United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Plaintiff filed an application for disability insurance benefits on June 10, 2010, alleging disability beginning on November 12, 2009. The claim was denied on September 23, 2010, and upon reconsideration on December 17, 2010. Plaintiff was granted a hearing in which he appeared with counsel before Administrative Law Judge ("ALJ") Thomas Cheffins on April 27, 2012. The ALJ determined that Plaintiff was not disabled under the relevant portions of the Social Security Act. Tr. at 81. The Appeals Council denied review on March 4, 2013 (Tr. at 1), and Plaintiff filed this action seeking reversal of the denial and remand (Doc. 13). Defendant has filed a memorandum in opposition (Doc. 14), and Plaintiff has filed a reply (Doc. 15). Neither party has requested oral argument. For the reasons that follow, the decision will be vacated and the matter remanded for further administrative proceedings.
I. Standard of Review.
Defendant's decision to deny benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In determining whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to support the Commissioner's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).
For purposes of Social Security benefits determinations, a disability is
the inability to do 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.
20 C.F.R. § 404.1505.
Determining whether a claimant is disabled involves a sequential five-step evaluation. The claimant must show that (1) he is not currently engaged in substantial gainful employment, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity ("RFC") precludes him from performing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the analysis ends; otherwise, it proceeds. If the claimant establishes his burden through step four, the Commissioner must find the claimant disabled unless he finds that the claimant can make an adjustment to other work. The Commissioner bears the burden at step five of showing that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
The ALJ found at step one that Plaintiff had not worked since November 12, 2009. Tr. at 75. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: obesity, chronic obstructive pulmonary disease, sleep apnea (CPAP), and diabetes mellitus. Id. The ALJ found at step three that none of the impairments or combination thereof met or medically equaled one of the listed impairments. Id. at 76. The ALJ found that Plaintiff had the RFC to perform sedentary work, with limited exceptions, including occasional ability to climb ramps or stairs, but never ladders, ropes, or scaffolds, ability to occasionally stoop, crouch, balance, kneel or crawl, but that he could never be exposed to irritants, chemicals, or unprotected heights, nor could he use moving machinery. Id. at 77. The ALJ found at step four that Plaintiff was therefore unable to perform any of his past relevant work as a ranch hand, landscaper, construction worker, or fabricator. Id. at 80. At step five, however, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. Id. The ALJ therefore concluded that Plaintiff was not disabled. Id. at 20.
Plaintiff argues that the ALJ's determination was based on legal error because (1) in the ALJ's hypothetical posed to the vocational expert, the ALJ failed to include the fact that Plaintiff relies on an oxygen tank, and (2) the ALJ failed to accord adequate weight to the opinion of Plaintiff's treating physician and inappropriately afforded more weight to the opinions of stage agency consultants. Doc. 13 at 4.
A. Incomplete Hypothetical.
Plaintiff argues that he requires access to an oxygen tank upon even mild exertion, and that the ALJ failed to include this limitation in the hypothetical he posed to the vocational expert. Doc. 13 at 8. Because the vocational expert concluded that very few if any employers would be willing to accommodate the limitation of an oxygen tank, Plaintiff argues that the ALJ's failure to include this limitation in the hypothetical resulted in an inaccurate RFC determination. Id. Defendant argues that the record does not support Plaintiff's assertion that he needs full-time use of an oxygen tank, that even if he did, the limitation did not continue for long enough to be included in the hypothetical, and that any error in not including the limitation was harmless because sedentary work does not involve substantial exertion and Plaintiff only needs oxygen during exertion. Doc. 14 at 9-11.
Plaintiff's treatment notes, which he cites as evidence that he must use an oxygen tank full-time, indicate that he was using oxygen for treating "nighttime hypoxemia" in December 2009 and January 2010 (Tr. at 256, 262), and for treating "obstructive sleep apnea" in May and August 2011 (Tr. at 301-02). It was not until January 2012 that the notes indicate that he was "using oxygen on exertion." Tr. at 299. Defendant argues that the notes are evidence that Plaintiff used oxygen only at night until January 2012, and that even if he used oxygen for exertion from 2012 on, he did not do so for a sufficient amount of time to constitute a disability. Doc. 14 at 9-10. Plaintiff testified at his hearing that he used the oxygen ...