Opinion
Case No. SACV 16-0981-JPR
07-28-2017
LAURA ANTOINETTE LASTER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her applications for Social Security disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). The parties consented to the jurisdiction of a U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed March 31, 2017, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed.
II. BACKGROUND
Plaintiff was born in 1971. (Administrative Record ("AR") 51.) She completed high school and "some" college (AR 51, 387) and worked as a caregiver and sales associate (AR 37, 52).
On October 3, 2011, Plaintiff filed for DIB and SSI, alleging that she had been unable to work since April 14, 2011 (AR 339, 346), because of migraines (AR 386). After her applications were denied initially and on reconsideration, she requested a hearing before an Administrative Law Judge. (AR 119-25, 126-32, 149-58, 159-68, 207-08.) A hearing was held on April 23, 2013, at which Plaintiff testified, as did a vocational expert and medical expert. (AR 46-80.) In a written decision issued May 14, 2013, the ALJ found Plaintiff not disabled. (AR 169-85.) Plaintiff requested review of the ALJ's decision, and on July 24, 2014, the Appeals Council granted review, vacated the decision, and remanded the case for further proceedings, instructing the ALJ to address Plaintiff's obesity and the new medical evidence submitted with the request for review, reevaluate the medical-opinion evidence, give further consideration to Plaintiff's maximum RFC, obtain additional evidence concerning Plaintiff's physical impairments as needed, and solicit new VE testimony if warranted. (AR 187-89.)
Although the transcript indicates that Plaintiff's representative at the hearing was an attorney (AR 46), the Appointment of Representative form she filled out indicates that he was not (AR 258).
A second hearing was held before a different ALJ on December 2, 2014, at which Plaintiff, who was represented by counsel, and a different medical expert and VE testified. (AR 81-111.) On January 22, 2015, the ALJ issued a written decision finding Plaintiff not disabled. (AR 20-45.) On February 6, 2015, Plaintiff requested review of that decision. (AR 29.) On April 8, 2016, the Appeals Council denied review. (AR 1-4.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, the claimant is not disabled and the claim must be denied. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient RFC to perform her past work; if so, she is not disabled and the claim must be denied. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id. If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 14, 2011, the alleged onset date. (AR 25.) At step two, he concluded that she had severe impairments of "atypical migraines, asthma, cervical degenerative disc disease, lumbar degenerative disc disease, obesity status post gastric bypass surgery, torn right medial meniscus[,] and status post arthroscopic surgery of the left knee." (AR 26.) At step three, he determined that her impairments did not meet or equal a listing. (Id.)
At step four, the ALJ found that Plaintiff had the RFC to perform a limited range of sedentary work:
The residual function capacity, or RFC, is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
[she] can lift and/or carry ten pounds occasionally, less than ten pounds frequently; [she] can stand or walk for two hours out of an eight-hour workday with normal breaks; [she] can sit for six hours out of an eight-hour workday with normal breaks; [she] can occasionally perform postural activities; [she] cannot crawl, kneel, crouch or climb ladders, ropes or scaffolds; [she] must avoid unprotected heights, excessive air pollution, fumes, vapors, dust and extremes in temperature changes; [she] cannot perform work above shoulder level bilaterally; [she] can occasionally push and/or pull bilaterally with the upper extremities; [she] can occasionally operate foot pedals with the bilateral lower extremities; [and she] has a sit/stand option.(AR 26-27.) The ALJ concluded that Plaintiff could not perform her past relevant work as a care provider or sales associate. (AR 37.) Based on the VE's testimony, he found that Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 37-39.) Accordingly, he found her not disabled. (AR 39.)
V. DISCUSSION
Plaintiff alleges that the ALJ erred by (1) rejecting the opinion of treating doctor Muhammad Sohel, a specialist in internal medicine, that her impairments or treatment would cause her to "miss work more than 3 times per month" (J. Stip. at 5-6, 9-10) and (2) finding that she was capable of performing representative sedentary jobs despite the VE's testimony that a person with her RFC and a sit/stand option requiring her to stand half the day would not be able to perform any work (id. at 11-13, 16).
