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Keifer v. Colvin

United States District Court, N.D. California

May 1, 2014

ROBERTA SHERRY KEIFER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND REMANDING FOR FURTHER PROCEEDINGS

ELIZABETH D. LAPORTE, Magistrate Judge.

Plaintiff moved for summary judgment and asks the Court to reverse the final decision of the Defendant Commissioner of Social Security and either award Plaintiff disability insurance benefits or remand the case for further administrative proceedings. Defendant filed a combined opposition to Plaintiff's motion and cross motion for summary judgment asking the Court to affirm Defendant's decision. For the reasons set forth below, the Court grants in part Plaintiff's motion, denies Defendant's motion, and remands this matter to the Administrative Law Judge for further proceedings.

I. Factual Background

A. General Background

Plaintiff is an approximately 45 year old single female. (Administrative Record ("AR") 457.) She lives with her boyfriend and two children, who were teenagers at the time of the administrative hearing and are now in their late teens or early twenties. (AR 47.) Plaintiff worked as an urgent care technician from 2001 to April 2009 at Santa Rosa Memorial Hospital. (AR 34, 209.) In April 2009, Plaintiff had a heart attack and was treated at her hospital. (E.g., AR 352.) After her heart attack, Plaintiff returned to work from September 2009 through December 2009. (AR 453.) She subsequently worked for a few months as a cashier at a casino. (AR 35.) It is undisputed that Plaintiff has not engaged in "substantial gainful activity" since April 6, 2009. (AR 18.)

B. Medical History

1. Treating Physicians

a. Dr. Lowy

Dr. James Lowy was Plaintiff's treating physician from at least March 2008 through June 2011. Plaintiff considered Dr. Lowy to be her primary care physician, and he treated her before and after her April 6, 2009, heart attack. (AR 36.) On April 20, 2008, Plaintiff complained to Dr. Lowy of tiredness and right leg pain that kept her from walking. (AR 283.) He diagnosed her with atherosclerosis, rheumatoid arthritis, depression, and atrial fibrillation. (AR 282.) On June 5, 2009, Plaintiff met with Dr. Lowy regarding her return to work and foot pain. (AR 279-280.) He diagnosed her with nausea, rheumatoid arthritis, atherosclerosis, and bone and cartilage disorder. (AR 280.) Dr. Lowy noted that Plaintiff was doing better and walking three miles daily but that she still tired easily. She said she was not having chest pain but was feeling some bilateral heel pain. (AR 280.) On September 18, 2009, Plaintiff visited Dr. Lowy for a medication check and was diagnosed with nausea, esophageal reflux, and family history of diabetes mellitus. (AR 278.) Dr. Lowy noted that Plaintiff saw Dr. Coombs, her cardiologist, because of fatigue and substernal chest pain, which was usually nonexertional. (AR 278.) On March 9, 2010, Dr. Lowy diagnosed Plaintiff with malaise and fatigue, rheumatoid arthritis, depression, atherosclerosis, and memory loss. Plaintiff was concerned about her memory and functional daily activities since her heart attack. (AR 276-77.) Plaintiff told Dr. Lowy that she had pain in her feet, heels, and other joints. He noted that her joints had no synovitis. (AR 277.) On March 22, 2010, Dr. Lowy diagnosed Plaintiff with memory loss, atherosclerosis, and rheumatoid arthritis and noted that she had full range of motion in her ankles. (AR 274.)

Plaintiff also saw Dr. Lowy in September 2010 for various conditions unrelated to her claim for Social Security disability benefits. (AR 521.) On September 16, 2010, Dr. Lowy noted that Plaintiff's memory was better and that she did not have chest pains. (AR 521.) On November 8, 2010 (after Plaintiff's application disability benefits had been denied in October 2010), Plaintiff saw Dr. Lowy again regarding left shoulder and back pain. (AR 520.) She also stated that she had trouble climbing stairs at times but no chest pain. She also said she had cramps in her legs. (AR 520.) Dr. Lowy noted that Plaintiff needed to see Dr. Hopkins, her new cardiologist, again. (AR 520.)

Dr. Lowy examined Plaintiff again on February 7, 2011. (AR 519.) Dr. Lowy noted that Plaintiff had not been able to work and was trying to get Social Security benefits and brought forms from her representative to her appointment. Plaintiff asked Dr. Lowy questions regarding her heart and ability to lift, sit, etc., which Dr. Lowy thought were more appropriately handled by her cardiologist. (AR 519.) Plaintiff complained of upper and mid thoracic pains. Plaintiff told Dr. Lowy that she was recently in Aruba. (AR 519.) Plaintiff saw Dr. Lowy again on June 20, 2011. (AR 519.) He reviewed Plaintiff's CT scan, which was ordered by Dr. Hopkins. (AR 519.) He noted that Plaintiff's cognitive problems were not related to the CT changes. (AR 519.)

b. Dr. Robert Coombs

Dr. Coombs was a cardiologist at Northern California Medical Associates and treated Plaintiff before and after her heart attack until December 2009. He treated Plaintiff as early as August 2005 and again in March 2007. (AR 445.) In 2008, Plaintiff met with Dr. Coombs and had an echocardiogram that was largely normal. (AR 347-350.) Dr. Coombs noted that Plaintiff was in a pacemaker clinic due to a pacemaker previously put in place by Dr. Chang Soon because of a history of paroxysmal supraventricular tachycardia. (AR 347-350.) The pacemaker was working well as of 2008. (AR 347-50.) Plaintiff had no cardiac symptoms, breathing problems, chest discomfort, etc.. in March 2008 according to Dr. Coombs's notes. (AR 350.) Plaintiff met with Dr. Coombs on July 30, 2008, and he urged her to stop using tobacco and to take a statin drug, which she did not do. (AR 342, 346.)

Plaintiff met with Dr. Coombs again April 15, 2009, soon after her April 6, 2009, heart attack. (AR 342.) Dr. Coombs noted that Plaintiff was doing well and did not have symptoms of angina; her main complaint was fatigue. (AR 342.) Dr. Coombs opined that in general things were going well. (AR 342.) Plaintiff's next appointment with Dr. Coombs was on April 30, 2009. (AR 344.) He noted that she had some atypical chest discomfort that sounded like it was associated with her stent. (AR 344.) He also noted that she walked a mile or so a day and generally felt well when she walked except for some shortness of breath when she was on hills. (AR 344.) Plaintiff met with Dr. Coombs again on June 3, 2009. (AR 329.) Dr. Coombs noted that Plaintiff was not having any specific cardiac symptoms but felt anxious and worried about her cardiac status since her heart attack. Plaintiff also indicated that she had no particular problems since her last appointment except for her continued concern about her future after the heart attack. She further indicated that she was walking about three miles per day. (AR 329.) Dr. Coombs further noted that she had a "chronic left bundle branch block." (AR 329.) He felt that it would be reasonable for Plaintiff to return to her nursing job three months after the heart attack. (AR 330.) Plaintiff met with Dr. Coombs again on June 24, 2009. (AR 331.) She told him that she was feeling better and more active. (AR 331.) Dr. Coombs said that her echocardiogram was very favorable. (AR 331.) He further noted that she was not having cardiac symptoms. (AR 331.) Dr. Coombs called Plaintiff on July 15, 2009. (AR 333.) He noted that she seemed to be doing well, was back at work, and not having cardiac symptoms. (AR 333.)

