Fortunel v. Commissioner of Social Security

          ORDER

          KENDALL J. NEWMAN MAGISTRATE JUDGE

         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Disability Income Benefits (“DIB”) under Title II of the Social Security Act (“Act”).^[1] In her motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from February 7, 2011, through the date of the final administrative decision. (ECF No. 16.) The Commissioner filed an opposition to plaintiff’s motion and a cross-motion for summary judgment, to which plaintiff replied. (ECF Nos. 20, 21.)

         For the reasons discussed below, plaintiff’s motion for summary judgment is GRANTED IN PART, the Commissioner’s cross-motion for summary judgment is DENIED, and this matter is remanded for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         I. BACKGROUND

         Plaintiff was born on May 8, 1963, completed the eleventh grade, and speaks English. (Administrative Transcript (“AT”) 230, 252, 254.)^[2] She has worked as a customer service associate and as a department manager at Lowes hardware store. (AT 254.) On May 21, 2012, plaintiff applied for DIB alleging that her disability began on February 7, 2011, at the age of 47. (AT 64, 80, 177-85.) Plaintiff alleged that she was disabled primarily due to pain and damage to the tendons in her shoulders, wrists, hands, middle finger, knees, and ankles, as well as depression, anxiety and high cholesterol. (AT 64, 253.) After plaintiff’s applications were denied initially and upon reconsideration, plaintiff requested a hearing before an administrative law judge (“ALJ”), which took place on February 25, 2014, and at which plaintiff, represented by an attorney, and a vocational expert testified. (AT 37-63.) The ALJ issued a decision dated April II, 2014, determining that plaintiff had not been under a disability, as defined in the Act, between February 7, 2011, and the date of that decision. (AT 10-30.) The ALJ’s decision became the final decision of the Commissioner when the Appeals Council denied plaintiff’s request for review on April 2, 2015. (AT 1-7.) Plaintiff then filed this action in federal district court on June 3, 2015, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

         II. ISSUES PRESENTED

         On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly failed to consider the opinions of treating physician Dr. Hu when determining plaintiff’s residual functional capacity (“RFC”); (2) whether the ALJ improperly considered and weighed critical parts of the opinions of treating physician Dr. Aquino and examining physician Dr. Bathgate when determining plaintiff’s RFC; (3) whether the ALJ improperly discounted the testimony of plaintiff as to her own symptoms and functional limitations; and (4) whether the Appeals Council erred in considering the additional MRI evidence plaintiff submitted in connection with her administrative appeal of the ALJ’s decision.

         III. LEGAL STANDARD

         The court reviews the Commissioner’s decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). However, the court may only consider the reasons given by the ALJ for his decision and “may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630.

         IV. DISCUSSION

         A. Summary of the ALJ’s Findings

         The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard five-step analytical framework.^[3] As an initial matter, the ALJ found that plaintiff remained insured for purposes of DIB through December 31, 2016. (AT 15.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since February 7, 2011, the alleged onset date. (Id.) At step two, the ALJ found that plaintiff had the following severe impairments:

[H]istory of degenerative joint disease of the left shoulder with surgical repair, chronic right shoulder pain/strain, degenerative joint disease of the left knee, right patellofemoral syndrome, cervical degenerative disc disease status post fusion, mild degenerative disc disease of the lumbar spine, adjustment disorder with mixed anxiety and chronic depression, (20 CFR 404.1520(c)).

(Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 16-18.)

         Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform simple, routine, and repetitive tasks at the light exertional level as defined in 20 CFR 404.1567(b) except she can never climb ladders, ropes, or scaffolding and she cannot work with or near heights, hazards, or moving machinery. The claimant can occasionally reach overhead with both arms and she can tolerate no more than occasional contact with the public.

(AT 15.)

         At step four, the ALJ determined that plaintiff was not capable of performing any past relevant work. (AT 24.) At step five, the ALJ found that in light of plaintiff’s age, education, work experience, and residual functional capacity, that there were jobs that exist in significant numbers in the national economy that plaintiff could perform. (Id.) Thus, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from February 7, 2011, through the date of the ALJ’s decision. (AT 25.)

         B. Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

         1. The ALJ Committed Prejudicial Error in Failing to Properly Consider and Weigh the Treating Opinions of Dr. Hu.

         First, plaintiff contends that the ALJ committed prejudicial error by not properly considering and weighing Dr. Hu’s treating opinions when determining plaintiff’s RFC. The court agrees.

         Title 20 C.F.R. §§ 404.1527(c) mandates that the Commissioner consider every medical source opinion by promising claimants that the administration “will evaluate every medical opinion we receive.” Id. This regulation defines medical opinions as “statements from physicians and psychologists or other acceptable medical sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and prognosis, what ...