MEMORANDUM OPINION
G. UNTHANK, Senior District Judge
INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative denial of her application for Disability Insurance Benefits (DIB). The appeal is currently before the court on cross-motions for summary judgment.
APPLICABLE LAW
The Commissioner is required to follow a five-step sequential evaluation process in assessing whether a claimant is disabled.
1. Is the claimant currently engaged in substantial gainful activity? If so, the claimant is not disabled and the claim is denied.
2. If the claimant is not currently engaged in substantial gainful activity, does he have any "severe" impairment or combination of impairments — i.e., any impairments significantly limiting his physical or mental ability to do basic work activities? If not, a finding of non-disability is made and the claim is denied.
3. The third step requires the Commissioner to determine whether the claimant's severe impairment(s) or combination of impairments meets or equals in severity an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listing of
Impairments). If so, disability is conclusively presumed and benefits are awarded.
4. At the fourth step the Commissioner must determine whether the claimant retains the residual functional capacity to perform the physical and mental demands of his past relevant work. If so, the claimant is not disabled and the claim is denied. If the plaintiff carries this burden, a prima facie case of disability is established.
5. If the plaintiff has carried his burden of proof through the first four steps, at the fifth step the burden shifts to the Commissioner to show that the claimant can perform any other substantial gainful activity which exists in the national economy, considering his residual functional capacity, age, education, and past work experience.
20 C.F.R. §§ 404.1520; 416.920;
Garner v. Heckler,
745 F.2d 383, 387 (6th Cir. 1984);
Walters v. Commissioner of Social Security,
127 F.3d 525, 531 (6th Cir. 1997).
Review of the Commissioner's decision is limited in scope to determining whether the findings of fact made are supported by substantial evidence. Jones v. Secretary of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir. 1991). This "substantial evidence" is "such evidence as a reasonable mind shall accept as adequate to support a conclusion;" it is based on the record as a whole and must take into account whatever in the record fairly detracts from its weight. Garner, 745 F.2d at 387.
One of the issues with the administrative decision may be the fact that the Commissioner has improperly failed to accord greater weight to a treating physician than to a doctor to whom the plaintiff was sent for the purpose of gathering information against his disability claim. Bowie v. Secretary, 679 F.2d 654, 656 (6th Cir. 1982). This presumes, of course, that the treating physician's opinion is based on objective medical findings. Cf. Houston v. Secretary of Health and Human Services, 736 F.2d 365, 367 (6th Cir. 1984); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984). Opinions of disability from a treating physician are binding on the trier of fact only if they are not contradicted by substantial evidence to the contrary. Hardaway v. Secretary, 823 F.2d 922 (6th Cir. 1987). These have long been well-settled principles within the Circuit. Jones, 945 F.2d at 1370.
Another point to keep in mind is the standard by which the Commissioner may assess allegations of pain. Consideration should be given to all the plaintiff's symptoms including pain, and the extent to which signs and findings confirm these symptoms. 20 C.F.R. § 404.1529 (1991). However, in evaluating a claimant's allegations of disabling pain:
First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain.
Duncan v. Secretary of Health and Human Services,
801 F.2d 847, 853 (6th Cir. 1986).
Another issue concerns the effect of proof that an impairment may be remedied by treatment. The Sixth Circuit has held that such an impairment will not serve as a basis for the ultimate finding of disability. Harris v. Secretary of Health and Human Services, 756 F.2d 431, 436 n. 2 (6th Cir. 1984). However, the same result does not follow if the record is devoid of any evidence that the plaintiff would have regained his residual capacity for work if he had followed his doctor's instructions to do something or if the instructions were merely recommendations.Id. Accord, Johnson v. Secretary of Health and Human Services, 794 F.2d 1106, 1113 (6th Cir. 1986).
In reviewing the record, the court must work with the medical evidence before it, despite the plaintiff's claims that he was unable to afford extensive medical work-ups. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor to be considered against the plaintiff, Hale v. Secretary of Health and Human Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way to afford or obtain treatment to remedy his condition, McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990).
Additional information concerning the specific steps in the test is in order.
Step four refers to the ability to return to one's past relevant category of work. Studaway v. Secretary, 815 F.2d 1074, 1076 (6th Cir. 1987). The plaintiff is said to make out a prima facie case by proving that he or she is unable to return to work. Cf. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th Cir. 1983). However, both 20 C.F.R. § 416.965(a) and 20 C.F.R. § 404.1563 provide that an individual with only off-and-on work experience is considered to have had no work experience at all. Thus, jobs held for only a brief tenure may not form the basis of the Commissioner's decision that the plaintiff has not made out its case. Id. at 1053.
Once the case is made, however, if the Commissioner has failed to properly prove that there is work in the national economy which the plaintiff can perform, then an award of benefits may, under certain circumstances, be had. E.g., Faucher v. Secretary of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). One of the ways for the Commissioner to perform this task is through the use of the medical vocational guidelines which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2 and analyze factors such as residual functional capacity, age, education and work experience.
One of the residual functional capacity levels used in the guidelines, called "light" level work, involves lifting no more than twenty pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds; a job is listed in this category if it encompasses a great deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls; by definition, a person capable of this level of activity must have the ability to do substantially all these activities. 20 C.F.R. § 404.1567(b). "Sedentary work" is defined as having the capacity to lift no more than ten pounds at a time and occasionally lift or carry small articles and an occasional amount of walking and standing. 20 C.F.R. § 404.1567(a), 416.967(a).
