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crediting as a matter of law the opinions of plaintiff's two treating physicians and remanding the case for the purpose of identifying plaintiff's transferable job skills and for determining whether there are a significant jobs in the national economy that plaintiff could perform
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No. C 01-0250 JL
January 29, 2002
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; ORDER DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT; REMANDING FOR FURTHER FINDINGS
I. INTRODUCTION
Plaintiff Melchor Adame filed a Motion for Summary Judgment [7-1] to obtain judicial review of the Social Security Commissioner's final decision denying him disability insurance benefits. He seeks reversal of that decision and an order for payment of benefits. Defendants filed a Cross-Motion for Summary Judgment [14-1] requesting that the decision be affirmed. The motions were submitted on the papers without oral argument. This court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 636(c).
The decision of the Commissioner must be affirmed if it is supported by substantial evidence and free from legal error. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). The district court is required to consider the entire administrative record when evaluating the Commissioner's decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 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." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Even where a decision is supported by substantial evidence in the record, however, it "should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978), citing Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968).
This Court finds that the Administrative Law Judge ("ALJ") did not apply the proper legal standards in his analysis of the evidence. Because the ALJ failed to identify specific and legitimate reasons for rejecting the opinions of plaintiff's two treating physicians, we credit those opinions as a matter of law. Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989). Plaintiff is therefore found to have a residual functional capacity to perform work at the sedentary duty level. This matter is remanded for the purpose of identifying plaintiff's transferable job skills and for determining whether there are significant jobs in the national economy which plaintiff can perform. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
II. PROCEDURAL BACKGROUND
On August 20, 1998, Mr. Adame filed for disability insurance benefits on the grounds that his March 27, 1998 cardiac surgery and related complications rendered him disabled. His claim was denied initially and then again on reconsideration. Plaintiff thereafter requested an administrative hearing. ALJ Robert Wenten conducted the de novo hearing on October 12, 1999. In December 1999, Judge Wenten ruled that plaintiff was not eligible for benefits. Mr. Adame filed an administrative appeal and produced further evidence pursuant to 20 C.F.R. § 416.1476 (2000). The Appeals Council affirmed the ALJ's decision on December 19, 2000. Plaintiff has exhausted his administrative remedies and now brings this action for judicial review. Both parties consented to the jurisdiction of this court as required by 28 U.S.C. § 636(c).
III. FACTUAL BACKGROUND A. Mr. Adame's Medical History
In early March of 1998, Melchor Adame reported to his longtime physician, Sung Ryoo, M.D., with complaints of frequent and prolonged chest pain. Dr. Ryoo referred plaintiff to a cardiologist for diagnostic testing. On March 23, 1998, Mr. Adame underwent a coronary angiography and cardiac catheterization. These procedures revealed severe three-vessel cardiac disease including a 40% to 50% distal left main stenosis, total occlusion of the right ventricle and Class III angina pectoris. On March 27, 1998, Dr. Rolf Sommerhaug performed a quadruple aortacoronary bypass surgery on plaintiff
Mr. Adame returned to the hospital on April 28, 1998, with complaints of swelling and possible infection along the sternal incision. Plaintiff was admitted and the sternal area was incised and drained. Dr. Michael Ein, an infectious disease specialist, determined that plaintiff was suffering from a staph infection along the incision line. Dr. Ein recommended surgical exploration of the sternal site, removal of the sternal wires, and possible debridement of the anterior sternum.
Plaintiff continued to suffer sternal pain after the infection subsided. He consulted Drs. Ryoo and Sommerhaug on a monthly basis through November of 1998. At each appointment, he reported severe fatigue, pain, soreness, and a "snapping" sound in his chest. On December 21, 1998, Mr. Adame underwent a sternal CT scan which suggested fracture or nonunion in the sternum. The radiologist also noted that the sternal wires were extending into the 6th and 7th costal cartilage.
On March 9, 1999, Dr. Sommerhaug performed the exploratory surgery. Dr. Sommerhaug found that the "sternum had solidly healed to the bone." He nonetheless cut and removed the sternal wires in an attempt to reduce plaintiff's pain. Although the surgery provided some relief, Mr. Adame continued to suffer from sternal pain and "snapping." Mr. Adame consulted his doctors regarding these symptoms 12 times during 1999. Throughout this period, the doctors both recognized incomplete healing of the thoracotomy area, increased pain with minor physical exertion and continued severe fatigue.
