Opinion
CV 18-0473-TUC-RM (JR)
03-10-2020
Joel Arthur Schluter, Plaintiff, v. Nancy Berryhill, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff Joel Arthur Schluter brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying his claim for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Pending before the Court are an Opening Brief filed by Plaintiff (Doc. 16), the Commissioner's Brief (Doc. 17), and Plaintiff's Reply Brief (Doc. 18). Plaintiff presents six issues in his Opening Brief: (1) whether the Administrative Law Judge (ALJ) properly considered Plaintiff's Veterans Administration disability rating; (2) whether the ALJ properly considered Plaintiff's need for workplace accommodations at step five of the sequential evaluation process; (3) whether the ALJ properly considered evidence that Plaintiff was obese; (4) whether the ALJ properly considered the expert testimony of Dr. Kendrick; (5) whether the ALJ properly consider evidence that Plaintiff used a cane; and (6) whether the ALJ properly evaluated lay-witness statements. Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this case for further proceedings.
I. Background
In November 2006, Plaintiff applied for DIB and the application was denied in March 2007. (AR 117, 189.) In November 2007, Plaintiff reapplied for DIB, alleging that he had been disabled since October 24, 2005. (AR 443.) After his 2007 application was denied initially and on reconsideration, Plaintiff requested a de novo ALJ hearing. (AR 193, 198, 203.) In the decision, the ALJ noted that Plaintiff's DIB insured status expired on December 31, 2010, (AR 125), and decided at step-five that Plaintiff was not disabled. (AR 131-32.)
On April 23, 2012, the Appeals council granted Plaintiff's request for review of the ALJ's non-disability decision and remanded Plaintiff's claim for readjudication. (AR 144, 137-39.) At the hearing, Plaintiff amended his alleged onset date to November 30, 2006. (AR 38-39.) On November 9, 2012, the ALJ again concluded that Plaintiff was not disabled. (AR 151-52.) On July 25, 2014, the Appeals Council granted Plaintiff's request for review and remanded Plaintiff's claim for readjudication. (AR 158-61.) And, on March 19, 2015, Plaintiff was again found not disabled at step five. (AR 169-75.)
On January 13, 2017, the Appeals Council again remanded Plaintiff's claim for readjudication. (AR 183-87.) During the hearing before the ALJ, Ronald Kendrick, M.D., testified as a medical expert (AR 15, 72-95), and John Komar testified as a vocational expert (AR 15, 100-12.) On January 25, 2018, Plaintiff was found not disabled within the meaning of the SSA. (AR 24-25.) On July 23, 2018, the ALJ's Decision became the Commissioner's final decision when the Appeals Council denied Plaintiff's request for review. (AR 1.) This appeal followed.
II. ALJ's Decision
For purposes of Social Security benefits determinations, a disability is defined as:
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.
Whether a claimant is disabled is determined using a five-step evaluation process. It is claimant's burden to show (1) he has not worked since the alleged disability onset date, (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 doing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the inquiry ends. If the claimant satisfies his burden though step four, the burden shifts to the Commissioner to show at step five 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).
In this case, the ALJ determined at step one that Plaintiff had not engaged in substantial gainful activity between his alleged onset date of November 30, 2006, through his date last insured of December 31, 2010. R. at 18. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease and degenerative joint disease. R. at 28. The ALJ concluded that Plaintiff's mental impairment of major depressive disorder was not severe as it "did not cause more than minimal limitation in the [Plaintiff's] ability to perform basic mental work activities . . .." R. at 18. At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or equaled a Listed impairment. R. at 19-20.
According the ALJ, Plaintiff retained the RFC to perform
sedentary to light level work as defined in 20 CFR 404.1567(b) except as follows: lift up to 15 pounds occasionally, 10 pounds frequently; stand and walk four out of every 8-hours; sit six out of every 8-hours; no ladders, ropes, or scaffolds, can only occasionally use ramps, stairs, or a step-stool; can occasionally balance, stoop, kneel, crouch, or crawl; only occasional bilateral overhead reaching; frequent bilateral handling and fingering; must avoid concentrated exposure to extreme cold, vibrations, or hazards, with hazards commonly defined as either unprotected heights or dangerous machinery; cannot consistently work in a fast-paced production environment, such as the pace demanded of individuals working in a fast food restaurant, such as a McDonald's or In and Out Hamburger Restaurant; and can attend and concentrate in two hour blocks of time throughout an 8-hour workday, with the two customary 10 to 15 minute breaks and the customary 30 to 60 minute lunch period.R. at 20. At step four, the ALJ found that Plaintiff could not perform his past relevant work as a stock control clerk. R. at 23.
