Prohaska v. Commissioner of Social Security
Filing
20
OPINION AND ORDER. Signed on 12/10/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TERESA MARIE PROHASKA
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
TIM WILBORN
Wilborn Law Office, PC
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
BRETT E. ECKELBERG
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:13-CV-01621-MA
OPINION AND ORDER
Marsh, Judge
Plaintiff Teresa Prohaska seeks judicial review of the final
decision
of
the
Conunissioner
of
Social
Security
denying
her
application for Disability Insurance Benefits (DIB) under Title II
of the Social Security Act,
42 U.S.C §§ 401-403, and application
for Supplemental Security Income
(SSI) disability benefits under
Title XVI of the Social Security Act,
42 U.S.C.
§§ 1381-1383f.
This Court has jurisdiction pursuant to 42 U.S.C.
1383 ( c) ( 3) . For the reasons that follow,
§§ 405(g)
and
this court reverses the
decision of the Conunissioner and remands this matter pursuant to
sentence
four
of
42
U.S. C.
§405 ( g)
for
further
administrative
proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for DIB and SSI on
November 10, 2009, alleging disability beginning January 1, 2003,
due to multiple sclerosis and peripheral neuropathy.
Plaintiff's
claims were denied initially and upon reconsideration.
Plaintiff
filed a request for a hearing before an administrative law judge
(ALJ).
An
ALJ held
a
hearing on
February
13,
2012,
at
which
plaintiff appeared with her attorney and testified. Also appearing
and testifying were medical expert William Rack, M.D., plaintiff's
mother Trudy Cherry, and vocational expert Hanoch Livneh. After the
hearing, plaintiff amended her alleged onset date of disability to
June
1,
2008.
Tr.
2 - OPINION AND ORDER
125.
On
May
3,
2012,
the
ALJ
issued
an
unfavorable
decision.
The
Appeals
Council
denied
plaintiff's
request for review, and therefore, the ALJ's decision became the
final decision of the Commissioner for purposes of review.
Born in 1961, plaintiff was 50 years old on the date of the
ALJ' s
adverse
decision.
years of college,
Plaintiff completed high school,
three
and obtained a license as a massage therapist.
Plaintiff's past relevant work includes: flagger, convenience store
cashier, massage therapist, and house cleaner.
THE ALJ'S DISABILITY ANALYSIS
The
process
Yuckert,
i~
Commissioner
has
established
for determining whether a
a
five-step
person is disabled.
482 U.S. 137, 140 (1987); 20 C.F.R.
§
sequential
Bowen v.
416.920. Each step
potentially dispositive. The claimant bears the burden of proof
at steps one through four.
Admin., 574 F.3d 685,
689
Valentine v.
(9th Cir. 2009);
Commissioner Soc.
Sec.
Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to
the Commissioner to show that the claimant can do other work which
exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161
(9th Cir. 2012).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since her alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
impairments: multiple sclerosis and peripheral neuropathy. At step
three, the ALJ found that plaintiff's impairments, or combination
3 - OPINION AND ORDER
of
impairments,
did
not
meet
or
medically
equal
a
listed
impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R.
§
404.1567(b)
except she needs to change positions hourly between sitting and
standing,
and
is
limited
kneeling,
and crawling,
to
occasionally
climbing,
stooping,
and frequently handling and fingering.
Plaintiff cannot crouch, balance, or work at unprotected heights or
around moving machinery.
At step four, the ALJ found plaintiff is able to perform past
relevant work as a cashier,
and thus did not
reach step five.
Accordingly, the ALJ concluded that plaintiff has not been under a
disability under the Social Security Act from June 1, 2008, through
the date of the decision.
ISSUES ON REVIEW
On appeal to this court,
plaintiff contends the following
errors were committed:
(1) the ALJ failed to properly evaluate her
credibility;
ALJ
(2)
the
failed
to
properly
testimony of her mother Trudy Cherry;
( 3)
evaluate
the ALJ' s
the
lay
s.tep four
findings are not supported by substantial evidence; and ( 4) because
of these errors, the hypothetical posed to the vocational expert
was invalid.
4 - OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the
Commissioner
applied
the
proper
legal
standards
and
findings are supported by substantial evidence in the record.
U.S.C.
§
405(g); Berry v.
Astrue,
622 F.3d 1228,
1231
the
42
(9th Cir.
2010). "Substantial evidence is more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Hill,
698
F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at
690. The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision. Martinez v. Heckler, 807
F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be
upheld,
even
if
the
evidence
is
susceptible
to more
than
one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin.,
359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the
Commissioner's conclusion, the Commissioner must be affirmed; "the
court
may
not
substitute
its
judgment
for
that
of
the
Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001).
