) On November 2, 2011, Dr. Magoon noted lumbar lordosis with muscle spasm and a positive straight leg raise and recommended Plaintiff be placed on Tylenol for his knee pain rather than narcotics. (AR 402-03.) On November 22, 2011, radiological imaging of Plaintiff's lumbar spine revealed no abnormalities. (AR 222.) On December 1, 2011, Plaintiff reported his pain without medication was a 10/10 and with medication was a 5/10. (AR 218.) As his back x-rays had not shown any structural abnormalities, Dr. Magoon began to taper Plaintiff off Vicodin. (AR 219.)
On January 3 2012, Dr. Magoon assessed Plaintiff as suffering from "backache unspecified" and noted Plaintiff was attending counseling and receiving methadone for previous drug addiction. (AR 213-14; 216-17.) On January 16, 2012, NP Schaaf noted Plaintiff was positive for moderate depression and degenerative arthritis of the knee. (AR 397-98.) On February 2, 2012, NP Schaaf observed Plaintiff used a cane for ambulation and had decreased range of motion and pain in his back and knees with movement. (AR 313; 394.) On March 1, 2012, NP Schaaf noted Plaintiff was in mild pain, had an irregular heart rhythm, and exhibited decreased range of motion and pain in his bilateral knees, and prescribed Plaintiff a refill of Hydrocodone for the pain. (AR 309-10; 386-87.)
On March 19, 2012, consultative examiner Dr. Roger Wagner, M.D., saw Plaintiff for a comprehensive internal medicine evaluation. (AR 285.) Plaintiff reported epilepsy since grammar school due to head trauma (though he had not had a seizure in two or three years and had ceased taking seizure medication), and bilateral knee arthritis, with occasional feelings that his knees "are going to 'give out on him.'" (AR 285.) Plaintiff stated he cannot climb stairs and can walk about one block before becoming "too tired." (AR 285.) Plaintiff reported using a cane "at times" but "appeared to be stable walking without the cane" at the examination. (AR 286.)
Plaintiff reported living with his wife and minor daughter, doing "light cooking and cleaning," shopping, performing "his own activities of daily living," and walking for exercise. (AR 286.) Dr. Wagner observed Plaintiff was able to easily rise from his chair, sit comfortably, bend at the waist easily, and take his shoes on and off without difficulty, and noted that although Plaintiff carried a cane, he did not appear to lean on it heavily. (AR 286.) Dr. Wagner also observed a moderate amplitude tremor in Plaintiff's right hand, some minimal knee swelling, and +1 crepitus in both knees. (AR 288.)
Dr. Wagner opined Plaintiff was capable of standing and walking up to six hours and had no limitation on his ability to sit; could lift or carry 50 pounds occasionally and 25 pounds frequently; could never climb or balance on ladders or scaffolds or work around heights or heavy machinery; may be able to climb stairs with good railings; had no significant limitations on manipulation, though fine fingering on his right hand would be impaired due to his tremor; and, that use of a cane "may be necessary for long distances." (AR 289.)
On March 26, 2012, consultative examiner Dr. Aparna Dixit, Psy. D., saw Plaintiff for a comprehensive psychiatric evaluation. (AR 290-93.) Plaintiff reported he had suffered from seizures as a child, that his seizures had re-started one to one and a half years ago, and denied a history of head injury. (AR 290-91.) Plaintiff described his daily activities as staying mostly at home with a limited ability to perform household chores, but he could dress and bathe himself. (AR 291.) Dr. Dixit observed Plaintiff presented with a depressed mood and noted Plaintiff could not name the current president, could not perform serial sevens, could not spell the word "world" forward or backward, and could not interpret a proverb. (AR 292.) However, Dr. Dixit opined Plaintiff had no significant impairment in his mental functioning. (AR 293.) Dr. Dixit concluded Plaintiff is capable of performing "simple and repetitive tasks on a regular basis," his "ability to perform detailed and complex tasks is not significantly impaired," he "should have no significant difficulty working with supervisors, coworkers, and the public" or "handling routine stressors," and he would benefit from assistance in managing his funds due to a history of substance abuse. (AR 293.)
On April 16, 2012, state agency consultant Dr. R. Fast, M.D., opined Plaintiff's seizure impairment was non-severe, as his seizures had stopped and he no longer needed medication, he had no limitations from his mild tremor, and that medium work was appropriate given the arthritis in his knees and normal gait, strength, range of movement, and stability. (AR 294-96.) Dr. Fast opined Plaintiff could lift or carry 50 pounds occasionally and 25 pounds frequently; could sit, stand, and walk six hours in an eight-hour day; and had no postural, manipulative, or environmental limitations. (AR 297-301.)
On March 29, 2012, NP Schaaf observed Flores appeared to be in mild pain and had decreased range of motion in his bilateral knees and provided a refill of Norco for pain. (AR 307; 384.) On April 26, 2012, NP Schaaf noted Plaintiff appeared to be in mild pain, had decreased range of motion with pain in his left knee, and used a cane for ambulation. (AR 304; 381.) NP Schaaf refilled Plaintiff's prescription for Norco and ordered a Depo Medrol knee injection. (AR 305.)
On June 20, 2012, NP Schaaf completed a second residual functional capacity questionnaire, opining Plaintiff required a cane for ambulation and experienced pain with bending or standing too long. (AR 345.) NP Schaaf also opined Plaintiff would constantly experience symptoms severe enough to interfere with his ability to attend and concentrate on simple work-related tasks and would require the abilities to recline or lie down in excess of typical breaks, to shift positions at will, and to take unscheduled breaks multiple times throughout the workday. (AR 345.) NP Schaaf opined Plaintiff could sit for five minutes at one time and for zero hours total in an eight-hour workday, could stand or walk for ten minutes at one time and for zero hours total in an eight-hour workday, and could never lift any weight. (AR 345-46.) NP Schaaf also opined Plaintiff would likely be absent more than four times per month due to his symptoms. (AR 346.)
On July 30, 2012, physician assistant Brian Cormier, P.A., observed Plaintiff's gait was slowed and affected by a limp, his knee pain was "stable and nonprogressive," and he exhibited pain with flexion and extension in his back. (AR 377-78.) PA Cormier opined Plaintiff should avoid kneeling and squatting. (AR 379.)
On August 2, 2012, state agency consultant Dr. L. Kiger, M.D., reviewed the record and concluded there were "no new findings to support the necessity for a cane" and adopted a medium residual functional capacity assessment and non-severe psychiatric review technique form findings. (AR 347-48.) On August 7, 2012, state agency consultant Dr. Evangeline Murillo, M.D., agreed that Plaintiff's medical impairments were non-severe and noted there was no evidence of worsening of Plaintiff's condition on reconsideration. (AR 351-52.) On August 8, 2012, Dr. Kiger reviewed NP Schaaf's December 2010 and June 2012 residual functional capacity questionnaires, noted they were consistent with the previously reviewed February 2010 questionnaire, and assigned them reduced weight as they also were "not consistent with treatment notes or the record as a whole." (AR 349-50.)
