Krauze v. Astrue

Filing 22

ORDER that Defendant's decision denying disability insurance benefits and supplemental security benefits is reversed. This action is remanded for further proceedings consistent with this order. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 6/20/2012. (LFIG)

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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 Kenneth William Krauze, No. CV11-01197-PHX-DGC Plaintiff, 10 ORDER 11 v. 12 Michael J. Astrue, Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Kenneth William Krauze filed applications for disability insurance 16 benefits (“DIB”) and supplemental security income benefits (“SSI”), alleging a disability 17 onset date of February 1, 2006. 18 March 16, 2010 (Tr. 23-45), the administrative law judge (“ALJ”) issued a decision on 19 May 26, 2010, finding that Plaintiff was not disabled within the meaning of the Social 20 Security Act (Tr. 63). On March 16, 2011, the Appeals Council denied Plaintiff’s request 21 for review (Tr. 1), making the ALJ’s decision the final decision of Defendant for 22 purposes of judicial review. See 20 C.F.R. § 422.210(a). Plaintiff commenced this action 23 for judicial review pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court 24 will reverse Defendant’s decision and remand for further proceedings.1 Tr. 53. Following an administrative hearing on 25 26 27 28 1 Plaintiff’s request for oral argument (Doc. 19) is denied because the issues are fully briefed and argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998). 1 2 I. Background. Plaintiff was born in 1948. He completed high school, but did not receive 3 additional vocational training. Tr. 26. He worked as a construction worker, retail clerk, 4 and social club manager. Tr. 40. He has not performed any work since February 1, 2006, 5 when he was fired from his job at Home Depot for repeatedly calling in sick, reporting to 6 work late, or not reporting to work at all. Tr. 27-28. Plaintiff alleges that he was unable 7 to work due to his pain and his use of medication. Id. 8 A. Medical Evidence. 9 Prior to Plaintiff’s alleged disability onset date in February 2006, he had surgeries 10 for hernia repair. Tr. 350-54. An MRI showed disc bulging in his lumbar spine 11 (Tr. 356), and a bone scan showed degeneration of his lower cervical spine (Tr. 355). In 12 March 2004, Plaintiff complained of increasing pain at the site of his hernia repair, 13 cramping and burning sensations, intermittent sharp pain in the lumbar region, and 14 cramping of his right calf after standing and walking more than 60 minutes. Tr. 496. In 15 June 2006, Plaintiff received treatment from his primary care physician, Dr. Adam S. 16 Nally, for panic attacks and associated heart palpitations, sweaty palms, and 17 overwhelming anxiety. Tr. 508. Dr. Nally diagnosed Plaintiff with generalized anxiety 18 disorder, panic disorder, and chronic groin pain. Tr. 520. Plaintiff underwent a full 19 body bone scan on September 7, 2004, which revealed accumulation of activity in his 20 lower cervical spine and left wrist, likely on a degenerative basis. Tr. 355. 21 In January 2006, one month before the alleged disability onset date, Plaintiff met 22 with Dr. Nally and reported increased anxiety. Tr. 531-34. Bradley Hall, a physician’s 23 assistant in Dr. Nally’s office, examined Plaintiff and found that he had a full range of 24 motion in all of his extremities without pain, as well as normal muscle tone and strength 25 in his extremities. Tr. 531-34. 26 Throughout the remainder of 2006, Plaintiff received treatment from Dr. Barbara 27 Fong three times for management of his leg and right groin pain. Tr. 243-44, 251-53, 28 265. Dr. Fong prescribed Percocet (pain pills), Duragesic (pain patches), and Ativan -2- 1 (anxiety medication). Id. On November 15, 2006, Dr. Fong noted that Plaintiff was 2 walking with a cane due to increased pain. Tr. 243. Dr. Fong completed two Arizona 3 disability forms in which she opined that Plaintiff should not lift, bend, or twist for long 4 periods of time, should reduce his hours at work, should not lift more than 20 pounds, 5 and should not sit or stand for more than 45 minutes at a time. Tr. 261, 258. 6 In April 2007, Plaintiff went to the emergency room after passing out. Tr. 315-18. 7 A vascular study showed narrowing and plaque in some of Plaintiff’s arteries (Tr. 297- 8 98), a CT brain scan showed some atrophy (Tr. 319), and a CT chest scan showed no 9 active cardiopulmonary disease (Tr. 320-21). A few days later, Plaintiff met with 10 Dr. Nally for a follow up visit. Tr. 315-18. He reported that he was feeling better except 11 for some increased stress and anxiety; he also reported that he had stopped taking his 12 medications approximately one month before his emergency room incident. Id.; see also 13 Tr. 322-26. 14 In August 2007, Plaintiff returned to Dr. Nally and reported that he had been 15 hospitalized for four days for vomiting, kidney failure, exacerbation of his chronic 16 obstructive pulmonary disease (COPD), high blood pressure, and low sodium levels 17 (hyponatremia). Tr. 327-30. There are no treatment records from this hospitalization in 18 the record. Doc. 16, at 4 n.2; see Tr. 327 (Dr. Nally’s August 2, 2007 note indicating that 19 he did not “have any records of this admission at this time.”). Plaintiff was diagnosed 20 with hypertension, COPD, generalized anxiety disorder, and hyponatremia. Tr. 569. 21 Dr. Nally noted that Plaintiff had not been taking his medications as directed, and that 22 Plaintiff was a “very poor historian.” Tr. 327-30. 23 Plaintiff received treatment from Dr. Fong on August 27, 2007 for right side groin 24 pain. At that time, he usually took four Percocet pills per day for his pain, and could only 25 walk 500 feet before having to sit down due to severe pain. Tr. 240. Plaintiff’s physical 26 exam indicated bilateral para-vertebral tenderness at L4-L5. Tr. 241. 