Plaintiff had another office visit with Dr. Combs on September 17, 2009. (AR 334.) He noted that she was generally doing well but that in early September she had an episode of precordial aching in the lower substernal area, about the size of a hand print. (AR 334.) Plaintiff did not seek medical attention or call in about it, and according to Dr. Coombs, it sounded somewhat musculoskeletal in nature. (AR 334.) Dr. Coombs noted that Plaintiff was breathing well. (AR 334.) Dr. Coombs wrote that Plaintiff was "back to work and has been exercising and working in cardiac rehab and eating a good diet." (AR 334.) He noted that her atypical chest discomfort needed to be evaluated. (AR 334.)

Plaintiff had a follow up appointment on September 30, 2009, after having a Cardiolite scan. (AR 336; see also AR 318.) Dr. Coombs noted that the scan was normal. (AR 318, 336.) He also noted that Plaintiff had the same symptoms in her chest that she complained of earlier. He opined that they were atypical, "and while certainly there is a possibility that she has angina, it is atypical." (AR 336.) He explained further that although the symptoms could be angina, the scan was favorable, and "it appears more likely that the chest discomfort is noncardiac in origin." (AR336.) He described Plaintiff as a "very pleasant patient in no distress who looks well." (AR 336.) It appears that Plaintiff complained to Dr. Coombs of fatigue. (AR 336.)

Dr. Coombs saw Plaintiff for the last time on December 17, 2009. (AR 337.) He noted that she was not having cardiac symptoms and that while she felt tired, she did not have angina or significant shortness of breath. "Fatigue is her major complaint." (AR 337.) He noted that she was walking a mile or two every other day and that she felt well but tired and that she was not working any longer. (AR 337.) He reiterated that she was not having any symptoms suggesting angina. (AR 337.) Dr. Coombs implied that the fatigue might be caused by medications. (AR 337.) He ordered that Plaintiff have a repeat echocardiogram in February 2010. This echocardiogram did not show a significant change from the June 2009 echocardiogram. (AR 323.)

c. Dr. Gregory Hopkins

Dr. Gregory Hopkins, like Dr. Coombs, is a cardiologist at Northern California Medical Associates. (AR 337.) He first treated Plaintiff on April 6, 2009, the day of her heart attack, when she was admitted to Santa Rosa Memorial Hospital complaining of chest pain, heartburn, and an aching left arm. (AR 324, 339, 352.) While she was on a monitor, she developed a ventricular fibrillation and was resuscitated with defibrillation. (AR 339.) Dr. Hopkins ordered a chest x-ray, and the x-ray showed no evidence of acute cardiopulmonary disease process, though it did indicate a mild hyperinflation of the lungs and that Plaintiff had a pacemaker. (AR 324.) Plaintiff was subsequently found to have a total occlusion of her coronary artery, which was opened with a drug eluting stent on April 7, 2009. (AR 339, 342.) Dr. Hopkins noted that Plaintiff had significant left ventrical injury. (AR 339.) He also noted that she had a history of rheumatoid arthritis. (AR 352.) Plaintiff was discharged from the hospital on April 11, 2009. (AR 354-356.)

Plaintiff next saw Dr. Hopkins on February 25, 2010, after Plaintiff stopped seeing Dr. Coombs. (AR 339.) He summarized her treatment during the heart attack and noted that the February 2010 echocardiogram showed improvement. (AR 339.) Dr. Hopkins further noted that Plaintiff was not having any clear-cut angina chest discomfort but that occasionally she had some aching in her left arm. He also wrote that Plaintiff tolerated her medications. (AR 339.) Dr. Hopkins was worried, however, about Plaintiff's memory and cognitive function. (AR 339.) He noted that Plaintiff said that she made "silly mistakes with her knitting" and had trouble with simple math problems. He assessed her with atherosclerosis. (339-40.) He noted that she had atypical chest discomfort and a history of, among other things, rheumatoid arthritis. (AR 340.) Plaintiff met with Dr. Hopkins again on May 28, 2010. (AR 341.) Dr. Hopkins noted that she seemed more comfortable with her cognitive function but that she chose not to start on the antidepressant Dr. Lowry recommend. According to Dr. Hopkins, Plaintiff had no angina or trouble with her breathing. (AR 341, 375.)

Plaintiff next met with Dr. Hopkins on November 22, 2010, a little over two weeks after the Commissioner initially denied her application for benefits and the same day that she filed a request for reconsideration. (AR 70-75, 514.) Dr. Hopkins noted that Plaintiff had new symptoms; she had begun to feel breathless and have leg weakness when she climbed up four to five flights of stairs and when she walked between her neighbor's house and her home. She also complained of three to four episodes of burning in her chest. She said it reminded her of how she felt with her heart attack but to a much milder degree. (AR 514.) Plaintiff also described discomfort in her back. (AR 514.) Dr. Hopkins noted that her lungs were clear and that he did not hear wheezing. His notes stated: "rule out recurrent angina/ischemia." (AR 514.) Dr. Hopkins asked Plaintiff to take a repeat stress study and arranged for cardiac imaging. He was concerned about the symptoms but said that Plaintiff looked well. (AR 514.)

Plaintiff had a follow up appointment on April 19, 2011. (AR 509.) The cardiac imaging scan showed a defect consistent with her long-present bundle branch block but no evidence of ischemia. Dr. Hopkins noted that Plaintiff did not complain as much of troubled breathing or chest discomfort but rather complained about discomfort in her buttocks and thighs when she walked or climbed stairs. (AR 509.) He also noted that she complained about her vision. (AR 509.) Dr. Hopkins wrote that Plaintiff was going to have an ankle-brachial index study as a screening test for significant peripheral vascular disease. He decided not to pursue her chest symptoms given the results of the cardiac imaging. (AR 509.) The ankle-brachial screening on May 24, 2011, showed normal ankle-brachial indices at rest. (AR 507.) The report also noted that Plaintiff said that her bilateral leg pain improved 70% since she switched her medication. (AR 507.)

On May 24, 2011, Dr. Hopkins filled out a cardiac RFC questionnaire. (AR 494.) He noted that he saw Plaintiff every six months and diagnosed her with "leg pain with walking" and a "guarded" prognosis. (AR 494.) He further noted that she had symptoms of angina equivalent pain, shortness of breath, and weakness. (AR 494.) He indicated that Plaintiff was not a malingerer and that she had "marked limitation of physical activity as demonstrated by fatigue, palpitation, dyspnea, or angina discomfort on ordinary physical activity, even though [his] patient was comfortable at rest." (AR 494.) Dr. Hopkins checked the box signifying that Plaintiff was incapable of even low stress jobs because of "s/f myocardial infraction with cardiac arrest." (AR 495.) He found that Plaintiff's physical symptoms caused emotional difficulties and that emotional factors contributed to the severity of her subjective symptoms and functional limitations. (AR 495.) He further found that Plaintiff frequently experienced cardiac symptoms that would interfere with her attention and concentration needed to perform even simple work tasks. (AR 495.) Dr. Hopkins stated that Plaintiff's impairments had lasted, or could last, at least twelve months. According to Dr. Hopkins, Plaintiff: (1) could walk less than one city block without rest or severe pain; (2) could sit or stand/walk less than two hours; (3) needed a job that permitted shifting positions at will from sitting, standing, or walking; (4) would need to take unscheduled breaks during an eight hour working day on a daily basis; and (5) would not need to have her legs elevated with prolonged sitting. (AR 496-97.) He also indicated that Plaintiff could occasionally lift less than ten pounds and rarely ten pounds, she could occasionally twist and rarely stoop and crouch, and could never climb ladders or stairs. (AR 497.) Dr. Hopkins opined on the worksheet that Plaintiff should avoid all exposure to the listed environmental factors except perfumes. (AR 497.) Additionally, he found that Plaintiff's impairments would likely produce good days and bad days and that she would likely be absent from work three or more days a month. (AR 498.)