On August 30, 2012, NP Schaaf observed Plaintiff was in mild pain, had an irregular heart rhythm, a limping gait, used a cane for ambulation, and had pain with range of motion in his left knee, and refilled Plaintiff's Norco prescription for pain. (AR 375.) NP Schaaf noted Plaintiff's symptoms were "progressive and worsening" and his discomfort was "moderate in severity." (AR 374.) On September 27, 2012, NP Schaaf again observed a limping gait, use of a cane, and decreased range of motion with pain in Plaintiff's left knee. (AR 371.) On October 12, 2012, Dr. Krishnamoorthi Krishnamoorthi, M.D., noted Plaintiff was in mild pain, had a limping gait, and walked with use of a cane and refilled Plaintiff's Norco prescription. (AR 368.) On December 17, 2012, NP Schaaf noted Plaintiff was in mild pain and exhibited decreased range of motion with pain in his bilateral knees, and provided a refill of Norco. (AR 365.)
On March 16, 2013, PA Cormier observed Plaintiff walked with a slowed gait and complained of severe, rapidly worsening knee pain and stiffness. (AR 360.) PA Cormier noted Plaintiff had tried Hydrocodone with "some relief," had tried massage, diathermy, and meditation with "poor results," and had seen a chronic pain specialist with "mixed effectiveness." (AR 360.) On examination, Plaintiff had a slow gait and noted pain with range of motion in his back and knees. (AR 361.) PA Cormier provided a refill of Norco for pain and opined Plaintiff should avoid kneeling, squatting, and weight-bearing and should reconsider knee surgery. (AR 362.)
On April 6, 2013, Dr. Krishnamoorthi completed a residual functional capacity questionnaire. (AR 399-400.) Dr. Krishnamoorthi described Plaintiff's symptoms as "pain with active [range of motion] of his joints" and opined Plaintiff would constantly experience symptoms severe enough to interfere with his ability to attend and concentrate on simple work-related tasks. (AR 399.) Dr. Krishnamoorthi further opined Plaintiff could walk a half a city block, maximum, without rest or significant pain, could sit for five minutes at one time and for one hour total in an eight-hour day, and could stand or walk for five minutes at one time and for one hour total in an eight-hour day. (AR 399.) Dr. Krishnamoorthi opined Plaintiff would require the abilities to recline or lie down in excess of typical breaks, to shift positions at will, and to take unscheduled breaks throughout the workday. (AR 399.) Dr. Krishnamoorthi opined Plaintiff could only occasionally lift and carry lift less than ten pounds and was limited to using his hands, arms, and fingers for 70 percent of the workday. (AR 400.) Dr. Krishnamoorthi concluded that Plaintiff would likely be absent more than four days per month. (AR 400.)
B. Written Reports
1. Plaintiff's Work History Report
Plaintiff received his GED in January of 1985 (AR 143) and worked as a maintenance man and "bell-boy" from 1998 to 2003 (AR 138). His duties included picking up laundry, painting, and repairing damaged lighting fixtures and shades. (AR 138.) He lifted up to 100 pounds, frequently lifted less than ten pounds, walked and stood three hours in an eight-hour workday, and sat two hours in an eight-hour workday. (AR 138.) Plaintiff also has work experience as an industrial groundskeeper, Dictionary of Occupational Titles ("DOT") 406.684-014, performed as medium; as a "Hod carrier," DOT 869.687-026 (construction worker II), performed as very heavy; and as a construction worker I, DOT 869.664-014, performed as heavy. (AR 209.) // //
2. Plaintiff's Adult Function Reports
On January 31, 2012, Plaintiff and his wife completed an adult function report, noting that on an average day he spends most of the day lying down after waking up, and only gets up to eat breakfast, speak on the telephone, and go to the bathroom. (AR 152.) He is "in pain all day all night all the time" (sic). (AR 153.) He does not have difficulties with his personal care, but dresses slowly and has to "be careful" when bathing to avoid falling. (AR 153; 155.) He does not prepare his own meals, do chores, or do yardwork and he relies on his wife to remind him to take his medication and take care of his personal needs and grooming. (AR 154.) He does not socialize or visit with friends and family. (AR 156.)
Plaintiff has difficulty lifting, walking, squatting, bending, kneeling, standing, reaching, climbing stairs, seeing, completing tasks, and recalling. (AR 157.) He is unable to pay attention for long and cannot follow written or spoken instructions very well. (AR 157.) He was "told to get a cane by [his] doctor" and uses a cane "all the time," but also notes he was not prescribed a cane by a physician. (AR 158.)
On July 12, 2012, Plaintiff completed a second adult function report, noting he continues to spend most of the day lying down and gets up only to shower and shave, take his medication, sit down to eat meals or snacks, smoke a cigarette, or use the restroom. (AR 178.) He reports that it takes him longer to dress and bathe and that he has more difficulty "get[ting] up or down" from the toilet. (AR 179.) He continues to rely on his wife to remind him to shower and take his medication. (AR 180.) He does not cook for himself because he forgets and leaves the burner on and he does not go outside because he is afraid of falling. (AR 180-81.) He will occasionally talk to people on the phone or when they come to visit and he goes to church once a month. (AR 182.) He lists difficulties with lifting, walking, squatting, sitting, bending, kneeling, standing, climbing stairs, memory, completing tasks, concentrating, understanding, following instructions, and getting along with others. (AR 183.) He reports that he purchased a cane because his physician "told [him] to buy one because [he] ke[pt] grabbing on everything" to balance. (AR 184.) // //
3. Third-Party Adult Function Reports
On February 22, 2012, Plaintiff's cousin Dee-Dee Robles completed a third-party adult function report, noting Plaintiff is unable to "do anything . . . because of the pain he has [i]n h[i]s legs and back." (AR 160.) Ms. Robles noted that Plaintiff will re-wear clothing unless someone tells him to change, will not eat unless someone prepares the meal for him, and has difficulty lifting his legs to get in and out of the bathtub. (AR 161.) He needs reminders to take his medication and "doesn't do anything, for himself or anyone[,]" "[be]cause he's in pain." (AR 162.) Plaintiff is unable to go out alone because "he's stupid" and "he doesn't care anymore." (AR 163.) He does not shop, instead "people give him his stuff." (AR 163.) "Because of the pain, he hates everything [and] everybody," and spends most of his time alone at home, watching television. (AR 163-65.) Ms. Robles indicated that Plaintiff is limited in every category of abilities, except "seeing" (AR 165) and stated that Plaintiff "thinks the whole world is against him since he lost his son and his legs don't work anymore. He falls a lot [and] he can't be around a lot of people" (AR 167).