27 On September 20, 2007, Plaintiff received treatment from Dr. Jugroop S. Brar, a 28 pulmonologist, for shortness of breath and coughing. Tr. 626-27. Dr. Brar noted an -3- 1 unremarkable physical examination, clear lungs, and normal cardiovascular sounds, but 2 decreased air movement in Plaintiff’s chest. Tr. 626-27. He also noted that Plaintiff 3 smoked. Tr. 387-88. Dr. Brar diagnosed mild COPD, lung nodules, and a history of a 4 fungal infection in his lungs (valley fever). Tr. 387-88, 626-27. Later that month, a full 5 body PET scan returned normal results. Tr. 390, 633-34. 6 In October 2007, Dr. Sharon Steingard performed a psychiatric evaluation of 7 Plaintiff. Tr. 337-41. She did not review any of Plaintiff’s medical records, and relied 8 solely on her interview with Plaintiff. Tr. 337. Plaintiff reported that he had anxiety and 9 panic attacks, and some depression that would last for a few days at a time, but that he 10 never had any formal psychiatric care or hospitalization. Tr. 337-38. Plaintiff also 11 reported that he lived alone, cooked, grocery shopped, handled money, did household 12 chores, and smoked one and a half packs of cigarettes per day. Id. Dr. Steingard 13 diagnosed alcohol abuse in remission, depression, and panic attacks, as well as amnesic 14 disorder that had been resolved. Tr. 339. She opined that Plaintiff had intact memory, 15 could understand instructions, and could complete tasks as instructed, but that he would 16 have difficulty maintaining sustained concentration and persistence while experiencing a 17 panic attack, which occurred a couple of times per month. Tr. 339-40. She added that 18 his ability to interact in social situations was unimpaired, but that he would have 19 difficulty handling some stress. Id. 20 Plaintiff’s November 2007 chest x-ray was normal (Tr. 335), and a pulmonary 21 function test showed no evidence of respiratory illness or bronchial spasms (Tr. 394-96). 22 The same month, Dr. Norman Fernando performed a physical evaluation of Plaintiff. 23 Tr. 342-43. Dr. Fernando found a clear chest, normal gait, normal flexion, and full range 24 of motion with no inflammation in Plaintiff’s joints. Id. He diagnosed Plaintiff with 25 “diffuse pain,” tobacco use, and mild COPD. Tr. 344. Dr. Fernando opined that if 26 Plaintiff’s claims of lumbar spine disease were true, he should not lift more than 20 27 pounds occasionally and 10 pounds frequently; could walk for three to four hours per day 28 with no assistive device; could frequently climb ramps and stoop; and could occasionally -4- 1 climb ladders, kneel, crouch, and crawl. Tr. 344. Also in November 2007, state agency psychologist Heather Barrons reviewed 2 3 Plaintiff’s medical records and completed a psychiatric review form. Tr. 369-81. 4 Dr. Barrons opined that Plaintiff had non-severe anxiety and depression. Tr. 369. She 5 noted that Plaintiff’s anxiety was well-controlled with medication and that he had no 6 history of mental health treatment. Tr. 381. 7 In December 2007, state agency physician Dr. Erika Wavak reviewed Plaintiff’s 8 medical records in connection with his disability application. Tr. 397-404. Dr. Wavak 9 opined that Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds 10 frequently; sit, stand, and/or walk six hours each day in an eight-hour work day; and 11 perform all postural activities except that he could never climb ladders, ropes, or 12 scaffolds. Tr. 397-404. The same month, Dr. Brar opined that Plaintiff’s breathing 13 problems did not limit his ability to perform work in any way. Tr. 386. 14 On January 15, 2008, Plaintiff treated with Dr. Todd Turley. Dr. Turley diagnosed 15 lumbar radiculopathy and neuralgia/neuritis/radiculitis. Tr. 802-04. A January 2008 CT 16 scan of Plaintiff’s chest showed some lung nodules, mild fibrosis, and some emphysema- 17 like changes in his lungs. Tr. 630-32. On February 5, 2008, Dr. Turley treated Plaintiff for persistent back pain that 18 19 radiated down both legs. Tr. 799. Plaintiff underwent a lumbar spine MRI on 20 February 6, 2008, which revealed multilevel degenerative joint disease and degenerative 21 disc disease; disc bulge at L3-L4, L4-L5, and L5-S1; mild spinal canal stenosis at L3-L4; 22 mild-moderate spinal canal stenosis at L4-L5; and bilateral L3-L4, L4-L5, and L5-S1 23 neural foraminal stenosis. Tr. 605-06. Also in early 2008, Plaintiff met with Dr. Brar and complained of shortness of 24 25 breath. Tr. 625. Dr. Brar noted that Plaintiff continued to smoke and was “not 26 interested” in quitting, and that Plaintiff wanted to apply for disability even though his 27 pulmonary function tests “have not been that bad.” Tr. 625. Dr. Brar noted that Plaintiff 28 did have severe back pain and walked with a cane. Id. He opined that Plaintiff’s -5- 1 shortness of breath “is possibly related to deconditioning and obesity as much as it is 2 related to COPD.” Id. 3 In March 2008, Plaintiff received treatment at the Sun Health Dell Webb Hospital 4 Pain Management Center for continuing complaints of lumbar pain. He was continuing 5 to use a cane. MRIs revealed stenosis at L4-L5 (Tr. 413-14), and an epidural injection 6 was administered to provide temporary relief (Tr. 792). Dr. Turley performed additional 7 epidural steroid injections on April 22, 2008 (Tr. 791-92) and May 7, 2008 (Tr. 788-79). 8 9 Throughout 2008, Plaintiff met with Dr. Nally approximately once a month for medication refills. He continued to complain of coughing, high blood pressure, 10 headaches, anxiety, and back pain. Tr. 548-96, 599-603, 609-14, 674-77, 704-21. Dr. 11 Nally noted that Plaintiff had a full range of motion without pain, normal muscle tone and 12 strength in his extremities, and a normal gait. Tr. 548-96, 599-603, 609-14, 704-21. 13 Plaintiff also visited The Pain Center of Arizona approximately once a month throughout 14 2008 and 2009 for pain medication and periodic epidural injections. Tr. 723-804. 15 In June 2008, Dr. Perla T. Gabuya performed a psychiatric evaluation of Plaintiff. 