However, when a claimant suffers from an impairment "that significantly diminishes his capacity to work, but does not manifest itself as a limitation on strength, for example, where a claimant suffers from a mental illness . . . manipulative restrictions . . . or heightened sensitivity to environmental contaminants . . . rote application of the grid [guidelines] is inappropriate . . ." Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990). If this non-exertional impairment is significant, the Commissioner may still use the rules as a framework for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e); however, merely using the term "framework" in the text of the decision is insufficient, if a fair reading of the record reveals that the agency relied entirely on the grid. Ibid. In such cases, the agency may be required to consult a vocational specialist. Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial evidence to support the Commissioner's decision may be produced through reliance on this expert testimony only if the hypothetical question given to the expert accurately portrays the plaintiff's physical and mental impairments. Varley v. Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
The plaintiff, Deborah L. Clem, was found by an Administrative Law Judge (ALJ) to have "severe" impairments consisting of cervical degenerative joint disease and degenerative disc disease, fibromyalgia, hypertension, reflux, ulcers, a hiatal hernia, and an anxiety disorder. (Tr. 15). Nevertheless, based in part on the testimony of a Vocational Expert (VE), the ALJ determined that Mrs. Clem retained the residual functional capacity to perform her past relevant work as a medical laboratory technician, and therefore was not entitled to benefits. (Tr. 19-21). The Appeals Council declined to review, and this action followed.
At the administrative hearing, the ALJ asked the VE a series of hypothetical questions, one of which reflected his ultimate conclusions that the plaintiff could perform medium level exertion and also had the following non-exertional restrictions. She: (1) could not crawl or climb ladders, ropes, or scaffolds; and (2) could occasionally bend, stoop, crouch, and climb ramps or stairs. (Tr. 779). The VE responded that such a person could perform Mrs. Clem's past relevant work as a medical laboratory technician, even if she were restricted to light level exertion. (Tr. 779-80).
On appeal, this court must determine whether the administrative decision is supported by substantial evidence.
Mrs. Clem alleged disability beginning in 2003 (Tr. 768), but the ALJ noted that a previous administrative denial had occurred on October 21, 2005 (Tr. 36-42), and declined to reopen the decision. Therefore, the plaintiff amended her onset date to October 22, 2005. (Tr. 766).
Mrs. Clem testified that she had stopped working in 2003 after an injury at the hospital where she worked. (Tr. 768). She described her problems as degenerative arthritis in her spine at all levels, and noted that she had been diagnosed with thoracic outlet syndrome as well as fibromyalgia, which had been diagnosed in 1993 or 1994, well before she had stopped working. (Tr. 771-2). She had daily headaches, trouble looking up and down and side to side, numbness in her feet, legs, and hands and needed to keep changing positions frequently during the day. (Tr. 775-7). The medication she was taking had side effects including dry mouth, not being able to think clearly, and drowsiness. (Tr. 773, 777). The pain made her both grumpy and depressed, causing several crying spells per week, and her treating psychiatrist had placed her on medication to help her sleep. (Tr. 775-6).
The plaintiff raises two issues regarding her physical restrictions on appeal.
The plaintiff does not raise any issue regarding mental impairments.
The plaintiff's first argument is that the ALJ failed to give controlling weight to the opinions of her treating family physician, Dr. John Litton. Dr. Litton provided a residual functional capacity assessment on three occasions. On August 23, 2005, slightly before the prior administrative decision, Dr. Litton opined that the plaintiff could lift only 10 pounds occasionally and 5 pounds frequently because of chronic pain and upper extremity numbness. Standing and walking was limited to two hours in an eight-hour day (no more than 30 minutes without interruption), as was sitting. Mrs. Clem could "never" climb, stoop, kneel, balance, crouch, or crawl, had restrictions on reaching, pushing, pulling and working around moving machinery, temperature extremes, noise, humidity, and vibration. (Tr. 169-70).
On June 25, 2007, Dr. Litton found the same lifting limitations, but indicated that Mrs. Clem could stand or walk four hours in an eight-hour day (no more than 30 minutes without interruption), sit eight hours per day (no more than 30 minutes without interruption), never climb, stoop, crouch, or crawl, and could occasionally kneel and balance. She also had restrictions on pushing and pulling, and in working at heights, around moving machinery, temperature extremes, chemicals, dust, noise, fumes, humidity, and vibration. (Tr. 171-2).
Finally, on February 29, 2008, Dr. Litton reported that Mrs. Clem could lift 20 pounds rarely, 10 pounds occasionally, and less than 10 pounds frequently. He appeared to indicate that she could both sit and stand 15 minutes and more than 2 hours. He went on to state that the plaintiff could "rarely" hold her head in a static position, could occasionally look down, turn her head to the right and left, and look up, could never climb ladders or stairs, could "rarely" crouch and squat, could occasionally twist and stoop, and could reach overhead and use her hands for grasping about 50 percent of the time. He stated that she was not a malingerer, that her impairments were reasonably consistent with her symptoms and functional limitations, and he would expect her to be absent more than four days per month. (Tr. 145-8).