On July 13, 2012, Plaintiff's friend and former employer James Winchell completed a third-party adult function report, noting that he was forced to terminate Plaintiff's employment due to his bad knees. (AR 186-87.) He noted Plaintiff was limited in his ability to lift, squat, bend, stand, reach, walk, kneel, and climb stairs because "he has lost all strength in both knees." (AR 191.) Mr. Winchell noted Plaintiff can pay attention "through out (sic) the whole conversation" and follows both written and spoken instructions "very well." (AR 191.) He also reported seeing Plaintiff using crutches, a walker, a cane, and a wheelchair at various points of time. (AR 192.)
C. Hearing Testimony
1. Plaintiff's Testimony
Plaintiff testified he is married and lives with his spouse and two children. (AR 413-14; 417.) He last worked for Days Inn in 2004 as a maintenance man / "all-around handyman." (AR 414.) Plaintiff stopped working because his "legs were hurting [him] real bad" and has not worked since because his "knees are real bad and [his] feet hurt on the bottom." (AR 414-15.) Plaintiff also has arthritis pain in his hands, elbows, and legs. (AR 416.) He takes Norco, Hydrocodone, and other pain medication to treat his pain and Glucosamine, calcium, and Vitamin D for his arthritis. (AR 416.)
On a typical day, Plaintiff sits on his porch, eats meals, watches television, and "stay[s] pretty close to [his] bed" to take three or four naps lasting one and a half to two hours. (AR 417.) He occasionally goes shopping with his wife and is able to walk about fifteen minutes to go to his mailbox. (AR 417.) Plaintiff does not require assistance in bathing or dressing and has no trouble using his hands for pushing buttons. (AR 419; 421.) He does, however, have difficulty with his fingers "get[ting] stuck" about once a day, where he is unable to flex them. (AR 421.) When that happens, he has to rub his arms and hands for five to ten minutes until they relax. (AR 421.) He cannot stand very long, and while he doesn't have "very much" trouble sitting, his legs will start hurting and "go to sleep" unless he is able to "shake [his] legs out, get it going." (AR 417.) Plaintiff is most comfortable lying in bed, and spends six to eight hours laying down each day on his back. (AR 423-24.) He is unable to roll on his side because his knees will lock. (AR 424.) He had seizures when he was a child, but no longer takes medication for seizures and is unable to recall the last time he had a seizure. (AR 418-19.)
Plaintiff smokes a pack of cigarettes every three days, and has a history of heroin and cocaine use. (AR 420.) Plaintiff went to a rehabilitation program and has not used either in the past twenty years. (AR 420.) He continues to go to Narcotics Anonymous once a week for ongoing support. (AR 420-21.)
Plaintiff testified his treating physician sent him for a surgical consultation for a knee replacement but Plaintiff "told them I don't want to replace my knees right now, because they said it's only a ten-year period thing or whatever that the knee things last. So, I wanted to wait until I got a little older. And, besides that, I'm kinda scared too." (AR 415.)
2. Vocational Expert Testimony
The Vocational Expert ("VE") testified that Plaintiff had past relevant work as a construction worker, DOT 869.664-014, heavy, semi-skilled work with an SVP of 4, as a groundskeeper, DOT 405.684-014, medium, semi-skilled work with an SVP of 3, and as a counter attendant for a cafeteria, DOT 311.677-014, light, semi-skilled work with an SVP of 3. (AR 425.)
Specific Vocational Preparation ("SVP"), as defined in DOT, App. C, is the amount of lapsed time required by a typical worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a specific job-worker situation.
The ALJ asked the VE to consider an individual approaching advanced age, with a GED and Plaintiff's past relevant work, limited to lifting 50 pounds occasionally and 25 pounds frequently, able to stand and walk in combination for at least six hours in a workday, able to sit at least six hours in a workday, perform postural activities frequently, prohibited from climbing ladders, ropes, and scaffolds, prohibited from working at heights or around hazardous machinery, and limited to work involving simple instructions. (AR 426.) The VE testified such an individual would not be able to perform any of Plaintiff's past relevant work, but could perform other representative jobs such as a kitchen helper, DOT 318.687-010, medium, unskilled work with an SVP of 2; laundry worker, DOT 361.685-018, medium, unskilled work with an SVP of 2; and cleaner, DOT 919.687-014, medium, unskilled work with an SVP of 1. (AR 426.)
The ALJ then asked the VE to consider an individual of the same age, education, and vocational background, capable of lifting 15 pounds frequently and 25 pounds occasionally, capable of walking, standing, and sitting six hours in a workday, with the same non-exertional limitations as the first hypothetical but requiring "less than occasional contact" with coworkers and the public. (AR 427.) The VE testified that such a limitation would eliminate kitchen worker, but would not eliminate the occupations of laundry worker or cleaner. (AR 427.) The ALJ asked if the VE's testimony was consistent with the DOT and the VE testified that it was. (AR 427.)
Plaintiff's attorney then asked the VE whether an individual who was limited to sedentary-type work would have transferable skills for his past relevant work, and the VE testified he would not. (AR 427.) Plaintiff's attorney asked the VE if an individual who would miss three to four days of work each month on an ongoing and continuous basis would be able to sustain full-time work, and the VE testified that such a limitation would "totally eliminate all jobs in the national economy." (AR 427-28.) Plaintiff's attorney asked if an individual requiring extra breaks that totaled up to 50 percent of the day, on top of normally scheduled breaks, would be able to sustain full-time work, and the VE testified such a person could not work. (AR 428.) Plaintiff's attorney finally asked if any jobs existed for an individual needing to recline or lie down throughout the day in excess of normal breaks and lunch periods, and the VE testified no such jobs existed. (AR 428.)
D. Administrative Proceedings
On June 28, 2013, the ALJ issued a decision and determined Plaintiff was not disabled. (AR 19-33.) The ALJ found Plaintiff had severe impairments of degenerative disc disease of the lumbar spine, osteoarthritis, and obesity, but did not have an impairment or combination of impairments meeting or equaling a listed impairment. (AR 21-24.) The ALJ found Plaintiff retained the residual functional capacity ("RFC") to perform medium work as defined in 20 CFR § 416.967(c) except "he can lift 50 pounds occasionally, 25 pounds frequently. He can stand and walk in combination for at least six hours in an eight-hour workday, and sit at least six hours in a workday. He can perform postural activities frequently, but should not climb ladders, ropes or scaffolding, and should not work around heights or hazardous machines. He is limited to work involving simple instructions." (AR 24.)