In early 1999, Dr. Ryoo wrote to plaintiff's counsel. The letter indicated that Mr. Adame's symptoms resulted from both the coronary artery disease and the incomplete healing of the sternal area. Dr. Ryoo stated that plaintiff's complaints of severe fatigue and sharp pain on minor physical exertion were consistent with his condition. Although plaintiff's pain exceeded that experienced by patients in the majority of cases, the complaints were not unusual. Dr. Ryoo stated: "I do not foresee any improvement in near future."
In July of 1999, Dr. Ryoo completed a "Medical Source Statement" provided by the Social Security Administration ("SSA"). The report indicated the following: Mr. Adame can sit for a maximum of 30 minutes and then needs to stand or walk about for 30 minutes before he can sit again. Maximum sitting is 4 hours in an 8 hour day. Plaintiff can stand for a maximum of 3 hours in an 8 hour day. In addition to regular breaks, Mr. Adame would have to rest during the work day. While working, plaintiff could frequently lift 1 to 5 pounds and occasionally lift 6 to 10 pounds. Dr. Ryoo recommended that plaintiff rarely or never lift over 10 pounds. There could be occasional bending, squatting, climbing, and reaching above the shoulder level, but no crawling. The total standing and sitting allowed is 7 hours.
On February 1, 2000, Dr. Sommerhaug wrote to plaintiff's counsel regarding Mr. Adame's work limitations and classification. After a short recital of the related medical history, Dr. Sommerhaug stated "at this time, I do not feel he will be able to return to a position that requires any lifting, and recommend that he be retrained for sedentary work with his present employer." Sedentary work is defined in the Code of Federal Regulations as:
Dr. Sommerhaug's February 1, 2000 letter states that Mr. Adame was seen on four occasions in 1999 after his 3/9/99 surgery. Mr. Adame's medical records, however, reveal that he consulted with Dr. Sommerhaug eight times in 1999 after his 3/9/99 surgery.
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a) (2000).
B. Disability Determination Services' Medical Analysis
Disability Determination Services ("DDS") is a state agency which provides medical analysis for the Social Security Administration. The agency conducts both physical examinations and medical records reviews. The purpose of the evaluations is to determine whether a claimant possesses the physical capacity to work in light of his or her medical or psychological condition. The assessment yields the claimant's "residual functional capacity" (RFC) to perform work at the sedentary, light, medium or heavy duty level.On September 28, 1998, Dr. Donald Carson completed a medical records evaluation for DDS. Mr. Adame's medical history was reviewed and his continued sternal pain was noted. Dr. Carson determined that Mr. Adame's sternal pain would eventually subside and that he would be capable of performing light work by March of 1999. Light work is defined in the Code of Federal Regulations as:
Light work requires lifting up to 20 pounds, with frequent lifting and carrying of objects up to 10 pounds, and a good deal of walking or standing or sitting with pushing and pulling controls. To be considered capable of performing the full or wide range of light work, you must have the ability to do substantially all of these activities. 20 C.F.R. § 404.1567(b) (2000).
In February of 1999, a second medical records evaluation was performed by Dr. Shepard Fountaine. Dr. Fountaine reviewed Mr. Adame's medical history including a January 15, 1999 stress test. The test results suggested that Mr. Adame tested positive for ischemia but possessed good exercise tolerance. Dr. Fountaine set exertional limitations identical to those of Dr. Carson's. He reported that "the claimant can probably perform some work related activities, but the status of the sternal abnormality should be a major determinant." He concluded that the RFC assessment of light exertional activity was appropriate unless Mr. Adame "has had recent sternal (or imminently scheduled for surgery) surgery (sic)."
IV. LEGAL ARGUMENT
Plaintiff argues that the Administrative Law Judge did not apply the proper legal standard when weighing the opinions of the treating physicians against those of the non-examining, state agency physicians. As a result, the ALJ rendered improper findings of fact regarding plaintiff's medical condition which were outcome determinative. Specifically, Mr. Adame claims that the ALJ's determination that plaintiff was capable of performing light duty work incorrectly resulted in a finding of "not disabled."
Plaintiff also complains that the ALJ incorrectly assessed his level of skill. Mr. Adame contends that he possesses the skills required of a "garbage collector." The ALJ found that plaintiff possessed the greater skills of a "garbage collector driver." The ALJ relied on these skills when he determined whether there were significant jobs in the national economy. Mr. Adame claims that this erroneous determination also led to a finding of "not disabled." Plaintiff requests that this court set aside the finding on the grounds that it is not supported by the substantial evidence.