The plaintiff concedes in her brief that the physician's opinion is not clear on this point. Brief in Support of Plaintiff's Motion for Summary Judgment, Docket Entry No. 8, p. 8.
The ALJ declined to accept Dr. Litton's "numerous" opinions, citing several reasons. He stated that they were inconsistent with the physician's "rather benign" treatment notes, which did not contain longitudinally significant clinical findings to support the severity of the restrictions. (Tr. 20). He noted that the June, 2007 opinion reflected a significant improvement in the plaintiff's ability to sit, stand, and walk compared to the August, 2005 opinion but eight months later the functional limitations were far more severe even though the same document stated that the plaintiff had a "good" response to treatment and the office notes in the interim were "essentially bereft of any significant clinical findings." (Tr. 20-1). Finally, he drew a negative inference from the plaintiff's testimony that she had been with Dr. Litton when one of the forms was filled out and admitted that he had asked her how long she could sit and stand. (Tr. 773-4).
The ALJ stated that he found the plaintiff's condition had deteriorated somewhat since the prior administrative decision, which had limited the plaintiff to "medium" level work with occasional climbing, stooping, and crawling. (Tr. 19, 42). As such, his restrictions were slightly more limiting than found by state agency reviewing sources who had reviewed a portion of the record. (Tr. 412-18, 462-8).
One of the state agency employees was identified only as Sheena R. Meade, with no indication of any medical qualifications. (Tr. 468). The other reviewer was Timothy Gregg, M.D. (Tr. 418).
The only other medical source to offer an opinion was Dr. Kevin J. Croce, who conducted a consultative physical evaluation on April 22, 2006. He found that the plaintiff's back had no scoliosis or spasm, although there was some tenderness of the lower lumbar spine. (Tr. 471). Mrs. Clem was able to perform gait and station testing, walk heel to toe and perform a tandem walk without difficulty but had great difficulty with a knee squat and needed help standing back up. She had normal reflexes but decreased range of motion of the neck and left shoulder. (Id.). Dr. Croce concluded that it appeared the plaintiff had the ability to perform activities involving sitting, standing, moving about, lifting and carrying light objects, handling objects, hearing, seeing, speaking, and traveling. (Id.). She might have difficulty with acts involving repetitive or constant knee squatting, crawling, and carrying heavy objects, or activities that would involve or require constant neck flexion or rotation throughout the course of the day. (Tr. 472). Lifting heavy objects with the left hand might pose some difficulty but she had normal gross manipulation and grip, and lifting light objects on a consistent basis throughout the work day should, he felt, be no problem. (Id.).
The plaintiff asserts that the ALJ erroneously concluded that Dr. Litton's opinions were not entitled to controlling weight, and, in the alternative, that it was error for the ALJ not to even mention Dr. Croce's proposed restrictions and specifically to fail to give a rationale for declining to include his restriction on activities involving constant neck flexion or rotation throughout the day, which was not mentioned by the non-examining reviewers.
The Commissioner's regulations require that the opinions of a treating physician are entitled to controlling weight if they are well supported by medically accepted clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2).
The court concludes that the ALJ gave "good reasons" for declining to accept the opinion of the treating source. Wilson v. Commissioner of Social Security, 378 F.3d 541 (6th Cir. 2004). The physician's office notes do reflect pain and tenderness on palpation and that the range of motion was decreased to an unspecified degree but they do not note any deficiencies in sensation, reflexes, or strength and on occasion refer to the lower back pain as intermittent and having been present more than 15 years, and also refer to part of her back pain as being the result of poor conditioning. (E.g., Tr. 365, 376, 378). As the ALJ noted, it is difficult to explain the variations between the opinions offered by Dr. Litton based on any objective findings in his office notes. This also detracts from their credibility. In addition, there is at least a suggestion in the plaintiff's testimony that she may have supplied the physician's answers to some of the questions on at least one of the forms. Taken as a whole, substantial evidence supports the ALJ's conclusion that Dr. Litton's opinions were not entitled to controlling weight.
Regarding Dr. Croce, while it is true that the ALJ did not specifically discuss his restrictions, there is no indication that these would have prevented the claimant from performing her past relevant work as a medical laboratory technician. Specifically, neither the plaintiff's work history report (Tr. 118-19) or the Dictionary of Occupational Titles at 078.381-014 indicate that the job would involve constant neck flexion or rotation throughout the course of the day. It was the plaintiff's burden at Step Four of the sequential evaluation to show that she could not return to her past relevant work, and she failed to do so. Consequently, substantial evidence supports the ALJ's decision.
The decision will be affirmed.
This the 22nd day of September, 2010.
et, numbness, and an inability to ambulate as effectively for the past two weeks as she previously had been, and the physician further noted, without explanation, "diminished strength" in lower extremities and "unable to ambulate without cane"
(A.R. 375); and in December 2007, a consultative orthopedist (Dr. Conaty) observed that
plaintiff's "[w]eight-bearing gait, walking on toes, and walking on heels are done with difficulty" (A.R. 439).
It is unclear if this latter observation was a finding by the physician or was based on plaintiff's self-report. There is no evidence of any clinical testing and findings attendant to this observation. (A.R. 375.)