Given this RFC, the ALJ found Plaintiff was unable to perform his past relevant work as a construction worker, Hod carrier, and groundskeeper, as Plaintiff had performed this work "at a more demanding exertional level than that which he is now capable of performing." (AR 32.) The ALJ found Plaintiff could perform other work, including representational occupations of kitchen helper, DOT 318.687-010; laundry worker, DOT 361.685-018; and cleaner, DOT 919.687-014. (AR 32-33.) The ALJ concluded Plaintiff was not disabled, as defined in the Social Security Act, from November 12, 2010, the date the application was filed, to the date of the decision. (AR 33.) This decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on October 30, 2014. (AR 6-8.)
E. Plaintiff's Complaint
On December 31, 2014, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. (Doc. 1.) Plaintiff argues the ALJ's RFC assessment was unsupported by the medical opinion evidence, the hypothetical posed to the VE was incomplete, and the ALJ erroneously discounted Plaintiff's credibility. (Doc. 17.)
III. SCOPE OF REVIEW
The ALJ's decision denying benefits "will be disturbed only if that decision is not supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must determine whether the Commissioner applied the proper legal standards and whether substantial evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
"Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court "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." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
IV. APPLICABLE LAW
An individual is considered disabled for purposes of disability benefits if he is unable to engage in any substantial, gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted, or can be expected to last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3) (A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or impairments must result from anatomical, physiological, or psychological abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
The regulations provide that the ALJ must undertake a specific five-step sequential analysis in the process of evaluating a disability. In Step 1, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, the ALJ must determine at Step 2 whether the claimant has a severe impairment or a combination of impairments significantly limiting her from performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, the ALJ moves to Step 3 and determines whether the claimant has a severe impairment or combination of impairments that meet or equal the requirements of the Listing of Impairments ("Listing"), 20 § 404, Subpart P, App. 1, and is therefore presumptively disabled. Id. §§ 404.1520(d), 416.920(d). If not, at Step 4 the ALJ must determine whether the claimant has sufficient RFC to perform her past work despite the impairment or various limitations. Id. §§ 404.1520(f), 416.920(f). If not, at Step 5, the burden shifts to the Commissioner to show that the claimant can perform other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920.
V. DISCUSSION
Plaintiff argues that the ALJ's residual functional capacity ("RFC") assessment was not supported by substantial evidence, the ALJ erroneously relied upon VE testimony based on an incomplete hypothetical, and the ALJ failed to provide legally sufficient reasons for discounting Plaintiff's credibility. (Doc. 17.)
A. The ALJ's Consideration of Plaintiff's Testimony
Plaintiff contends the ALJ failed to articulate clear and convincing reasons for discounting his statements regarding the severity and extent of his symptoms. (Doc. 17, pp. 16-20.) The Commissioner asserts the ALJ properly evaluated Plaintiff's testimony. (Doc. 18, pp. 7-12.)
In evaluating the credibility of a claimant's testimony regarding subjective pain, an ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged. Vasquez, 572 F.3d at 591. The claimant is not required to show that his impairment "could reasonably be expected to cause the severity of the symptom [he] has alleged; he need only show that it could reasonably have caused some degree of the symptom." Id. (quoting Lingenfelter, 504 F.3d at 1036). If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives "specific, clear and convincing reasons" for the rejection. Id.
The ALJ also may consider (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the claimant's daily activities. Tommasetti, 533 F.3d at 1041; see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); 20 C.F.R. §§ 404.1529, 416.929. "If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing." Tommasetti, 533 F.3d at 1039.
Here, the ALJ provided several reasons for finding Plaintiff less than fully credible. The ALJ concluded that Plaintiff's subjective pain testimony was inconsistent with the objective medical evidence and observations of treating medical professionals. (AR 28.) While the lack of objective medical evidence supporting Plaintiff's pain testimony cannot form the sole basis for discounting his allegations, it is clearly a factor the ALJ may consider in his credibility analysis. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ pointed to substantial medical evidence within the medical record, including contradictory clinical observations and notes by treating sources and examining physicians, to support his conclusion that Plaintiff's testimony was less than fully credible. The ALJ noted that Plaintiff
... denied neck or back pain on January 27, 2010[,] [and on] February 27, 2010, April 29, 2010, [and] July 8, 2010, [Plaintiff] denied back or neck pain. He reported back pain on September 7, 2010. On September 29, 2010, [Plaintiff]'s lumbar spine had normal range of motion, and was noted to be stable, but spasm was noted. He reported back pain on November 4, 2010. Range of motion was restricted, but his back was stable. Medication did help. [Plaintiff] reported back
pain on November 2, 2011. He said no imaging studies had been done. His lumbar spine was nontender. Range of motion was normal. The impression was that his lumbar spine was stable. He had normal tone, bulk and strength. X-rays were ordered. A lumbar spine x-ray dated November 22, 2011 was negative. On December 1, 2011, chart notes state that "x-rays of back do not show any structural abnormalities, so will taper [patient] off Vicodin, starting with this rx, #90; [patient] agrees/understands plan."(AR 27 (internal citations omitted).) The ALJ further observed that Plaintiff
. . . was in no distress on January 27, 2010, despite reporting 8/10 pain. He was in no acute distress on July 8, 2010. On September 7, 2010, he reported having terrible pain, but also said he was doing okay, and he was in no acute distress. On December 27, 2010, [Plaintiff] rated his pain as 8/10, but he was in no acute distress and said pain medication helped. His pain was 10/10 on April 4, 2011, yet he was in no acute distress. He reported 8/10 pain on April 22, 2011, but was in no acute distress and medications were simply refilled. On May 17, 2011, and July 8, 2011, he said he was doing well on pain medication without side effects. On December 1, 2011, [Plaintiff] said his pain was 10/10 without medication and 5-7/10 with it. He was in no distress.(AR 28 (internal citations omitted).)
Plaintiff contends the ALJ "blatantly ignore[d] the many objective observations of pain and decreased range of motion in [Plaintiff's] back and knees, difficult ambulating, and use of a cane[.]" (Doc. 17, p. 18.) However, a review of the medical evidence notes only mild impairments: an MRI of Plaintiff's right knee showed mild tricompartmental osteoarthritis with osteophyte formation, mild lateral patellar subluxation, and internal meniscal degenerations and an MRI of his left knee showed slightly less severe tricompartmental osteoarthritis with lateral patellar subluxation and minimal joint fluid. (AR 281-82; 283-84.) Radiological imaging of Plaintiff's lumbar spine showed no abnormalities. (AR 222.) Plaintiff was repeatedly observed to be in "mild" pain (see, e.g., AR 304; 307; 309-10; 368; 375), to have a normal gait, no knee joint instability, and normal strength, bulk, and tone (see, e.g., AR 27; 210; 247; 253; 403; 415), to be "doing well" on his medications (see, e.g., AR 233; 242), and his knee pain was considered "stable and nonprogressive" (see, e.g., AR 377-78). When Plaintiff did report high levels of pain, however, he was repeatedly observed not to be in any acute distress and his muscoskeletal findings were repeatedly observed to be "normal." (See, e.g., AR 218; 242-43; 244; 247; 253; 260; 264; 266; 279.) The ALJ properly pointed to the lack of objective medical evidence supporting Plaintiff's allegations of disabling pain, in part, in discounting Plaintiff's credibility. See Burch, 400 F.3d at 681; Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
The ALJ also noted that
. . . [o]n two occasions, treating doctors have indicated that the narcotic pain medication prescribed to [Plaintiff] was not necessary or [was] excessive. On November 2, 2011, he was told that he would get "no more narcotics[.]" On December 1, 2011, chart notes state that "x-rays of back do not show any structural abnormalities, so will taper [patient] off Vicodin, starting with this [prescription], #90; [patient] agrees/understands plan[.]"(AR 28 (internal citations omitted).) Plaintiff contends that the ALJ's summary of the record is "highly misleading and not wholly accurate[,]" because the ALJ noted that on two occasions "treating doctors" made these observation despite that only Dr. Magoon made "any statements expressing skepticism as to why [Plaintiff] was prescribed narcotics and he never explicitly indicated that the reason was because they were excessive or otherwise unnecessary." (Doc. 17, p. 19 (citing AR 219; 227).) The Court declines to parse the ALJ's phrasing as Plaintiff does, to hold that the ALJ meant that on two occasions, different treating physicians indicated Plaintiff's use of narcotic pain medications was unnecessary. The ALJ unambiguously cited the dates of treatment and the record citations where that treatment was recorded; it is clear the ALJ meant that on two different occasions, one of Plaintiff's treating physicians -- Dr. Magoon -- opined that Plaintiff's use of narcotic pain medications was unnecessary.
An ALJ's credibility finding may be based upon "ordinary techniques" of credibility evaluation, including inconsistent statements, Smolen, 80 F.3d at 1284, and this Court must affirm "inferences reasonably drawn from the record." Batson v. Comm'r Soc. Sec., 359 F.3d 1190, 1193 (9th Cir. 2004). Here, the ALJ acknowledged that Plaintiff sought and repeatedly used narcotic pain medication (see AR 24-32), but found it inconsistent with treating physician Dr. Magoon's opinion that Plaintiff's knee pain would be adequately addressed by Tylenol rather than narcotics and Dr. Magoon's treating record of beginning to taper Plaintiff off Vicodin as unnecessary. (AR 218-19; 402-03; see also AR 226-27 (assessing Plaintiff with chronic pain and lumbago and indicating he was unclear as to why Plaintiff was being prescribed chronic narcotics).) The ALJ's finding that Plaintiff's subjective pain testimony was inconsistent with his treating physician's opinion that narcotic pain medications were unnecessary to adequately address his pain was therefore based upon the proper legal standards. See Trisdale v. Astrue, 334 F. App'x 85, 87 (9th Cir. 2009) (noting lack of a prescription for strong medication is incompatible with finding of disability); Jeter v. Comm'r of Soc. Sec. Admin., 76 F. App'x 809, 811 (9th Cir. 2003) (same).
The ALJ also highlighted inconsistencies in Plaintiff's testimony, noting Plaintiff had reported inconsistent limitations in his reports to the agency and to the consultative examiners, and had inconsistently testified to his ability to sit for long periods of time. (AR 28-29.) Plaintiff contends "[t]he ALJ's misstatement of the reported activities in the function reports is primarily what causes the identified inconsistencies, not [Plaintiff's] actual reports." (Doc. 17, p. 16.) A review of the record, however, supports the ALJ's identification of inconsistencies in Plaintiff's testimony.
Plaintiff presented varying testimony as to his daily activities between January and July of 2012: reporting to the agency on January 31, 2012, that he spends most of the day lying down after waking up, only gets up to eat breakfast, speak on the telephone, or go to the bathroom, does not prepare his own meals, do chores, do yardwork, or go shopping, goes outside "once in a while," "never" spends time on the phone, and relies on his wife to remind him to "clean up" (AR 152-54); yet reporting to consultative examiner Dr. Wagner on March 19, 2012, that he engages in "light cooking and cleaning," shopping, walking for exercise, and performs his own activities of daily living "without assistance" (AR 286) and later to consultative examiner Dr. Dixit on March 26, 2012, that he "stays at home," is limited in his ability to perform household chores, and can dress and bathe himself (AR 291); then reporting to the agency on July 12, 2012, that he does not "move around very much at all," never cooks, never shops, never does household chores or yardwork, goes outside "once in a great while," relies on his wife to remind him to shower, occasionally talks on the phone and with visitors, and goes to church. (AR 178-82.) He testified at the hearing, however, that he "stay[s] pretty close to [his] bed" all day, occasionally goes shopping with his wife, and has no difficulty dressing (AR 417-21). Plaintiff reported to the agency on December 12, 2011, that he could not stand more than 10 minutes, sit more than 5 minutes, or lift more than 10 pounds at a time (AR 137), then testified at the hearing that he doesn't know how long he can stand but it is "[p]robably not very long" and he doesn't have "very much" trouble sitting but after a while his legs will "start hurting and they go to sleep on [him]," and reported, for the first time, that he experiences difficulty with his fingers "get[ting] stuck" about once a day (AR 417-421).
Plaintiff consistently reports far greater limitations to the agency than he does to the consultative examiners. Plaintiff contends such inconsistencies were "minor" and "inconsequential" and are insufficient to discredit his subjective testimony. (Doc, 17, pp. 16-18.) While these multiple, minor inconsistencies between Plaintiff's reported activities of daily living cited by the ALJ may not, in isolation, necessarily provide clear or convincing reasons for discrediting Plaintiff, as discussed above, the ALJ articulated several other specific reasons that, taken together, are sufficient to support his credibility assessment.
