Crystal A. Moya, Plaintiff,
Carolyn Colvin, Commissioner of Social Security, Defendant.
FREDERICK J. MARTONE, Senior District Judge.
Plaintiff filed an application for supplemental security income on March 31, 2009. The claim was denied initially and upon reconsideration. Following a hearing on March 28, 2011, the administrative law judge ("ALJ") issued a decision finding that plaintiff was not disabled within the meaning of the Social Security Act, and denying benefits. The Appeals Council denied plaintiff's request for review on June 7, 2012, rendering the ALJ's decision final. Thereafter, plaintiff filed this action seeking judicial review pursuant to 42 U.S.C. § 405(g). We have before us plaintiff's opening brief (doc. 10), defendant's answering brief (doc. 11), plaintiff's reply brief (doc. 12), and the administrative record (doc. 9).
A district court may set aside a denial of benefits "only if it is not supported by substantial evidence or if it is based on legal error." Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Id . (citation omitted).
The ALJ followed the Social Security Act's five-step procedure to determine whether plaintiff is disabled. See 20 C.F.R. § 416.920(a)(4). First, the ALJ determined that plaintiff meets the status requirements of the Social Security Act and has not engaged in substantial gainful activity since the date of alleged onset. Tr. 19. At step two, the ALJ found that plaintiff suffered "severe" impairments including thoracic facet syndrome, status post diskectomy and bone stimulator implant, intercostal neuritis, and chronic pain syndrome. Id . At step three, the ALJ found plaintiff's impairments do not meet the criteria listed in the regulations. Tr. 20. Next, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform the full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). Id . The ALJ also found that plaintiff is unable to lift over 10 pounds, and needs to avoid repeated bending, twisting and tilting. Id . At the hearing, the ALJ consulted a vocational expert ("VE") who testified that based on vocational factors and the RFC, plaintiff could perform sedentary work. Tr. 48. Based on the VE's testimony, the ALJ concluded at step four that plaintiff is capable of performing her past relevant work as an office manager, and therefore is not disabled. Tr. 23.
Plaintiff challenges the ALJ's decision arguing that the ALJ erred by: (1) finding at step four that plaintiff could perform her past relevant work as an "office manager"; (2) failing to give proper weight to the opinion of plaintiff's treating physician, Molly Finley ("Dr. Finley"); (3) failing to adopt the state agency medical consultants' opinion; (4) rejecting her symptom testimony; and (5) rejecting lay witness testimony. Finally, plaintiff contends that new evidence submitted to the Appeals Council supports her position. Plaintiff urges that we remand for an award of disability benefits, or in the alternative, that we remand for administrative proceedings.
II. Step Four Disability Determination
Plaintiff first challenges the disability determination that the ALJ made at step four of the sequential analysis. Disability determinations are to be made according to a two-step process. At step four, the ALJ must determine whether the claimed impairment prevents the plaintiff from performing her "previous work." See 42 U.S.C. § 423(d)(2)(A) (1982). The inquiry at step four must be resolved in the plaintiff's favor where she cannot fully perform her previous job, but only one or more tasks associated with that job. Valencia v. Heckler , 751 F.2d 1082, 1087 (9th Cir. 1985). At step five, the ALJ may examine whether the skills and training acquired by the plaintiff through previous work experience have equipped her to engage in other, less demanding, work which exists in the national economy. Id.
In her disability report, plaintiff reported her job title as "dental assistant' and stated that it required standing 8 hours a day and sitting 1 hour a day. Tr. 114. During the administrative hearing, plaintiff stated that her previous work was as a "back office assistant manager/dental assistant." Tr. 36. The ALJ asked the VE to identify the exertional levels of the plaintiff's past work. The VE classified the exertional levels for the dental assistant and office manager parts of plaintiff's occupation as light and sedentary, respectively. Tr. 47. At step four of the analysis, the ALJ relied on the VE's testimony regarding plaintiff's work as an "office manager" to conclude that plaintiff could perform her past relevant work. Tr. 23.
Plaintiff argues that the ALJ erred when he found that she could perform past relevant work as an "office manager" and not the composite job of "dental assistant/office manager." Specifically, plaintiff contends that the ALJ improperly separated the "office manager" portion of plaintiff's job from the "dental assistant" portion of her job. We agree. "It is error for the ALJ to classify an occupation according to the least demanding function." Carmickle v. Commissioner, Social Sec. Admin. 533 F.3d 1155 , 1166 (9th Cir. 2008). The plaintiff's past relevant work requires light and sedentary exertional levels. Based on the ALJ's RFC finding that plaintiff is limited to sedentary work, plaintiff cannot perform her past relevant work. To the extent that the ALJ may have concluded at step four that the skills plaintiff gained from her previous work are transferrable to other, less demanding, work which exists in the national economy, this was also error. The step-four analysis is limited to determining whether the plaintiff can perform her past relevant work. Valencia , 751 F.2d at 1086-87. Therefore, at step four, the ALJ improperly determined that plaintiff could perform her past relevant work as an "office manager."
It appears that the ALJ effectively collapsed the step five inquiry into the step four analysis. While doing so may have been intuitive, the ALJ should have discussed step five of the sequential analysis separately. Although the ALJ may ultimately reach the same disability determination at step five, he must do so expressly. Because the ALJ failed to inquire at step five whether the plaintiff can perform any other work that exists in the national economy, we cannot conclude the error at step four was harmless. Remand is necessary for express findings at step five of the sequential analysis.
III. Weight Given to Treating Physician Dr. Finley
Plaintiff next argues that the ALJ failed to provide sufficient reasons for rejecting the opinion of her treating physician, Dr. Finley. We agree. The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of a treating physician. Lester v. Chater , 81 F.3d 821, 830 (9th Cir. 1995) (citation omitted). If the opinion is contradicted, the ALJ may reject that opinion for "specific and legitimate reasons that are supported by substantial evidence in the record." Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted).
Dr. Finley opined that plaintiff is restricted to a permanent no work status due to her medical conditions. Dr. Finely also noted plaintiff is unable to lift over five pounds or perform repeated bending, twisting or tilting. Tr. 464. Defendant argues that the ALJ rejected Dr. Finley's opinion because it was partially contradicted by Dr. Curtis A. Dickman's January 2009 opinion that plaintiff could lift up to 10 pounds. The ALJ's assessment of the opinions was accurate based on the evidence submitted to the ALJ. However, Dr. Dickman's May 2009 opinion, submitted to the Appeals Council as new evidence, does not contradict Dr. Finley's opinion regarding plaintiffs lifting limitations and ability to work. Defendant also argues that the ALJ rejected Dr. Finley's opinion in favor of Dr. Dickman's opinion because Dr. Finley had only seen plaintiff twice when she issued her opinion. See Doc. 11 at 11. However, the ALJ's decision does not provide that explanation or any other specific and legitimate reasons for rejecting Dr. Finley's opinion. Tr. 22. Moreover, new evidence submitted to the Appeals Council shows that Dr. Finley had been treating plaintiff for at least two years, and ...