Opinion
Case No. 6:15-cv-2199-YY
03-06-2017
PAMELA K. CRANE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FINDINGS AND RECOMMENDATION
YOU, Magistrate Judge :
Plaintiff, Pamela Crane ("Crane"), seeks to reverse and remand the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c). For the reasons that follow, the Commissioner's decision should be reversed and this case should be remanded to the Commissioner for an immediate award of benefits.
ADMINISTRATIVE HISTORY
In June 2012, Crane filed applications for DIB and SSI, alleging a disability beginning June 15, 2010, due to fibromyalgia, migraines, Graves' disease, high blood pressure, asthma, and arthritis. Tr. 66, 158-62, 171, 176. After the Commissioner denied her applications initially on September 25, 2012 (Tr. 64-81), and upon reconsideration on January 17, 2013 (Tr. 82-101), Crane requested a hearing, which was held on January 22, 2014. Tr. 30-63, 120-21. On February 18, 2014, the Administrative Law Judge ("ALJ") issued a decision finding Crane not disabled. Tr. 10-24. The Appeals Council denied Crane's subsequent request for review on September 18, 2015. Tr. 1-5. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. §§ 404.981, 422.210.
Citations are to the page(s) indicated in the official transcript of the record filed on April 11, 2016 (ECF #15).
BACKGROUND
Born in May 1963, Crane was 47 years old on the alleged onset date. Tr. 66. She earned her GED in 1981 and completed specialized job training in investments and loans through Chase Bank in 2005. Tr. 36, 177. Crane has past work experience as a customer service representative with a telephone company between May 1998 and November 2002, and as a personal banker and bank finance coordinator with Chase Bank between February 2004 and June 2010. Tr. 61, 177, 183. She was insured for DIB purposes through December 31, 2015. Tr. 15. /// ///
ALJ'S FINDINGS
Disability is the "inability to engage in any substantial gainful activity by reason 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 12 months[.]" 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
At step one, the ALJ found that Crane had not engaged in substantial gainful activity after the alleged onset date. Tr. 15. At step two, the ALJ found that Crane has the severe impairments of fibromyalgia syndrome and mild degenerative disc disease. Id. The ALJ found Crane's other impairments non-severe, including asthma, migraine headaches, Graves' disease, and obesity. Tr. 16. At step three, the ALJ found Crane did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 17.
The ALJ next assessed Crane's RFC and determined that she could perform light work with the following additional limitations: she can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for about 4 hours and sit for about 4 hours in an 8-hour workday with normal breaks; she should be allowed to alternate sitting or standing positions as needed throughout the day while remaining on task; she can engage in occasional push or pull with the right; she can engage in occasional foot control operation with the right; she can occasionally climb ramps or stairs; she can never climb ladders, ropes, or scaffolds; she can occasionally balance, stoop, kneel, crouch or crawl; she can engage in occasional bilateral overhead reaching; she should avoid concentrated exposure to excessive noise; and she should avoid concentrated exposure to irritants such as fumes, odors, dust, gases, and poorly ventilated areas. Tr. 18.
At step four, the ALJ found Crane could not perform any of her past relevant work. Tr. 22. At step five, the ALJ determined Crane could perform jobs that exist in significant numbers in the national economy, including mail sorter, storage rental facility clerk, and office helper. Tr. 23. The ALJ therefore concluded Crane is not disabled. Tr. 23-24.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Brown-Hunter v. Colvin, 8056 F.3d 487, 492 (9th Cir. 2015) (citations omitted). This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Garrison v. Colvin, 759 F.3d 995, 1009 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner. Ryan v. Comm'r, 528 F.3d 1194, 1205 (9th Cir. 2008), citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "'supported by inferences reasonably drawn from the record.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (quoting Batson v. Comm'r., 359 F.3d 1190, 1193 (9th Cir. 2004)); see also Lingenfelter, 504 F.3d at 1035.
DISCUSSION
Crane argues that the ALJ erred by: (1) improperly evaluating the medical evidence; (2) rejecting her subjective symptom testimony; and (3) failing to include all of her severe impairments at step two. This court concludes that the ALJ erred by failing to properly discount the opinions of three treating doctors concerning her time off-task and days she would miss from work. Crediting those opinions as true results mandates a finding of disability. Accordingly, this court recommends reversal of the Commissioner's decision and remand for the award of benefits.