Although Plaintiff frames the issue as whether "the ALJ failed to provide clear and convincing reasons to reject the level of absenteeism assessed by [Plaintiff's] treating physicians" (J. Stip. at 5), the only treating-doctor opinion she discusses is that of Dr. Sohel (see id. at 5-6, 9-10).
A. The ALJ Did Not Err in Evaluating Dr. Sohel's Opinion Regarding Plaintiff's Absenteeism
Plaintiff argues that the ALJ failed to properly assess a probative medical-source opinion; specifically, he erred in rejecting the opinion of Dr. Sohel, one of her treating doctors, that she would "miss work more than 3 times per month due to the combination of her impairments." (Id. at 5-6, 9-10; see also AR 833.)
1. Applicable law
If a treating physician's opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record, it should be given controlling weight. §§ 404.1527(c)(2), 416.927(c)(2). If a treating physician's opinion is not given controlling weight, its weight is determined by length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, amount of evidence supporting the opinion, consistency with the record as a whole, the doctor's area of specialization, and other factors. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, an ALJ's decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ's decision. See Lowry v. Astrue, 474 F. App'x 801, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ's decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) ("We apply the rules that were in effect at the time the Commissioner's decision became final."); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) ("42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking"). Accordingly, citations to 20 C.F.R. §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017.
The ALJ may disregard a treating physician's opinion whether or not that opinion is contradicted. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) ("For example, the ALJ need not accept a treating physician's opinion which is 'brief and conclusionary in form with little in the way of clinical findings to support [its] conclusion.'" (citation omitted)). When a treating physician's opinion is not contradicted by other medical-opinion evidence, however, it may be rejected only for "clear and convincing" reasons. Id.; see Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). When it is contradicted, the ALJ must provide only "specific and legitimate reasons" for discounting it. Id. (citing Lester, 81 F.3d at 830-31). Furthermore, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). An ALJ need not recite "magic words" to reject a physician's opinion or a portion of it; the court may draw "specific and legitimate inferences" from the ALJ's opinion. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). "[I]n interpreting the evidence and developing the record, the ALJ does not need to 'discuss every piece of evidence.'" Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
2. Relevant background
On March 14, 2013, Dr. Sohel, who evaluated and treated Plaintiff from April 2011 to March 2013, completed a "Multiple Impairment Questionnaire" for her Social Security case. (AR 827-34.) The handwritten questionnaire is largely illegible, but Dr. Sohel clearly opined that Plaintiff could sit for only one hour and stand or walk for one hour or less in an eight-hour workday (AR 829); could not sit continuously and would have to "get up and move around" every 15 minutes for "15-30" minutes at a time (AR 829-30); could not stand or walk continuously (AR 830); would have to take unscheduled breaks, lasting between 30 and 60 minutes each, more than 10 times a day (AR 832); would have "good days" and "bad days" (AR 833); and would likely be absent from work as a result of her impairments or treatment "[m]ore than three times a month" (id.). When asked on the form for the "basis" of his "conclusions," he wrote, "D/W patient and her symptomology." (AR 832.)
"D/W" presumably stands for "discussion with." See http://www.abbreviations.com/serp.php?st=D%2FW (listing "Discussed With" as most likely meaning of "D/W" in "Medical/Oncology" field).
At the April 23, 2013 hearing, Plaintiff testified that she suffered from migraines "[o]nce or twice a week," each lasting "for about a day and a half." (AR 56.) Even after taking prescribed medication, her migraines would cause her to sleep for "almost four hours" during the day, vomit, and become sensitive to light and noise. (AR 56-57.) She testified that she had no difficulty taking care of her two children, then aged five and seven years, but that they were "kind of — almost, like, independent." (AR 64-65.) She attended church "every Sunday," sitting for "two hours" without difficulty "with the support of [a] pillow." (AR 68.)
