Lori A. Fitzgerald v. Carolyn W. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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LORI A. FITZGERALD,

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Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

) Case No. SA CV 13-0862-DFM
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff appeals from the denial of her application for Social Security

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benefits. On appeal, the Court concludes that the Administrative Law Judge

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(“ALJ”) erred in determining that Plaintiff could perform her past relevant

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work. Therefore, the Court reverses the ALJ’s decision and remands to the

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ALJ for reconsideration.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff filed applications for social security disability insurance

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(“SSDI”) benefits and supplemental security income (“SSI”), alleging disability

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beginning November 23, 2009. Administrative Record (“AR”) 13. On

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December 22, 2011, a hearing was held at which the ALJ heard testimony

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from Plaintiff, an impartial medical expert (“ME”), and a vocational expert

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(“VE”). In an unfavorable decision, the ALJ concluded that Plaintiff was not

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disabled because she could perform her past relevant work as an order clerk.

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AR 19.

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II.

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ISSUE PRESENTED

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The parties dispute (1) whether the ALJ properly rejected the opinions of
Plaintiff’s treating pain specialist and chiropractor; (2) whether the ALJ’s

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residual functional capacity (“RFC”) assessment and the hypotheticals posed

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to the VE had a basis in the record; and (3) whether the ALJ properly

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discredited Plaintiff’s subjective pain and symptom testimony . See

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Memorandum in Support of Plaintiff’s Complaint (“Plaintiff’s Memorandum”)

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at 13-24; Defendant’s Memorandum in Support of Defendant’s Answer 2-9

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(“Commissioner’s Memorandum”).

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III.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and are supported by

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substantial evidence based on the record as a whole. 42 U.S.C. § 405(g);

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Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d

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742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as

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a reasonable person might accept as adequate to support a conclusion.

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Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th

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Cir. 2007). It is more than a scintilla, but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports
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a finding, the reviewing court “must review the administrative record as a

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whole, weighing both the evidence that supports and the evidence that detracts

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from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720

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(9th Cir. 1996). If the evidence can reasonably support either affirming or

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reversing, the Court may not substitute its judgment for that of the ALJ.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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IV.

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DISCUSSION

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Plaintiff contends that the ALJ’s RFC assessment lacks a basis in the

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record. Plaintiff’s Memorandum at 18-21. The Court’s review of the record

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reveals an error in the ALJ’s understanding and description of the ME’s

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testimony. Moreover, even without that error, the ALJ’s failure to include

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time-based restrictions on Plaintiff’s ability to sit, stand, and walk was not

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supported by substantial evidence. Because the Court finds that the decision of

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the ALJ must be reversed as a result of these errors, the Court need not address

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Plaintiff’s remaining contentions.
A claimant’s “residual functional capacity” is the most a claimant can

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still do despite her limitations. Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir.

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1996) (citing 20 C.F.R. § 404.1545(a)). An ALJ will assess a claimant’s RFC

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based on all the relevant evidence of record and will consider all of the

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claimant’s medically determinable impairments, whether found to be severe or

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not. 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). An RFC assessment is

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ultimately an administrative finding reserved to the Commissioner. 20 C.F.R.

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§§ 404.1527(d)(2), 416.945(d)(2). However, an RFC determination is based on

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all of the relevant evidence, including the diagnoses, treatment, observations,

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and opinions of medical sources, such as treating and examining physicians.

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See 20 C.F.R. §§ 404.1545, 416.945.

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The Plaintiff’s contentions on this issue arise from a peculiar set of

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circumstances. At the hearing before the ALJ, the ME opined as to Plaintiff’s

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RFC, including among the limitations a restriction to sitting for a maximum of

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four hours in an eight hour workday, and a restriction to standing or walking

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for a maximum of four hours in an eight hour workday. AR 32-33. After

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Plaintiff and the ME testified, the ALJ posed two hypotheticals to the VE. The

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first hypothetical included substantially all of the limitations described by the

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ME, except permitted six hours of sitting per workday. AR 44. The VE

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indicated that this hypothetical would permit Plaintiff’s past work as an order

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clerk. Id. The second hypothetical restricted each of sitting and

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standing/walking to one to two hours per workday, which the VE testified

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would preclude all work. AR 44-45.

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Plaintiff’s counsel then put forward a third hypothetical, identical to the

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ALJ’s first hypothetical but with a four-hour limitation on sitting, creating a

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hypothetical that was substantively identical to the RFC proffered by the ME.

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AR 45. The VE testified that this hypothetical would bar Plaintiff’s past

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relevant work. Id. Thereafter, the ALJ re-called the ME, who reiterated that

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his proposed RFC limited Plaintiff to four — not six — hours of sitting per

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workday. AR 45-46. It would appear from this exchange that the ALJ was

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initially mistaken as to the proposed RFC described by the ME, and that this

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mistake led to the six hour sitting limitation contained in the first hypothetical

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posed to the VE.

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The ALJ’s confusion apparently persisted. In his decision denying

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Plaintiff’s claim, the ALJ again attributed to the ME’s proposed RFC (which

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he accorded “great weight”) a limitation to six hours of sitting per workday.

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AR 19. Nonetheless, the ALJ included no time-based restriction on sitting in

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his ultimate RFC assessment and found that Plaintiff could perform her past

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relevant work as an order clerk, relying on the first hypothetical posed to the
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VE. AR 17, 19. In light of the ALJ’s continuing confusion as to the ME’s

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proposed RFC, and given the VE’s concession that Plaintiff would be

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incapable of performing her past work if a four-hour sitting limitation were

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imposed, the Court is unable to affirm the ALJ’s decision.
Moreover, even if it were clear that the ALJ properly understood and

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considered the ME’s proposed RFC, there remains no explanation for his

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failure to incorporate time-based restrictions on sitting, standing, and walking.

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Although the Commissioner is correct that it is the ALJ’s role to synthesize the

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medical opinion testimony and formulate an RFC, here all of the medical

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opinions contained time-based limitations on Plaintiff’s ability to sit, stand, or

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walk, but no such limitation appears in the ALJ’s RFC. The ME’s opinion,

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which the ALJ credited, limited Plaintiff to four hours of sitting and four hours

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of standing or walking in each eight-hour workday. AR 32-33. State agency

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physician Dr. Walter W. Bell’s opinion limited Plaintiff to six hours of each.

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AR 291. Treating pain specialist Dr. Wei Wah Kwok opined that Plaintiff

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would be limited to one-to-two hours of each. AR 375. Thus, although there is

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disagreement as to the appropriate degree of time-based restriction to apply to

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Plaintiff’s capacity for sitting, standing, and walking, there appears to be a

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broad medical consensus that some restriction is necessary. Because the ALJ

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failed to incorporate such a restriction into his RFC assessment, and has not

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provided an explanation for doing so, the Court cannot conclude that

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Plaintiff’s assessed RFC was supported by substantial evidence.
In light of these errors, the Court reverses the ALJ’s decision denying

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benefits and remands this matter for a further assessment of Plaintiff’s RFC in

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light of the ME’s testimony and the medical consensus as to the need for a

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time-based restriction in sitting, standing, and walking.

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V.

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CONCLUSION

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For the reasons stated above, the decision of the Social Security

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Commissioner is REVERSED and the matter is REMANDED for further

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proceedings consistent with this opinion.

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Dated: June 12, 2014

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______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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