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Oldham v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 19, 2010

SHEILA SANGER OLDHAM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF COMMISSIONER PROCEEDINGS

On February 27, 2009, Plaintiff Sheila Sanger Oldham ("Plaintiff") filed a Complaint seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying Plaintiff's application for disability benefits under Title II of the Social Security Act. (AR 29, 51, 79.) On June 10, 2009, the Commissioner filed an Answer to the Complaint. On November 19, 2009, the parties filed a Joint Stipulation ("JS") setting forth their positions and the issues in dispute.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the Magistrate Judge. The matter is now ready for decision. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision should be reversed and remanded for further proceedings in accordance with law and with this Memorandum Opinion and Order.

BACKGROUND

Plaintiff was born on September 11, 1959. (AR 32, 79.) She was 46 years old on her alleged disability onset date of April 29, 2006, and 49 years old at the time of the hearing before the Administrative Law Judge ("ALJ") on September 16, 2008. (AR 20, 26, 32, 99.) Plaintiff has a high school education and attended some college. (AR 20, 33, 108). Plaintiff has past relevant work as a mammogram x-ray technician and has worked as an aircraft buyer and a tutor. (AR 20, 33-35, 91-92, 109-10.) Plaintiff also served in the United States military. (AR 79.)

Plaintiff filed an application for benefits with a protected filing date of November 6, 2006. (AR 51.) Plaintiff claims she is disabled due to bulging discs in her neck and back; pain in her knees, including chondromalacia in her right knee;*fn1 bursitis in both hips and pain in her right hip; and obesity. (AR 52, 99.) Plaintiff has not engaged in substantial gainful activity since April 29, 2006. (AR 14, 52.)

Following an initial denial of Plaintiff's claim on January 26, 2007 (AR 52 et seq.), Plaintiff filed a timely Request for Hearing on March 5, 2007, before an ALJ, claiming that she could not sit for 6 hours or walk for 2 hours in an 8-hour workday. (AR 57.) A hearing was held on September 16, 2008, and Plaintiff was represented by an attorney at the hearing. (AR 12, 26 et seq.) No vocational expert ("VE") appeared or testified at the hearing. (See AR 26-27.)

On October 14, 2008, the ALJ denied Plaintiff's application at step five of the sequential evaluation. The ALJ found that, although Plaintiff could not perform her past relevant work, she could perform other work in the economy and that, therefore, Plaintiff had not been under a disability from April 29, 2006, through October 14, 2008, the date of the ALJ's decision. (See AR 12-21.) The ALJ found that Plaintiff retained the Residual Functional Capacity ("RFC") for the full range of sedentary work and decided that, considering Plaintiff's age, education, and work experience, a finding of "not disabled" was directed by Rule 201.21 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 ("the grids").*fn2 (AR 21.)

On October 20, 2008, Plaintiff requested review of the ALJ's decision by the Appeals Council of the Social Security Administration (AR 7), and on January 23, 2009, the Appeals Council affirmed the ALJ's decision. (AR 1.) As noted, Plaintiff commenced this action on February 27, 2009.

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal or remand of the ALJ's decision:

1. Whether the ALJ provided legally sufficient reasons for rejecting Plaintiff's credibility, including Plaintiff's claims of chronic pain and resulting limitations on sitting and standing; and

2. Whether the ALJ properly rejected the opinions of treating physicians Dr. Richard Docherty and Dr. Stephen Yacoubian in favor of other examining and non-examining physicians' opinions. (See JS at 2-3.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "'more than a mere scintilla' but less than a preponderance." Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (internal quotations and citations omitted). This Court must review the record as a whole and consider adverse as well as supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

DISCUSSION

The Court reverses the ALJ's decision and remands for further proceedings. The ALJ relied solely on the grids to find that Plaintiff was not disabled and did not call a VE to testify at the hearing. However, the record supports Plaintiff's claims that she suffers from severe non-exertional impairments, including significant and frequent pain and limitations in sitting and standing and a need for frequent breaks due to pain, that affect her ability to work. The ALJ's discounting of Plaintiff's subjective pain complaints was not supported by the record. When Plaintiff's non-exertional limitations due to pain are properly credited, the ALJ's reliance on the grids, without the testimony of a VE, is inadequate to establish at step five that Plaintiff could perform other work in the economy.