Dr. Gerald Weingarten, a specialist in internal medicine who testified as a medical expert at Plaintiff's 2013 hearing, opined that Plaintiff "might be off work from time to time because of her headaches." (AR 74-76, 250.) When asked by the ALJ whether an individual who "can sit six hours in an eight-hour day; can occasionally lift 50 pounds, frequently lift 25 pounds; [and] can occasionally climb ladders, scaffolds, and ropes" would be able to do Plaintiff's past relevant work, the VE testified, "yes." (AR 77.) When asked whether such an individual with the additional limitation of having to "miss three or more days per month from work" could perform "any jobs in the labor market," the VE testified that such an individual "cannot go back to any type of work." (AR 77-78.)
In July 2013, Plaintiff started receiving Botox injections for her migraines. (AR 865.) She continued to receive a course of Botox injections every one or two months, although she missed some appointments. (AR 859-64.) In July 2014, she reported that the frequency of her headaches had reduced to one or two migraines a week, but she continued to have "significant headaches" even with the Botox. (AR 859-60.)
At her second hearing, on December 2, 2014, Plaintiff testified that she last attempted to work in 2013. (AR 89.) She worked for one week at a telemarketer job; during that week she missed three days of work because of her migraines. (Id.) She testified that her headaches "were worse before [she] got the Botox injections," which she received "every six months." (AR 89-90.) Before the Botox treatments, her migraines debilitated her to the point that she couldn't do anything and had "to go to bed." (Id.) Since the Botox treatments began, Plaintiff had completely debilitating headaches only "once or twice" a year. (AR 90.) Although the Botox injections had reduced the frequency of her completely debilitating migraines (id.), she still had headaches every week "where it's aching above the eyebrows kind of thing"; they were "manageable to where [she was] still actually able to function," but she didn't do "certain things" to "trigger it to where it's . . . full-blown" (AR 92). She testified that in order to prevent her "regular" headaches from becoming "full-blown" migraines she would "just not [do] a whole lot of functioning." (AR 97.) But she did take her daughter to school and watch her one-year-old grandson every day. (AR 92.) She said that "there's not much that [she] do[es]" with her grandson, however, because he is "not so heavy . . . a light kid," and she watched him "for, like, less than eight hours" a day. (AR 93.)
The record does not indicate whether Plaintiff's one-week job in 2013 was before or after she began receiving the Botox injections.
When asked by Plaintiff's counsel whether she would have "any limitations with regard to the ability to maintain attendance [or] be at work every day as a result of the migraines," Dr. Arnold Ostrow, a specialist in internal medicine who testified as a medical expert at the 2014 hearing, opined that she would. (AR 88.) Dr. Ostrow testified that he could not "quantify" that limitation, but he agreed with counsel's statement that "it would be expected of someone that has migraines that they would potentially either have to leave late, leave early, or miss work on occasion." (Id.) In response to counsel's questioning, the VE testified that an individual with limitations that would otherwise allow her to perform work would not be able to sustain any work if she "is going to be absent more than three days of work per month on a consistent and regular basis." (AR 105-07.)
3. Analysis
As an initial matter, Plaintiff does not contest the ALJ's assessment of any medical opinion - other than Dr. Sohel's opinion about her absenteeism — or her RFC. She also does not contest the ALJ's finding that her subjective complaints were "less than fully credible." (AR 37.) The ALJ found that "[t]he credibility of [Plaintiff's] allegations regarding the severity of her symptoms and limitations is diminished because those allegations are greater than expected in light of the objective evidence of record," some of her activities of daily living were "inconsistent" with "an incapacitating or debilitating condition," and she had "not generally received the type of medical treatment one would expect for a totally disabled individual." (AR 29.) In finding that her subjective symptom allegations lacked credibility, the ALJ extensively discussed Plaintiff's descriptions of disabling headaches: he noted the allegations she made in a Headache Questionnaire (id.), discussed the subjective symptom allegations she made to her doctors from 2011 to 2014 (AR 30), and detailed her treatment history and diagnostic testing (AR 29-35).
