Opinion
Case No. CV 09-4443-OP.
January 21, 2010
MEMORANDUM OPINION; ORDER
The Court now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS").
Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.)
As the Court advised the parties in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
I. DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as grounds for reversal and/or remand are as follows:1) Whether the Administrative Law Judge's ("ALJ") decision conforms to Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), as directed by the Appeals Council;
2) Whether the ALJ properly considered the medical evidence, the opinions of record, and the Vocational Expert's ("VE") testimony; and
As these first two issues are closely related, the Court will consider them together.
3) Whether the ALJ properly considered Plaintiff's testimony. (JS at 6.)
II. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971);Desrosiers v. Sec'y of Health Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
III. DISCUSSION
A. Whether the Decision Conforms to Chavez and Whether the ALJ Properly Considered the Evidence of Record, Including the VE Testimony .
1. The Chavez Presumption .
The principles of res judicata apply to administrative decisions. However, the doctrine is not as rigidly applied to administrative proceedings as it is to judicial proceedings.Chavez, 844 F.2d at 693; see also Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). Social Security Acquiescence Ruling ("SSR") 97-4(9), adopting Chavez, applies to cases involving a subsequent disability claim with an unadjudicated period arising under the same title of the Social Security Act as a prior claim on which there has been a final administrative decision that the claimant is not disabled. SSR 97-4(9), 1997 WL 742758. A previous final determination of nondisability creates a presumption of continuing nondisability with respect to any subsequent unadjudicated period of alleged disability. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. Sec'y of Health and Human Servs., 700 F.2d 566, 568-69 (9th Cir. 1983). However, the presumption may be overcome by a showing of "changed circumstances," such as new and material changes to the claimant's residual functional capacity ("RFC"), age, education, or work experience. Lester, 81 F.3d at 827-28; see also Chavez, 844 F.2d at 693; Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lyle, 700 F.2d at 568 n. 2.
In order to show "changed circumstances," the evidence must establish that the claimant suffers from an impairment that indicates a greater disability. Chavez, 844 F.2d at 693. Changed circumstances include a change in age category, an increase in the severity of the claimant's impairment(s), the alleged existence of an impairment not previously considered, or a change in the criteria for determining disability. SSR 97-4(9), 1997 WL 742758, at *3. Accordingly, res judicata does not apply when the claimant raises an issue not considered in the previous decision, such as the existence of a new impairment, or demonstrates an increase in the severity of an impairment, either one of which adversely affects his RFC. Lester, 81 F.3d at 827 ("[n]ew or more severe existing impairments that do not adversely affect the claimant's RFC, do not constitute a greater disability."); see also SSR 97-4(9), 1997 WL 742758, at *2 ("where the final decision by the ALJ on the prior claim, which found the claimant not disabled, contained findings of the claimant's residual functional capacity, education, and work experience, SSA may not make different findings in adjudicating the subsequent disability claim unless there is new and material evidence relating to the claimant's residual functional capacity, education or work experience").
Following the Ninth Circuit's ruling in Chavez, the Social Security Administration ("SSA") adopted SSR 97-4(9) to explain how the SSA will apply Chavez within the Ninth Circuit. The ruling applies "only to cases involving a subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior claim on which there has been a final decision by an ALJ or the Appeals Council that the claimant is not disabled." SSR 97-4(9), 1997 WL 742758, at *3. The ruling directed adjudicators to follow a two-step inquiry. Id. First, adjudicators must apply a presumption of continuing non-disability. A "claimant may rebut this presumption by showing a `changed circumstance' affecting the issue of disability with respect to the unadjudicated period." Id. Second, if the claimant rebuts the presumption, adjudicators must give effect to certain findings "contained in the final decision by an ALJ or the Appeals Council on the prior claim, when adjudicating the subsequent claim," including the findings of a claimant's RFC, education, or work experience. Id. "Adjudicators must adopt such a finding from the final decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding." Id. 2. The Decisions . a. 2001 Decision .
On July 30, 1999, Plaintiff filed a prior claim for benefits. On June 29, 2001, the ALJ issued a decision ("2001 Decision"), finding that Plaintiff suffered from a combination of musculoskeletal (Kienbock's disease affecting his right wrist) and pulmonary impairments that were severe. (AR at 48.) The ALJ found an RFC to perform the demands of light exertional work, lifting and carrying twenty pounds occasionally, ten pounds frequently; standing and walking up to six hours in an eight-hour day; sitting for six hours in an eight-hour day; no frequent, continuous, or repetitive movement or use of the dominant right hand, wrist, or fingers; and no significant exposure to heavy concentrations of air pollutants. (Id. at 52.) On June 29, 2001, in a final decision, the ALJ found Plaintiff could perform his past relevant work as a security guard and was not disabled. (Id.) This is the operative final decision for purposes of theChavez analysis.
b. 2007 Decision .