16 Tr. 685-89. Dr. Gabuya noted that Plaintiff walked with a cane, but that his gait appeared 17 normal. Tr. 687. In her mental status evaluation of Plaintiff, Dr. Gabuya opined that 18 Plaintiff could perform simple and repetitive tasks with supervision; perform detailed and 19 complex tasks with reminders; accept instructions from supervisors; interact with co- 20 workers and the public; maintain regular attendance; and deal with usual stress with some 21 supervision. Tr. 687-89. 22 In July 2008, state agency psychologist Dr. Stephen Fair reviewed Plaintiff’s 23 medical records and agreed with Dr. Barron’s previous assessment that Plaintiff’s mental 24 health impairments were non-severe. Tr. 690; see Tr. 369-81. The same month, state 25 agency physician Dr. Thomas Disney reviewed Plaintiff’s medical records and agreed 26 with Dr. Wavak’s previous opinion that Plaintiff could perform light work with some 27 additional postural and environmental restrictions, except that Dr. Disney opined that 28 Plaintiff could occasionally crouch and crawl (as opposed to frequently, as Dr. Wavak -6- 1 had opined). Tr. 691-98; 397-404. 2 In September 2008, Dr. Nally completed a check-the-box form regarding 3 Plaintiff’s ability to perform work-related activities. Tr. 700-01. Dr. Nally opined that 4 Plaintiff could sit more than two hours but less than three hours in an eight-hour 5 workday; stand and/or walk less than one hour in an eight-hour work day; lift more than 6 10 pounds but less than 20 pounds; carry less than 10 pounds; never crawl, climb, stoop, 7 crouch, or kneel; occasionally bend and balance; frequently reach; had limitations on the 8 use of his feet; should avoid unprotected heights; could have moderate exposure to 9 moving machinery and marked changes in temperature and humidity; and had restrictions 10 on his exposure to dust, fumes, and gas. Id. Dr. Nally concluded that Plaintiff was 11 unable to work on a full-time basis due to his back pain and anxiety. Id. 12 B. Hearing Testimony. 13 At the March 16, 2010 administrative hearing, Plaintiff testified that he had 14 worked at Home Depot “on the floor” for a long time, but was assigned to Home Depot’s 15 call center approximately one and one-half years before being fired in February 2006. 16 Tr. 28. Plaintiff described pain in his hips, back, legs, and groin (for which he had hernia 17 surgery in 2001), as well as shortness of breath from heavy smoking, anxiety, and 18 memory problems due to low sodium levels. Tr. 30-32. He denied any side effects from 19 his medications. Tr. 38. Plaintiff reported that he used a cane to walk, but that the cane 20 had not been prescribed by a doctor. Tr. 33. 21 Vocational expert George Bluth testified that a hypothetical person of Plaintiff’s 22 age, education, and work history, who could perform light work with additional 23 limitations, was limited to sitting for 30 minutes at a time, standing for 45 minutes at a 24 time, and ambulating for three to four hours a day with normal breaks, could perform 25 Plaintiff’s past relevant work as a telephone customer service representative and a social 26 club manager. Tr. 40-42. 27 On May 26, 2010, the ALJ issued her decision. Tr. 53-63. She concluded that 28 Plaintiff had some severe impairments, including back pain due to arthritis and -7- 1 degenerative disc disease, chronic pain due to a prior hernia, COPD, high blood pressure, 2 and obesity, but that these impairments were not per se disabling. Tr. 55-58. She found 3 that Plaintiff had a residual functional capacity (“RFC”) to perform a limited range of 4 light work. Tr. 58. The ALJ concluded, based on the vocational expert’s testimony, that 5 Plaintiff could perform his past relevant work as a telephone customer service 6 representative and a social club manager. Tr. 62-63. As a result, the ALJ found that 7 Plaintiff was not disabled under the Social Security Act. Tr. 63. 8 II. Standard of Review. Defendant’s decision to deny benefits will be vacated “only if it is not supported 9 10 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 11 466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere 12 scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind 13 might accept as adequate to support a conclusion.” Id. To determine whether substantial 14 evidence supports Defendant’s decision, the Court must review the administrative record 15 as a whole, weighing both the evidence that supports the decision and the evidence that 16 detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is 17 sufficient evidence to support Defendant’s determination, the Court cannot substitute its 18 own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 19 III. Analysis. 20 Plaintiff claims that the ALJ failed properly to weigh his subjective complaints, 21 failed properly to weigh medical source opinion evidence, and failed to articulate 22 sufficient reasons for rejecting third-party reports. Doc. 13, at 11-24. 23 A. Plaintiff’s Subjective Complaints. 24 The ALJ considered Plaintiff’s claims that he was unable to work on a regular and 25 continuing basis. Tr. 59. Plaintiff reported that he experienced chronic lumbar pain, 26 shortness of breath, and chronic pain in his groin from a hernia, despite having had 27 surgeries to repair the hernia. Id. At the administrative hearing, Plaintiff testified that he 28 could sit only for 30 minutes and stand for 45 minutes before needing to change position -8- 1 due to his pain. Id. He also stated that he could walk only one block before needing rest, 2 and that he must use a cane. Id. He testified that he needed prescription muscle relaxers 3 and medication to alleviate his pain symptoms. Id. 4 To determine whether a claimant’s testimony regarding subjective symptoms is 5 credible, the ALJ must engage in a two-step analysis. “First, the ALJ must determine 6 whether the claimant has presented objective medical evidence of an underlying 7 impairment ‘which could reasonably be expected to produce the pain or other symptoms 8 alleged.’ The claimant, however, ‘need not show that [his] impairment could reasonably 9 be expected to cause the severity of the symptom [he] has alleged; [he] need only show 10 that it could reasonably have caused some degree of the symptom.’” Lingenfelter v. 11 Astrue, 504 F.3d 1028, 1036-37 (9th Cir. 2007) (citations omitted). “Second, if the 12 claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject 13 the claimant’s testimony about the severity of [his] symptoms only by offering specific, 14 clear and convincing reasons for doing so.’” Id. at 1037 (citations omitted). 15 At the first step, the ALJ found that Plaintiff’s medically determinable 16 impairments “could reasonably be expected to cause some of the alleged symptoms.” 17 Tr. 59. Given this conclusion, and the lack of any evidence of malingering, the ALJ was 18 required to present “specific, clear and convincing reasons” for finding that Plaintiff’s 19 subjective descriptions of his symptoms was not credible. See Smolen v. Chater, 80 20 F.3d 1273, 1281 (9th Cir. 1996). Plaintiff claims that the ALJ erred by finding that his 21 assertions not credible without sufficient specificity and explanation to satisfy the clear 22 and convincing standard. See Doc. 13, at 15 (“The ALJ did not explain which symptoms 23 could reasonably be caused by [Plaintiff’s] medically determinable impairments nor did 24 she specify which of [Plaintiff’s] statements were not credible. Federal courts have 25 repeatedly criticized such generalized credibility findings.”). 26 In the second step of the credibility analysis, “[t]he ALJ must specifically identify 27 what testimony is credible and what testimony undermines the claimant’s complaints.” 28 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). “In weighing -9- 1 a claimant’s credibility, the ALJ may consider his reputation for truthfulness, 2 inconsistencies either in his testimony or between his testimony and his conduct, his daily 3 activities, his work record, and testimony from physicians and third parties concerning 4 the nature, severity, and effect of the symptoms of which he complains.” Light v. Soc. 5 Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997); see Smolen, 80 F.3d at 1284; Moncada v. 6 Chater, 60 F.3d 521, 524 (9th Cir. 1995). 7 The ALJ stated that Plaintiff’s statements “concerning the intensity, persistence 8 and limiting effects of these symptoms are not credible to the extent they are inconsistent 9 with the [RFC].” Tr. 59. She then identified the following testimony, accompanied by 10 reasons for why that testimony was not credible: Plaintiff asserted disabling physical 11 impairments, but is capable of many activities of daily living without assistance; he 12 reported shortness of breath, but continues to smoke at least one pack of cigarettes per 13 day and has done so for decades; he claimed to require the assistance of a cane in order to 14 walk, but a cane has not been prescribed or deemed medically necessary by a physician; 15 and he testified that medication reduces his pain level without producing side effects. 16 Tr. 59. The Court will address each of these credibility conclusions. 17 1. Daily Activities. 18 The ALJ discredited Plaintiff’s assertions of disabling physical impairments 19 because “the record shows that he is capable of many activities of daily living and does 20 not require others to assist him.” Tr. 59. The ALJ noted Plaintiff’s statements that he 21 “lives alone and is independent in routines of self care, such as bathing, dressing, and 22 shaving,” that he “is able to prepare simple meals and perform light household chores, 23 such as vacuuming and dusting,” and that he “is able to go out daily, sometimes twice per 24 day, and can walk, drive a car, and shop at the store for food.” Tr. 59. 25 Plaintiff also reports, however, that he has trouble putting on socks, shoes, and 26 pants because of his pain, that he has trouble lifting his left leg up and over the tub in 27 order to take a shower, and that sometimes raising his hands and arms causes pain down 28 his legs. Tr. 185. He vacuums, dusts, sweeps, and mops, but claims that “everything is - 10 - 1 painful” and takes three times longer. Tr. 186. He needs help lifting things because he 2 “get[s] tired very fast from the pain.” Id. He claims that he can only drive five or ten 3 minutes, and that anything longer is painful. Tr. 187. He reports that he shops for food, 4 but uses an electric cart and gets in and out as fast as he can. Id. The ALJ does not 5 mention these additional details in her opinion. 6 The Ninth Circuit “has repeatedly asserted that the mere fact that a plaintiff has 7 carried on certain daily activities . . . does not in any way detract from [his] credibility as 8 to [his] overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 9 Neither of the two grounds for using daily activities to form the basis of an adverse 10 credibility determination is present. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 11 2007). First, Plaintiff’s activities, as described, do not contradict his other testimony that 12 chronic pain prevents him from sustaining work on a regular and continuing basis. See 13 Tr. 56. Second, his activities do not meet the threshold for transferable work skills. See 14 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 15 The Ninth Circuit has held that if a claimant “is able to spend a substantial part of 16 his day engaged in pursuits involving the performance of physical functions that are 17 transferable to a work setting, a specific finding as to this fact may be sufficient to 18 discredit a claimant’s allegations.” Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 19 595, 600 (9th Cir. 1999). Here, there is neither evidence to support that Plaintiff’s 20 activities were transferrable to a work setting nor proof that Plaintiff spent a substantial 21 part of his day engaged in transferable skills. See Fair, 885 F.2d at 603. An ALJ must 22 make “specific findings relating to [the daily] activities” and their transferability to 23 conclude that a claimant’s daily activities warrant an adverse credibility determination. 24 Burch v. Barnhart, 400 F.3d 676, 681(9th Cir. 2005). The ALJ has not made such 25 specific findings. The fact that Plaintiff may perform daily activities “despite pain . . . 26 does not mean [he] could concentrate on work despite the pain or could engage in similar 27 activity for a longer period given the pain involved.” Vertigan, 260 F.3d at 1050. 28 - 11 - 1 2. Shortness of Breath. 2 The ALJ discredited Plaintiff’s reports of shortness of breath by noting that 3 Plaintiff “continues to smoke at least one pack of cigarettes per day and has smoked that 4 much for decades.” 5 examination by Dr. Fernando performed in November 2007, approximately 28 months 6 before the administrative hearing, and notes that he has since tried to stop smoking. 7 Doc. 19, at 4; see Tr. 343. At the hearing, Plaintiff testified that he had reduced his 8 smoking from two or more packs of cigarettes per day to one-half pack per day. Id.; see 9 Tr. 32 (“Q: Do you smoke? A: Yes. Q: How much? A: A half a pack a day. Q: You 10 used to smoke more? A: Oh, yeah, much more, two, two-and-a-half packs. Q: Doctors 11 tell you to quit? A: Yes. Q: Are you trying? A: Yeah, brought it down to half a pack.”). 12 Although Plaintiff has shown improvement, the ALJ did not commit legal error by 13 reasoning that if Plaintiff’s respiratory problems were disabling, then he presumably 14 would not continue smoking at all. See Bray v. Comm’r of Soc. Sec. Admin., 554 15 F.3d 1219, 1227 (9th Cir. 2009) (ALJ’s finding that the claimant continued to smoke up 16 until one month before the hearing, despite complaining of debilitating shortness of 17 breath and acute chemical sensitivity, supported a finding of not disabled). 18 3. Tr. 59. Plaintiff objects that the ALJ cites to a consultative Use of a Cane. 19 The ALJ discredited Plaintiff’s pain testimony because of his statement that he 20 required a cane to assist him in walking even though “it has not been prescribed or 21 deemed medically necessary by a physician.” Tr. 56. Plaintiff argues that the ALJ has 22 mischaracterized the record because Plaintiff did not state that his cane was required; at 23 the hearing, Plaintiff merely testified that he uses a cane and that Dr. Fong thought it was 24 a good idea at the time. Doc. 13, at 17; see Tr. 33. In a function report, Plaintiff reports 25 that he uses a cane “most of the time.” Tr. 190. 26 The ALJ has not cited to evidence in the record that Plaintiff stated that he 27 required the assistance of a cane. The observation that Plaintiff used a cane when it had 28 not been prescribed or deemed medically necessary by a physician provides little, if any, - 12 - 1 support to discredit Plaintiff’s testimony. Plaintiff truthfully admitted that a physician 2 had not prescribed the use of the cane. His mere use of this device is not clear and 3 convincing evidence to find him not credible. Cf. Verduzco v. Apfel, 188 F.3d 1087, 4 1090 (9th Cir. 1999) (ALJ properly discounted claimant’s pain testimony when claimant 5 walked slowly and used a cane at the hearing, but none of his doctors indicated that he 6 needed an assistive device to walk, and claimant was able to stand swiftly and produce 7 his driver’s license from his rear pocket without effort or apparent discomfort). 8 4. Pain and Medication. 9 The ALJ appears to have discredited Plaintiff’s pain testimony because Plaintiff 10 testified that “the prescribed pain medication reduced his level of pain and that he does 11 not experience side effects.” Tr. 56. At the hearing, Plaintiff testified that the medication 12 helps “hold the pain down.” Tr. 30. He asserted that medication reduces his pain from a 13 level of 9 on a scale of 10 to a level 5 on a scale of 10. Tr. 56. Although the ALJ did not 14 specifically state that she was discrediting Plaintiff’s pain testimony, she did not include 15 chronic pain in the hypothetical questions she asked of the vocational expert at the 16 hearing. Thus, the ALJ did not determine whether Plaintiff’s chronic pain, in addition to 17 his other symptoms, would preclude him from working. Tr. 41-42. The Court concludes 18 from this approach that the ALJ did not credit Plaintiff’s pain testimony. 19 Plaintiff objects that he regularly complained to his physicians that medication did 20 not adequately control his pain. Doc. 13, at 17 (citing Tr. 801-04, 775-77). 21 January 15, 2008 treatment note, Dr. Turley stated that Plaintiff “has been using Percocet 22 for pain which was ordered for the groin pain per Dr. Fong,” and that Plaintiff “is noting 23 effective pain relief with that so we will not change it.” Tr. 804. In a September 9, 2008 24 treatment note, however, Dr. Turley stated: “We have him on Percocet and he is not 25 finding this is ineffective for his pain. The Flexeril is taking away some of the spasms 26 but he still needs a better pain control.” Tr. 776. Although these treatment notes are 27 ambiguous, a reasonable summary seems to be that Percocet was somewhat effective in 28 controlling Plaintiff’s pain, but that more needed to be done – “he still needs better pain - 13 - In a 1 control.” Id. As noted above, Plaintiff testified that medications reduced his pain only 2 from a level 9 to a level 5. In addition, the record shows that Plaintiff continually sought 3 treatment for his pain at The Pain Center of Arizona and Sun Health Del Webb Hospital 4 Pain Management Center throughout 2008. Tr. 413-14, 792, 769-70, 766. Plaintiff also 5 received epidural injections that would provide “several days of relief,” but the pain 6 would return. Tr. 792. 