United States District Court, D. Arizona
ORDER
DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
INTRODUCTION
Plaintiff
Robert Pederzolli (“Pederzolli”) seeks review
under 42 U.S.C. § 405(g) of the final decision of the
Acting Commissioner of Social Security
(“Commissioner”), which denied his application
for disability benefits and supplemental security income. For
the following reasons, the Court finds that the
administrative law judge's (“ALJ”) decision
was based on reversible legal error and remands for further
proceedings.
Pederzolli,
a 40-year-old male who previously worked as a swimming pool
servicer, alleges he became disabled in December 2007. In
September 2011, he filed an application for disability
benefits. (A.R. 165-166.) The claim was denied initially on
February 2, 2012 (A.R. 70) and again upon reconsideration on
October 31, 2012 (A.R. 103). Pederzolli then filed a written
request for hearing on November 8, 2012. (A.R. 121-122.) On
May 9, 2013, he appeared and testified at a hearing at which
an impartial vocational expert also appeared and testified.
(A.R. 36-69.) On June 28, 2013, the ALJ issued a decision
that Pederzolli was not disabled within the meaning of the
Social Security Act. (A.R. 19-35.) On January 16, 2015, the
Appeals Council denied Pederzolli's request for review
(A.R. 1-7.)
Pederzolli
sought review in this Court on March 16, 2015. (A.R. 1768.)
In response, the Commissioner conceded the ALJ had committed
errors that required a remand for further proceedings. (No.
15-cv-472-PHX-DKD, Doc. 21.) Accordingly, this Court vacated
the ALJ's decision and remanded. (A.R. 1771-1775.) The
ALJ conducted a new hearing on October 13, 2016 (A.R.
1713-1734) and issued a decision again determining that
Pederzolli wasn't disabled (A.R. 1690-1712). Pederzolli
requested review of the ALJ's decision, but the Appeals
Council denied review on October 23, 2017. (A.R. 1683-1689.)
At that point, the ALJ's decision became the
Commissioner's final decision.
LEGAL
STANDARD
The
Court addresses only the issues raised by the claimant in the
appeal from the ALJ's decision. Lewis v. Apfel,
236 F.3d 503, 517 n.13 (9th Cir. 2001). “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), as amended on reh'g (Aug. 9, 2001). The
Court should uphold the ALJ's decision “unless it
contains legal error or is not supported by substantial
evidence.” Orn v. Astrue, 495 F.3d 625, 630
(9th Cir. 2007). “Substantial evidence is more than a
mere scintilla but less than a preponderance.”
Id. Put another way, “[i]t is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation omitted).
The Court should uphold the ALJ's decision “[w]here
evidence is susceptible to more than one rational
interpretation, ” but the Court “must consider
the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.”
Id. (citations and internal quotation marks
omitted).
“[H]armless
error principles apply in the Social Security Act
context.” Molina v. Astrue, 674 F.3d 1104,
1115 (9th Cir. 2012). “[A]n ALJ's error is harmless
where it is inconsequential to the ultimate nondisability
determination.” Id. (citations and internal
quotation marks omitted). The Court must “look at the
record as a whole to determine whether the error alters the
outcome of the case.” Id. Importantly,
however, the Court may not uphold an ALJ's decision on a
ground not actually relied on by the ALJ. Id. at
1121.
To
determine whether a claimant is disabled for purposes of the
Social Security Act, the ALJ follows a five-step process. 20
C.F.R. § 404.1520(a). The claimant bears the burden of
proof on the first four steps, and the burden shifts to the
Commissioner at step five. Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ
determines whether the claimant is engaging in substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so,
the claimant is not disabled and the inquiry ends.
Id. At step two, the ALJ determines whether the
claimant has a “severe” medically determinable
physical or mental impairment. Id. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt.
404. Id. § 404.1520(a)(4)(iii). If so, the
claimant is automatically found to be disabled. Id.
If not, the ALJ proceeds to step four. At step four, the ALJ
assesses the claimant's residual functional capacity
(“RFC”) and determines whether the claimant is
capable of performing past relevant work. Id. §
404.1520(a)(4)(iv). If so, the claimant is not disabled and
the inquiry ends. Id. If not, the ALJ proceeds to
the fifth and final step, which addresses whether the
claimant can perform any other work based on the
claimant's RFC, age, education, and work experience.
Id. § 404.1520(a)(4)(v). If so, the claimant is
not disabled. Id. If not, the claimant is disabled.
BACKGROUND
At step
one, the ALJ determined that Pederzolli met the insured
status requirements of the Social Security Act through
December 31, 2012 and had not engaged in substantial gainful
activity since December 17, 2007. (A.R. 1695-1696.) At step
two, the ALJ found that Pederzolli had the following severe
impairment: lumbar disc herniation with epidural fibrosis.
(A.R. 1696.) The ALJ acknowledged the record also contained
evidence of anxiety and depression but found these were not
severe impairments. (Id.) At step three, the ALJ
determined that Pederzolli didn't have an impairment or
combination of impairments that meets or medically equals the
severity of a listed impairment. (Id.) At step four,
the ALJ determined that Pederzolli had the RFC to perform
sedentary work, except that “he [1] is limited to a
maximum lifting and carrying capacity of 10 pounds
frequently; [2] can stand and/or walk with normal breaks for
a total of 2 out of 8 hours; and [3] [can] sit with normal
breaks for more than 6 hours in an 8 hour workday.”
