IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 5, 2012
SANDRA FELTIS, 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 and consequent hypothetical to the vocational expert any
restrictions that reflect plaintiff's functional limitations as to an
"ability to deal with changes in a routine work setting" and
"persistence and pace" arising from plaintiff's mental impairment; (2)
address and provide any reason for rejecting the more severe mental limitations assessed
in May 4, 2009 County mental heath treatment notes and the assessment
by Dr. Bailey, the state agency physician; (3) properly assess the
impact of plaintiff's obesity pursuant to SSR 02-01p; (4) provide
legitimate and convincing reasons for rejecting plaintiff's testimony
as to the degree of her symptoms; and
(5) provide any reasons for rejecting the third party lay statements
provided by plaintiff's daughter. (See generally Pl.'s Memo. of P. &
A. In Supp. of Mot. for Summ. J. ("Pl.'s Memo.") at 1, Dkt. No. 18.)
The Commissioner filed an opposition to plaintiff's motion and a
cross-motion for summary judgment (Dkt. No. 25.)
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 and hypothetical to the vocational expert did not adequately reflect the ALJ's stated acceptance of consultative examiner Dr. Owens' findings regarding the material impact of plaintiff's mental impairment on her pace, endurance, and ability to deal with changes in a routine work setting. However, the court rejects plaintiff's claim that the ALJ failed to assess properly the impact of plaintiff's obesity.
A. Procedural History
On September 4, 2008, plaintiff filed an application for Social Security Income ("SSI") benefits that alleged a disability onset date of July 31, 2007. (Admin. Tr. ("AT") 109-15.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 72-87.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's claim on March 15, 2010. (AT 21-66.) Plaintiff was represented by counsel at the hearing and testified. A vocational expert also testified at the hearing.
In a written decision dated July 22, 2010, the ALJ denied plaintiff's application for benefits based on a finding that plaintiff could perform other work as an "office helper," "hand packager," or "shipping and receiving clerk," which are jobs that exist in significant numbers in the California economy.*fn3 (AT 5-20.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) 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 September 4, 2008, the date that plaintiff filed her application for benefits. (AT 10.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "major depressive disorder, migraine headaches, lumbar and cervical degenerative disc disease and obesity." (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 10-11.)
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 perform light work as defined in 20 CFR 416.967(b) except frequently climbing ramps or stairs, balance, stoop, kneel crouch or crawl and may occasionally climb ladders, ropes or scaffolds. The claimant may occasionally reach over shoulder height. She is capable of simple repetitive tasks with occasional public contact and frequent contact with co-workers and supervisors.
(AT 11.) 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. (AT 12-13.) The ALJ further found, after summarizing some of the treatment evidence, that, while plaintiff's "subject complaints and allegations regarding her functional limitations are partially credible . . . the medical evidence does not support the level of severity the claimant alleges." (AT 14.) The ALJ justified this credibility finding by stating "[t]he medical evidence shows that the claimant has migraines only about once a year." (Id.) The ALJ also addressed and gave "substantial weight" to the opinion of consultative examiner Dr. Owens in regards to plaintiff's mental functioning. (AT 14.) The ALJ noted that the State agency assessed plaintiff as having a "marked limitation in her ability to interact with the general public", but the ALJ stated that the State's finding was "not consistent with the fact that the claimant is able to go out in public and she testified that she leaves the house twice a week." (AT 14.) The ALJ did not state what weight, if any, she gave to the other findings in the State agency report (AT 358-59), some of which were more restrictive that Dr. Owens' findings, did not include any reference to the May 4, 2009 County mental health assessment that detailed serious mental health symptoms (AT 471-72), and did not state whether she found credible the Third Party Function Report that plaintiff's daughter submitted (AT 125-32). (See AT 12-14.)
Having assessed plaintiff's RFC, at step four the ALJ found that plaintiff was not capable of returning to her past work as a cashier, cashier checker and construction janitorial worker. (AT 15.) At step five, the ALJ concluded that considering plaintiff's age, education, work experience, the RFC, and the vocational expert's testimony, plaintiff was not disabled within the meaning of the Act. (AT 15-16.) Relying on the vocational expert's testimony, the ALJ determined that plaintiff could perform work in the representative occupations of "office helper," "hand packager," and "shipping and receiving clerk," and that jobs in those occupations existed in significant numbers in the California economy. (Id.)
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 "is capable of simple repetitive tasks with occasional public contact and frequent contact with co-workers and supervisors." (AT 11.) Plaintiff contends that this RFC-which the ALJ subsequently used to question the vocational expert about other work in the national or regional economies that plaintiff could perform-did not adequately capture the opinion of Dr. Owens regarding the functional impact of plaintiff's mental impairment on plaintiff's ability to perform work in an eight-hour day, which the ALJ stated she gave "substantial weight."*fn4 (Pl.'s Memo. at 15.) Specifically, plaintiff contends that the mental portion of the RFC did not reflect Dr. Owens' assessment that the plaintiff appeared moderately impaired in her "ability to maintain persistence and pace" and her "ability to deal with changes in a routine work setting." (Id.; AT 340.)
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. Even though Dr. Owens found a moderate impairment in plaintiff's ability to maintain adequate pace and endurance over an eight-hour workday, 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 repetitive tasks, occasional public contact, and frequent contact with co-workers and supervisors. The practical result of the incomplete RFC relates to the adequacy of the ALJ's hypothetical questions to the vocational expert regarding other work that plaintiff could perform, and the adequacy of the vocational expert's responses that the ALJ relied on in finding plaintiff not disabled. At step five of the analysis, the ALJ specifically asked the vocational expert 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 "[s]imple, repetitive tasks, occasional contact with the public, [and] frequent contact with co-workers and supervisors." (AT 62.) Because the premise of those hypothetical questions was incomplete, the vocational expert'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, 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,*fn5 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.*fn6 In this case, as in Brink, the ALJ granted "substantial weight" to 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 a full reformulation of plaintiff's RFC is necessary, the court notes that it finds persuasive, but need not reach, plaintiff's further arguments that the ALJ did not sufficiently address the State agency's assessment, failed to address the May 4, 2009 County mental health assessment, and did not sufficiently explain her rejection of plaintiff's and plaintiff's daughter's testimony. The ALJ did, however, properly evaluate the impact of plaintiff's obesity, as plaintiff has failed to point to any record evidence that her obesity imposes greater limitations than the ALJ found. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005).
For the foregoing reasons, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Dkt. No. 18) 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. 25) is denied.
3. The Clerk of Court is directed to enter judgment in favor of plaintiff. IT IS SO ORDERED.