I. Medical Evidence
A. Legal Standard: Rejection of Treating Doctor Opinions
The Ninth Circuit distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and non-examining physicians. Generally, "a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citation omitted). If a treating physician's opinion is supported by medically acceptable techniques and is not inconsistent with other substantial evidence in the record, the treating physician's opinion is given controlling weight. Id.; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). A treating doctor's opinion that is not contradicted by the opinion of another physician can be rejected only for "clear and convincing" reasons. Ryan, 528 F.3d at 1198 (citation omitted). If a treating doctor's opinion is contradicted by the opinion of another physician, the ALJ must provide "specific and legitimate reasons" for discrediting the treating doctor's opinion. Id (citation omitted).
In addition, the ALJ generally must accord greater weight to the opinion of an examining physician than that of a non-examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citation omitted). As is the case with the opinion of a treating physician, the ALJ must provide "'clear and convincing'" reasons for rejecting the uncontradicted opinion of an examining physician. Hill v. Astrue, 698 F.3d 1153, 1159-60 (9th Cir. 2012) (quoting Regennitter v. Comm'r, 166 F.3d 1153, 1159-60 (9th Cir. 1999)). If the opinion of an examining physician is contradicted by another physician's opinion, the ALJ must provide "'specific and legitimate reasons'" for discrediting the examining physician's opinion. Id (quoting Regennitter, 166 F.3d 1153 at 1160)). An ALJ may reject an examining, non-treating physician's opinion "in favor of a nonexamining, nontreating physician when he gives specific, legitimate reasons for doing so, and those reasons are supported by substantial record evidence." Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995), as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician's opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency with medical records, inconsistency with a claimant's testimony, and inconsistency with a claimant's daily activities. Tommasetti, 533 F.3d at 1040; Andrews v. Shalala, 53 F.3d 1035, 1042-43 (9th Cir. 1995). An ALJ effectively rejects an opinion when he or she ignores it. Smolen v. Chater, 80 F.3d 1275, 1286 (9th Cir. 1996).
1. Treating Physicians at Corvallis Clinic
Crane argues that the ALJ erroneously rejected the medical opinions of two of her treating doctors at the Corvallis Clinic. The record reveals that, between January 4, 2012, and November 22, 2013, Crane received primary care through the Corvallis Clinic. Tr. 245-57, 315-415. In 2013, she was seen approximately monthly (Tr. 315-51), with multiple telephone encounters in between appointments (Tr. 352-78). ///
Crane's treatment relationship with her primary care physician clearly predated 2012, as evidenced by medical source statements submitted to Crane's employer in 2005, 2009, and 2010. Tr. 283, 286-87, 291. However, the medical chart notes from that time period do not appear in the record. --------
a. Treating Physician Janel Lawrence , M.D.
Janel Lawrence, M.D., was Crane's primary care physician at the Corvallis Clinic. In February 2009 and again in March 2010, Dr. Lawrence completed medical provider forms for Crane to submit at work in support of her request for intermittent medical leave. Tr. 283, 286. Dr. Lawrence opined that Crane's episodic flare-ups would prevent her from performing her job functions and that she would be absent from work three to four times per month due to fibromyalgia symptoms. Id. Later, on May 18, 2012, Dr. Lawrence again noted that Crane needed time off for flares associated with her migraines and fibromyalgia. Tr. 251. Finally, in December 2013, Dr. Lawrence opined that Crane was "no longer able to sustain meaningful employment due to pain, fatigue and subsequent decreased ability to function." Tr. 452. In particular, Dr. Lawrence noted that Crane was unable to perform any of her job functions due to fatigue, cold intolerance, pain, and headaches. Tr. 285.
