Opinion
No. C-99-0895 MMC, (Docket Nos. 15 and 18)
November 7, 2003
ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT; REMANDING ACTION FOR FURTHER PROCEEDINGS
Plaintiff Hilda Lewis ("Lewis") brings the above-entitled action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability benefits under Title II of the Social Security Act ("the Act"). Before the Court are plaintiffs motion for summary judgment or, in the alternative, remand, and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
Jo Anne B. Bamhart is substituted for her predecessor, Kenneth S. Apfel, as Commissioner of the Social Security Administration.See Fed.R.Civ.P. 25(d)(1).
BACKGROUND
On September 18, 1995, Lewis, who was then 41 years old, filed an application for disability benefits. (See Certified Transcript of Administrative Proceedings ("Tr.") at 98.) Lewis alleged that she was unable to work because of blindness in her left eye, high blood pressure, hernia, headaches, and emotional problems. (See Tr. at 106-140.) After the application was denied initially and on reconsideration by the Social Security Administration ("SSA") (See Tr. at 92), Lewis requested a hearing before an Administrative Law Judge ("ALJ"). (See Tr. at 45.)
On February 13, 1997, the ALJ conducted a hearing, analyzing Lewis's application under the five-step sequential evaluation process set forth in the Code of Federal Regulations. (See Tr. at 47.) At the hearing, the ALJ heard testimony from Lewis and from a Vocational Expert ("VE"). Lewis testified that she had never worked and that she had attempted suicide four times in December 1995 and once in May 1996.(See Tr. at 53, 56, 64.) After her suicide attempts, Lewis began seeing a psychiatrist, Ulrich Berg, M.D. ("Dr. Berg"), every two weeks, and also consulted with Grad Green, a crisis counselor at San Francisco General Hospital. (See Tr. at 56-59.) Lewis admitted to drug and alcohol use, but testified that the drug and alcohol use had nothing to do with the suicide attempts. (See Tr. at 64, 70-72.) Lewis further testified that, although she sometimes had problems concentrating, she had "no problem relating with other people."(See Tr. at 66.) She testified that she has no sight in her left eye, and, with glasses, has 20/20 vision in her right eye. (See Tr. at 67.) She stated that she has difficulty seeing things close up and in judging distances, and often bumps into things and trips over steps and curbs. (See Tr. at 67-68.) Lewis also stated that she could not work an 8-hour day primarily because of her vision problems, but also because of back pain, hernia and high blood pressure. (See Tr. at 74).
"The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled. Step one: Is the claimant engaging in a substantial gainful activity? If so, the claimant is found not disabled, if not, proceed to step two. Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. R. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002) (citing 20 C.F.R. § 404.1520).
With respect to Lewis' ability to perform work that exists in the national economy, the VE initially testified, in response to a hypothetical question posed by the ALJ, that he didn't "believe there's anything [Lewis] could do." (See Tr. at 76.) The VE expressed concern that Lewis' limited eyesight would prevent her from performing "fine, detailed work," such as cleaning or assembly work. (See Tr. at 76-77.) After further questioning by the ALJ, the VE testified that Lewis might be capable of performing work in kitchen food preparation that did not require use of sharp instruments, and other jobs that involved assembly of larger items that did not involve fine, detailed work. (See Tr. at 78-80.) The VE testified that there were approximately 500 unskilled jobs and 4,000 assembly jobs Lewis would be capable of performing in the Bay Area. (See Tr. at 79-80.)
On April 23, 1997, the ALJ issued a Notice of Decision ("Decision"). (See Tr. at 18-27.) The ALJ first found, with respect to the first step in the disability analysis, see McCartey. 298 F.3d at 1074 n. 6, that Lewis had "never engaged in work activity which would constitute substantial gainful activity." (See Tr. at 23.)
With respect to step two, the ALJ found that Lewis had "severe" impairments of loss of vision in her left eye, generally controlled hypertension, and a hernia. (See Tr. at 23.) The ALJ also noted that Lewis had "an adjustment disorder, situational depression, a one-time diagnosis of major depression in partial remission with self-destructive and anti-social traits," (see Tr. at 23-24), but found that Lewis' "mental conditions do not preclude her from working at jobs existing in significant numbers in the national economy which were specifically identified by vocational expert testimony." (See Tr. at 25.) The ALJ further found that Lewis failed to establish "that she has any medically determinable physical or mental impairments which lasted or were expected to last for a period of twelve continuous months and which were of a level of severity which would preclude performance of substantial gainful activity. . . ." (See Tr. at 24.)
