Opinion
Case No. 2:17-cv-01922-RBL-TLF
01-03-2019
EVANGELINE F., Plaintiff, v. NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations Defendant.
REPORT AND RECOMMENDATION NOTED FOR JANUARY 18, 2019
Plaintiff appeals the Commissioner's denial of her applications for disability insurance and supplemental security income (SSI) benefits. This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set forth below, the Court should reverse the Commissioner's decision and remand this matter for payment of benefits.
PROCEDURAL BACKGROUND
Plaintiff applied for disability insurance and SSI benefits in May 2014. Dkt. 8, Administrative Record (AR) 21. She alleges her disability began on October 10, 2012, as a result of a car accident. Id.; AR 342, 361. The Commissioner denied plaintiff's applications on initial administrative review and on reconsideration. AR 21.
Following a hearing, an administrative law judge (ALJ) employed the Commissioner's five-step sequential disability evaluation process to find that plaintiff could perform other jobs existing in significant numbers in the national economy at step five of that process, and therefore that plaintiff was not disabled. AR 21-37.
Plaintiff seeks reversal of the ALJ's decision and remand for an award of benefits, or in the alternative for further administrative proceedings.
STANDARD OF REVIEW
The Court will uphold an ALJ's decision unless it is: (1) based on legal error; or (2) not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires "more than a mere scintilla," though "less than a preponderance" of the evidence. Id. (quoting Desrosiers, 846 F.2d at 576).
The ALJ is responsible for determining credibility and for resolving any conflicts or ambiguities in the record. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). If more than one rational interpretation can be drawn from the evidence, the Court must uphold the ALJ's interpretation. Trevizo, 871 F.3d at 674-75. That is, where the evidence is sufficient to support more than one outcome, the Court must uphold the decision the ALJ made. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008).
The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the evidence that supports, and evidence that does not support the ALJ's conclusion. Id.
The Court may not affirm the ALJ's decision by locating a quantum of supporting evidence and ignoring non-supporting evidence. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).The Court also may not affirm for a reason upon which the ALJ did not rely. Garrison, 759 F.3d at 1010. Rather, only the reasons the ALJ identified are considered in the scope of the Court's review. Id.
ISSUES FOR REVEW
1. Whether the ALJ erred in evaluating the medical opinion evidence?
2. Whether the ALJ erred in evaluating the personal observations of agency personnel?
3. Whether the ALJ erred in evaluating plaintiff's credibility concerning her physical impairments?
DISCUSSION
1. The ALJ Erred in Evaluating the Medical Opinion Evidence
An ALJ must give "clear and convincing" reasons supported by substantial evidence to reject a treating or examining physician's uncontradicted opinion. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Even where contradicted, the ALJ may reject a treating or examining physician's opinion only by providing "specific and legitimate" reasons that are supported by substantial evidence. Id. The same applies to the opinion of a treating or examining psychologist. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (citing Lester v. Chater, 81 F.3d 821, 830-31 and n.7 (9th Cir. 1995) (opinions of "physicians" include those from psychologists and other "acceptable medical sources")).
"Acceptable medical sources" include licensed physicians and licensed or certified psychologists. 20 C.F.R. § 404.1502(a); 20 C.F.R. § 416.902(a); Social Security Ruling (SSR) 06-03p, 2006 WL 2329939, at *1.
The ALJ can meet this requirement by setting out a detailed and thorough summary of the facts and conflicting evidence, stating his or her interpretation thereof, and making findings. Revels, 874 F.3d at 654. The ALJ generally must weigh a treating physician's opinion more heavily than an examining physician's, and an examining physician's opinion more heavily than a non-examining (reviewing) physician's. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). A non-examining (reviewing) physician's opinion is not by itself sufficient to justify rejecting the opinion of either an examining or a treating physician, Revels, 874 F.3d at 655, though it can constitute substantial evidence if "it is consistent with other independent evidence in the record." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
The ALJ need not discuss every item of evidence presented, Hiller v. Astrue 687 F.3d 1208, 1212 (9th Cir. 2012). But the ALJ "may not reject 'significant probative evidence' without explanation." Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995). The ALJ may reject even a treating physician's opinion if it is "brief, conclusory, and inadequately supported" by objective medical findings or "the record as a whole." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
a. Rahul Khurana, M.D.
