Beck v. Astrue

Filing 15

ORDER REVERSING the decision of the Commissioner and REMANDING for rehearing or reconsideration under sentence four of 42 U.S.C. § 405(g). On remand the ALJ is directed to: (1) reevaluate the plaintiff's subjective symptoms; (2) evaluate th e lay witness testimony of Michelle Clevinger; (3) if plaintiff's RFC is adjusted by the ALJ's consideration of the above evidence, consult a VE as needed to determine whether there are a significant number of jobs in the national economy that plaintiff can perform given her age, education, work experience, and RFC. The Clerk shall enter judgment. Signed by Judge Frederick J Martone on 4/19/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pamela Ann Beck,
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Plaintiff,
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vs.
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Michael J. Astrue,
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Defendant.
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CV 11-01813-PHX-FJM
ORDER

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This is an appeal from a denial of social security disability benefits. We have before

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us plaintiff's opening brief (doc. 12), defendant's response (doc. 13), and plaintiff's reply

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(doc. 14).

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A court may set aside a denial of benefits "only if it is not supported by substantial

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evidence or if it is based on legal error." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002) (citation omitted). Substantial evidence is "relevant evidence which, considering the

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record as a whole, a reasonable person might accept as adequate to support a conclusion.

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Where the evidence is susceptible to more than one rational interpretation, one of which

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supports the ALJ’s decision, the ALJ’s conclusion must be upheld." Id. (citations omitted).

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"We review only the reasons provided by the ALJ in the disability determination and may

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not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625,

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630 (9th Cir. 2007).

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I. Background

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Plaintiff filed applications for disability insurance benefits and supplemental security

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income in April 2009. Her applications were denied initially and on reconsideration. An

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administrative law judge (ALJ) held a hearing in October 2010. Both the plaintiff and a

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vocational expert (VE) testified. The ALJ denied plaintiff's application on December 23,

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2010. The Appeals Council denied plaintiff's request for review on July 19, 2011, rendering

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the ALJ's decision final.

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Plaintiff is fifty-five years old with an eleventh grade education, and was fifty years

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old on her alleged disability onset date of August 7, 2007. She previously worked as an

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assembly line factory worker and stopped working due to back pain. Plaintiff has also been

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diagnosed with stage-three chronic kidney disease, hypertension, carpal tunnel syndrome,

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and fatty liver disease.

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II. The ALJ's Disability Determination

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The ALJ followed the Social Security Act's five-step procedure to determine whether

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plaintiff is disabled under the Act. See 20 C.F.R. § 416.920(a)(4). The ALJ first determined

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that plaintiff had not engaged in substantial gainful activity since the date of alleged

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disability onset. At step two, the ALJ found that plaintiff has a number of impairments that

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are severe when considered in combination: degenerative disc disease of the lumbar spine

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with spondylosis and radiculopathy, hypertension, asthma, and a fatty liver.1

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At step three, the ALJ determined that plaintiff does not have an impairment or

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combination of impairments that meets or equals a listed impairment. The ALJ proceeded

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to calculate the plaintiff's residual functional capacity ("RFC"). He found that plaintiff has

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the RFC to perform light, unskilled work with a sit/stand option. Additionally, the ALJ

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concluded that plaintiff cannot crawl, crouch, climb, squat, kneel, use her lower extremities

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to push and pull, or use her upper extremities above her shoulder level. Based on this RFC,

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the ALJ concluded at step four that the plaintiff is unable to perform her past relevant work.

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He noted that plaintiff was 50 years old as of the alleged disability onset date and is an

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individual closely approaching advanced age as defined by the Social Security Act. The ALJ

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The ALJ found that plaintiff's depression and sleep disorder were non-severe
impairments. Plaintiff does not challenge this finding.
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decided that transferability of job skills is immaterial because plaintiff's previous work was

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unskilled.

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The ALJ consulted a VE at the hearing. The VE testified that a person with plaintiff's

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RFC could perform the jobs of a cashier, an assembler, and a general office clerk.2 If

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plaintiff had the RFC proposed by treating physician Dr. Benjamin, however, the VE testified

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that she would not have the capacity to perform even sedentary work. The ALJ concluded

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at step five that plaintiff is not disabled because there are a significant number of jobs in the

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national economy that plaintiff can perform.
III. Weight Given to Treating Physician Dr. Mathew Benjamin

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Dr. Benjamin, one of plaintiff's treating physicians, completed a physical capacities

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evaluation on August 16, 2010. He concluded that plaintiff can sit, stand, and walk for a

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total of two hours each. She can sit for fifteen minutes at a time, can stand for ten minutes

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at a time, and can walk for twenty minutes at a time. She can continuously lift and carry up

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to ten pounds and can occasionally lift and carry twenty pounds. Dr. Benjamin noted that

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plaintiff cannot use her left hand for simple grasping, and cannot use her feet for repetitive

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movements. She can occasionally bend, squat, climb and reach, but can never crawl. Her

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capacities are expected to deteriorate over the course of the workday, and to fluctuate from

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day to day. Tr. at 639. Finally, Dr. Benjamin found that plaintiff suffers from moderately

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severe pain and moderate fatigue, and does not have the stamina to sustain a full-time work

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schedule. Tr. at 640. This opinion differed from that of consulting examiner Dr. Keith

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Cunningham, who concluded after examining plaintiff in July 2009 that she had no

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limitations in her ability to sit, stand, or walk. Tr. at 349-50. The ALJ assigned Dr.

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Benjamin's opinion "significant, but not controlling evidentiary weight." Tr. at 44. Plaintiff

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argues that this was error.

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A medically acceptable treating source's opinion will be given controlling weight if

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The ALJ mistakenly lists these three jobs in his decision as cashier, assembler, and
cashier. Tr. at 45.
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the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with the other substantial evidence" in the record. 20

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C.F.R. § 404.1527(c)(2); see also Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.

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2001). An ALJ must articulate specific and legitimate reasons supported by substantial

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evidence to reject a treating physician's opinion that is contradicted by another physician's

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opinion. Bray v. Comm'r of Social Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009).

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Here, the reason offered by the ALJ for failing to assign Dr. Benjamin's opinion

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controlling weight is that "none of the claimant's other treating physicians imposed

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restrictions as limiting" as Dr. Benjamin's assessment. Tr. at 44. Plaintiff complains that this

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is not a specific or legitimate reason to reject some of Dr. Benjamin's proposed limitations

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because no other treating physicians completed an RFC assessment. However, the ALJ's

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observation that no other treating doctors imposed restrictions on plaintiff's activities (thus

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inferring that Dr. Benjamin's assessment is not adequately supported by the medical

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evidence) is a specific and legitimate reason. Moreover, it is supported by substantial

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evidence in the record. There is no indication in the treatment notes that any of plaintiff's

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doctors limited her activities in line with Dr. Benjamin's recommendations. Instead,

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treatment notes from the Mesa Pain Management Center suggest that plaintiff was coping

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with the help of her pain medication regimen. The notes frequently observed that plaintiff

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had normal (as opposed to frequent or alternate sitting/standing) position changes. Tr. at 415,

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422, 430, 437. Plaintiff repeatedly reported to the pain center that she was able to function

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independently and perform all activities of daily living with the pain medication prescribed.

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Tr. at 416, 423, 431, 438, 446, 453. Additionally, Dr. Benjamin's own treatment notes from

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June 2010 note that plaintiff "has stopped Methadone" and her "back pain is ok." Tr. at 616.

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Finally, the ALJ did assign significant weight to Dr. Benjamin's opinion, incorporating many

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of his proposed limitations into plaintiff's RFC. Viewing the record as a whole, the ALJ's

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conclusion that Dr. Benjamin's RFC assessment was not supported by plaintiff's other

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treating physicians is supported by "relevant evidence which, considering the record as a

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whole, a reasonable person might accept as adequate to support a conclusion." Thomas, 278
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F.3d at 954 (citation omitted). The ALJ did not err when assigning weight to Dr. Benjamin's

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opinion.