As explained herein, Dr. Sohel's opinion that Plaintiff would be absent from work "[m]ore than three times a month" because of her "impairments or treatment" (AR 833) was inconsistent with other evidence in the record, including Plaintiff's alleged daily activities. But even though Dr. Ostrow specifically said that he could not "quantify" Plaintiff's absenteeism (AR 88), Dr. Sohel's opinion was not directly contradicted by another doctor's. Thus, the ALJ was likely required to give a clear and convincing reason for rejecting it. See Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). He did so.
Before addressing the medical-opinion evidence, the ALJ specifically stated that he had "considered opinion evidence in accordance with the requirements of 20 CFR 404.1527 and 416.927," which list the factors an ALJ must consider "in deciding the weight . . . give[n] to any medical opinion." (AR 27.) The ALJ summarized Dr. Sohel's Multiple Impairment Questionnaire and noted his opinion that Plaintiff would "miss more than three days of work a month." (AR 33.) He gave "little weight" to Dr. Sohel's opinion overall because "[t]he severity of the limitations assessed by Dr. Sohel are inconsistent with [Plaintiff]'s admitted level of daily activities." (AR 36.) The ALJ noted that Plaintiff
indicated she spent time babysitting her one year old grandson for almost eight hours a day. Additionally, [Plaintiff] reported she attended weekly two hour church services and was able to sit during the service with the use of a pillow to support her back. [Her] statements are inconsistent with Dr. Sohel's assessed limitations, including his opinion that [Plaintiff] could stand or walk for less than one hour a day.(Id.)
Indeed, Plaintiff's ability to sit for two hours during a church service is inconsistent with Dr. Sohel's opinion that she could sit for only one hour, could not sit continuously, and would have to "get up and move around" every 15 minutes for "15- 30" minutes at a time. (AR 829-30.) And her ability to care for a one-year-old child — who presumably could not yet walk, talk, use the toilet, prepare food, or do anything independently — for almost eight hours a day every day and take her daughter to school on a regular schedule — both of which she suggested she did without assistance (see AR 92-93 (discussing things her older children helped with, not including caring for grandson or taking daughter to school)) — is inconsistent with Dr. Sohel's extreme opinion that she would have to take between five and 10 hours of "unscheduled breaks" each day — "more than 10" breaks a day, lasting "30 minutes to 1 hour" each. (AR 832.) The ALJ permissibly discounted Dr. Sohel's overall opinion because it was inconsistent with and directly contradicted by Plaintiff's alleged daily activities. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999) (finding that inconsistency between treating physician's opinion and claimant's daily activities, which included childcare, was permissible reason to discount opinion); cf. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ permissibly rejected claimant's allegations of totally disabling pain as "undermined by her own testimony about her daily activities," including "attending to the needs of her two young children").
Plaintiff argues that the opinion that she would "need to miss work 3 times a month" is not inconsistent with the daily activities listed by the ALJ and thus the ALJ did not reject that portion of Dr. Sohel's opinion. (J. Stip at 6.) But the ALJ need not recite "magic words" to reject an opinion; the court may draw "specific and legitimate inferences" from the ALJ's opinion as a whole. Magallanes, 881 F.2d at 755; Howard, 341 F.3d at 1012. The ALJ found that Dr. Sohel's assessed limitations were inconsistent with Plaintiff's "admitted level of daily activities." (AR 36.) He specifically rejected Dr. Sohel's opinion that Plaintiff "could stand or walk for less than one hour a day" and noted that she admitted she was "able to sit" for two hours at church, contrary to Dr. Sohel's opinion that she could sit for only an hour, and only with a break every 15 minutes during which she had to move around. (Id.) It is reasonable to infer that in rejecting Dr. Sohel's "assessed limitations," the ALJ also rejected his opinion that "as a result of" those limitations Plaintiff would be absent from work more than three times a month. Magallanes, 881 F.2d at 755; Howard, 341 F.3d at 1012.