Rahul Khurana, M.D., performed a psychiatric evaluation of plaintiff in September 2014. AR 489-93. Dr. Khurana found plaintiff had "moderate difficulty" with simple instructions, was "markedly to severely impaired" in regard to carrying out more complex instructions and work-related judgments, and had a "severe disability" for sustained concentration and persistence. AR 492-93.
Dr. Khurana also found that typical social interactions would be "severely difficult" for plaintiff, and that she would have "severe difficulty" in responding to changes in work routine. AR 493. Dr. Khurana concluded that her medical and mental illnesses made it "unrealistic" for her "to ever work again in any meaningful, long term capacity." Id. at 492.
The ALJ gave only "partial" weight to Dr. Khurana's opinion. AR 33. The ALJ found Dr. Khurana's conclusion that plaintiff had problems in social interactions "has support in the medical consultant opinions" in the record. Id. Likewise, the ALJ found Dr. Khurana's opinion regarding plaintiff's problems in responding to changes in work routine "also has support in the evidentiary record." Id.
The ALJ found Dr. Khurana's "statement of moderate difficulty with even simple instructions is an overstatement of the degree of deficit for" plaintiff. AR 33. Instead, the ALJ determined "[t]he evidence is more persuasive from other medical sources" that plaintiff could perform at the simple work level. Id.
The ALJ failed to provide specific, legitimate reasons for discounting Dr. Khurana's opinions. Despite finding Dr. Khurana's conclusions regarding problems with social interactions had support in the record, the ALJ did not adequately account for the severe difficulty plaintiff would have in typical social interactions in determining plaintiff's work-related capabilities. See AR 28 (restricting plaintiff to working with others and the public on only an occasional basis).
See SSR 96-9p, 1996 WL 374185, at *3 (defining the term "occasionally" to mean "occurring from very little up to one- third of the time," and to "generally total no more than about 2 hours of an 9-hour workday") (emphasis added). As plaintiff points out, the ALJ also failed to include any restriction on plaintiff's ability to interact with supervisors. See AR 28.
The ALJ also erred in failing to address Dr. Khurana's opinion that plaintiff had a severe disability for sustained concentration and persistence. AR 33, 493. The ALJ restricted plaintiff to unskilled work, involving simple work-related decisions and being "off task/unproductive" up to 10% of the time. AR 28. But Dr. Khurana's use of the term "disability" here suggests an inability to sustain concentration and persistence.
Lastly, the ALJ failed to provide specific, legitimate reasons for rejecting Dr. Khurana's opinion that plaintiff would have moderate difficulty with even simple tasks. The ALJ made a general statement that this "is an overstatement of [plaintiff's] degree of deficit" and that "[t]he evidence is more persuasive from other medical sources" (AR 33); this assessment is conclusory and falls far short of what is required to reject medical opinion evidence. Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (error to reject medical opinion by "asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language").
b. Kristin Obillo, M.D.
Kristin Obillo, M.D., plaintiff's treating physician, completed a physical functional evaluation form in August 2014. AR 694-96. Dr. Obillo opined that plaintiff was "severely" limited in her ability - meaning "[u]nable" -to perform the demands of sedentary work. AR 695-96.
In January 2015, Dr. Obillo completed a physical residual functional capacity (RFC) questionnaire. Dr. Obillo wrote that plaintiff: was incapable of even low stress jobs; could sit, stand, and walk for less than 2 hours total in an eight-hour workday; needed take unscheduled breaks frequently; could not even lift or carry less than 10 pounds; had zero use of her fingers, hands, and arms; and would miss more than four days of work per month. AR 942-45.
Also in January 2015, Dr. Obillo filled out a certification form stating that plaintiff's medical conditions prevented her from engaging in any substantial gainful activity for at least 60 months. AR 936.
