Pimentel v. Astrue

Filing 22

ORDER AND OPINION - IT IS ORDERED that the Clerk enter jgm vacating the finaldecision of the Commissioner of Social Security and remanding this case to the Commissioner for further proceedings consistent with this order. The Clerk will please close this case. Signed by Judge John W Sedwick on 11/19/10. (SAT)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 L o rra in e Pimentel seeks review under 42 U.S.C. § 405(g) of the decision of the 17 C o m m is s io n e r of Social Security ("the Commissioner") denying disability benefits. 18 Because the decision of the Administrative Law Judge ("ALJ") is not supported by 19 s u b s ta n tia l evidence and is based on legal error, the Commissioner's decision will be 20 v a c a t e d and remanded for further administrative proceedings. 21 I. 22 P im e n t e l, now forty-three years old, has been diagnosed with rheumatoid arthritis, 23 f ib ro m ya lg ia , hepatitis C, carpal tunnel syndrome, and degenerative disc disease of the 24 c e rv ic a l and lumbar spine, among other things. She applied for a period of disability and 25 d is a b ility insurance benefits on December 19, 2005, alleging disability beginning 26 D e c e m b e r 10, 2005. She was insured through March 31, 2008, and must establish 27 28 B a c k gro u n d L o rr a in e Pimentel, ) ) Plaintiff, ) ) vs. ) ) ) M ic h a el J. Astrue, Commissioner of Social) S e c u ri ty, ) ) Defendant. ) ) ) N o . CV09-1649-PHX-NVW O R D E R AND OPINION IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF ARIZONA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

d isa b ility on or before that date to be entitled to a period of disability and disability in s u ra n c e benefits. Pimentel appeared and testified at a hearing held by an administrative law judge (" A L J " ) on August 21, 2008. The ALJ issued an unfavorable decision on October 14, 2 0 0 8 . Among other things, the ALJ found that Pimentel "had the residual functioning c a p ac ity to perform the full range of light and sedentary work" and her "past relevant w o rk as a retail sales clerk, distribution clerk, and bank teller did not require the p e rf o rm a n c e of work-related activities precluded by the claimant's residual functional c a p ac ity." (Tr. 21.) The ALJ's decision became the final decision of the Commissioner o n June 12, 2009. Pimentel seeks vacature of the ALJ's decision, contending it is based on legal error a n d fails to properly address the disabling symptoms of rheumatoid arthritis, f ib ro m ya lg ia , and headaches. II. S t a n d a r d of Review T h e district court reviews only those issues raised by the party challenging the A L J 's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9 th Cir. 2001). The district c o u rt may set aside the Commissioner's disability determination only if the determination is unsupported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 6 2 5 , 630 (9 th Cir. 2007). Substantial evidence is more than a scintilla, less than a p re p o n d e ra n c e , and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether su b sta n tial evidence supports a decision, the court must consider the record as a whole a n d may not affirm simply by isolating a "specific quantum of supporting evidence." Id. T h e ALJ is responsible for resolving conflicts in medical testimony, determining c re d ib ility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9 th Cir. 1 9 9 5 ) . However, in reviewing the ALJ's reasoning, the court is "not deprived of [its]

-2-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

f a cu ltie s for drawing specific and legitimate inferences from the ALJ's opinion." Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). III. A n a ly sis T o determine whether a claimant is disabled for purposes of the Social Security A c t, the ALJ follows a five-step sequential evaluation process. 20 C.F.R. § 404.1520(a). At step two, the ALJ found that Pimentel had the following severe impairments: fibromyalgia, hepatitis C, rheumatoid arthritis, carpal tunnel syndrome, and degenerative d is c disease of the cervical and lumbar spine. At step three, the ALJ found that through M a rc h 31, 2008, the date last insured, Pimentel did not have an impairment or c o m b in a tio n of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d), 404.1525, and 4 0 4 .1 6 2 5 ). Pimentel does not allege any error at any of the first three steps of the s e q u e n tia l evaluation process. T h e core issue in this appeal is whether the opinion of a rheumatologist (who treats P im e n te l for rheumatoid arthritis, degenerative disc disease, and fibromyalgia) that P im e n te l's pain and fatigue precludes full-time work was properly rejected, and P im e n t e l' s subjective testimony properly found to lack credibility, because a neurologist (w h o treated Pimentel for lumbar disc protrusion and carpal tunnel syndrome) found in s u f f ic ie n t objective evidence of pain and fatigue severe enough to preclude full-time w o r k . A secondary issue is whether the ALJ's conceded error in failing to assess P im e n te l's work-related abilities on a function-by-function basis before expressing her re s id u a l functional capacity in terms of the exertional levels of work, i.e., light and s e d e n ta ry, is harmless and does not warrant remand because the ALJ presented to the v o ca tio n al expert a hypothetical based on a non-treating, non-examining physician's f u n c tio n -b y-f u n c tio n assessment.