d. Susan Laliberte

On June 1, 2011, Susan Laliberte, a nurse practitioner, saw Plaintiff on behalf of Dr. Hopkins. (AR 503.) She noted that there was some blockage of an artery. (AR 503.) Ms. Laliberte noted that Plaintiff felt like she had some vision deterioration but had not seen an eye doctor. Plaintiff was worried that she might have already had a stroke. (AR 503.) Plaintiff did not have chest pain or pressure, and Ms. Laliberte noted that Plaintiff's buttock and thigh discomfort resolved initially after switching from simvastatin to Crestor, but returned albeit to a much milder degree. (AR 503.) Ms. Laliberte said that they would follow up with a CT of Plaintiff's brain to evaluate any changes given her carotid blockage and episodes of forgetfulness. (AR 504.) Plaintiff had a CT brain scan on June 7, 2011. (AR 500.) The scan showed an abnormal white matter in her brain that was "most consistent with previous infarction, especially given the history of vascular disease." (AR 500.) No acute infarction or hemorrhage was noted. (AR 500.)

2. Consulting Physicians

a. Examining Physician

Plaintiff underwent a consultative psychiatric evaluation by Dr. Marion-Isabel Zipperle, a clinical psychologist, on September 25, 2010. (AR 457.) As part of that examination, Dr. Zipperle reviewed the records of Dr. Hopkins. (AR 457.) Plaintiff told Dr. Zipperle that she could not do her job because she became confused and that she was anxious because she could not do what she used to do. (AR 457.) Plaintiff also stated that she was in physical pain every day. (AR 457.) Dr. Zipperle noted that the anxiety began when Plaintiff had a heart attack. (AR 457.) Plaintiff told Dr. Zipperle that she had anxiety when she drove, trouble sleeping, feelings of helplessness, and that she needed someone to go out with her all the time because she was too slow. (AR 457.) Plaintiff also noted that she felt like an old lady and could not ride her bike or walk fast. According to Plaintiff, 2010 was the first year she had not been in the hospital. Plaintiff stated that she felt blue, had felt suicidal, and had flashbacks and nightmares due to medical procedures and having "died" during the heart attack. (AR 457.) Dr. Zipperle noted that Plaintiff was on ten different medications, which comprised some prescription drugs and some over the counter drugs. (AR 457-58.) Dr. Zipperle noted that "[t]he cardiologist that [Plaintiff] worked for diagnosed her health problems." (AR 458.) Dr. Zipperle noted that Plaintiff could participate in self-care but was very slow and could only do some housework. (AR 459.)

Dr. Zipperle diagnosed Plaintiff with "pain disorder with medical condition and psychological factors with a general medical condition, " anxiety disorder, posttraumatic stress disorder, and dysthymic disorder. (AR 460.) Dr. Zipperle opined that Plaintiff's withdrawal from people and her physical issues made it difficult for her to function effectively. (AR. 460.) Dr. Zipperle further opined that Plaintiff had some issues with memory. (AR 460.) Dr. Zipperle noted that Plaintiff was not in therapy but concluded that her issues would not resolve in twelve months. (AR 460.) Dr. Zipperle concluded that Plaintiff: (1) was capable of managing her own money; (2) had the ability to perform simple repetitive tasks; (3) could accept instructions from supervisors and interact with coworkers and the public; (4) would not need special or additional instructions to work; (5) had psychiatric issues that would keep her from performing her tasks and she could not deal with stress in the workplace. (AR 460.)

b. Review Physicians

On September 10, 2010, Dr. Bianchi completed a case analysis and RFC worksheet. (AR 447-454.) (This was before Dr. Hopkins completed his RFC assessment in May 2011.) Dr. Bianchi did not personally examine Plaintiff. In the case analysis, Dr. Bianchi noted that Plaintiff alleged rheumatoid arthritis, heart attack, mental lapses, and anxiety. (AR 452.) He also noted that Plaintiff knitted or crocheted for two hours, made dinner, tried to take the dog for a walk or use the treadmill and cared for children, though the record also reflected that she was sometimes unable to walk the dog, bike, or do workout videos. (AR 452.) He noted that she had no problems with personal care and could drive and shop. (AR 452.) Dr. Bianchi additionally noted that she could not do yard work or lift more than ten pounds and walked less than 50 feet. (AR 452.) Dr. Bianchi then summarized the significant objective findings from Plaintiff's medical records. (AR 452-453.)

Dr. Bianchi further noted that there were inconsistencies between the medical records he reviewed and Plaintiff's allegations. (AR 454.) He opined that Plaintiff was partially credible and that she had some mental and physical limits but not at the listing level. (AR 454.) He recommended sedentary light work given her history of heart problems. He questioned her arthritis given a March 2010 finding that she did not have synovitis in her joints and Plaintiff's admission that she was able to knit/crochet for two hours per day. (AR 454.) As to mental issues, Dr. Bianchi recommended simple routine work. (AR 454.)

Dr. Bianchi completed a RFC worksheet based on his case analysis. (AR 448-451.) He determined that she could frequently lift or carry ten pounds, stand or walk at least two hours in an eight hour workday, sit for six hours in an eight hour workday, and push and pull without limit. (AR 448.) He also indicated that Plaintiff could occasionally climb ramps and stairs but could not climb ladders, ropes, or scaffolds. (AR 449.) Dr. Bianchi determined that Plaintiff could frequently balance, stop, kneel crouch, and crawl. (AR 449.) He found that Plaintiff had no manipulative, vision, or communicative limitations. (AR 450.) He also found that Plaintiff did not have any environmental limitations except that Plaintiff should avoid concentrated exposure to hazards. (AR 450.) He noted that at the time of his assessment, there was no statement from Plaintiff's treating physician in the file. (AR 451.)

On October 23, 2010, Dr. Berkowitz completed a psychiatric review technique and a mental RFC worksheet. (AR 463-481.) Dr. Berkowitz assessed whether Plaintiff's mental condition met listings 12.02 and 12.04. (AR 463.) He found that Plaintiff had a medically determinable impairment that did not precisely satisfy listing 12.02, namely "possible cognitive disorder nos." (AR 464.) He also found that Plaintiff's "depressive disorder nos" did not precisely satisfy listing 12.04. (AR 466.) Dr. Berkowitz determined that Plaintiff was only moderately limited in the Paragraph B criteria of the listings and had no episodes of decompensation each of extended duration. (AR 473.) He also concluded that the evidence did not establish the presence of paragraph C criteria. (AR 474.)

Dr. Berkowitz also completed a mental RFC assessment worksheet. (AR 478.) He did not find that Plaintiff was markedly limited in any of the categories, and at most moderately limited in some aspects of understanding and memory, sustained concentration and persistence, and social interaction (interaction with the general public). (AR 478-79.) Dr. Berkowitz noted that Plaintiff traveled and shopped independently and had some memory problems that may have been related to depression or cardiac issues. He noted that Plaintiff was depressed, agitated, had some posttraumatic stress disorder symptoms and was socially isolated. (AR 480.) He further noted that she used humor and optimism to hide depression. Dr. Berkowitz concluded that "[w]hile claimant allegations are partially credible and symptoms are severe, she appears to have the ability to persist at a range of simple tasks with moderate public contact." (AR 480.)

On January 7, 2011, Dr. Lloyd Schneiderman stated in a one-sentence report that he reviewed all of the medical evidence in Plaintiff's file and Dr. Bianchi's RFC assessment and affirmed that assessment as written. (AR 489.) Similarly, on January 7, 2011, Dr. Dave Sanford stated in a one-sentence report that he reviewed all of the psychological information in the file and prior psychiatric review technique and mental RFC and affirmed them as written. (AR 490.)

3. Third Party Function Report

Plaintiff's boyfriend completed a third party function report on August 17, 2010. (AR 183.) This reported described Plaintiff's daily activities and noted, among other things, that Plaintiff could not participate in the physical activities that she participated in before the heart attack. (AR 183-84.)

III. Procedural History

Plaintiff applied for disability benefits on July 7, 2010, claiming that she became disabled on April 6, 2009. (AR 139.) Plaintiff represented that she was unable to work due to rheumatoid arthritis, heart attack, mental lapses, and anxiety. (AR 70.) The Social Security Administration ("SSA") denied Plaintiff's application initially and on reconsideration. (AR 70, 78.) Plaintiff requested a de novo hearing before an Administrative Law Judge ("ALJ"), and one was held on July 29, 2011. (AR 29.) Following the hearing, the ALJ issued a decision finding that Plaintiff was not disabled. (AR 16-21.) The SSA Appeals Counsel denied Plaintiff's request for review of the ALJ decision, making that decision the final decision of the SSA Commissioner. (AR 1.)

IV. ALJ Hearing

A. Plaintiff

Plaintiff testified at a hearing before ALJ Maxine Benmour on July 29, 2011. Plaintiff was represented at the hearing by a non-attorney representative. (AR 16.) Plaintiff testified that she lived with her boyfriend and two children, who at the time of the hearing were sixteen and eighteen. (AR 47.) Plaintiff testified that she had a GED (AR 33.) She also testified that she worked as the educational director of a Boys and Girls Club from 1999 to 2000, where she planned programs in the library. (AR 33.) From 2001 to 2009, Plaintiff worked part time, 24 hours a week, as an urgent care technician at Santa Rosa Memorial Hospital. Although Plaintiff had a heart attack in April 2009, she testified that she went back to work as an urgent care technician until December 2009. (AR 34.) Plaintiff testified that she stopped working there because it was very physically demanding. (AR 35.) When examined by her representative the hearing, Plaintiff testified that she when she returned to work after her heart attack, her job duties included pushing patients, but she received assistance with this task because she could not physically push the gurney or lift patients. (AR 52.) She further testified that because others were doing her job for her, she "decided to leave with some pride." (AR 52.) She testified that she was able to chart patients upon returning from her heart attack. (AR 53.) She said she did not have any confusion charting patients, but because many of the patients were cardiac patients, she would get bad anxiety and "freak out." (AR 54.) The sounds of the alarms frightened Plaintiff because of her own experience, and "she would just get really scared, and [would] get chest pain, and arm pain, and just would come home really exhausted mentally because [she] couldn't deal with it." (AR 54.) Plaintiff also worked as a cashier at a casino smoke shop from January through March 2010. (AR 35.) She quit this job because she was having difficulty with mathematics and confusion and her boss was trying to get her to work more hours than physically she could handle. (AR 36.)

Plaintiff also testified about her physical condition since her April 2009 heart attack. (AR 36.) Plaintiff testified that her primary care doctor was Dr. Lowy and that he treated her before and after the heart attack. (AR 36.) She also testified that her cardiologist was Dr. Hopkins. (AR 36-37.) She first began seeking Dr. Hopkins when she had her heart attack in April 2009. (AR 37.) Plaintiff continued to see Dr. Hopkins because her "original cardiologist" retired, and she saw him every three months as of the date of the hearing. (AR 37.) Plaintiff testified that Dr. Hopkins listened to her heart and ran tests and told her that her heart "was not good but it was not bad." (AR 37.) Plaintiff testified that the results of a CT scan showed that she had a stroke after the heart attack, but that they doctors don't know when. (AR 59.)

Plaintiff testified that she got "really bad" leg cramps every time she walked and that these cramps started after her heart attack. (AR 38.) She testified that she could walk twenty to twenty-five feet before the cramps started, at which point she would have to stop and wait until the pain receded. (AR 39.) Plaintiff testified that Dr. Hopkins told her that her heart medications caused the leg pain, and she switched to Crestor. (AR 39.) Plaintiff testified that the change in medication did not make a difference in her leg pain. (AR 39-40.) When the ALJ asked Plaintiff if she had any other heart-related physical problems, she testified that she got shortness of breath every day, depending on her activities; for example, walking twenty feet could cause it. (AR 40.) When it occurred, Plaintiff would stop and take a deep breath to catch her breath. (AR 40.) Plaintiff testified that she had to stop multiple times walking from the parking lot to the grocery store. (AR 56.) She also testified that she would take a basket at the store to lean on it for support and to help her feet and give her a chance to rest. (AR 57.) Additionally, Plaintiff testified that she got fatigued all day every day. (AR 41.) Plaintiff testified that she took naps a couple of times a week for three hours. (AR 41.) Plaintiff testified that one of her medications - Carvedilol - caused her fatigue. (AR 41.) Plaintiff also testified that her pacemaker felt "weird when I pace": "Like if I'm beating in a certain rhythm and then I pace out of, I pace and it paces me at, at, you know, a different speed." (AR 42.)

Plaintiff also testified about rheumatoid arthritis in her hands and feet. (AR 42.) Plaintiff testified that she had arthritis since she was twenty-two and that it was diagnosed by Dr. Lowy. (AR 42.) According to Plaintiff, she had pain in her hands and feet every day (worse in the feet). (AR 43.) Plaintiff testified that her feet were very achy and that her hands were very stiff. (AR 43-44.) Plaintiff testified that the pain in her hands made it difficult to open cans and write. (AR 44.) Plaintiff testified that she was not taking any medication currently for the arthritis except eight over the counter Tylenol every day, but that at one time she took "Flextra, Celebrex, and Meloxicam." (AR 43.) Plaintiff testified that she stopped taking these medications because of her heart attack and the blood thinners she took. (AR 43.) Plaintiff testified that the Tylenol did not really help. (AR 44.)

Plaintiff further testified that she "sometimes" had trouble sitting for long periods of time because her legs would fall asleep. (AR 45.) When this happened, Plaintiff testified, she would have to walk because her legs were painful. (AR 45.) After walking for ten minutes, Plaintiff was usually able to sit down again, but she would have to sit on her couch and elevate her legs. (AR 45-46.) Plaintiff testified that she spent four or five hours a day elevating her legs. (AR 46.) In addition, Plaintiff testified that she had trouble sleeping at night two or three times a week because she would need to wake up and go to the restroom. (AR 46.) Although Plaintiff stated that when she returned to bed she would be awake for a while, she was getting eight hours of sleep on those nights. (AR 47.) On her good nights, Plaintiff testified that she received ten hours of sleep. (AR 60.)

In terms of everyday activities, Plaintiff testified that she was "okay" with personal care such as showing, dressing, and combing her hair. (AR 47.) She testified that she did not do housework, her children and boyfriend did, but that she would do the dishes. (AR 47.) Plaintiff testified that she could not scrub a bathtub or go up and down flights of stairs to do laundry. (AR 47.) Plaintiff clarified that she could not go up or down stairs without stopping because of shortness of breath and pain in her legs. (AR 48.) Plaintiff testified that she cooked occasionally. (AR 47.) Plaintiff testified that she did not buy gallons of milk because they were too heavy and instead bought quarts. (AR 55.) Plaintiff testified that on a normal day she would get up, assess how she felt, make coffee, sit on the couch for an hour, get more coffee, take a shower and groom herself, then sit on the couch for several hours drinking coffee and knitting. (AR 49.) She then would pick her kids up from school, come back and lie down, and have dinner. (AR 50.)

As to mental problems, Plaintiff testified that she had a lot of confusion at the smoke shop handling money; she could not distinguish between money that customers handed her and money that she was supposed to give them in change. (AR 37-38.) Plaintiff testified that she was also confused about decisions at the grocery store. Even if she had a list she would stop and get confused. (AR 38.) Plaintiff further testified that she would get confused by the choices at the grocery store and the pharmacy. (AR 56.) Plaintiff testified that frequently it felt like her brain "just stops" making decisions. (AR 56.) Plaintiff testified that her confusion was less on days where she had more sleep the night before. (AR 60.) Plaintiff testified that although Dr. Lowy recommended that she start antidepressant medications for posttraumatic stress, she declined to take the medications due to her other medications. (AR 61.)

B. Vocational Expert

Vocational expert Jeff Beeman testified telephonically at the hearing. (AR 62.) He testified that based on his review of Plaintiff's background, her prior jobs included cashier, nursery school attendant, office attendant, medical assistant, and emergency medical technician. (AR 63.) The ALJ described a hypothetical person based on someone with Plaintiff's age, education, work background, and limitations of: (a) lifting and carrying ten pounds occasionally and frequently; (b) sitting six hours in an eight hour day and standing two hours; (c) no climbing of ladders, ropes, or scaffolds; (d) occasional climbing of ramps and stairs; (e) frequent balancing, stopping, kneeling, crouching, and crawling; (f) no work around hazards; (g) limited to one to two step simple instruction jobs; and (h) occasional contact with the public. (AR 64.) The expert testified that such a person could not perform Plaintiff's past work. (AR 64.) The expert testified that there were other jobs in the regional and national economy, however, that such a person could perform. (AR 64.) One job was clerk, which was classified as a sedentary, unskilled position with a specific vocational preparation ("SVP") of two. The expert testified that there were 4, 000 jobs in that category in the Bay Area and 400, 000 nationally, but he would give those numbers at least a forty percent "erosion." (AR 64.) Another job was assembler, which was classified as a sedentary, unskilled position, with an SVP of two. (AR 65.) The ALJ then asked the expert about a hypothetical person as above, but with the additional restriction that the person would be absent from work more than three times a month. (AR 65.) The expert testified that such a person would not be employable. (AR 65.) Plaintiff's representative did not question the expert. (AR 65.)

V. ALJ Decision

On September 1, 2011, the ALJ concluded that Plaintiff was not disabled from April 6, 2009, through the date of the decision and issued a written decision. (AR 16-24.)

A. Steps One and Two of the Sequential Evaluation

Under the first step of the five-step sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 6, 2009. (AR 18.) The ALJ noted that Plaintiff had worked after the onset date of the alleged disability date but found that her work activity did not rise to the level of substantial gainful activity. As to step two, the ALJ found that Plaintiff had three severe impairments: heart disease, arthritis, and anxiety disorder. (AR 18.)

B. Step Three of the Sequential Evaluation

The ALJ found that Plaintiff did not have the severity of symptoms required either singly or in combination to meet or equal a medical listing. (AR 18.) The ALJ first found that the severity of Plaintiff's anxiety disorder did not meet or medically equal the criteria of listing 12.06, titled "Anxiety-related disorders." The ALJ determined that Plaintiff did not meet the Paragraph B criteria of that listing because she had only mild or moderate restrictions and difficulties instead of the required "marked" restrictions and difficulties and because she had no documented episodes of decompensation of extended duration. (AR 18-19.) The ALJ found that the Plaintiff did not satisfy the Paragraph C criteria of this listing either. The ALJ concluded, without analysis, that the evidence did not show that the severity of Plaintiff's symptoms met listing 4.06, titled "Symptomatic congenital heart disease." (AR 18.)

C.. Residual Functional Capacity

The ALJ found that Plaintiff had the RFC to perform less than the full range of sedentary work. Specifically, the ALJ determined that:

[C]laimant can lift and/or carry ten pounds occasionally, less than ten pound frequently; she can sit for six hours of an eight-hour workday; she can stand and/or walk for two hours out of an eight hour workday; she cannot climb ladders, ropes, and scaffolds and can occasionally climb ramps and stairs; she can frequently balance, stop, kneel, court, and crawl; she cannot work around hazards; she is limited to one-to-two step instruction jobs with occasional contact with the public.

(AR 19.)

The ALJ first found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (AR 21.) The ALJ noted that Plaintiff claimed disability based on rheumatoid arthritis, heart attack, mental lapses, and anxiety. (AR 20.) The ALJ further noted that Plaintiff claimed she could not work due to chronic pain from arthritis, chronic fatigue from cardiac conditions, and mental lapses. (AR 20.) She also complained of leg pain and becoming confused. (AR 20.) The ALJ also pointed out, however, that Plaintiff testified that her cardiac doctor told her that her heart is neither good nor bad. The ALJ contrasted Plaintiff's claimed symptoms with the fact that she: (1) only took over the counter Tylenol for pain; (2) did not take antidepressants because she was on many different medications; (3) regularly did dishes, cooked, showered, groomed herself, knitted/crocheted, took care of the dog, and picked her children up from school daily; (4) walked and drove a car when she went out, which was something she did every day and could do alone; (5) went grocery shopping four days a week; (6) could handle finances; (7) went out to dinner a few times a month; and (8) recently traveled to Aruba. (AR 20.)

The ALJ considered Plaintiff's boyfriend's statements about the scope of her limitations, but did not find them credible to the extent they was inconsistent with the ALJ's conclusion of the work Plaintiff could perform. (AR 20-21.) The ALJ reasoned that the boyfriend's statements were not made under oath, he was not a medical professional qualified to make a diagnosis, and, as someone who lived with Plaintiff, he had a financial interest in seeing that Plaintiff received benefits. (AR 21.) According to the ALJ, "most importantly, the clinical or diagnostic medical evidence does not support his statements." (AR 21.) The ALJ also concluded that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, "however, the claimant's statements, ..., concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." (AR 21.)

The ALJ then discussed the medical evidence. (AR 21.) He noted that Plaintiff was admitted into Santa Rosa Memorial Hospital on April 6, 2009, where she was diagnosed with "acute posterolateral myocardial infarction." (AR 21.) A chest x-ray revealed no evidence of acute cardiopulmonary disease process. (AR 21.) The ALJ noted that later that month, Plaintiff claimed she was doing well after the stent placement she received at the hospital, had no new problems, reported walking a mile or so a day, and generally felt well when she walked except for some shortness of breath. (AR 21.) The ALJ pointed out that in June 2009, Plaintiff did not report cardiac symptoms but did report anxiety about her condition and fear of a future heart attack. (AR 22.) Similarly, in December 2009, the ALJ noted, Plaintiff claimed she was doing well and there were no symptoms suggesting angina. (AR 21.) The ALJ also described doctor visits in February 16, 2012, and May 28, 2010, and June 7, 2011. (AR 21.) As to the May visit, the ALJ noted that Plaintiff reported no angina, trouble breaching, or palpitations and that she did not want to take a recommended antidepressant. (AR 21.) The ALJ noted that consultative examiner Dr. Zipperle diagnosed Plaintiff with a pain disorder, anxiety disorder, posttraumatic stress disorder, and dysthymic disorder.

The ALJ also described the weight he gave to certain evidence. The ALJ gave little weight to the RFC questionnaire filled out by Dr. Hopkins, Plaintiff's treating physician. (AR 22.) The ALJ stated:

The undersigned considered and has given little weight to the residual functional capacity questionnaire filled out by G. Hopkins M.D. on May 24, 2011 (Exhibit 13F). In this questionnaire, Dr. Hopkins assessed functional limitations that would preclude the claimant from working at the level of substantial gainful activity due to a diagnosis of leg pain with walking. Dr. Hopkins indicated that the claimant had angina, shortness of breath, and weakness, which, as discussed herein, is not supported by the medical record since claimant improved significantly following her heart attack. As this opinion is inconsistent with the record as a whole, it is given little weight.

(AR 22.)

The ALJ gave great weight to Dr. Zipperle, a psychologist who opined, based on an in-person examination, that the Plaintiff had the ability to perform simple and repetitive tasks. (AR 22.) The ALJ reasoned that the opinion was well supported by objective, medically acceptable clinical and laboratory diagnostic techniques, cited specific facts, and was largely consistent with the record as a whole. (AR 22.) It was, the ALJ noted, the only evidence from a psychiatrist or psychologist with regard to Plaintiff's anxiety disorder. (AR 22.) The ALJ also gave great weight to the State agency review physicians who found sedentary limitations and whose opinions took into account the fatigue from Plaintiff's heart condition. (AR 22.) Similarly, the ALJ gave great weight to the State Agency review physicians who found some mental limitations. (AR 22.)

The ALJ found in sum, "the claimant's activity level, objective clinical and diagnostic findings, and treatment records support finding the claimant not disabled." (AR 23.) The ALJ concluded that as stated in the RFC, Plaintiff had the capacity to do less than [the] full range of sedentary work. (AR 23.) According to the ALJ, "[t]his residual functional capacity takes into consideration the claimant's subjective complaints while finding the maximum limitations based on the objective evidence." (AR 23.)

D. Step Four of the Sequential Evaluation

In step four of the sequential evaluation, the ALJ found that Plaintiff was unable to perform her past relevant work as a cashier, nursery school attendant, office assistant, medical assistant, and emergency room medical technician. (AR 23.) The ALJ reasoned that these jobs required extensive public contact, were light or medium in exertional level, or were semi-skilled or skilled. (AR 23.)

E. Step Five of the Sequential Evaluation

At step five, the ALJ found that Plaintiff was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy." (AR 24.) The ALJ first found that Plaintiff's age placed her into the "younger individual" category under the Social Security regulations, and that she had at least a high school education and was able to communicate in English. (AR 23.) Considering Plaintiff's age, education, work experience, and RFC, the ALJ noted that if Plaintiff had the RFC to perform the full range of sedentary work, she would be "not disabled" under Medical-Vocational Rule 201.28. Because Plaintiff was not able to perform all or substantially all of the requirements of sedentary work, the ALJ relied on the testimony of the vocational expert, who testified that one with Plaintiff's limitations would be able to perform jobs such as a clerk or assembler. (AR 24.) The ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, and that she was therefore not disabled. (AR 24.)

VI. Legal Standard

A. Standard of Review

According to 42 U.S.C. § 405(g), the Court's jurisdiction is limited to determining whether the findings of fact in the ALJ's decision are supported by substantial evidence or were premised on legal error. 42 U.S.C. § 405(g); see Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1998). Substantial evidence is relevant evidence that a reasonable person might accept as adequate in support of a conclusion; it is "more than a mere scintilla but less than a preponderance." Id .; see also Richardson v. Perales , 402 U.S. 389, 401 (1971); Sandgathe v. Chater , 108 F.3d 978, 980 (9th Cir. 1997).

To determine whether the ALJ's decision is supported by substantial evidence, courts review the administrative record as a whole, weighing both the evidence that supports and detracts from the ALJ's decision. Sandgathe , 108 F.3d at 980 (quoting Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir.1995.) If the evidence is susceptible to more than one rational interpretation, the Court must uphold the ALJ's conclusion. Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005). The trier of fact, not the reviewing court, must resolve conflicting evidence, and if the evidence can support either outcome, the reviewing court may not substitute its judgment for the judgment of the ALJ. Id .; see also Matney v. Sullivan , 981 F.2d 1016, 1019 (9th Cir. 1992). An ALJ's decision will not be reversed for harmless error. Id .; see also Curry v. Sullivan , 925 F.2d 1127, 1131 (9th Cir. 1991).

B. Definition and Determination of Disability

In order to qualify for disability insurance benefits, Plaintiff must demonstrate an "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 which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The SSA utilizes a five-step sequential evaluation process in making a determination of disability. 20 C.F.R. § 404.1520; see Reddick , 157 F.3d 715, 721. If the SSA finds that the claimant is either disabled or not disabled at a step, then the SSA makes the determination and does not go on to the next step; if the determination cannot be made, then the SSA moves on to the next step. 20 C.F.R. § 404.1520.

First, the SSA looks to the claimant's work activity, if any; if the claimant is engaging in substantial gainful activity, he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(I). Second, the SSA considers the severity of impairments: claimant must show that she has a severe medically determinable physical or mental impairment (or combination of severe impairments) which has lasted or is expected to last twelve months or end in death. 20 C.F.R. § 404.1520(a)(4)(ii). Third, the SSA considers whether a claimant's impairments meet or equal a listing in 20 C.F.R. Part 404 Appendix 1. If so, the claimant is deemed disabled. 20 C.F.R. § 404.1520(a)(4)(iii). Fourth, the SSA considers the claimant's residual functional capacity ("RFC") and past relevant work; if the claimant can still engage in past relevant work, he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Fifth, the SSA considers whether, in light of the claimant's RFC and age, education, and work experience, the claimant is able to make an adjustment to another occupation in the national economy. 20 C.F.R. § 404.1520(a)(4)(v); 20 C.F.R. § 404.1560(c). The claimant has the initial burden of proving disability. Reddick , 157 F.3d at 721. It is only if a claimant establishes an inability to perform her prior work at step four does the burden shift to the SSA to show that the claimant can perform other substantial work that exists in the national economy at step five. Id.

C. Credibility

In determining whether a claimant's testimony regarding subjective pain or other symptoms is credible, the ALJ must engage in a two-step process. Lingenfelter v. Astrue , 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether the claimant has submitted objective medical evidence of the underlying impairment "which could reasonably be expected to produce the pain or other symptoms alleged." Id . (citing Bunnell v. Sullivan , 947 F.2d 341, 344 (9th Cir. 1991)). Next, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of his or her symptoms by offering specific, clear and convincing reasons for doing so. Id. at 1036 (citing Smolen v. Chater , 80 F.3d 1273, 1281 (9th Cir. 1996)). If the ALJ's credibility finding is supported by substantial evidence in the record, the Court may not second-guess the ALJ's finding. Thomas v. Barnhart , 278 F.3d 947, 959 (9th Cir. 2002); see also Morgan v. Comm'r Soc. Sec. Admin. , 169 F.3d 595, 600 (9th Cir.1999).

D. Reversal or Remand

If a court finds that the ALJ erred or that his findings are not supported by substantial evidence, the court must decide whether to award benefits or remand the case for further proceedings. Evidence should be credited in favor of the claimant and an immediate award of benefits directed if the following three factors are met: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman v. Apfel , 211 F.3d 1172, 1178 (9th Cir. 2000) (citing Smolen, 80 F.2d at 1292). The decision of the district court whether to remand for further development of the administrative record or to direct an immediate award of benefits is a fact-bound determination subject only to review for abuse of discretion. Id. at 1777; see also Lewin v. Schweiker , 654 F.2d 631, 635 (9th Cir. 1981) (holding that a remand is necessary where the ALJ failed to make adequate findings but that a reversal is appropriate where the record thoroughly developed and a rehearing would simply delay receipt of benefits).

VII. Discussion

Plaintiff argues that the Court should reverse the Commissioner and award benefits, or, alternatively, remand for further proceedings because the ALJ did not give specific and legitimate reasons for giving little weight to the opinion of Dr. Hopkins. Plaintiff also argues that the ALJ did not give specific and legitimate reasons for finding that Plaintiff's testimony about the intensity, persistence, and limiting effects of her symptoms was not credible. Further, Plaintiff asserts that the ALJ erred in finding that Plaintiff could perform the job of clerk given that the ALJ's RFC limited Plaintiff to one-to-two-step instruction jobs.

A. Dr. Hopkins' Opinion

The ALJ gave little weight to the residual functional capacity questionnaire filled out by treating physician Dr. Hopkins on May 24, 2011. (AR 22.) Plaintiff argues that the ALJ failed to give specific and legitimate reasons for giving little weight to this opinion and giving great weight to the opinions of non-examining consultative physicians such as Dr. Bianchi. According to Plaintiff, the ALJ rejected the findings of Dr. Hopkins for the sole reason that "his opinions are inconsistent with the record as a whole, " but the ALJ did not specify exactly what evidence was inconsistent with Dr. Hopkins' opinion. Plaintiff also argues that Dr. Hopkins' treating notes substantiate his findings and that the ALJ cannot rely solely on the opinions of reviewing physician Dr. Bianchi as substantial evidence to reject Dr. Hopkins' opinions.

Defendant counters by arguing that although Ninth Circuit precedent states otherwise, under SSA regulations, an ALJ may reject a treating physician's opinion so long as she gives "good reasons" that are supported by substantial evidence. Defendant argues that the ALJ properly considered Dr. Hopkins' RFC assessment and the ALJ gave good reasons why she could not give full weight to Dr. Hopkins' assessment, including: (1) his diagnosis of "leg pain with walking" was not a cardiac diagnosis; (2) his opinions were not supported by the medical records; (3) his opinions were not supported by clinical findings; and (3) the record showed that Plaintiff improved significantly after her heart attack and there is a one-year long duration requirement for disability benefits. Defendant also argues that the ALJ did take into account Plaintiff's leg pain by finding Plaintiff able to perform sedentary work.

In reply, Plaintiff argues that she set forth the correct standard for assessing treating physician opinions. Plaintiff further asserts that the ALJ based his RFC on Dr. Bianchi's opinions, which should have been given the least weight as Dr. Bianchi did not examine, much less treat, Plaintiff and used a check-the-box form. Additionally, Plaintiff argues that the ALJ's description of Dr. Hopkins' treating notes does not suffice as setting forth specific reasons for his decision. As to the "good reasons" Defendant raised, Plaintiff argues that these reasons are post hoc reasons that the Court should ignore. In the event they are not post hoc, Plaintiff argues that Dr. Hopkins did not focus on leg pain in making his RFC assessment but also relied on Plaintiff's myocardial infarction. Plaintiff further argues that Dr. Hopkins' findings were based on objective evidence, such as his diagnosis of rheumatoid arthritis and various procedures he performed. Plaintiff argues that if the ALJ had doubts, she should have requested supplementary testing and examination.

Defendant's argument that she need only show "good reasons that are supported by substantial evidence" to reject a treating physician's opinion is foreclosed by Ninth Circuit case law, which provides that to reject the uncontradicted opinion of a treating physician, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Ryan v. Comm'r of Soc. Sec. , 528 F.3d 1194, 1198 (9th Cir. 2008). If the treating physician's opinion is contradicted by another doctor's opinion, the ALJ may only reject the former by providing specific and legitimate reasons that are supported by substantial evidence. Id . Further, "the opinion of an examining physician is entitled to greater weight than the opinion of a non-examining physician. Id . Here, Dr. Hopkins' RFC assessment was contradicted by that of Dr. Bianchi, so the ALJ was required to give specific and legitimate reasons that are supported by substantial evidence for rejecting Dr. Hopkins' RFC analysis.

The ALJ stated that she gave little weight to Dr. Hopkins' RFC assessment because the symptoms he relied on were not supported by the medical record "since the claimant improved significantly following her heart attack" and "[a]s this opinion is inconsistent with the record as a whole...." (AR 22.) While Defendant lists additional "good reasons" not given by the ALJ for rejecting Dr. Hopkins' opinion (that he is not qualified to diagnosis leg pain, that his opinion was not supported by clinical findings, and that there is a one year duration requirement for disability benefits), the Court cannot rely on these post hoc arguments. Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003) ("It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss."); Bray v. Comm'r of Soc. Sec. , 554 F.3d 1219, 1225-26 (9th Cir. 2009) ("Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator must have been thinking.").

The question, then, is whether the ALJ's conclusion that Dr. Hopkins' opinion that was not supported by the medical record as a whole was based on specific and legitimate reasons supported by substantial evidence. The ALJ did not explain how Dr. Hopkins' findings regarding these symptoms were inconsistent with the medical record as a whole. Instead, the ALJ described the medical record, and appeared to emphasize facts that were inconsistent with Dr. Hopkins' findings. For instance, the ALJ pointed out the multiple times that Dr. Hopkins and other physicians noted that Plaintiff did not exhibit symptoms of angina or chest pain. (AR 280, 342, 336, 337, 339, 341, 375, 503, 514, 520, 521.) There is also evidence that Plaintiff did not have breathing problems after her heart attack. (AR 330, 334, 341, 375, 509.) Further, there is ample evidence that Plaintiff was able to walk following her heart attack.

While a somewhat close question, the ALJ's citation of selected portions of the medical record that appear inconsistent with Dr. Hopkins' RFC and boilerplate statements that the RFC was not supported by the record "as discussed herein" do not to rise to the level of "specific and legitimate reasons." Although the ALJ focused on the lack of evidence of angina, Dr. Hopkins actually indicated "angina-equivalent" pain, and the ALJ did not discuss in detail the evidence that Plaintiff complained of chest pain in September 2009, complained of fatigue in December 2009, and complained of breathlessness, leg weakness, and burning chest pain in November 2010. (AR 278, 334, 336, 337, 339-40, 344, 514.) The relevance of this chest pain is unclear, as it appears from the physicians' notes that it occurred in September 2009 and November 2010, many months after Plaintiff's heart attack, and Dr. Coombs did not believe it was angina-related. (AR 334-336, 514.) The ALJ should nevertheless have addressed it in her decision. Although the ALJ is not required to write "Dr. Hopkins' opinion is inconsistent with the medical record because X, Y, Z, " and the Court can draw inferences from the ALJ's opinion. Magallanes v. Brown , 881 F.2d 747, 755 (9th Cir. 1989), to reject the only treating physician RFC opinion in favor of the opinions of non-examining consultative physicians requires more than what the ALJ provided. The Court will not, however, reverse and award benefits because, among other things, Dr. Hopkins' RFC assessment is itself a conclusory, check-the-box form. Instead, the Court remands this matter so that the ALJ can more specifically explain her decision to discount Dr. Hopkins' RFC assessment.

B. Plaintiff's Symptom Testimony

Plaintiff also argues that the ALJ did not provide specific, clear, and convincing reasons for rejecting her testimony about her pain and the severity of her symptoms because the ALJ stated only that Plaintiff's "statements... concerning the intensity, persistence, and limiting effects of these symptoms are not credible to the extent that they are inconsistent with the above residual functional capacity assessment." (AR 21.) Defendant argues that the ALJ adequately articulated her credibility findings by juxtaposing Plaintiff's allegations of severe and debilitating symptoms with evidence contradicting the severity of Plaintiff's symptoms. Namely, the ALJ pointed out that Plaintiff only took over-the-counter medications for pain, did not take antidepressant medications despite them being recommended, and performed extensive daily activities including doing dishes, cooking, knitting for hours, picking up her children from school, making dinner, taking care of the dog, walking or driving every day, and so forth. According to Defendant, these activities weigh against Plaintiff's credibility. Plaintiff in reply argues that Defendant presents post hoc reasons for the ALJ's credibility determination. Plaintiff asserts that the fact that Plaintiff is able to engage in daily activities is not determinative of disability.

While also a somewhat close question, the ALJ did not offer sufficient specific, clear, and convincing reasons for finding Plaintiff's testimony about the intensity, persistence, and limiting effects of her symptoms less than fully credible. The ALJ stated that Plaintiff's statements were not credible to the extent that they were inconsistent with the ALJ's RFC. (AR 21.) That statement alone is insufficient. The ALJ does, however, contrast Plaintiff's testimony about her limitations with substantial evidence from the record that Plaintiff engaged in a number of daily activities inconsistent with her testimony that she has chronic pain from rheumatoid arthritis and chronic fatigue due to her cardiac conditions. Defendant correctly points out that an ALJ is "permitted to consider daily living activities in his credibility analysis;" "if a claimant engaged in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may discredit the claimant's allegations upon making specific findings relating to those activities." Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005). Here, for instance, Plaintiff's testimony that she knits/crochets for a couple of hours every day is arguably inconsistent with her testimony that she has pain in her hands from arthritis. Moreover, as the ALJ pointed out, after her heart attack Plaintiff regularly picked her children up from school, went shopping up to four times a week, went out to eat at restaurants several times a month, and went on vacation in Aruba. (AR 20, 50, 178, 519.) Although the ALJ's explanation for discounting Plaintiff's testimony is insufficient, in light of this evidence, the Court remands this issue to the ALJ solely so that she can explain her rationale in more detail. Orn v. Astrue , 495 F.3d 625, 649 (9th Cir. 2007) ("The ALJ must make specific findings relating to the daily activities' and their transferability to conclude that claimant's daily activities warrant an adverse credibility determination.")

C. Step Five Error

Plaintiff briefly argues that the ALJ erred when she found that Plaintiff was capable of performing the job of clerk. According to Plaintiff, the job of clerk has level three reasoning under the Dictionary of Occupational Titles ("DOT"), but the ALJ's RFC limited Plaintiff to one-to-two step instruction jobs. Plaintiff points out that there is a split among district courts "as to whether a limitation to simple tasks with only one- or two- step instructions is consistent with jobs described in the DOT requiring GED reasoning higher than Level 1." (Pl.'s Mot. at 9.) Plaintiff further notes that a court in this District has found that there was a conflict "when an ALJ determines that a person limited to simple, repetitive tasks can perform a job with a reasoning development level of 3." Adams v. Astrue, Case No. 10-2008 DMR, 2011 U.S. Dist. LEXIS 51662 (N.D. Cal. May 13, 2011).

Although the vocational expert stated that a hypothetical person with the limitations of Plaintiff's RFC could perform the job of clerk, the DOT number he cited corresponds to "pari-mutuel-ticket checker." DOT 219.587-010. This falls under the chapter heading of "Clerical and Sales Occupations." This job has a GED reasoning level three. Level three reasoning requires that a claimant "apply commonsense understanding to carry out instructions furnished in written, oral, or diagrammatic form" and [d]eal with problems involving several concrete variables in or from standardized situations." Id .; DOT Appendix C. In contrast, level one reasoning requires that one "[a]pply commonsense understanding to carry out simple one-or two-step instructions" and [d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." DOT Appendix C. Because level one reasoning specifically includes one-to-two step instruction jobs, and the "clerk" job referred to by the ALJ and vocational expert requires level three reasoning, there may be a conflict between the vocational expert's testimony that Plaintiff could perform this job and the RFC, which limited Plaintiff to one-to-two step instruction jobs. Grigsby v. Astrue, Case No. 08-1413 , 2010 WL 309013, at *3 (C.D. Cal. Jan. 22, 2010); cf. Adams, 2011 U.S. Dist. LEXIS 51662 at *17 (noting an apparent conflict when the expert testified that a person who could perform "simple, repetitive tasks" could perform a job with level three reasoning); but see Lee v. Astrue, Case No. 08-1505, 2010 WL 653980, at *10-*11 (E.D. Cal. Feb. 19, 2010) (noting that a RFC limiting plaintiff to "simple 1 and 2 step directions" did not limit plaintiff to level one jobs because "as pointed out by the Commissioner, courts within the Ninth Circuit have consistently held that a limitation regarding simple or routine instructions encompasses a reasoning level of one and two.") (emphasis in original). Because the Court is remanding this case on other grounds, the ALJ should address this issue on remand as well.

VIII. Conclusion

The Court grants in part Plaintiff's motion for summary judgment and denies Defendant's motion for summary judgment. The Court remands this case to the ALJ either to award benefits or: (1) further explain the basis for giving little weight to Dr. Hopkins' RFC assessment; (2) further explain the credibility determination regarding Plaintiff's symptom testimony; and (3) determine whether the vocational expert's testimony was consistent with the DOT.

IT IS SO ORDERED.


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