In 2004, Plaintiff again applied for benefits, and on October 25, 2006, a hearing was held on the merits. (Id. at 303-18.) On February 6, 2007, the ALJ issued a decision ("2007 Decision"), citing to Chavez, finding that Plaintiff suffered from severe impairments consisting of musculoskeletal impairments, possible pulmonary impairment, and, as of January 11, 2005, cervical spine stenosis. (Id. at 19.) The ALJ found Plaintiff had the RFC to perform "a generous range" of light exertional work, lifting and carrying twenty pounds occasionally, ten pounds frequently; standing and walking or sitting about six hours in an eight-hour workday; unlimited pushing and/or pulling except as limited by the light weight lifting and carrying limitation; could frequently climb, balance, stoop, kneel, crouch, or crawl; was limited to frequent reaching in all directions, including handling (gross manipulation), fingering (fine manipulation), or feeling with the upper right extremity; and should avoid concentrated exposure to fumes, odors, dusts, gases or poor ventilation. (Id. at 20.)
The ALJ found Plaintiff could perform his past relevant work as a railroad car inspector and was not disabled. (Id. at 23.) The ALJ noted that Plaintiff held the position of railroad car inspector from 1989 to 1995, and the position of security guard between 1985 and 1989. At the time of the 2001 Decision, therefore, he stated that the security guard position was properly considered "past relevant work." (Id.) At the time of the 2007 Decision, however, that job was more than fifteen years in the past, and it was the railroad car inspector position that qualified as "past relevant work." (Id.)
Plaintiff alternatively reported that he had performed this work from 1990 through 1997. (AR at 328.)
Both positions as generally performed constitute light work under the Dictionary of Occupational Titles ("DOT"). (AR at 23.)
c. Stipulated Remand and Appeals Council Order .
After the Appeals Council denied Plaintiff's request for review of the 2007 Decision, he filed a civil action in this Court, entitled Smith-Scruggs v. Astrue, Docket No. CV 07-4496-OP. The parties stipulated to a remand of that action. (Case No. CV 07-4496-OP, Dkt. No. 17.)
In accordance with the Court's order on remand, on April 28, 2008, the Appeals Council remanded the case to the ALJ. (AR at 344-48.) In its order of remand, the Appeals Council noted that the ALJ had found that Plaintiff had not provided "evidence of changed circumstances to suggest a more restricted residual functional capacity assessment than in the prior adverse Administrative Law Judge decision of June 29, 2001." (Id. at 347 (citing id. at 17).)
The Appeals Council directed the ALJ to (1) obtain additional evidence concerning Plaintiff's cervical spinal stenosis and possible pulmonary impairment, including, if warranted and available, consultative orthopedic and internal medicine examinations and medical source statements about what Plaintiff can still do despite his impairments; (2) give further consideration to Plaintiff's RFC, and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations; (3) consider Chavez in assessing Plaintiff's RFC and past relevant work, and "explain the changed circumstances from the 2001 decision to overcome theChavez presumption"; and (4) obtain evidence from a vocational expert to clarify the assessed limitations on the claimant's occupational base. (Id.)
See also Discussion, infra, Part III.B (discussing the ALJ's credibility finding).
d. 2009 Decision .
On February 25, 2009, the ALJ conducted a hearing on remand. (Id. at 354-80.) On May 14, 2009, the ALJ issued his decision ("2009 Decision"). (Id. at 319-30.) He specifically incorporated the 2007 Decision "as the decision on remand as supplemented herein." (Id. at 323.) The ALJ now found the Plaintiff had the severe impairments of cervical strain and lumbosacral strain and retained the RFC to perform the demands of medium exertion work at all relevant times. (Id. at 325.) He again concluded that Plaintiff could perform his past relevant work as a railroad car inspector, as generally performed, which the Department of Occupational Titles describes as semi-skilled and light exertional. (Id. at 328-29.)
The ALJ acknowledged that as Plaintiff described performing his prior work, the work was heavy. (AR at 328.)