A "severe impairment" is one that "significantly limits" a claimant's ability to "do basic work activities." See 20 C.F.R. § 416.920(c).
With respect to step three, the ALJ found Lewis' severe impairments did not meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (See Tr. at 26.) Since Lewis has no work history, the ALJ did not address the fourth step. Finally, with respect to the fifth step, the ALJ concluded that "Lewis retains the residual functional capacity to perform work activity existing in significant numbers in the economy and accordingly is not "disabled" within the meaning of the Social Security Act, and not entitled to receive Supplemental Security Income payments based on disability." (See Tr. at 26.)
Lewis requested review of the ALJ's decision by the Appeals Council, which denied the request on January 12, 1999. (See Tr. at 3-4.) Subsequently, Lewis filed the present action for judicial review pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter. 157 F.3d 715, 720 (9th Cir. 1998). Substantial evidence has been defined as "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). The reviewing court must consider the administrative record as a whole and weigh the evidence both supporting and detracting from the ALJ's decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.
DISCUSSION
In an administrative proceeding to determine whether a claimant is entitled to benefits, the claimant has the burden of proving a disability within the meaning of the Act. See Maounis v. Heckler. 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, a claimant is considered disabled when she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months."See 42 U.S.C. § 423(d)(1)(A). When the claimant establishes a prima facie case of disability by showing an inability to perform past relevant work, the burden shifts to the Commissioner to show the claimant can engage in other types of substantial gainful work existing in the national economy. See Gallant v. Heckler. 753 F.2d 1450, 1452 (9th Cir. 1984).In her motion for summary judgment, Lewis argues that the ALJ's decision should be reversed with directions to award benefits, or in the alternative, the matter should be remanded for further proceedings, because the ALJ's finding that Lewis has the residual functional capacity to perform substantial gainful activity is not supported by substantial evidence. Specifically, Lewis asserts the ALJ's decision must be reversed because the ALJ erred by: (1) not providing specific and legitimate reasons for failing to consider, in determining Lewis' residual functional capacity under Step Five of the sequential evaluation framework, the opinion of examining physician Roger S. Smith, D.O. ("Dr. Smith") that Lewis had a limited ability to withstand the stress of an 8-hour workday; (2) failing to incorporate such limitation into the hypothetical posed to the VE; and (3) even assuming the hypothetical posed to the VE was acceptable, finding that the VE's testimony was sufficient evidence to support the conclusion that Lewis could engage in substantial gainful activity. In the alternative, Lewis argues that the matter should be remanded for further proceedings in order to allow the ALJ to consider a new report prepared by Lewis' treating psychiatrist, Dr. Berg, which report, according to Lewis, further diagnoses Lewis' mental state and was unavailable at the time of the hearing.
A. Residual Functional Capacity
1. Opinion of Examining Psychiatrist Dr. Smith
An ALJ "must provide `clear and convincing' reasons for rejecting the uncontradicted opinion of an examining physician" and may only reject the contradicted opinion of an examining physician for "specific and legitimate reasons that are supported by substantial evidence in the record." Lester v. Chater. 81 F.3d 821, 830-31 (9th Cir. 1996).
Dr. Smith evaluated Lewis on February 6, 1996, diagnosing her with major depression in partial remission. (See Tr. at 225-227.) Dr. Smith found that Lewis' "ability to maintain concentration and attention and ability to understand, remember, and carry out simple one-two step job instructions" was satisfactory, but that Lewis had only a limited ability to withstand the "stress and pressures associated with an 8-hour workday and day to day work activities," and that "she would have some difficulty interacting with the public, and in her ability to relate and interact with supervisors and co-workers." (See Tr. at 226-27.) Dr. Smith's evaluation of Lewis' ability to handle work-related stress was uncontradicted.
In his decision, the ALJ briefly discussed Dr. Smith's diagnosis, and then stated that Dr. Smith's opinion "does not contraindicate simple, repetitive, unskilled entry level work." (See Tr. at 22.) The ALJ, however, failed to explain how Lewis' limited ability to withstand the stress and pressures of an 8-hour workday and day-to-day work activities would not preclude her from working at any type of regular, day-to-day job, including those involving "simple, repetitive, unskilled, entry level work." Nor does the ALJ cite to any evidence in the record contradicting Dr. Smith's opinion as to the effect of Lewis' stress upon her ability to work. Indeed, the record contains no other reports that specifically address Lewis' ability to withstand work-related stress.