In June 2016, Dr. Obillo completed another physical functional evaluation form, in which she again opined that plaintiff was "severely" limited in her ability to perform the demands of sedentary work. AR 949-50.
The ALJ rejected Dr. Obillo's August 2014 opinion because she provided no medical findings or explanation to support it. AR 32. The ALJ rejected her January 2015 opinions for essentially the same reasons. AR 34. The ALJ did not address Dr. Obillo's June 2016 opinion.
The ALJ's erroneously determined that the August 2014 and January 2015 opinions are unsupported by explanation. In support of her August 2014 opinion, Dr. Obillo pointed to plaintiff's complaints and symptoms of multiple joint pains with myalgia, dizziness, headaches, and carpal tunnel. AR 694. Dr. Obillo also referred to "attached consult notes & imaging results" for diagnostic findings (id. at 695); in addition, the record contains nearly three years' worth of treatment notes and findings from Dr. Obillo. See AR 383-86, 388-89, 398-99, 401-03, 408-09, 414-20, 426, 649-50, 653-54, 856-58, 860-79, 892-917.
In support of her January 2015 opinions, Dr. Obillo noted plaintiff's multiple joint pains, generalized myalgia, and headaches. AR 936, 942. Dr. Obillo also pointed to swelling (id. at 942) and pain and swelling in plaintiff's fingers (id. at 945).
The ALJ's focus on lack of medical findings regarding fibromyalgia shows that the ALJ misapprehended a diagnosis Dr. Obillo listed in both her August 2014 and January 2015 opinions. AR 695, 942; Revels, 874 F.3d at 663 (noting that fibromyalgia is diagnosed "entirely on the basis" of the patient's reports of pain and other symptoms, and that "there are no laboratory tests to confirm the diagnosis") (quoting Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004)). In addition, Dr. Obillo's June 2016 opinion - which the ALJ failed to comment on - constitutes significant probative evidence that the ALJ could not ignore or reject without explanation. Flores, 49 F.3d at 570-71.
c. Dan Donohue, Ph.D.
Dan Donohue, Ph.D., a non-examining psychologist who reviewed the record, opined in December 2014, that plaintiff "cannot work in jobs requiring even occasional interaction w/ the general public." AR 105. The ALJ stated he gave only partial weight to this opinion, but offered no specific reasons for doing so. AR 31-32. This was error. Garrison, 759 F.3d at 1012-13 (ALJ may not reject medical opinion without offering a substantive basis for rejecting it).
d. Lisa Hacker, M.D.
Lisa Hacker, M.D., a non-examining physician who also reviewed the record, opined that plaintiff can only "work with others superficially." AR 72. The ALJ gave this opinion "[g]reat weight." AR 31. Yet the ALJ adopted only the restrictions that plaintiff can work with co-workers and the public on an occasional basis. AR 28. The ALJ erred by not describing the type of interaction plaintiff could engage in, e.g. superficial versus non-superficial. Nor did the ALJ state what restrictions, if any, plaintiff had in regard to interacting with supervisors.
2. The ALJ Erred in Failing to Consider the Personal Observations of Agency Personnel
The ALJ must take into account lay witness testimony regarding a claimant's symptoms, unless the ALJ expressly rejects the testimony and gives reasons germane to that lay witness for doing so. Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).
The record contains the personal observations of agency personnel concerning plaintiff's ability to function. They observed that plaintiff constantly required help focusing on questions, it was obvious that she was experiencing severe pain - e.g., moaning, gasping, irregular labored breathing, difficulty moving, and she constantly made adjustments in an effort to be comfortable. See AR 259, 307, 322. The ALJ's failure to mention this evidence is error.
Defendant offers four reasons for why the ALJ's failure to address this evidence is at most harmless error. None of them are valid. Defendant first points to the ALJ's boilerplate statement that the RFC the ALJ assessed is based on "consideration of the entire record." AR 28. Clearly, this statement is not at all germane to the particular lay witnesses.
Defendant next asserts the lay witnesses' one-time observations are insufficient to show plaintiff's ability to work is significantly impaired, Dkt. 16, p. 17, citing Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). But in Meanel, the Ninth Circuit found that a physician's "mere statement" that the claimant "experienced some diminution" in her abilities, "falls far short of an informed opinion that" her diminished capacity "would significantly interfere with her ability to work." Id. (emphasis in the original). Here, the lay witnesses provided detailed descriptions of their personal observations of plaintiff.
Defendant also argues the ALJ did not have to consider the lay witness statements, because Dr. Donahue incorporated the observations of one of the lay witnesses into his opinion. Dkt. 16, p. 17 (citing AR 117). Defendant cites Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 2005). The portion of Burch defendant cites is not on point. In Burch, the Ninth Circuit found that because the ALJ expressly discussed physician notes indicating the claimant had gained weight and recognized the claimant's obesity likely contributed to her back discomfort, the ALJ had adequately considered her obesity. 400 F.3d at 684. Here, on the other hand, while the ALJ discussed Dr. Donahue's opinion, the ALJ made no mention of the lay witness statement. AR 31-32.
And defendant argues any error is harmless because the ALJ's decision is supported by substantial evidence, including the medical opinion evidence. But the ALJ completely failed to properly evaluate the medical evidence. As discussed in the next section, the ALJ's credibility determination cannot be upheld.
3. The ALJ Erred in Discounting Plaintiff's Credibility
The ALJ "engages in a two-step analysis" when assessing a claimant's credibility regarding subjective pain or symptom intensity. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). The ALJ first must determine whether there is objective medical evidence of a mental or physical impairment that "could reasonably be expected to produce the pain or other symptoms alleged." Id. If this test is met and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of his or her symptoms only by providing "specific, clear and convincing reasons" for doing so. Id. The credibility determination is an assessment of the claimant's testimony and other statements to "evaluate the intensity and persistence" of the claimant's symptoms; it is not an examination of the claimant's overall "character." Trevizo, 871 F.3d at 678 n.5.
"General findings are insufficient; the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Ghanim, 763 F.3d at 1163 (quoting Lester, 81 F.3d at 834). The ALJ may use "ordinary techniques of credibility evaluation," such as inconsistencies in the claimant's statements or between the claimant's statements and his or her conduct, any "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment," and whether the claimant has engaged in activities of daily living "inconsistent with the alleged symptoms." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citations omitted).
Here, the ALJ found the medical evidence in the record failed to show the degree of limitation plaintiff alleges. AR 29-30. This can be a clear and convincing reason for discounting a claimant's credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (ALJ may reject a claimant's subjective complaints based on a lack of medical evidence to fully corroborate the alleged severity of the claimant's pain).
But as discussed above in Section 1, the ALJ did not provide any valid reasons for rejecting the medical opinion evidence, which largely supports plaintiff's complaints. The ALJ thus erred in relying on lack of such support to discount plaintiff's credibility.
An ALJ may not reject a claimant's subjective complaints solely due to a lack of support in the medical evidence. Burch, 400 F.3d at 676. The only other reason the ALJ gave was plaintiff's failure to follow through with recommended treatment. AR 30-31. Failure to seek treatment for an allegedly disabling impairment can constitute a clear and convincing reason for discounting a claimant's credibility. Id. at 681; Meanal v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (ALJ properly considered failure to request serious medical treatment for supposedly excruciating pain).
But the ALJ "must not draw any inferences" about a claimant's symptoms and their functional effects from a failure to seek treatment, "without first considering any explanations" that the claimant "may provide, or other information in the case record, that may explain" that failure. Social Security Ruling ("SSR") 96-7p, 1996 WL 374186, at *7; Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
Nothing in the ALJ's decision indicates the ALJ considered any explanations plaintiff may have had for not seeking greater treatment. And the record reveals plaintiff had significant financial problems that would make it difficult to follow through with treatment. AR 660 ("little to no access to finances"), 758 (2013 car accident "got her into a huge financial 'hole'"), 883 (indicating in need of legal help to explore possibility of bankruptcy), 900 ("stressed out since debt collectors call her even at night"); Carmickle, 533 F.3d at 1162 (inability to afford treatment is a valid reason for not seeking greater treatment).