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IV. Subjective Pain Testimony

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Plaintiff testified that she cannot work due to pain. She stated that she can stand for

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ten to fifteen minutes and can sit for about half an hour. Tr. at 84-85. She will then lie down

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for about forty-five minutes at a time. Tr. at 85. In a function report completed by plaintiff

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in 2009, she stated that she can complete some housework and cook occasional meals, but

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these tasks take a long time to complete because she has to rest. Tr. at 248. Plaintiff's

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complaints of pain are frequently noted in her medical records.

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Plaintiff argues that the ALJ improperly evaluated the credibility of her subjective

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pain testimony. The evaluation of a claimant's subjective symptoms requires a two-step

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analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ must decide

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if the plaintiff "presented objective medical evidence of an underlying impairment which

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could reasonably be expected to produce the pain or other symptoms alleged." Id. (citation

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omitted). Unless there is evidence of malingering, an ALJ can only reject the plaintiff's

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testimony if he gives "specific, clear and convincing reasons." Id. (citation omitted). To

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support a finding that plaintiff lacks credibility, the ALJ must reference "specific facts in the

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record" to demonstrate that plaintiff "is in less pain than she claims." Id. at 592 (citation

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omitted).

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Here, the ALJ found that the plaintiff's impairments "could reasonably be expected

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to cause only some of the symptoms alleged." Tr. at 44. This satisfies the first prong. See

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Vasquez, 572 F.3d at 591. He concluded, however, that plaintiff's "statements concerning

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the intensity, persistence and limiting effects of these symptoms are not credible to the extent

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that they are inconsistent with the [RFC] assessment." Tr. at 44. The ALJ states that "the

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medical evidence does not support [plaintiff's] allegation." Tr. at 42. A general finding that

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pain testimony is not credible because it is not supported by the medical evidence is not

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sufficient. See Vasquez, 572 F.3d at 592 ("vague allegation" that complaints of back pain

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were inconsistent with objective medical evidence not sufficiently specific). The only
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specific portions of the medical record referenced by the ALJ that he concluded demonstrate

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plaintiff is not in as much pain as she claims are Dr. David Leff's treatment notes from

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plaintiff's visit on April 28, 2009. Tr. at 43. The ALJ notes that "Dr. Left [sic] did not

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impose any limitations" on plaintiff's RFC, and concludes that this "absence of limitations

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indicates the [plaintiff's] impairments were not as severe as she has alleged, which diminishes

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her credibility." Id. Plaintiff testified that she experienced significant back pain. Her visit

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to Dr. Leff in April 2009 was for treatment of her fatty liver disease, not for treatment of her

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back. Tr. at 371. Thus, the stated basis for the ALJ's rejection of plaintiff's subjective pain

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testimony was not sufficient.
V. Lay Witness Testimony

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Michelle Clevinger, plaintiff's friend, completed a third party function report in

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October 2009. Tr. at 254-61. Ms. Clevinger described the impact of plaintiff's pain on her

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daily functioning, stating that the pain makes it more difficult for plaintiff to perform

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personal care, and forces plaintiff to take a break every fifteen minutes. The ALJ did not

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mention Ms. Clevinger's testimony at all. This was error. Molina v. Astrue, __ F.3d __, No.

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10-16578, 2012 WL 1071637, at *7 (9th Cir. 2012) (ALJ cannot disregard competent lay

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witness testimony without comment). An ALJ's failure to address lay witness testimony is

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harmless error if the same evidence relied on by the ALJ to properly discredit the plaintiff's

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subjective claims also discredits that lay witness's claims. Id. at __, 2012 WL 1071637, at

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*13. In this case, because the ALJ did not properly discredit plaintiff's subjective pain

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testimony, his failure to acknowledge or discuss Ms. Clevinger's testimony is not harmless

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error.

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VI. Carpal Tunnel Syndrome

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Finally, plaintiff argues that the ALJ's failure to address plaintiff's carpal tunnel

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syndrome was error. Plaintiff was diagnosed with carpal tunnel syndrome by Dr. Benjamin.

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Tr. at 389. In February 2010, state agency consultant Dr. Dodson reviewed the record and

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acknowledged plaintiff's carpal tunnel syndrome diagnosis. He affirmed the RFC assigned

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by Dr. Cunningham, but added an additional limitation on plaintiff's left side to frequent
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handling, fingering and feeling. Tr. at 496. The ALJ did not discuss carpal tunnel syndrome

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anywhere in his decision. This was error. See 20 C.F.R. § 404.1545(a)(2) (in assessing

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RFC, ALJ will consider "all of your medically determinable impairments of which we are

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aware, including your medically determinable impairments that are not 'severe'").

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This error, however, is harmless. For the reasons discussed above, the ALJ properly

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considered Dr. Benjamin's opinion. And although the ALJ did not discuss or adopt Dr.

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Dodson's opinion that plaintiff be limited to frequent fingering, handling, and feeling, neither

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the general office clerk nor the cashier occupations require more than frequent fingering,

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handling, or feeling. See Dictionary of Occupational Titles (DOT) 209.562-010, 1991 WL

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671792 (office clerk); DOT 211.462-010, 1991 WL 671840 (cashier). The VE testified that

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there are 16,000 jobs available in Arizona and three million nationwide for the cashier

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position alone. Tr. at 92. Thus, even if the ALJ erred in failing to adopt Dr. Dodson's

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manipulative limitations based on plaintiff's carpal tunnel syndrome, this does not undermine

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the ALJ's conclusion that there were available jobs in the national economy that plaintiff

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could perform.

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VII. Appropriate Remedy

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Plaintiff argues that the appropriate remedy is to credit her subjective pain testimony

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and Ms. Clevinger's testimony as true and remand for an immediate award of benefits. We

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credit evidence as true and remand for benefits where "(1) the ALJ has failed to provide

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legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that

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must be resolved before a determination of disability can be made, and (3) it is clear from the

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record that the ALJ would be required to find the claimant disabled were such evidence

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credited." Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Here, the VE testified that

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plaintiff would be unable to perform even sedentary work if Dr. Benjamin's testimony was

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taken as true. Tr. at 95. The VE was not asked, however, whether plaintiff could perform

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the positions of cashier, general office clerk, and assembler if her symptom testimony was

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credited. Plaintiff testified that she had to change positions frequently to alleviate her pain,

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which may or may not be adequately addressed by the sit/stand option the VE testified was
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available for these jobs. And it is not clear from either plaintiff or Ms. Clevinger's testimony

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that plaintiff's pain would prevent her from maintaining concentration, pace, or persistence

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for a full work-day, which the VE testified would preclude her from performing these jobs.

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Tr. at 94-95. It may be the case that plaintiff can perform these jobs even if her pain

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testimony is credited. On the other hand, it may not. Thus, it is unclear from the record that

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the ALJ would be required to find plaintiff disabled even if her testimony is credited as true.

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An immediate award of benefits is therefore not warranted.

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A court may credit a plaintiff's symptom testimony as true even where a remand for

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further proceedings is needed, especially in cases where a plaintiff is of advanced age and

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has suffered a "severe delay" in the application process. Vasquez, 572 F.3d at 593-94. We

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decline to do so in this case. Plaintiff's application was filed three years ago, which is not

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an extraordinary amount of time by social security standards. See id. (severe delay when

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application for benefits filed nearly seven years before); Loveless v. Astrue, 09-CV-00830-

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JWS, 2010 WL 2720848, at *3 (D. Ariz. July 9, 2010) (application pending nearly seven

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years was not "an extraordinarily lengthy period of time").
VIII. Conclusion

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IT IS ORDERED REVERSING the decision of the Commissioner and

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REMANDING for rehearing or reconsideration under sentence four of 42 U.S.C. § 405(g).

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On remand the ALJ is directed to:

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(1) reevaluate the plaintiff's subjective symptoms;

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(2) evaluate the lay witness testimony of Michelle Clevinger;

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(3) if plaintiff's RFC is adjusted by the ALJ's consideration of the above evidence, consult

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a VE as needed to determine whether there are a significant number of jobs in the national

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economy that plaintiff can perform given her age, education, work experience, and RFC.

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The Clerk shall enter judgment.

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DATED this 19th day of April, 2012.

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