I.
ALJ Did not Err in Evaluating Plaintiff's Credibility
A.
To
Standards
determine
whether
a
claimant's
subjective pain or symptoms is credible,
stages of analysis.
5 - OPINION AND ORDER
20 C.F.R.
§§
testimony
regarding
an ALJ must perform two
404.12629,
416.929.
The
first
stage
is
a
threshold test
in which the
claimant must
produce
objective medical evidence of an underlying impairment that could
reasonably be expected to produce the symptoms alleged. Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue,
533 F. 3d 1035,
1039
(9th Cir.
2008). At the second stage of the
credibility analysis, absent affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for discrediting
the claimant's testimony regarding the severity of the symptoms.
Carmickle v.
Commissioner Soc.
Sec.
Admin.,
533 F.3d 1155,
1161
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
the
ALJ did
arbitrarily discredit the claimant's testimony. Ghanim,
not·
763 F.3d
1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors
the ALJ may consider when making such credibility determinations
include the objective medical evidence, the claimant's treatment
history,
the
testimony,
claimant's
effectiveness
daily
or
activities,
adverse
side
inconsistencies
effects
medication, and relevant character evidence. Ghanim,
of
any
in
pain
763 F.3d at
1163; Tommasetti, 533 F.3d at 1039.
B.
At
Analysis
the
hearing,
plaintiff
testified
that
she
closed
her
massage therapy business in 2007 because she was unable to stand
6 - OPINION AND ORDER
for long periods of the day and using her hands all day caused
pain. Tr. 30. She testified that she cannot stand for more than a
few hours at
a
time before
feeling pain in her feet.
Tr.
38.
Plaintiff stated that she has trouble lifting five pound weights,
climbing stairs and ladders,
and difficulty keeping her balance
while walking. Tr. 42. She also testified that she cannot bend over
at the waist because it causes her to lose her balance. Tr. 44.
In a
Function Report,
dated
December
18,
2009,
plaintiff
indicated that she can walk 100 feet before requiring a five to 10
minute rest.
Tr.
170.
Plaintiff also noted that before becoming
ill, she was able to cut down trees, cut firewood with a chainsaw,
ski, lift weights, and run. Tr. 166. In describing a regular day,
plaintiff
stated
prepares lunch,
that
she
watches
television
does dishes and laundry,
in
the
morning,
vacuums if needed,
and
goes to the store, if needed. Tr. 165. Plaintiff indicated that the
pain and burning in her hands and feet wake her from sleep. Tr.
166. Plaintiff stated that she takes care of her cat and gives it
pet massages. Id. Plaintiff noted that she performs some raking and
weeding outside once a week as well as using a riding lawnmower to
cut the grass once a month. Tr. 167.
In a Pain and Fatigue Questionaire, plaintiff noted a constant
burning,
181.
swelling sensation and pain in her hands and feet.
Tr.
Plaintiff stated that she cannot garden or play catch for
lengthy periods. Id. In responding to how fatigue affects her daily
7 - OPINION AND ORDER
activities, plaintiff indicated that she attempts to perform normal
activities to avoid doing nothing. Tr. 181.
In
the
decision,
the
ALJ
concluded
that
plaintiff
has
medically determinable impairments that cause symptoms resulting in
some limitations on work activity,
but her subjective complaints
and alleged limitations are not fully credible. Tr. 18.
Cont,rary to plaintiff's
assertion,
clear and convincing reasons,
the ALJ provided three
citing specific
record evidence,
which undermine her subjective complaints. As discussed below, the
ALJ
also
provided
one
unconvincing
reason
for
discrediting
plaintiff's allegations of pain. However, the other three reasons
adequately support the ALJ's credibility determination.
1. inconsistent with objective medical evidence
Contrary to plaintiff's suggestion, the ALJ specifically found
plaintiff's
objective
medical
record
is
inconsistent
with
her
subjective allegations of debilitating symptoms. Tr. 18. When the
claimant's own medical record undercuts her assertions, the ALJ may
rely on that contradiction to discredit the claimant.
As true,
481
F.3d
742,
750-51
(9th
Cir.
Commissioner Soc. Sec. Admin., 169 F.3d 595,
Carmickle,
2007);
Parra v.
Morgan
v.
600 (9th Cir. 1999);
533 F.3d at 1161. The ALJ's findings are supported by
substantial evidence in the record.