The ALJ also made an alternative step five determination of Plaintiff's ability to do other work based on vocational expert testimony. The VE was asked to assume "an individual with a light residual functional capacity assessment as described by Dr. Taylor-Holmes, a State agency review physician." (Id. at 329 (citing id. at 480-85).) The VE testified that given the "manipulative limitations and the requirement to use a cane for long distances or uneven terrain," limitations presented by Dr. Taylor-Holmes' assessment, Plaintiff could not perform his work as railroad car inspector even as generally performed, but still could perform the requirements of thousands of light exertional jobs such as cleaner, housekeeper, packager, charge account clerk, ticket worker, or surveillance monitor. (Id. at 373.) On cross-examination, Plaintiff's counsel asked the VE to include a limitation of occasional "looking down," and then occasional use of the right hand (without the "looking down" limitation). (Id. at 377.) The VE testified that with the limitation of looking down, only the work of charge account clerk or ticket worker remained, and there would be "very few" such positions available. (Id.) With the limitation of occasional use of the right hand (without the looking down limitation), Plaintiff could not perform work as a cleaner, housekeeper, hand packager, charge account clerk, ticket worker, or surveillance monitor. (Id.) The ALJ found the limitations suggested by Plaintiff's counsel were unsupported by the examinations and findings of record. (Id. at 330.) He determined Plaintiff was not disabled. This civil action followed.
3. Chavez Presumption .
Plaintiff contends that the "important findings" in the 2001 Decision relate to the "presence of Keinbock's [sic] Disease and the resulting limitation to less than frequent use of the right dominant hand." (JS at 6.) He claims that the ALJ's failure to mention the Kienbock's disease in the 2009 Decision, or to mention the prior limitation (from the 2001 Decision) in Plaintiff's ability to manipulate with the dominant right hand, violates Chavez. (Id. at 7.)
Preliminarily, the ALJ's most recent re-review was circumscribed by the Appeals Council remand order to consideration of Plaintiff's cervical spine stenosis and COPD. In the 2009 Decision, the ALJ specifically incorporated the 2007 Decision which he considered to be "the decision on remand as supplemented herein." (AR at 323.)
The Appeals Council order specifically stated:
The Administrative Law Judge noted that the security guard job was performed more than 15 years prior to this current adjudication. Consistent with . . . Chavez v. Bowen . . . and Acquiescence Ruling 97-4, the Administrative Law Judge must explain the changed circumstances to overcome the Chavez presumption. . . . [¶] Upon remand the Administrative Law Judge will: . . . [c]onsider Chavez v. Bowen . . . in assessing the claimant's . . . past relevant work.
(Id. at 347.)
It is clear from the Appeals Council remand order, that its order to consider Chavez was at least in part a reaction to the change found by the ALJ in Plaintiff's past relevant work. Thus, pursuant to Chavez, once Plaintiff alleged the acknowledged "changed circumstance" of cervical stenosis, the ALJ was required to adopt the prior 2001 Decision finding regarding work experience unless there was new and material evidence relating to that finding. In his 2009 Decision, the ALJ properly considered Plaintiff's application and work history report, as well as earnings records, to find that his work as a railroad car inspector was the most recent relevant work for purposes of this later decision. (Id. at 23, 328.) There was no Chavez error in making this change to the prior work experience finding.
The Appeals Council order also implied that the ALJ should consider the additional evidence obtained relating to Plaintiff's cervical stenosis and possible pulmonary impairments to determine whether that evidence constituted "new and material evidence" relating to the 2001 Decision's RFC finding, which must otherwise be adopted:
Upon remand the Administrative Law Judge will: . . . [1] Obtain additional evidence concerning the claimant's cervical spinal stenosis and possibly pulmonary impairment . . . [; 2] Give further consideration to the claimant's maximum residual functional capacity . . . [; and 3 c]onsider Chavez v. Bowen . . . in assessing the claimant's residual functional capacity. . . .
(Id. at 347.)
Because Plaintiff rebutted the Chavez presumption by showing the "changed circumstance" of a new impairment of spinal stenosis, the prior RFC of light work with lifting and carrying twenty pounds occasionally, ten pounds frequently; standing and walking up to six hours in an eight-hour day; sitting for six hours in an eight-hour day; no frequent, continuous, or repetitive movement or use of the dominant right hand, wrist, or fingers; and no significant exposure to heavy concentrations of air pollutants, must be adopted unless there is new and material evidence relating to those findings such that a more restricted RFC is warranted. SSR 97-4(9), 1997 WL 742758.
