Nuun v. Commissioner Social Security Administration
Filing
24
OPINION AND ORDER: The ALJ's decision that Plaintiff is not disabled and not entitled to DIB is based on erroneous legal standards and not supported by substantial evidence. The Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this Opinion and Order. See 19-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JANET B. NUNN,
No. 10-CV-1458-HZ
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Alan Stuart Graf
ALAN STUART GRAF P.C.
316 Second Rd
Summertown, TN 38483
Attorney for Plaintiff
///
///
1 - OPINION AND ORDER
Adrian L. Brown
U.S. ATTORNEY'S OFFICE
District of Oregon
1000 S.W. Third Avenue, Ste. 600
Portland, OR 97204
Richard A. Morris
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
701 Fifth Avenue, Ste. 2900 M/S 901
Seattle, WA 98104
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff, Janet B. Nunn ("Plaintiff" or "Nunn"), brings this action pursuant to the Social
Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the
Commissioner of Social Security (the "Commissioner"). The Commissioner found Plaintiff not
disabled and denied her applications for Title II Disability Insurance Benefits ("DIB") pursuant to
42 U.S.C. §§ 416 and 423. For the reasons set forth below, the Commissioner's decision is
REVERSED and REMANDED for additional proceedings.
PROCEDURAL BACKGROUND
On May 14, 2007, Plaintiff filed for DIB alleging a disability onset date of July 1, 2002,
based on depression, anxiety, fibromyalgia, high cholesterol, and post-traumatic stress syndrome
("PTSD"). R. at 8, 106. Plaintiff's applications were denied, and she requested a hearing before
an administrative law judge ("ALJ") of the Social Security Administration ("SSA"). R. at 8. A
video hearing was held on September 9, 2009, before ALJ John J. Madden, Jr. R. 14. On
November 2, 2009, the ALJ found Plaintiff not disabled. Id. Plaintiff requested a review of the
ALJ's decision, but the Appeals Council denied Plaintiff's request on October 4, 2010, making it
2 - OPINION AND ORDER
the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 422.210. This appeal
followed.
FACTUAL BACKGROUND
The parties are familiar with the medical evidence and other evidence of the record.
Therefore, the evidence will not be repeated here except as necessary to explain my decision.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if he is unable to "engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See Valentine
v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
"substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a "medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. §§ 404.1520(c), 416.920(c). If not,
the claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals "one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity." Yuckert, 482 U.S. at 141; see 20 C.F.R. §§ 404.1520(d),
3 - OPINION AND ORDER
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity ("RFC") to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If so, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; see 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is able to perform other work which
exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one of the sequential proceedings, the ALJ found Plaintiff had not engaged in
substantial gainful activity from her alleged onset date of July 1, 2002, to her date last insured,
December 31, 2006.1 R. at 10, Finding 2. At step two, the ALJ found Plaintiff's fibromyalgia to
be a "severe" impairment. Id., Finding 3. At step three, the ALJ found Plaintiff's impairments
did not meet or equal the requirements of a listed impairment pursuant to 20 C.F.R. Part 404,
Subpart P, Appendix 1. R. at 11, Finding 4. At step four, the ALJ found Plaintiff was able to
perform the following past relevant work as a: (1) caregiver; (2) school bus driver; (3) bakery
helper; (4) driver for dry cleaner; (5) cleaner; and (6) fast food worker. R. at 14, Finding 6.
1
The Commissioner contends, and I agree, that the relevant time period for determining
whether Plaintiff is disabled is between July 1, 2002, and December 31, 2006–Plaintiff's date last
insured. The burden is on Plaintiff to show she was disabled prior to her date last insured. See,
e.g., Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 589 (9th Cir. 1998).
4 - OPINION AND ORDER
Having found Plaintiff was able to perform past relevant work, the ALJ did not make a step five
finding.
STANDARD OF REVIEW
A court must affirm the Commissioner's decision if it is based on proper legal standards
and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879
F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The record as a whole,
including both the evidence that supports and detracts from the Commissioner's conclusion, must
be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986).
