Opinion
For Marcia Lee Scanlan, Plaintiff: Vijay Jagdish Patel, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Ann L Maley, LEAD ATTORNEY, SAUSA - Office of the U.S. Attorney, Social Security Administration, San Francisco, CA; Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - 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.
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 December 18, 2013 Case Management Order, on September 11, 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 July 9, 2014. For the reasons stated below, the decision of the Commissioner is reversed and the matter is remanded for further proceedings.
PROCEDURAL HISTORY
On December 6, 2010, plaintiff applied for a period of disability and disability insurance benefits. Plaintiff alleged inability to work since June 21, 2010. Plaintiff's application was denied initially and upon reconsideration. Plaintiff requested a hearing before an administrative law judge (" ALJ"). ALJ James P. Nguyen held a hearing on July 13, 2012. Plaintiff appeared with counsel and testified at the hearing. On July 27, 2012, the ALJ issued a decision denying benefits. Plaintiff sought review of the decision before the Social Security Administration Appeals Council. The Council denied the request for review.
Plaintiff filed the complaint herein on December 17, 2013.
ISSUES
Plaintiff raises the following issues:
1. Whether the ALJ articulated what weight was afforded to Kristof Siciarz, M.D.;
2. Whether the ALJ properly found that plaintiff retained the residual functioning capacity to perform alternate work; and
3. Whether the ALJ properly assessed plaintiff's credibility.
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 as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where 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.
A. Background.
After summarizing the medical evidence, the ALJ stated that he was giving great weight to the assessments of " the State Agency medical consultants." (AR 16.) The ALJ earlier had distinguished between the consultative examining physician, Dr. Siciarz, who examined plaintiff and reviewed the record and the State Agency medical consultants, Dr. Bell and Dr. Chan, who reviewed plaintiff's medical records. (AR 15.) The only analysis provided by the ALJ was the statement that " [t]here were no other physicians who assessed greater functional limitations." (AR 22.)
B. Discussion.
(i) Standard in Reviewing Physicians' Opinions .
In evaluating physicians' opinions, the case law and regulations distinguish among three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither treat nor examine the claimant (non-examining physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. § § 404.1502, 416.902, 404.1527(d), 416.927(d).
As a general rule, more weight should be given to the opinion of a treating source than to the opinions of nontreating physicians. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. § § 404.1527(d)(2), 416.927(d)(2). Similarly, the opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician and, if contradicted by another physician's opinion, can only be rejected for specific, legitimate reasons supported by substantial record evidence. Lester, 81 F.3d at 830-31; Gallant, 753 F.2d at 1454. Finally, " [t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester, 81 F.3d at 831. The opinion of a non-examining physician may serve as substantial evidence when it is consistent with other independent evidence in the record. Id. at 830-31. " A report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record." See Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
(ii) The ALJ Failed to Properly Support His Rejection of the Examining Physician's Reaching Limitation .
The consultative medical examiner limited plaintiff to, among other things, reaching to about mid chest level. (AR 389.) The State Agency medical consultants had found that plaintiff had limited overhead reaching with her left arm. (AR 379 and AR 392-93.) Being limited to reaching to mid chest level is more restrictive than " limited overhead reaching." Thus, the ALJ rejected Dr. Siciarz's restriction without providing any reason.
Given that the vocational expert was not asked about a mid chest level reaching limitation, the Court cannot conclude that the error was harmless. Therefore, remand is required with respect to this issue.
2. Issue Two.
Plaintiff contends that the definition in the Dictionary of Occupational Titles for plaintiff's prior work requires the ability to engage in frequent reaching. The Commissioner responds that the Dictionary of Occupational Titles contains no such requirement. Given the resolution of Issue One, the Court need not address Issue Two. Presumably, on remand the ALJ will obtain evidence from a vocational expert that clearly describes the requirements of plaintiff's past relevant work and compares plaintiff's residual functioning capacity with those requirements.
3. Issue Three.
A. Background.
The ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (AR 16.) However, the ALJ found that plaintiff's testimony as to the extent of such symptoms was not credible.
B. Discussion.
(i) Standard for Reviewing the ALJ's Credibility Finding .
Once a claimant produces medical evidence of an underlying impairment that is reasonably likely to cause the alleged symptoms, medical findings are not required to support their alleged severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). However, an ALJ may reject a claimant's allegations upon: (1) finding evidence of malingering; or (2) providing clear and convincing reasons for so doing. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003).
In the absence of evidence of malingering, an ALJ may consider, inter alia, the following factors in weighing the claimant's credibility: (1) inconsistencies in either the claimant's testimony or between the claimant's testimony and his conduct; (2) his work record; and (3) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § § 404.1529(c), 416.929(c); S.S.R. 96-7p, 1996 WL 374186 (S.S.A.). The ALJ may also use " ordinary techniques of credibility evaluation." Thomas, 278 F.3d at 960. The ALJ's credibility determination is entitled to deference if his reasoning is supported by substantial evidence in the record and is " sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony . . . ." Bunnell, 947 F.2d at 345 (internal quotation marks omitted).
(ii) The ALJ Failed to Provide a Proper Rationale for Discounting Plaintiff's Credibility .
Here, the ALJ summarized the medical evidence, stated there was no evidence of plaintiff's daily living activities, noted that she worked before her onset date and that she had suffered from conditions during that time that the ALJ had found were nonsevere, and observed that plaintiff had stopped working after she sold her business (which was about a year before the onset date). (AR 21.)
The ALJ provided no analysis of how the medical records were inconsistent with plaintiff's testimony. In any event, an ALJ may not premise the rejection of the claimant's testimony regarding subjective symptoms solely on the lack of medical support. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (" [B]ecause a claimant need not present clinical or diagnostic evidence to support the severity of his pain . .., a finding that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity of his pain") (internal citation omitted).
With respect to the ALJ's other comments, none of them suggests that plaintiff's testimony is not credible. Suffering from non-severe conditions while working is not remarkable. Similarly, the record shows that plaintiff last worked in 2009. ( See AR 129 and AR 132 (plaintiff's record earnings) and AR 32 (plaintiff's testimony that she sold the business in 2009.)) Thus, the ALJ failed to provide a proper rationale for discounting plaintiff's testimony.
ORDER
For the foregoing reasons, the Commissioner's decision is reversed and the matter is remanded for further proceedings.
IT IS SO ORDERED.
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 August 11, 2015.