Marshall v. Saul

          ORDER

          H. Russel Holland United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Robert Olin Marshall has timely filed his opening brief, ^[1] to which defendant, Andrew M. Saul, ^[2] has timely responded. Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On September 30, 2012, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that he became disabled on November 26, 2009. Plaintiff alleges that he was disabled because of knee, wrist, elbow, and left clavicle pain. Plaintiff's application was denied initially, and plaintiff requested a hearing. After administrative hearings on April 9, 2014 and July 9, 2014, an administrative law judge (ALJ) denied plaintiff's application. Plaintiff sought review of the ALJ's September 4, 2014 unfavorable decision. On February 17, 2016, the Appeals Council denied plaintiff's request for review. Plaintiff sought judicial review, and on March 31, 2017, the court reversed the Commissioner's final decision and remanded this matter for further proceedings. On June 30, 2017, the Appeals Council consolidated plaintiff's 2012 claim with a subsequent claim plaintiff filed on November 25, 2014 and ordered the ALJ to “consolidate the claim files, create a single electronic record and issue a new decision on the consolidated claims. . . .”^[3]The ALJ held an administrative hearing on June 28, 2018, after which he denied plaintiff's claims. Plaintiff bypassed written exceptions, thereby leaving the ALJ's October 25, 2018 decision as the final decision of the Commissioner. On December 31, 2018, plaintiff commenced this action in which he asks the court to review the Commissioner's final decision.

         General Background

         Plaintiff was born on July 9, 1962. He was 47 years old on his alleged onset date. Plaintiff has a high school education. Plaintiff's past relevant work was as a pipe welder and pipe fitter.

         The ALJ's Decision

         The ALJ first determined that plaintiff “last met the insured status requirements of the Social Security Act on December 31, 2014.”^[4]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.^[5]

         At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity during the period from his alleged onset date of November 26, 2009 through his date last insured of December 31, 2014. . . .”^[6]

         At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the following severe impairments: osteoarthritis status-post total right knee replacement, history of left clavicle pain, lumbar spondylosis, and lateral epicondylitis (tennis elbow) in the right elbow. . . .”^[7] The ALJ found that complex regional pain syndrome was not a medically determinable impairment.^[8] The ALJ found plaintiff's obesity, left knee pain, wrist pain, and hernia to be non-severe impairments.^[9] The ALJ also found plaintiff's depressive disorder to be non-severe.^[10] The ALJ considered the “paragraph B” criteria and found that plaintiff had no limitations as to understanding, remembering or applying information; no limitations as to interacting with others; no limitations as to concentration, persistence, or pace; and no limitations as to adapting or managing oneself.^[11]

         At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]”^[12]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found

that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following exceptions. The claimant could frequently balance, occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl. The claimant could never climb ladders, ropes or scaffolds. The claimant could frequently, not continuously, overhead reach with the left upper extremity. The claimant could have no exposure to unprotected heights and occasional exposure to hazardous machinery. The claimant could have frequent exposure to moving machinery. The claimant required a sit/stand option allowing him to alternate sitting/standing positions throughout the day without going off task.^[13]

         The ALJ gave little weight^[14] to Dr. Vermillion's opinions.^[15] The ALJ also gave little weight^[16] to the opinions of physical therapist Carlson.^[17] The ALJ also gave little weight^[18]to Dr. Cobden's opinions^[19] and Dr. Elson's opinion.^[20] The ALJ gave great weight^[21] to Dr. Lebeau's opinion.^[22] The ALJ also gave great weight^[23] to Dr. Holley's opinion.^[24] The ALJ gave some weight^[25] to the opinions of Dr. Anderson, ^[26] Dr. Provencher, ^[27] Dr. Kerr, ^[28] and Dr. Chong.^[29] The ALJ gave little weight^[30] to the lay testimony of plaintiff's wife.^[31]

         At step four, the ALJ found that “[t]hrough the date last insured, the claimant was unable to perform any past relevant work. . . .”^[32]

         At step five, the ALJ found that “[t]hrough the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could perform, ” including working as a small parts assembler, a ticket taker, and a storage rental clerk.^[33]

         Thus, the ALJ concluded that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from November 26, 2009, the alleged onset date, through December 31, 2014, the date last insured. . . .”^[34]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “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.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred in giving Dr. Lebeau's opinion great weight but then failing to incorporate some of the limitations assessed by Dr. Lebeau. Dr. Lebeau opined that plaintiff could frequently lift/carry 10 pounds; occasionally lift/carry 20 pounds; could sit for six hours in a day, up to two hours at a time; could stand for two hours in a day, up to one hour at a time; could walk for one hour, up to 15 minutes at a time; could frequently reach on the left side; was unlimited as to using his feet to push/pull controls; could occasionally climb stairs/ramps; should never climb ladders/scaffolds; could frequently balance; could occasionally kneel, stoop, crouch, and crawl; could never work around unprotected heights; and could frequently work around moving mechanical parts.^[35]

         The ALJ gave great weight to Dr. Lebeau's opinion, ^[36] but plaintiff argues that the ALJ then failed to include in his RFC all of the limitations assessed by Dr. Lebeau. “The ALJ is required to consider all of the limitations imposed by the claimant's impairments[.]” Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). Because the ALJ did not do so here, plaintiff argues that the ALJ erred.

         The ALJ found

that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) with the following exceptions. The claimant could frequently balance, occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl. The claimant could never climb ladders, ropes or scaffolds. The claimant could frequently, not continuously, overhead reach with the left upper extremity. The claimant could have no exposure to unprotected heights and occasional exposure to hazardous machinery. The claimant could have frequent exposure to moving machinery. The claimant required a sit/stand option allowing him to alternate sitting/standing positions throughout the day without going off task.^[37]

         The ALJ did not include the express limitations for standing and walking that Dr. Lebeau assessed, explaining that “the limitations Dr. Lebeau opined with standing, walking, and sitting have been addressed with a sit/stand option.”^[38]

         But, plaintiff argues that the sit/stand option does not adequately address Dr. Lebeau's opinion that he could only stand for two hours in a day, up to one hour at a time and could only walk for one hour, up to 15 minutes at a time. Plaintiff contends that the ALJ's RFC indicates that he can do light work. “The full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10. Yet, Dr. Lebeau opined that plaintiff could only stand or walk, off and on, for approximately three hours a day. Plaintiff argues that a sit/stand option does not get around the fact that Dr. Lebeau opined that he could not meet the standing and walking requirements of light work. Plaintiff insists that because the ALJ gave Dr. Lebeau's opinion great weight, the ALJ should have included the standing and walking limitations assessed by Dr. Lebeau and that the ALJ's failure to do so was error.

         As defendant points out, the ALJ did not find that plaintiff could do the full range of light work. Nevertheless, the ALJ erred here. The RFC is devoid of any specific limitations as to standing and walking. All it says is that plaintiff has the capacity to perform light work, which as set forth above, requires the ability to stand and walk, off and on, for about six hours a day. Dr. Lebeau opined that plaintiff only had the ability to stand and walk, off and on, for about three hours a day. There is a disconnect between Dr. Lebeau's opinion, to which the ALJ gave great weight, and the ALJ's assessed RFC. This disconnect is not adequately addressed by the sit/stand option as there may be a significant difference between being able to stand up for a few minutes and still stay on task, which is what the sit/stand option allows, and ...