The record does contain a report from Robert S. Green, Ph.D. ("Dr. Green"), a licensed psychologist who examined Lewis on December 2, 1994, in which Dr. Green opined that "[t]here is nothing in the present data to rule out [Lewis'] capacity for organizing sustained concentration, persistence, pace and social relations as would be required for a normal range of daily living activities including work functions." (See Tr. at 181.) To the extent the ALJ may have relied on this report in support of his rejection of Dr. Smith's later opinion, however, the ALJ failed to indicate such reliance, let alone provide "specific and legitimate reasons" for doing so. See Lester. 81 F.3d at 830.
Accordingly, the ALJ erred by failing to set forth clear and convincing reasons for rejecting the uncontradicted opinion of Dr. Smith.See Lester v. Chater, 81 F.3d at 830-31.
2. The ALJ's Hypothetical
At the hearing, the ALJ presented the VE with a hypothetical candidate for employment and asked the VE whether such a candidate could "perform any work that exists in the national economy." (See Tr. at 75-76.) In describing the hypothetical candidate, the ALJ asked the VE to
assume an individual of the claimant's age, education, and lack of past relevant work experience, and assume the following limitations: that she is blind in her left eye and impaired in the right eye such that she is incapable of performing any fine, detailed work, or work requiring peripheral vision. And she should not be allowed to work where she would have extensive interactions with co-workers, the public, or supervisors. And she would be limited to simple repetitive type of work where the instructions given and her responsibilities to carry out those instructions involve one or two steps. And she should not be employed in a position where she would be working at heights, working with exposed moving parts, working on uneven surfaces, slippery surfaces. She should not be involved in any employment requiring running or jumping.
(See Tr. at 75-76.) Lewis argues that because the hypothetical did not reflect Dr. Smith's opinion that Lewis had only a limited ability to withstand the stress of an 8-hour workday, the VE's testimony has no value.
"If the hypothetical does not reflect all the claimant's limitations, . . . the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy." DeLorme v. Sullivan. 924 F.2d 841, 850 (9th Cir. 1990) (holding where hypothetical failed to include any description of claimant's depression, such failure "would of itself require remand for reconsideration"). A claimant's alleged limitations may be excluded, however, if not supported by substantial evidence. See id
Here, as discussed, the ALJ provided no basis for his conclusion that Dr. Smith's opinion did not contraindicate Lewis' performing certain work, and, consequently, the ALJ erred in failing to include a stress-related limitation in the hypothetical.
3. The VE's Testimony
Lewis argues that, irrespective of the adequacy of the hypothetical, the VE's testimony, which identified nine categories of employment Lewis was capable of performing, contained serious errors and does not constitute substantial evidence in support of the ALJ's finding that Lewis retained the residual functional capacity to perform work existing in the economy.
Lewis first argues that although the ALJ's hypothetical stated that Lewis had no prior relevant experience, four of the employment categories identified by the VE are defined in the Dictionary of Occupational Titles ("DOT") as semi-skilled positions, all of which require from one to six months of experience. The DOT raises a rebuttable presumption as to job classifications, and the ALJ may "rely on expert testimony which contradicts the DOT, but only insofar as the record contains persuasive evidence to support the deviation." See Johnson v. Shalala. 60 F.3d 1428, 1435 (9th Cir. 1995) (holding ALJ's findings of fact sufficient, based on VE's testimony that claimant limited to "sedentary" work could perform work DOT classified as "light"). Here, the ALJ did not make any findings explaining his conclusion that Lewis could perform, despite Lewis' lack of prior relevant work experience, the semi-skilled positions identified by the VE. Accordingly, the ALJ's deviation from the DOT is unwarranted with respect to these four positions.
Lewis challenges the VE's testimony that Lewis was capable of performing the positions of (1) food assembler, kitchen, DOT No. 319.484-010; (2) assembler, product, DOT No. 706.684-018; (3) assembler, production line, DOT No. 714.684-010; and (4) assembler DOT No. 754.684-010. (See Tr. at 83-84.) Lewis argues that she could not perform the first two positions because they require "Specific Vocational Preparation . . . [of] [o]ver 1 month up to and including 3 months," and could not perform the second two positions because they require "Specific Vocational Preparation . . . [of] [o]ver 3 months up to and including 6 months. See U.S. Department of Labor,Dictionary of Occupational Titles at 247, 693-94, 711, 783, 1009 (4th ed. rev. 1991).
Lewis next contends the ALJ could not rely on the VE's testimony concerning the remaining five employment categories specified by the VE because (1) the VE ignored Lewis' limitations regarding co-worker and supervisor contact and (2) based on the report of vocational specialist Max Forman ("Forman"), submitted with the instant appeal, Lewis would not be able to work in such positions, due either to the danger such work posed to Lewis given her limited eyesight, or to a requirement of constant interaction with co-workers.
Both arguments fail. First, at the hearing, the ALJ asked the VE whether the specific jobs identified fell "squarely within the limitations" described. (See Tr. at 85.) (emphasis added). The VE responded that, although within the nine categories there were "many jobs [Lewis] couldn't do," Lewis would be capable of performing one in four, or 25%, of the available positions within a category. There is no indication that the VE, in making this assessment, failed to consider the danger related to Lewis' eyesight or Lewis' limited ability to interact with co-workers and supervisors. Consequently, the VE's testimony, as it relates to available positions in the five remaining categories, constitutes "such evidence as a reasonable mind might accept as adequate to support a conclusion." See Andrews. 53 F.3d at 1039. Second, Lewis may not rely on the report by vocational specialist Forman, as the report was not presented to the ALJ or the Appeals Council and Lewis has not addressed in any respect why she failed to present such evidence at the prior proceeding.See 42 U.S.C. § 405(g); Clem v. Sullivan. 894 F.2d 328, 332 (9th Cir. 1990) (holding claimant seeking remand on basis of new evidence "must demonstrate . . . `good cause for the failure to incorporate such evidence into the record in the prior proceeding'") (quoting § 405(g)).
B. New Report by Dr. Berg
Lewis argues, in the alternative, that the case should be remanded for consideration of a new report by Lewis's treating psychiatrist, Dr. Berg, which report was unavailable at the time of the hearing and which provides further diagnosis of Lewis' mental condition.
A claimant seeking remand on the basis of new evidence "must demonstrate that there is `new evidence which is material, and that there is good cause for the failure to incorporate such evidence into the record in the prior proceeding.'" See Clem v. Sullivan. 894 F.2d at 332 (quoting § 405(g)). The materiality requirement is satisfied and remand warranted "only where there is a reasonable possibility that the new evidence would have changed the outcome" of the earlier proceeding had the information been offered.See Booz v. Secretary of Health Human Serv., 734 F.2d 1378, 1380 (9th Cir. 1983). Good cause is shown if the a[n]ew information surfaces after the Secretary's final decision and the claimant could not have obtained that evidence at the time of the administrative proceeding." Key v. Heckler. 754 F.2d 1545, 1551 (9th Cir. 1985).
As described by Lewis, the newly proffered evidence consists of "a brief narrative report" by Dr. Berg, "summarizing his treatment of Ms. Lewis and describing her mental impairments." (See Pl.'s Mot. at 7.) Although the report is undated, Dr. Berg refers to Lewis as being 46 years of age. Given Lewis' birthday, June 17, 1954 (see Tr. at 88), the report would have been written no earlier than June of 2000, and the fax transmittal date indicates it was sent August 1, 2000. (See Pl.'s Ex. B.) In the report, Dr. Berg states that Lewis has been "regularly treated for chronic and acute depression for the past five to six years" and "has most likely been depressed the majority of her adult life." He also states:
[Lewis] is barely functioning under current conditions and would require extensive vocational rehabilitation to be employable. Her communication skills are poor, her ability to relate to others is impaired, and her work skills are severely underdeveloped. Her depression is of a magnitude that it severely affects all her cognitive functions: concentration, attention span, memory, judgement. In her current state she is totally if not permanently disabled.
(See id. at 4.) Because the report concerns Dr. Berg's ongoing and post-hearing treatment of Lewis, and was not available at the time of the earlier administrative proceedings, good cause for delay in its production has been shown.
At the hearing, the ALJ considered a mental disorder questionnaire completed by Dr. Berg in November 1996. Dr. Berg diagnosed Lewis with "major depression, recurrent" and stated that Lewis' prognosis was guarded and that she would need psychotherapy and medication for the next one to two years. (See Tr. at 401) Dr. Berg found Lewis to be "friendly and outgoing" but noted that Lewis had "difficulty listening" and a "short attention span," and opined that Lewis "would have a difficult time keeping a regular schedule." (See Tr. at 397-400.) The ALJ stated that he accorded "little weight to Dr. Berg's opinion because it was "based upon only a two month history of contact with the claimant," and it was "inconsistent with the more detailed and comprehensive psychological testing of record." (See Tr. at 22.)
Although Dr. Berg's report did not indicate the date of first treatment, Lewis testified at the hearing that she began seeing Dr. Berg in September 1996. (See Tr. at 58.)
Lewis argues that Dr. Berg's new report is material because one of the ALJ's stated reasons for discounting Dr. Berg's earlier report was the fact that the earlier report had been "based upon only a 2 month history of contact with the claimant." (See Tr. at 22.) The Commissioner argues that, because the new report "is essentially similar" to Dr. Berg's earlier, conclusory opinion and does not provide "detailed treatment notes," the "ALJ would have had specific, legitimate reasons to discount Dr. Berg's opinion of disability," even if the new report had been available at the time of the hearing. (See Commissioner's Mem. at 10.)
Unlike Dr. Berg's first report, however, which consisted of short answers on a questionnaire, the new report is a narrative, divided into discrete sections reflecting Lewis' history and mental status and Dr. Berg's diagnosis and assessment. A reasonable possibility exists that had the ALJ received a report from Dr. Berg based on a longer treatment period, the ALJ might have given the report greater weight than the reports on which he relied, particularly given that Dr. Berg is a treating physician, and ordinarily his opinion would be accorded greater weight than that of a non-treating physician. See Andrews. 53 F.3d at 1041. Moreover, as Dr. Berg's conclusion is based on his assessment that Lewis was suffering from chronic depression from which she likely had been suffering her entire life, (see Pl's Ex. B at 1), his report sheds light on her likely condition at the time of the ALJ's decision. See Wainwright v. Secretary of Health and Human Services. 939 F.2d 680, 682-83 (9th Cir. 1991) (holding court may remand for consideration of new medical evidence relevant to claimant's medical condition at time of hearing before ALJ). For all of these reasons, the Court finds that the new evidence is material.
C. Remedy
The Court has the discretion to remand a case for further evidence or to award benefits. See Moore v. Commissioner of the Social Security Administration. 278 F.3d 920. 926 (9th Cir. 2002). "Evidence should be credited and an immediate award directed where `(1) the ALJ failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a 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.'" id (citingSmolen v. Chater. 80 F.3d 1273, 1292 (9th Cir. 1996)). On the other hand, "`[i]f additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded.'" Marcia v. Sullivan. 900 F.2d 172 (9th Cir. 1990) (quoting Lewin v. Schweiker. 654 F.2d 631, 635 (9th Cir. 1981)). "Where the Secretary is in a better position than this court to evaluate the evidence, remand is appropriate." id.
In the instant case, the ALJ erred by failing to set forth clear and convincing evidence for rejecting Dr. Smith's uncontradicted opinion that Lewis had only a limited ability to withstand the stress associated with an 8-hour workday and day-to-day work activities. The ALJ also erred by presenting the VE with an incomplete hypothetical that failed to take into account Lewis' difficulties in withstanding the stress of an 8-hour workday. In addition, the ALJ erred by failing to make findings to support his conclusion that Lewis could perform the semi-skilled positions identified by the VE, despite Lewis' lack of prior work experience. Correcting these errors, in all likelihood, will necessitate both additional proceedings and a reevaluation of, as well as clarification of, the record. The ALJ is in a better position than this Court to correct and reevaluate the record. See Bunnell v. Barnhart. 336 F.3d 1112, 1116 (9th Cir. 2003) ("[I]n cases where the vocational expert has failed to address a claimant's limitations . . . we consistently have remanded for further proceedings rather than payment of benefits.") (internal quotation and citation omitted). In addition, the ALJ has not had the opportunity to consider the new report of Dr. Berg. The ALJ should have the opportunity to consider the new report in the first instance.
CONCLUSION
For the reasons expressed, the matter is hereby REMANDED for further proceedings consistent with this order.
The Clerk shall close the file.