The ALJ afforded "little weight" to Dr. Lawrence's opinion because Dr. Lawrence did not provide specific functional limitations or define what she meant by "meaningful employment." Tr. 21. The ALJ may discredit a physician's opinion that is conclusory, brief, or unsupported by the record as a whole. Batson, 359 F.3d at 1195. Here, Dr. Lawrence did not define "meaningful employment" and the ALJ was entitled to reject Dr. Lawrence's opinion to the extent it concludes that Crane is unable to sustain "meaningful employment."
However, the ALJ's rejection of Dr. Lawrence's more specific opinions regarding Crane's need for three to four days off work per month due to her symptoms is not supported by the record. In rejecting Dr. Lawrence's opinion about Crane's need for days off work, the ALJ pointed to no contrary medical opinion, nor does one appear in the record. Tr. 21. To reject this portion of Dr. Lawrence's opinion, the ALJ was required to give "clear and convincing" reasons supported by substantial evidence in the record.
The ALJ gave "substantial weight" to the opinion of Jonathan Harrison, M.D., a consultative physical examiner. Tr. 20. Dr. Harrison examined Crane on October 12, 2013, and concluded that Crane could perform a broad range of activities. Tr. 276-81. However, nowhere does Dr. Harrison's report include a finding that is inconsistent with Dr. Lawrence's opinion that Crane will need intermittent days off from work totaling three to four days per month.
Dr. Harrison found that Crane could "Continuously" perform a variety of tasks, including: (1) lift or carry up to 10 pounds; (2) use her hands for reaching, handling, fingering, feeling, pushing, and pulling; and (3) use her feet to operate foot controls with either her left or right foot. Tr. 272. As defined in the report itself, "Continuously" means "more than two-thirds of the time." Tr. 270 (emphasis added). Each month contains approximately 22 work days, two-thirds of which is 15 days. Thus, Dr. Harrison conclusion does not preclude Crane from being off work due to pain or other symptoms for as many as 7 work days per month. In short, there is no inconsistency between Dr. Harrison's findings of the tasks Crane could perform "continuously" and Dr. Lawrence's opinion that Crane would need multiple days off work per month due to flares of her symptoms. Accordingly, the content of Dr. Harrison's report does not provide any clear and convincing reason for rejecting Dr. Lawrence's opinion about Crane's need for days off work.
The ALJ also states that Crane "may have needed more time off work when she had a job with more functional demands." Tr. 21. However, the ALJ does not explain what that means. It is a statement unsupported by any citation to the record and devoid of analysis. As such, it provides no basis for rejecting Dr. Lawrence's opinion as to time off work needed by Crane. The ALJ also faults Dr. Lawrence for "opin[ing] no functional restrictions." Id. That statement similarly does not further the ALJ's rejection of Dr. Lawrence's opinion. Dr. Lawrence obviously meant complete cessation of work duties to deal with the pain and other symptoms associated with Crane's impairments. See Tr. 283, 285.
In sum, no medical source statement in the record contradicts the multiple assessments by Dr. Lawrence that Crane has needed, and will continue to need (Tr. 285), three to four days per month off work each month to deal with the symptoms of her impairments, and the ALJ offers no legally sufficient reason for discrediting Dr. Lawrence's opinion in that regard.
b. Treating Physician Laura Rung , M.D.
On December 31, 2013, Laura Rung, M.D., a physiatrist and colleague of Dr. Lawrence from the Corvallis Clinic, who treated Crane on April 16 and May 6, 2013 (Tr. 339-45), submitted a letter opining that Crane's "attention and concentration would be impaired to such a degree that she could not be expected to perform even simple work tasks" 50 percent of the time and would miss two days or more every month due to her impairments, symptoms, and medication side-effects. Tr. 422. Dr. Rung limited Crane's standing and walking to one hour in an eight-hour day; limited her sitting to six hours; and found that Crane could only occasionally lift and carry less than ten pounds. Tr. 421.
The ALJ gave Dr. Rung's opinion little weight. Tr. 21. In part, the ALJ found that Dr. Rung based her conclusions on only one medical evaluation. Id. The ALJ may afford less weight to a doctor's opinion if she has treated the claimant for a relatively short duration. See 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). However, the record shows that Crane visited the Corvallis Clinic multiple times, at least twice treating with Dr. Rung. Tr. 339-45. Moreover, Dr. Rung based her opinion on a review of all treatment records. Tr. 421. On this record, the ALJ was not entitled to reject Dr. Rung's opinion based on the duration of her treatment relationship with Crane.
The ALJ also found that neither Dr. Rung's evaluation nor her treatment notes supported the severity of the limitations she assessed. Tr. 21. An ALJ may reject a medical provider's opinion when it is inconsistent with other medical records. Tommasetti, 533 F.3d at 1041. Further, the ALJ may discredit a physician's opinion that is conclusory, brief, or unsupported by the record as a whole. Batson, 359 F.3d at 1195. True, Dr. Rung's contemporaneous treatment notes do not spell out in detail all of the functional limitations imposed by Crane's fibromyalgia. However, Crane was seeking "urgent" care for an "increase in her severe flare of low back pain with new radiation into the right lower extremity in the setting of disabling fibromyalgia." Tr. 239. By that time, despite taking multiple daily doses of Hydrocodone-Acetaminophen 10-325 mg., pain control was "a significant problem with no satisfactory answer" and, according to Dr. Rung, Crane had been "disabled for many years" by her fibromyalgia. Tr. 338, 340. It would be unusual for a treating doctor to recount into the treatment notes every symptom and functional limitation associated with a longstanding medical condition each time a patient returned for treatment of a new or exacerbated other condition. Thus, the observation by the ALJ provides no basis for rejecting Dr. Rung's findings regarding Crane's need for time off work due to the pain and other symptoms associated with her fibromyalgia.
2. Treating Physician Gregory Phillips , M.D.
Finally, Crane contends that the ALJ gave insufficient reasons for rejecting the opinion of Gregory Phillips, M.D., a pain management specialist at the NeuroSpine Institute. Dr. Phillips treated Crane five times between September 24, 2013, and November 20, 2013. Tr. 423-54. On January 2, 2014, Dr. Phillips provided a letter opining that Crane has the following functional limitations: she can occasionally lift up to 25 pounds and frequently lift 15 pounds; she can stand a total of three hours in an eight-hour day; and she can frequently finger, handle, reach, balance, and climb, and only occasionally perform other postural activities. Tr. 453-54. Dr. Phillips also stated that Crane's symptoms would occasionally interfere with her ability to sustain basic attention on simple tasks, about 20 percent of the time. Id. He wrote that Crane should avoid working around any hazardous equipment and that she would be expected to miss up to sixteen hours of work each month due to her impairments. Id.
As with the opinions of Drs. Lawrence and Rung, the ALJ considered this opinion but rejected it. Tr. 21. As an initial matter, the ALJ found Crane to be more limited than Dr. Phillips indicated. Tr. 20-21, 270-81. To the degree that the ALJ adopted all of the restrictions endorsed by Dr. Phillips—in addition to the further exertional limitations endorsed by Dr. Harrison—the opinions do not conflict.
The only reasons given by the ALJ for rejecting Dr. Philipps's opinion was that "he rendered the opinion soon after beginning treatment of [Crane] and there is not a basis in his records or the records as a whole to support [his] opinion regarding time off task and absences." Tr. 21. As noted above, the ALJ may afford less weight to a treating doctor's opinion if he has treated the claimant for a relatively short duration. See 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). Dr. Phillips's letter regarding limitations in Crane's attention and her likeliness to be absent from work was dated January 2, 2014, only about three months after the date he established treatment with Crane. Tr. 21, 453-54. However, during that time frame, Dr. Phillips saw Crane five times. That is significantly more contact than that between Crane and Dr. Harrison. Thus, this reason is not a sufficient basis on which to discredit the opinion offered by Dr. Phillips that Crane would be off task about 20 percent of the time and would miss up to sixteen hours of work per month.
Second, the ALJ rejected Dr. Phillips's opinion by asserting that it was not supported by the medical records as a whole. Tr. 21. That reasoning likewise does not withstand scrutiny. As early as 2009, Crane's primary treating doctors concluded that Crane would need significantly more time off work (three to four days per month) and be off task for a substantially larger percentage of the time (unable to perform even simple work tasks for 50 percent of a standard work week) than did Dr. