Opinion
CASE NO. 2:17-CV-01118-DWC
03-29-2018
JONATHAN BELTRAN, Plaintiff, v. NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.
ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS
Plaintiff Jonathan Beltran filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of Plaintiff's applications for supplemental security income ("SSI") and disability insurance benefits ("DIB"). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 5.
After considering the record, the Court concludes the Administrative Law Judge ("ALJ") erred in her treatment of two medical opinions. Had the ALJ properly considered these medical opinions, the residual functional capacity ("RFC") may have included additional limitations. The ALJ's error is therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security ("Commissioner") for further proceedings consistent with this Order.
FACTUAL AND PROCEDURAL HISTORY
On March 17, 2014, Plaintiff filed applications for SSI and DIB, alleging disability as of December 10, 2009. See Dkt. 8, Administrative Record ("AR") 20. The applications were denied upon initial administrative review and on reconsideration. See AR 20. ALJ Stephanie Martz held a hearing on February 4, 2016. See AR 43-68. In a decision dated March 24, 2016, the ALJ determined Plaintiff to be not disabled. AR 20-36. The Appeals Council denied Plaintiff's request for review of the ALJ's decision, making the ALJ's decision the final decision of the Commissioner. See AR 1-3; 20 C.F.R. § 404.981, § 416.1481.
In Plaintiff's Opening Brief, Plaintiff maintains the ALJ erred by: (1) failing to give specific and legitimate reasons to discount medical opinion evidence from examining physician Dr. Rahul Khurana, M.D., and treating physician Dr. Caitlin Enright, M.D.; (2) improperly assessing Plaintiff's residual functional capacity ("RFC"); and (3) failing to provide clear and convincing reasons to discount Plaintiff's subjective symptom testimony. Dkt. 10, pp. 2-15. Plaintiff argues that as a result of these errors, an award of benefits is appropriate. Id. at 15-16.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
DISCUSSION
I. Whether the ALJ properly considered the medical opinion evidence.
Plaintiff argues the ALJ erred in her treatment of the medical opinion evidence from Drs. Khurana and Enright. Dkt. 3, pp. 3-10.
The ALJ must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician's opinion is contradicted, the opinion can be rejected "for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can accomplish this by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings." Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
A. Dr. Khurana
First, Plaintiff argues the ALJ erred in her treatment of medical opinion evidence from examining physician Dr. Khurana. Dkt. 10, pp. 3-8.
Dr. Khurana performed a consultative psychiatric examination of Plaintiff on July 21, 2014. See AR 393-97. In his evaluation report, Dr. Khurana diagnosed Plaintiff with recurrent and severe major depressive disorder; post-traumatic stress disorder; panic disorder with agoraphobia; alcohol dependence (in remission); cocaine dependence (in remission); and amphetamine dependence (in remission). AR 395. In addition, Dr. Khurana opined Plaintiff may have a "possible learning disorder." AR 395.
Based on Plaintiff's "reliable self-report" as well as Dr. Khurana's "interview [and] observations," Dr. Khurana made several findings regarding Plaintiff's ability to conduct work activities. See AR 395-95. Dr. Khurana found Plaintiff had "minimal job skills" and "decreased ability to learn new job skills." AR 395. Dr. Khurana also opined Plaintiff had "minimal difficulty with simple instructions." AR 395. However, he was markedly impaired in his ability to make "work-related judgments or carry out more complex instructions" due to depression, anxiety, and a possible learning disorder. AR 395. Furthermore, Dr. Khurana stated Plaintiff had "extreme disability for sustained concentration [and] persistence." AR 395. Dr. Khurana moreover opined Plaintiff's illnesses made social interactions with the public, supervisors, and co-workers "extremely difficult." AR 395. Dr. Khurana found Plaintiff would have "extreme difficulty responding to changes in the work routine." AR 395. Based on Plaintiff's medical and psychiatric illnesses, Dr. Khurana stated it was "unrealistic" for Plaintiff to "ever work again in any significant capacity." AR 395.
The ALJ summarized Dr. Khurana's opinion and then give it little weight, stating:
(1) Dr. Khurana's opinions are not supported by his own examination that showed no problems with attention, concentration or memory. (2) The claimant misspelled the word "world," but that does not establish a learning disorder. (3) Dr. Khurana claimed that the claimant had marked limitations in complex instructions and exercising judgment; yet the claimant is responsible for raising a small child on his own, which requires him to exercise judgment every day. (4) Dr. Khurana claimed that the claimant has extreme difficulty responding to change and extreme difficulties with social interactions; but while it is evident that the claimant has social difficulties, he is not precluded from brief interactions with others. (5) The longitudinal review of the state agency psychiatric/psychological consultants is consistent with the claimant's medical evidence of record, and I give more weight to those opinions.AR 31-32 (numbering added).
While the ALJ provided five reasons to discount Dr. Khurana's opinion, each of these reasons contained error. First, the ALJ gave Dr. Khurana's little weight because she found Dr. Khurana's opinion unsupported by his examination, which the ALJ claimed "showed no problems with attention, concentration or memory." AR 32. The ALJ's statement is unsupported by the record, as Dr. Khurana's examination indeed showed problems in these areas. For example, when Dr. Khurana asked Plaintiff to repeat the numbers 8-0-7-5-2-9, Plaintiff responded "8-0-2-9." AR 394-95. Similarly, when asked to say the numbers 6-4-0-7 backwards, Plaintiff responded "7-4-0-6." AR 395. Plaintiff also erred on counting by seven backwards. AR 394. Thus, the ALJ's assertion that Dr. Khurana's examination showed no problems with attention, concentration, or memory was unsupported by substantial evidence in the record and not a specific, legitimate reason to discount this opinion. See Bayliss, 427 F.3d at 1216 (citation omitted) (an ALJ may only reject a physician's contradicted opinion with "specific and legitimate reasons that are supported by substantial evidence").
Second, the ALJ discounted Dr. Khurana's opinion by stating Plaintiff's misspelling of the word "world" during Dr. Khurana's examination did not establish Plaintiff has a learning disability. AR 33. Nonetheless, contrary to the ALJ's assertion, Dr. Khurana did not opine that Plaintiff has a learning disorder; rather, Dr. Khurana repeatedly stated Plaintiff has a "possible learning disorder." See AR 395 (emphasis added). Further, on the list of Plaintiff's diagnoses, Dr. Khurana wrote "R/O Learning Disorder," indicating he was unwilling to rule out or commit to that diagnosis at the time. See AR 395; see also Melendez v. Fla. Dep't of Corr., 2016 WL 5539781, at *3 (N.D. Fla. Aug. 30, 2016) (citations and internal quotation marks omitted) (noting "R/O is an abbreviation for "'rule out,' a term used in differential diagnosis," and differential diagnosis is used to determine the most likely cause of the patient's symptoms). Dr. Khurana also did not state that it was Plaintiff's misspelling of the word "world" that lead to this potential diagnosis. See AR 394-95. Therefore, the ALJ's second reason for discounting Dr. Khurana's opinion was not specific and legitimate or supported by substantial evidence, as it did not accurately reflect Dr. Khurana's report.
Third, the ALJ gave Dr. Khurana's opinion little weight because the judgment necessary for Plaintiff to raise a small child contradicted Dr. Khurana's opinion that Plaintiff was limited in his ability to follow complex instructions and exercise judgment. AR 33. An ALJ may discount a physician's findings if those findings appear inconsistent with a plaintiff's daily activities. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). In this case, however, the fact that Plaintiff is a parent does not necessarily show he can follow complex instructions or exercise judgment without limitations. The record reflects Plaintiff is a single parent. AR 51-53. He gets his daughter ready for pre-school, bathes her, and puts her to bed. See AR 51-53, 227, 230, 638. The school provides Plaintiff's daughter with breakfast, lunch, and a snack each day. AR 59. Yet the record further shows Plaintiff's daughter misses school a few times a month when Plaintiff is "not feeling well" due to his mental and physical health conditions, and she could face disenrollment if she continues to miss school. AR 56, 708. Plaintiff also expressed stress surrounding getting his daughter to bed at night. See AR 505, 638, 698.
Hence, Plaintiff's actions as a parent that are contained in the record do not necessarily contradict Dr. Khurana's opinion that he is limited in his ability to follow instructions and exercise judgment. Accordingly, this was not a specific, legitimate reason, supported by substantial evidence in the record as a whole, to reject Dr. Khurana's opinion. See Bayliss, 427 F.3d at 1216 (citation omitted) (an ALJ may only reject a physician's contradicted opinion with reasons "supported by substantial evidence"); see also Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (finding that, with few details in the record about the claimant's childcare activities, "the mere fact that [the claimant] cares for small children does not constitute an adequately specific conflict with her reported limitations").
Fourth, the ALJ discounted Dr. Khurana's findings regarding Plaintiff's difficulties responding to change and having social interactions because "he is not precluded from brief interactions with others." AR 33. An ALJ may discount a physician's opinion if it is inadequately supported "by the record as a whole." See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citation omitted). Regardless, an ALJ cannot discount a physician's opinion in a conclusory manner; instead, the ALJ must state her interpretations and explain why they, rather than the physician's interpretations, are correct. See Embrey, 849 F.2d at 421-22.
In this case, the ALJ's fourth reason for discounting Dr. Khurana's opinion was conclusory because she failed to cite any evidence in the record showing Plaintiff's social interactions and explain how it contradicts Dr. Khurana's findings. As such, this was not a specific, legitimate reason, supported by substantial evidence, to reject Dr. Khurana's findings. See Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) ("We require the ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we may afford the claimant meaningful review of the SSA's ultimate findings.").
Fifth, the ALJ gave "more weight" to the non-examining stage agency consultants over Dr. Khurana's opinion because she found their "longitudinal review . . . consistent with [Plaintiff's] medical evidence of record." AR 33. A non-examining physician's opinion "may constitute substantial evidence when it is consistent with other independent evidence in the record." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (citing Magallanes, 881 F.2d at 752). However, an examining physician's opinion is "entitled to greater weight than the opinion of a nonexamining physician." Lester, 81 F.3d at 830 (citations omitted); see also 20 C.F.R. § 404.1527(c)(1). As such, a non-examining physician's opinion "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 (citations omitted); see also Buck v. Berryhill, 869 F.3d 1040, 1049-50 (9th Cir. 2017).
In this case, the ALJ discounted Dr. Khurana's opinion in favor of the non-examining state agency consultants because the consultants' opinions were consistent with the medical evidence. AR 33. Yet the ALJ failed to state whether - and if so, how - these opinions were more consistent with the record than Dr. Khurana's opinion. See AR 33. Instead, the ALJ rejected Dr. Khurana's opinion in a conclusory manner in favor of the non-examining state agency consultants. See AR 33. Given that a non-examining physician's opinion alone cannot justify rejecting an examining physician's opinion, this was not a specific, legitimate reason to reject Dr. Khurana's opinion. See Lester, 81 F.3d at 831 (citations omitted); see also Buck, 869 F.3d at 1049-50.
In addition to the opined limitations discussed above, Dr. Khurana assigned Plaintiff a Global Assessment Functioning ("GAF") score of 45-50. AR 395. The ALJ discredited this part of Dr. Khurana's opinion. AR 33. However, given that Plaintiff failed to provide an argument explaining how the ALJ erred in her treatment of this GAF score, the Court will not consider whether the ALJ erred regarding this particular part of Dr. Khurana's report. See Dkt. 10; see also Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2007) (citation omitted) (the court will not consider an issue that a plaintiff fails to argue "with any specificity in his briefing"). --------
For the above stated reasons, the ALJ failed to provide any specific, legitimate reason, supported by substantial evidence, to give Dr. Khurana's opinion little weight. Therefore, the ALJ erred.
Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the claimant or "inconsequential" to the ALJ's "ultimate nondisability determination." Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The determination as to whether an error is harmless requires a "case-specific application of judgment" by the reviewing court, based on an examination of the record made "'without regard to errors' that do not affect the parties' 'substantial rights.'" Molina, 674 F.3d at 1118-1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)).
In this case, had the ALJ properly considered Dr. Khurana's opinion, the RFC and hypothetical questions posed to the vocational expert ("VE") may have contained additional limitations. For example, the RFC and hypothetical questions may have reflected Plaintiff's "extreme" difficulties concentrating and responding to changes in work routine. The RFC and hypothetical questions may have also reflected Plaintiff's marked limitation in making work-related judgments. The RFC and hypothetical questions posed to the VE did not contain these limitations. See AR 26, 65-66. Thus, if limitations reflecting Dr. Khurana's findings were included in the RFC and the hypothetical questions posed to the VE, the ultimate disability determination may have changed. Accordingly, the ALJ's failure to properly consider Dr. Khurana's opinion was not harmless and requires reversal. See Molina, 674 F.3d at 1117 (an error is not harmless if it "alters the outcome of the case").
B. Dr. Enright
Next, Plaintiff maintains the ALJ erred in her treatment of medical opinion evidence from Dr. Enright, Plaintiff's treating physician. Dkt. 10, pp. 8-10.
Dr. Enright responded to a Washington State Department of Social and Health Services ("DSHS") evaluation form regarding Plaintiff's ability to conduct work activities. See AR 482-84. Dr. Enright opined Plaintiff is unable to lift heavy objects and cannot walk or sit for long periods of time without discomfort. AR 483. She determined he is capable of performing sedentary work, defined as lifting up to 10 pounds and sitting, walking, and standing for brief periods. AR 483. Dr. Enright wrote Plaintiff's low back pain (related to mild degeneration and musculoskeletal strain), morbid obesity, depression, and anxiety contribute to his limitations. AR 482. In all, Dr. Enright opined Plaintiff's conditions limit him to working, looking for work, or preparing for work for up to 11-20 hours per week. AR 482.
The ALJ summarized Dr. Enright's opinion and assigned it "partial weight," stating:
(1) Although she is a treating source, Dr. Enright did not explain her opinion or support it with specific findings, though she did cite diagnoses of low back pain, morbid obesity; and depression and anxiety, which were treated by another source, and affect the claimant's ability to lose weight. (2) Dr. Enright's treatment notes do not offer findings that show that the claimant lacks stamina for full-time work, especially at a sedentary level.AR 32 (internal citation omitted; numbering added).
First, the ALJ gave Dr. Enright's opinion partial weight because Dr. Enright did not support her opinion with specific findings other than citing Plaintiff's diagnoses. AR 32. An ALJ need not accept a physician's opinion that is "brief, conclusory, and inadequately supported by clinical findings." Bayliss, 427 F.3d at 1216 (citing Tonapetyan, 242 F.3d at 1149). However, if a treating physician's opinion is "supported by treatment notes," it cannot be rejected as "conclusory and inadequately supported by the clinical findings" merely because the physician gave her opinion in a check-box questionnaire. Esparaza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015) (citing Garrison v. Colvin, 759 F.3d 995, 1014 n.17 (9th Cir. 2014)).
In this case, Dr. Enright provided her opinion on a DSHS check-box questionnaire. AR 482-84. Dr. Enright's treatment notes are also included in the record. See, e.g., AR 277-341, 468-70, 475-79, 572-78, 582-86. These treatment notes support the conditions and relevant symptoms Dr. Enright cited on the DSHS form as causing Plaintiff's limitations, such as back pain, obesity, and anxiety. See, e.g., AR 295, 301, 315, 320, 321, 353, 575, 581, 583, 595, 605, 700-01, 709. Because Dr. Enright's treatment notes and objective observations support the conditions she cited as causing Plaintiff's limitations, the ALJ erred by discounting Dr. Enright's opinion for not being accompanied by specific findings. See Esparaza, 631 Fed.Appx. at 462; see also Garrison, 759 F.3d at 1014 n.17 (a treating physician's opinion cannot be rejected merely because of its form if the opinion reflects and is consistent with treatment notes in the record).
Second, the ALJ gave Dr. Enright's opinion only partial weight because she found Dr. Enright's treatment notes did not show Plaintiff lacked the stamina for full-time work. AR 32. Despite the ALJ's assertion, Dr. Enright did not opine Plaintiff could only work 11-20 hours per week due to his stamina; rather, Dr. Enright opined Plaintiff was limited in his ability to work due to his conditions, including low back pain, morbid obesity, depression, and anxiety. See AR 482. Moreover, the ALJ's statement is conclusory. The ALJ failed to explain how or what aspects of Dr. Enright's treatment notes failed to support her opinion. See AR 32. Therefore, the ALJ's second reason for discounting Dr. Enright's opinion was not specific and legitimate because it was unsupported by the record and conclusory. See Embrey, 849 F.2d at 421-22 (conclusory reasons do "not achieve the level of specificity" required to justify an ALJ's rejection of an opinion).
For the above stated reasons, the Court concludes the ALJ failed to provide specific and legitimate reasons, supported by substantial evidence, to discount Dr. Enright's opinion. As such, the ALJ erred. Had the ALJ properly considered Dr. Enright's opinion, the RFC and hypothetical questions posed to the VE may have contained limitations accounting for Dr. Enright's opinion that Plaintiff cannot walk or sit for long periods. The RFC and hypothetical questions may have also included the limitation that Plaintiff can only work 11-20 hours per week. As the ultimate disability decision may have changed with proper consideration of Dr. Enright's opinion, the ALJ's error is not harmless and requires reversal. See Molina, 674 F.3d at 1115.
II. Whether the ALJ properly assessed the RFC and properly considered Plaintiff's subjective symptom testimony.
Plaintiff also argues the ALJ erred because the RFC is not supported by substantial evidence in the record. Dkt. 10, pp. 11-12. Moreover, Plaintiff asserts the ALJ erred with respect to Plaintiff's subjective symptom testimony. Id. at 12-15.
The ALJ committed harmful error regarding medical opinion evidence from Drs. Khurana and Enright. See Section I., supra. Because the ALJ's reconsideration of these medical opinions may impact the RFC, the ALJ is directed to reassess the RFC on remand. See SSR 96-8p, 1996 WL 374184 (1996) (an RFC "must always consider and address medical source opinions"); Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) ("an RFC that fails to take into account a claimant's limitations is defective").
In addition, as reconsideration of the medical opinions from Drs. Khurana and Enright may impact the ALJ's consideration of Plaintiff's subjective symptom testimony, the ALJ shall reconsider Plaintiff's testimony on remand, as well.
III. Whether an award of benefits is warranted.
Lastly, Plaintiff requests the Court remand his claim for an award of benefits. Dkt. 10, pp. 15-16.
The Court may remand a case "either for additional evidence and findings or to award benefits." Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court reverses an ALJ's decision, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a "test for determining when evidence should be credited and an immediate award of benefits directed." Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant's] 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.Smolen, 80 F.3d at 1292.
In this case, the ALJ committed harmful error regarding the medical opinions of Drs. Khurana and Enright. Because outstanding issues remain regarding the medical evidence, Plaintiff's RFC, and his ability to perform other jobs existing in significant numbers in the national economy, remand for further consideration of this matter is appropriate.
CONCLUSION
Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded Plaintiff was not disabled. Accordingly, Defendant's decision to deny benefits is reversed and this matter is remanded for further administrative proceedings in accordance with the findings contained herein.
Dated this 29th day of March, 2018.
/s/_________
David W. Christel
United States Magistrate Judge