A. The Sequential Evaluation

The Social Security Act defines disability as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a five-step sequential process to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920.

The first step is to determine "whether the claimant is presently engaging in substantially gainful activity." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging in substantially gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not significantly limit the claimant's ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The ALJ, however, must consider the combined effect of all the claimant's impairments on his or her ability to function, regardless of whether each alone is sufficiently severe. Id. Also, the ALJ must consider the claimant's subjective symptoms in determining severity. Id.

Third, the ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, in Appendix I of the Social Security Regulations.*fn3 Parra, 481 F.3d at 746. If the impediment meets or equals one of the listed impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141.

Fourth, the ALJ must determine whether the impairment prevents the claimant from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). If the claimant cannot perform his or her past relevant work, the ALJ proceeds to the fifth step and must determine whether the impairment prevents the claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).

The claimant bears the burden of proving steps one through four, consistent with the general rule that, at all times, the burden is on the claimant to establish his or her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the claimant, the burden shifts to the Commissioner to show that the claimant may perform other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).

B. ALJ's Opinion, Parties' Contentions

The ALJ found that Plaintiff has the following severe combination of impairments: biomechanical neck and low back pain, secondary to cervical disc disease at C3-4, and lumbar disc disease at L5-S1; degenerative joint disease of the right knee, degenerative joint disease of the right foot; subacromial impingement syndrome of the left shoulder; and obesity. (AR 14.) The ALJ acknowledged that Plaintiff's combined impairments cause "significant limitation in the [Plaintiff's] ability to perform basic work activities"; and the ALJ stated that he based this finding on the opinions of the consultative examiners Dr. William Boeck and Dr. R. Moore. (AR 15.) The ALJ also found that Plaintiff has depressive disorder, but he did not find this impairment to be severe. (AR 15-16.) Based on these findings, the ALJ found that Plaintiff had no restriction of activities of daily living; no difficulty in maintaining social functioning; mild difficulty in maintaining concentration, persistence or pace; and no episodes of decompensation. (AR 15.) Consequently, the ALJ found that Plaintiff's impairments or combination of impairments did meet the criteria for any listed impairment set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 15-16.) The ALJ specifically found that Plaintiff's obesity, alone or in combination with Plaintiff's other impairments, did not rise to the level of a listed impairment. (AR 16.)

The ALJ found that Plaintiff has the RFC to perform the full range of sedentary work. (AR 16.) Specifically, the ALJ found that Plaintiff can lift 10 pounds occasionally and 10 pounds frequently [sic]; stand and walk with normal breaks for a total of 2 hours in an 8-hour workday; sit with normal breaks for a total of 6 hours in an 8-hour workday; and frequently bend, kneel, crawl, and climb. (AR 16.)

In making this RFC determination, the ALJ rejected the opinion of Plaintiff's treating physicians, Dr. Richard Docherty and Dr. Stephen Yacoubian, stating that the opinions of these treating sources were not supported by the objective evidence or the treatment records. (AR 18, citing 20 C.F.R. § 4041527(d)(2).) The ALJ also found that, while Plaintiff's medically determinable impairments could reasonably be expected to produce the alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these impairments were not credible. (AR 19.) In light of these findings and Plaintiff's RFC for the full range of sedentary work, together with Plaintiff's education, her work experience, and her age -- which the ALJ noted was defined as "a younger individual age 45-49" -- the ALJ stated that there were jobs that exist in significant numbers in the national economy that the Plaintiff could perform. (AR 20, citing 20 C.F.R. §§ 404.1560(c) and 404.1566.) Accordingly, the ALJ stated that a finding of "not disabled" was directed under Rule 201.21 of the grids. (AR 21.)

Plaintiff contends that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff's claims of pain and restrictions due to pain. See JS at 3-4, citing Lester v. Chater, 81 F.3d 921, 934 (9th Cir. 1995). In particular, Plaintiff argues that MRIs show a broad based disc bulge at L5-S1 affecting the L5 and S1 nerve roots (AR 17, 185); a lateral tile of patella and small joint effusion at the right knee (AR 17, 194); a loss of lordosis, and a left-sided disc / osteophyte complex at C3-C4 causing compromise to her left neural foramen and disc bulges at C5-C6 and C6-C7 (AR 17, 182); and an EMG study suggesting mild C5-C6 nerve irritation.*fn4 See JS at 4. Plaintiff argues that this medical evidence supports Plaintiff's claims of pain and limitation due to these conditions. Plaintiff also complains that the ALJ did not adequately discuss or analyze the fact that Plaintiff's primary complaint is pain. (JS at 10, citing Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986).)