7 Thus, although Plaintiff did testify that he does not experience side effects from 8 the pain medication, the record does not support the ALJ’s apparent conclusion that the 9 medication completely controlled his pain. The Court concludes that the ALJ’s reliance 10 on Plaintiff’s receipt of pain medication and the absence of side effects does not 11 constitute “specific, clear and convincing reasons” for finding that Plaintiff’s subjective 12 descriptions of his pain not credible. Smolen, 80 F.3d at 1281. 5. 13 Summary and Conclusion. 14 The Court concludes that the ALJ’s reason for discounting Plaintiff’s shortness of 15 breath complaints is valid, but that she failed to provide sufficient reasons for discounting 16 Plaintiff’s general disability and pain testimony. The Court must therefore determine 17 whether this error was harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 18 1155, 1162 (9th Cir. 2008); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195- 19 97 (9th Cir. 2004). 20 The ALJ’s incorrect reliance on Plaintiff’s daily activities and his use of non- 21 prescribed cane to discredit his disability testimony appears to have been harmless 22 because she included virtually all of his alleged physical limitations in the questions she 23 asked the vocational expert, and the expert said they would not preclude Plaintiff from 24 working. Tr. 41-42.2 However, the same cannot be said for the ALJ’s disregard of 25 Plaintiff’s chronic pain testimony. The ALJ asked the vocational expert a series of 26 2 27 28 The one possible exception concerns Plaintiff’s use of a cane. The vocational expert testified that required use of a cane, when added to Plaintiff’s other limitations, would prevent him from working. Tr. 42. This fact does not require reversal, however, because Plaintiff himself suggests that his use of a cane is not required. Doc. 13 at 17. - 14 - 1 hypothetical questions that included increasingly restrictive physical conditions, 2 eventually arriving at a hypothetical person who is restricted to sitting for 30 minutes and 3 standing for 45 minutes at a time. 4 hypothetical persons – except one that required a cane – could perform the work of a 5 customer services representative or club manager. Id. The ALJ did not, however, asked 6 whether a person with these restrictions could perform the work if the person also 7 suffered from chronic pain. Because the ALJ did not ask this question, the Court cannot 8 determine whether the ALJ’s incorrect discrediting of Plaintiff’s pain testimony was 9 harmless error. Under Ninth Circuit law, the Court must credit Plaintiff’s pain testimony 10 as true – that is, his testimony that medication reduces his pain from a level 9 to a level 5 11 – and remand for a determination of whether adding such pain to the list of restrictive 12 conditions mentioned in the ALJ’s hypothetical would render a person unable to work.3 Tr. 40-42. The ALJ said that each of these 13 B. Medical Source Evidence. 14 Plaintiff argues that the ALJ failed to properly weigh medical source opinion 15 evidence. Doc. 13, at 19. Specifically, Plaintiff claims that the ALJ erred by giving little 16 weight to the opinion of Dr. Nally, Plaintiff’s treating physician, and by giving 17 substantial weight to the opinions of consultative examiners and state agency physicians. 18 Id. at 21-23. 19 In weighing medical source opinions, the Ninth Circuit distinguishes among three 20 types of physicians: (1) treating physicians, who actually treat the claimant; 21 (2) examining physicians, who examine but do not treat the claimant; and (3) non- 22 examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 23 3 24 25 26 27 28 Plaintiff’s lawyer did ask the vocational expert whether a person suffering from “moderately severe pain” could perform his past work, and the expert said no. Tr. 43. It is not clear from the transcript, however, whether the vocational expert was assuming that all of Plaintiff’s other subjective symptom testimony was true – as Plaintiff’s counsel had asked in the preceding question – and whether other limitations identified by Plaintiff’s counsel (Tr. 42) were included in the expert’s answer. Because the Court has found that the ALJ properly discounted some of Plaintiff’s subjective symptom testimony, such as shortness of breath, the Court cannot determine from the line of questioning by Plaintiff’s counsel whether the ALJ’s improper discrediting of the pain testimony was harmless. Remand is therefore necessary. - 15 - 1 F.3d 821, 830 (9th Cir. 1995). The medical opinion of a claimant’s treating physician is 2 generally entitled to more weight than the opinions of non-treating physicians. Id. A 3 treating physician’s opinion is afforded great weight because such physicians are 4 “employed to cure and [have] a greater opportunity to observe and know the patient as an 5 individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). Where a treating 6 physician’s opinion is not contradicted by another physician, it may be rejected only for 7 “clear and convincing” reasons, and where it is contradicted, it may not be rejected 8 without “specific and legitimate reasons” supported by substantial evidence in the record. 9 Lester, 81 F.3d at 830. Moreover, the ALJ must give substantial weight to the treating 10 physician’s subjective judgments in addition to his clinical findings. Id. at 832-33. 11 An examining physician’s opinion generally must be given greater weight than 12 that of a non-examining physician. Id. at 830. As with a treating physician, there must 13 be clear and convincing reasons for rejecting the uncontradicted opinion of an examining 14 physician, and specific and legitimate reasons, supported by substantial evidence in the 15 record, for rejecting an examining physician’s contradicted opinion. Id. at 830-31. 