"Where the evidence as a whole can support either a grant or a denial, [a court] may not
substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(citation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard, 782
F.2d at 1486. To meet this burden, the claimant must demonstrate an "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected . . . to last for a continuous period of not less than 12 months.
. . ." 42 U.S.C. § 423(d)(1)(A).
DISCUSSION
Plaintiff makes the following assignments of error by the ALJ: (1) the ALJ erred in
finding Plaintiff did not have a severe medically determinable mental impairment; (2) the ALJ
improperly found Plaintiff's complaints were not entirely credible; (3) the ALJ improperly
5 - OPINION AND ORDER
considered lay witness evidence; and (4) the ALJ erred in finding Plaintiff was able to perform
past relevant work. Based on the ALJ's alleged assignments of error, Plaintiff seeks an order
reversing the Commissioner's decision and remanding for the immediate award of benefits. I
address each assignment of error in turn.
I. Whether Plaintiff Has Severe Mental Impairments
Plaintiff contends the ALJ erred at step two by failing to designate her depression as a
severe impairment. At step two of the sequential evaluation, the ALJ found Plaintiff's "mental
impairments not medically determinable." R. at 10. In doing so, the ALJ reasoned:
Claimant received psychological counseling from Sheila Crandles, L.C.S.W. but
most of this occurred after the date last insured ended and generally related to family
problems rather than a specific diagnosis. Since the treatment records relating to
mental health care fall prior to the date last insured and do not indicate a specific
diagnosis and treatment, the claimant's mental impairments are considered not
medically determinable.
R. at 11 (internal citations omitted).
At step two of the sequential evaluation, the ALJ must determine whether Plaintiff has "a
severe medically determinable physical or mental impairment" that meets the twelve-month
durational requirement. 20 C.F.R. § 416.909. "An impairment or combination of impairments
can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more
than a minimal effect on an individuals [sic] ability to work.'" E.g., Smolen v. Chater, 80 F.3d
1273, 1290 (9th Cir. 1996). The step two inquiry is a de minimis screening device to dispose of
groundless or frivolous claims. Yuckert, 482 U.S. at 153-54.
The Commissioner concedes the ALJ failed to consider the medical opinion of Leonard
Marcel, M.D., Plaintiff's treating physician who diagnosed Plaintiff with depression. R. at 17477. The Commissioner asserts the ALJ's error was justified because Dr. Marcel's records provide
6 - OPINION AND ORDER
no objective evidence supporting his diagnosis. The Commissioner admits–and I agree–that it is
improper for the Commissioner to make assertions not articulated by the ALJ. E.g., Bray v.
Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (court cannot rely upon
reasoning the ALJ did not express) (citation omitted). Confusingly, in the same breadth, the
Commissioner contends it is not asserting "grounds not articulated by the ALJ," but is simply
pointing "to evidence in the record" supporting the ALJ's decision. Def.'s Br., pp. 7-8.
The Commissioner's arguments are not well taken. As the Commissioner readily
acknowledges, the ALJ himself did not articulate any reasons for ignoring Dr. Marcel's opinion.
Thus, the Commissioner advances a post-hoc rationalization which I may not consider. Stout v.
Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (court is "constrained to review
the reasons the ALJ asserts") (internal quotation omitted); Pinto v. Massanari, 249 F.3d 840, 847
(9th Cir. 2001) ("we cannot affirm the decision of an agency on a ground that the agency did not
invoke in making its decision").
With respect to the reasons the ALJ did provide when finding Plaintiff's mental
impairments not medically determinable, I conclude they are not sustainable. The record
demonstrates Plaintiff had at least seventeen counseling sessions with Sheila Crandles, L.C.S.W.
("LCSW Crandles") between March 2005 and April 2006. R. at 230-257. Contrary to the ALJ's
finding that LCSW Crandles did not "indicate a specific diagnosis," LCSW Crandles specifically
diagnosed Plaintiff with "296.32." R. at 255, 261. "296.32" is equivalent to major depressive
disorder, recurrent, moderate. American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, Fourth Edition Text Revision ("DSM-IV-TR"), pp. 371, 860.
