Neyman-Reese v. Commissioner Social Security Administration
Filing
24
OPINION AND ORDER: The Commissioner's decision is REVERSED and this case is remanded for further proceedings consistent with this opinion. Signed on 3/13/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:17-cv-00436-AA
OPINION AND ORDER
MARGARET A. NEYMAN-REESE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
AIKEN, Judge:
Margaret Neyman-Reese brings this action pursuant to the Social Security Act ("Act"),
42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social
Security ("Commissioner"), who denied plaintiffs application for Disability Insurance Benefits
("DIB"). For the reasons set forth below, the Commissioner's decision is reversed and remanded
for fmiher proceedings.
BACKGROUND
In January 2013, plaintiff applied for DIB. She alleged disability beginning May 31,
2011, due to chronic venous insufficiency ("CV!"), diabetes, back pain, obesity, hearing loss,
Page l - OPINION AND ORDER
and aiihritis. Tr. 44-45. Plaintiff's application was denied initially and upon reconsideration, and
she requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 44, 56. Following the
July 20, 2015 hearing, the ALJ issued a decision on August 27, 2015, finding plaintiff notdisabled within the meaning of the Social Security Act ("the Act"). Tr. 9-19. After the Appeals
Council denied review, plaintiff filed a complaint in this Court.
STANDARD OF REVIEW
The district comi must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §
405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (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 suppo1t a conclusion." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that suppo1is and the evidence that detracts from the ALJ's conclusion." Mayes v.
Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed,
because "the court may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
THE COMMISSIONER'S DECISION
The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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)(l)(A).
Page 2 - OPINION AND ORDER
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4). At
step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the
alleged disability onset date of May 31, 2011. See 20 C.F.R. § 404.1520(a)(4)(i), (b). At step
two, the ALJ found plaintiff had the following severe impairments: obesity, CVI, diabetes, and
hearing loss. See 20 C.F.R. § 404.1520(a)(4)(ii), (c). At step three, the ALJ determined that
plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one
of the listed impairments" that the Commissioner acknowledges are so severe as to preclude
substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(iii), (d).
Before proceeding to step four, the ALJ assessed plaintiffs residual functional capacity
("RFC"):
[Plaintiff] has the [RFC] to perform light work ... i.e., lift/carry twenty pounds
occasionally and ten pounds frequently, except ... [she] can stand and walk 4-5
hours and sit 5-6 hours out of an 8-hour day; can occasionally climb ramps and
stairs, crouch, stoop, kneel, and crawl, but no climbing of ladders, ropes, or
scaffolds and no balancing on narrow beams; should avoid strong vibration;
should do no work in environments with noise level greater than III; and should
not have more than occasional telephone interaction with the public and
coworkers.
Tr. 13; see 20 C.F.R. § 404.1520(e).
At step four, the ALJ concluded that based on her RFC, plaintiff could not perform her
past work as a grocery clerk or comtesy clerk. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step
five, the ALJ found that, considering her age, education, work experience, and RFC, plaintiff
could perform other jobs which existed in significant numbers in the national economy: namely,
mail sorter and storage facility rental clerk. 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(l). Accordingly,
the ALJ found plaintiff not disabled.
Page 3 - OPINION AND ORDER
DISCUSSION
Plaintiff argues the ALJ's decision involved the following errors: (1) failing to find
plaintiff meets Listing 4.1 l(B); (2) improperly discrediting plaintiff's symptom allegations; (3)
according little weight to the medical opinion statement of plaintiffs treating physician; (4)
failing to find plaintiff's hand and back impairments "severe" at step two; and (5) improperly
relying on vocational expett testimony in identifying other work at step five.
I.
Listing 4.11 (B)
Plaintiff argues that because her CV! condition meets or equals the severity requirements
of Listing 4.ll(B), the ALJ should have determined she was presumptively disabled at step
three. See 20 C.F.R. Patt 404, Subpart P, Appendix 1. Instead, the ALJ determined that the
objective medical record did not establish any of the criteria for Listing 4.1 l(B). Tr. 12.
In order to meet Listing 4.11 (B), the record must demonstrate: chronic venous
insufficiency of a lower extremity with incompetency or obstruction of the deep venous system
and ... [s]uperficial varicosities, stasis dermatitis, and either recurrent ulceration or persistent
ulceration that has not healed following at least 3 months of prescribed treatment. 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 4.11. In terms of the listing, "recurrent" means: "the longitudinal clinical
record shows that, within a consecutive 12-month period, the finding(s) occurs at least three
times, with intervening periods of improvement of sufficient duration that it is clear that separate
events are involved." Id. at§ 4.00(A)(3)(c). "Persistent" means: "the longitudinal clinical record
shows that, with few exceptions, the required finding(s) has been present, or is expected to be
present, for a continuous period of at least 12 months, such that a pattern of continuing severity
is established." Id. at § 4.00 (A)(3)(b).
Page 4 - OPINION AND ORDER
Plaintiff argues that the objective medical evidence demonstrates she met Listing 4.1 l(B)
during the period from approximately April 21, 2011 to July 22, 2011. Pl.'s Br. 5-6. To clarify
the timeline of the medical evidence, a briefrecitation of the record is appropriate. As a threshold
matter, it appears plaintiff mistakenly attributed the ulceration onset recorded on May 5, 2011, to
the date of another chart note, April 21, 2011. Compare Pl.'s Br. 5 ("now with venous stasis
ulcers" attributed to the date of April 21, 2011) with Tr. 391 ("now with venous stasis ulcers"
attributed to the date of May 5, 2011). On May 5, 2011, plaintiff was noted to have lesions on
her lower legs bilaterally. Tr. 390-91. On the same day, she was sent out for a duplex scan
(ultrasound), which revealed "[n]ormal venous examination of the left lower extremity." Tr. 296.
By May 18, 2011, ulcers were again observed on plaintiffs legs bilaterally; on the same day, the
duplex scan was interpreted as abnormal, revealing "mild deep venous reflux" on both lower
extremities. 1 Tr. 315, 378-379. The record reflects that plaintiffs venous stasis ulcers worsened
by May 25, 2011, despite treatment, and continued to worsen through June 3, 2011. Tr. 367, 371.
A third duplex scan was ordered on June 3, 2011, and completed on June 6, 2011, which showed
normal venous activity. Tr. 336-39, 367. On July 13, 2011, a treating physician noted that the
duplex results were normal, although plaintiff continued to report swelling. Tr. 360. However, by
July 20, 2011, a treating occupational therapist observed that plaintiffs left leg ulcer had healed,
and her edema was "tmder excellent control." Tr. 517. On July 22, 2011, plaintiffrepmted that
her legs were "much improved." Tr. 357.
1
The Court notes that there appears to be a data entry error in the medical record regarding the date of the duplex
scan which was ordered on May 18, 2011 (Tr. 379), and also performed on May 18, 2011 (Tr. 315-18). Although the
"encounter date" of the chart note indicates lvlay 18, 2011, the body of the scan results suggests the scan \Vas done
on June 6, 2011. Tr. 315-18. The June 6, 2011 date, however, corresponds to a subsequent scan, which was ordered
on June 3, 2011. See Tr. 336-39, 367. In contrast to the May 18, 2011 scan, the June 6, 2011 scan revealed "[n]ormal
venous examination of the lo\ver extremities." Tr. 336-339. This is consistent \Vith the State agency's initial
detennination, \vhich documented mild deep vein reflux on May 18, 2011, and nonnal venous duplex scan on June
6, 2011. Tr. 49. Understandably, the ALJ mistakenly attributed the May 18, 2011 scan results to the June 6, 201 l
scan in his decision. Tr. 14. It appears plaintiff followed the ALJ's misinterpretation of the record. See Pl.'s Br. 4.
For the reasons articulated in the opinion infi·a, the ALJ's error \Vas harmless.
Page 5 - OPINION AND ORDER
Thus, the record demonstrates that Plaintiff had ulceration from approximately May 5,
2011 until July 20, 2011, contrary to her asse1iion that the ulceration persisted from April 21,
2011 through July 22, 2011. Accordingly, she does not meet Listing 4.ll(B)'s requirement for
persistent ulcerations despite treatment for more than three months. 20
C.F.R. Pt. 404, Subpt.
P., App. 1, § 4.1 l(B); see, e.g., Kennedyv. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2014) (all ofa
listing's criteria must be met in order to establish a listing or a listing's equivalence) (citation
omitted).2 To the contrary, it appears plaintiffs ulceration healed with about two-and-a-half
months of diligent treatment including occupational therapy. Although the ALJ erred in
identifying the date of the abnormal venous study, and inaccurately asserted that Plaintiff never
met any of the criteria for Listing 4.11 (B), the errors were harmless because the ALJ's step three
determination was correct: plaintiff has not presented evidence that she met all of the criteria for
the listing.
II.
Step Two Severe Impairments
The step two inquiry is a de minimis screening device used to dispose of groundless
claims. Yuckert, 482 U.S. 147, 153-54 (1987). The claimant bears the burden of establishing that
2
Raising the issue for the first tin1e in her Reply Brief, plaintiff argues that the record den1onstrates "indicia of
venous ulcerations" recurred for 1nore than hvelve months such that 1'all" of the listing criteria \Vere met. See Pl.'s
Reply 5-6. However, plaintiff argues only that she reported incidents of "red patches of skin breakdown, surrounded
by flaking or thin, shiny skin, sores, ulcers, \vounds, and so1netimes puss draining fron1 the \vound ... beginning in
July 2010 ... through July of20ll and beyond." Pl.'s Reply 6. Such a generalized assertion is not sufficient to
establish that all of the criteria were met on a recurrent basis over a twelve-month period. See Tackett, 180 F.3d at
1098 (burden of proof is on clahnant at step three). Moreover, revie\v of the relevant record does not demonstrate
that \Vithin a consecutive 12-inonth period, ulcers occurred at least three times, \Vith intervening periods of
improvement of sufficient duration that it is clear that separate events are involved." 20 C.F.R. Pt. 404, Subpt. P,
App. I,§ 4.00(A)(3)(c). For example, although plaintiff had a red patch on her left leg beginning in July 2010 and
worsening in August 2010, only edema was noted by August 31, 2010. See Tr. 438, 452, 462. In September 2010,
the medical provider noted "decreased skin breakdown despite edema." Tr. 433. By October 2010, although venous
insufficiency \Vas noted, there \Vere "no open sores or infections." Tr. 423. There is no further evidence of ulceration
or skin changes until May 5, 2011. As such, plaintiff demonstrates, at most, t\vo independent incidences of
ulceration within the consecutive twelve-month span from July 2010 to July 2011. As such, Plaintiff's alternative
argument is unavailing.
Page 6 - OPINION AND ORDER
she has a severe impairment at step two; an impairment is "not severe only if the evidence
establishes a slight abnormality that has no more than a minimal effect on an individual's ability
to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); 20 C.F.R. §§ 404.1523. When an
ALJ fails to identify a severe impairment at step two, but considers nonetheless the functional
effect of the omitted impairment at subsequent steps, any error is harmless. Lewis v. Astrue, 498
F.3d 909, 911 (9th Cir. 2007).
The ALJ provided a boilerplate statement for finding several of plaintiffs medicallydeterminable impairments non-severe at step two. Referencing history of back pain, history of
knee surgery, and persistent numbness of the hands at once, the ALJ found:
These conditions, either singly or in combination, have caused only transient and
mild symptoms and limitations, are well controlled with treatment, did not persist
for twelve continuous months, do not have greater than a minimal limitation on
the claimant's physical or mental ability to perform basic work activities, or are
otherwise not adequately supported by the medical evidence of record.
Tr. 12. But the ALJ also noted that plaintiff had back pain complaints for 20 years, and
acknowledged her history of back pain, and also credited a po1tion of examining physician
Andrea Marshall, D.O.'s assessment that plaintiff was limited from working at heights due in
part to back pain. Tr. 12, 16, 470. Based on the ALJ's endorsement of Dr. Marshall's functional
limitation alone, it was error for the ALJ to find plaintiffs back condition non-severe.
The Commissioner asse1ts that the ALJ's step two finding regarding back pain was
proper because plaintiffs back condition was not corroborated by medical imaging until three
months before the ALJ's decision and therefore the record did not reflect that the condition
persisted for twelve months. Def.'s Br. 9. The reason is erroneous; as the ALJ acknowledged,
substantial evidence supports plaintiff's history of back complaints, and the only reasonable
inference is that the condition identified in the May 2015 lumbar x-ray-"nearly grade 2
Page 7 - OPINION AND ORDER
anterolisthesis of L4 on LS [with] bilateral spondylolysis of L4"-was the likely cause of the
complaints. Tr. 554; see also Tr. 489 (treating physician citing low back pain with neuropathy);
Tr. 539 (treating physician citing lower extremity radiculopathy and low back pain in
conjunction with May 2015 x-ray showing grade 2 anterolisthesis and disc narrowing).
Fmther, an ALJ must consider impairments that have lasted, or are expected to last, for
twelve months or more. 20 C.F.R. § 404.1509 (emphasis added). Thus, even the unlikely
assumption that plaintiffs anterolisthesis and spondylosis did not develop until around the time
of the May 2015 x-ray, she was not necessarily required to demonstrate that the impairment
existed for the prior twelve months if it was expected to persist for twelve months. On this
record, given the longitudinal record of back pain in conjunction with plaintiffs obesity, there is
every reason to believe that plaintiffs medically-determinable back condition was not going to
resolve within twelve months. See Tr. 13 (ALJ noting plaintiffs obesity does not meet or equal a
listing); see also, Tr. 388 (diagnosis of"obesity, morbid (more than 100 lbs over ideal weight or
BM! > 40)"); 425 (identifying plaintiffs comorbidities related to obesity, "including GERD,
DM, hyperlipidemia, possible OA [osteoarthritis]").
The Commissioner also argues the ALJ' s decision not to find the back impairment severe
was supported by his finding "no record of treatment for low back pain." Def.'s Br. 9 (citing Tr.
12). The argument is unpersuasive: the record reflects that plaintiff was engaged in a prebariatric surgery program to address sciatica, low back pain, and ankle pain. Tr. 419, 422; see
also Tr. 394 ("patient's goal is to have weight loss surgery to maintain weight loss and improve
other health conditions"). Indeed, the connection between plaintiffs attempts at weight loss and
her back pain was not lost on the ALJ at the hearing, as he expressed to plaintiff that "it's got to
Page 8 - OPINION AND ORDER
be hard on your feet, hard on your back, carrying extra weight," and his congratulations that she
had recently lost several pounds. Tr. 33.
The Commissioner maintains that even if the ALJ erred in failing to identify all of
plaintiffs severe impairments at step two, any error was harmless because the sequential process
continued to subsequent steps and incorporated limitations related to plaintiffs non-severe
impairments. The Commissioner's argument is persuasive, as substantial evidence supports the
proposition that the ALJ considered plaintiffs back impairment at subsequent steps. As noted, in
formulating the RFC, the ALJ appeared to adopt Dr. Marshall's opinion that plaintiff was limited
from working at heights based in part on her back pain. Tr. 16. Further, although plaintiff
disagrees with the conclusion, the ALJ indicated that the opinion of reviewing physician Lloyd
Wiggins, M.D., was "somewhat consistent with the claimant's limitations from minor knee and
back pain, and hearing loss." Id. Accordingly, it appears that despite erroneously finding that
plaintiffs back condition did not constitute a severe impairment at step two, the ALJ considered
it at subsequent steps, and therefore plaintiff has not demonstrated harmful error. Lewis, 498 F.3d
at 911.
Plaintiff additionally argues that the ALJ improperly failed to find plaintiffs bilateral
carpal tunnel syndrome "severe" at step two. The ALJ addressed the issue, noting that a nerve
conduction study in June 2015 demonstrated only "very mild median nerve across the wrist on
the right." Tr. 12, 560. Indeed, the nerve conduction study showed no evidence of ulnar or
cervical neuropathy of either upper extremity, and no evidence of carpal tunnel syndrome or
other neuropathy on the right. Tr. 560. However, even assuming without finding the ALJ erred,
any error was harmless because the ALJ considered plaintiffs carpal tunnel syndrome in
fashioning the RFC. Specifically, the ALJ appeared to adopt Dr. Marshall's opinion that plaintiff
Page 9- OPINION AND ORDER
could handle, finger, and feel without restrictions, which was based on the doctor's examination
which demonstrated 5/5 motor strength in the upper extremities, and 5/5 grip strength bilaterally.
Tr. 15, 16, 470. As such, plaintiff has not identified harm at step two. Lewis, 498 F.3d at 911.
III.
lvledical Opinion Evidence
There are three types of medical opinions in Social Security disability cases: those of
treating, examining, and reviewing physicians. Holohan v. Massanari, 246 F.3d 1195, 1201-02
(9th Cir. 2001). "Generally, a treating physician's opinion carries more weight than an
examining physician's, and an examining physician's opinion carries more weight than a
reviewing physician's." Id. at 1202; accord 20 C.F.R. § 404.1527(d). Accordingly, "the
Commissioner must provide clear and convincing reasons for rejecting the uncontradicted
opinion of an examining physician." Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995).
Moreover, "the opinion of an examining doctor, even if contracted by another doctor, can only
be rejected for specific and legitimate reasons." Id. at 830-831. "The ALJ is responsible for
resolving conflicts in the medical record." Carmickle, 533 F.3d at 1164. "Where the evidence is
susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be
upheld." See lvlorgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). "[T]he
consistency of the medical opinion with the record as a whole" is a relevant consideration in
weighing competing evidence. Orn, 495 F.3d at 631.
Plaintiff contends that the ALJ erroneously rejected the assessment of plaintiffs treating
physician, Dr. Earhart. The doctor opined that plaintiff is limited to standing for 15 minutes at a
time due to edema, and that she is required to elevate her feet periodically to avoid lower
extremity swelling, noting a history of leg ulcers. Tr. 488. The doctor assessed an array of
marked exertional limitations for a normal workday, including only 30 minutes of standing or
Page 10- OPINION AND ORDER
walking in a workday, and 20-30 minutes of sitting at a time for a maximum of one hour per day.
Tr. 489. The doctor attributed the exertional limitations to ueuropathy in plaintiffs feet and low
back pain with radiculopathy. Tr. 490. The doctor additionally noted that plaintiff has weak
hands. Tr. 488.
Plaintiffs primary contention is that the ALJ failed to accept or reject Dr. Earhatt's
opinion that plaintiff would be required to elevate her feet throughout the workday to alleviate
pain and swelling. In response, the Commissioner summarizes several reasons the ALJ provided
for rejecting Dr. Earhait's opinion overall, and asse1ts that it was not necessary for the ALJ to
"discuss each line" of the doctor's opinion, without specific mention of the foot elevation
limitation. Def.'s Br. 13-14. However, although an ALJ may not be required to comment on
every component of a doctor's opinion, an ALJ is nevertheless required to provide reasons for
rejecting "significant probative evidence." Vincent on Behalf of Vincent v. Heckler, 739 F.2d
1393, 1395 (9th Cir. 1984).
On this record, there is an abundance of evidence that plaintiffs CV! condition requires
her to elevate her feet in order to avoid edema, which in the past became so pronounced that it
caused ulceration in her lower extremities, as well as abnormal venous functioning. Indeed, the
ALJ found that plaintiffs acute flare of CVI in May and June of 2011 was effectively treated
with a course of occupational therapy, which involved plaintiff wearing compression stockings
and elevating her feet for up to twelve hours per day. See Tr. 14, 506, 511-12, 517-18, 523, 533,
538. The chart notes from the occupational therapy sessions further indicate that there is "[h]igh
risk for chronic and recurrent wounds if any aspect of care is compromised." Tr. 501. Moreover,
plaintiff was repeatedly instructed to keep her feet elevated beginning in 2010, although the
Page 11 - OPINION AND ORDER
instructions for the frequency and duration of elevation are not consistent throughout the record.
See, e.g., Tr. 218-20, 357, 391, 431, 441, 457, 462, 517-18, 533, 538.
Fmthermore, the ALJ should have considered and provided legally-sufficient rationales
for rejecting the alleged foot elevation limitation set fo1th by Dr. Earhart, because the ALJ
appeared to reject Dr. Marshall's opinion insofar as Dr. Marshall did not properly consider the
functional effects of plaintiffs obesity and CV!. Specifically, the ALJ found that plaintiff was
more limited than Dr. Marshall believed, "especially in terms of the claimant's exertional ability
given her problems with circulation and obesity." Tr. 17.
Accordingly, the Comt concludes that the ALJ erred by failing to provide any discussion
of Dr. Earhmt's foot elevation limitation. Although the record is somewhat mixed on the specific
ongoing requirements in terms of frequency and duration of plaintiffs need to elevate her feet,
the general limitation is prevalent throughout the record, and the ALJ must provide adequate
reasons to either accept or reject such probative evidence. Because the VE testified that a person
who was required to elevate their legs for two hours every day 3 would be precluded from
maintaining gainful employment, the ALJ's omission of the limitation from the RFC was
potentially harmful, because had the ALJ properly considered the limitation, the Comt cannot
conclude that no reasonable ALJ would have arrived at the same conclusion. Stout v. Comm 'r,
Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). Therefore, remand is required to
reevaluate Dr. Earhmt's opinion on the issue. See Tr. 41-42.
3
Insofar as plaintiff contends that she is required to elevate her feet for at least 30 minutes every hvo hours, the
record is ambiguous on the issue. For example, several chart notes indicate that plaintiff should elevate her feet
'vhen she is not \Vorking, or \Vhen she is able. See Tr. 455. Other evidence suggests tnore frequent elevation is
required, particularly \Vhen there is "pooled blood" \vhich needs to be drained, presumably during a flare-up such as
the incident in May 2011. See, e.g., Tr. 219, 364, 371, 431.
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Plaintiff also argues the ALJ e!1'ed in rejecting exe1iional limitations Dr. Earhaii assessed
regarding plaintiffs back pain and foot neuropathy. The ALJ rejected the functional limitations
that Dr. Earhaii attributed to plaintiffs back condition, finding that they were unsupported by
diagnoses or objective evidence. Tr. 17. Although the Comi agrees there is scant evidence of
functional limitation due to foot neuropathy, the back condition was diagnosed throughout the
longitudinal record, albeit in various forms including sciatica, backache, lower back pain,
possible osteoaiihritis, and back pain with radiculopathy. Tr. 539. Nonetheless, as noted above,
the ALJ appeared to consider plaintiffs back pain in crafting the RFC.
Plaintiff argues that it was error to reject the exertional limitations assessed relative to her
back because the May 2015 x-ray provided objective evidence of anterolisthesis. Indeed, to the
extent the doctor's opinion was rejected because it was not based on objective evidence, the
rationale is somewhat undermined by the May 2015 imaging study. Tr. 554. However, the ALJ
provided specific and legitimate reasons to reject Dr. Earhart's opinion that she could only sit for
a total of one hour in a workday, despite plaintiff's own testimony that she could sit for up to 90
minutes and endorsed the hobbies of reading, watching television, and playing computer games.
Tr. 37, 150, 467. The ALJ also provided a valid reason for rejecting Dr. Earhaii's assessed
standing and walking limitation of 30 minutes, as it was contradicted by testimony provided by
plaintiff's husband. Tr. 17, 171, 489. Further, the ALJ adequately addressed Dr. Earhart's
assessed lift/carry limitations by noting that plaintiff had recently been evaluated for neuropathy
and did not present any complaints regarding her hands. Tr. 17, 484-86. Moreover, Dr. Marshall
found plaintiff had full arm and grip strength in both upper extremities. Tr. 470.
Plaintiff also argues that the ALJ erred in rejecting Dr. Earhaii's sit/stand limitations to
the extent they were inconsistent with the opinion of reviewing physician Dr. Eder, who opined
Page 13 - OPINION AND ORDER
that plaintiff could perform light work. Although the ALJ purp01ted to accord Dr. Eder' s opinion
"great weight," he also indicated that "the limits are reduced based on testimony of continued
swelling in the legs and [plaintiffs] diabetic condition requiring special foot care." Tr. 16.
Moreover, the ALJ appeared to accord weight to Dr. Eder's opinion because it was consistent
with the consultative examination of Dr. Marshall, despite previously rejecting Dr. Marshall's
exertional assessment because Dr. Marshall failed to consider all of plaintiffs limitations. As
such, the ALJ's finding was internally inconsistent. However, because the ALJ provided other
valid reasons to reject Dr. Earhart's sit/stand/walk and lift and carry limitations, any error was
harmless. Stout v. Comm 'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).
On balance, although the ALJ permissibly found one of Dr. Earhmt' s exertional
limitations conflicted with plaintiffs ADLs and testimony, the ALJ's other rationales did not
meet the requisite specific-and-legitimate legal standard. Accordingly, the ALJ on remand must
reevaluate the foot elevation limitation assessed by Dr. Earhart. See Dale v. Colvin, 823 F.3d
941, 945-46 (9th Cir. 2015) (affirming in pmt and rejecting in part an ALJ's evaluation of a
medical source opinion).
III.
Subjective Symptom Allegations
When a claimant's medically documented impairments reasonably could be expected to
produce some degree of the symptoms complained of, and the record contains no affirmative
evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ...
symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v.
Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assettion that the claimant is not credible
is insufficient; the ALJ must "state which ... testimony is not credible and what evidence
suggests the complaints are not credible." Dodrill v. Sha/ala, 12 F.3d 915, 918 (9th Cir. 1993).
Page 14 - OPINION AND ORDER
The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude
that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d
748, 750 (9th Cir. 1995). If the "ALJ's credibility finding is supported by substantial evidence in
the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947,
959 (9th Cir. 2002).
Summarizing plaintiffs allegations of functional limitation, the ALJ noted that following
plaintiffs medical issues in May 2011, her "venous insufficiency has since resolved, but she
continues to have swelling in her lower extremities." Tr. 13. The ALJ further found that plaintiff
was able to perform a range of daily activities despite her allegations of venous insufficiency and
back pain, and that her hobbies suggested she was not as limited in her ability to sit for lengths of
time as she alleged. Tr. 15-16. The ALJ also indicated plaintiffs diabetes mellitus was wellcontrolled on medication, that her hearing loss was "not that limiting," and implied that he
questioned the veracity of plaintiffs assertion that she elevates her legs for two-to-three hours
per day. Id.
Review of the hearing transcript reflects that the ALJ mischaracterized plaintiffs
statements and appeared to manufacture an inconsistent statement where none existed. When the
ALJ asked plaintiff if she wore compression stockings, she responded affirmatively, and was
explaining what she did to treat swelling when the ALJ interrupted her, asking "it's better if you
stay off your feet ... if you're not on your feet all day?" Tr. 35. Plaintiff again responded
affirmatively, and the ALJ moved on to another topic. Id. During cross-examination, plaintiffs
attorney at the hearing asked what else she did besides wearing compression stockings to treat
CV!, and plaintiff testified that her doctors recommended that she elevate her legs "[fJor every
two hours that [she] was on [her] legs." Tr. 37. The ALJ impugned plaintiffs testimony because
Page 15 - OPINION AND ORDER
"claimant did not mention elevating her legs when under questioning," but the ALJ declined to
acknowledge that he interrupted her explanation, and moreover, her initial explanation of staying
off her feet is not inconsistent with elevating her legs. Either way, the rationale is not clear and
convincing.
Similarly, although plaintiff testified to her ability to perform a number of ADLs
including cooking meals, doing laundry, shopping, and assisting her legally-blind husband, the
ALJ glossed over two important facts: first, that plaintiff indicated she requires breaks for all of
her AD Ls, and second, that plaintiff and her husband live in an assisted-living facility because he
is legally blind. See Tr. 147-51, 392, 434. For example, although plaintiff indicated that she
cooks meals, she only does so two-to-three times per week, because "meals are included with the
rent." Tr. 157, 416.
On the other hand, the ALJ did not err in determining plaintiff provided inconsistent
testimony about her ability to sit. For example, although plaintiff wrote in 2013 that she can only
sit for 20 minutes before she needs to change positions, she testified at the hearing in 2015 that
she can sit for 60-90 minutes before she must move. Compare Tr. 37 with Tr. 150.
The ALJ also found plaintiff's symptom allegations were belied by the fact that she did
not leave her job for reasons related to her impairments, because she was fired for taking money
that had been abandoned in a change machine at her place of employment. See Bruton v.
lvfassanari, 268 F.3d 824, 828 (9th Cir. 2001). This rationale is not clear-and-convincing: at the
time of plaintiff's dismissal, she was on medical leave and able to tolerate three hours of work
with two fifteen-minute breaks. Tr. 506. Moreover, the record reflects that immediately prior to
plaintiff's termination, her employer apparently indicated she could work on a modified schedule
in order to accommodate her limitations. Id. While an ALJ may impugn symptom testimony
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where a plaintiff left their job for a reason other than their impairment, here, the record is
unequivocal that at the time of plaintiffs termination, she was not able to work a full-time
schedule due to her impairments.