Finally, the ALJ also noted that
. . . [i]n a statement submitted to the [Social Security] Administration on December 12, 2011, [Plaintiff] denied side effects of medication. In a function report purportedly completed by [Plaintiff's counsel] on June 6, 2012, [Plaintiff] now reported drowsiness as a side effect of [his] medication. No such side effects have been reported to his physicians.(AR 28 (internal citations omitted).) As an ALJ may consider the side effect of a claimant's medication use in the credibility analysis, Social Security Ruling ("SSR") 96-7p, 1996 WL 374185, Plaintiff contends that the ALJ misstated the evidence (Doc. 17, p. 19). In a residual functional capacity assessment in February 2010, NP Schaaf noted Plaintiff experienced "drowsiness & fatigue" with narcotic medication, and in December 2010, NP Schaaf noted no side effects with medication. (AR 31.) In September 2011, Plaintiff told NP Schaaf that one kind of Norco made him drowsy and he requested a different formulation. (AR 228.) Then, in his statement to the agency in December 2011, Plaintiff reported taking no medications and therefore experiencing no side effects of medication (AR 142), and then in June 2012, reported taking medications for his stress and pain and experiencing drowsiness as a side effect of these medications (AR 173). Though Plaintiff is correct that there is some evidence in the record that Plaintiff did report experiencing drowsiness as a result of his medications, any error in the ALJ's credibility analysis on the basis of the side effects of Plaintiff's medication is harmless because the ALJ's credibility finding rested on several other grounds that, as discussed above, when taken together, provide clear and convincing reasons supported by substantial evidence in the record. Batson, 359 F.3d at 1197 (applying harmless error standard where one of the ALJ's several reasons supporting an adverse credibility finding was held invalid); Carmickle v. Comm'r of Soc. Sec. Admin., 553 F.3d 1155, 1162 (9th Cir. 2008) (an error is harmless where there "remains substantial evidence supporting the ALJ's conclusions on . . . credibility and the error does not negate the validity of the ALJ's ultimate [credibility] conclusion") (internal citation and quotations omitted) (alteration in original).
Social Security Rulings ("SSR") are final opinions and statements of policy by the Commissioner of Social Security, binding on all components of the Social Security Administration. 20 C.F.R. § 422.406(b)(1). They are "to be relied upon as precedent in determining cases where the facts are basically the same." Paulson v. Bowen, 836 F.2d 1249, 1252 n.2 (9th Cir. 1988).
In sum, the ALJ's reasons were properly supported by the record and sufficiently specific to allow the Court to conclude that the ALJ rejected the Plaintiff's testimony on permissible grounds and did not arbitrarily discredit Plaintiff's testimony.
B. The ALJ's Consideration of the Medical Evidence
Plaintiff contends the ALJ erred by adopting examining consultative physician Dr. Wagner's opinion despite that it was not consistent with the overall record, by failing to incorporate Plaintiff's use of a cane into the RFC assessment despite "numerous treatment evidence indicating he used one to ambulate[,]" and by failing to discuss the opinion of PA Cormier. (Doc. 14, pp. 12-15.) Defendant contends the ALJ properly evaluated the medical evidence and properly assessed Plaintiff's residual functional capacity. (Doc. 18, pp. 2-7.)
1. Dr. Wagner's Opinion Was Consistent with the Record
The ALJ accorded great weight to consultative physician Dr. Wagner's opinion that Plaintiff is capable of medium work, with limitations to stand and walk up to six hours in an eight hour day, sit without limitation, lift or carry 25 pounds frequently and 50 pounds occasionally, never climb or balance on ladders or scaffolds, and never work around heights or heavy machinery. (AR 29.) The ALJ noted Dr. Wagner also opined that Plaintiff's capacity for "very fine fingering" in his right hand "'might be slightly limited' by tremor" and that use of "a cane may be necessary for long distances[,]" but did not adopt Dr. Wagner's restrictions regarding fine fingering because no other medical provider had noted tremors and Plaintiff had 5/5 grip strength on examination. (AR 29.) Plaintiff contends the ALJ erred by finding Dr. Wagner's opinion consistent with the treatment evidence and objective findings of the record as a whole. He argues that the evidence demonstrates symptoms of pain and limitations going back to March 2010, physician recommendations for a right knee arthroscopic surgery in June 2010 and indications Plaintiff would eventually need a total knee replacement, observations of decreased mobility, pain, crepitus, and stiffness in his knees, decreased range of motion, tenderness, and pain in his lumbar back, and use of a cane. (Doc. 17, p. 12.) Plaintiff contends the ALJ failed "to explain how these numerous and consistent observations of limitations are consistent with a finding that [Plaintiff] is able to stand and walk six hours without use of a cane." (Doc. 17, pp. 12-13.)
Dr. Wagner observed Plaintiff was able to easily get up from a chair and walk a normal pace without assistance, carried a cane in his right hand but did not appear to lean on it heavily, sat comfortably through the entire history-taking part of the examination, was "very, very easily able to bend over at the waist and take off his shoes and put them back on," had 5/5 strength in all extremities and normal sensation, a negative straight leg raising test, had a normal gait and could walk on heels and toes, and had mild crepitus in his knees with the examination otherwise normal. (AR 29; 286-87.) Although Plaintiff reported using a cane "at times," he "appeared to be stable walking without the cane" at the examination. (AR 286.) The ALJ found these findings consistent with the overall record, which demonstrated minimal objective findings in imaging (see AR 25; 218 (x-ray of lumbar spine revealed no abnormalities); 281-84 (MRI studies of Plaintiff's bilateral knees demonstrating mild findings), Plaintiff's repeated election not to have arthroscopic surgery because he preferred to wait unless the pain became unbearable, because the surgery would be more beneficial when he was older and he was scared (see AR 25; 27; 210; 266; 402), Plaintiff's normal gait, range of motion, and presentation without use of a cane (see AR 25-27; 228-30; 231; 233; 260; 266; 270-71; 402-03), repeated appearance on examination in "no acute distress" despite contemporaneous allegations of serious pain (see AR 25-27; 218; 227-75; 279; 360-95; 402-03), and repeated assessments that Plaintiff was not a "fall risk" requiring use of an assistive device (see AR 31; 303; 306; 374; 380; 396).
Dr. Wagner's opinion was affirmed by state agency medical consultant Dr. Fast, who determined Plaintiff had the RFC to perform medium work with frequent postural movements. (AR 301.) Plaintiff contends that because Dr. Fast's opinion was formed in April 2012, and he lacked "nearly a year's worth of more recent records that showed fairly consistent observations of limping, use of a cane, and pain and decreased range of motion in the back and knees[,]" Dr. Fast's opinion cannot be relied upon to support Dr. Wagner's assessment. (Doc. 17, p. 13.) However, state agency medical consultant Dr. Kiger also reviewed the record in August 2012, and had the benefit of further records and functional capacity assessments from Plaintiff's treating nurse practitioner. (AR 347-48; 349-50.) Dr. Kiger affirmed Dr. Fast's opinion that a medium RFC was appropriate and specifically opined that there were "no new findings to support the necessity for a cane." (AR 347-48.)
Subsequent to Dr. Kiger's assessment, which affirmed Dr. Fast's opinion supporting Dr. Wagner's assessment, the only treating records are those of NP Schaaf, Dr. Krishnamoorthi, and PA Cormier. (See 30; 360; 365-75; 399-400.) These medical sources generally observed that Plaintiff complained of "mild" pain, had a "limping gait," presented using a cane, and exhibited decreased range of motion in his back and knees. (Id.) These are not new, significant findings appearing for the first time in the treating record. Therefore, the fact that Drs. Wagner and Fast did not review these redundant records is inapposite to whether Dr. Wagner's medium RFC assessment was supported by substantial evidence in the record, as discussed above. The ALJ properly assessed Dr. Wagner's medical opinion as consistent with and supported by the overall record.
2. The ALJ Did Not Err by Omitting Plaintiff's Subjective Use of a Cane in the RFC Assessment or in the Hypothetical Questions Posed to the VE
Plaintiff asserts the ALJ erred by disregarding Plaintiff's used of a cane "in the light of the high exertional demands required of medium level work[.]" (Doc. 17, p. 14.) Plaintiff notes he was repeatedly observed using a cane to ambulate, limping, and walking with a slow gait, Dr. Wagner specifically opined he may need a cane to walk long distances, and NP Schaaf explicitly opined he required a cane to ambulate and experienced pain with standing too long, and contends the ALJ's failure to make any findings as to whether Plaintiff would need to use a cane in the workplace and failure to provide any explanation for the omission of his use of a cane from the RFC was harmful error. (Doc. 17, p. 14.)
Defendant contends that "although [Plaintiff] may have used a cane at times, there was no evidence that it was medically necessary" and therefore "there was no need to include [Plaintiff]'s subjective use of a cane in his [RFC] finding or in the hypothetical questions to the [VE]." (Doc. 18, p. 6.)
Use of a medically-required hand-held assistive device is a nonexertional limitation that may significantly restrict a claimant's RFC and the occupational base, even if it not disabling per se. See, e.g., SSR 96-9p, 1996 WL 374185, at *7 ("[A]n individual who must use a hand-held assistive device to aid in walking or standing because of an impairment that affects one lower extremity (e.g., an unstable knee), or to reduce pain when walking, who is limited to sedentary work because of the impairment affecting the lower extremity, and who has no other functional limitations or restrictions may still have the ability to make an adjustment to sedentary work that exists in significant numbers. On the other hand, the occupational base for an individual who must use such a device for balance because of significant involvement of both lower extremities (e.g., because of a neurological impairment) may be significantly eroded").
SSR 96-9p provides that "[t]o find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information). The adjudicator must always consider the particular facts of a case." SSR 96-9p, 1996 WL 374185, at *7. See also Tripp v. Astrue, 489 F. App'x 951, 955 (7th Cir. 2012) (proof of the medical necessity of a cane "require[s] an unambiguous opinion from a physician stating the circumstances in which an assistive device is medically necessary"); Howze v. Barnhart, 53 F. App'x 218, 222 (3d Cir. 2002) (same).
Here, Plaintiff has not cited any medical evidence supporting the use of a cane. (See Doc. 17.) Though Plaintiff is correct that the record is replete with references to his use of a cane, those mentions are all traceable to Plaintiff's self-reports and to his medical sources' observations that he presented with an assistive device. There is no medical documentation establishing the need for an assistive device. (See AR 25-27; 228-30; 231; 233; 260; 266; 270-71; 402-03 (noting Plaintiff's normal gait, range of motion, and presentation without use of a cane); AR 31; 303; 306; 374; 380; 396 (repeated assessments that Plaintiff was not a "fall risk" requiring use of an assistive device).) Moreover, neither Plaintiff nor counsel discussed or argued about the use of a cane at the hearing. (See AR 411-29.)
Further, Plaintiff has admitted in adult function reports that though he uses a cane "all the time," he has never been prescribed one by a doctor. (AR 158 (January 2012 adult function report, noting he "was told to get a cane by [his] doctor" but admitting no physician had actually prescribed an assistive device); 184 (July 2012 adult function report, noting he bought a cane because his physician "told [him] to buy one because [he] ke[pt] grabbing on everything" to balance" but admitting no physician had actually prescribed an assistive device).) This Court's review of the medical record reveals that no acceptable medical source has opined that a cane is a medical necessity for Plaintiff. To the contrary, examining physician Dr. Wagner observed Plaintiff walked stably without use of a cane and opined Plaintiff could walk and stand for six hours out of an eight-hour day and can sit without restriction (AR 286) and consulting physician Dr. Kiger concluded there were no findings supporting the necessity for a cane (AR 347-48); see 20 C.F.R. §§ 404.1527(f)(2)(i) (state agency physicians are considered "highly qualified physicians who are also experts in Social Security disability evaluation"), 416.927(f) (2)(i) (same); see also SSR 96-6p, 1996 WL 374185.
The Court notes that NP Schaaf opined Plaintiff required use of a cane to ambulate; however, her opinion was properly discredited by the ALJ as both an unacceptable medical source and because her opinions were conclusory, contradictory, and inconsistent with her treatment notes. (AR 30-32.) Plaintiff does not contest that NP Schaaf's opinion was properly discredited. (See Doc. 17.) Therefore, there is no acceptable medical source in the record who has opined Plaintiff requires the use of an assistive device. --------
Plaintiff has also failed to cite any unambiguous medical opinion describing the circumstances for which the use of a cane would be needed pursuant to SSR 96-9p. (See Doc. 17.) The only credited physician to suggest any restriction was Dr. Wagner, who opined that Plaintiff may require use of a cane "for long distances." (AR 289.) Dr. Wagner's statement, however, is not an opinion on Plaintiff current functional limitations and is completely ambiguous as to Plaintiff's potential functional limitation in the ability to walk "for long distances." The ALJ was not required to accept and incorporate into his RFC assessment every potential functional limitation, only those unambiguous functional limitations for which substantial evidence existed in the record. Rounds v. Comm'r of Soc. Sec., 807 F.3d. 996, 1006 (9th Cir. 2015) (citing Carmickle, 533 F.3d at 1165) ("An ALJ may rationally rely on specific imperatives regarding a claimant's limitations, rather than recommendations").
As discussed above, no doctor ever indicated Plaintiff had a medical necessity to use an assistive device (see AR); Drs. Wagner and Kiger specifically noted Plaintiff did not need such a device (AR 286 (noting Plaintiff reported using a cane "at times" but "appeared to be stable walking without the cane" at the examination, was able to easily rise from his chair, sat comfortably, bent easily at the waist, and did not lean on the cane heavily despite that he carried it in his right hand); 347-48 (concluding based on the record there were "no new findings to support the necessity for a cane" and adopting a medium RFC); and neither Plaintiff nor counsel discussed or argued about the use of a cane at the hearing (AR 411-29). The medical record adequately establishes that Plaintiff's cane was not medically necessary. See, e.g., Verduzco v. Apfel, 188 F.3d 1087, 1088 (9th Cir. 1999) (ALJ did not err in rejecting plaintiff's allegation that he needed a cane because (1) "none of his doctors had ever indicated that he used or needed to use an assistive device in order to walk"; (2) two doctors specifically noted that the claimant did not need such a device; and (3) when asked for his driver's license during the hearing, plaintiff "stood up swiftly and took out his wallet from his rear pocket without effort and without apparent discomfort," despite walking slowly and using a cane during the hearing). See also Tripp, 489 F. App'x at 955 (absent "medical documentation establishing the need for a hand-held assistive device to aid in walking and standing and describing the circumstances for which it is needed" no limitation need be incorporated into the RFC); Martinez v. Astrue, 316 F. App'x 819, 826 (10th Cir. 2009) (same). The ALJ did not err by omitting from the RFC assessment an unsupported restriction to the use of or reliance upon an assistive device.