Plaintiff also argues that both of Plaintiff's treating physicians, Dr. Docherty and Dr. Yacoubian, found that Plaintiff was not capable of sedentary work. (JS at 4, citing AR 505, 624-25.) Plaintiff argues that both Dr. Docherty and Dr. Yacoubian mentioned in their treating notes that Plaintiff had severe limitations. (JS at 17, citing AR 387, 388-93, 405, 407, 556-58, 575, 584, and 609). Dr. Docherty opined that Plaintiff could sit, stand or walk for less than 2 hours; and Dr. Docherty also opined that Plaintiff has side effects from her medications; and Plaintiff complains that the ALJ did not adequately consider the consequences of these side effects. (JS at 4, citing AR 505.) Dr. Yacoubian noted that Plaintiff was limited to 2 hours of sitting and walking, and needed to take unscheduled breaks every hour or two for 15 to 30 minutes at a time. (JS at 4-5, citing AR 624-25.)

Defendant argues, inter alia, that the ALJ properly rejected Plaintiff's subjective complaints of pain and other limitations using ordinary credibility techniques, including consideration of Plaintiff's daily activities. (JS at 7-8, 10.) Defendant argues that Plaintiff's treatments were conservative, undermining her claims of severe pain. (See JS at 9, citing 20 C.F.R. § 404.1529(c).) Defendant also argues that the ALJ permissibly rejected the opinions of treating physicians Dr. Docherty and Dr. Yacoubian in favor of examining physicians Dr. Boeck and Dr. Moore and reviewing physician A.H. Resnik. (JS at 8, citing AR 346-56, 639-50.)

C. The ALJ's Decision Is Not Supported by Substantial Evidence

Because Plaintiff established at step four of the sequential evaluation that she was not able to perform her past relevant work, the Commissioner has the burden at step five of showing that Plaintiff could perform other work that exists in significant numbers in the national economy. Lounsburry v. Barnhart, 468 F.3d at 1114-15. The Commissioner can meet this burden in two ways: (1) through the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines, that is, the grids. See Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d at 1223 (in making a step five determination, ALJ may rely on grids at 20 C.F.R. Part 404, Subpart P, App. 2).

The grids provide a system "for disposing of cases that involve substantially uniform levels of impairment." Desrosiers v. Sec'y of Health & Human Services, 846 F.2d 573, 578 (9th Cir. 1988) (Pregerson, J., concurring). The grids correlate a claimant's age, education, previous work experience, and RFC to direct a finding of disabled or not disabled, without the need of testimony from vocational sources or vocational experts. See SSR 83-12; see also Cooper v. Sullivan, 880 F.2d at 1155; Heckler v. Campbell, 461 U.S. 458, 461 (1983) (Brennan, J., concurring) (ALJ has duty of inquiry in case under grids to inquire into exertional limitations that prevent full range of work). However, there are strict rules on when an ALJ may rely on the grids. See Desrosiers, 846 F.2d at 578 (Pregerson, J., concurring). An ALJ may only substitute the grids for vocational expert testimony when they "completely and accurately represent a claimant's limitations." Tackett v. Apfel, 180 F.3d at 1101 (emphasis in original); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). This means that "a claimant must be able to perform the full range of jobs in a given [exertional] category" for the grids to apply. Tackett, 180 F.2d at 1101 (emphasis in original); see also Burkhart, 856 F.2d at 1340. Because "the grids are predicated on a claimant suffering from an impairment which manifests itself by limitations in meeting the strength requirements of jobs[,] they may not be fully applicable" for a claimant's non-exertional limitations. Lounsberry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006). The mere allegation of a non-exertional limitation, however, does not preclude the use of the grids. For the grids to be inadequate, the non-exertional limitation must be "'sufficiently severe so as to significantly limit the range of work permitted by the claimant's exertional limitations.'" Hoopai v. Astrue, 499 F.3d 1071, 1075 (9th Cir. 2007) (quoting Burkhart, 856 F.2d at 1340); see also Desrosiers, 846 F.2d at 577. When "a claimant's non-exertional limitations are in themselves enough to limit his range of work, the grids do not apply, and the testimony of a vocational expert is required to identify specific jobs within the claimant's abilities." Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir.1988); see also Thomas, 278 F.3d at 960 (when grids do not adequately take into account claimant's abilities and limitations, grids are to be used only as framework, and VE must be consulted).

Here, the ALJ has rejected the opinions of Plaintiff's treating physicians regarding Plaintiff's RFC in favor of opinions from examining and consulting physicians. In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also Lester, 81 F.3d at 830.

In general, an ALJ must accord special weight to a treating physician's opinion because a treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source's opinion on the issues of the nature and severity of a claimant's impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence in the case record, the ALJ will give it "controlling weight." 20 C.F.R. § 404.1527(d)(2).

Furthermore, where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester, 81 F.3d at 830. However, if the treating physician's opinion is contradicted by another doctor, such as an examining physician, the ALJ may reject the treating physician's opinion by providing specific, legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn v. Astrue, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating physician's opinion is contradicted by an examining professional's opinion, the Commissioner may resolve the conflict by relying on the examining physician's opinion if the examining physician's opinion is supported by different, independent clinical findings. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632 (ALJ may reject opinion of treating physician in favor of examining physician whose opinion rests on independent clinical findings). However, "[t]he opinion of a non-examining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician;" such an opinion may serve as substantial evidence only when it is consistent with and supported by other independent evidence in the record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600.

At the threshold, this Court must resolve the issue of whether Plaintiff has the RFC to perform sedentary work. If Plaintiff cannot perform any type of sedentary work at any level she must be found disabled. See, e.g., Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004) (where evidence establishes that claimant cannot perform any sedentary job due to pain and fatigue, remand would serve no useful purpose and immediate award of benefits warranted). Arguably, the ALJ could credit the opinion of Dr. Boeck over the opinions of Drs. Dockerty and Yacoubian because Dr. Boeck examined Plaintiff and performed his own independent tests on her. The record reflects that Dr. Boeck saw Plaintiff on one occasion, on or about January 16, 2007, and noted that Plaintiff was 64 inches tall, that is, 5' 4", and weighed 262 pounds at that time. (See AR 346-47.) After conducting several tests, Dr. Boeck concluded that Plaintiff was limited to lifting and carrying 20 pounds occasionally, and 10 pounds frequently; and that Plaintiff could stand and walk for up to 2 hours in an 8-hour workday, and sit for 6 hours in an 8-hour workday. (See AR 350.) These findings are consistent with an RFC for sedentary work. See 20 C.F.R. §§ 404.1567(a) (sedentary work "involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools.") However, Dr. Boeck's opinion provides no discussion or analysis of Plaintiff's subjective complaints, including her chronic pain or her limitations due to pain. Accordingly, Dr. Boeck's findings do not provide legitimate reasons for the ALJ to reject the opinions of Plaintiff's treating physicians concerning her pain or limitations due to pain.

Likewise, the opinions of examining physicians Dr. Moore and Dr. Brawer or consulting physician Dr. Resnick do not refute the opinions of Plaintiff's treating physicians concerning her pain or limitations due to pain. Dr. Moore performed a psychological evaluation on Plaintiff on or about June 16, 2008. (See AR 639-48.) Dr. Moore described Plaintiff as "morbidly obese" (AR 640), 64" tall and 246 pounds, and noted that Plaintiff "had difficulty standing on her heels and toes because of pain." (AR 641.) Dr. Moore opined that Plaintiff did not evidence active radiculopathy and appeared to be cognitively intact (AR 642), but he noted "orthopedic limitation." (AR 648.) However, Dr. Moore's opinion provides no discussion or analysis of Plaintiff's subjective complaints, including her chronic pain or her limitations due to pain. Dr. Brawer performed a psychological evaluation on Plaintiff on July 1, 2008, and while he found that Plaintiff could perform certain work-related tasks, his report also offered no discussion or analysis of Plaintiff's subjective complaints. (See AR 628-34.) Dr. Resnick performed an RFC assessment based on a record review, and noted that Plaintiff can stand for sit for 15 to 45 minutes and stand for 15 to 45 minutes. (See AR 418-422.) These findings to not address Plaintiff's subjective pain complaints or definitively refute the opinions of the treating physicians.