Defendant maintains that the Administrative Law Judge applied the proper legal standard. Although the treating physicians' opinions are to be given some weight, the ALJ has a duty to resolve any conflicts in the medical testimony and evidence. Defendant supports the ALJ's finding that substantial evidence in the record conflicts with the treating physicians' opinions. Under these circumstances, the ALJ was required to exercise discretion in determining whether the claimant is disabled. See Snell v. Apfel, 177 F.3d 128, 131 (2nd Cir. 1999). The defendant requests that this court grant its Cross-Motion for Summary Judgment on the grounds that the finding of "not disabled" was within ALJ Wenten's discretion.
V. DISCUSSION
The issue before this court is whether the ALJ's decision is both free from legal error and supported by substantial evidence. If the ALJ applied the proper legal standards in evaluating the evidence, then this court must affirm the finding of "not disabled." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). If the proper legal standard was not applied, then the decision must be set aside. Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978), Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968).
A. If a Treating Physician's Medical Opinion is Supported by Medically Acceptable Diagnostic Techniques and Is Not Inconsistent With Other Substantial Evidence, the Opinion is Given Controlling WeightMr. Adame has regularly consulted with two physicians since the onset of his severe cardiac condition in March of 1998 — Drs. Ryoo and Sommerhaug. On July 31, 1999, Dr. Ryoo outlined what he believed to be Mr. Adame's exertional limitations. These limitations are consistent with a residual functional capacity for sedentary work. In February of 2000, Dr. Sommerhaug specifically stated that Mr. Adame was unable to return to his prior work and should be retrained for sedentary work. These opinions are supported by plaintiff's medical history, medical records, subjective complaints, court testimony, SSA Disability Applications and SSA Daily Activities Questionnaires.
If a treating physician's medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence, the opinion is given controlling weight. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended, April 9, 1996). In order for an ALJ to reject the opinions of the treating physicians, he must provide "specific and legitimate reasons" supported by substantial evidence in the record. Id. In the present matter, the ALJ held that the limitations set by Drs. Ryoo and Sommerhaug were too restrictive. The ALJ further held that Mr. Adame was capable of performing light, as opposed to sedentary, work. The ALJ outlined the following as "substantial evidence" in support of his determination:
1. The ALJ found that the residual functional capacity for light work was consistent with the conclusions of the Disability Determinations Services.
The ALJ first suggested that the DDS reports support a finding that plaintiff is capable of performing jobs at the light duty level. Mr. Adame's case was reviewed by two doctors from Disability Determinations Services. Both Drs. Donald Carson and Shepard Fountaine reviewed the medical records that were available at the time of each evaluation. Neither doctor performed a physical examination.
The ALJ primarily relied on Dr. Carson's September 28, 1998 report which states that Mr. Adame's residual functional capacity should allow him to perform light duty work by March of 1999. This report, however, was drafted before the severity of plaintiff's sternal condition became apparent. Dr. Carson's conclusions were therefore premature. Plaintiff was suffering from significant sternal pain in March of 1999 and was clearly unable to return to work at that time. The pain was so severe, in fact, that he agreed to undergo another highly invasive surgical procedure to remove the sternal wires which had been placed in his chest during the coronary surgery. Although Dr. Carson could not have predicted the development of this sternal condition, it certainly changed the facts upon which he rendered his conclusion that plaintiff could return to light work in March of 1999.
The ALJ also relied on the records evaluation performed by Dr. Fountaine in February of 1999. Dr. Fountaine also set the RFC at light duty, however he stated that this would be an inappropriate assessment if plaintiff were scheduled for sternal surgery. Plaintiff did in fact have this surgery the following month. This fact nullifies Dr. Fountaine's own RFC assessment of plaintiff's ability to work at the level of light duty.
When comparing the opinions of treating physicians and non-examining physicians, the opinions of the treating physicians are given controlling weight because those doctors are "specifically employed to cure the patient and thus have a greater opportunity to know and observe the patient as an individual. Therefore, an ALJ may not reject treating physicians' opinions unless he makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Smolen, 80 F.3d at 1285.
In the present matter, the treating physicians set the residual functional capacity assessment at the sedentary level. The reports prepared by Drs. Carson and Fountaine do not necessarily challenge this assessment. Dr. Carson rendered his opinion before plaintiff's chronic sternal pain forced him to undergo further surgery. Dr. Fountaine indicated in his assessment that it was based on the assumption that the sternal pain would not lead to surgery. The opinions of the DDS doctors cannot reasonably be interpreted as substantial evidence that supports the conclusion that plaintiff has an RFC sufficient to perform work at the light exertional level.
2. The ALJ found that treating physicians' residual functional capacity determination of sedentary work was not supported by the treatment records.