(A.R. 1696-1704.) Further, the ALJ determined that Pederzolli
“is unlimited in pushing and pulling as long as it is
within the weight limits specified for lifting and
carrying” and “can frequently balance, kneel and
crouch as well as occasionally climb ramps, stairs, ladders,
ropes or scaffolds.” (Id.) Also, the ALJ
determined Pederzolli can occasionally stoop and crawl and
should avoid concentrated exposure to hazards. (Id.)
The ALJ found Pederzolli wasn't capable of performing his
past relevant work but could perform the occupations of
microfilming document preparer, addresser, and surveillance
systems monitor. (A.R. 1704-1706.)
In his
opening brief, Pederzolli argues the ALJ erred by: (1)
improperly weighing the opinions of Dr. McLean, Mary Hymen,
and Dr. Grove; (2) failing to provide specific, clear and
convincing reasons to reject his symptom testimony; (3) not
allowing him to cross-examine agency consultants and not
requiring the vocational expert to provide the materials on
which he relied; and (4) determining the Commissioner
satisfied her Step 5 burden. Pederzolli asks the Court to
remand for a computation of benefits. (Doc. 19.)
For the
reasons that follow, the Court agrees the ALJ committed
reversible legal error when weighing Dr. McLean's medical
opinions and incorporating those opinions into the RFC.
However, the Court disagrees with Pederzolli's other
assignments of error.
DISCUSSION
I.
Whether The ALJ Improperly Weighed The Opinion
Evidence
A.
Dr. McLean And Mary Hymen
1.
The Opinions
Dr.
McLean is Pederzolli's treating orthopedic surgeon. On
June 8, 2011, Dr. McLean referred Pederzolli to Mary Hymen, a
registered and licensed occupational therapist, for a
functional capacity evaluation (“FCE”). (A.R.
1222.) Hymen conducted the FCE on June 28, 2011 and
determined that Pederzolli was able to lift 20 pounds from
floor to waist occasionally, 15 pounds from waist to overhead
occasionally, push 72 pounds occasionally, and pull 74 pounds
occasionally. (A.R. 346-353.) Further, Hymen determined that
Pederzolli could only sit for approximately 20 minutes, stand
for approximately 20 minutes, and walk for approximately 15
minutes at a time. (Id.) Thus, Hymen concluded,
Pederzolli “needs a position that allows movement,
change of position often.” (Id.)
Dr.
McLean reviewed Hymen's conclusions regarding
Pederzolli's FCE on July 20, 2011. (A.R. 1222-1224). He
also conducted an independent examination to evaluate
Pederzolli's work capacities and limitations. (A.R.
1226.) Dr. McLean's examination determined that
Pederzolli could lift and carry a maximum of “10-25
pounds occasionally, more frequently 10 pounds, ” and
push/pull 50-70 pounds. (A.R. 1223.) Additionally,
Dr. McLean determined that Pederzolli could work 8 hours a
day, 40 hours a week, and could stand 4-6 hours a day and sit
6-8 hours a day. (A.R. 1226.) However, Dr. McLean opined that
Pederzolli would have to change position every 30-60 minutes.
(A.R. 1223.) Dr. McLean explained that Pederzolli
should “avoid any repetitive bending, stooping or
squatting, overhead work or working on uneven ground or
climbing.” (Id.) Dr. McLean concluded his
opinion by noting: “With respect to [Pederzolli's]
work restrictions, again, it is consistent with the
FCE.” (Id.)
2.
The ALJ's Consideration
The ALJ
gave “[s]ignificant weight” to Dr. McLean's
medical opinions and adopted his opinion regarding
Pederzolli's sitting, standing, and walking limitations.
(A.R. 1702.) The ALJ did not, however, address Dr.
McLean's opinion that Pederzolli should “avoid any
repetitive bending, stooping or squatting, overhead work or
working on uneven ground or climbing.” (Id.)
The ALJ
gave “[s]ome weight” to the FCE performed by
Hymen. (A.R. 1702- 1703.) She determined that Hymen's
“conclusion that [Pederzolli] is limited to only
occasional sitting in an 8-hour workday is not consistent
with most of the physical opinions of record. . . .”
(Id.) Further, the ALJ noted the authors of the
other opinions regarding Pederzolli's limitations were
acceptable medical sources, unlike Hymen. (Id.)
Despite discounting Hymen's opinion, the ALJ considered
the limitations expressed by Hymen and added a sit/stand
option at will into Pederzolli's RFC. (Id.)
3.
Analysis
Pederzolli
argues the ALJ erred in four ways when weighing Dr. McLean
and Mary Hymen's opinions. The first and second arguments
are predicated on Pederzolli's assertion that Dr. McLean
endorsed the sitting, standing, and walking limitations in
Hymen's FCE by noting in his medical opinion: “With
respect to [Pederzolli's] work restrictions, again, it is
consistent with the FCE.” First, Pederzolli argues the
ALJ should have found him disabled because the vocational
expert testified there are no occupations that could be
performed with the limitations allegedly endorsed by Dr.
McLean. Second, Pederzolli contends that, because Dr. McLean
endorsed the ...