-3-

1 2

A.

T h e ALJ Erred in Rejecting the Opinion of Treating Rheumatologist R a v i Bhalla, M.D. 1. L e g a l Standard

3 In weighing medical source opinions in Social Security cases, the Ninth Circuit 4 d is tin g u is h e s among three types of physicians: (1) treating physicians, who actually treat 5 th e claimant; (2) examining physicians, who examine but do not treat the claimant; and 6 (3 ) non-examining physicians, who neither treat nor examine the claimant. Lester v. 7 8 o p in io n of a treating physician than to the opinions of non-treating physicians. Id. A 9 trea tin g physician's opinion is afforded great weight because such physicians are 10 " e m p lo ye d to cure and [have] a greater opportunity to observe and know the patient as an 11 12 p h ys ic ia n 's opinion is not contradicted by another physician, it may be rejected only for 13 " c le a r and convincing" reasons, and where it is contradicted, it may not be rejected 14 w ith o u t "specific and legitimate reasons" supported by substantial evidence in the record. 15 Lester, 81 F.3d at 830. Moreover, the Commissioner must give weight to the treating 16 p h ys ic ia n 's subjective judgments in addition to his clinical findings and interpretation of 17 te s t results. Id. at 832-33. 18 F u r th e r, an examining physician's opinion generally must be given greater weight 19 th a n that of a non-examining physician. Id. at 830. As with a treating physician, there 20 m u s t be clear and convincing reasons for rejecting the uncontradicted opinion of an 21 e x a m in in g physician, and specific and legitimate reasons, supported by substantial 22 e v id e n c e in the record, for rejecting an examining physician's contradicted opinion. Id. at 23 8 3 0 -3 1 . 24 The opinion of a non-examining physician is not itself substantial evidence that 25 ju s tif ie s the rejection of the opinion of either a treating physician or an examining 26 p h ys ic ia n . Id. at 831. Factors that an ALJ may consider when evaluating any medical 27 o p in io n include "the amount of relevant evidence that supports the opinion and the quality 28 -4in d iv id u a l." Sprague v. Bowen, 812 F.2d 1226, 1230 (9 th Cir. 1987). Where a treating C h a te r, 81 F.3d 821, 830 (9 th Cir. 1995). Generally, more weight should be given to the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

o f the explanation provided; the consistency of the medical opinion with the record as a w h o le ; [and] the specialty of the physician providing the opinion." Orn, 495 F.3d at 631. The opinion of any physician, including a treating physician, need not be accepted, "if th a t opinion is brief, conclusory, and inadequately supported by clinical findings." Bray v. Comm'r, 554 F.3d 1219, 1228 (9 th 2009). M o re o v e r, Social Security Rules expressly require a treating source's opinion on a n issue of a claimant's impairment be given controlling weight if it is well-supported by m e d ic a lly acceptable clinical and laboratory diagnostic techniques and is not inconsistent w ith the other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2). If a tre a tin g source's opinion is not given controlling weight, the weight that it will be given is d e te rm in e d by length of the treatment relationship, frequency of examination, nature and e x te n t of the treatment relationship, relevant evidence supporting the opinion, consistency w ith the record as a whole, the source's specialization, and other factors. Id. Finding that a treating physician's opinion is not entitled to controlling weight d o e s not mean that the opinion should be rejected: [ A ] finding that a treating source medical opinion is not wellsu p p o rte d by medically acceptable clinical and laboratory diagnostic te c h n iq u e s or is inconsistent with the other substantial evidence in the case re c o rd means only that the opinion is not entitled to "controlling weight," n o t that the opinion should be rejected. Treating source medical opinions are still entitled to deference and must be weighed using all of the factors p ro v id ed in 20 C.F.R. §404.1527. . . . In many cases, a treating source's m e d ic a l opinion will be entitled to the greatest weight and should be a d o p ted , even if it does not meet the test for controlling weight. O r n , 495 F.3d at 631-32 (quoting Social Security Ruling 96-2p). Where there is a c o n f lic t between the opinion of a treating physician and an examining physician, the ALJ m a y not reject the opinion of the treating physician without setting forth specific, le g itim a te reasons supported by substantial evidence in the record. Id. at 632. 2. D r . Bhalla

R a v i Bhalla, M.D., board certified in rheumatology, began treating Pimentel on O c to b e r 3, 2005. (Tr. 219.) Blood tests established that Pimentel had a positive

-5-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

rh e u m a to id factor and antihistone antibodies, and Dr. Bhalla prescribed Plaquenil and L o d in e . (Tr. 217, 222-23.) Following the initial examination and treatment in October 2 0 0 5 , Dr. Bhalla continued to treat Pimentel for rheumatoid arthritis, fibromyalgia, and re la te d conditions for several years. On August 24, 2006, Dr. Bhalla assessed Pimentel as h a v in g rheumatoid arthritis, sicca syndrome, and hepatitis C and prescribed tramadol and P la q u e n il. (Tr. 307.) On March 19, 2007, Dr. Bhalla assessed Pimentel as having rh e u m a to id arthritis, sicca syndrome, hepatitis C, fibromyalgia, and cervical spondylosis a n d prescribed tramadol, doxycline, Plaquenil, and Skelaxin. (Tr. 441.) On May 21, 2 0 0 7 , Dr. Bhalla assessed Pimentel as having rheumatoid arthritis, sicca syndrome, h e p a titis C, fibromyalgia, cervical spondylosis, and migraine headaches and prescribed tram ad o l, Plaquenil, Skelaxin, and doxycline. (Tr. 436-37.) On December 20, 2007, Dr. B h a lla assessed Pimentel as having rheumatoid arthritis, sicca syndrome, hepatitis C, f ib ro m ya lg ia, cervical spondylosis, and migraine headaches and prescribed tramadol, P laq u en il, Skelaxin, Relafen, and methocarbamol. (Tr. 467-68.) On April 22, 2008, Dr. B h a lla assessed Pimentel as having rheumatoid arthritis, sicca syndrome, hepatitis C, f ib ro m ya lg ia, cervical spondylosis, and migraine headaches and prescribed tramadol, P la q u e n il, Topamax, Flexeril. (Tr. 466.) He also ordered an MRI of the lumbar spine a n d consultation with a specialist for epidural blocks of the lumbosacral spine. (Id.) D r. Bhalla's diagnosis of rheumatoid arthritis is supported not only by the October 2 0 0 5 blood test, but also by December 2006 MRIs of both of Pimentel's wrists and m e ta c arp o p h a la n g e al joints that revealed deterioration of both wrists and an erosion of th e metacarpophalangeal joints on the right hand consistent with rheumatoid arthritis. (Tr. 122-23.) Physical examination in December 2007 revealed synovitis in multiple jo in ts, Heberden's nodes, Bouchard's nodes, crepitus of both knees, tenderness of both a n k le s, and muscle spasms. (Tr. 468.) The June 2008 lumbar spine MRI indicated d e g e n era tiv e changes of the L5-S1 level, which results in probable low-grade im p in g e m e n t of the bilateral descending S1 nerve roots. (Tr. 472.)

-6-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In March 2006, Dr. Bhalla opined that Pimentel could lift and carry 20 pounds o c c as io n a lly and 25 pounds frequently,1 stand and/or walk at least 2 hours but less than 6 h o u rs in an 8-hour day, and sit 4 hours in an 8-hour day. (Tr. 244-46.) In October 2006, D r. Bhalla opined that, in an 8-hour workday, Pimentel could lift and carry more than 10 p o u n d s , less than 20 pounds; sit more than 2 hours, less than 3 hours; stand more than 1 h o u r, less than 2 hours; and walk less than 1 hour. (Tr. 143.) He further opined that P im e n tel's pain and fatigue put moderate to moderately severe limitations on her ability to su stain work activity for 8 hours a day, 5 days a week. (Tr. 144.) In April 2007, Dr. B h a lla again opined that, in an 8-hour workday, Pimentel could lift and carry more than 1 0 pounds, less than 20 pounds; sit more than 2 hours, less than 3 hours; stand more than 1 hour, less than 2 hours; and walk less than 1 hour. (Tr. 371.) He opined again that P im e n tel's pain and fatigue put moderate to moderately severe limitations on her ability to s u s ta in work activity for 8 hours a day, 5 days a week. (Tr. 372.) T h e ALJ found, and the Commissioner does not dispute, that Pimentel had the f o llo w in g severe impairments: fibromyalgia, hepatitis C, rheumatoid arthritis, carpal tun n el syndrome, and degenerative disc disease of the cervical and lumbar spine. (Tr. 1 7 .) The ALJ further found that these impairments cause significant limitations in P im e n te l's ability to perform basic work-related activities. (Id.) Nevertheless, the ALJ re jec ted Dr. Bhalla's opinion that the fatigue and pain from these severe impairments p re c lu d e d Pimentel from full-time work. T h e ALJ identified two reasons for rejecting Dr. Bhalla's assessment of Pimentel's re s id u a l functional capacity: A f te r carefully reviewing all of the medical evidence and opinion, the u n d e rs ig n e d rejects Dr. Bhalla's assessment of the claimant's residual f u n c tio n a l capacity [sic.] several reasons; first, his opinion is contradicted b y the weight of credible medical evidence and opinion and second, it is a p p a re n t that Dr. Bhalla has merely adopted the claimant's subjective

D r. Bhalla may have intended to opine that Pimentel could carry the lighter amount f re q u e n tly and the heavier amount occasionally. -7-

1

1 2

a lleg a tio n s of impairment as his own and his assessment reflect [sic.] this b ias (Exhibit 1F/31-32). (T r. 20.) No evidence in the record, much less substantial evidence, supports the ALJ's

3 sec o n d reason for rejecting Dr. Bhalla's assessment. The ALJ's conclusion that Dr. 4 B h a lla has merely adopted Pimentel's subjective allegations of impairment is speculative. 5 T h e ALJ's first reason for rejecting Dr. Bhalla's assessment of Pimentel's residual 6 f u n c tio n a l capacity, i.e., "his opinion is contradicted by the weight of credible medical 7 e v id e n c e and opinion," conflicts with 20 C.F.R. § 404.1527(d) and the Ninth Circuit 8 stan d ard s for weighing medical opinions. The ALJ was required to apply the factors 9 lis te d in § 404.1527(d)(2)(i), (d)(2)(ii), and (d)(3)-(6): length of treatment relationship, 10 f re q u e n c y of examination, nature and extent of the treatment relationship, supportability, 11 c o n sis te n c y with the record as a whole, specialization, and other factors. As discussed 12 a b o v e , Dr. Bhalla treated Pimentel for at least several years, examined her multiple times, 13 a n d specializes in treating rheumatology and fibromyalgia, and objective medical 14 ev id en ce supports his findings. Thus, the ALJ was permitted to reject Dr. Bhalla's 15 o p in io n only for "clear and convincing" reasons or, if contradicted, only by identifying 16 " sp e c if ic and legitimate reasons that are supported by substantial evidence in the record." 17 18 2 0 0 8 ). The ALJ's decision does not meet either standard. 19 3. 20 T h e ALJ assigned controlling evidentiary weight to the opinions of treating 21 p h ys ic ia n Dale R. Schultz, D.O., examining physician Gregory Hunter, M.D., and 22 re v iew in g physician Steven Otto, M.D., J.D. Dr. Schultz is a board certified specialist in 23 p s yc h ia try and neurology and in osteopathic neuropsychiatry. Dr. Schultz treated 24 P im en te l from 1999 through 2004 for back pain and carpal tunnel syndrome. He 25 e x a m in e d her twice in 2006. On March 28, 2006, Dr. Schultz reported: 26 27 28 -8...th is 38-year-old female was last seen in September of 2004. At that time s h e complained she is still having low back and lower extremity pain. We k n o w from the past that she had a very large disc herniation at L5-S1 and D r. Schultz Lester, 81 F.3d at 830-31; accord Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9 th Cir.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

h a d been treated last year with epidural injections which helped to a m o d e ra te degree but the pain is still problematic and we would think after th is period of time there should be some shriveling of the disc although she is having more pain it may not reflect the size of the disc but just in f la m m a tio n . S h e also has developed some problems with neck and right upper extremity p a in and numbness. Some of the pain in the upper extremity we feel is do [ s ic .] to recurrent carpal tunnel syndrome on the right which was previously d o c u m e n te d clinically and by EMG which showed a median nerve latency d e lay at the wrist. (T r. 257.) The ALJ did not refer to Dr. Schultz's March 28, 2006 report, which states " th e pain is still problematic," but instead relied solely on Dr. Schultz's April 11, 2006 re p o rt (Tr. 154-55) and focused on Dr. Schultz's opinion of Pimentel's credibility and c o n c lu s io n that she is not disabled, an issue reserved to the Commissioner under 20 C .F .R . § 404.1527(e)(1). The ALJ's decision quotes twice Dr. Schultz's statements that P im e n te l "constantly reminds me that I need to fill out forms attesting to her disability" a n d , with added emphasis (both bold and underlining), "I do not feel she is disabled by e ith e r her carpal tunnel syndrome or her low back problem and have refused to make m e d ic a l statements to that effect." (Tr. 18, 19.) The ALJ's decision characterizes "c o n stan tly reminds me" as "harassing." (Tr. 18.) Further, from Dr. Schultz's April 11, 2006 statement that Pimentel "resists ep id u ral injections," which he previously described as only moderately helpful, the ALJ's d e c isio n states that "medical evidence . . . shows that the claimant pointedly refused to a c ce p t treatment (which would have alleviated her alleged lower back pain) choosing in s te a d over-the-counter medications to treat her alleged pain." (Tr. 18.) Even if the A L J 's decision drew only proper inferences from Dr. Schultz's reports and did not give w e ig h t to an opinion on an issue reserved to the Commissioner, Dr. Schultz's opinion re g a rd in g the severity and intensity of the effects of Pimentel's carpal tunnel syndrome a n d low back pain does not conflict with Dr. Bhalla's opinion regarding the severity and in te n sity of the effects of Pimentel's rheumatoid arthritis and fibromyalgia. 4. D r . Hunter

-9-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

T h e ALJ's decision also states that he assigned controlling weight to the ev id en tiary summary and conclusions of State agency consulting examiner Gregory H u n ter , M.D., a neurologist, although the ALJ did not provide any specific reference to e v id e n c e in the record. (Tr. 20.) Dr. Hunter diagnosed Pimentel with migraine and m u ltip le chronic pain and opined that her conditions would not impose any limitations for 1 2 continuous months. (Tr. 182.) Dr. Hunter noted Pimentel appeared to have migraine w ith associated sleep disorder and "suspected that her difficulties with migraine m a n a g em e n t do overlap into difficulties with chronic pain management." (Tr. 186.) She d id not "show any focal abnormalities to suggest a specific structural neurologic im p a irm e n t." (Id.) Dr. Hunter did not observe any clear neurological basis for her m u ltip le chronic pains. (Tr. 186.) However, Dr. Hunter's evidentiary summary and c o n c lu sio n s regarding Pimentel's migraine and multiple chronic pain do not conflict with D r. Bhalla's opinion regarding the severity and intensity of the effects of Pimentel's rh e u m a to id arthritis and fibromyalgia. M o re o v e r, the ALJ's decision states, "Dr. Hunter reviewed several MRI e x a m in a tio n s of the claimant's lumbar spine, the latest dated June 23, 2004, which re v e ale d a broad posterior disc protrusion that did not affect the S1 never root or impinge o n it." (Tr. 20.) But Dr. Hunter's report stated the June 23, 2004 MRI showed a "fairly b ro a d posterior disc extrusion that favors the right although it does yield effect on the left S 1 nerve root and a little more effect on the right S1 nerve root where it displaces it a g a in s t the right facet slightly. (Tr. 186.) And Dr. Schultz reported that her 2002 MRI s c a n showed a disc protrusion at L5-S1 "now abutting the S1 nerve roots," her June 2004 M R I scan showed "a disparate disc protrusion at L5-S1," and in September 2004 "without q u e s tio n , she has a significant disc protrusion [at] L5-S1." (Tr. 259, 262-63.) 5. D r. Otto

F u r th e r, the ALJ assigned controlling weight to the evidentiary summary and c o n c lu s io n s of State agency reviewing consultant Steven Otto, M.D., J.D., a non-treating,

- 10 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

n o n - ex am in in g obstetrician-gynecologist, even though the ALJ found, "Dr. Otto's c o n c lu s io n s were far more critical of the claimant's subjective allegations than the o p in io n s of many of the other specialists who examined the claimant." (Tr. 20.) First, the opinion of a non-examining physician is not itself substantial evidence that justifies th e rejection of the opinion of either a treating physician or an examining physician, L e s te r , 81 F.3d at 831, and second, the opinion of a physician need not be accepted, "if th a t opinion is brief, conclusory, and inadequately supported by clinical findings." Bray, 5 5 4 F.3d at 1228. Dr. Otto indicated that Pimentel's primary diagnosis is rheumatoid arthritis and s e c o n d a ry diagnosis is degenerative disk disease of the lumbar spine. (Tr. 134.) He o p in e d that Pimentel can lift and carry 20 pounds occasionally and 10 pounds frequently, s ta n d or walk about 6 hours in an 8-hour workday, and sit about 6 hours in an 8-hour w o rk d a y. (Tr. 135.) In the section of the physical residual functional capacity assessment f o rm seeking discussion of whether the severity of symptoms and their alleged effect on f u n c tio n is consistent with the total medical and nonmedical evidence, Dr. Otto wrote o n ly: "partially credible: see comments." (Tr. 139.) In the section of the physical re sid u a l functional capacity assessment form asking whether there were treating or ex am in in g source conclusions about Pimentel's limitations or restrictions that were sign ifica n tly different from his findings, Dr. Otto checked the box for "yes." (Tr. 140.) Dr. Otto then was asked to explain why those conclusions are not supported by the e v id e n c e in the file and to cite the source's name and the statement date. (Id.) Dr. Otto w ro te only: "see discussion in comments." (Id.) In the comments, Dr. Otto relied on Dr. S c h u ltz 's comment that he felt Pimentel was "working [the] system for financial gain." (Tr. 141.) He misstated Dr. Schultz's reports as saying she "has refused most treatments a n d is perhaps narcotic-seeking in behavior"; Dr. Schultz's reports actually state that P im e n te l declined a previously moderately effective lumbar epidural injection, "choosing to just take over-the-counter analgesics," and "We are also disinclined to provide her any

- 11 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

n a rc o tic s." (Id.) Dr. Otto's opinion plainly is "brief, conclusory, and inadequately su p p o rte d by clinical findings" and not entitled to controlling weight. E v e n if treating physician Dr. Bhalla's opinion conflicted with other medical e v id e n c e, the ALJ erred by rejecting it without providing reasons supported by substantial e v id e n c e in the record. See Lester, 81 F.3d at 830. But Dr. Bhalla's opinion regarding th e severity of the effects of Pimentel's rheumatoid arthritis and fibromyalgia did not c o n f lic t with other medical evidence, and the ALJ erred by rejecting it without providing c le a r and convincing reasons for doing so. See id. B. T h e ALJ Erred in Evaluating Pimentel's Credibility.

In evaluating the credibility of Pimentel's testimony regarding subjective pain or o th e r symptoms, the ALJ was required to engage in a two-step analysis: (1) determine w h e th e r Pimentel had presented objective medical evidence of an impairment that could re a so n a b ly be expected to produce some degree of the pain or other symptoms alleged; a n d , if so with no evidence of malingering, (2) reject Pimentel's testimony about the s e v e rity of the symptoms only by giving specific, clear, and convincing reasons for the re je c tio n . See Vasquez v. Astrue, 572 F.3d 586, 591 (9 th Cir. 2009). To support a lack of c re d ib ility finding, the ALJ is required to point to specific facts in the record that d e m o n s tra te that Pimentel is in less pain than she claims. Id. at 592. To be found c re d ib le regarding subjective pain or fatigue, a claimant is not required to: (1) produce o b je c tiv e medical evidence of the pain or fatigue itself, or the severity thereof; (2) p ro d u c e objective medical evidence of the causal relationship between the medically d e ter m in a b le impairment and the symptom; or (3) show that her impairment could re a so n a b ly be expected to cause the severity of the alleged symptom, only that it could re a s o n a b ly have caused some degree of the symptom. Smolen v. Chater, 80 F.3d 1273, 1 2 8 2 (9 th Cir. 1996). T h e ALJ found Pimentel had presented objective medical evidence of an im p a irm e n t that could reasonably be expected to produce some degree of the pain or other

- 12 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

s ym p to m s alleged and did not make a finding of malingering. However, the ALJ rejected P im en tel's testimony about the severity of the symptoms without giving specific, clear, a n d convincing reasons for the rejection. First, he gave general conclusory reasons: T h e claimant alleges that she has been unable to work in any capacity due to h e r impairments and limitations, but the objective medical evidence and c re d ib le medical opinion does not support the claimant's subjective a lle g a tio n s , which diminishes her credibility. W h ile the claimant has alleged having severe fibromyalgia, hepatitis C, R h e u m a to i d arthritis, carpal tunnel syndrome, and degenerative disc disease o f the cervical and lumbar spine, the medical evidence does not support her s u b je c tiv e allegation that these impairments have prevented her from w o rk in g and, in fact, shows the claimant has exaggerated her limitations a n d symptoms, which diminishes her credibility. (T r. 19.) Then, the ALJ identified Dr. Schultz's opinion and other unidentified sources as re a so n s for his adverse credibility determination: A s discussed above, on April 11, 2006, Dr. Schultz . . . made the following s ta te m e n t in his clinical report after examining the claimant: "She c o n s ta n tly reminds me that I need to fill out forms attesting to her disability. I do not feel she is disabled by either her carpal tunnel syndrome or her lo w back problem and have refused to make medical statements to that e ffe c t (emphasis added)." Dr. Schultz' opinion. Dr. Schultz examined the c la im a n t on two occasions, in February and again in April 2006, and no f e w e r than five sources examined the claimant in 2006, but none of them f o u n d any definitive evidence to support her subjective allegations of pain (E x h ib it 1F/42 and 61). T h e undersigned assigns controlling evidentiary weight to Dr. Schultz' o p in io n . . . . (T r. 19.) The ALJ referenced Exhibit 1F/42, which is Dr. Schultz's April 11, 2006 report. (Tr. 154.) As previously noted, opinions on issues reserved to the Commissioner, such as w h e th e r a claimant is disabled, are not medical opinions. 20 C.F.R. § 404.1527(e). Moreover, the ALJ ignored Dr. Schultz's March 28, 2006 report, which states: "We know f r o m the past that she had a very large disc herniation at L5-S1 and had been treated last ye a r with epidural injections which helped to a moderate degree but the pain is still p rob lem atic . . . ." (Tr. 257.)

- 13 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

T h e ALJ also referenced Exhibit 1F/61, which is a Social Security Administration E x p lan a tio n of Determination that lists evidence used to decide Pimentel's claim. (Tr. 1 7 3 .) It identifies two reports from Dr. Schultz, one from Dr. Hunter, one from Dr. B h a lla (Valley Arthritis Care), one from Associated Foot & Ankle Specialist, and one f ro m Forty-Third Ave Med. Associates, P.C. (Id.) The Explanation of Determination s ta te s only: T h is is a 39 yr old with 10 yrs of formal education whose PRW is that of a d is trib u tio n clerk, mail handler for USPS and bank teller. DDS MC has d e te rm in e d the clt has the ability for light type work. Clt describes PRW as lig h t as does the DOT 209.687-014 L4; 211.362-018 L5. Therefore, clt can re tu rn to PRW as she describes and as performed in the national economy. (T r. 173.) At most, this evidence shows only that "DDS MC" had determined that P im e n te l was able to perform light work. It does not provide a specific, clear, and c o n v in c in g reason to reject Pimentel's subjective testimony. N ex t, the ALJ provided his own opinion that if Pimentel really experienced severe c h ro n ic pain, there would be objective evidence of it: T h e undersigned notes that, if the claimant really experienced severe longte rm chronic pain, as she says she has, there would be some observable sign o f such pain, such as muscle atrophy, restricted motor function, muscle w e a k n es s , compensation, and a number of other demonstrable signs of s e v e re long-term chronic pain, but the claimant has none and no treating or e x a m in in g source has reported any such evidence, which further diminishes th e claimant's credibility. W h ile the objective medical evidence . . . does not reflect any remarkable fin d in g s, the claimant has continued to allege that she has severe d e g e n e ra tiv e disc disease and chronic pain in her cervical spine. Similarly, th e claimant alleged that she has severe migranous headaches and d e g e n era tiv e disc disease of the lumbar spine, but treating and examining p h ysic ian s have disagreed as to whether the alleged headaches are truly m ig ra n o u s in nature or are vascular and whether she has exhibited any focal a b n o r m a litie s . (T r. 19.) It is unclear why the type of headache, i.e., vascular or migraine, would be

24 re le v a n t to determining the severity and limiting effect of headache pain. Regardless, an 25 A L J may not reject subjective symptom testimony simply because there is no objective 26 e v id e n c e of the pain or fatigue or that the impairment can reasonably produce the degree 27 o f symptom alleged. Smolen, 80 F.3d at 1282. 28 - 14 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

F u rth er, the ALJ erroneously gave controlling weight to reviewing physician Dr. O tto 's opinion of Pimentel's subjective allegations even though his conclusions a d m itte d l y were "far more critical" than those of the treating and examining specialists: In December 2006, [Dr. Otto] reviewed all of the medical evidence and c o n c lu d e d that the claimant's allegations of carpal tunnel syndrome and m ig rain e headaches were non-severe. Dr. Otto's conclusions were far more c ritic a l of the claimant's subjective allegations than the opinions of many of th e other specialists who examined the claimant []. T h e undersigned assigns controlling evidentiary weight to Dr. Otto's e v id e n tia ry summary and conclusions since they are amply supported by clea r and unequivocal medical evidence (Exhibit 1F/22-29). (T r. 19-20.) Finally, the ALJ erred by giving weight to the absence of opinion by Pimentel's p rim a ry care physician James Beach, D.O., without giving a specific, clear, and c o n v in c in g reason for inferring from the absence of opinion that Dr. Beach actually held a n adverse opinion: W h ile James Beach, D.O., was the claimant's primary treating physician for m an y, many years, far longer than any other treating source, Dr. Beach's c lin ic a l records do not reflect limitations on the claimant's residual f u n c tio n a l capacity which have prevented her from performing light and s e d e n ta ry work as she has alleged, which significantly diminishes the c la im a n t's credibility. The absence of any such limitations and Dr. Beach's n u m e ro u s referrals to specialists in multiple fields of medicine who found little or no physical cause for the claimant's alleged pains, radiculopathy, a n d paresthesia in her extremities further diminishes the claimant's c re d ib ility []. (T r. 20 (emphasis added).) Nor did the ALJ provide any reason for concluding that Dr.

20 B e a ch 's numerous referrals to specialists diminishes Pimentel's credibility other than the 21 re f erra ls did not result in objective evidence of her pain. 22 T h u s , the ALJ committed legal error by requiring Pimentel to produce objective 23 m e d ic a l evidence of her subjective pain and fatigue and the severity thereof, produce 24 o b jec tiv e medical evidence of the causal relationship between her medically determinable 25 im p a irm e n ts and the symptoms, and show that her impairment could reasonably be 26 e x p e c te d to cause the severity of her pain and fatigue. See Smolen, 80 F.3d at 1282. 27 28 - 15 -

1 2 3 4

A ls o , the ALJ failed to give specific, clear, and convincing reasons for rejecting P im e n te l's subjective testimony. See Vasquez, 572 F.3d at 591. C. T h e ALJ's Expression of Residual Functional Capacity as "the Full R a n g e of Light and Sedentary Work" Is Reversible Error.

A t step four of the sequential evaluation process, the ALJ determined that Pimentel 5 "h ad the residual functional capacity to perform the full range of light and sedentary 6 w o r k ." (Tr. 18.) The Commissioner concedes that the ALJ erred by failing to assess 7 P im e n te l's work-related abilities on a function-by-function basis before expressing her 8 re s id u a l functional capacity in terms of the exertional levels of work, i.e., light and 9 s e d e n ta ry, as required by SSR 96-8p. The Commissioner contends, however, that the 10 e rro r is harmless because the ALJ ultimately relied on the vocational expert's testimony 11 re g a rd in g Dr. Otto's function-by-function assessment of Pimentel's residual functional 12 c a p ac ity. (Doc. 15 at 12-13.) As previously discussed, Dr. Otto's opinion was not 13 e n title d to be given controlling weight. Therefore, the ALJ's failure to comply with SSR 14 9 6 -8 p cannot be deemed harmless merely because the ALJ and the vocational expert 15 re lied on Dr. Otto's assessment. 16 IV . 17 If the Commissioner's decision is not supported by substantial evidence or suffers 18 f ro m legal error, the court has discretion to reverse and remand either for an award of 19 b e n e f its or for further administrative proceedings. Smolen, 80 F.3d at 1292. The "credit20 a s-tru e " rule requires that the Commissioner must accept as true a claimant's subjective 21 p a in testimony if the ALJ fails to articulate sufficient reasons for refusing to credit it. 22 Vasquez, 572 F.3d at 593. The purpose of the rule is "to discourage ALJs from reaching 23 a conclusion about a claimant's status first, and then attempting to justify it by ignoring 24 a n y evidence in the record that suggests an opposite result." Id. But the rule applies only 25 w h e n there are no outstanding issues that must be resolved before a proper disability 26 d e te rm in a tio n can be made, and where it is clear from the record that the ALJ would be 27 re q u ire d to award benefits if the claimant's excess pain testimony were credited. Id. 28 - 16 R em and

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

H e re , the ALJ failed to articulate sufficient reasons for refusing to credit P im e n te l's pain testimony. As in Vasquez, application of the credit-as-true rule would not re su lt in immediate payment of benefits because other issues must be resolved before a p ro p e r disability determination can be made. Unlike Vasquez, however, Pimentel is only fo rty-th ree years old, and no other factors justify applying the credit-as-true rule where th e re are outstanding issues other than the claimant's subjective pain. IT IS THEREFORE ORDERED that the Clerk enter judgment vacating the final d e c is io n of the Commissioner of Social Security and remanding this case to the C o m m is s io n e r for further proceedings consistent with this order. The Clerk will please c lo s e this case. D A T E D this 19th day of November 2010.

/S/ JOHN W. SEDWICK U N IT E D STATES DISTRICT JUDGE

- 17 -