Pederzolli v. Commissioner of Social Security Administration

          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 ...