Dr. Conaty, however, also found that there was no evidence of any instability in plaintiff's joints, she had a normal range of motion and muscle strength in her lower extremities, she did not use an ambulatory device to walk, and she had the capacity to stand and walk for six hours in an eight-hour day. (A.R. 438-40.) Another consultative physician (Dr. Clements), who examined plaintiff in April 2006, also found that there is no evidence of instability in plaintiff's knees, her range of motion in her lower extremities was normal, and she could stand and walk for six hours in an eight-hour day. (A.R. 432-34.) Dr. Clements noted that plaintiff had difficulty standing on her heels and toes but stated that "some of the difficulties with balance" are related to plaintiff's visual deficit in her right eye. (A.R. 433.) Similarly, another consultative physician (Dr. Lin), who examined plaintiff in November 2007, noted that plaintiff: denied using an assistive device on a regular basis; did not need an assistive device to ambulate across the room and had a gait within normal limits; had slight difficulty standing on toes and heels and performing a tandem gait; and could stand or walk for six hours in an eight-hour day. (A.R. 455.) In December 2002, plaintiff told an examining physician (Dr. Klein) that she does not use a cane, and he found no instability in her knees and that she had a normal range of motion in her hips, knees, and ankles and a normal gait with unaffected heel to toe walking. (A.R. 121, 124-25.)
Section 1.00B2B of the Listings states that an "inability to ambulate effectively" means an "extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very seriously with the individual's ability to independently initiate, sustain, or complete activities." Ineffective ambulation is "defined generally as having insufficient lower extremity functioning . . . to permit independent ambulation without the use of a hand-held assistive device(s) that limits the functioning of both upper extremities." See Section 1.00B2B(1) (emphasis added). This provision cites as "examples," inter alia, an "inability to walk without the use of a walker, two crutches or two canes" or an "inability to use standard public transportation" or an "inability to carry out routine ambulatory activities, such as shopping" or an "inability to climb a few steps at a reasonable pace with the use of a single hand rail." See Section 1.00B2b(2).
Plaintiff did not proffer in the proceedings before the Commissioner (and does not do so now) objective medical evidence indicating, or tending to indicate, that any of her impairments establish an inability to ambulate effectively that is equal in severity to the requirements of 1.00B2B and 1.02A of the Listings. The medical evidence of record does not contain any such finding. Rather, plaintiff relies only on her self-reports of symptoms, conflicting evidence regarding her possible use of a single cane, and observations by medical personnel that plaintiff has some difficulty with balance and weight-bearing gait. Her proffered evidence does not meet her burden at Step Three.
Plaintiff's self-reports of symptoms and functional limitations based on hip and joint pain cannot suffice to raise the severity of her related impairment to that of Listing 1.02A. 20 C.F.R. § 416.929(d)(3); see also Lewis, 236 F.3d at 614; Tackett, 180 F.3d at 1100. Moreover, even crediting the conflicting evidence regarding her intermittent use of a cane, her use of a single cane does not limit the functioning of both of her upper extremities, and there is no evidence that plaintiff requires the use of two canes. The testimony elicited at the hearing also does not support plaintiff's claim of Step Three error. Plaintiff testified that: when her feet "burn" and "swell up" periodically, she can "barely walk on them at times"; she can walk up a flight of stairs if her feet are not burning, but her feet are "always burning"; and she can walk half a block without having to rest. (A.R. 290, 294.) The ALJ, however, rendered an adverse credibility finding with respect to plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms. (A.R. 242.) Plaintiff does not challenge that credibility finding here. But even if she had, no objective medical evidence supports plaintiff's contention that a "burning" sensation prevents her from walking, and moreover, she conceded that she can walk up a flight of stairs when her feet are not "burning" — a concession which militates against finding that plaintiff's claimed impairments prevent her from ambulating effectively within the meaning of Section 1.00B2b(2). Moreover, plaintiff's daughter testified that plaintiff takes the bus by herself to go to doctor's appointments several times a month and goes shopping at the grocery store and mall with her daughter, although plaintiff will "walk a little bit" at the mall and then sit on a bench, rather than walking "the whole mall." (A.R. 306, 309.) Plaintiff's ability to use public transportation without assistance and engage in shopping indicates that plaintiff does not have the requisite extreme limitation on ambulation contemplated by Section 1.00B2B(2), and thus, by Listing 1.02A.
As noted above, plaintiff told two consultative examiners that she does not use a cane.
The Court notes that, on July 10, 2007, nerve conduction studies were conducted on plaintiff's lower extremities. The finding was normal and "[n]o evidence of peripheral neuropathy or entrapment neuropathy [wa]s noted." (A.R. 515.)
While there is medical evidence indicating that plaintiff has some difficulty with her weight-bearing gait and her ability to stand on her heels and toes, and possibly some diminished strength in her lower extremities, there is no evidence that these symptoms have an extreme limitation on plaintiff's ability to walk and that she is unable to ambulate effectively, within the meaning of the relevant portions of the Listings. Hence, plaintiff has not shown that there is any basis for finding that she meets or equals Listing 1.02A.
2.