At step five, based on Plaintiff's RFC and testimony from a vocational expert, the ALJ concluded that Plaintiff could work as a food and beverage order clerk, a document preparer, an addresser, or an escort vehicle driver, and found Plaintiff "not disabled." R. at 22-23.
III. Standard of Review
The ALJ's decision to deny disability 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 is "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). In evaluating 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. Chater, 157 F.3d 715, 720 (9th Cir. 1998); see 42 U.S.C. § 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive"). 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).
IV. DISCUSSION
A. Plaintiff's Claims of Error
1. Plaintiff's VA Disability Rating
In a Rating Decision dated January 14, 2009, the VA determined that Plaintiff was unable to maintain employment due to service-connected disability and was therefore entitled to disability benefits based on individual unemployability. R. at 1237-1240. Plaintiff contends that substantial evidence does not support the ALJ's decision because the ALJ accorded no perceptible weight to the VA's disability determination. Opening Brief (Doc. 16), pp. 10-12. "[A]lthough a VA rating of disability does not necessarily compel the SSA to reach an identical result, 20 C.F.R. § 404.1504, the ALJ must consider the VA's finding in reaching [the] decision." McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). A VA rating is not conclusive, however. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011). An ALJ must give great weight to a VA disability determination, but he may give less weight if he "gives persuasive, specific, valid reasons for doing so that are supported be the record." McCartey, 298 F.3d at 1076.
In both McCartey and McLeod the ALJ failed even to mention the claimants' VA disability ratings. In both cases, the Ninth Circuit reversed the district court decision affirming the denial of Social Security benefits. Like those cases, the ALJ here also never mentioned the VA disability rating in his decision. The Commissioner nevertheless contends that because the ALJ, in finding Plaintiff not disabled, discussed the opinions and records of Plaintiff's VA doctors (rather than the VA rating itself) the requirement that persuasive, specific, and valid reasons for giving less weight to the VA rating was satisfied. Answering Brief (Doc. 17), pp. 4-5. The Court cannot agree with the Commissioner's position.
In Luther v. Berryhill, 891 F.3d 872 (9th Cir. 2018), another case involving the evaluation of a VA disability rating, the Ninth Circuit stated that "[s]imply mentioning the existence of a VA rating is not enough." Id. at 177. Here, it is undisputed that the VA disability rating, although a part of the administrative record, is not even mentioned in the decision. More important, however, is the Ninth Circuit's repeated direction that the ALJ give "great weight" to the VA disability rating. Id. In its current state, the decision provides no indication of what weight the ALJ gave the VA disability rating. Without any express mention of the VA rating or the standard by which it was being evaluated, it is impossible to conclude that the ALJ recognized the rating and applied the proper weight. Affirmation of the ALJ's decision would therefore require the Court to improperly speculate about the basis for the ALJ's conclusion of non-disability. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 695 (9th Cir. 2009) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990)).
The Commissioner nevertheless contends that the decision should be affirmed because the ALJ analyzed the opinions of the examining and treating VA physicians in reaching his conclusion that Plaintiff is not disabled. This argument misses the point. The cases require that, as a starting point, the VA rating be given "great weight." See McCartey, 298 F.3d at 1076-77. It appears, however, that the ALJ applied the usual non-VA rating case standards in evaluating the opinions of those physicians. The ALJ stated that "[l]ittle to no evidentiary weight was accorded to VA consultative examiners, Dr. John Clymer and Sandra Gallagher, PhD. Particularly in light of the findings reported by the claimants' treating VA psychiatrist, Dr. Janine Allison." R. at 23 (Decision). In the usual case, the ALJ would of course be permitted to discount the opinions of consulting examiners in favor of the opinion of the claimant's treating physician. See, e.g., Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (recognizing that the opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant). These ordinary rules, however, are impacted by the existence of a VA disability rating that is entitled to "great weight." For example, if the ALJ's decision to find the claimant not disabled was not based on overwhelming evidence supporting that conclusion, the requirement that the disability rating be given such deference may very well tip the scale in favor of a finding of disability. Because the Court cannot discern what, if any, weight was given to the claimant's disability rating, the ALJ's omission of even a mention of the VA rating cannot be found to be "inconsequential to the ultimate nondisability determination," Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations omitted), and, therefore cannot be characterized as harmless.
