IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 7, 2012
BRENDA LEE CAGLE, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, who is represented by counsel, seeks judicial review of a
final decision of the Commissioner of Social Security ("Commissioner")
denying plaintiff's application for Supplemental Security Income
benefits under Title XVI of the Social Security Act.*fn1
In her motion for summary judgment, plaintiff contends that
the administrative law judge ("ALJ") in this case erred by failing to:
(1) include in the formulation of plaintiff's residual functional
capacity any restrictions that reflect plaintiff's functional
limitations as to "persistence and pace" arising from plaintiff's
mental impairment; (2) adopt the opinions of examining state agency
physicians Patrick Wong, M.D., and Les Kalman, M.D., as to plaintiff's
mental functioning despite giving "significant weight" to those opinions; and (3) provide
specific and legitimate reasons for not crediting the medical opinion
of Aziz Khambati, M.D. (See generally Pl.'s Memo. of P. & A. In Supp.
of Mot. for Summ. J. (Pl.'s Memo.") at 1, Dkt. No. 14, Doc. No. 14-1.)
Plaintiff asks the court to remand this matter to the agency so that
these alleged errors may be addressed. The Commissioner filed an
opposition to plaintiff's motion and a cross-motion for summary
judgment (Dkt. No. 15.)
For the reasons stated below, the court grants plaintiff's motion for summary judgment in part, denies the Commissioner's cross-motion for summary judgment, and remands this case. Specifically, the undersigned finds persuasive plaintiff's argument that the ALJ's residual functional capacity did not adequately reflect the ALJ's own findings regarding the material impact of plaintiff's mental impairment on her pace and endurance over the course of an eight-hour workday. Because such error warrants a remand, and the ALJ's review of that issue on remand will likely prompt additional analysis of the opinions of Drs. Wong and Kalman, the court does not address plaintiff's two remaining claims of error.
A. Procedural History
On August 21, 2008, plaintiff filed an application for Social Security Income ("SSI") benefits that alleged a disability onset date of January 1, 2006.*fn3 (Admin. Tr. ("AT") 176-83.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 112-13.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on December 21, 2009. (AT 70-92.) Plaintiff was represented by counsel at the hearing and testified. A vocational expert ("VE") also testified at the hearing.
In a written decision dated February 26, 2010, the ALJ denied plaintiff's application for benefits based on a finding that plaintiff could perform other work as a "dishwasher," "cleaner," or "linen room attendant," which are jobs that exist in significant numbers in the California economy.*fn4 (AT 68.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's multiple requests for review. (See AT 1-2.) Plaintiff subsequently filed this action.
B. Summary of the ALJ's Findings
The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had not engaged in substantial gainful employment since August 21, 2008, the date that plaintiff filed her application for benefits. (AT 60.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "insulin dependent diabetes mellitus, obesity, and affective disorder." (Id.) At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (AT 61-63.) Central to plaintiff's first assignment of error, however, the ALJ did find that in regards to plaintiff's mental impairment, plaintiff had "moderate difficulties" as to "concentration, persistence or pace." (AT 62.) The ALJ further found that "[t]he evidence suggests that the claimant's ability to maintain adequate pace and level of endurance over an eight-hour workday is likely to be affected by her mood swings and emotionality." (Id.)
Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:
[T]he claimant has the residual functional capacity to lift and carry 50 pounds occasionally and 25 pounds frequently; stand and walk in combination for 6 hours out of an 8 hour day; and sit up to 6 hours out of an 8 hour day. The claimant can never climb ladders, ropes, or scaffolds and can occasionally climb stairs, balance, stoop, kneel, crouch or crawl.
The claimant can work at jobs involving simple routine tasks with occasional public contact. Additionally, the claimant should avoid exposure to hazards such as unprotected heights and dangerous moving machinery in the work place. (AT 63.) In assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found that plaintiff was not credible to the extent that plaintiff's testimony conflicted with the RFC. (See AT 63-65.) Plaintiff has not challenged that finding. The ALJ also addressed and gave "significant weight" to the opinions of Drs. Wong and Kalman in regards to plaintiff's mental functioning. (See AT 65, 67.) The ALJ addressed and gave "reduced weight" to the opinion of Dr. Khambati regarding plaintiff's physical impairments. (See AT 66-67.)
Having assessed plaintiff's RFC, the ALJ found at step four that plaintiff was not capable of returning to her past work because plaintiff "has no past relevant work." (AT 67.) At step five, the ALJ concluded that considering plaintiff's age, education, work experience, the RFC, and the VE's testimony, plaintiff was not disabled within the meaning of the Act. (AT 67-68.) Relying on the VE's testimony, the ALJ determined that plaintiff could perform work in the representative occupations of "dishwasher, "cleaner," and "linen room attendant," and that jobs in those occupations existed in significant numbers in the California economy. (AT 68.)
II. STANDARDS OF REVIEW
The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
Insofar as plaintiff's mental RFC is concerned, the ALJ found that plaintiff "can work at jobs involving simple routine tasks with occasional public contact." (AT 63.) Plaintiff contends that this RFC-which the ALJ subsequently used to question the VE about other work in the national or regional economies that plaintiff could perform-did not adequately capture the ALJ's own findings regarding the functional impact of plaintiff's mental impairment on plaintiff's ability to perform work in an eight-hour day.*fn5 Specifically, plaintiff contends that the mental portion of the RFC did not reflect the ALJ's assessment of the impact of plaintiff's mental impairment on plaintiff's "persistence" or "pace."*fn6
In terms of the ALJ's findings, plaintiff relies on the ALJ's assessment at step three of the five-step analysis. In determining whether plaintiff's mental impairment met or equaled a listing in the regulations, the ALJ properly evaluated whether plaintiff's mental impairment resulted in marked difficulties in concentration, persistence, or pace. The ALJ's decision states:
With regard to concentration, persistence or pace, the claimant has moderate difficulties. The evidence suggests that the claimant's ability to maintain adequate pace and level of endurance over an eight-hour workday is likely to be affected by her mood swings and emotionality. For this reason the claimant's difficulties with regard to concentration, persistence, and pace are more than mild, but less than marked.
(AT 62.) The ALJ's statement is supported by Dr. Wong's psychiatric opinion regarding plaintiff's pace and endurance, which the ALJ characterized, in part, as follows: "[The claimant's] ability to maintain an adequate pace and level of endurance over an eight-hour workday is likely to be occasionally, but repeatedly, affected by her emotionality. Her ability to adapt to changes in a workplace is affected by her low self-confidence, poor frustration tolerance, and tendency to be emotional." (AT 67; see also AT 340-42 (Dr. Wong's functional assessment of plaintiff).)*fn7 The ALJ gave "significant weight" to Dr. Wong's opinion. (AT 67.)
The undersigned finds persuasive plaintiff's argument that the RFC formulated by the ALJ does not adequately capture plaintiff's limitations in terms of persistence and pace; or more accurately stated, endurance and pace. The ALJ specifically found that plaintiff's ability to maintain adequate pace and endurance over an eight-hour workday would be materially affected by her mental impairment and resulting emotional state. Yet the RFC arrived at by the ALJ does not reflect any limitations in terms of pace or endurance. Instead, the RFC simply limits plaintiff to "jobs involving simple routine tasks with occasional public contact." This RFC does not address plaintiff's pace or endurance. The practical result of the incomplete RFC relates to the adequacy of the ALJ's hypothetical questions to the VE regarding other work that plaintiff could perform, and the adequacy of the VE's responses that the ALJ relied on in finding plaintiff not disabled. At step five of the analysis, the ALJ specifically asked the VE about the work that a hypothetical person could perform with the mental component of the RFC limited to the ability to work in "jobs involving simple, routine tasks, [with] occasional public contact." (See AT 90-91.) Because the premise of those hypothetical questions was incomplete, the VE's resulting answers were incomplete and cannot serve as substantial evidence supporting the ALJ's non-disability determination.
In response, the Commissioner asserts that plaintiff's argument, that a RFC stating that plaintiff was capable of performing "simple routine tasks" did not capture limitations in pace and endurance, was rejected in Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). In Stubbs-Danielson, the Ninth Circuit Court of Appeals held that "an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with restrictions identified in the medical testimony." Id. at 1174. There, the record contained some evidence of the claimant's slow pace, but the only concrete functional limitation provided by the medical sources was that the claimant could perform "simple tasks." Id. at 1173-74. As a result, the ALJ formulated a RFC that limited the claimant to "simple, routine, repetitive sedentary work." Id. at 1173. The Court of Appeals concluded that the ALJ did not err in that formulation of the RFC and, as a result, did not err in formulating hypothetical questions to the vocational expert.
Conversely, as plaintiff argues, this case is more akin to Brink v. Commissioner of the Social Security Administration, 343 Fed. Appx. 211 (9th Cir. 2009), which distinguished Stubbs-Danielson. Although Brink is an unpublished decision and thus only of persuasive value,*fn8 it is instructive in regards to how it distinguished Stubbs-Danielson. In Brink, as in this case, the ALJ accepted medical evidence that Brink had difficulty with concentration, persistence, or pace, but posed hypothetical questions to the vocational expert based on a RFC that "referenced only 'simple, repetitive work,' without including limitations on concentration, persistence or pace." Id. at 212. In finding error and rejecting the Commissioner's argument premised on Stubbs-Danielson, the Court of Appeals reasoned:
In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), we held that an "assessment of a claimant adequately captures restrictions related to concentration, persistence, or pace where the assessment is consistent with the restrictions identified in the medical testimony." Id. at 1174. The medical testimony in Stubbs-Danielson, however, did not establish any limitations in concentration, persistence, or pace. Here, in contrast, the medical evidence establishes, as the ALJ accepted, that Brink does have difficulties with concentration, persistence, or pace. Stubbs-Danielson, therefore, is inapposite.
The undersigned finds that the reasoning of Brink is persuasive and supports a conclusion that Stubbs-Danielson does not control this case.*fn9 In this case, as in Brink, the ALJ accepted evidence of plaintiff's difficulty with pace and endurance, but the RFC only included a reference to "simple routine tasks." That RFC is materially incomplete in light of the evidence in the record and the ALJ's own findings. Accordingly, the undersigned concludes that the ALJ erred in formulating the RFC and that plaintiff is entitled to summary judgment. The court remands this matter to the agency for further development in regards to the formulation of a more accurate RFC for plaintiff insofar as her mental limitations are concerned. Because such reformulation of the RFC necessarily requires reassessment of Dr. Wong's medical opinion at a minimum, the undersigned does not reach plaintiff's remaining arguments.
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Dkt. No. 14) is granted in part, and this matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
2. The Commissioner's cross-motion for summary judgment (Dkt. No. 15) is denied.
3. The Clerk of Court is directed to enter judgment in favor of plaintiff. IT IS SO ORDERED.