As
evidence
the
ALJ
from
the
correctly
relevant
8 - OPINION AND ORDER
discussed,
period
of
the
majority
of
medical
alleged disability
notes
relatively normal objective neurological examination findings. Tr.
16,
564-590.
For example, on April 7,
2010, examining physician,
James Harris, M.D., observed a normal gait, slight difficulty with
tandem gait, normal sensation, four out of five strength testing of
the left foot and hamstring,
and ability to perform a full squat
and recovery. Tr. 444. Dr. Harris opined that plaintiff could stand
and walk for up to two to three hours intermittently in an eighthour period,
and lift and carry a maximum of 25 pounds.
Tr.
18,
444. The ALJ accorded Dr. Harris's opinion substantial weight. Tr.
18. While the majority of the medical evidence in the record is
prior to plaintiff's alleged onset date of disability, even these
medical records contradict her allegations.
2003 examination revealed a steady gait,
For example,
a July
intact motor skills and
coordination, and a negative Romberg sign. Tr. 311.
Additionally,
the ALJ thoroughly discussed treatment notes
from plaintiff's treating neurologist,
Daniel Friedman, M.D. Tr.
16. In January 2011, Dr. Friedman noted a normal motor exam, intact
sensation and coordination, and normal station and gait. Tr.
564-565. More importantly,
reported
no
symptoms
Dr.
to
16,
Friedman concluded that plaintiff
suggest
recent
multiple
sclerosis
exacerbation. Tr. 565. The ALJ accurately noted that as of February
2011,
plaintiff
was
not
taking
any medication,
including pain
medication. Tr. 16, 564. The record reflects that plaintiff did not
request pain medication from Dr. Friedman until May of 2011, as the
9 - OPINION AND ORDER
ALJ indicated. Tr. 16, 572. The ALJ could reasonably conclude that
plaintiff's complaints of disabling pain are not supported by the
objective medical evidence. The ALJ also discussed MRI scans from
January
2011
radiologist
and
January
concluded that
2012,
noting
specifically
although both scans
the
show extensive,
chronic white matter demylination consistent with a
multiple sclerosis,
that
history of
there was no interval change or progression
from 2011 to 2012. Tr. 16, 585.
Moreover,
the ALJ discussed two medical opinions regarding
plaintiff's functional limitations, both of which are inconsistent
with the severity of plaintiff's allegations. Tellingly, plaintiff
does not challenge the ALJ's evaluation of these medical opinions.
A medical expert, William Rack, M.D., who testified at the hearing,
opined that the plaintiff could perform more than sedentary work on
an occasional basis and would benefit from not using her hands on
a repetitious basis.
Tr.
35-36. The ALJ gave Dr.
Rack's opinion
great weight.
In an opinion dated April 27, 2010, non-examining physician,
Richard Alley, M.D. opined that plaintiff could stand/walk for at
least two hours out of an eight-hour workday, sit for six hours out
of an eight-hour workday, lift and carry 10 pounds frequently and
20 pounds occasionally,
frequently handle and finger,
frequently
stoop, kneel, crouch, and crawl, and occasionally climb ramps and
stairs and balance.
Tr.
10 - OPINION AND ORDER
18,
450-457.
Dr. Alley also opined that
plaintiff requires changing positions on an hourly basis and should
avoid concentrated exposure to extreme
Alley's
medical
opinion
some
weight
cold.
because
The ALJ gave
the
Dr.
environmental
restriction did not appear to be supported by the objective medical
record. Tr. 18.
In short,
the ALJ reasonably concluded that the objective
medical evidence in the record is inconsistent with the degree of
plaintiff's subjective symptoms and appropriately discounted her
credibility on this basis.
2. sporadic work history
The ALJ cited to plaintiff's poor work history to suggest
plaintiff lacks a propensity to work. Tr. 17. Evidence of a poor
work history which suggests a claimant is not motivated to work is
a proper reason to discredit a claimant's testimony that she is
unable to work.
2002) .
Thomas v.
Barnhart,
As the ALJ correctly noted,
278 F.3d 947,
959
(9th Cir.
plaintiff had little to no
earnings from 1989 to 1998. Tr. 17, 124. Plaintiff argues this is
an
improper reason to discount
her testimony as plaintiff was
likely a stay at home mom during that period of few earnings. Pl.
Br.
(#13) p. 14-15. Plaintiff's theory is wholly unsubstantiated.
After
careful
review
of
the
record,
I
find
no
testimony from
plaintiff or evidence in the overall record indicating that she
ceased working to stay at home with her children.
11 - OPINION AND ORDER
The ALJ also considered plaintiff's earnings after her alleged
onset of disability in evaluating her credibility. The ALJ noted
that the plaintiff earned $15,030 in 2008, and $1,650 in 2009. Tr.
17.
And,
as
the
ALJ
indicated,
plaintiff's
hearing
testimony
undercuts her allegations. At the hearing, plaintiff testified that
she stopped working at Plaid Pantry in 2010 because they were not
giving her enough hours. Tr. 40. On the record before me, the ALJ
appropriately discounted plaintiff's credibility on the basis of
her ability to continue working,
albeit in a decreased manner,
beyond the date she alleges disability.
597,
604
(9th
Cir.
1989)
Fair v.
(upholding
ALJ' s
Bowen,
885 F. 2d
discrediting
of
plaintiff's credibility on the basis of a failed work attempt). In
this case, the ALJ's finding is supported by substantial evidence.
3. activities of daily living
The ALJ found that plaintiff's variety of activities of daily
living are inconsistent with the level of disability she alleges.
For
example,
the
ALJ
discussed
that
plaintiff
is
capable
of
performing household chores such as laundry, vacuuming, and washing
dishes, caring for a pet, watching television for two to four hours
a day, and is usually able to finish tasks. Tr. 17. The ALJ noted
that plaintiff grocery shops on a
weekly basis for one to two
hours. Tr. 169. ALJ also noted that plaintiff weeds and rakes her
garden once a week and cuts her lawn with a riding mower on a
monthly
basis.
Tr.
17.
12 - OPINION AND ORDER
In
the
Pain
&
Fatigue
Questionaire,
plaintiff did not provide an answer for the question asking about
daily rests or naps during the day. Tr. 181. The,ALJ's findings are
wholly supported by substantial evidence in the record.
Plaintiff argues that the ALJ erroneously expected plaintiff's
daily
activities
impairment,
to
show
a
completely
debilitating
medical
and that plaintiff is unable to perform work on a
sustained basis. I disagree.
While a claimant need not be completely incapacitated to be
eligible for disability,
activities
are
fairly
inconsistencies,
and feet
extensive,
and
the
ALJ
cited
specific
Plaintiff reports significant pain in her hands
that worsens
plaintiff gives
here the record shows that plaintiff's
her
with use.
cat
lots
Tr.
181.
Yet,
of pet massages
driving a standard transmission automobile;
the ALJ noted,
and
commutes by
both are activities
that require a significant amount of handling and fingering. Tr.
45, 166.
The ALJ also found plaintiff's hearing testimony that she has
difficulty concentrating to complete a task inconsistent with her
Function Report, in which she indicated that she is usually able to
finish tasks such as chores, reading, and watching a movie. Tr. 42,
170.
Furthermore,
daily activities demonstrating the ability to
concentrate and finish
tasks
indicates a
transferable to a work setting." Molina,
13 - OPINION AND ORDER
"capacity
that
674 F.3d at 1113.
[is]
With respect to plaintiff's allegations of pain in her feet
after standing for several hours,
the ALJ fully considered this
limitation. Tr. 14, 17. The RFC finding incorporates a requirement
of changing positions from sitting to standing and vice versa on a
hourly basis.
Based on this significant evidence in the record, I conclude
that the ALJ properly discredited plaintiff's testimony because her
level of activity is inconsistent with the degree of impairment
that she alleges.
See Berry,
622
F. 3d at 1235
(inconsistencies
between self-reported symptoms and activities supported adverse
credibility
combined
finding) .
with
the
Accordingly,
ALJ's
other
I
conclude
reasons
that
amount
convincing support backed by substantial evidence,
to
this
basis
clear
and
for rejecting
plaintiff's subjective symptom statements.
4. conservative treatment
The ALJ also discounted plaintiff's allegations of disabling
pain in light of the minimal, conservative treatment evidenced in
the record.
A conservative course of treatment is a permissible
negative inference sufficient to discount a claimant's testimony
regarding the severity of an impairment.
Tommasetti, 533 F.3d at
1039; Parra, 481 F.3d at 750-51. However, I disagree with the ALJ
on this particular reason.
The ALJ stated that the record reveals only conservative and
routine treatment despite plaintiff's numerous complaints. Tr. 17.
14 - OPINION AND ORDER
This is a mischaracterization of the record. As plaintiff correctly
indicates,
doctors
the medical
prescribing
record
a
contains many
variety
of
references
neuropathic
to
her
pain-relieving
medications.' See generally Tr. 285, 564, 569, 573. In June 2011,
plaintiff also began taking Provigil to treat her fatigue. Tr. 575.
Compare Lapeirre Gutt v.
2010)
382 F.App'x 662,
Astrue,
664
(9th Cir.
(holding that copious amounts of narcotic pain medication as
well as occipital nerve blocks and trigger point injections did not
constitute conservative treatment) with Khounesavtdy v. As true, 54 9
F.Supp.2d
1218,
1225
(E.D.
Cal.
2008)
(holding
that
use
of
ibuprofen to treat pain constitutes conservative treatment).
Due to intolerable side effects, Dr. Friedman changed her pain
medications frequently.
For example, in May of 2011, Dr. Friedman
prescribed Cymbalta to relieve plaintiff's neuropathic pain. Tr.
573. In September 2011, plaintiff had to discontinue Cymbalta due
to
gastrointestinal
side
effects,
and
Dr.
Friedman
prescribed
Gabapentin, another pain medication. Tr. 578. In January 2012, Dr.
Friedman
prescribed
plaintiff reported
Amantadine
Provigil
was
in
not
place
of
effective
Provigil
because
in treating
her
fatigue. Tr. 582. Given the numerous prescription medications and
changes in these medications, the record shows plaintiff received
1
The record shows that plaintiff received narcotic pain
medication such as oxycodone and methadone to treat her pain from
2002 to 2007. However, this period is prior to her alleged onset
of disability in June 2008. Tr. 388, 440, 374.
15 - OPINION AND ORDER
more than conservative medical treatment for her reports of pain.
Accordingly, this reason is invalid.
In conclusion, although the ALJ's credibility reasoning does
contain one error, this error does not invalidate the ALJ's overall
adverse credibility finding.
The ALJ' s
remaining
reasons,
when
taken together, constitute clear and convincing reasons, supported
by
substantial
evidence
to
discount
plaintiff's
testimony.
Therefore, I conclude that the ALJ' s error is harmless. "So long as
there
remains
'substantial
conclusions on ... credibility'
validity of
the ALJ' s
[error]
deemed
is
evidence
and the error
ultimate
harmless
supporting
does
ALJ's
'does not negate the
[credibility]
and
the
not
conclusion,'
warrant
such
reversal."
Carmickle, 533 F.3d at 1162 (quoting Batson, 359 F.3d at 1195-97);
Stout v.
Commissioner Soc.
Sec.
Admin.,
454 F.3d 1050, 1055
(9th
Cir. 2006) .
II. The ALJ Did Not Err in Assessing the Lay Testimony
Lay witness testimony as to how a claimant's symptoms affect
her ability to work is competent evidence, which the ALJ must take
into account. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009);
Stout, 454 F.3d at 1053; Nguyen v. Chater, 100 F.3d 1462, 1467 (9th
Cir.
1996) .
The ALJ
is
required
to
account
for
competent
lay
witness testimony, and if it is rejected, provide germane reasons
for doing so. Valentine, 574 F.3d at 694.
16 - OPINION AND ORDER
Plaintiff's mother, Trudy Cherry, completed an Adult Function
Report on December 27, 2009. In this report, Mrs. Cherry indicated
that plaintiff has pain in her feet.
Tr.
173.
Mrs.
Cherry also
noted that plaintiff takes care of her cat, has no problems with
personal care, walks very slowly and has difficulty getting around.
Tr. 174-177. Furthermore, Mrs. Cherry indicated that plaintiff is
no longer able to ski, stand for long periods of time, exercise, or
engage
in body building.
Tr.
17 4.
Mrs.
Cherry also noted that
plaintiff grocery shops once a week for one hour. Tr. 176.
Mrs.
Cherry
also
testified
at
the
hearing
that
she
sees
plaintiff once a week and speaks with her on a daily basis. Mrs.
Cherry noted that plaintiff constantly reports that her hands and
feet
hurt and tingle.
Tr.
4 6.
Mrs.
Cherry stated that
she has
observed plaintiff's unstable balance while she was carrying wood.
Tr.
4 7.
Mrs.
household
Cherry
chores
as
indicated that plaintiff can perform many
long
as
she
can
take
her
time.
Tr.
48.
Additionally, Mrs. Cherry noted that plaintiff can only shop for 10
to 15 minutes before needing to rest. Tr. 47.
In the instant action, plaintiff argues that the ALJ failed to
provide sufficient reasons for discounting Mrs. Cherry's statements
concerning
balance.
plaintiff's
fatigue
and
difficulty
maintaining
her
I disagree.
In the decision, the ALJ gave Mrs. Cherry's statements about
plaintiff's physical limitations and symptoms "some weight." Tr.
17 - OPINION AND ORDER
19.
The ALJ gave partial credit to Mrs.
Cherry's testimony with
respect to plaintiff's reports of numbness and tingling in her
hands and feet and difficulty balancing. Tr. 19. The ALJ also gave
weight
to
condition
Mrs.
has
Cherry's
reduced her
statements
ability to
that
plaintiff's
medical
perform certain physical
activities, such as skiing and bodybuilding. Tr. 19. However, the
ALJ provides two specific reasons for partially discrediting Mrs.
Cherry's statements regarding the severity of plaintiff's symptoms.
First, the ALJ cited to the fact that Mrs. Cherry's statements
regarding plaintiff's limited ability to stand and be active is
inconsistent with plaintiff's own allegations. Tr. 19. For example,
at the hearing, Mrs. Cherry testified that plaintiff can shop for
10 to 15 minutes before needing to rest.
Tr.
4 7.
In contrast,
plaintiff testified that she is able to shop for one to two hours
at time. Tr. 168. I conclude that the ALJ's first reason is germane
to Mrs. Cherry's testimony. Valentine, 574 F.3d at 694.
Second, the ALJ partially discredited Mrs. Cherry's statements
regarding
plaintiff's
fatigue
and
ability
to
balance
and walk
because her statements are inconsistent with the medical evidence
in the record. The ALJ specifically noted that although Mrs. Cherry
stated
that
plaintiff
wakes
plaintiff reported to Dr.
several
times
during
the
night,
Friedman that she is sleeping well at
night. Tr. 19, 582. Plaintiff argues that the ALJ took plaintiff's
statement in the medical record out of context. The full treatment
18 - OPINION AND ORDER
note from January 2012 indicates that plaintiff made an appointment
for
fatigue
and reported feeling
fatigued
even though she was
sleeping well. Tr. 582. While this particular citation is out of
context,
Dr.
Friedman's
other
notes
indicate
that
plaintiff
reported that Provigil was helpful in reducing her fatigue.
Tr.
575, 578. Thus, plaintiff's argument fails.
The ALJ also cites to Dr. Harris's finding of a normal gait
during
his
observations
response,
examination
that
as
inconsist~nt
plaintiff's balance
is
with
Mrs.
unstable.
Cherry's
Tr.
19.
In
plaintiff argues the ALJ did not consider Dr. Harris's
examination
finding
of
a
modestly
abnormal
Romberg
test
for
balance, which supports Mrs. Cherry's testimony. I disagree.
The ALJ discussed the modestly abnormal Romberg finding when
discussing Dr. Harris's examination. Tr. 16. Moreover, in a January
2011 examination,
Dr.
Friedman noted a normal gait and Romberg
finding. Tr. 565. In additional examinations in 2011 and 2012, Dr.
Friedman consistently noted a normal gait and station finding. Tr.
569, 572, 575, 578, 582. Lastly, plaintiff has not challenged the
ALJ's assessment of the medical evidence. Accordingly, as discussed
above,
the
ALJ
provided
two
germane
reasons
for
partially
discrediting Mrs. Cherry's testimony. See Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005)
(ALJ provided germane reasons for
rejecting portions of lay testimony that was
claimant's activities and objective evidence).
19 - OPINION AND ORDER
inconsistent with
III. Plaintiff Idenitifies Two Errors at Step Four
At step four, the claimant has the burden to show she can no
longer perform her past relevant work.
20 C.F.R.
§§
404.1520(e),
416.920(e). However, the ALJ must still provide factual findings to
support his step four conclusion. Pinto v. Massanari, 249 F.3d 840,
844
(9th Cir.
2001).
"This requires specific findings as to the
claimant's residual functional capacity,
the physical and mental
demands of the past relevant work, and the relation of the residual
functional capacity to the past work." Id.
and five,
at 845. At steps four
the ALJ can rely on VE testimony in determining whether
a claimant can perform his past relevant work or other work in the
national economy. See Johnson v. Shalala, 60 F.3d 1428, 1436 (9th
Cir.
1995)
(holding
that
the
ALJ
properly
relied
on
expert
testimony to find claimant could perform two jobs identified by the
VE) .
First, plaintiff argues that the ALJ's step four finding is
not supported by substantial evidence because neither the ALJ nor
the VE provided specific Dictionary of Occupational Titles
(DOT)
codes. Second, plaintiff argues that the ALJ incorrectly found that
she could perform her past relevant work as a cashier because the
job as plaintiff performed it and as it is generally performed
exceeds the ALJ's RFC finding. With regard to her first argument,
plaintiff is correct.
20 - OPINION AND ORDER
At the hearing, the ALJ asked the VE to identify plaintiff's
past relevant work. The VE testified that plaintiff's past relevant
work included the following jobs: cashier, massage therapist, house
cleaner, and flagger. Tr. 50. With respect to the cashier job, the
VE stated that "what we have is the cashier at a convenience store.
It
is
typically
done
as
light.
The
DOT
classified
it
as
light ... There was some stocking involved, so the stocking actually
takes some of [the job) into the medium [ exertional)
50.
level." Tr.
The VE classified plaintiff's cashier position as
a
light
exertional level, low semi-skilled job. Tr. 50.
The record indicates that the VE consulted with the DOT in
identifying plaintiff's past relevant work. Tr.
50,
51. However,
when testifying, the VE did not cite to a DOT code for the cashier
position, so the record is unclear as to which cashier job in the
DOT the VE was referring. 2 TR.
that as
pe~formed
by plaintiff,
50.
Although the VE acknowledged
the cashier job required medium
level tasks, the VE did not further resolve the light versus medium
level discrepancy of plaintiff's prior cashiering work. Because the
2
Plaintiff noted that the only cashier job listed in the DOT
at a light exertional level SVP of 3 is cashier-checker, DOT
#211.462-014, which requires constant handling and fingering.
However, the Commissioner cited cashier II job DOT #211.462-010
at the light level SVP of 3, which involves frequent handling and
fingering and lists Parking Lot cashier as an alternate
designation. Dictionary of Occupational Titles (DOT)§§ 211.462014, 211.462-010. As the exchange between the ALJ and VE shows,
there are several cashier jobs in the DOT. Tr. 51-52. Thus,
specific citation to DOT codes when eliciting VE testimony is
necessary.
21 - OPINION AND ORDER
VE did not supply DOT code citations when classifying plaintiff's
past relevant work, this portion of the ALJ's step four finding is
not supported by substantial evidence.
The ALJ then continued this error when determining whether
plaintiff could perform her past relevant work. During the hearing,
the ALJ posed a hypothetical to the VE incorporating all of the
limitations of the RFC finding. The VE testified that claimant's
past relevant work as a cashier "would still accommodate
[the]
restrictionsn posed in the hypothetical. Tr. 51. The VE testified:
ALJ:
VE:
And there are different kinds of cashier jobs.
I mean, some cashier jobs, you have to be on
your feet all day. Some cashier jobs, you can
- like a parking lot cashier or a, cafeteria
cashier, those kinds of cashiering jobs you
can do either standing,
sitting,
doesn't
really matter ... would you say?
Exactly, and that's why I think with ... the one-hour
ability to switch position definitely would allow
for a quite a few of these positions, al though
technically, they may last up until about six hours
out of the eight, but they'll certainly allow more
flexibility, especially the cashier, the parking
lot attendant, which is light and unskilled, but in
a way, really, you spend about 75 percent of the
time in a sit-down position. Tr. 51-52.
Again, the VE did not provide nor did the ALJ request DOT codes to
match the jobs that he discussed with the ALJ. Despite this lack of
supporting
information,
in
the
decision,
the
ALJ
found
that
plaintiff could perform her past relevant work as a cashier as it
is generally performed in the national economy. Tr.
finding is erroneous.
22 - OPINION AND ORDER
19-20. This
Without referencing specific DOT codes,
relied
on
"cashier."
the
VE's
Such
a
generic
generic
the ALJ must have
occupational
classification
classification
is
insufficient
of
in
determining whether plaintiff can perform her past relevant work
because
there
"cashier"
as
are
the
many
DOT
discussion
jobs
of
under
the
the
VE's
classification
testimony
of
reveals.
Carmickle, 533 F. 3d at 1167 (quoting Vertigan v. Halter, 2 60 F. 3d
1044, 1051 (9th Cir. 2001)). "When ... the ALJ makes findings only
about the claimant's limitations,
and the remainder of the step
four assessment takes place in the [vocational expert's] head, we
are left with nothing to review." Pinto,
249 F.3d at 847
(citing
Winfrey v. Chater, 92 F.3d 1017, 1025 (10th Cir. 1996)). Moreover,
some of those cashier jobs would exceed plaintiff's RFC. By failing
to indicate with specificity which cashier job in the DOT is most
analogous to plaintiff's cashier job as generally performed,
the
ALJ erred. Based on the record before me,
the ALJ's finding that
plaintiff can perform her past
work as
relevant
a
cashier as
generally performed is not supported by substantial evidence.
I decline to address plaintiff's second argument because it is
clear that the ALJ's reliance on VE testimony was erroneous, and
the
ALJ's
step
four
evidence.