7 - OPINION AND ORDER
In addition, the ALJ's error at step two was not harmless. An ALJ's error in the severity
determination at step two is harmless where the ALJ considers any limitations posed by the
impairment at step four. E.g., Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, Dr.
Marcel expressly diagnosed Plaintiff with depression and concluded, among other things, that
Plaintiff was "chronically stressed." R. at 177. LCSW Crandles also diagnosed Plaintiff with
depression and noted in her medical notes that Plaintiff suffered from excessive fatigue, social
isolation, and diminished memory and concentration. R. at 229, 235, 237, 240, 249. While the
ALJ's error at step two may have been harmless in the sense that the ALJ did not render his
ultimate non-disability determination based on his step two findings, he nonetheless failed to
incorporate any limitations related to Plaintiff's mental impairments into his RFC assessment.
The record, at a minimum, shows that Plaintiff's depression imposed some functional limitations
on Plaintiff. Under these circumstances, the ALJ's error at step two is reversible error. See, e.g.,
Lewis v. Astrue, 498 F.3d at 511 (to establish reversible error at step two the claimant must show
the ALJ's RFC assessment did not include the contested step two impairments).
II. Whether the ALJ Gave Sufficient Reasons for Rejecting Plaintiff's Testimony
Plaintiff argues the ALJ erred by discrediting her complaints of pain and fatigue related to
her fibromyalgia. The ALJ must assess the credibility of the claimant regarding the severity of
symptoms only if the claimant produces objective medical evidence of an underlying impairment
that could reasonably be expected to produce the symptoms. E.g., Smolen, 80 F.3d at 1281-82.
The claimant, however, need not produce objective medical evidence of the actual symptoms or
their severity. Id. at 1284.
8 - OPINION AND ORDER
If the claimant satisfies the above test and there is no affirmative evidence of malingering,
the ALJ can reject the claimant's pain testimony only if he provides clear and convincing reasons
for doing so. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (citing Lester v. Chater, 81 F.3d
821, 834 (9th Cir. 1995)). General assertions that the claimant's testimony is not credible are
insufficient. Id. The ALJ must identify "what testimony is not credible and what evidence
undermines the claimant's complaints." Id. (citations omitted).
Both parties agree the ALJ did not find Plaintiff to be malingering and thus could only
reject Plaintiff's pain testimony based on clear and convincing reasons. With respect to Plaintiff's
fibromyalgia, the ALJ concluded:
[T]he record stated it seemed "relatively well managed." Exhibit l6F/13. She
reported her overall pain would "wax and wane" and specifically her back pain
"comes and goes." Exhibit 19F/1. A physical examination showed sensation to light
touch was intact in all four extremities. There was normal and equal strength in the
hands. In her legs, there was normal and equal strength for toe extension and ankle
dorsiflexion against resistance. The claimant was able to perform shallow squats and
rise maneuvers without difficulty. She could walk on her toes. There was negative
straight leg raising bilaterally and the gait/station were normal. Exhibit 19F/2.
Further, some improvement has been noted in the record. The claimant reported
during a visit to her primary care provider that she had been "doing well," her mood
was better and her sleep habits improved. She was not experiencing as much "total
pain." Treatment notes also state she continued to "do well" with the current dose of
medication. She noticed a "definite improvement while taking medication."
R. at 12 (internal citations omitted).
The reasons proffered by the ALJ for discounting Plaintiff's pain testimony are not clear
and convincing. The record demonstrates that in December 2007 Edward Taylor, PA-C ("PA-C
Taylor") examined Plaintiff, noting, "Overall doing better today, not as much 'total pain.'" R. at
313. In August 2008 PA-C Taylor again examined Plaintiff, assessing, "Likely fibromyalgia. . . .
[Plaintiff] seems relatively well managed." R. at 319. PA-C Taylor's scant notations indicating
9 - OPINION AND ORDER
that Plaintiff appeared to feel better at certain times simply do not constitute clear and convincing
reasons for discounting Plaintiff's pain testimony.
In addition, the fact that Plaintiff's pain "waxed and waned" is not a clear and convincing
reason for discrediting Plaintiff's pain testimony. In fact, the fluctuations in pain described by
Plaintiff are consistent with a diagnosis of fibromyalgia. See Simington v. Astrue, No. CV-09670-TC, 2011 WL 1261298, at *4 (D. Or. 2011) ("Fibromyalgia pain can fluctuate and
medications and self-help measures may help lessen the severity of the symptoms, but there will
still be days that are worse than others. [Claimant's] treatment is consistent with a fibromyalgia
diagnosis.") (Internal citations omitted); see also Olguin v. Astrue, No. CV 08-6548-JEM, 2009
WL 4641728, at *11 (C.D. Cal. 2009) ("According to the American College of Rheumatology, a
characteristic of fibromyalgia 'is the waxing and waning and intensity of the symptoms with good
days and bad days.'"). Similarly, the fact that Plaintiff's pain symptoms were noted to have fared
better on certain medications does not amount to a clear and convincing reason supporting the
ALJ's adverse credibility finding.
The ALJ's reliance on the July 9, 2008, medical notes of Laura S. Rung, M.D. ("Dr.
Rung") is also unavailing. Dr. Rung evaluated Plaintiff and documented Plaintiff had sensation
to light touch, had normal and equal strength in the hands, had normal strength for toe extension,
had normal ankle dorsiflexion, maintained the ability to perform shallow squats, was able to walk
on her toes and do leg raises, and had normal "gait and station." R. at 12, 397-98. The ALJ,
however, simply recites Dr. Rung's medical notes without any analysis. Merely repeating select
observations by Dr. Rung without further analysis does not constitute a "clear and convincing"
reason for finding Plaintiff not credible. Moreover, Dr. Rung herself concluded that based on the
10 - OPINION AND ORDER
same physical examination on which the ALJ used to discredit Plaintiff, Plaintiff suffered from
"probable fibromyalgia." R. at 397.
The ALJ also found Plaintiff was not credible because her "treatment has been essentially
routine and/or conservative in nature." R. at 12. In support of his finding, the ALJ reasoned that
Plaintiff's "treating provider recommended 'diaphragmatic breathing' to control her stress and
pain," Plaintiff "stated her fibromyalgia pain improved with heat," and "[a]erobic exercise was
suggested" as a treatment for Plaintiff's fibromyalgia. R. at 12, 177, 213, 396, 398. As noted
above, Dr. Marcel treated Plaintiff's depression, not fibromyalgia. Although he gave Plaintiff
instructions for "diaphragmatic breathing," R. at 177, nothing in the record indicates Dr. Marcel
treated Plaintiff for anything other than depression. Id. The Commissioner fails to highlight any
evidence suggesting Plaintiff mentioned anything about her pain or any other symptom otherwise
related to fibromyalgia to Dr. Marcel. Instead, the evidence relied on by the ALJ simply
demonstrates Dr. Marcel saw Plaintiff for her depression and that Plaintiff only discussed issues
related to her stress and depression with Dr. Marcel. The ALJ's adverse credibility finding based
on Dr. Marcel's recommendation that Plaintiff do "diaphragmatic breathing" exercises is neither
clear and convincing nor based on substantial evidence.
In addition, Dr. Rung's recommendation on July 9, 2008, that Plaintiff do aerobic
exercises to address her fibromyalgia does not amount to a clear and convincing reason to
discredit Plaintiff's allegations of pain. Although "evidence of 'conservative treatment' is
sufficient to discount a claimant's testimony regarding severity of an impairment," Parra, 481
F.3d at 751, nothing in the record before me indicates Dr. Rung's recommended treatment is
conservative, especially when considering that the Ninth Circuit has previously recognized
11 - OPINION AND ORDER
fibromyalgia as a disease which is "poorly-understood within much of the medical community"
and for which "there is no cure." Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004).
Indeed, the ALJ fails to address the longitudinal record of medications Plaintiff has been
prescribed to treat her fibromyalgia and pain. For example, the ALJ does not mention that in
September 2008 Plaintiff told Scott Johnson, PA-C ("PA-C Johnson") that her fibromyalgia was
causing her back pain and after conducting a physical examination, PA-C Johnson prescribed
Tramadol to treat her pain. R. at 287-88. Similarly, the ALJ does not mention that in December
2007, Michael Halferty, M.D. ("Dr. Halferty"), diagnosed Plaintiff with fibromyalgia and
"[a]cute exacerbation chronic pain" and prescribed Ultram ER to help manage her pain. R. at
295. The ALJ's failure to articulate why he relied only on Dr. Rung's course of treatment and not
those by PA-C Johnson or Dr. Halferty provides additional support that the ALJ's adverse
credibility determination in this instance was improper. See Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (an ALJ may not selectively read the record).
Finally, the ALJ concluded that Plaintiff's daily activities "do not reflect the disabling
limitations" alleged by Plaintiff, stating as follows:
The claimant can also perform a full range of daily activities which is inconsistent
with the nature, severity and subjective complaints of the claimant. In the claimant's
adult function report she stated her day encompassed helping her children with
school work, preparing meals, watching the television, caring for her animals and
personal care could be performed unassisted. Housework included washing dishes,
folding laundry and vacuuming. She also could shop for groceries and clothes in
stores and by mail. Socially she attended a fellowship up to five times a month. The
claimant described having good days where she could complete her activities of daily
living with "very little difficulty." The record also states she was camping. Exhibits
5E/l-7,7F, 14F/3, 19F/l. Additionally, the claimant was able to care for her young
children at home while her husband worked, without any particular assistance, which
can be quite demanding. Exhibits IF/7, 7F.
R. at 12-13.
12 - OPINION AND ORDER
An ALJ may find a claimant not credible if her daily activities are inconsistent with her
alleged limitations. Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). "[I]f a claimant is
able to spend a substantial part of [her] day engaged in pursuits involving the performance of
physical functions that are transferable to a work setting, a specific finding as to this fact may be
sufficient to discredit an allegation of disabling excess pain." Fair v. Bowen, 885 F.2d 597, 603
(9th Cir. 1989). In this instance, the ALJ failed to make a specific finding that Plaintiff's daily
activities amounted to physical activity sufficient to discredit her pain testimony. The record
simply shows Plaintiff "supervises" her two sons during breakfast and lunch, supervises them
while they "clean up," and supervises them as they get ready for bed.2 R. at 34, 126. The record
further shows that Plaintiff's husband does the majority of the housework and assists with the
supervision of their two sons living at home. R. at 34-35, 127-28. It is also undisputed that
Plaintiff's two sons do the laundry, do the majority of the lifting at home, pick things up off the
floor for Plaintiff, and help Plaintiff cook and clean. Id. In fact, Plaintiff specifically stated she
needs help doing laundry, including lifting, carrying, loading and unloading the laundry, and can
only wash "some dishes," fold laundry, and occasionally vacuum. R. at 127-28. Axiomatically,
that Plaintiff watches television, helps her sons with their school work, and attends "fellowship
0-5 times a month" does not make Plaintiff's pain allegations any less credible. R. at 126, 130.
In addition, the ALJ's conclusion that Plaintiff did not need assistance with her "personal
care" misconstrues the record. Plaintiff indicated she has problems with her "personal care" and
2
Plaintiff has two sons, aged ten and twelve, who live with her at home. R. at 33.
Plaintiff also has another son who is under "psychiatric residential treatment" and who has not
lived at home since 2004. Id.
13 - OPINION AND ORDER
explicitly stated she has trouble dressing, does not shower when her pain is bad, and does not
shave as often as she used to shave. R. at 127.
