Opinion
For Corina Farias, Plaintiff: Thelma Susan Cohen, LEAD ATTORNEY, Potter Cohen and Samulon, Pasadena, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Timothy R Bolin, LEAD ATTORNEY, SAUSA - Office of the U.S. Attorney, U.S. Department of Justice, San Francisco, CA.
MEMORANDUM DECISION AND ORDER
FREDERICK F. MUMM, United States Magistrate Judge.
Plaintiff brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying her application for a period of disability and disability insurance benefits. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. Pursuant to the November 27, 2013 Case Management Order, on September 3, 2014, the parties filed a Joint Stipulation detailing each party's arguments and authorities. The Court has reviewed the Joint Stipulation and the administrative record (" AR"), filed by defendant on June 30, 2014. For the reasons stated below, the decision of the Commissioner is reversed and the matter is remanded for further proceedings before a different administrative law judge.
ISSUES
Plaintiff raises the following issues:
1. Whether the ALJ failed in his duty to develop the record, by shifting to plaintiff the burden to order additional consultative examinations, by failing to obtain a valid medical expert opinion, and by failing to elicit vocational testimony;
2. Whether the ALJ failed to give proper weight to treating physicians and failed to support his reliance on the non-treating consultants and non-examining State Agency physicians;
3. Whether the ALJ's adverse credibility finding is legally and factually inadequate; and
4. Whether the ALJ failed to support his decision to give less weight to the corroborating testimony by third party witnesses.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well is supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Adhere evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
DISCUSSION
1. Issue One.
The ALJ stated at the supplemental hearing that he had noted a substantial disagreement between the treating physician and consultative examiners and that, as a result, it had been his intention to call a medical expert who was board certified in both neurology and psychiatry to provide an opinion. However, the medical expert was not available at the hearing. Consequently, the ALJ stated that he would submit interrogatories to the medical expert to obtain the opinion. (AR 58.)
At the original hearing the ALJ had stated that he was delaying the hearing because he " would prefer to decide this case based on the merits as opposed to some speculation or some kind of controversy about opinions that will probably require at least some further investigation anyway." (AR 103.)
The ALJ submitted the interrogatories and the medical expert provided a response. In his response the medical expert stated that there was not sufficient evidence in the record to allow him to form an opinion. The medical expert noted that the consultative examinations had taken place before the imaging studies had been done. The medical examiner further stated that he " need[ed] new psychiatry or psychology Consultative] Examinations] taking [the] MRI results into account." (AR 284.)
The ALJ provided plaintiff an opportunity to object to the medical expert's response to the interrogatories. Instead of objecting, plaintiff asked the ALJ to provide the consultative examination requested by the medical expert as well as a consultative examination by a neurologist. (AR 292.) The ALJ proceeded to prepare his decision without the benefit of the medical expert's opinion or the additional examinations.
Somewhat oddly, the ALJ stated in his decision that plaintiff had " alleg[ed] that [the medical expert] lacked sufficient evidence to offer an opinion in the absence of updated neurological and psychiatric consultative examinations." (AR 18.) In reality, plaintiff was not alleging anything. The medical expert had stated that he lacked the evidence necessary to offer an opinion. The ALJ's decision went on gratuitously to castigate plaintiff, as follows:
If the claimant wishes to have additional examinations, the claimant may engage their [sic] own expert for that purpose. Furthermore, while an [sic] consultative examiner is enlisted to render an opinion and report, neither the claimant not the Administrative Law Judge has standing to direct the expert as to how the medical professional employs the tools of his or her profession to assess a claimant. At best, if there is insufficiency in the examination, it is upon the claimant, in rebuttal to prove such defect. There is no inference or other direct evidence to indicate that the additional testing would lead consultative examiners to different conclusions other than those included at Exhibits 4F and 5F. If the claimant had such evidence, the claimant is entitled to introduce the same, on rebuttal. No additional evidence has been submitted for admission into the record. The burden of proof, so called, shifts to the person seeking to impeach the opinion of an expert rather than speculate as to the sufficiency of [the] expert's opinion.
AR 18.
Here, of course, the expert did not render an opinion because he felt he needed more evidence. Thus, the ALJ's comments do not seem to be apt. Given the ALJ's statement that he needed an opinion from a medical expert and the medical expert's statement that he needed additional testing to form an opinion, the ALJ's comments appear to be misplaced. In any event, having stated that he needed an opinion, the ALJ should have explained in his decision why he no longer felt one was necessary to help resolve the conflicting evidence in the record.
Therefore, remand is required for the ALJ to either supplement the record with a medical expert's opinion (which may require the scheduling of an additional consultative examination) or explain why no such opinion is necessary.
2. Issue Two.
The ALJ seemed more than a little suspicious of the treating physician's honesty. This suspicion emanated from the ALJ's impression that Dr. Perez, the treating physician, merely parroted what plaintiff wanted him to say. The following statement made by the ALJ exemplifies the ALJ's understanding:
In June 2009, [plaintiff] told the consultative, examining neurologist that she was afraid that she had multiple sclerosis (" MS") but that it had never been diagnosed (Exhibit 5F, p. 1). All of a sudden, in June 2010, the claimant's treating physician, Dr. Perez, stated that the claimant had multiple sclerosis (Exhibit 17F, p. 3)...
AR 21.
This suspicion of Dr. Perez seemed to permeate the ALJ's analysis. At one point the ALJ suggested that Dr. Perez was acting as an advocate rather than as a physician. ( See AR 28.) Although the ALJ provided legitimate reasons for discounting the weight of Dr. Perez's opinion, the Court cannot say that his overall analysis would not have been different had he not believed that Dr. Perez fabricated a diagnosis at plaintiff's request.
The problem is that the ALJ was mistaken. Rather than Dr. Perez " all of a sudden" inventing a diagnosis, the record shows that Dr. Perez had made a notation in the medical record as early as February 13, 2009 (before plaintiff even applied for disability benefits) of " possible multiple sclerosis" and " possible early multiple sclerosis." (AR 363.) As a result, Dr. Perez referred plaintiff to a specialist. After examination, the specialist, Dr. Fuenzalida, issued a diagnosis of " Multiple Sclerosis" on June 9, 2010. (AR 464.) Thereafter, on June 17, 2010, Dr. Perez prepared the correspondence that accurately stated that plaintiff had been diagnosed with multiple sclerosis. (AR 450.) There was nothing " all of a sudden" about the statement or the diagnosis. Significantly, Dr. Perez did not diagnose multiple sclerosis, he merely accurately reported that such a diagnosis had been made.
Whether plaintiff actually suffers from multiple sclerosis is a different issue. ( See, e.g., the statement of the " Interpreting Provider" at the lab where plaintiff's July 22, 2010, MRI was conducted (" Rule out multiple sclerosis" AR 489).) In either case, the ALJ's mistaken belief that Dr. Perez suddenly adopted plaintiff's statement that she thought she had multiple sclerosis as a diagnosis unduly colored his analysis of Dr. Perez's entire opinion. Under these circumstance, remand is required for Dr. Perez's opinion to be re-evaluated.
3. Issue Three.
As far as plaintiff's credibility is concerned, the ALJ provided a number of clear and convincing reasons for finding plaintiff less than credible. However, it is not clear whether the ALJ's misapprehension that plaintiff and Dr. Perez were working together to manufacture a claim that plaintiff had MS unduly tainted the ALJ's view of plaintiff's credibility. Whether plaintiff reasonably was worried about the possibility of having MS, was unreasonably obsessing over an illness she did not have, or was fabricating a claim to obtain disability benefits are all possibilities. Plaintiff is entitled to have her credibility determined solely by the evidence without being discredited by an incorrect reading of the record. Therefore, remand is required with respect to this issue as well.
4. Issue Four.
Given the foregoing, the Court need not address Issue Four at this time.
ORDER
For the foregoing reasons, the Commissioner's decision is reversed and the matter is remanded for further proceedings before a different administrative law judge.
JUDGMENT OF REMAND
The Court having entered an Order pursuant to Sentence 4 of 42 U.S.C. § 405(g).
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the above-captioned action is remanded to the Commissioner of Social Security for further proceedings consistent with the Order dated October 2, 2015.