Becker v. Commissioner Social Security Administration
Filing
23
Opinion and Order - Opinion and Order - The Court REVERSES the Commissioner's final decision and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion and order to properly consider Mr. Beckers past relevant work at step four in the sequential proceedings. Signed on 3/5/12 by Judge Michael H. Simon. (mja) (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
GREG BECKER,
Plaintiff,
Case No. CV 10-01469-SI
v.
OPINION AND ORDER
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
Phyllis Burke
3800 NE Sandy Blvd., Suite 226
Portland, Oregon 97232
Attorney for plaintiff
Amanda Marshall
United States Attorney
District of Oregon
Adrian L. Brown
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204
Gerald J. Hill
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, Washington 98104
Attorneys for defendant
SIMON, District Judge.
Opinion and Order, Page 1
Plaintiff Greg Becker (“Becker”) seeks judicial review of the Social Security
Commissioner’s final decision denying his applications for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“the Act”), 42 U.S.C. § § 401-33, and Supplemental
Security Income (“SSI”) payments under Title XVI of the Act. 42 U.S.C. §§ 1381-83f. I have
jurisdiction under 42 U.S.C. § 405(g). The Commissioner’s decision is reversed and remanded for
further proceedings. Specifically, for the reasons stated below, on remand the ALJ shall make
proper findings at step four in the sequential disability analysis regarding Mr. Becker’s past relevant
work.
I. INTRODUCTION
Born in 1976 (Tr. 113),1 Mr. Becker completed one year of college (Tr. 142) and performed
past work as an associate accountant, convenience store cashier, call center worker, and punch press
operator. Tr. 137. He filed applications for DIB and SSI on June 22, 2007 (Tr. 113, 117), alleging
disability since April 1, 2005 (Tr. 15), due to diabetes, depression, high blood pressure, gout, and
cellulitis. Tr. 136. The Commissioner denied these applications initially and upon reconsideration.
Tr. 70-93. An ALJ held a hearing on April 22, 2010 (Tr. 27-68), subsequently finding Mr. Becker
not disabled on May 19, 2010. Tr. 37-43. The Appeals Council accepted additional evidence into
the record, but denied review of the ALJ’s decision. Tr. 1-5. This action made the ALJ’s decision
the final decision of the Commissioner, 20 C.F.R. § 410.670a; Mr. Becker now appeals.
II. BACKGROUND
The record before this court shows that Mr. Becker received care for type II diabetes
1
Citations “Tr.” refer to refer to the indicated pages in the official transcript of the
administrative record filed by the Commissioner on May 3, 2011 [5].
Opinion and Order, Page 2
mellulitis between April and December 2005. Tr. 215-300. He visited the Emergency Room on
several occasions in June and July 2006 for treatment of right-leg cellulitis, food poisoning, and
hyperglycemia. Tr. 325-45. Mr. Becker was hospitalized between January 3, 2007, and January 5,
2007, for treatment of right leg cellulitis. Tr. 360-67. Anneliis Juuma, M.D., treated Mr. Becker’s
type II diabetes between April 2007 and August 2007. Tr. 427-32.
On September 6, 2007, psychologist Paul Stoltzfus, Psy. D, examined Mr. Becker
conjunction with Mr. Becker’s application for benefits. Tr. 456-59. Dr. Stolzfus reported that Mr.
Becker met the criteria for an adjustment disorder diagnosis, but assessed no psychological workrelated limitations. Tr. 459. General physician Timothy Fernstrom, D.O., performed a physical
examination in conjunction with Mr. Becker’s application on September 15, 2007, and assessed
diabetes, cellulitis, elevated liver enzymes, gastroesophogeal reflux disease, gout, depression,
hypertension, hyperlipidemia, and morbid obesity. Tr. 461-66.
Eric North, M.D., followed Mr. Becker’s diabetes and related complications between April
9, 2008, and December 30, 2008. Mr. Becker was hospitalized again between September 8 and 11,
2009, for treatment of his cellulitis. Tr. 522-33.
III. DISABILITY ANALYSIS
The Commissioner engages in a sequential process encompassing between one and five steps
in determining disability under the meaning of the Act. 20 C.F.R. §§ 404.1520; 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999)
At step one, the ALJ determines if the claimant is performing substantial gainful activity. If
he is, the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). At step two,
Opinion and Order, Page 3
the ALJ determines if the claimant has “a severe medically determinable physical or mental
impairment” that meets the twelve-month durational requirement. If the claimant does not have such
a severe impairment, he is not disabled. 20 C.F.R. §§ 404.1509; 404.1520(a)(4)(ii); 416.909;
416.920(a)(4)(ii).
At step three, the ALJ determines whether the severe impairment meets or equals an
impairment “listed” in the Commissioner’s regulations. If it does, the claimant is disabled. 20
C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii).
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other
relevant evidence in assessing the claimant’s residual functional capacity (“RFC”). The claimant’s
RFC is an assessment of work-related activities the claimant may still perform on a regular and
continuing basis, despite limitations imposed by his impairments. 20 C.F.R. §§ 404.1520(e);
416.920(e); Social Security Ruling (“SSR”) 96-8p.
At step four, the ALJ uses this information to determine if the claimant can perform his past
relevant work. If the claimant can perform his past relevant work, he is not disabled. 20 C.F.R. §§
404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the ALJ finds that the claimant’s RFC precludes
performance of his past relevant work the ALJ proceeds to step five.
At step five, the Commissioner must determine if the claimant is capable of performing work
existing in the national economy. If the claimant cannot perform such work, he is disabled. 20
C.F.R. §§ 404.1520(a)(4)(v); 404.1520(a)(4)(v); 416.920(a)(4)(v); 416.920(f); Yuckert, 482 U.S.
at 142; Tackett, 180 F.3d at 1099.
The initial burden of establishing disability rests upon the claimant. Yuckert, 482 U.S. 137,
146 n5; Tackett, 180 F.3d at 1098. If the sequential disability analysis reaches the fifth step, the
Opinion and Order, Page 4
burden shifts to the Commissioner to show that “the claimant can perform some other work that
exists in the national economy, taking into consideration the claimant’s residual functional capacity,
age, education, and work experience.” Tackett, 180 F.3d. at 1100. If the Commissioner meets this
burden the claimant is not disabled. 20 C.F.R. §§ 404.1520(g); 416.920(g); Tackett, 180 F.3d at
1099.
IV. STANDARD OF REVIEW
The reviewing court must affirm the Commissioner’s decision if the Commissioner applied
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Bray v. Comm’r of the Soc. Sec. Admin, 554 F.3d 1219, 1222 (9th Cir. 2009).
“Substantial evidence” means “more than a mere scintilla, but less than a preponderance.” Bray,
554 F.3d at 1222 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.
This court must weigh the evidence that supports and detracts from the ALJ’s conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1998)). The reviewing court, however, may not substitute its judgment for that of the
Commissioner. Id. (citing Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
2006)), see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations
of the evidence are insignificant if the Commissioner’s interpretation is a rational reading. Burch
v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). This court, however, may not affirm the ALJ’s
findings based upon reasoning the ALJ did not express. Bray, 554 F.3d at 1225-26 (citing SEC v.
Chenery Corp., 332 US 194, 196 (1947)); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.
2003) (citing same).
Opinion and Order, Page 5
V. DISCUSSION
Mr. Becker challenges the ALJ’s findings regarding: (1) his credibility; (2) the lay testimony;
(3) his RFC assessment; and (4) his ability to perform his past relevant work at step four in the
sequential proceedings. Mr. Becker asserts that the ALJ should have found him disabled.
A.
Credibility
Mr. Becker challenges the ALJ’s credibility determination at length. Pl.’s Opening Br. [12].
1.
Credibility Standards
The ALJ must consider all symptoms and pain which “can be reasonably accepted as
consistent with the objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a);
416.929(a). After a claimant shows an underlying impairment that may “reasonably be expected
to produce pain or other symptoms alleged,” absent a finding of malingering, the ALJ must provide
“clear and convincing” reasons for finding a claimant not credible. Lingenfelter, 504 F.3d at 1036
(citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)).
The ALJ’s credibility findings must be “sufficiently specific to permit the reviewing court
to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991)
(en banc)). The ALJ may consider objective medical evidence and the claimant’s treatment history,
as well as the claimant’s daily activities, work record, and observations of physicians and third
parties with personal knowledge of the claimant’s functional limitations. Smolen, 80 F.3d at 1284.
The ALJ may additionally employ ordinary techniques of credibility evaluation, such as
weighing inconsistent statements regarding symptoms by the claimant. Id. The ALJ may not,
however, make a negative credibility finding “solely because” the claimant’s symptom testimony
Opinion and Order, Page 6
“is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.
2.
Analysis: Credibility
The ALJ’s credibility analysis cited Mr. Becker’s activities of daily living, failure to follow
recommended treatment, and the medical record. Tr. 20-21. Mr. Becker challenges each of these.
Pl.’s Opening Br. [12] 7-13.
a.
Activities of Daily Living
The ALJ cited Mr. Becker’s report that he could walk three miles, play with his son, shoot
paintballs, work on a computer, sit thirty minutes and stand nine hours, cook, wash dishes, perform
household chores, and regularly socialize, and found these activities inconsistent with “an individual
suffering from debilitating symptoms of diabetes.” Tr. 21.
Mr. Becker first asserts that the ALJ “misread” the record pertaining to these activities. Pl.’s
Opening Br. [12] 12-13.
The record before this court shows that Mr. Becker reported that he spends his days caring
for his infant son and a dog, and keeping the house clean. Tr. 144-45. Mr. Becker stated that
receives help in these tasks from his wife when she is home from work and he is experiencing dizzy
spells or pain from his gout and cellulitis. Tr. 145. He wrote that he “sometimes” must “wait until
he can walk” before dressing or bathing, and “sometimes” must “crawl to the bathroom.” Tr. 145.
When he is not experiencing pain or dizzy spells, Mr. Becker prepares simple meals and household
chores including vacuuming, sweeping, mopping, dishes, and laundry. Tr. 146. He does these
activities throughout the day (Id.) and his daily hobbies include playing and working on computers.
Tr. 148.
Mr. Becker stated that he is “more depressed all the time,” and endorsed limitations in lifting,
Opinion and Order, Page 7
squatting, bending, standing, walking, kneeling, and stair climbing, as well as in seeing and using
his hands. Tr. 149. Mr. Becker wrote that he can walk two miles, depending upon his blood sugar
levels, and must rest five minutes before resuming walking. Tr. 149. His ability to concentrate and
follow instructions is “usually good,” depending upon his blood sugar. Id. Finally, Mr. Becker
wrote that when blood sugar is “off” he becomes dizzy, his vision blurs, and he cannot walk. Tr.
151.
At his April 22, 2010, hearing before the ALJ, Mr. Becker testified that he currently attends
Community College as a full-time student learning web design (Tr. 33-34), and that he cares for a
five-year old and one-year old while his wife works. Tr. 42. He testified that he becomes dizzy
from high blood sugar once per day, but still cares for his children. Tr. 48-49. Mr. Becker testified
he had cellulitis “where it’ll last for weeks at a time,” but did not indicate how often this occurred.
Tr. 49. He reported that he experienced gout episodes “about once every two or three months,” and
now takes preventative medication for this condition. Tr. 49-50.
This record supports the ALJ’s finding that Mr. Becker could perform activities such as
walking several miles, playing with his son, and working and playing on a computer.
Mr. Becker’s first asserts, contrary to the ALJ’s findings, that he can no longer play
paintball. Pl.’s Opening Br. 13. Mr. Becker points to his own reports to an examining psychologist
that his favorite activities include playing paintball, but that he also did this “prior to his physical
difficulties.” Tr. 458. This single apparent contradiction does not establish that the ALJ’s remaining
findings regarding Mr. Becker’s childcare, household, and other activities discussed above are
insufficient.
Mr. Becker’s second argument, pertaining to his activities of daily living, asserts that he
Opinion and Order, Page 8
“never claimed a complete inability to perform most of the activities cited by the ALJ,” inferring that
the ALJ’s reliance upon these activities was misplaced. Pl.’s Opening Br. 13 [12]. Mr. Becker
provides no legal authority for this submission. The ALJ may specifically consider whether a
claimant’s activities of daily living are inconsistent with an allegation of total disability. Batson v.
Comm’r of Soc. Sec., 359 F.3d 1190, 1196 (9th Cir. 2004). Here, the ALJ found that Mr. Becker’s
activities were consistent with an RFC directing a finding of non-disability and thus implicitly found
Mr. Becker’s activities inconsistent with his allegation of disability. Tr. 21. The ALJ’s citation to
Mr. Becker’s activities is based upon the record, as discussed above. The reviewing court must
affirm the ALJ’s interpretation of a claimant’s daily activities when it is reasonably based upon the
record, although another plausible interpretation more favorable to the claimant may arise. Rollins
v. Massinari, 261 F.3d 853, 857 (9th Cir. 2001). Mr. Becker’s submission that he “never claimed
complete inability” to perform these activities is insufficient to disturb this finding.
b.
Non-Compliance with Treatment
The ALJ found that Mr. Becker’s “failure to seek out regular treatment, including low-cost
or no-cost diabetes medication, suggests that his symptoms are not as severe as alleged.” Tr. 21. Mr.
Becker asserts that this finding is not based upon the record, pointing to his clinic and emergency
room visits. Pl.’s Opening Br. [12] 11.
The record shows that Mr. Becker regularly sought Emergency Room and clinic treatment
between April 2005, when the record opens, and November 2006. Tr. 218-352; 374-413. The
record does not indicate the cost of these clinic visits. Mr. Becker was then hospitalized for three
days in January 2007, and received treatment from Dr. Juuma on four occasions between April 17,
2007, and August 30, 2007. Tr. 424-32. The record is silent between August 2007 and April 2008.
Opinion and Order, Page 9
Mr. Becker received care from primary care physician Dr. North on seven occasions between April
2008 and December 30, 2008. Tr. 500-12. The record is again silent until September 9, 2009, when
Mr. Becker was hospitalized for cellulitis (Tr. 522), and the record closes on September 18, 2009.
Tr. 547.
The ALJ and Mr. Becker discussed Mr. Becker’s failure to seek treatment at length during
his April 22, 2010, hearing. Mr. Becker reported that he could not afford treatment, and that he had
not attempted to obtain low-cost care. Tr. 53-54. The ALJ in turn urged Mr. Becker to be “a little
more proactive” in obtaining care, and explained that social service agencies and Emergency Room
staff could direct him towards resources. Tr. 54.
This record supports the ALJ’s finding that Mr. Becker did not seek care for several months
within period between his April 1, 2005, alleged onset date and September 2009, when the record
closes. This court cannot now determine when Mr. Becker had access to low cost clinics, or which
of the clinics in fact offered reduced or free services. While the ALJ may not chastise a claimant
for failing to seek treatment he cannot afford, Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995),
the ALJ’s present findings cite only to Mr. Becker’s failure to seek treatment, including low-cost
treatment, and pointedly acknowledge Mr. Becker’s report that he could not afford treatment. Tr.
21. This court must affirm an ALJ’s findings based upon substantial evidence. Batson, 359 F.3d
at 1193. The record supports the ALJ’s finding that Mr. Becker at times failed to seek medical
treatment for his allegedly disabling impairments, and the ALJ’s finding on the matter is affirmed.
c.
Medical Record and Credibility
Mr. Becker asserts, without specificity, that the ALJ’s credibility evaluation improperly
referred to the medical record. Pl.’s Opening Br. [12] 8. After a claimant establishes an impairment,
Opinion and Order, Page 10
an ALJ may not require that medical evidence corroborates the degree of the claimant’s alleged
symptoms. Bunnell, 947 F.3d at 346 (en banc). The ALJ, however, may cite the medical record in
conjunction with other factors. Robbins, 466 F.3d at 880; see also Smolen, 80 F.3d at 1284. The
ALJ presently based his credibility analysis upon Mr. Becker’s daily activities and failure to follow
treatment, as well as his medical record. Citation to these factors, analyzed in concert, is
appropriate, and the ALJ’s reliance upon the medical record in assessing Mr. Becker’s credibility
will not be disturbed.
Mr. Becker also argues that the ALJ erroneously cited the opinion of examining physician
Timothy Fernstrom, D.O., in his credibility analysis. The ALJ cited Dr. Fernstrom’s statement that
Mr. Becker’s diabetes could potentially interfere with workplace functioning, but that compliance
with diabetes medication would “provide better control.” Tr. 21. Notably, the ALJ did not give Dr.
Fernstrom’s opinion controlling weight. Id. Mr. Becker challenges the ALJ’s citation to Dr.
Fernstrom’s opinion for three reasons: (1) Dr. Fernstrom did not perform a relevant examination;
(2) Dr. Fernstrom’s opinion is “irrelevant,” and (3) the ALJ misconstrued Dr. Fernstrom’s
conclusions about Mr. Becker’s medication. Pl.’s Opening Br. [12] 9-10. The Commissioner cites
Dr. Fernstrom’s opinion, but does not address these arguments. Def.’s Br. [18] 6.
Mr. Becker asserts, without legal authority, that the ALJ’s reliance upon Dr. Fernstrom’s
opinion is misplaced because Dr. Fernstrom conducted a “basically orthopedic” examination. Pl.’s
Opening Br. [12] 9. The Commissioner does not address Mr. Becker’s specific arguments pertaining
to Dr. Fernstrom’s examination and Mr. Becker’s credibility.
Dr. Fernstrom examined Mr. Becker on September 15, 2007, and discussed Mr. Becker’s
history of diabetes, cellulitis, gout, obesity, and other metabolic conditions. Tr. 463. Dr. Fernstrom
Opinion and Order, Page 11
diagnosed poorly controlled diabetes, but noted that this finding was based upon Mr. Becker’s
report. Tr. 466. He also diagnosed morbid obesity, hypertension, hyperlipidemia, and depression,
which he characterized as “treated.” Id. In conclusion, Dr. Fernstrom found no objective evidence
that would limit Mr. Becker’s ability to stand and walk in an eight-hour workday, but noted that Mr.
Becker’s diabetes “if poorly controlled could potentially provide him difficulty in the workplace
environment, as stated with his difficulty with driving. However, his new medication would be
expected to provide better control.” Id.
The record shows that Dr. Fernstrom is a licensed physician (Tr. 466), but does not indicate
Dr. Fernstrom’s medical specialty, if any. Dr. Fernstrom’s discussion largely centered upon Mr.
Becker’s diabetes and other metabolic disorders. Tr. 461-63, 466. His examination included an
assessment of Mr. Becker’s vital signs and systems, as well as a cardiovascular and abdominal
examination, attention to Mr. Becker’s pulse, skin, extremities, coordination, gait, and joints, gross
and fine motor skills, and a sensory and reflex exam. Tr. 461-66. This examination, in totality, is
more than a “basically orthopedic” exercise, as asserted by Mr. Becker. Mr. Becker fails to establish
error on this point.
Mr. Becker also asserts, again without legal authority, that the ALJ’s reliance upon Dr.
Fernstrom’s findings regarding his ability to stand or walk was “irrelevant” because he was not
experiencing goat, cellulitis, or dizziness at the time of the exam. Pl.’s Opening Br. 9 [12]. The
record shows that Mr. Becker reported a recent gout episode to Dr. Juuma on July 30, 2007, which
he said resolved with medication. Tr. 427. The record shows no further treatment for this disorder.
Medical sources documented cellulitis in June 2006 (Tr. 352), November 2006 (Tr. 409), January
2007 and December 2009. Tr. 360-67; 522-33. These sources documented dizziness on specified
Opinion and Order, Page 12
occasions throughout 2005 (Tr. 215, 218-19, 223, 228, 231-32), and in March and July 2006. Tr.
337, 387. This limited record does not establish that Mr. Becker experienced these symptoms at all
other times during the period under review.
Dr. Fernstrom’s examination reflects Mr. Becker’s clinical presentation at the time of
examination. An examining physician’s opinion may constitute substantial evidence. See Lester,
81 F.3d at 831 (discussing weight accorded to treating, examining, and reviewing physician
opinions). No authority allows this court to deem an examining physician’s opinion “irrelevant”
when it is properly supported by clinical notes and findings. Mr. Becker’s argument, therefore, fails.
Finally, Mr. Becker asserts that the ALJ misread Dr. Fernstorm’s statement regarding the
effect of Mr. Becker’s diabetic medications upon his workplace functioning. Pl.’s Opening Br. 9.
Dr. Fernstorm stated that Mr. Becker’s diabetes was poorly controlled, and that “his new medication
would be expected to provide better control.” Tr. 466. The ALJ stated that Dr. Fernstrom opined
that “compliance with medication would provide better control.” Tr. 21. The difference between
these statements is marginal; the ALJ’s statement captures Dr. Fernstrom’s opinion that Mr.
Becker’s medications would aid in treating his diabetes; compliance with such medication is implicit
in Dr. Fernstrom’s comment. This court must affirm an ALJ’s inferences “reasonably drawn” from
the record, Batson, 359 F.3d at 1193, and Mr. Becker therefore fails to establish error on this point.
In summary, the ALJ’s credibility findings are based upon the record and the proper legal
standards, and are, therefore, affirmed.
B.
Lay Witness Testimony
Mr. Becker argues that the ALJ improperly evaluated testimony submitted by Mr. Becker’s
Opinion and Order, Page 13
wife, Heidi Becker. Pl.’s Opening Br. 14.
1.
Standards: Lay Testimony
The ALJ has a duty to consider lay witness testimony. 20 C.F.R. §§ 404.1513(d);
404.1545(a)(3); 416.913(d), 416.945(a)(3); Bruce v. Astrue, 557F.3d 1113, 1115 (9th Cir. 2008).
Friends and family members in a position to observe the claimant’s symptoms and daily activities
are competent to testify regarding the claimant’s condition. Dodrill v. Shalala, 12 F.3d 915, 918-19
(9th Cir. 1993). The ALJ may not reject such testimony without comment and must give reasons
germane to the witness for rejecting his testimony. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.
1996).
2.
Analysis
Mrs. Becker submitted a third-party report to the record on July 13, 2007. Tr. 155-62. She
stated that Mr. Becker spends his day cleaning the house, caring for their son, and taking care of the
dog. Tr. 155-56. Mrs. Becker stated that Mr. Becker can no longer drive and does not sleep well,
and has difficulty dressing during a goat or cellulitis flare. Tr. 156. Mrs. Becker reminds Mr.
Becker to take his medication, and Mr. Becker prepares simple meals, and performs household
chores such as dishes and laundry. Tr. 157. Mrs. Becker indicated that Mr. Becker shops for
groceries every two weeks, and is able to pay bills and handle money. Tr. 158. His hobbies and
interests are daily computer use, and this activity has not changed since Mr. Becker’s illness began.
Tr. 159. Finally, Mrs. Becker indicated limitations in Mr. Becker’s ability to lift, squat, bend, stand,
reach, walk, kneel, and climb stairs, as well as in seeing, completing tasks, and concentration. Tr.
160. She explained that Mr. Becker’s blood sugar levels, goat, and cellulitis effect his ability stand
and balance. Id. He can walk a “couple” of miles before resting five or ten minutes. Id.
Opinion and Order, Page 14
The ALJ noted that Mrs. Becker described symptoms similar to those described by Mr.
Becker. Tr. 21. The ALJ gave “partial weight” to Mrs. Becker’s testimony, “to the extent it is
consistent with the residual functional capacity,” and concluded that Mrs. Becker’s testimony was
not “fully consistent with the medical and other evidence of record.” Id. Mr. Becker asserts that
the ALJ’s findings regarding Mrs. Becker’s testimony is neither “specific” nor “legitimate” and
therefore not germane to Mrs. Becker. Pl.’s Opening Br. [12] 15.
The ALJ’s finding that Mrs. Becker’s testimony is similar to that of Mr. Becker is supported
by the record. Both stated that Mr. Becker spends his days caring for their son and performing
household chores, using and playing on a computer, and that he can walk over a mile before
requiring rest. Tr. 144-45, 148-49, 155-56, 159-60. The ALJ may reject lay testimony that mirrors
testimony of a claimant properly found not credible. Valentine v. Comm’r, 574 F.3 685, 694 (9th
Cir. 2009). The ALJ’s reasoning is based on the record, comports with this legal standard, and is
therefore affirmed.
The ALJ also found Mrs. Becker’s testimony “not fully consistent” with the medical record.
Tr. 21. The ALJ may reject lay testimony that directly conflicts, or is inconsistent with, the medical
evidence. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ may not, however, reject lay
testimony merely because it is unsupported by the medical evidence. Bruce, 557 F.3d at 1116.
Although the ALJ’s conclusion adequately reflects this standard, the ALJ offered no explanation for
this conclusion.
The Commissioner now asserts that the ALJ is not required to provide reasoning for his
conclusions “under Defendant’s rules, which are entitled to deference.” Def.’s Br. 9 [18]. The
Commissioner cites Social Security Ruling (“SSR”) 06-03p, which addresses testimony submitted
Opinion and Order, Page 15
by non-acceptable medical sources and lay persons. The Ninth Circuit acknowledges that the
Commissioner’s interpretation of his regulations is entitled to deference. Bray, 554 F.3d at 1125
(citing Auer v. Robbins, 519 U.S. 452, 462-63 (1997)). The Ninth Circuit further instructs that while
SSRs do not carry the “force of law,” they are binding upon ALJs. Bray, 554 F.3d at 1124 (citing
Quang Van Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989)).
Regarding weight given to lay testimony, SSR 06-3p instructs, in full:
Although there is a distinction between what an adjudicator must
consider and what the adjudicator must explain in the disability
determination or decision, the adjudicator generally should explain
the weight given to opinions from these “other sources,” or otherwise
ensure that the discussion of the evidence in the determination or
decision allows a claimant or subsequent reviewer to follow the
adjudicator’s reasoning, when such opinion may have an effect on the
outcome of the case. SSR 06-3p (available at 2006 WL 2329939 at
*6) (emphasis added).
Further, the Ninth Circuit holds that the ALJ has a clear duty to explain his findings, Marcia v.
Sullivan, 900 F.2d 172, 176 (9th Cir. 1990); Lewis, 236 F.3d at 512, and repeatedly instructs that an
ALJ must give reasons that are germane to the witness for rejecting lay testimony. Bruce, 557 F.3d
at 1115; Dodrill, 12 F.3d 915, 919; Nguyen, 100 F.3d at 1467. SSR 06-3p, as quoted above, clearly
does not relieve the ALJ of this duty.
The ALJ’s rejection of Mrs. Becker’s testimony, to the extent it was predicated upon Mr.
Becker’s testimony is sufficiently germane, for the reasons explained above. The ALJ’s conclusory
statement that Mrs. Becker’s testimony is simply “not consistent” with the medical record is not.
The reviewing court, however, may affirm an ALJ’s overall credibility findings when supported by
the record and the appropriate legal standards, even when one of the reasons offered by the ALJ is
deficient. Rollins, 261 F.3d at 857. The ALJ properly noted that Mrs. Becker’s testimony repeated
Opinion and Order, Page 16
Mr. Becker’s testimony, which the ALJ sufficiently rejected. For this reason, the ALJ’s conclusions
regarding the credibility of Mrs. Becker’s testimony are affirmed.
C.
Residual Functional Capacity Analysis
Mr. Becker argues that the ALJ’s RFC analysis improperly omitted consideration of his
“combined impairments” and his ability to perform “regular and continuing work.” Pl.’s Opening
Br. [12] 3, 15.
1.
Residual Functional Capacity Standards
After a claimant establishes a medically-determinable impairment that does not meet a
“Listed” disorder at step three in the sequential proceedings, the ALJ must assess the claimant’s
RFC. 20 C.F.R. §§ 404.1520(e); 416.920(e). The RFC represents all of a claimant’s work-related
limitations, including non-severe limitations. 20 C.F.R. §§ 404.1545(a)(1-2); 416.945(a)(1-2). In
making this assessment, the ALJ considers “all of the relevant medical and other evidence,” as well
as a claimant’s testimony and lay testimony describing the claimant’s limitations. 20 C.F.R. §§
404.1545(a)(3); 416.945(a)(3).
2.
Analysis
Mr. Becker argues that the ALJ’s RFC analysis failed to include discussion of his cellulitis,
gout, and lower extremity edema, citing the ALJ’s duty to consider the “combined effects” of the
claimant’s severe and non-severe impairments. Pl.’s Opening Br. 4 [12].
The ALJ found that Mr. Becker’s cellulitis did not meet the twelve-month durational
requirement necessary to establish disability under 20 C.F.R. §§ 404.1509 and 416.909. Tr. 18. Mr.
Becker does not challenge this finding, it is supported by the record, and therefore affirmed.
Mr. Becker testified to further limitations stemming from his cellulitis, gout, and edema, but
Opinion and Order, Page 17
the ALJ properly rejected this testimony for the reasons articulated above. Mr. Becker presently
does not challenge the ALJ’s evaluation of the medical evidence, and fails to establish error in the
ALJ’s analysis of testimony submitted by Mr. Becker and his wife. Mr. Becker therefore fails to
establish that the ALJ erroneously omitted additional limitations related to these conditions from his
RFC.
Mr. Becker also asserts that the ALJ failed to properly consider whether he could perform
work on a “regular and continuing basis.” Pl.’s Opening Br. [12] 15. Mr. Becker offers no analysis
and points to no specific evidence establishing that he cannot perform such work.
The
Commissioner’s regulations addressing “regular and continuing work” state, in full:
When we assess your physical abilities, we first assess the nature and
extent of your physical limitations and then determine your residual
functional capacity for work on a regular and continuing basis. A
limited ability to perform certain physical demands of work activity,
such as sitting, standing, walking . . . or other physical functions . .
. May reduce your ability to do past work and other work. 20 C.F.R.
§ 404.1545(b).
The Ninth Circuit instructs that “occasional symptom-free periods - - and even the sporadic ability
to work - - are not inconsistent with disability.” Reddick v. Chater, 157 F.3d 715, 724 (9th Cir.
1998) (quoting Lester, 81 F.3d at 833). These authorities, however, do not instruct that the ALJ
must in fact state that the claimant can or cannot perform regular and continuing work. Such a
finding is implicit in a finding of disability or non-disability. Mr. Becker fails to establish error in
the ALJ’s findings regarding the medical and other evidence discussed above, and his argument
regarding his alleged inability to perform “regular and continuing work” does not point to any
additional evidence showing that he cannot perform such work. His submission therefore fails.
E.
The ALJ’s Step Four Findings
Opinion and Order, Page 18
Finally, Mr. Becker argues that the ALJ erroneously found that he could perform his past
relevant work at step four in the sequential proceedings. Specifically, Mr. Becker asserts that the
ALJ’s finding regarding Mr. Becker’s past relevant work is not based on the record. Pl.’s Opening
Br. [12] 16.
1.
Step Four Standards
At step four, the ALJ determines whether a claimant can perform his past relevant work. 20
C.F.R. §§ 404.1520(a)(iv); 416.920(a)(iv). If he can perform such work, he is not disabled. Id.
In determining the requirements of a particular position, the ALJ may refer to a claimant’s
past work as he actually performed it, 20 C.F.R. §§ 404.1565(b); 416.965(b), or the ALJ may take
administrative notice of generic job descriptions contained in the Dictionary of Occupational Titles
(“DOT”). SSR 82-61, “Past Relevant Work – the Particular Job or the Occupation as Generally
Performed,” (available at 1982 WL 31387 at *1-2). The ALJ may choose between these alternative
tests. Id. The Commissioner’s Administrative Ruling specifically acknowledges that “some
individual jobs may require more or less exertion than the [DOT] description.” Id. at *2.
The claimant is the primary source of information about his past relevant work. SSR 82-62,
“A Disability Claimant’s Capacity to Do Past Relevant Work, in General,” (available at 1982 WL
31386 at *3). If the ALJ relies upon the DOT at step four, the ALJ must explain any discrepancies
between the DOT data and the claimant’s established limitations. Pinto v. Massinari, 249 F.3d 840,
847 (9th Cir. 2001) (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).
2.
Analysis: Step Four Findings
The ALJ found that Mr. Becker’s RFC allows him to perform his past relevant work as a
cashier and food preparer, and specifically limited this finding to these positions as “actually
Opinion and Order, Page 19
performed” by Mr. Becker. Tr. 22. The record shows that Mr. Becker reported that these jobs
required him to stand and walk eight hours per day (Tr. 168-73), and the ALJ found that Mr. Becker
could not walk or stand more than six hours in an eight-hour day. Tr. 19. The ALJ’s conclusion that
Mr. Becker’s RFC allowed him to perform his past work as a cashier and fast food worker is thus
inconsistent with Mr. Becker’s description of that work.
a.
Reliance Upon the Dictionary of Occupational Titles
The Commissioner now asserts that this court should rely upon the DOT in affirming the
ALJ’s step four findings. Def.’s Br. [18] 10. The ALJ may consider job descriptions reported in
the DOT as an alternative test for determining the nature of the claimant’s past work. SSR 82-61
at *1. The difficulty here is that the ALJ did not state, or even infer, reliance upon the DOT (Tr. 22),
and the reviewing court may not affirm the ALJ’s decision based upon reasoning the ALJ did not
express. Bray, 554 F.3d at 1225-26. The harmless error doctrine, however, applies in review of the
Commissioner’s decision. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63. The
proper inquiry, thus, is whether the ALJ’s decision remains legally valid, despite the error. Id.
The DOT indicates that both the “cashier” and “fast food worker” positions identified by the
ALJ are classified as “light” work. DOT, “Cashier” (available at 1991 WL 671840) and “Fast Food
Worker” (available at 1991 WL 672682). Light work entails “lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds . . . a job is in this
category if it requires a good deal of walking or standing . . . .” 20 C.F.R. §§ 404.1567(b);
416.967(b). The ALJ found that Mr. Becker could perform light work, with an additional reduction
to no more than six hours of sitting, walking, or standing at a time. Tr. 19. The Commissioner
submits that the ALJ found only that Mr. Becker could perform light work, but fails to acknowledge
Opinion and Order, Page 20
this additional restriction. Def.’s Br. [18] 10.
This court cannot now determine whether Mr. Becker’s past relevant work, as generally
performed and described by the DOT, would allow Mr. Becker to sit, stand, and walk only six hours
per day. This court cannot determine that the ALJ’s reliance upon the DOT would lead to the same
conclusion that Mr. Becker is not disabled at step four. In such circumstances, the harmless error
doctrine is inapplicable.
See Carmickle, 533 F.3d at 1162 (finding error harmless where
inconsequential to ultimate finding of nondisability). The ALJ’s findings, therefore, cannot be
sustained.
b.
Workplace Hazards
Mr. Becker additionally argues that the ALJ’s findings that he could perform the fast food
worker position is contrary to the ALJ’s finding that he should avoid workplace hazards. Pl.’s
Opening Br. [12] 16. Mr. Becker points to his report that he cooked hamburgers and ran a cash
register in his past positions. Id. (citing Tr. 168, 172). This report does not establish a workplace
hazard precluded by Mr. Becker’s RFC. Mr. Becker also refers to his past work as a meat grinder
(Tr. 168), but this citation is irrelevant as the ALJ made no step four finding that he could perform
work as a meat grinder.
c.
Job Titles
Finally, Mr. Becker argues that the ALJ improperly substituted “Fast Food Worker” for
“Plaintiff’s actual past work in “food preparation jobs.” Pl.’s Reply Br. [22] 11. The record shows
that Mr. Becker in fact reported past work as a “Fast Food Worker,” and that he additionally
reported that he performed food preparation jobs in “Fast Food” businesses. Tr. 163. Mr. Becker,
therefore, fails to establish error in the ALJ’s citation to “Fast Food Worker.”
Opinion and Order, Page 21
3.
Step Four Conclusion
The ALJ’s finding that Mr. Becker could perform his past relevant work is not based on the
record. The ALJ failed to make proper alternative findings by citing the DOT. The ALJ’s step four
findings must, therefore, be reversed.
VI. CONCLUSION
In conclusion, Mr. Becker fails to show that the ALJ erroneously evaluated his testimony,
the lay witness testimony, and his residual functional capacity. These findings are AFFIRMED.
At step four, however, the ALJ erred in finding that Mr. Becker could perform his past relevant work
as he performed it. For this reason, the court REVERSES the Commissioner’s final decision and
REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings
consistent with this opinion and order to properly consider Mr. Becker’s past relevant work at step
four in the sequential proceedings.
IT IS SO ORDERED.
Dated this 5th day of March, 2012.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
Opinion and Order Page 22
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