4. Medical Records .
The ALJ reviewed all of the new and material evidence and found no reason to reject the RFC assessment done by Dr. Sophon, the consultative examiner and orthopedic specialist, conducted on September 28, 2007. (AR at 327.) Dr. Sophon reviewed medical imaging of the cervical spine, reviewed Plaintiff's history of surgery for Kienbock's disease, reviewed his smoking and social history, took his physical measurements, and administered a variety of tests, the results of which she found to be generally within normal limits. (Id. (citing 444-48).) The exception was an apparent reduced grip strength on both the left and right hands. (Id. at 445.) She diagnosed cervical sprain and lumbosacral strain, and noted restriction of motion of the cervical and lumbar spine, and a normal neurological examination. (Id. at 448.) She opined that Plaintiff was able to sit, stand and/or walk six hours in an eight-hour workday with no other limitations. (Id. at 327.) In her opinion, Dr. Sophon acknowledged Plaintiff's surgery for Kienbock's disease, yet made no mention of the grip strength findings, and nevertheless concluded that Plaintiff could lift up to fifty pounds occasionally and twenty-five pounds frequently. (Id. at 448.) Dr. Sophon also never mentioned Plaintiff's use of or need for a cane.
An evaluation conducted on October 14, 2008, by Dr. Eriks, a Board certified internist, also found Plaintiff had a reduced grip strength, but noted "questionable cooperation." (Id. at 542.) Dr. Eriks nevertheless concluded that Plaintiff had a normal grip, normal gross and fine motor in both hands and all fingers, and a full range of motion in both wrists. (Id. at 543-44.) Although Plaintiff criticizes Dr. Eriks for failing to consider the Kienbock's disease (JS at 9), Dr. Eriks noted that Plaintiff previously had surgery on his right wrist and indicated that the testing she conducted found nothing out of the normal range. (AR at 542.) Dr. Eriks also noted that Plaintiff uses a cane for ambulation "and this is likely necessary." (Id. at 544.)
As acknowledged by Defendant, however, the conclusions on the last page of Dr. Eriks' report clearly reference another person (see id. at 545 (inserting the name and social security number of a different individual). After this insert, the record states: "IMPRESSION: Claimant has an obese body habitus. He complains of no pain with the exception of mild occasional pain in his left heel, which could possibly be plantar fasciitis. . . ." (Id.) Then, in the immediately following "MEDICAL SOURCE STATEMENT," Dr. Eriks goes on to state that pursuant to her examination, the "claimant has no restrictions in the areas of lifting, carrying, standing, walking, or sitting. No special limitations in standing, walking, or sitting. No postural, manipulative, visual, communicative or environmental limitations." (Id.) This conclusion is completely contradictory to Dr. Eriks' prior acknowledgment that Plaintiff uses a cane for ambulation and that the cane is necessary. (See id. at 544.) Thus, it is also likely that Dr. Eriks' Medical Source Statement conclusions do not actually refer to Plaintiff.
In adopting Dr. Sophon's opinion, however, the ALJ specifically noted that Dr. Sophon's opinion was "more restrictive tha[n] Dr. Eriks['] opinion who found . . . that the claimant had no restrictions in the areas of lifting, carrying, standing, walking, or sitting, and no special limitation in standing, walking, or sitting." (Id. at 327 (citing id. at 545).) It appears, therefore, that in deciding to adopt Dr. Sophon's "less restrictive" opinion, the ALJ relied, at least in part, on the wrongly attributed conclusions of Dr. Eriks as corroboration for his RFC finding of unrestricted medium work.
Medium work requires lifting up to fifty pounds occasionally, twenty pounds frequently, and an ability to stand and/or walk for virtually the entire day. 20 C.F.R. §§ 404.1567, 416.967; Hajek v. Shalala, 30 F.3d 89, 92 (8th Cir. 1994) (medium work as elaborated in SSR 83-10 requires an ability to do "prolonged walking," equivalent to about six hours of an eight-hour workday in order to meet the requirements of frequent (between one-third and two-thirds of an eight-hour workday) lifting or carrying of objects weighing up to twenty-five pounds).