Plaintiff also contends the ALJ erred by failing to incorporate his use of a cane into the hypothetical question posed to the VE. (Doc. 17, p. 20-21.) As discussed above, the ALJ properly assessed Plaintiff's RFC without incorporating an unsupported restriction to the use of or reliance upon a cane. "Without objective medical evidence that [Plaintiff] needed a cane[,] and in light of the ALJ's findings with respect to [Plaintiff]'s lack of credibility, there was no reason to include [Plaintiff]'s subjective use of th[at] device[ ] in the hypothetical to the VE." Thomas v. Barnhart, 278 F.3d 947, 959-60 (9th Cir. 2002) (citing Copeland v. Bowen, 861 F.2d 536, 540-41 (9th Cir. 1988)); see also Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989) (holding that it is proper for an ALJ to limit a hypothetical to restrictions supported by substantial evidence in the record). The ALJ therefore did not err by relying on testimony the VE gave in response to hypotheticals that did not incorporate Plaintiff's subjective use of a cane.
3. The ALJ's Failure to Discuss PA Cormier's Opinion Was Inconsequential to the Ultimate Disability Finding and therefore Harmless
It is undisputed that the ALJ did not discuss PA Cormier's opinion that Plaintiff should avoid kneeling and squatting. (See AR 25-32.) Plaintiff contends this is harmful error because the ALJ included a limitation to "frequent postural" in his RFC assessment and PA Cormier's opined functional limitations were significantly "more extensive." (Doc. 17, p. 15.) Defendant suggests that "[i]n all likelihood, the ALJ did not see the recommendations as functional limitations" and asserts that regardless, the error was arguably harmless because Plaintiff would still be capable of performing the requirements of the jobs identified by the VE. (Doc. 18, p. 7.)
To reject the testimony of a medically acceptable treating source, the ALJ must provide specific, legitimate reasons based on substantial evidence in the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Because physician's assistants are defined as "other sources," 20 C.F.R. § 404.1513(d), they are not entitled to the same deference, see § 404.1527; SSR 06-03p, 2006 WL 2329939, and their testimony may be properly discounted if the ALJ "'gives reasons germane to each witness for doing so[,]'" see Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). Here, however, the ALJ did not provide germane reasons for discounting PA Cormier's opinion. (AR 25-32.) Therefore, in order to conduct a harmless error analysis, the Court must fully credit PA Cormier's opinion that Plaintiff is restricted from kneeling or squatting (AR 362; 379) and then determine whether the ALJ's error in not discussing PA Cormier's opinion was dispositive to the ultimate finding that Plaintiff was not disabled. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (where the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination). Here, even fully credited, PA Cormier's opinion was inconsequential to the determination that Plaintiff could perform the requirements of work existing in substantial numbers in the local economy, and, therefore, the ALJ's error in failing to discuss PA Cormier's opinion was harmless.
In assessing Plaintiff's RFC, the ALJ, in accordance with Social Security terminology, see, e.g., SSR 85-15, 1985 WL 56857, *7, used the term "crouch" rather than "squat." (AR 24.) However, this is inconsequential because the terms are essentially synonymous. Chavez v. Astrue, 699 F. Supp. 2d 1125, 1133 n.5 (C.D. Cal. 2009) (citing Merriam-Webster's Collegiate Dictionary, 1138 (10th ed. 2002) (defining "squat" as "to cause (oneself) to crouch or sit on the ground"); Filimoshyna v. Astrue, No. CIV S-08-2131-GGH, 2009 WL 3627946, *8 (E.D. Cal. Oct. 29, 2009) ("Squatting is most similar to the term 'crouching' as used in the [Social Security] rulings."); and Stewart v. Astrue, No. 08-5017-CV-REL-SSA, 2009 WL 537538, *18 (W.D. Mo. Mar. 4, 2009) ("'Squat'" means "'to sit in a low or crouching position with the legs drawn up closely beneath or in front of the body.'" (internal citation omitted))). Therefore, the relevant inquiry is whether PA Cormier's restrictions to no kneeling and no crouching (AR 367; 379) preclude Plaintiff from performing the requirements of the three representative occupations identified by the VE and relied upon by the ALJ in finding Plaintiff not disabled at Step 5.
The DOT description for the job of kitchen helper, DOT 318.687-010, does not require kneeling but does require frequent crouching. Plaintiff would therefore be unable to perform the requirements of work as a kitchen helper under a postural limitation to never squat. The DOT description for the job of cleaner, DOT 919.687-014, does not require crouching but does require occasional kneeling. Under a postural limitation to never kneel, Plaintiff would be unable to perform the requirements of work as a cleaner. However, the DOT description for the job of laundry worker, DOT 361.685-018, requires no kneeling and no crouching. Therefore, Plaintiff would be able to perform the requirements of work as a laundry worker. Because the VE testified that Plaintiff could perform one of 6,000 such jobs in the state of California (AR 33; 426), substantial evidence supports the ALJ's finding that Plaintiff was "not disabled." Thomas v. Barnhart, 278 F.3d 947, 960-61 (9th Cir. 2002) (finding 1,300 jobs in the state and 622,000 jobs in the national economy to be sufficient to support a nondisability determination); Moncada v. Chater, 60 F.3d 521, 524 (9th Cir. 1995) (finding 2,300 jobs in the county and 64,000 nationwide to be sufficient to support a nondisability determination); Barker v. Sec'y of Health & Human Servs., 882 F.2d 1474, 1478-79 (9th Cir. 1989) (citing with approval decisions finding less than 500 regional jobs "significant" for purposes of determining a plaintiff's residual functional capacity). The ALJ's error in failing to discuss PA Cormier's opined functional limitation as to Plaintiff's ability to kneel or squat was therefore harmless.
In sum, the ALJ did not err in omitting Plaintiff's subjective use of a cane from the RFC assessment or hypotheticals to the VE and the ALJ's error in failing to assess PA Cormier's opined functional limitations was harmless.
CONCLUSION
Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is based on proper legal standards. Accordingly, the Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Carolyn W. Colvin, Acting Commissioner of Social Security, and against Plaintiff Joe Preciliano Flores. IT IS SO ORDERED. Dated: May 10 , 2016
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE