Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Income Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons discussed below, the court grants plaintiff's motion for summary judgment and/or remand, denies the Commissioner's cross-motion for summary judgment, and remands this case for further consideration.
Plaintiff, born October 2, 1960, applied for Social Security disability benefits on July 23, 2002, alleging disability since August 26, 1996. Administrative Record ("AR") 7.*fn1 Her application was denied initially and on reconsideration. On July 26, 2004, after a hearing, Administrative Law Judge ("ALJ") William C. Thompson, Jr., issued an unfavorable decision. AR 605-615. On February 24, 2006, the Appeals Council granted plaintiff's request for review due to an incomplete record (the claim file was lost),*fn2 and remanded the case to the ALJ to obtain all available medical evidence, provide plaintiff the opportunity for a new hearing, and "give further consideration to the issue of disability for the entire period under review," AR 617, specifically, February 24, 1999 through plaintiff's last date insured, December 31, 2002. AR 605, 614, 901; see also, Def.'s Mem. at 2.
A new administrative hearing was held on September 5, 2006. AR 877-901. Plaintiff testified that she was born on September 22, 1951, and was 54 years of age. AR 881. She stated that she completed her sophomore year in high school and obtained her GED in April 1977 or 1978. Plaintiff stated that she can read and write. AR 881-882. She is married and she and her husband have six children (four born to plaintiff). Plaintiff testified that she is 5'1" tall, weighs 160 pounds, and is right-handed. AR 882.
Plaintiff testified that she last worked in August 1996, as a bilingual (English-Spanish) eligibility technician for Alameda County, where she was employed for 22 1/2 years. Plaintiff described this job as "get[ting] benefits for my clients," including Medi-Cal and food stamps, translating documents and assisting in the completion of applications. AR 882-883. Plaintiff last performed this job for a 2 1/2 -year period, from "'95 to when they retired me in '97." AR 883. Plaintiff worked full-time, 9.34 hours four days a week. She was required to sit for the majority of this job, about three-quarters of the day, with some standing and walking. She was also required to lift files and papers, weighing about three to ten pounds. AR 884-885. Other positions plaintiff held with Alameda County included medical receptionist, medical clerk, and medical records processor. AR 885-886.
Plaintiff testified that she receives permanent disability benefits from her employment with Alameda County. AR 882. Review of the administrative transcript reveals that plaintiff sustained work-related injuries to her right wrist in 1988 and 1989, a lower back injury in November 1994, and developed additional pain symptoms in her left hip in 1995. AR 730. Plaintiff testified that she has a "fusion" in her neck that pinches nerves and "affects" her upper extremities, especially her right arm; tennis elbow with pain that radiates down her right hand; right hand pain and burning; a "burning" impingement in her shoulder (rotator cuff); and back pain caused by the fusion of discs in her lower back, resulting in back spasms and pain radiating from her hip to her thigh. AR 888-889, 892, 894. Plaintiff testified that she has had back pain since 1986, when she was injured at work. AR 895. She has what are believed to be congenitally-fused discs in her lumbar back and neck. AR 890. Plaintiff testified that her hands become so sore that she is unable to grip a pen; that she has difficulty typing on a keyboard because her fingers become numb; and that the difficulties with her right hand have become so significant that she relies on her left hand. AR 897, 901.
Plaintiff further testified that she has been blind ("light perception with no clarity") in her left eye since birth (she had a corneal transplant at age 12 that failed to correct the condition), and was diagnosed in 1995-1996 with glaucoma in her right eye. AR 887-888. Plaintiff has blurred vision in her right eye, which sometimes worsens with medication. AR 887. She has chronic dryness in both eyes. AR 888. Plaintiff also testified that she has a lot of ear pain, had ruptured eardrums a couple of times, and is prescribed ear drops. AR 899, 900.
Plaintiff testified that she first sought occupational medical treatment for her back problems from Kaiser physician Dr. Kwan [phonetically spelled]. AR 895. Plaintiff testified that her current primary care physician was Dr. Mu, whom she sees when she is unable to control her pain level, from a couple of times a month to once every three to six months. AR 889. Plaintiff stated that she hadn't seen her rheumatologist for about a year because Dr. Mu was addressing her medical needs. AR 890. Dr. Mu has prescribed Vicodin, Relfen, and Flexeril, and administered shots to plaintiff's shoulder, wrists, thumb and right knee. AR 895. Other treatment that plaintiff relies on includes physical therapy, home exercises, rest, heating pads, warm water, ice pads, changing positions, paraffin baths for her hands, wrist braces for both wrists, and a neck brace. AR 889, 893, 895. Plaintiff testified that her medications cause dizziness and vertigo six or more times a day depending on her movements, and can also cause nausea. AR 899, 900.
Plaintiff testified that she attempted to go back to school full-time in 2001, but had to withdraw due to depression; this condition has worsened. AR 882, 883. Plaintiff testified that she was taking Prozac to treat her depression, at the direction of a psychiatrist and Dr. Mu. AR 891. Plaintiff stated that she became depressed after her older sister died in 1999 ("she was like my mom"), then her 20-month granddaughter drowned in plaintiff's swimming pool in 2001. AR 891-892. Her depressive symptoms include withdrawal from people, having less energy, not wanting to do anything, more difficulty concentrating. AR 892, 898, 899. Plaintiff also testified that she doesn't "sleep very well because I constantly have to be moving. I can't like lay too long on my left side, I can't lay too long on my right side. I use pillows to try and help with that. So my sleep, I don't have restful sleep." AR 898, 899.
Plaintiff testified that she does only "a little bit" of housework. AR 892. She explained that her 19-year-old daughter does the vacuuming and dusting "because I'm having a lot of problems with my right arm." Id. Plaintiff testified that she occasionally cooks but her husband does most of the cooking because plaintiff has difficulty grasping utensils, seeing and sensing temperatures. AR 893. Plaintiff testified that she doesn't grocery shop unless it's an emergency. She explained that driving was difficult because "[t]he problems with my vision, my range of motion because of my neck and back problems, and my hands, and my arms when I drive, it aggravates the symptoms more, so I try not to do anything that aggravates me to the point of uncontrollable pain." AR 897; see also AR 893 (driving increases the pain in plaintiff's back, left hip, leg and right knee).
Plaintiff estimated that she is able to walk about one-quarter of a block, stand for 5 to 10 minutes at a time, and sit for 15 to 30 minutes before she has to change positions. She testified that her ability to sit is limited by spasms in her lower back and a burning pain in her hip that radiates down her thigh. AR 894.
A vocational expert ("VE") testified only minimally at the hearing, stating that plaintiff's past relevant work as an eligibility technician was sedentary, skilled work, while her past relevant work as a medical clerk was light, semi-skilled work. AR 901.
On August 14, 2007, ALJ Thomson issued a decision finding that plaintiff is not disabled.*fn3 AR 24-33. The ALJ made the following formal findings:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2002.
2. The claimant did not engage in substantial gainful activity during the period at issue: February 24, 1999 through her date last insured of December 31, 2002 (20 C.F.R. 414.1520(b) and 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: a cervical impairment with radiculopathy and a loss of vision in one eye (20 C.F.R. 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, I find that, through the date last insured, the claimant has the residual functional capacity to perform light work that only requires monocular vision.
6. Through the date last insured, the claimant's past relevant work as an eligibility technician and as a medical clerk did not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 C.F.R. 404.1565).
7. The claimant was not under a disability as defined in the Social Security Act, at any time from February 24, 1999 through December 31, 2002, the date last insured (20 C.F.R. 404.1520(f)). AR 29-33.
On May 30, 2008, after receiving additional evidence from plaintiff, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 13-16, 17.
Plaintiff contends that the ALJ erred by: (1) rejecting the opinion of plaintiff's treating physician, Dr. Mu, regarding plaintiff's residual functional capacity; (2) discrediting plaintiff's testimony regarding her pain and functional limitations; (3) failing to include all of plaintiff's supported limitations in his residual functional capacity assessment; and (4) failing to pose any hypothetical question to the vocational expert.
Plaintiff does not contest the res judicata effect of the Commissioner's prior decision that plaintiff was not disabled on or before February 23, 1999. Absent a showing of changed circumstances, the prior decision "creates a presumption that the claimant continued to be able to work after that date." Lester v. Chater, 81 F.3d 821, 827 (9th Cir.1996) (quoting Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.1985) (internal brackets omitted)); Chavez v. Bowen, 844 F.2d 691, 692-93 (9th Cir. 1988). Thus, the medical evidence pertinent to the period before February 24, 1999, while relevant as background, cannot itself support a finding that plaintiff was disabled during the relevant period. Chavez, 844 F.2d at 693, 694.
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
The administrative transcript in this case exceeds 900 pages even though the medical evidence is incomplete. See supra, n. 2. Thus, while the following medical evidence is taken predominantly from the period February 24, 1999 to December 31, 2002, relevant evidence outside this period is summarized to provide a complete perspective.
1. Physical Health Treatment Records
The following information is taken from plaintiff's treatment records at Kaiser Permanente in Manteca for the relevant period February ...