The fact is, therefore, that Dr. Sophon is the only physician who found Plaintiff capable of the full unrestricted range of medium work. In July 2004, Dr. Spellman, who conducted a record review pursuant to Chavez, found Plaintiff's RFC to be consistent with the June 29, 2001, RFC. (Id. at 142.) He found that Plaintiff could lift twenty pounds occasionally, ten pounds frequently, and was limited to less than constant reaching, handling, fingering, and feeling with his right hand. (Id. at 144-46.) On June 3, 2005, Dr. Broasky reviewed all of the evidence in the file and affirmed Dr. Spellman's assessment as written. (Id. at 150.) On October 11, 2007, State agency reviewing physician, Dr. Naiman, evaluated Plaintiff and the record and found that he could lift twenty pounds occasionally, ten pounds frequently, and was limited to frequent reaching, handling, fingering, and feeling. (Id. at 468.) He concluded:
But see discussion regarding Dr. Naiman's findings.
Adjudicated under Chavez Ruling Case Processing. There does not appear to be major overall significant changes as compared to the ALJ description of symptoms and findings. . . . This RFC does not represent either the [Medical Source Statement of Dr. Sophon] or my professional judgment and independent assessment but rather the RFC (Finding 5) as of the ALJ decision in file [the 2007 Decision].
That RFC was for "a generous range of light work, lifting and/or carrying twenty pounds occasionally, 10 pounds frequently; standing and/or walking, or sitting about six hours in an eight-hour work day[,] with unlimited pushing and/or pulling, other than as shown for lifting and/or carrying. The claimant may frequently climb, balance, stoop, kneel, crouch or crawl. With his upper right extremity he is limited to frequent reaching in all directions, including overhead, handling (gross manipulation), fingering (fine maniipulation), or feeling. The claimant should avoid concentrate[d] exposure to fumes, odors, dusts, gases, or poor ventilation." (AR at 20.)
(Id. at 467.) In his accompanying report, however, despite the limitations he had noted on lifting (id. at 464), his acknowledgment that Plaintiff was a candidate for cervical surgery (id. at 461 (citing April 4, 2006, neurosurgery consultation report)), the fact that Plaintiff used a cane for ambulation and with prolonged walking his legs wobble and weaken (id), and despite Dr. Sophon's own findings of decreased bilateral grips in both hands, and decreased range of motion in the cervical and lumbar spines (id.), Dr. Naiman inexplicably concluded that there were no unresolved inconsistencies in the record and "[b]ased on the above, with considerable weight given to the CE physician's [Dr. Sophon's] assessment, it appears as though a limitation to medium level activities would not be inappropriate." (Id. at 462.)
On December 11, 2007, State agency reviewing physician, Dr. Taylor-Holmes, specifically found Dr. Sophon's RFC for medium work "inappropriate," stating that Plaintiff "should avoid moderate (501b) lifting due to 4/5 motor in [upper extremities] and prophylactic protection of cervical cord prior to anticipated fusion." (Id. at 485.) She noted that Plaintiff needed a cane for uneven terrain and long distances. (Id. at 481.) She agreed with the ALJ's 2007 Decision finding a light RFC, with the additional postural precautions of only occasional flexion or extension of the neck, occasional over the shoulder level lift/carry, and frequent at or below shoulder level lift/carry. (Id.)
Treating physician records also show continuing wrist and neck/back pain and treatment. Plaintiff was prescribed Tylenol with codeine for wrist pain on April 21, 2004. (Id. at 513.) At that time, he complained of right arm pain, was unable to extend his arm up, had mild edema in the elbow, and generally complained of right wrist pain status post surgery. (Id.) Plaintiff was hospitalized from January 11, 2005, through January 19, 2005, complaining initially of numbness to his lower extremities and fingertips. (See id. at 192.) On discharge, the orthopedist, Dr. Spitalieri, diagnosed "acute stenosis" in the cervical region and recommended surgery; Plaintiff wished to proceed. (Id. at 217.) Moreover, the "option of no treatment was discussed and discard[ed as] not practical in light of the patient's condition." (Id.) On March 20, 2006, Dr. Wong wrote a letter noting that he had been treating Plaintiff for chronic neck and low back pain and that it was recommended he undergo surgery for the cervical spondylitic myelopathy. (Id. at 35.) On April 4, 2006, Dr. Hoshek and an unnamed doctor wrote a consultation note to Dr. Wong, stating that Plaintiff needed a cane to ambulate, and diagnosing cervical stenosis and spondylitic myelopathy. (Id. at 443.) The note further indicated that Plaintiff's gait was weak even with the cane and his tandem gate was abnormal with some swaying. (Id.) In August 2007, Nurse Practitioner Valcore, summarized Plaintiff's history, physical exam, relevant investigations, and "Dr. Warner's overall impression and plan." (Id. at 432-33.) She noted that the physical examination showed slightly decreased sensation to pinprick in the upper extremities, and that Dr. Warner's impression was of spinal stenosis with myelopathy and paresthesias (as well as diabetes, hypertension, and nicotine abuse.). (Id. at 432.) That record, like many others, reflected that Plaintiff is a candidate for cervical surgery. (Id. at 433;see also id. at 442.)
The second page of this letter appears to be missing.
In his 2007 Decision, the ALJ specifically found that Plaintiff had a severe musculoskeletal impairment (i.e., the right wrist problem) and limited him to frequent reaching, handling, fingering, or feeling. (Id. at 20.) His RFC assessment in the 2009 Decision, completely disregarded this prior finding (which had also been a primary issue in the 2001 Decision), and provided no explanation of the change (other than the discussed unwarranted reliance on Dr. Sophon's and Dr. Eriks' opinions).
5. Analysis .
After reviewing all of the above, the Court agrees that the presumption of continuing nondisability was rebutted by the new diagnosis of cervical stenosis. The Court also finds, however, that new and material evidence was admitted, sufficient to further restrict the 2001 Decision RFC finding and support a finding of disability.
Substantial evidence does not support the ALJ's adoption of the unrestricted medium work level RFC suggested by Dr. Sophon. While normally a consulting examining physician's report itself may be substantial evidence (see Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)), the Court notes that the report is not supported by any other record evidence, including evidence from treating physicians Drs. Spitalieri, Wong, Hoshek, and Warner and, in fact, is flatly rejected by one other state agency reviewer. The ALJ did not state any reasons for rejecting the opinions of these treating physicians. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (if the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record); Magallanes v. Bowen, 881 F.2d 643, 751 (9th Cir. 1989); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Moreover, to the extent the ALJ relied on Dr. Eriks' erroneous conclusion as additional evidence supporting the medium exertional work level, that, too, was error.
In fact, in the 2007 Decision, the ALJ specifically relied on Dr. Hoshek's diagnosis of cervical spondylitic myelopathy and cervical stenosis in determining the existence of these impairments. (AR at 19, 21-22.) The ALJ concluded that Dr. Hoshek's limitations were compatible with the assessed RFC of a "generous range of light work," and with the State agency opinions then in the record (i.e., Dr. Spellman's opinion). (Id. at 22.)
The Court agrees with the Commissioner that the ALJ properly rejected the opinions of Dr. Hutton and Dr. Dehgani.
As noted, however, the ALJ, in the alternative, made a step five RFC finding based on the limitations suggested by Dr. Taylor-Holmes. (AR at 330.) The ALJ did not, however, specifically state the limitations for the record. Instead, he asked the VE to review the limitations on pages two through six of Dr. Taylor-Holmes report. (Id. at 372.)
The limitation at issue, of occasional flexing/extension of the neck appears on page three of that report, typed in under section C and further mentioned again in the Additional Comments section on "Page 8" of the report. (AR at 482, 485).
The VE noted that the limitations described work "at the light range of work activity," and testified that there were numerous unskilled or entry level jobs that Plaintiff could perform even with those limitations. (Id. at 372-374.) He specifically stated that with the "manipulative limitations and the requirement to use a cane for long distances or uneven terrain," Plaintiff would not be able to perform his past work even as generally performed. (Id. at 373.) He stated that Plaintiff could perform unskilled or entry level jobs such as housekeeper and hand packager, with over 5,000 such positions available in the region (Id.) He also noted various unskilled clerical positions available in numbers in excess of 2,000 in the region, such as charge account clerk, ticket worker, and surveillance monitor, which Plaintiff could perform given the limitations suggested by Dr. Taylor-Holmes. (Id. at 374.)
Presumably, when the VE told the ALJ there were significant numbers of jobs available in the region that Plaintiff could perform even with the limitations stated by Dr. Taylor-Holmes, this included the limitation indicated by Dr. Taylor-Holmes of only occasional flexing/extension of the neck. However, when Plaintiff's counsel then specifically asked the VE whether there would be any reduction in availability of work if "the person can only occasionally look down," the VE replied that only the jobs of ticket worker and charge account clerk would "not necessarily require" looking down more than occasionally. (Id. at 375.) He stated that he "believe[d] there are jobs that would be performable on an occasional basis primarily at entertaining facilities." (Id. at 376.) He also admitted that the DOT would actually describe those jobs as requiring frequent looking down but that he believed there were a subset of those jobs where only occasional looking down would be required. (Id.) When pressed by counsel to provide the remaining number of such jobs, given the approximate total of 2,000 in the region, the VE stated, "Well, if we . . . take the DOT at face value [that the positions require more than occasional looking down], then we'd virtually eliminate the total occupational base of those types of jobs." (Id. at 377.) Counsel asked: "So there would be very few . . . jobs with that limitation?" and the VE responded, "Yes." (Id. (emphasis added).)
The VE offered no opinion as to the number of jobs outside Southern California. See 42 U.S.C. § 423(d)(2)(A) (1995) ("Work which exists in the national economy" means work which exists in significant numbers either in the region the claimant lives or in several regions of the country).
Looking down is the same as flexing of the neck. See, e.g., Khounesavatdy v. Astrue, 549 F. Supp. 2d 1218, 1228 (E.D. Cal. 2008). See also http://www.einspine.com, defining neck flexion as "[t]he action (and position) of bending the head forward (chin to chest)." Thus, this limitation should have been considered by the VE when the ALJ initially posed the hypothetical. Apparently, however, given the VE's varying response, it was not.
Appellate decisions in this circuit "ha[ve] never clearly established the minimum number of jobs necessary to constitute a `significant number.'" Barker v. Sec'y of Health and Human Servs., 882 F.2d 1474, 1478-1479 (9th Cir. 1989). In Barker, the court found that 2,466 relevant jobs were available in the region and that this number was "significant." Id. The court also observed, in dicta, that even 1,266 jobs would be "within the parameters of `significant numbers'" found in cases from other circuits and district courts within the Ninth Circuit. Id. at 1479. Although cases cited in Barker suggest that a few hundred jobs may constitute a "significant" number, those cases do not mandate a particular finding in Plaintiff's case. In those cases, unlike the present case, the VEs identified unequivocally, and with specificity, the numbers (or range of numbers) of jobs available. The record in those cases reflects unambiguous evidence of the number of jobs available and provides a clear, meaningful record for review.
In this case, by contrast, the VE's testimony does not unequivocally establish that any of the light unskilled jobs he mentioned were available in the local region for someone who could only occasionally flex/extend the neck. He merely acknowledged that the DOT would "virtually eliminate" all these jobs with the limitation of occasional looking down and that it was his "belief" that "very few" such jobs would remain for someone with that limitation. He provided no information on which he based this "belief," or as to what he meant by "very few," and the ALJ did not further inquire. The Court finds that on its face, "very few" is not indicative that such positions for someone with Plaintiff's impairments are available in "significant numbers" in the region. Accordingly, the Administration has not met its step five burden of showing that other work exists in significant numbers that the claimant can do, given his RFC, age, education, and work experience. Thus, Plaintiff is disabled.
The ALJ's attempt to discount Plaintiff's counsel's questions by stating he did "not find such cervical spine . . . limitations are applicable," is unavailing. He himself found the Plaintiff had the severe impairment of "cervical strain." (AR at 324.) He also asked the VE to opine regarding someone with Dr. Taylor-Holmes assessed limitations, which included only occasional flexing/extension of the neck. There is no evidence that counsel's follow-up question, phrased as "occasional looking down," is any different from that adopted limitation; it appears that the VE did not include that limitation when initially responding to the ALJ's hypothetical. Moreover, it is abundantly clear that surgical repair has been repeatedly recommended for Plaintiff's cervical spine impairment.
B. Whether the ALJ Properly Considered Plaintiff's Testimony .
Plaintiff contends the ALJ failed to articulate any legally sufficient reasons for rejecting Plaintiff's testimony. (JS at 37.) Because the Court also finds error in this assessment, further supporting remand for payment of benefits, it will discuss this issue notwithstanding the above determination.
In the 2007 Decision, the ALJ specifically determined that Plaintiff's medically determinable impairments could reasonably be expected to produce symptoms, but that the statements regarding the intensity, persistence, and limiting effects were not entirely credible. (AR at 21.) He cited the fact that the 2001 Decision was unappealed, concluding from this that there was no material change in Plaintiff's condition until January 11, 2005, when Plaintiff presented at the hospital with diffuse neurological complaints. (Id. (citing id. at 222).) To support his credibility finding, the ALJ stated that Plaintiff had not yet undergone recommended surgery and had not "offered a plausible explanation why he has not followed his doctors' advice to have a reparative operation." (Id. at 22.) He concluded that the pain symptoms "are apparently not severe enough to motivate him to seek treatment or follow his doctor's advice." (Id.) The Appeals Council soundly rejected that conclusion, recognizing that the surgery had not been performed because Plaintiff's Medi-Cal eligibility had not been determined, and that further credibility assessment would be necessary. (Id. at 347.)
The Court notes that Plaintiff was hospitalized from January 11, 2005, through January 19, 2005. (See AR at 192.) The neurologist found "acute stenosis" and recommended surgery. (Id. at 217.) Moreover, the "option of no treatment was discussed and discard[ed as] not practical in light of the patient's condition." (Id.)
The ALJ's current credibility assessment fares no better. The ALJ merely states in a conclusory fashion that Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that the Plaintiff's statements concerning the intensity, persistence, and limiting effects are not credible to the extent they are inconsistent with the RFC for medium work. (Id. at 326.) After noting his reliance on Dr. Sophon's and Dr. Erik's opinions, he then stated:
In making this decision, I have noted that cervical spine surgery has been mentioned for years, but it has never been performed although there is no documented contraindication for it. The claimant's current treatment is minimal and conservative, in fact the claimant said that he had not be [sic] to ARMC, his primary source of treatment, since early 2008. Furthermore, the claimant's testimony is about the same as before and establishes no different conclusions. He again asserted the lifestyle of a valetudinarian and is still supported by his girl friend with food stamps and money from general relief.
Defined by dictionary.com as "a person who is excessively concerned about his or her poor health or ailments."
The Court notes that Plaintiff testified that at the time of the October 2006 hearing, he was homeless. (AR at 357-58.) At the more recent hearing, he reported that he was living with his girlfriend and his son. (Id.)
(Id. at 328.)
Other than this continued reliance on the fact that Plaintiff had not yet had surgery, the ALJ did not state any new reasons for disbelieving Plaintiff's testimony. Moreover, this statementagain fails to take into account the record evidence that Plaintiff has not had the surgery because he has had issues with Medi-Cal approval. The additional gratuitous statements regarding Plaintiff's health concerns and living situation add nothing. The fact that Plaintiff might be excessively concerned about his poor health or need to rely on someone else for support does not necessarily follow that he is not credible. Thus, the cited reason for discounting Plaintiff's credibility is not supported by the record and the ALJ did not comply with the Appeals Council order to perform a "[f]urther credibility assessment . . . in accordance with Social Security Ruling 96-7p." (Id. at 347.) The ALJ's credibility determination was error.
C. This Case Should Be Remanded for Payment of Benefits .
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision.Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
The Ninth Circuit also has held that "the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); Lester, 81 F.3d at 834; Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996);Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989); Varney v. Sec'y of Health Human Servs., 859 F.2d 1396, 1988-1401 (9th Cir. 1988); but see Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (the "crediting as true" doctrine is not mandatory in the Ninth Circuit; remanding for reconsideration of the claimant's credibility where the record contained insufficient findings as to whether the claimant's testimony should be credited as true).
In Harman, the Ninth Circuit noted that this three-part test "really constitutes a two part inquiry, wherein the third prong is a subcategory of the second." Harman, 211 F.3d at 1178 n. 7.
Under the foregoing authorities, when this test is met, the Court will take the improperly discredited testimony as true and not remand solely to allow the ALJ another opportunity to make specific findings regarding that testimony. This rule applies to improperly discredited opinions of treating or examining physicians.
Here, the Court has found that the ALJ improperly discredited the opinions of Plaintiff's treating and examining physicians. It is clear from the record that the ALJ would be required to find Plaintiff disabled if the opinions of Drs. Taylor-Holmes, Spitalieri, Wong, Hoshek, Spellman, Broasky, Warner, were fully credited. At Plaintiff's hearing before the ALJ, the VE testified that for an individual with the limitations set forth by Dr. Taylor-Holmes, including a limitation to only occasional flexing of the neck, "very few" light unskilled positions were available in the region. As stated above, this does not satisfy the burden of showing that other work exists in significant numbers that the Plaintiff can do.
Based on the foregoing, the Court finds that this is a case where no useful purpose would be served by further administrative proceedings, where the record has been fully developed, and where remand would only unnecessarily delay the receipt of benefits.
IV. ORDER
Accordingly, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security, and remanding this matter for the payment of benefits.