Further, the record shows that Plaintiff visited Dr. Sohel only seven times in two years, canceled or failed to show up to five other appointments, and didn't see Dr. Sohel at all from March 2012 to March 2013. (See AR 563 (Apr. 4, 2011 appointment), 564 (Apr. 5, 2011 appointment), 562 (canceled Apr. 27, 2011 and May 11, 2011 appointments; attended May 17, 2011 appointment), 561 (Nov. 2, 2011 appointment), 560 (Jan. 16, 2012 appointment), 559 (Mar. 9, 2012 appointment), 836 (indicating "n/s," presumably "no show," for June 14, 2012 and Dec. 4, 2012 appointments; canceled Jan. 23, 2013 appointment; attended Mar. 14, 2013 appointment).) The ALJ explicitly stated that he had considered the factors set out in §§ 404.1527 and 416.927 for all the medical-opinion evidence, such as length of the treatment relationship, frequency of examination, nature and extent of the treatment relationship, and amount of evidence supporting the opinion. (AR 27.) Seven total visits in two years with a one-year gap indicates an infrequent and nonextensive treatment relationship. Cf. Treviso v. Berryhill, ___ F.3d ___, No. 15-16277, 2017 WL 2925434, at *7-9 (9th Cir. July 10, 2017) (ALJ erred in giving "little weight" to treating doctor's uncontradicted opinion when treating doctor saw claimant "at least 22" times in three and a half years, "consulted with claimant extensively," and "repeatedly noted . . . chronic lumbago, making his assessment of her back pain and her attendant physical limitations wholly consistent with his treatment notes and course of treatment").
Although Plaintiff testified that her headaches in fact caused her to miss three days of work in one week at her last job (AR 89) and that despite the Botox injections she still had headaches every week as to which she had to do "certain things" to avoid triggering a "full-blown" migraine (AR 92), including "just not [doing] a whole lot of functioning" (AR 97), the ALJ specifically found that her allegations regarding the severity of her symptoms were not credible (AR 29-30), a finding Plaintiff does not contest. Indeed, a treating doctor's reliance on a claimant's incredible subjective complaints is a legally sufficient basis to give that doctor's opinion limited weight. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) ("Because the present record supports the ALJ in discounting [claimant's] credibility . . . he was free to disregard [treating physician's] opinion, which was premised on her subjective complaints."); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("An ALJ may reject a treating physician's opinion if it is based to a large extent on a claimant's self-reports that have been properly discounted as incredible." (citation omitted)); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (finding that ALJ properly disregarded physician's opinion when premised on claimant's subjective complaints, which ALJ had already discounted). Here, Dr. Sohel specifically said that his findings that Plaintiff had extreme limitations were based at least in part on her subjective statements to him. (See AR 832.) Thus, no other evidence in the record demonstrated that Plaintiff would miss three or more days of work a month. See §§ 404.1527 and 416.927.
The medical experts who testified at Plaintiff's hearings both noted that her headaches might cause her to miss work, although neither gave an opinion as to how frequently. (AR 76, 88.) Dr. Ostrow specifically said that he could not "quantify" it. (AR 88.) And Dr. Weingarten so testified before Plaintiff began her Botox injections, which greatly reduced the strength and frequency of her headaches. (AR 74-76, 90.)