The ALJ allowably determined that plaintiffs allegations of impairment due to hearing
loss and diabetes were undermined by effective conservative treatment. Although plaintiff
alleges significant hearing loss, the ALJ noted that she was able to communicate effectively at
the hearing and during the consultative examination, even without hearing aids. Tr. 15, 470.
Moreover, the ALJ found hearing loss to be a severe impairment at step two, accounted for some
hearing limitation in the RFC. Regarding diabetes, the ALJ appropriately determined it was wellcontrolled with oral medications. Tr. 14, 473. Although plaintiff proposes a different
interpretation of the findings, the ALJ's was rational and supported by the record. Edlund, 253
F.3d at 1156.
Finally, the ALJ found that plaintiffs CVI improved with conservative treatment. Tr. 15.
While plaintiff argues that "there is no evidence her [CV!] improved," the record unequivocally
reflects that her condition improved following the acute flare in May 2011. See, e.g., Tr. 336
(normal venous examination of June 201 I), 354 ("legs are much improved") 51 I (wounds
healed, excellent control of edema). Moreover, plaintiff testified that her CVI improved. Tr. 30
("[t]he venous insufficiency part of it has cleared up"). Nonetheless, to the extent the ALJ
determined plaintiffs CVI condition has completely abated, the finding is not clear and
convincing, as the record reflects that plaintiff continues to suffer edema, and numerous records
indicate that CV! is a lifelong condition, albeit one that can be managed with proper care. See Tr.
219 ("CVI is a lifelong condition. Flare-ups of stasis dermatitis and stasis ulcers may come and
go), 497 (reference to "lifelong" management of circulation).
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For the aforementioned reasons, the ALJ's credibility assessment was not free of legal
error, despite the ALJ's valid rationales for rejecting plaintiffs testimony as to plaintiffs
allegations regarding hearing loss, diabetes, and her ability to sit. Nevertheless, although an
ALJ's credibility assessment may be upheld even where some of the rationales provided for
rejecting testimony are erroneous so long as at least one reason is valid, here the Court declines
to uphold the ALJ's overarching finding because the errors render the ALJ's decision invalid.
See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (declining to affirm credibility finding
based on a single valid rationale in light of two invalid rationales) (citing Carmickle v. Comm'r,
Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). Because the ALJ failed to provide
legally-sufficient reasons to reject plaintiffs testimony regarding the severity and functional
limitation of her CV! condition, remand is required, particularly considering the ALJ's failure to
address plaintiffs alleged need to elevate her feet, and the ALJ's erroneous rejection of treating
physician Dr. Earhart's opinion on the issue. Id.
IV.
VE Testimony and Step Five
Plaintiff argues that the ALJ erred by failing to resolve an apparent conflict between the
VE testimony and the Dictionary of Occupation Title's descriptions of the jobs identified at step
five. Accordingly, argues plaintiff, remand is required. However, because the Court has already
determined that this case requires remand for the aforementioned reasons, the Court does not
reach the issue of the apparent conflict at step five.
V.
Remand for Further Proceedings
The uncontradicted record in this case reflects that plaintiff has a lifelong CV! condition
in addition to other severe impairments. The ALJ failed to adequately consider credible evidence
that plaintiff is required to elevate her feet every day in order to alleviate or avoid extreme
Page 18- OPINION AND ORDER
symptoms. In so doing, the ALJ erred by failing to provide legally sufficient reasons to disregard
portions of the opinion of plaintiffs treating physician, and by failing to provide clear-andconvincing rationales to disregard plaintiff's symptom allegations. Thus, the first prong of the
Ninth Circuit's credit-as-true doctrine is met. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.
2014) (citations omitted). However, the record requires additional development regarding the
prescribed limitations related to plaintiff's CV! condition; specifically, the record is equivocal
about the frequency and duration that she is required to elevate her feet, if at all. As such, the
Comt does not reach the third prong of the inquiry. Dominguez v. Colvin, 808 F.3d 403, 409 (9th
Cir. 2015).
CONCLUSION
The Commissioner's decision is REVERSED and this case is remanded for fu1ther
proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated this
~of March 2018.
AnnAiken
United States District Judge
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