16 The opinion of a non-examining physician is not itself substantial evidence that 17 justifies the rejection of the opinion of either a treating or an examining physician. Id. 18 at 831. “The opinions of non-treating or non-examining physicians may also serve as 19 substantial evidence when the opinions are consistent with independent clinical findings 20 or other evidence on the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 21 Factors that an ALJ may consider when evaluating any medical opinion include “the 22 amount of relevant evidence that supports the opinion and the quality of the explanation 23 provided; the consistency of the medical opinion with the record as a whole; [and] the 24 specialty of the physician providing the opinion.” Orn, 495 F.3d at 631. 25 1. Dr. Nally. 26 On September 18, 2008, Dr. Nally completed a medical assessment form on 27 Plaintiff’s ability to perform work-related physical activities. Tr. 700-01. Dr. Nally 28 opined that Plaintiff could not perform work 8 hours a day, 5 days a week, on a regular - 16 - 1 and consistent basis. Tr. 700. In the same assessment, Dr. Nally noted that Plaintiff’s 2 symptoms of pain, fatigue, and anxiety “further limit[ed] his ability to sustain work 3 activity for 8 hours a day, 5 days a week,” and rated the degree of limitation as 4 “moderate,” defined as “[a]n impairment which affects, but does not preclude ability to 5 function.” Tr. 701. 6 The ALJ gave Dr. Nally’s opinion little weight because his opinion “that the 7 claimant could not sustain an 8-hour workday for 5 days per week is internally 8 inconsistent with his assessment that the claimant’s limitations are only ‘moderate.’” 9 Tr. 61. The ALJ appears to have misread Dr. Nally’s opinion on this point. The opinion 10 states that there are further moderate limitations due to pain, fatigue, and anxiety, but not 11 that Plaintiff’s total limitation was only moderate. See Doc. 13, at 21. 12 The ALJ found that the September 2008 assessment “is also inconsistent with 13 Dr. Nally’s routine treatment notes, in which the claimant has a full range of motion 14 without pain, normal muscle strength and tone, normal neurologic findings, negative 15 straight-leg raising, and a normal gait.” Tr. 61-62. To support her interpretation of the 16 evidence, the ALJ cites to progress notes from August 27, 2008 and July 9, 2008, in 17 which Dr. Nally indicated under the heading “Objective – Physical Exam” that Plaintiff 18 had full range of motion in his extremities without pain, normal muscle tone and strength, 19 no joint deformity, effusion, or inflammation, and no peripheral edema. Tr. 706, 710. 20 Dr. Nally’s notes also indicate that Plaintiff had regular and symmetrical respirations 21 without retraction in his lungs and chest, had a normal affect, and appeared with no acute 22 distress. Tr. 705, 706, 710. Plaintiff objects that these same records document chronic 23 groin pain under the management of Dr. Fong, low back and hip pain with lumbar 24 spondylosis under the management of Dr. Turley, generalized anxiety disorder with 25 severe panic and insomnia, increased neck pain, and headaches due to neck stiffness and 26 back pain. Doc. 19, at 8 (citing Tr. 704, 708, 709). These notes, however, are listed as 27 Plaintiff’s subjective complaints and past medical history, and do not appear to be based 28 on Dr. Nally’s own findings. See Tr. 704, 708, 709. The ALJ is the final arbiter with - 17 - 1 respect to resolving ambiguities in the medical evidence. See Andrews v. Shalala, 53 2 F.3d 1035, 1039-40 (9th Cir. 1995) (“The ALJ is responsible for determining credibility, 3 resolving conflicts in medical testimony, and for resolving ambiguities.”) (citing 4 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The incongruity between 5 Dr. Nally’s September 2008 assessment form and his own treatment notes provides a 6 specific and legitimate reason for giving little weight to his opinion of Plaintiff’s physical 7 limitations. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 8 2. Remaining Medical Opinions. 9 Plaintiff met with three consultative examiners: Drs. Fernando, Steingard, and 10 Gabuya. Dr. Fernando conducted a physical examination of Plaintiff and found that he 11 had a full range of motion in his joints, without any signs of inflammation. Tr. 343. 12 Dr. Fernando performed a spirometry test and found that Plaintiff put forth suboptimal 13 effort based on a 12% decline in Plaintiff’s score, post bronchodilator. Id. Based on the 14 examination, Dr. Fernando opined that Plaintiff would be able to lift no more than 20 15 pounds occasionally and 10 pounds frequently, would be able to ambulate three to four 16 hours per day, and did not need an assistive device for walking. Tr. 344. The ALJ gave 17 Dr. Fernando’s opinion substantial weight because it was based on an in-person 18 examination and objective test results and was consistent with the overall record. Tr. 60. 19 Plaintiff argues that Dr. Fernando’s report does not reference a review of any records 20 (Doc. 13, at 22), but Dr. Fernando’s opinion alone constitutes substantial evidence 21 because it rests on his own independent examination of Plaintiff. Tonapetyan v. Halter, 22 242 F.3d 1144, 1149 (9th Cir. 2001). Dr. Fernando’s opinion serves as an additional 23 specific and legitimate reason for giving little weight to Dr. Nally’s opinion, and supports 24 the ALJ’s findings with regard to Plaintiff’s exertional limitations. 25 Dr. Steingard evaluated Plaintiff’s mental health and found that his overall mental 26 status examination was unremarkable. Tr. 339. The ALJ gave substantial weight to 27 Dr. Steingard’s opinion regarding Plaintiff’s ability to remember, understand, and carry 28 out instructions and complete tasks “because these conclusions are based on objective - 18 - 1 results from the mental status examination.” Tr. 60. The ALJ gave little weight to 2 Dr. Steingard’s opinion regarding Plaintiff’s ability to maintain concentration and 3 persistence during a panic attack because this was based on the Plaintiff’s reports rather 4 than the objective results of the mental status examination. Id. 5 Plaintiff also met with Dr. Gabuya for a mental status examination. Dr. Gabuya 6 opined that Plaintiff could perform work activities on a consistent basis for simple 7 activities, would need reminders for more complex tasks, and would be able to maintain 8 regular attendance in the workplace. Tr. 689. The ALJ gave Dr. Gabuya’s opinion 9 substantial weight because “it is consistent with the objective evidence in the record[.]” 