In its July 24, 2014 order remanding the first ALJ's decision, the Appeals Council found that that ALJ's reason for giving little weight to Dr. Sohel's opinion — that "there [wa]s no objective evidence to support the extremely severe level of impairments and function limitations" — needed further explanation because Dr. Sohel's opinion was "relatively consistent" with the medical evidence and "the only other examining source opinions in the record." (AR 187.) The Appeals Council identified "EMGs/NCVs that demonstrated radiculopathy and neuropathy," "Exhibit 8F . . . [which] notes moderate and severe tenderness and positive straight leg raising on the left," "Exhibit 10F, p. 7-9 . . . [which] notes antalgic gait, sensory deficits, motor deficits, severe tenderness, positive physical exam tests, and positive bilateral straight leg raising," and "Exhibit 15F." (Id.) The Appeals Council noted that the first ALJ did "not specify the weight assigned" to chiropractor Scott Rink's opinions in Exhibit 10F. (Id.)
On remand, the ALJ did not reject Dr. Sohel's opinion outright: rather, he gave "little weight" to it. In his January 22, 2015 decision, the ALJ addressed each of the Appeals Council's concerns. The ALJ "generously considered" Plaintiff's complaints of "decreased strength" and limited her to "less than [a] full range of sedentary work." (AR 35.) He gave "little weight" to the opinion of chiropractor Rink in Exhibit 10F because it was not from an acceptable medical source and was inconsistent with the objective medical evidence. (AR 36.) He gave "some weight" to the opinion of Plaintiff's chiropractor Negin Rameshni in Exhibit 15F because it was "inconsistent with the objective evidence as a whole." (AR 36.) Plaintiff does not contest the ALJ's evaluation of the opinions of chiropractors Rink and Rameshni. The ALJ credited those portions of Dr. Sohel's opinion that were consistent with the record, as identified by the Appeals Council. In doing so, he implicitly rejected those portions of Dr. Sohel's opinion that were inconsistent with the objective medical evidence. Indeed, Plaintiff has not identified, nor does the record reveal, any objective evidence that supports Dr. Sohel's opinion that Plaintiff would be excessively absent from work because of the combination of her conditions or her treatment for them, particularly given the improvement in her headaches since she began Botox. See Batson, 359 F.3d at 1195 (ALJ may discredit treating physicians' opinions that are "unsupported by the record as a whole").
The ALJ gave clear and convincing reasons for rejecting Dr. Sohel's opinion that Plaintiff would miss work "more than three times per month" because of her impairments or treatment. Thus, remand is not warranted.
B. The ALJ Properly Relied on the VE's Testimony
Plaintiff contends that the VE's testimony demonstrated that she could not perform any work "consistent with" her RFC. (J. Stip. at 11-13, 16.) She argues that the "sit/stand" option in her RFC (AR 27) should be interpreted to mean that she had "to sit for about half the day and stand for about half the day" (J. Stip. at 11). Because the VE testified that an individual with Plaintiff's RFC who had to sit half the day and stand half the day would not be able to perform sedentary or any other work, Plaintiff argues, the VE's testimony established that she was disabled. (Id. at 11-12.) Plaintiff argues alternatively that the ALJ failed to adequately define her "sit/stand option" and that remand is required to "develop the record in regards to how much sitting and standing [she] would need." (Id. at 12.) For the reasons discussed below, remand is not warranted on this basis.
1. Relevant background
The ALJ presented to the VE a hypothetical person with Plaintiff's education, training, and work experience with the following limitations:
[she can] stand and walk with normal breaks for a total of two of an eight-hour day, sit normal breaks for a total of six of an eight-hour day; the postural limitations are occasional; no crawling, kneeling, crouching, or climbing ladders, ropes, or scaffolds; no unprotected heights; no excessive air pollution, fumes, vapors, dusts, or extremes of temperature changes, hot or cold; no work above shoulder level bilaterally; and occasionally push and pull bilaterally with the upper extremities; occasionally for foot pedals bilaterally lower extremities . . . occasionally lift and carry 10 pounds, frequently lift and carry 10 pounds, . . . [and] a sit/stand option.(AR 104-05.) The VE testified that such a person would not be able to perform Plaintiff's past relevant work; she would be able to perform the jobs of "telephone quotation clerk," DOT 237.367-046, 1991 WL 672194, and "pari-mutuel ticket checker," DOT 219.587-010, 1991 WL 671989, however, which are both unskilled, sedentary-work jobs. (AR 105.) The VE clarified that those jobs "would accommodate [Plaintiff's RFC] as long as the standing or walking part of that optional [sic] doesn't - does not exceed two-hour parameters of sedentary work." (Id.) Plaintiff's counsel confirmed with the VE that "with the sit/stand option, since it wasn't really defined, that as long as the standard work doesn't exceed two hours, then those jobs would be performable." (AR 108.)