Finally, although Plaintiff stated that "[o]n a really good day" she had "very little
difficulty" with certain functions, including standing and walking, she also noted that on other
days she could not get anything done. R. at 131. As noted above, such fluctuations in pain are
consistent with fibromyalgia. See Simington, No. CV-09-670-TC, 2011 WL 1261298, at *4
(fibromyalgia pain may fluctuate). The ALJ's reliance on the fact that Plaintiff recently went
camping is also unavailing. Although the record shows Plaintiff went camping for several days
in November 2008, she testified she did not do well while she was camping, was in "absolute
agony," and sat around for much of the time. R. at 35.
Viewing the record as a whole, the evidence on which the ALJ relied does not undermine
Plaintiff's credibility. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001) ("One does not
need to be 'utterly incapacitated' in order to be disabled.") (citation omitted). Plainly stated, the
ALJ's reasons supporting his adverse credibility finding are not clear and convincing or
supported by substantial evidence.
III. Lay Evidence
The Commissioner asserts the ALJ properly rejected a third party function report
completed on July 18, 2007, by Plaintiff's husband, Gerald Wayne Nunn, II ("Mr. Nuun"). R. at
13. The Commissioner asserts the ALJ properly found Plaintiff was not credible because Mr.
Nuun's third party function report included statements similar to Plaintiff's own subjective
complaints and as such, his statements could be rejected for the same reasons as hers.
14 - OPINION AND ORDER
The ALJ considered Mr. Nuun's third party function report even though it was submitted
after Plaintiff's date of last insured because "it related to [Plaintiff's] severe impairment prior to
December 31, 2006." Id. The ALJ, however, rejected the report on the basis it was inconsistent
with Plaintiff's activities of daily living. Id. Although an ALJ may reject lay witness statements
based on the same reasons that he rejected the claimant's own testimony, he may only do so if he
properly discredited the claimant's testimony. Valentine, 574 F.3d at 694. As noted above, the
ALJ improperly discredited Plaintiff's testimony. It follows that his reasons for rejecting Mr.
Nuun's third party function report was also improper. Such error was not harmless because Mr.
Nuun's report included limitations the ALJ was required to consider, including limitations
associated with Plaintiff's physical and mental conditions. R. at 144-45, 147.
IV. Plaintiff's Ability to Perform Past Relevant Work
Lastly, Plaintiff argues the ALJ erroneously found she could perform past relevant work
at step four of the sequential proceedings. I agree.
At step four of the sequential proceedings, the ALJ determines if the claimant can
perform her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv). If the claimant can perform
such work, she is not disabled and the sequential evaluation concludes. Id. In construing his step
four findings, the ALJ may draw upon testimony of a vocational expert ("VE"). 20 C.F.R. § §
404.1560(b)(2). The ALJ's questions to the VE must include all properly supported limitations.
See, e.g., Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). The ALJ may then compare
the demands of a claimant's past relevant work with the claimant's RFC in determining whether
the claimant may presently perform past relevant work. SSR 82-62, 1982 WL 31386, at *3. The
ALJ, however, must generally consider only work experience "done within the last 15 years,"
15 - OPINION AND ORDER
which "lasted long enough for [the claimant] to learn to do it," and which constituted "substantial
gainful activity."3 20 C.F.R. § 404.1565(a)
Here, the ALJ asked the VE to evaluate the exertional demands relating to Plaintiff's past
work. The VE opined that based on Plaintiff's past work, Plaintiff could perform the following
six occupations: (1) caregiver for assisted living, semi-skilled, heavy as performed but medium
per the Dictionary of Occupational Titles ("DOT"); (2) school bus driver, semi-skilled, medium
but performed as light and medium; (3) bakery helper, semi-skilled, medium per the DOT but
heavy as performed; (4) driver for dry cleaner, semi-skilled, medium; (5) cleaner, unskilled,
medium; and (6) fast food worker, unskilled, light. R. at 42-45. The ALJ compared Plaintiff's
"[RFC] with the physical and mental demands of [the full range of light work]" and concluded
Plaintiff "was able to perform all of her past relevant work as actually and generally performed."
R. at 14.
The Commissioner now concedes the ALJ erred in finding Plaintiff was capable of
performing work as a caregiver for assisted living, bakery helper, driver for dry cleaner, and a
cleaner because those occupations involve medium or heavy exertional levels–exertional levels
which directly contradict the ALJ's own RFC assessment limiting Plaintiff to only light work. R.
3
The Ninth Circuit has stated that for the purpose of step four, substantial gainful
activity means:
Work done for pay or profit that involves significant mental or physical activities.
Earnings can be a presumptive, but not conclusive, sign of whether a job is
substantial gainful activity. Monthly earnings averaging less than $300 generally
show that a claimant has not engaged in substantial gainful activity. At the other end
of the spectrum, monthly earnings averaging more than $500 generally show that a
claimant has engaged in substantial gainful activity.
Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) (internal citations omitted).
16 - OPINION AND ORDER
at 11, Finding 5; Def.'s Br., p. 16. The Commissioner, however, avers the ALJ did not err in
finding Plaintiff able to perform past relevant work as a fast food worker because she worked at
Burger King for approximately one to one and one-half years when she was in high school and
worked at Dairy Queen for a few months when she was sixteen years old. R. at 43-44. The
Commissioner also contends the ALJ properly concluded Plaintiff could work as a school bus
driver because although Plaintiff testified she could not pass the physical examination required to
renew her commercial driver's license, Plaintiff failed to "establish[] she did not or could not pass
the physical requirements to obtain a commercial license, or that a commercial license was
required for the position." Def.'s Br., p. 17.
The Commissioner's arguments are unavailing because they fail to remedy the ALJ's
improper omission of Plaintiff's physical and mental limitations from his RFC assessment–an
assessment which the ALJ explicitly relied on when determining Plaintiff was capable of
performing past relevant work. R. at 14. A claimant's RFC is the most she can do in spite of her
impairments. 20 C.F.R. § 404.1545(a)(1). In construing a claimant's RFC, the ALJ must
consider a claimant's medical record and symptom testimony, as well as statements by lay
witnesses. 20 C.F.R. § 404.1545(a)(3). The RFC must include all work-related impairments,
both severe and non-severe. 20 C.F.R. § 404.1545(a)(2). As explained above, the ALJ erred in
rejecting the limitations set for in Plaintiff's own subjective testimony and in Mr. Nuun's lay
witness statements. The ALJ's RFC assessment does not account for all of Plaintiff's limitations
and accordingly, the RFC is not supported by substantial evidence. See, e.g., Lingenfelter, 504
F.3d at 1041 1035 (an RFC is not supported by substantial evidence when the ALJ improperly
excludes pain symptoms from the RFC). That being said, the ALJ's determination that Plaintiff
17 - OPINION AND ORDER
can perform past relevant work is flawed and his findings at step four of the sequential evaluation
cannot be sustained.
V. Remand for Further Proceedings
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000). A remand for an award of benefits is appropriate when no useful purpose would be
served by further administrative proceedings or when the record has been fully developed and the
evidence is insufficient to support the Commissioner's decision. Strauss v. Comm'r of Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (citation omitted).
Under the "crediting as true" doctrine, evidence should be credited and an immediate
award of benefits directed where "(1) the ALJ failed to provide legally sufficient reasons for
rejecting the evidence; (2) there are no outstanding issues that must be resolved before a
determination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited." Id. The "crediting as true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (citation omitted). The reviewing court
may decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d
1032, 1035 (9th Cir. 2010).
Even if the improperly omitted evidence in this case were credited as true, it is unclear
how Plaintiff's alleged limitations would affect her ability to work or whether the ALJ would be
18 - OPINION AND ORDER
required to find Plaintiff disabled. On remand, the ALJ shall revisit his step 2 through step 5
findings and resolve the deficiencies and errors discussed in this Opinion and Order.
CONCLUSION
Based on the foregoing, the ALJ's decision that Plaintiff is not disabled and not entitled to
DIB is based on erroneous legal standards and not supported by substantial evidence. The
Commissioner's decision is REVERSED and REMANDED for further proceedings consistent
with this Opinion and Order.
IT IS SO ORDERED.
Dated this 9th day of February, 2012.
/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge
19 - OPINION AND ORDER
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