Thus, while there is some evidence in the record that Plaintiff retains the functional capacity to meet the lifting requirements of sedentary work, the opinions of the examining and consulting physicians on the credibility of Plaintiff's subjective complaints, or on the effect of pain on the Plaintiff's ability to perform sedentary work, are incomplete. In contrast, the longitudinal records from Drs. Docherty and Yacoubian opine that Plaintiff has significant limitations due to pain. Dr. Docherty, who treated Plaintiff for her back and neck pain from at least July 2006 through April 2008, found that Plaintiff's pain was constant and chronic, moderate to severe in intensity, and limited her to sitting and standing for about 45 minutes. (See AR 217, 501-03.) Dr. Docherty found that Plaintiff can sit for 20 minutes at a time and stand for 10 to 15 minutes. (AR 505.) Dr. Docherty opined that Plaintiff needs a job where she can shift positions at will and take unscheduled breaks every 15 to 30 minutes. (See AR 506.) Dr. Yacoubian, who operated on Plaintiff's foot, found that Plaintiff can only sit for 20 minutes, stand for 20 minutes, and sit and stand/walk for less than 2 hours, and Plaintiff must walk for at least 5 minutes every 45 minutes. (See AR 621-24.)

Dr. Yacoubian also opined that Plaintiff will need to take unscheduled breaks, and that her legs should be "elevated" for 70% of an 8-hour workday. (AR 625.) None of the examining or consulting opinions cited by the ALJ directly contradict these opinions or refute the treating physician's opinions for specific, legitimate reasons.

Furthermore, the ALJ's discounting of the credibility of Plaintiff's claims of pain and functional limitation is also not supported by the evidence in the record. In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (en banc). The regulations state that because symptoms, such as pain, are subjective and difficult to quantify, any symptom-related functional limitations and restrictions which the claimant, or a treating or nontreating source or other persons report, and which can reasonably be accepted as consistent with the objective medical evidence and other evidence, will be considered by the ALJ in reaching a disability determination.

20 C.F.R. § 404.1529(c)(3). Factors relevant to pain symptoms which the ALJ will consider include: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, the claimant receives or has received for relief of pain or other symptoms; (6) any measures the claimant uses or has used to relieve pain or other symptoms (e.g., lying flat on the back, standing for 15 to 20 minutes every hour, sleeping on a board, etc.); and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. See 20 C.F.R. § 404.1529(c)(3) (i)-(vii); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ also may consider applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, or unexplained or inadequately explained failure to seek treatment or follow prescribed course of treatment); see also SSR 96-7P; SSR 88-13. Unless there is affirmative evidence showing that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Valentine v. Comm'r, 574 F.3d 685, 693 (9th Cir. 2009); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) ("Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing.").

Here, the ALJ acknowledged that Plaintiff's medically determinable, combined impairments cause "significant limitation in the [Plaintiff's] ability to perform basic work activities" (AR 15); and the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to produce the alleged symptoms." (AR 19.) Nevertheless, the ALJ found that Plaintiff has "no restriction of activities of daily living" (AR 15) and stated that Plaintiff's daily activities "are not consistent with the alleged degree of pain or impairment." (AR 19.) The ALJ found that Plaintiff could do "light household chores such as rinsing dishes, dusting, wiping down the bathroom, and doing one load of laundry a day," and therefore concluded that Plaintiff "is able to spend a substantial party of the day in activities involving the performance of functions readily transferable to competitive work." (AR 19-20.) Likewise, the ALJ discounted the treating physicians' opinions about Plaintiff's pain, stating "these treating physicians appear to be advocating for the claimant to receive benefits, rather than simply treating her," and stating that "if [Plaintiff] actually required the limitations posed by these doctors, they would have been regularly recorded in the treatment notes." (AR 19.)

This Court does not find these reasons persuasive. First, the Court notes that Plaintiff has described her pain as follows: "The best way I can describe the pain is that I have a circular saw blade sandwiched between the vertebrae in my lower back." (AR 122.) "I have constant neuropathy in my left foot that turns to burning pain with increased activity." (AR 122.) "I feel like there is an ice pick sticking out of the left side of my neck." (AR 122.) "My neck pain increases every minute that I am upright." (AR 124.)

No source has accused Plaintiff of malingering; thus, the ALJ's reasons for discounting Plaintiff's claim must be "clear and convincing." See Valentine 574 F.3d at 693; Morgan, 169 F.3d at 599. The record is replete with Plaintiff's complaints of chronic pain and Plaintiff's restrictions due to the alleged pain. As the ALJ acknowledges, the record evidences medically determinable impairments, such as Plaintiff's bulging discs and obesity, that could certainly cause pain symptoms. Plaintiff testified at the hearing that she can only stand in place 5 or 10 minutes without discomfort and then she has to sit down; that she can sit for 10 to 15 minutes and then she has to lie down; and that she has to lie down every half-hour. (AR 43.) She can walk about 30 feet without pain or discomfort, and she alternates her positions to relieve pain. (AR 44.) The record is replete with Plaintiff's statements to treating and examining physicians relating similar complaints.

Contrary to the ALJ's suggestion that Plaintiff pursued only conservative treatment, or could have pursued more intensive treatment, the record reflects numerous treatments, over the course of many months, from several providers, and includes several instances of lumbar epidural steroid injections into Plaintiff's spine that were performed in operation-like settings. (See, e.g., AR 321-24, 345, 390-96.) These procedures evidence the lengths to which Plaintiff went to obtain pain relief. The length of the record over time, the intensity of certain procedures, and the evidence of the numerous medications that Plaintiff took to alleviate pain render any argument that Plaintiff's treatment was "conservative" unconvincing. The record is also undeveloped as to what effect Plaintiff's obesity might have on surgical options.

Similarly, the ALJ's characterization of Plaintiff's daily activities, and their transferability to the work setting, is not convincing. The fact that Plaintiff may be able to wash a few dishes, wipe down a bathroom, or do a load of laundry does not constitute convincing evidence that Plaintiff could handle the more rigorous demands of the workplace. Plaintiff states that some days she can accomplish some household chores "with short rests in between, other days it increases my pain level so that I have to rest for the rest of the day." (AR 128.) "Doing small chores around the house such as dusting or wiping down the counter must be followed by a rest period." (AR 150.) Furthermore, the daily activities cited by the ALJ do not contradict or preclude Plaintiff's claims that she can only sit or stand for short periods and needs to re-adjust her posture constantly to manage her pain. To constitute a basis for finding allegations of disabling pain not credible, the claimant's daily activities must be rigorous enough to be a fair proxy for the demands of work; but the transferability of Plaintiff's daily activities to the workplace is particularly uncertain in a case like this where the ALJ did not call on a VE to identify jobs in the available occupational base that Plaintiff might be able to perform in spite of her limitations. Cf. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be reason to discredit excess pain allegation if claimant is able to spend a substantial part of the day performing activities that are transferable to a work setting).

The ALJ also does not explicitly consider the side effects of Plaintiff's numerous medications, which Plaintiff complained to Dr. Docherty included dizziness, constipation, nausea, fatigue, loss of concentration, memory loss, and drowsiness. (AR 505.)

Taken together, the record reflects that Plaintiff has significant pain and significant limitations due to pain. In light of this evidence, the ALJ's discounting of Plaintiff's credibility is not convincing. As such, these are non-exertional impairments that affect Plaintiff's ability to perform work. See Macri v. Chater, 93 F.3d 540, 545 (9th Cir.1996) ("Pain is a non-exertional limitation which is not included in the medical vocational guidelines."). Where, as here, a claimant has both severe exertional and non-exertional impairments that limit her ability to perform the full range of sedentary work, the grids do not apply. See, e.g., Tackett v. Apfel, 180 F.3d at 1103-04 (vocational expert testimony necessary because claimant's need to shift, stand up, or walk around every thirty minutes is significant non-exertional limitation not contemplated by grids); Polny, 864 F.2d at 663-64 (grids inapplicable because, although claimaint was "capable of performing a wide range of jobs," he could not perform ones that were "highly stressful," that "require[d] comprehension of complex instructions," or "require[d] dealing with the public"). Accordingly, since the ALJ was not entitled to rely solely on the grids in finding Plaintiff "not disabled," the case must be remanded for further consideration of Plaintiff's ability to perform sedentary work.

ORDER

IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding for further proceedings in accordance with law and with this Memorandum Opinion and Order.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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