23 - OPINION AND ORDER
finding
is
not
supported
by
substantial
IV.
Hypothetical Posed to the VE was Valid
Plaintiff
contends
that
the
ALJ
posed
an
inadequate
hypothetical to the VE because the ALJ's evaluation of plaintiff's
RFC failed to adequately account for her subjective allegations of
pain.
I
disagree.
As discussed above,
reasons
discredit
to
determination
plaintiff
is
does
the ALJ provided clear and convincing
plaintiff's
supported
not
by
challenge
credibility,
substantial
the
medical
and
evidence.
evidence
this
Moreover,
or medical
opinions that the ALJ relied on in formulating the RFC finding.
Thus,' I conclude that the ALJ correctly incorporated all of those
limitations into the RFC.
Furthermore, the hypothetical posed by
the
included
ALJ
to
the
VE
that
limitations
was
legally
all
sufficient
of
in
plaintiff's
this
respect.
credited
However,
because the ALJ committed an error at step four, I conclude remand
is appropriate.
V.
Remand
After finding the ALJ erred, this court has the discretion to
remand
for
further
benefits.
Vasquez
Hannan v.
Apfel,
v.
proceedings
Astrue,
or
for
572 F.3d 586,
211 F.3d 1172,
1178
immediate
593
(9th Cir.
payment
(9th Cir.
of
2009);
2000). The issue
turns on the utility of further proceedings. A remand for an award
of benefits is appropriate where there is no useful purpose to be
24 - OPINION AND ORDER
served
by
further
developed. Vasquez,
The
proceedings
or
where
the
record
is
fully
572 F.3d at 593.
Ninth Circuit
has
established a
three-part
test
"for
determining when evidence should be credited and an immediate award
of benefits directed." Harman, 211 F.3d at 1178. The court should
grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such 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.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has discretion whether to credit the evidence. Connett v. Barnhart,
340
F. 3d 87 3,
87 6
(9th Cir.
2003) .
The reviewing court should
decline to credit testimony when "outstanding issues" remain. Luna
v.
Astrue,
623 F.3d 1032,
1035
(9th Cir.
2010).
Moreover,
"[a)
claimant is not entitled to benefits under the statute unless the
claimant is, in fact, disabled, no matter how egregious the ALJ's
errors may be." Strauss v. Commissioner of the Soc.
Sec.
Admin.,
635 F.3d 1135, 1138 (9th Cir. 2011).
On this record,
I conclude that outstanding issues must be
resolved before a final determination of disability can be made.
The ALJ determined that plaintiff could perform her past relevant
work
as
a
cashier
and
25 - OPINION AND ORDER
relied
on
VE
testimony.
As
discussed
previously, the VE referred to several cashier jobs in the DOT but
did not cite to any DOT codes. The ALJ did not specify which job
listed in the DOT is most analogous to plaintiff's past relevant
work
as
generally
performed,
and
thus,
I
concluded
the
VE's
testimony was not supported by substantial evidence. Therefore, it
is still unresolved as to whether plaintiff can perform her past
relevant work at step four.
Additionally, because the ALJ found plaintiff not disabled at
step four; the ALJ did not reach the step five question of whether
plaintiff
is
capable
significant
numbers
outstanding
issues
of
in
that
performing
the
national
must
be
other
work
economy.
resolved
that
Thus,
before
a
exists
these
in
are
disability
determination can be made. Accordingly, proper remedy is to remand
for further administrative proceedings. Thus,
I decline to award
immediate award of benefits because the record as a whole creates
serious
doubt
as
to
whether
plaintiff
is,
in
fact,
disabled.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
Based on the foregoing,
I exercise discretion under Connett
and conclude a remand for further proceedings is required to permit
the ALJ:
(1)
to further evaluate plaintiff's past relevant work;
(2) determine whether she is able to perform her past relevant work
either as she performed it or as it is generally performed; and ·(3)
if.necessary, evaluate whether plaintiff is capable of performing
26 - OPINION AND ORDER
other work that
exists
in significant numbers
in the national
economy, with assistance of a vocational expert if necessary.
CONCLUSION
For
decision
the
reasons
denying
stated
benefits
to
above,
the
plaintiff
Commissioner's
is
REVERSED
final
and
this
proceeding is REMANDED pursuant to sentence four of 42 U.S.C.
§
405 (g)
for further administrative proceedings consistent with
this opinion.
IT IS SO ORDERED.
DATED this __Lfl_ day of DECEMBER, 2014.
MalColm F,'. Mar13h
United States bistrict Judge
27 - OPINION AND ORDER
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