"Standard" is presumably supposed to be "standing," as the VE had testified. (AR 105.)
Plaintiff's representative further presented a hypothetical individual to the VE with the same limitations as those described by the ALJ but who also had to "alternate positions every 20 to 30 minutes - for 20 to 30 minutes at a time, so essentially, they're sitting and standing for half of the day." (Id.) The VE testified that such an additional restriction would "take [her] out of sedentary work," and no jobs would be available "with the other aspects of the hypothetical." (Id.) The ALJ asked the VE whether his testimony was consistent with the DOT and its companion publications; the VE testified that it was. (Id.)
2. Applicable law
To ascertain the requirements of occupations as generally performed in the national economy, the ALJ may rely on VE testimony or information from the DOT. SSR 00-4P, 2000 WL 1898704, at *2 (Dec. 4, 2000) (at steps four and five, SSA relies "primarily on the DOT . . . for information about the requirements of work in the national economy" and "may also use VEs . . . at these steps to resolve complex vocational issues"); SSR 82-61, 1982 WL 31387, at *2 (Jan. 1, 1982) ("The [DOT] descriptions can be relied upon — for jobs that are listed in the DOT — to define the job as it is usually performed in the national economy." (emphasis in original)).
When a VE provides evidence at step four or five about the requirements of a job, the ALJ has a responsibility to ask about "any possible conflict" between that evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4; Massachi v. Astrue, 486 F.3d 1149, 1152-54 (9th Cir. 2007) (holding that application of SSR 00-4p is mandatory). When a hypothetical includes all the claimant's credible functional limitations, an ALJ is generally entitled to rely upon the VE's response to it. Thomas, 278 F.3d at 956; see also Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) ("A VE's recognized expertise provides the necessary foundation for his or her testimony.").
Social Security Ruling 83-12 discusses a claimant's need to "[a]lternate [s]itting and [s]tanding":
In some disability claims, the medical facts lead to an assessment of RFC which is compatible with the performance of either sedentary or light work except that the person must alternate periods of sitting and standing. The individual may be able to sit for a time, but must then get up and stand or walk for awhile before returning to sitting. Such an individual is not functionally capable of doing either the prolonged sitting contemplated in the definition of sedentary work (and for the relatively few light jobs which are performed primarily in a seated position) or the prolonged standing or walking contemplated for most light work.SSR 83-12, 1983 WL 31253, at *4 (1983). The ruling recognizes that "some jobs in the national economy — typically professional and managerial ones" — allow an individual to sit or stand "with a degree of choice"; but "most jobs have ongoing work processes which demand that a worker be in a certain place or posture for at least a certain length of time to accomplish a certain task." Id. "Unskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will." Id. When an "unusual limitation of ability to sit or stand" exists, the ALJ should consult a VE "to clarify the implications for the occupational base." Id.
3. Analysis
Plaintiff argues that the sit/stand option in her RFC is "an option that the individual would be able to chose [sic] for themselves throughout the day"; in Plaintiff's case, she would allegedly need to stand for "20-30 minute intervals" throughout the day, resulting in her standing for "more than 2 hours a day." (J. Stip. at 11-12.) When asked by Plaintiff's representative whether an individual limited to standing and walking for two hours in an eight-hour day with a sit/stand option requiring her to "sit[] and stand[] for half of the day" could perform any work, the VE testified that such an individual could not. (AR 108.) Plaintiff argues that the VE's testimony thus "established disability." (J. Stip. at 12.)