Listing 14.09A1
Plaintiff asserts that she also meets or equals Listing 14.09A1 due to asserted "persistent inflammation" in her left shoulder, left hip, and knees. (Joint Stip. at 12.) Listing 14.09A1 governs "inflammatory arthritis," as the condition is defined in Section 14.00D6. As distinct from osteoarthritis, a mechanical disorder governed by Listing 1.02A, inflammatory arthritis includes a "vast array of disorders" that are immunological in nature. Section 14.00D6(d) states that "the diagnosis of inflammatory arthritis is based on the clinical features and serologic findings described in the most recent edition of the Primer on the Rheumatic Diseases published by the Arthritis Foundation."
Listing 14.09A1 requires findings of an inflammatory arthritis disorder within the meaning of Section 14.00D6 (i.e., the existence of an immune disorder) with persistent inflammation or persistent deformity of a major peripheral weight-bearing joint, which results in an inability to ambulate effectively within the meaning of Section 1.00B2b as described above. See Section 14.00C6 (stating that, for purposes of Listing 14,09A1, "inability to ambulate effectively" has the same meaning as that proscribed by Section 1.00B2B).
Although the record contains evidence of osteoarthritis in plaintiff's left shoulder, plaintiff cites no evidence of record that she has been diagnosed with inflammatory arthritis in either shoulder or her hips or knees or that any physician has suspected that she has such an immunological disease in any of these body parts. There is no medical evidence of record establishing that plaintiff, in fact, has "persistent inflammation" in these body parts — the first requisite for application of Listing 14.09A1. Moreover, for the reasons set forth above, there is no basis for finding that the "inability to ambulate effectively" requirement for this Listing could be satisfied.
3. Listing 2.02
Plaintiff also contends that she meets or equals Listing 2.02. (Joint Stip. at 12-13.) Listing 2.02 relates to loss of visual acuity, and applies when a claimant's remaining vision in the better eye after best correction is 20/200 or less.
As plaintiff concedes, "documentation is scant in regards to Plaintiff's best corrected vision in the better eye." (Joint Stip. at 13.) A November 14, 2005 note by Dr. Blanchard indicates that he assessed plaintiff as having a visual acuity of 20/80; there is no indication whether that assessment was for corrected or uncorrected vision. (A.R. 337.) Dr. Clements performed a visual acuity test on April 17, 2006, and found that, "[w]ithout glasses, both eyes showed 20/50, right eye showed 20/70 and the left eye showed 20/70." (A.R. 431.) On November 30, 2007, Dr. Lin, or someone at his office, performed a visual acuity test that showed a visual acuity of 20/100 in both eyes without glasses, with 10/100 in the right eye and 10/70 in the left eye. (A.R. 457.) On December 4, 2007, Dr. Conaty, or someone at his office, performed a visual acuity test, which showed a visual acuity of 20/100 in both eyes without glasses, with (20/200 in the right eye and 20/70 in the left eye. (A.R. 442.)
Plaintiff notes the reference in the test results to a visual acuity of (20/200 with pinhole correction, but fails to acknowledge that the test results stated that plaintiff claimed "can't see nothing" through the pin hole and her effort was "poor." (A.R. 442.) In any event, pin hole testing is not an acceptable method of determining best-corrected visual acuity for purposes of Listing 2.02. See Section 2.00A5b.
Besides her own self-report of "some blurred vision" (A.R. 190), plaintiff points to no evidence of record bearing on her assertedly Listing-level visual impairment other than the above-described test results. These results do not establish the finding required by Listing 2.02. The record, thus, does not provide any basis for finding that plaintiff meets or equals Listing 2.02.
4. No Reversible Error Exists.
For the reasons set forth above, the evidence of record does not support a finding that the plaintiff's physical impairments, whether on their own or in combination, meet or equal Listings 1.02A, 2.02, and/or 14.09A. Even though the ALJ's Step Three Finding was conclusory, elsewhere in his decision, the ALJ discussed the objective medical evidence bearing on plaintiff's claimed physical impairments. (A.R. 241-43.) Given plaintiff's failure to meet her burden of presenting evidence establishing that her impairments or combination of impairments meets or equals the criteria of a Listing (Tackett, 180 F.3d at 1098-99), the Court concludes that the ALJ's discussion of the medical evidence in his decision sufficed to adequately support his Step Three finding that the objective medical evidence did not establish that plaintiff's impairments meet or equal the severity of any Listing. See Lewis, 236 F.3d at 513; see also Burch, 400 F.3d at 683. In addition, as in Lewis, 236 F.3d at 514, given plaintiff's failure to set forth a plausible theory of how the evidence shows that the combination of her impairments equals any Listing, the ALJ's failure to explicitly analyze the equivalence issue does not warrant reversal.
II. The ALJ's Consideration Of Plaintiff's Obesity Does Not Warrant Reversal.
The ALJ found, at Step Two, that plaintiff has a severe impairment of obesity. (A.R. 239.) At the commencement of his Step Four analysis, the ALJ noted SSR 02-lp and stated that plaintiff's obesity "has been taken into consideration in arriving at" the RFC assessed. (A.R. 240.) As plaintiff observes, other than the unexplained finding that plaintiff's obesity is a severe impairment, the ALJ's decision does not contain any further mention or analysis of plaintiff's obesity. Plaintiff complains that the ALJ failed to determine the effect of her obesity, in combination with her other impairments, at Step Three and that he failed to adequately assess the effect of her obesity at the remaining steps of the sequential evaluation. (Joint Stip. at 18-19.)
The record shows that plaintiff is 55 and has weighed, at various times, 168, 174, 177, or 180 pounds. (See A.R. 289, 301, 431, 438, 452.)
The Court notes that, at the hearing, plaintiff testified that she weighs 174 pounds, and this has been her normal weight, without much variance, for the past six years. (A.R. 289, 301.) A weight of 174 for a person of her height constitutes a Body Mass Index (BMI) of 29.0, which falls within the Overweight, rather than Obese, category. See, e.g., BMI calculator and information provided by the National Institute of Health at www.nhlbisupport.com/bmi/. Even at 180 pounds, plaintiff's BMI would be 30.00, the very bottom range of Level I of the Obese category. See SSR 02-01p.
Obesity was removed as a listed impairment from the Listings in 1999. Nonetheless, as a general rule, when there is evidence of obesity, the Commissioner is required to determine the effects of the claimant's obesity at various points in the sequential evaluation. SSR 02-01p.
For example, in Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003), the claimant was illiterate and pro se, and the evidence established that she had the impairments of diabetes and hypertension. In addition, although she had not alleged that she was disabled based on obesity, there was evidence that she was 49 (if not shorter) and her weight fluctuated between 205 and 213 pounds. Id. at 1179. The Ninth Circuit held that the administrative law judge erred in failing to consider the effect of claimant's obesity on her diabetes and hypertension for three reasons. First, the Ninth Circuit concluded that obesity had been raised as a disability "implicitly in [the claimant's] report of symptoms." Id. at 1182. Second, the Ninth Circuit concluded that the claimant's level of obesity was significant, was close to the former Listing criterion for a disabling impairment, and was a condition that could have exacerbated her diabetes and hypertension. Id. Third, the Ninth Circuit concluded that, in view of the claimant's pro se status and the evidence of her obesity, the ALJ should have developed the record regarding her obesity. Id. at 1182-83.
Celaya was a 2-1 decision. The majority calculated the claimant's BMI as being at least 44, which it described as being "extremely obese" within the meaning of the categories used by the Social Security Administration. 332 F.3d at 1179 (citing SSR 00-3p).
Plaintiff cites Celaya for the proposition that an ALJ always "must determine the effect of the claimant's obesity upon his other impairments, his ability to work, and his general health." (Joint Stip. at 17-18.) Plaintiff, however, overlooks the Ninth Circuit's subsequent decision in Burch, supra, which clarified that Celaya does not establish an absolute mandate that, in every case, an administrative law judge specifically consider the interactive effects that obesity has on a claimant's other impairments throughout the five-step sequential disability analysis.
In Burch, the claimant, who was represented by counsel, alleged that she was disabled based on breast cancer, asthma, back pain, weakness, and depression. The medical evidence contained a notation that she was "`slightly obese'" and had gained 25 pounds in the past year, and one physician recommended that she join a medically-supervised weight loss program. 400 F.3d at 678. At the hearing, the claimant testified that she was 54 and weighed 215 pounds, but stated her "`normal'" weight was 185. Id. The administrative law judge did not find the claimant's obesity to be a severe impairment. Id. at 682. On appeal, relying on Celaya, the claimant argued that the administrative law judge had erred in failing to consider her obesity throughout the sequential disability analysis, including its interactive effects with respect to her other impairments. Id. at 681-82.
The Ninth Circuit, in Burch, distinguished Celaya on two bases. First, the record did not demonstrate that, with the possible exception of her back pain, the claimant's obesity exacerbated her other impairments. 400 F.3d at 682. Second, and "[m]ore significantly," the claimant was represented by counsel. Id. The Ninth Circuit then addressed whether, assuming the administrative law judge erred at Step Two in failing to find the claimant's obesity to be a severe impairment, there was any error at the remaining steps of the sequential evaluation. The Ninth Circuit noted that, under SSR 02-01p, an administrative law judge is precluded from making assumptions about the severity or functional effects of obesity combined with other impairments, and each case must be evaluated on the information in the case record. Id. at 682-83. The Ninth Circuit further noted that there was no evidence that the claimant's obesity limited her functioning, as there were no treatment notes or diagnoses that addressed any limitations due to her obesity, and the medical record was "silent" regarding whether and how her obesity exacerbated her other impairments. In addition, the claimant did not present evidence or testify that her obesity impaired her ability to work. Id. at 683. Given the claimant's failure to proffer evidence of functional limitations due to obesity, the Ninth Circuit concluded that the administrative law judge did not commit reversible error at Step Three in failing to consider the claimant's obesity. The Ninth Circuit further found that the administrative law judge thereafter adequately considered the claimant's obesity in addressing her RFC and vocational ability, because he: acknowledged the above-noted doctor notes; recognized that her obesity likely contributed to her back discomfort; and after weighing the evidence, assessed her with an RFC to perform a somewhat limited range of light work. Id. at 683-84.
As in Burch, although the physicians who examined plaintiff noted her weight, plaintiff cites no evidence that any physician or other medical provider indicated that her obesity exacerbated her impairments or resulted in any functional limitation. Also as in Burch, plaintiff did not claim to be disabled based on obesity when she applied for benefits and, although represented by counsel when she testified before the ALJ, did not raise her obesity in her testimony, whether as an impairment or a source of functional limitations. (See A.R. 66, 74, 107, 113, 288-303.) Further, as in Burch, plaintiff has not presented any evidence that her obesity limited her functioning, exacerbated her other impairments, or was otherwise disabling. Indeed, the consultative physicians who examined plaintiff in April 2006, and November 2007, were cognizant of her height and weight, as well as her other claimed impairments, and nonetheless concluded that she retained the functional capacity to perform work at a light exertional level with limitations. (A.R. 429, 431, 434, 450-52, 455.) Moreover, as in Burch, the ALJ expressly stated that he did take plaintiff's obesity into consideration when he assessed her RFC consistently with the foregoing consultative physician opinions. (A.R. 240.)
This case differs in one material, and critical, respect fromBurch. Unlike in that case, the ALJ here did find that plaintiff's obesity constituted a severe impairment at Step Three. Thus, unlike in Burch, it is not clear that the ALJ actually failed to consider plaintiff's obesity, in combined effect with her other impairments, in making his Step Three finding. Even if, arguendo, he failed to do so, however, given plaintiff's failure to present evidence regarding the effect of her obesity when combined with her other impairments, the Court would not find reversible error at Step Three, based on the rationale set forth in Burch. As in that decision, plaintiff simply has not offered any evidence, or plausible theory, showing that her obesity, alone or in combination with her other impairments, met or equaled any Listing. See Burch, 400 F.3d at 683 (an ALJ is not required to discuss the combined effects of an impairment unless the claimant presents evidence to establish equivalence). There also is no basis for finding reversible error in the ALJ's consideration of the subsequent Steps. As in Burch, there was no evidence presented to the ALJ of any functional limitations due to plaintiff's obesity that detract from the ALJ's RFC assessment and/or that he failed to consider.
Accordingly, the Court concludes that there was no reversible error committed by the ALJ in connection with his consideration of plaintiff's obesity.
III. The ALJ Erred At Step Five.
As noted earlier, the ALJ adopted the RFC assessment of Dr. Clements, namely, for light work with additional limitations, with respect to plaintiff's RFC prior to December 27, 2007. (A.R. 242.) At the hearing, the ALJ asked the testifying vocational expert ("VE") whether, assuming the RFC assessed by Dr. Clements, plaintiff could perform her past relevant work; the VE testified that plaintiff could do so, along with a wide range of other light, unskilled work in the areas of assembly, inspection, and sorting. (A.R. 315-16.) Upon further questioning, the VE sua sponte noted that the medical records indicated plaintiff "may require a cane to ambulate for prolonged periods of time," and the VE opined that this would preclude plaintiff's past work as a prep cook. (A.R. 316-17.) The VE clarified that, with the cane usage, plaintiff's RFC would remain set at light, unskilled work, and her past relevant work as a clothes tagger, as well as some assembly, bench work, and sorting jobs, would not be precluded, but there would be some erosion as to jobs that require prolonged standing. (A.R. 317.)
Im his decision, the ALJ found that, prior to December 27, 2007, there were a significant number of jobs in the national economy that plaintiff could have performed, although he did not identify any such jobs. (A.R. 243.) In his supporting discussion for this Step Five finding, the ALJ did not mention the VE's testimony and focused only on application of the Grids. (A.R. 243-44.) After a general discussion of how the Grids are used when a claimant has only exertional limitations, only non-exertional limitations, or a combination thereof, the ALJ concluded that, prior to December 27, 2007, "based on a residual functional capacity for light work, considering [plaintiff's] age, education, and work experience, a finding of `not disabled' is reached by direct application of Medical-Vocational Rule 202.17." (A.R. 244.)
At Step Five of the sequential evaluation, the burden shifts from the claimant to the ALJ to show that the claimant is able to perform other work that exists in the national economy. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000). The ALJ can meet this burden by either taking the testimony of a vocational expert or by referring to the Grids. Id.; see also Tackett, 180 F.3d at 1101 (describing how VE testimony and the Grids are used at Step Five). The Grids are tables that are used "for determining the availability and number of suitable jobs for a claimant."Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). The Grids categorize jobs by their physical-exertional requirements. Id.
Exertional limitations are strength related limitations, such as limitations on sitting, standing, walking, lifting, carrying, pushing, and pulling. Non-exertional limitations are non-strength related limitations, such as pain and mental, sensory, postural, manipulative, visual, and environmental limitations. See, e.g., Tackett, 180 F.3d at 1102; Cooper v. Sullivan, 880 F.2d 1152, 1156 n. 6-n. 7 (9th Cir. 1989); Desrosiers, 846 F.2d at 577 (Pregerson, J., concurring); 20 C.F.R. § 416.967.
Reliance on the Grids alone to meet the Commissioner's burden at Step Five is proper only when they completely and accurately represent a claimant's limitations. Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001); Tackett, 180 F.3d at 1101. "`In other words, a claimant must be able to perform the full range of jobs in a given category' in order for the Commissioner to appropriately rely on the grids." Bruton, 268 F.3d at 827-28 (quoting Tackett). When a claimant has both exertional and non-exertional limitations and the non-exertional limitations significantly limit the range of work he can perform, mechanical application of the Grids is inappropriate. Tackett, 180 F.3d at 1102, 1104. The ALJ must first determine whether the exertional limitations alone warrant a finding of disability under the Grids; if not, further evidence must be adduced, namely, the testimony of a VE. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000); Cooper, 880 F.2d at 1155.