REMAND FOR FURTHER PROCEEDINGS
Plaintiff seeks reversal and remand for an outright award of benefits, or in the alternative for further administrative proceedings. The Court has discretion to determine whether to remand for additional evidence or for an award of benefits. Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017).
A direct award of benefits would be warranted if the following conditions are met: First, the record has been fully developed; second, there would be no useful purpose served by conducting further administrative proceedings; third, the ALJ's reasons for rejecting evidence (claimant's testimony or medical opinion) are not legally sufficient; fourth, if the evidence that was rejected by the ALJ were instead given full credit as being true, then the ALJ would be required on remand to find that the claimant is disabled; and fifth, the reviewing court has no serious doubts as to whether the claimant is disabled. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (amended January 25, 2018); Revels, 874 F.3d at 668.
If an ALJ makes an error and there is uncertainty and ambiguity in the record, the district court should remand to the agency for further proceedings. Leon, 880 F.3d at 1045. If the Court concludes that additional proceedings can remedy the errors that occurred in the original hearing, the case should be remanded for further consideration. Revels, 874 F.3d at 668.
The ALJ provided no valid reasons for rejecting the medical and lay witness evidence in the record, or for discounting plaintiff's credibility. The record supports plaintiff's allegations of disability.
According to Dr. Khurana, plaintiff is markedly to severely impaired in regard to work-related judgments and carrying out more than simple instructions, she has severe difficulties in regard to typical social interactions and responding to changes in work routines, and she has a "severe disability" for sustained concentration and persistence. AR 492-93. He concluded that it was unrealistic for her to work again in any meaningful capacity. Id. at 494.
Dr. Obillo, plaintiff's treating physician, opined that plaintiff was severely limited in her ability to perform even sedentary work, and in January 2015, opined that plaintiff would be unable to engage in any substantial gainful activity for at least five years. AR 936, 949-50, 695-96.
Dr. Obillo's January 2015 opinion that plaintiff has zero use of her fingers and hands alone precludes plaintiff from being able work based on the testimony of the vocational expert at the hearing. AR 58 (testifying that a limitation to occasional handling and fingering would likely preclude most any unskilled job in the light or sedentary category of work); see also AR 28 (ALJ limiting plaintiff to light, unskilled work).
Based on his review of the record, Dr. Donahue found plaintiff could not work in jobs that required even occasional interaction with the public. AR 105. Similarly, Dr. Hasker found plaintiff was capable of only superficial interaction with others. AR 72.
All three lay witnesses personally observed plaintiff to be acting in a manner that was consistent with being in severe pain and to have great difficulty with movement and getting comfortable. AR 307, 311-12, 322. These observations and the above medical source opinion evidence corroborate plaintiff's own testimony and self-reports regarding the significant mental and physical symptoms and limitations she experiences. AR 50-54, 238-44, 283-89.
The record is neither uncertain nor ambiguous. Crediting the above evidence as true, on remand the ALJ would be required to find plaintiff disabled. As there are no serious doubts as whether plaintiff is disabled based on the current record, remand for further proceedings would serve no useful purpose. An award of benefits is therefore warranted.
RECOMMEDATION
Based on the foregoing discussion, the Court should REVERSE the ALJ's decision and REMAND this matter for an award of benefits.
The parties have fourteen (14) days from service of this Report and Recommendation to file written objections thereto. 28 U.S.C. § 636(b)(1); Federal Rule of Civil Procedure (FRCP) 72(b); see also FRCP 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the above time limit, the Clerk shall set this matter for consideration on January 18, 2019, as noted in the caption.
Dated this 3rd day of January, 2019.
/s/_________
Theresa L. Fricke
United States Magistrate Judge