2. Plaintiff's need for workplace accommodations
Plaintiff contends that the ALJ should have found him disabled at step five because "uncontradicted evidence" that he needed an elevated-height toilet stool with a versa rail. These accommodations were recommended for Plaintiff in an October 30, 2006, Individual Independent Living Assessment prepared by David Weaver, Jr., M.S. R. at 479-481. However, as the Commissioner notes, these accommodations are not mentioned elsewhere in the record and Plaintiff never requested, installed or made use of the suggested accommodations. In fact, during a previous Social Security hearing in 2012, Plaintiff testified that while he did have the recommended shower chair and grab bars, he did not have an elevated toilet or versa rail. R. at 49. The ALJ is not required to discuss every piece of evidence and did not commit error in omitting this evidence as it is not significant or probative. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Moreover, even if the omission amounted to error, it was harmless and "inconsequential to the ultimate nondisability determination." Carmickle v. Comm'r, 533 F.3d 1155, 1162 (9th Cir. 2008).
3. Obesity Evaluation
Plaintiff asserts that the ALJ erred by failing to evaluate evidence that he was obese. However, Plaintiff does not identify in the record "any evidence of functional limitations due to obesity which would have impacted the ALJ's analysis." Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Nevertheless, because this Court recommends that this matter be remanded, on remand, the ALJ should consider whether Plaintiff's obesity is a severe impairment and, if so, its impact on Plaintiff's RFC. See Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003) (obesity should be considered if "raised implicitly" by plaintiff's report of symptoms).
4. Testimony of Dr. Kendrick
At the hearing, Ronald Kendrick, M.D., was called as a medical expert and was questioned by both the ALJ and Plaintiff's counsel. Plaintiff contends that the ALJ failed to evaluate important parts of Dr. Kendrick's testimony that were inconsistent with the decision. However, most of the testimony to which Plaintiff refers was prompted by questions from Plaintiff's counsel that prompted speculative testimony from Dr. Kendrick. For example, Plaintiff's counsel asked the doctor whether people with chronic pain tend to miss more work than those who did not. R. at 88. The doctor responded that it was possible. Id. Similarly, Plaintiff's counsel asked the doctor if the use of narcotic pain medication could cause significant side effects such as grogginess, the doctor agreed that they could. R. at 83-84. Under examination, it is apparent that Dr. Kendrick's responses to counsel's questioning were not specific to Plaintiff. His responses were generalizations that he never ascribed to the Plaintiff.
Plaintiff also contends that Dr. Kendrick identified "chronic pain syndrome" as Plaintiff's "primary problem." The colloquy associated with Plaintiff's contention was as follows:
Plaintiff's Counsel: Okay. And he also has a chronic pain syndrome diagnosis. Is - and did during the relevant period, is that correct?R. at 82. Neither during the exchange with Dr. Kendrick, nor in his Opening Brief, does Plaintiff identify where in the record Plaintiff was diagnosed with "Chronic Pain Syndrome." From the context of the question, it may very well be that Dr. Kendrick was merely opining that Plaintiff suffered from chronic pain due to his impairments, but was not stating, as Plaintiff contends, that Plaintiff was suffering from the medically determinable impairment of "Chronic Pain Syndrome" as described in SSR 03-02p (requiring that condition be "documented by appropriate medical signs, symptoms, and laboratory findings"). This is a matter that should be clarified on remand and included in the ALJ's evaluation should it be found to exist.
Dr. Kendrick: Chronic Pain?
Counsel: Syndrome.
Dr. Kendrick: Yes, that's the - his primary problem quite frankly.
5. Plaintiff's Use of a Cane
Plaintiff contends that substantial evidence does not support the ALJ's omission from the ALJ's RFC assessment of Plaintiff's need for a cane. The use of a hand-held assistive device such as a cane is a functional limitation only if it is medically required. See SSR 96-9p, 1996 WL 374185, at *7 (July 2, 1996); Quintero v. Colvin, No. 13-00478, 2014 WL 4968269, at *10 (E.D. Cal. Sept. 29, 2014) ("The use of a cane or other 'hand-held assistive device' is probative of a claimant's functional limitations only if it is medically required."). "To find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information)." SSR 96-9p, 1996 WL 374185, at *7.