At the hearing, the ALJ elicited the above-described testimony by the VE. However, as plaintiff observes, the ALJ failed to direct the VE to consider all of plaintiff's impairments. The ALJ simply asked the VE to look at the paragraphs in the opinions of Drs. Clements and Lin setting forth their specific RFC assessments; he did not ask the VE to consider what effect plaintiff's severe impairments of chronic pain and right eye injury might have on plaintiff's ability to perform her past relevant work or any other jobs in the national economy.
The ALJ also did not ask the VE to consider what effect plaintiff's use of a cane would have, but the VE nevertheless raised that issue and discussed the effect of the cane, as mentioned above.
In posing a hypothetical to a vocational expert, the ALJ must accurately reflect all of the claimant's limitations. Embrey v. Bowen, 849 F.2d 418, 422-23 (9th Cir. 1988). "The ALJ's depiction of the claimant's disability [to the VE] must be accurate, detailed, and supported by the medical record." Tackett, 180 F.3d at 1101. The ALJ, however, is not required to include all limitations asserted by the claimant. Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). Instead, it is proper for the ALJ to limit a hypothetical to those impairments that are supported by substantial evidence in the record. Osenbrock, 240 F.3d at 1163-64.
The ALJ specifically found that plaintiff has the severe impairments of a history of chronic lower back, right hip, pelvic, and left shoulder pain, and a history of right eye injury. (A.R. 239.) The ALJ further found that plaintiff had numerous non-exertional limitations, including postural and visual limitations. (A.R. 240.) Presumably, he would not have found those impairments and non-exertional limitations to exist unless he believed they were supported by substantial evidence. Accordingly, he was obligated to include them in the hypotheticals posed to the VE, yet he failed to do so. The record here shows that, while the ALJ paid lip service to the requirement that he elicit VE testimony in view of plaintiff's non-exertional limitations, he failed to fulfill that requirement meaningfully.
The Commissioner's attempt to brush the ALJ's findings in this respect aside by the comment that the ALJ's adverse credibility finding is not challenged (Joint Stip. at 7) is not persuasive. While the ALJ may have found that plaintiff's statements regarding the "intensity, persistence, and limiting effects of" her symptoms to be not credible (A.R. 242), this adverse finding is distinct from, and does not negate, his extant findings that plaintiff has the severe impairments found at Step Two and is subject to a host of non-exertional limitations.
The ALJ's error with respect to the VE testimony elicited is compounded by his apparent disregard of the VE's testimony entirely when he rendered his decision. Although, at the outset of his decision, the ALJ acknowledged that the VE had testified, the ALJ made no further mention of that testimony, and at Step Five, he relied solely on a "direct application of" the Grids to find that plaintiff could perform a substantial number of unidentified jobs in the national economy prior to December 27, 2007. Given the significant non-exertional limitations found by the ALJ, the ALJ's reliance solely on the Grids was improper. Moreover, given the VE's testimony that plaintiff's use of a cane would erode the jobs available in the light, unskilled category, the ALJ's sole reliance on the Grids was improper, because use of the Grids is appropriate only when the claimant is able to perform the full range of work in a given category. Tackett, 180 F.3d at 1101.
The ALJ's failure to properly adduce and consider vocational expert testimony, and his reliance solely on the Grids, at Step Five constitutes error. The Court does not find this error to be harmless, because even though the VE testified that plaintiff can perform one of her prior jobs with the use of a cane and can perform a wide range of light, unskilled work, the VE was not asked whether plaintiff can perform such jobs in the light of her other impairments and limitations. As a result of this error, the Commissioner failed to meet his burden at Step Five. Accordingly, reversal is required.
IV. Remand For Limited Further Proceedings Is Appropriate.
For the reasons noted above, the Commissioner's decision is affirmed with respect to the second and third issues raised by plaintiff, but is reversed with respect to the first issue raised by plaintiff. The question, thus, is whether to reverse and remand for further proceedings, or reverse and remand for an award of benefits.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.
Here, a critical issue remains, namely, whether plaintiff could have performed any work prior to December 27, 2007, if her impairments and non-exertional limitations are properly considered as a part of that determination. On the record before the Court, it is not clear that the ALJ would be required to find plaintiff disabled prior to that date, even if the appropriate Step Five inquiry had been made. Accordingly, this case must be remanded to the Commissioner solely for the purpose of resolving this issue. On remand, the Commissioner must adduce the necessary vocational expert testimony and consider it properly in making the Step Five determination. In addition, should the Commissioner again conclude that there was a significant number of jobs in the national economy that plaintiff could have performed prior to December 27, 2007, the Commissioner must identify such jobs; a vague allusion to unidentified "jobs," as was made by the ALJ, will not suffice to meet the Commissioner's burden.
CONCLUSION
Accordingly, for the reasons stated above, the Commissioner's decision is REVERSED, and this case is remanded to the Commissioner for the further proceedings specified above.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: September 22, 2010