10 Tr. 61. 11 Drs. Wavak and Disney reviewed Plaintiff’s records and opined that Plaintiff was 12 capable of limited work at the light exertional level with some postural and 13 environmental limitations. Tr. 60-61. The ALJ gave substantial weight to the opinions 14 of Drs. Wavak and Disney because they are consistent with the overall medical record. 15 Id. Plaintiff objects that Drs. Wavak and Disney never examined Plaintiff. Doc. 13, 16 at 22. 17 An examining physician’s opinion constitutes substantial evidence when based on 18 an independent evaluation of plaintiff. Tonapetyan, 242 F.3d at 1149. Here, the ALJ 19 relied on the opinions of three examining physicians – Fernando, Steingard, and Gabuya. 20 The opinion of a non-examining physician may also constitute substantial evidence when 21 consistent with independent clinical findings or other evidence on the record. Thomas v. 22 Barnhart, 278 F.3d at 957. Here, the ALJ found that the opinions of Drs. Wavak and 23 Disney were consistent with the overall medical record. The Court concludes that the 24 ALJ did not err in the weight she gave to the opinions of these physicians or in her 25 discounting of Dr. Nally’s opinion. 26 C. Lay Witness Testimony. 27 “In determining whether a claimant is disabled, an ALJ must consider lay witness 28 testimony concerning a claimant’s ability to work.” Stout v. Comm’r, 454 F.3d 1050, - 19 - 1 1053 (9th Cir. 2006); see also 20 C.F.R. §§ 404.1513(d)(4), (e). Such testimony is 2 competent evidence and cannot be disregarded without comment. Nguyen v. Chater, 100 3 F.3d 1462, 1467 (9th Cir. 1996). If an ALJ disregards the testimony of a lay witness, the 4 ALJ must provide reasons “that are germane to each witness.” Id. Plaintiff argues that 5 the ALJ erred in rejecting the testimony of Mr. Arthur Fowler, Plaintiff’s stepfather, 6 without offering any reasons for doing so. Doc. 13, at 23-24. 7 Mr. Fowler reported that Plaintiff went out each day on his own and went to the 8 store by car. Tr. 200. He noted that Plaintiff’s condition affected his ability to lift, stand, 9 walk, kneel, and complete tasks, but did not know the extent of these limitations. 10 Tr. 202. Defendant argues that Mr. Fowler’s report mirrors Plaintiff’s subjective 11 complaints and that the ALJ reasonably rejected Mr. Fowler’s statement for the same 12 reasons she rejected Plaintiff’s complaints. Doc. 16, at 20-21. On the contrary, the 13 record is unclear as to whether the ALJ accepted or rejected Mr. Fowler’s statement, and 14 why. The ALJ states only that she “has given consideration to Mr. Fowler’s statements 15 and has determined that [Plaintiff’s] limitations are not as disabling as he has alleged.” 16 Tr. 62. Cf. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) 17 (finding that the ALJ gave germane reasons for rejecting lay testimony because the ALJ 18 rejected the testimony based, at least in part, on the same reasons she discounted the 19 claimant’s allegations). The Court’s review must be “based on the reasoning and factual 20 findings offered by the ALJ – not post hoc rationalizations that attempt to intuit what the 21 adjudicator may have been thinking.” 22 F.3d 1219, 1225 (9th Cir. 2009). It is clear that the ALJ considered Mr. Fowler’s 23 statement, but the Court is left to guess at how that testimony influenced the ALJ’s 24 decision. Bray v. Comm’r of Soc. Sec. Admin., 554 25 In addition to discussing limitations on Plaintiff’s activities as mentioned above, 26 Mr. Fowler asserted that Plaintiff formerly was able to work and help other people, 27 including Mr. Fowler and his wife (Plaintiff’s mother), but that the “last two years (2006 28 to [2008]) have been entirely different. [Plaintiff] is unable to do anything for anyone - 20 - 1 because he tires so easily and he has a great deal of pain in his back and legs.” Tr. 204. 2 The ALJ did not address these assertions by Mr. Fowler, nor did she explain why they 3 were disregarded in her decision. This was error. Nguyen, 100 F.3d at 1467. 4 IV. Remand. 5 As with her rejection of Plaintiff’s pain testimony, the Court cannot determine 6 whether the ALJ’s discounting of Mr. Fowler’s testimony was harmless error. The ALJ’s 7 hypothetical questions to the vocational expert included virtually all of Plaintiff’s 8 physical limitations, and the expert said Plaintiff could perform his past work of customer 9 service or club manager. But the ALJ did not include chronic pain (as confirmed by Mr. 10 Fowler’s assertion) in her question, and the Court therefore cannot determine whether 11 inclusion of that symptom would have produced a different result. On remand, the AJL 12 should credit Plaintiff’s pain testimony as true. See Benecke v. Barnhart, 379 F.3d 587 13 (9th Cir. 2007) (“Because the ALJ failed to provide legally sufficient reasons for 14 rejecting Benecke’s testimony and her treating physicians’ opinions, we credit the 15 evidence as true.”). The Court should also credit as true Mr. Fowler’s assertions. Id. 16 With this evidence credited as true, the ALJ must determine whether Plaintiff’s RFC 17 precludes him from performing his past work, and, if not, whether that work exists in 18 substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v). 19 IT IS ORDERED: 20 1. Defendant’s decision denying 21 supplemental security benefits is reversed. 22 disability proceedings consistent with the discussion above. 23 2. 24 Dated this 20th day of June, 2012. 26 27 28 - 21 - benefits and This action is remanded for further The Clerk is directed to terminate this action. 25 insurance

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