As an initial matter, Plaintiff does not argue that a conflict existed between the VE's testimony and the DOT; indeed, the ALJ asked the VE whether any conflict existed and the VE confirmed that it did not. Instead, Plaintiff argues that the ALJ erred in finding her capable of performing the representative sedentary jobs because the VE testified that a person who had to sit for four hours and stand for four hours as part of a sit/stand option would not be able to perform those or any other jobs, and Plaintiff allegedly fits that description. (Id.)
The Ninth Circuit has not expressly addressed whether a conflict exists between the DOT and a sit/stand option, cf. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (noting that "when a claimant must alternate periods of sitting and standing, the ALJ is directed to consult a vocational expert," but remanding on other bases), and unpublished decisions go each way, compare Dewey v. Colvin, 650 F. App'x 512, 514 (9th Cir. 2016) (finding no conflict between sit/stand option and DOT because "the DOT is silent on whether the jobs in question allow for a sit/stand option"), with Buckner-Larkin v. Astrue, 450 F. App'x 626, 628-29 (9th Cir. 2011) (finding that "conflict" between at-will sit/stand option and DOT was adequately addressed by VE based on VE's own research and experience).
Plaintiff mischaracterizes the nature of her sit/stand option. As Defendant points out, "Plaintiff's attorney asked the VE a confusing question because no sedentary occupation" allows for "standing half the workday," in that "sedentary work, by definition, requires at most occasional standing." (J. Stip. at 15); see §§ 404.1567(a), 416.967(a) (defining sedentary work). Indeed, Plaintiff's RFC, which she does not contest, states that she is able to "stand or walk" for only two hours in an eight-hour workday. (AR 26.) It is not surprising that when asked, the VE testified that a person limited to two hours of standing or walking in an eight-hour workday would be unable to perform work if that person was also required to "stand[] half of the day." (AR 108.)
Although the ALJ did not quantify in Plaintiff's RFC "how much sitting and standing" the sit/stand option allowed or required (see J. Stip. at 12), he specifically limited her to two hours of standing or walking a day (AR 26). Moreover, as previously addressed, he specifically and appropriately gave little weight to Dr. Sohel's opinion — the only such one in the record — that Plaintiff would essentially have to stand or walk for half the day. (AR 36; see AR 829-30.) The Social Security regulations anticipate that an individual otherwise able to perform sedentary work would need to "sit for a time" and "get up and stand or walk for awhile before returning to sitting." SSR 83-12, 1983 WL 31253, at *4. When an "unusual limitation of ability to sit or stand" exists, the Regulations require the ALJ to consult a VE "to clarify the implications for the occupational base." Id. Here, the ALJ consulted the VE and presented a hypothetical individual who could stand for only two hours in an eight-hour workday and who also required a "sit/stand option." (AR 105.) The VE clarified that such an individual could perform representative sedentary occupations "as long as the standing or walking part" of the sit/stand option "doesn't exceed two-hour[s]." (Id.) The ALJ affirmed that it did not. (Id.) The sit/stand option as understood by both the ALJ and the VE was not one that required Plaintiff to "stand[] for about half the day" (see J. Stip. at 11); it was clear that both the ALJ and the VE understood the option as allowing Plaintiff to "sit for a time" and "get up and stand or walk for awhile before returning to sitting," but with a total amount of standing not to exceed two hours each day, within Plaintiff's assessed RFC. See SSR 83-12, 1983 WL 31253, at *4. The VE's specialized knowledge and expertise formed the necessary foundation to support his testimony that such a sit/stand option did not preclude work as a telephone quotation clerk or a parimutuel ticket checker. See Bayliss, 427 F.3d at 1218.
VI. CONCLUSION
Consistent with the foregoing and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. DATED: July 28, 2017
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge