Copley v. Astrue

Filing 21

ORDER, remanding this case to the Commissioner for further proceedings consistent with this order. Signed by Judge David G Campbell on 6/30/11. (REW)

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  1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lori A. Copley, Plaintiff, 10 11 12 No. CV 10-1410-PHX-DGC ORDER vs. Michael Astrue, Commissioner of Social Security Administration 13 Defendant. 14 15 Plaintiff was determined ineligible for Supplemental Security Income (“SSI”) 16 benefits by a Social Security Administrative Law Judge (“ALJ”), and the decision 17 became final agency action. Plaintiff argues that the ALJ erred at Step 2 of the sequential 18 evaluation process and in the residual functional capacity assessment (“RFC”). Doc. 13. 19 Defendant argues that the ALJ’s decision was proper and supported by substantial 20 evidence. Doc. 14. The issues have been fully briefed (Docs. 13, 14, 20), and the parties 21 do not request oral argument. For the reasons that follow, the Court will remand for 22 further proceedings. 23 The ALJ found that Plaintiff has severe fibromyalgia and determined the condition 24 to be a severe impairment. 25 determination, but challenges the ALJ’s finding that Plaintiff’s migraine headaches, Doc. 12-3 at 11.1 Plaintiff takes no issue with this 26 27 28 1 The Court’s citations to the record reflect the page numbers generated at the top of a PDF document by the Court’s Electronic Case Filing system, not page numbers appearing on original exhibits.   1 hyperactive bladder, irritable bowel syndrome, and lumbar degenerative disc disease 2 were non-severe impairments.2 Doc. 13 at 10:24-27. 3 An applicant for benefits is deemed not disabled at Step 2 of the evaluation 4 process if she is found not to have a severe impairment. 20 C.F.R. § 416.920(a)(4)(ii). In 5 this case, Plaintiff passed Step 2 as a result of the ALJ’s finding that Plaintiff’s 6 fibromyalgia was a severe impairment. Therefore, to the extent the ALJ found other 7 impairments non-severe, but nonetheless considered them in the RFC assessment, the 8 Court will review the challenged findings in the context of the RFC assessment. See 20 9 C.F.R. § 416.920(e) (stating that an RFC assessment bears on whether an applicant can 10 perform work activities); 20 C.F.R. § 416.945(a)(2) (requiring all impairments be used in 11 an RFC assessment); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (noting that 12 Social Security regulations define “severity” of an impairment as a function of its effects 13 on applicant’s ability to perform work activities). 14 The ALJ concluded that Plaintiff “has the residual functional capacity to perform 15 the full range of light work as defined in 20 C.F.R. § 416.967(b), except that she is 16 limited to occasional postural functions including stooping, kneeling, crouching, and 17 crawling.” 18 impairments “affect her ability to sustain work activities eight hours per day, five days 19 per week,” failed properly to weight medical source opinion evidence, and failed properly 20 to weigh Plaintiff’s testimony.3 Doc. 13 at 16-24. Defendant responds that Plaintiff’s 21 past relevant work as a bookkeeper required walking for 0.5 hours, standing for 0.5 22 hours, sitting for 1.0 hours, reaching for 1.0 hours, and “no climbing, stooping, kneeling, 23 crouching, crawling, or handling/grabbing/grasping big objects.” Doc. 12-3 at 12. Plaintiff argues the ALJ failed to discuss how her Doc. 14 at 31-32. 24 25 26 27 28 2 Plaintiff does not appear to take issue with the ALJ’s determination that Plaintiff’s history of Bell’s Palsy does not constitute a severe impairment (Doc. 12-3 at 11). Doc. 13 at 10 (excludes Bell’s Palsy finding). 3 Plaintiff also argues that the testimony of the vocational consultant hired by the agency is not reliable. Doc. 13 at 24. The Court need not reach this issue. ‐ 2 ‐    1 Because the ALJ found that Plaintiff would be able to perform these activities despite all 2 her impairments, and the finding is supported by substantial evidence, Defendants argues, 3 the ALJ did not err. See id. at 33. Plaintiff replies in part that the ALJ “cherry-picked” 4 evidence and that the record shows “none of the reported activities are done with the 5 consistency or degree of sustained competitive employment.” Doc. 20 at 9. 6 In conducting an RFC assessment, the Commissioner must consider the combined 7 effects of an applicant’s medically-determinable impairments on the applicant’s ability to 8 perform sustainable work. 9 individual’s . . . impairments are of sufficient medical severity that such . . . impairments 10 could be the basis of eligibility under this section, the Commissioner of Social Security 11 shall consider the combined effect of all of the individual’s impairments without regard 12 to whether any such impairment, if considered separately, would be of such severity.” 13 (emphasis added)); see 20 C.F.R. §§ 404.1520(c), 416.920(c) (Commission to consider 14 “combination 15 (Commission to consider “all” impairments); see also Macri v. Chater, 93 F.3d 540, 545 16 (9th Cir. 1996) (Commissioner must consider the combined effect of all impairments in 17 determining whether the claimant is disabled) (citing Gregory v. Bowen, 844 F.2d 664, 18 666 (9th Cir. 1988)); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (Commissioner 19 “should have considered the combined effect of the claimant’s physical and mental 20 impairments in determining [RFC]”); Hammock v. Bowen, 879 F.2d 498, 500 (9th Cir. 21 1989) (error not to “consider the combined effect of all of [applicant’s] impairments on 22 her ability to return to work”). Moreover, an applicant’s ability to perform sustainable 23 work should be assessed against a standard work week in a realistic work setting. SSR 24 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (stating, in part, that “RFC is an assessment 25 of an individual’s ability to do sustained work-related physical and mental activities in a 26 work setting on a regular and continuing basis. A ‘regular and continuing basis’ means 8 27 hours a day, for 5 days a week, or an equivalent work schedule.”); see also Fair v. of 42 U.S.C. § 423(d)(2)(B) (“In determining whether an impairments”); 20 C.F.R. 28 ‐ 3 ‐  §§ 404.1545(a)(2), 416.945(a)(2)   1 Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (suggesting that an applicant’s ability to 2 perform work tasks should be assessed in the context of “the more grueling environment 3 of the workplace,” and that in some environments “it might be impossible to periodically 4 rest or take medication”). 5 The ALJ found Plaintiff’s medically-determinable impairments – fibromyalgia, 6 migraines, lower back problems, stomach damage, and Bell’s Palsy – “could reasonably 7 be expected to cause” the symptoms Plaintiff alleged. Doc. 12-3 at 12. The ALJ 8 nonetheless concluded that Plaintiff’s “statements concerning the intensity, persistence 9 and limiting effects of these symptoms are not credible to the extent they are inconsistent 10 with the above residual functional capacity assessment.” Id. The ALJ held that Plaintiff 11 “failed to provide sufficient evidence to support the alleged severity and duration of [her] 12 symptoms and limitations pertaining to her alleged migraines, lumbar spine and stomach 13 problems, and Bell’s Palsy.” Id. The ALJ also observed that “[t]he medical records fail 14 to establish support for such impairments, as the claimant rarely complains about these 15 impairments,” and “[t]he physicians do not address the impairments either.” Id. The 16 ALJ noted medical findings from Plaintiff’s treating physician, Dr. Franklin Baroi, 17 findings from State Agency physician Dr. Robert Hirsch, consulting psychologist Dr. 18 Carlos Vega, and consulting physician Dr. Richard Palmer. Id. at 13-15. The ALJ also 19 noted testimony by Plaintiff where she “persistently complains of intractable pain,” but 20 the testimony was largely discounted as “not fully credible” due in part to lack of 21 “objective findings to substantiate the severity of her complaints.”4 Id. at 16. For 22 example, the ALJ opined that “although the claimant undoubtedly experiences some 23 degree of pain, the pain has apparently not altered the use of her muscles and joints to the 24 extent that [it] has resulted in diffuse muscle atrophy,” the latter being a “common side 25 effect[] of prolonged and/or chronic pervasive pain” according to the ALJ. Id. at 16. 26 27 28 4 The ALJ’s credibility determination appears aimed at Plaintiff’s conclusions about the extent of her limitations, not at her lack of sincerity: the ALJ noted that “the claimant appeared to be a sincere witness” (Doc. 12-3 at 16). ‐ 4 ‐    1 The Court concludes the ALJ did not adequately compare Plaintiff’s residual 2 functional capacity with the requirements of sustainable work during a standard work 3 week in a realistic work setting. The ALJ’s analysis focused primarily on the medical 4 evidence disputing the extent of Plaintiff’s symptoms, and stopped short of discussing 5 how Plaintiff’s symptoms – to the extent they were assessed credible by the ALJ – match 6 up to the type of sustainable work the ALJ deemed Plaintiff able to perform. The ALJ’s 7 findings on this point were at best conclusory, asserting in part merely that “the claimant 8 is able to perform [the work] as actually and generally performed.” The ALJ does not 9 discuss the typical work environment in which Plaintiff might perform, the ability of 10 Plaintiff to obtain requisite rest or employ pain-management techniques in that 11 environment, Plaintiff’s ability to travel consistently to and from the work site five days 12 per week, or Plaintiff’s ability to maintain sustainable employment in a realistic work 13 setting in light of the totality of her impairments. Plaintiff’s pain level appeared to be the 14 most pronounced symptom addressed by the ALJ with regard to work limitations, but 15 even there the ALJ’s treatment of the pain aspect is somewhat ambiguous. The ALJ 16 acknowledges, for example, that according to Dr. Vega “the claimant is likely to be 17 suffering from a pain disorder that is associated with both psychological factors and 18 fibromyalgia,” and that “claimant’s inability to obtain and maintain gainful employment 19 is more likely impeded by physical factors than psychological ones.” Doc. 12-3 at 14. 20 The ALJ also notes that “[t]he documentation basically indicates a worsening in the pain 21 disorder described above.” Id. The ALJ does not appear to conclude what pain level the 22 evidence shows Plaintiff as having, and how this pain level factors into Plaintiff’s ability 23 to work as discussed above. The same holds true for the other non-pain symptoms 24 reported by Plaintiff and acknowledged by the ALJ. 25 For the reasons above, the Court will remand to the Commissioner for additional 26 proceedings consistent with this order. The Commissioner shall consider the combined 27 effects of Plaintiff’s impairments on Plaintiff’s ability to perform sustainable work during 28 ‐ 5 ‐    1 2 3 4 a standard work-week in a realistic work setting. IT IS ORDERED that this case be remanded to the Commissioner for further proceedings consistent with this order. Dated this 30th day of June, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‐ 6 ‐ 

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