The ALJ suggested that he would not accept an RFC of sedentary work because the treatment records do not support such a limitation. First, he noted that the plaintiff had not received any care in the eight month period preceding the hearing. Second, he reviewed Dr. Sommerhaug's records and suggests that there was no indication from that doctor that Mr. Adame is limited to sedentary work. Finally, he stated that the fact that Dr. Ryoos signed a medical certificate for the renewal of plaintiff's commercial driver's license was inconsistent with sedentary restrictions.
The ALJ's statement that there was an eight month gap in treatment between April and December of 1999 is wholly inaccurate. Plaintiff consulted with Dr. Sommerhaug on seven occasions in 1999. Further, he sought emergency care for increased chest pain at the Mt. Diablo Medical Center Emergency Department in April 1999.
The ALJ commented that Dr. Sommerhaug had not explicitly limited plaintiff to sedentary work. In response, the doctor forwarded a letter to plaintiff's counsel on February 1, 2000. The final paragraph reads "at this time, I do not feel he will be able to return to a position that requires any lifting, and recommend that he be retrained for sedentary work with his present employer." Although this letter was not available at the time of the ALJ's ruling, it was submitted to the Appeals Council and must be taken into consideration in this review as it is part of the administrative record. It is now evident that Dr. Sommerhaug concurs with the limitations set by Dr. Ryoo.
Finally, the ALJ stated that the renewal of the commercial driver's license was inconsistent with a sedentary RFC. This is an illogical conclusion. Dr. Ryoo limited plaintiff to four hours of sitting in an 8 hour day. There is absolutely no indication that plaintiff cannot spend a portion of this time driving a commercial vehicle.
3. The ALJ did not find plaintiff's contention that he could not work an eight hour day to be credible.
The ALJ maintained that plaintiff's testimony regarding his inability to work for an eight hour period is not credible. In order for an ALJ to reject symptom testimony by a plaintiff, he must perform a two step analysis. Smolen, 80 F.3d at 1281. The first step requires that the ALJ determine whether the plaintiff can produce medical evidence of an impairment that could reasonably be expected to produce some degree of pain. Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986). If the plaintiff can satisfy the Cotton test, then the ALJ can challenge plaintiff's credibility only by providing "clear and convincing" reasons for doing so. Id. This analysis is meant to be weighed in favor of the plaintiff, who must demonstrate only a causal relationship between the symptom and the impairment. The plaintiff is not required to show that the symptoms result from a "medically proven phenomenon." Smolen, 80 F.3d at 1281.
In the present matter, the plaintiff easily satisfied the Cotton Test. The ALJ acknowledged this in his findings. In order to reject plaintiff's contention that he is unable to work an eight hour day due to pain and fatigue, ALJ Wenten must set forth clear and convincing reasons for rejecting Mr. Adame's pain testimony. Judge Wenten stated:
the treatment record does not support plaintiff's contention that he is unable to do any work all day. His cardiac surgery was successful. His cardiac surgeon has stated only that he cannot do his past heavy work. His treatment records stop in April of 1999. His activities as set forth above are fairly extensive. He qualifies medically for a commercial driver's license. His cardiac surgeon suggested retraining.
The majority of these arguments are addressed above. ALJ Wenten did add that Mr. Adame's daily activities are inconsistent with his testimony. Although Mr. Adame does engage in a number of activities, there is no evidence suggesting that these activities are performed on a daily basis or for an eight hour period. Mr. Adame stated that he generally attempts to drive, walk, read or water the grass for a short period of time. He easily tires and must stop to rest. Mr. Adame's daily activities and testimony regarding the activities are consistent with an RFC at the sedentary level.
An ALJ must provide specific and legitimate reasons for rejecting the opinion of a treating physician. ALJ Wenten articulated a number of concerns regarding the limitations set by Drs. Ryoo and Sommerhaug. He cannot, however, reject their opinions without demonstrating that substantial evidence exists in the record to support a contrary finding. The evidence presented by ALJ Wenten does not satisfy this standard. When an ALJ fails to provide legitimate reasons for rejecting the opinion of a treating physician, the opinion is credited as a matter of law. Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989).
B. Further Proceedings Are Necessary to Determine Whether Plaintiff's Skills Are Transferable.
Mr. Adame contends that he does not possess any employment skills that would allow him to find further employment. He claims that his past relevant work was that of an unskilled "garbage collector" (DOT 955.687-022). He bases this contention on the fact that he performed heavy lifting which is consistent with the job of "garbage collector" as outlined in the Dictionary of Occupational Titles. The ALJ, however, determined that Mr. Adame's past relevant work also required that he be able to perform the work of a semi-skilled "garbage collector driver" (DOT 905.633-010). Although it is clear that Mr. Adame performed the heavy work of a garbage collector and that he can no longer do that work, it is also clear that his prior position required skills in excess of those listed for a garbage collector in the DOT.
Plaintiff: — I move the truck, yeah, and I get out of the truck and go to the pile —
ALJ: Uh-huh
Plaintiff: — and then dump it and walk to the driver.
ALJ: So, you did both? You drove the truck and you also got out and collected?
Plaintiff: Yeah, yes.
ALJ: Do you have a special commercial driver's license?
Plaintiff: Yeah.
The ALJ's determination that Mr. Adame was a semi-skilled worker is supported by plaintiff's own testimony. Consequently, the ALJ's conclusion that Mr. Adame possessed skills commensurate with a "garbage collector driver" is accurate.
Plaintiff's counsel argues that ALJ Wenten failed to support his findings that plaintiff has transferable skills. Under Social Security Ruling 82-41, the ALJ must specifically identify which skills are transferable. Although the ALJ did outline the skills of a garbage collector driver, he did not specifically identify which of these skills were transferable. These skills must be identified on remand.
C. The ALJ's Failure to Properly Identify Mr. Adame's Residual Functional Capacity Led to a Misapplication of the GRIDS.
The Code of Regulations outlines a five-step sequential analysis to be used when determining whether a Social Security applicant is disabled. 20 C.F.R. § 404.1520 (2000). In steps one through four, the plaintiff must show a severe impairment that precludes a return to prior employment. In step five, the burden shifts to the Commissioner to determine whether the plaintiff can perform other jobs that exist in significant numbers in the national economy. The Commissioner must take the plaintiff's residual functional capacity, age, education and job skills into consideration.
The Commissioner can satisfy this burden in two different manners. If the plaintiff suffers from physical or "exertional" limitations, the commissioner can refer to the "Medical Vocational Guidelines," otherwise called the "GRIDS," in the Code of Federal Regulations. 20 C.F.R. Pt. 404(b), app. 2. The GRIDS require that the commissioner make an initial determination of the claimant's residual functional capacity. The commissioner then refers to the corresponding RFC table. The table creates a set of paths that allows the plaintiff's age, education and level of skill to direct the commissioner to a finding of "disabled" or "not disabled." The GRIDS finding creates an irrebuttable presumption as to whether there are a significant number of jobs in the national economy that claimant can perform.
When a plaintiff suffers from psychological or "non-exertional" impairments, the GRIDS cannot adequately predict whether these other jobs exist. Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573 (9th Cir. 1988). In such situations, the commissioner is required to "call upon a vocational expert to testify as to: (1) what jobs the claimant, given his or her residual functional capacity, would be able to do; and (2) the availability of such jobs in the national economy." Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).
As Mr. Adame suffers from an exertional limitation, the ALJ properly referred to the GRIDS. Because the Commissioner found that plaintiff had a residual functional capacity to perform light work, the ALJ consulted 20 C.F.R. Pt. 404(p), App.2, Table 2 for plaintiff's disability determination. As this table only reflects the existence of light duty jobs, it in no way answers whether there are significant sedentary jobs in the national economy that plaintiff can perform. The commissioner, therefore, did not satisfy his burden due to the erroneous determination that plaintiff had an RFC to perform light work.
VI. CONCLUSION
The ALJ's determination that Mr. Adame possesses a residual functional capacity to perform light work is not supported by the substantial evidence. Both of plaintiff's treating physicians agreed that he possessed a residual functional capacity to perform work at the sedentary level. The opinions of the state agency, non-examining physicians were premature and self-limiting. When considering the weight that is to be afforded to the opinions of the treating physicians, the opinions of Drs. Carson and Fountaine cannot be said to amount to substantial evidence. Because the ALJ failed to identify specific, legitimate reasons for rejecting the opinions of the treating physicians, the opinions must be credited as a matter of law.
Remand is appropriate when the record is insufficient for the District Court to determine whether the plaintiff is disabled. Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 2000). Although the ALJ correctly found that plaintiff possesses the skills of a garbage collector driver, he failed to identify what those skills are and whether they are transferable. On remand, the ALJ shall make the appropriate findings and then proceed with Step Five of the sequential analysis to determine whether there are significant jobs in the national economy that plaintiff can perform.
This case is therefore remanded to the Administrative Law Judge for findings consistent with this order. This order resolves documents numbered 7-1 and 14-1 in the court's docket.