In this case, there appears to be no real dispute that Plaintiff used a cane during the relevant period. R. at 479. However, a plaintiff's testimony regarding necessity or a physician's mere observation of the use of a cane is insufficient to establish a medical necessity. See Marin v. Astrue, No. 11-09331, 2012 WL 5381374, at *4 (C.D. Cal. Oct. 31, 2012) (finding ALJ "justifiably concluded that plaintiff's use of a cane did not warrant a more limited RFC" where only plaintiff's own testimony corroborated her use of a cane); Cashin v. Astrue, No. 09-161, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010) (finding physician's observation of claimant's use of cane during examination was not "an objective finding that plaintiff's cane was medically required"). Here, there is no clear opinion regarding the medical necessity for a cane. There is a VA record from March 2007 that reflects a diagnosis of "low back pain" and an associated request for a "theracane," but that device appears to be a cane-shaped device used as a trigger-point massager and is not designed as an aid to ambulation. R. at 973; Thera Cane, http://theracane.com (last visited Mar. 5, 2020). Additionally, in the 2006 Individual Independent Living Assessment, David Weaver, M.S., indicated that Plaintiff had a cane, but did not list a cane in his recommendations to promote independent living. R. at 481.
Although Plaintiff contends otherwise, Dr. Kendrick's testimony is readily interpreted as indicating that Plaintiff does not need a cane. At the hearing, Dr. Kendrick, contrary to Plaintiff's contentions, expressly stated that the cane is "primarily a psychological crutch if - pardon the expression - and that's part of the patient said he uses it, I don't see any other necessity for it." R. at 76. Although the doctor later states that Plaintiff "can get by without [the cane] in most circumstances," R. at 77, to the extent the statement can be interpreted as indicating a cane is necessary, it must be read in context with the doctor's earlier statement that it is used as a "psychological crutch" without "any other necessity for it."
In the decision, the ALJ noted that Plaintiff testified that he had been using a cane for many years but had canceled his VA gait assessment in October 2007 and did not thereafter undergo gait assessment at any time before his date last insured. R. at 20. The ALJ also reported that Plaintiff "may have been prescribed one session of physical therapy, lasting less than six months." R. at 20. The ALJ further noted that while Plaintiff's record did reflect the use of a cane, a September 2010 VA treatment notes stated that Plaintiff had "no deformities or muscle atrophy" and said that he was functionally independent." Given that the evidence did not establish that Plaintiff's cane was medically required, the ALJ did not err by not including it as part of Plaintiff's RFC.
6. Lay-witness Statements
Katherine Kessler testified that Plaintiff used a cane. R. at 667. The ALJ gave Kessler's testimony "some weight," but rejected her statements about Plaintiff's "functioning" because they were "not supported by the weight of the credible medical evidence of record." R. at 23. Lay witness testimony is "incompetent" when it consists of a medical diagnosis, because "medical diagnoses are beyond the competence of lay witnesses" to make. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). As discussed above, the necessity of the use of a cane is a functional limitation only if its use is medically required and supported by medical documentation. See SSR 96-9p, 1996 WL 374185, at *7. Because the required medical documentation was not present in the record, lay witness testimony could not establish the necessity for Plaintiff's use of a cane. As such, the ALJ could properly reject the lay witness testimony that a cane was required.
B. Remedy
The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to order an immediate award of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Ordinarily, when a court reverses an administrative agency determination, the proper course is to remand to the agency for additional proceedings. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Generally, an award of benefits is appropriate only when:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before the determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). An award of benefits is appropriate where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed. Varney v. Sec'y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988).
Here, outstanding issues remain to be resolved. On remand, the ALJ must consider the VA's disability rating in reaching his decision about Plaintiff's ability to work, giving the VA rating "great weight" or providing sufficient reasons not to. The ALJ must also consider Plaintiff's alleged obesity and chronic pain disorder. As such, the Court recommends that this matter be remanded.
IV. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order granting Plaintiff's request to reverse the Commissioner's final decision and remand to the ALJ to conduct further proceedings.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless leave to do so is granted by the district court. If any objections are filed, this action . . . . . . . . . . . . . . . . should be designated case number: CV 18-0473-TUC-RM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 10th day of March, 2020.
/s/_________
Honorable Jacqueline M. Rateau
United States Magistrate Judge