Summary
finding that the ALJ's determination that claimant received “conservative” treatment was not supported by substantial evidence, where the claimant underwent physical therapy, received epidural injections, and was treated with several pain medications
Summary of this case from Shelley S. v. O'MalleyOpinion
No. ED CV 04-958-PJW.
December 12, 2006
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
After Plaintiff was denied benefits by Defendant Social Security Administration (hereinafter the "Agency") he filed this appeal seeking to overturn the Agency's decision. For the following reasons, the Agency's decision is reversed and the case is remanded for further proceedings.
II. SUMMARY OF FACTS AND PROCEEDINGS
Plaintiff was born on June 5, 1957 and was 46 years old on the day of the administrative hearing. (Administrative Record ("AR") 29.) He has a fifth-grade education and has past relevant work as a windmill assembler, housekeeper, cleaner, and gardener. (AR 106.) In March 2002, he filed an application for social security benefits, alleging he was disabled as of September 2001 due to lower back pain. After Plaintiff's claim was denied by the Agency, he requested and was granted a hearing before an Administrative Law Judge ("ALJ").
On July 15, 2003, the ALJ held a hearing, in which Plaintiff appeared with counsel and testified. (AR 27-65.) The ALJ also heard testimony from a vocational expert. (AR 58-63.) On May 20, 2004, the ALJ issued a decision denying Plaintiff's claim for benefits. (AR 12-24.) The ALJ analyzed Plaintiff's case under the five-step sequential evaluation procedure mandated by the regulations. At step one, he determined that Plaintiff had not worked during the period of claimed disability. (AR 13.) At step two, he concluded that Plaintiff suffered from lumbar disc and joint disease, radiculopathy of the left leg, and allergic rhinitis, all of which, alone or in combination, were severe. (AR 17.) At step three, the ALJ found that Plaintiff's impairments did not meet or equal any of the Listings. (AR 17.) The ALJ concluded that Plaintiff retained the ability to perform light work, with certain limitations, e.g., not climbing ladders. (AR 18.) The ALJ found that Plaintiff's testimony that he could not work was not credible. (AR 21.) The ALJ also found that Plaintiff's treating physician's opinion that Plaintiff could not perform sedentary work was not supported by the medical records and was inconsistent with the opinions of the examining and consulting doctors. (AR 19-20.) As a result, the ALJ rejected the treating physician's opinion and accepted the opinions of the other doctors that Plaintiff could perform light work. (AR 19-22.)
At step four, the ALJ determined that Plaintiff could perform his prior work as a housekeeper and cleaner. (AR 23.) As such, the ALJ concluded that Plaintiff was not disabled. (AR 23-24.)
Plaintiff appealed the ALJ's decision, but the Appeals Council affirmed it. Plaintiff then filed suit in this Court, seeking an order reversing the Agency's denial of his disability claim.
III. ANALYSIS
A. Standard of Review
"Disability" under the applicable statute is defined as the inability to perform any substantial gainful activity because of "any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The Court may overturn the ALJ's decision that a claimant is not disabled only if the decision is not supported by substantial evidence or is based on legal error. See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
Substantial evidence "`means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).) It is "more than a mere scintilla but less than a preponderance," Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998), and "does not mean a large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988).
"The Court must uphold the ALJ's conclusion even if the evidence in the record is susceptible to more than one rational interpretation." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Indeed, if the record evidence can reasonably support either affirming or reversing the Agency's decision, the Court must not substitute its judgment for that of the ALJ. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the ALJ committed error but the error was harmless, reversal is not required. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (applying the harmless error standard).
B. The ALJ's Rejection of The Treating Physician's Opinion
Plaintiff alleges that the ALJ erred when he rejected the treating doctor's opinion that Plaintiff could not perform sedentary work in favor of the non-treating doctors' opinions that Plaintiff could perform light work. As set forth below, the ALJ's reasons for rejecting the treating physician's opinion are not sufficient and remand is required for further proceedings.
The treating doctor concluded that Plaintiff could lift less than 10 pounds; stand and walk for only two hours a day; sit for two hours a day, assuming he could change positions every 30 minutes; and stand for 20 minutes before changing positions. (AR 199-200.) In addition, he opined that Plaintiff was unable to twist, stoop, or crouch. (AR 200.)
In general, a treating physician's opinion as to the nature and severity of an impairment will be given controlling weight if it is well-supported by objective medical evidence and is not inconsistent with the other substantial evidence in the record. 20 C.F.R. § 416.927(d)(2). Where the treating physician's opinion is contradicted by the opinion of a non-treating physician, the ALJ may disregard the treating physician's opinion provided the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Magallanes, 881 F.2d at 751.
The ALJ discounted the treating physician's opinion that Plaintiff was so limited by his back pain that he could not even perform the physical requirements of sedentary work because:
1. The treating physician's opinion was inconsistent with the opinions of the board certified examining physician and the state agency physicians, one of whom was also board certified.
2. The laboratory findings did not support the treating physician's opinion.
3. The treating physician's treatment notes were sketchy and incomplete and did not support his opinion.
4. Plaintiff's treatment was conservative.
(AR 19.)
i. Specialist vs. non-specialist
The ALJ rejected the treating doctor's opinion, in part, because it was contradicted by the non-treating doctors' opinions, two of whom were specialists, i.e., board certified in orthopedics and internal medicine, and the treating doctor was not board certified in any specialty. In general, that may be a legitimate reason to give more weight to the non-treating doctors. 20 C.F.R. § 404.1527 ("We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist"); see also Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); and Bunnell v. Sullivan, 912 F.2d 1149, 1153 (9th Cir. 1990), aff'd on reh'g, 947 F.2d 341 (9th Cir. 1991) (en banc). As set forth below, however, there are problems with applying that rule to this case.
The first problem is that, though the examining physician is a board certified orthopedist — the specialty relevant to diagnosing and treating back pain — the consulting doctor is a board certified internist. (AR 128, 186.) An internist specializes in diagnosis and treatment of diseases. See Meriam-Webster.com/dictionary (internist and internal medicine). Thus, it appears that the consulting physician's expertise is not related to back pain and back injuries and, therefore, should not have been given greater weight than the treating physician.
The second problem with applying the general rule giving deference to specialists over generalists in this case is that it collides with the treating physician rule. Thus, we have competing rules in play: one says that the treating physician's opinion should be granted deference, the other says that the specialist's opinion should be granted deference. There is very little in the case law to guide the Court as to which rule should be given priority here. See e.g., Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1996) (overruling ALJ's rejection of treating physician's opinion because non-treating physician who disagreed with treating physician was a specialist). The Court notes that the examining physician performed various range of motion, straight leg raising, and strength tests to determine Plaintiff's condition (AR 187-88), which supports the ALJ's reliance on the examining doctor's opinion. On the other hand, the treating physician treated Plaintiff over a four-year period and, clearly, would have been in the best position to know the extent of Plaintiff's impairment.
The Court also notes that the examining and consulting physicians did not have the benefit of the treating physicians residual functional capacity assessment at the time they rendered their opinions, which was not competed until months after they did their work. (AR 145-54, 176-83, and 186-89.) In this form, the treating doctor laid out in black and white what he believed Plaintiff was capable of doing. (AR 199-201.) The Court is not convinced that these doctors would have arrived at the same conclusions had they seen the treating doctor's opinion first.
ii. The lab tests
The ALJ also rejected the treating physician's opinion because, he concluded, the "laboratory findings discussed above" did not support the treating physician's opinion. (AR 19.) The Court finds that, though this could be a legitimate reason for discounting the treating physician's opinion, it is not supported by substantial evidence in this record.
In the first place, there was only one lab test discussed by the ALJ in his decision. This was a TB test performed in January 2003 and, presumably, had nothing to do with the treatment of Plaintiff's back pain. (AR 15, 209.) Thus, the ALJ's rejection of the treating physician's opinion based in part on the inconsistency between the TB test and the doctor's opinion is not supported by substantial evidence in the record. Even assuming that the ALJ simply overlooked the fact that he had not listed the other lab tests in his decision, the other tests do not support the ALJ's conclusion, either. There were only three other lab test results in the medical record — blood tests performed in July 2000, March 2002, and January 2003. (AR 174, 175, and 208.) Again, these, presumably, had nothing to do with Plaintiff's back pain and, therefore, even were the Court to consider them, they would not help the Agency in this appeal.
The Court distinguishes between lab tests and MRIs, CT scans, and x-rays, and assumes the ALJ does also.
iii. Sketchy and incomplete records
Next, the ALJ concluded that the treating physician's treatment records were sketchy and incomplete and did not support the treating physician's opinion. (AR 19.) Though this would be a legitimate reason for rejecting a treating physician's opinion, it is not specific enough to withstand scrutiny. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). The ALJ is not at liberty to simply summarily conclude that a doctor's records do not support the doctor's opinion. The ALJ is tasked with specifying what records he is referring to and why they do not support the opinion. As the Ninth Circuit explained in Embrey:
To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.Id.
In the case at bar, the treating physician's treatment records run for about 30 pages in the record, consisting primarily of treatment notes. (AR 156-175, 203-214.) In a word, most of the doctor's notes are unreadable. They are hand-written in scrawl and it is practically impossible to decipher them. (AR 162, 164, 166, 167, 168, and 204.) Even so, for the ALJ to reject the treating doctor's opinion because it was not supported by his treatment notes requires the ALJ to do more than just say so. He must set forth which particular notes run counter to the doctor's opinion and explain why he thinks so.
iv. Conservative treatment
Finally, the ALJ found that the treating doctor treated Plaintiff conservatively, which suggested to the ALJ that the treating doctor did not really believe that Plaintiff was disabled. (AR 19.) Though this may be a specific and legitimate reason for rejecting a treating physician's opinion, it is not supported by substantial evidence in this record.
A claimant's election to choose conservative treatment is normally raised in the context of a credibility determination. See e.g. Johnson v. Shalala, 60 F.3d 1428, 1433-34 (9th Cir. 1995) (upholding ALJ's finding that claimant's subjective pain testimony was not credible in part because she elected conservative treatment).
The record shows that Plaintiff was treated with several potent drugs to alleviate his pain, including Tylenol #3 with codeine. (AR 47, 158.) He also underwent physical therapy (AR 133-37), and epidural injections (AR 144). Finally, Plaintiff had surgery on his neck to eliminate swollen glands, though they may not have been related to his back pain. Thus, it does not seem apparent that Plaintiff's treatment was conservative.
The only reference to conservative treatment the Court could find in the record was in a note by a physician's assistant in March 2000, that Plaintiff "prefer[red]" conservative treatment. (AR 144.) Neither the Agency nor the ALJ has suggested what more radical treatment would have been appropriate, i.e., back surgery. None of the doctors, the treating doctor or the non-treating doctors, recommended surgery. According to Plaintiff, the epidural injections he received in 1995 and 1996 did not resolve his back pain and caused headaches. (AR 144.) Thus, it appears that additional epidural injections were not warranted, either. For these reasons, the Court cannot conclude on this record that Plaintiff's "conservative" course of treatment supports the ALJ's decision to reject the treating physician's opinion.
v. Conclusion
In the end, the Court concludes that, of the four reasons cited by the ALJ for rejecting the treating physician's opinion, three of them are either not supported by the record or are not specific enough to warrant affirmance. The remaining reason cited by the ALJ — that the examining physician was a specialist and the treating physician was not — though a valid reason per se is not enough to win the day here. It is not clear whether the ALJ would have or should have rejected the treating physician's opinion for this reason alone. Further, it is not clear whether the specialist would have arrived at the same conclusion he did had he first read the treating physician's residual functional capacity determination in which the treating physician opined that Plaintiff was severely limited. For these reasons, the Court concludes that remand is necessary to allow the ALJ to determine whether, in light of the Court's finding that three of the four reasons given for rejecting the treating physician's opinion are not warranted and the fourth is questionable, the treating physician's opinion should be rejected in this case.
C. The ALJ's Analysis Of Plaintiff's Complaints Of Depression Was Not Erroneous, But Plaintiff May Present Further Evidence On This Issue On Remand
When Plaintiff filed his application for benefits, he contended only that he suffered from back pain. (AR 105.) When he testified at the administrative hearing, he told the ALJ that the only thing that prevented him from working was his back pain. (AR 43.) Now, he complains on appeal that the ALJ erred when he failed to consider Plaintiff's depression. Though the ALJ had an obligation to consider all of Plaintiff's ailments in assessing disability, even ones not specifically raised by Plaintiff or his counsel, the Count concludes that the ALJ did not err in failing to consider Plaintiff's depression here.
Plaintiff's treatment records for his depression run three pages long and appear to cover a single visit to a psychologist in June 2003, more than a year after he filed his application for benefits. (AR 196-98.) Further, before the Agency, Plaintiff gave every indication that his depression was not an issue and that his only complaint was his back. Because this case is being remanded, however, Plaintiff will have an opportunity to muster any evidence he has to establish that his depression is a severe impairment and should be considered in determining whether he is able to work.
IV. CONCLUSION
For these reasons, the Agency's decision denying benefits is reversed and the case is remanded for further proceedings consistent with this opinion.IT IS SO ORDERED.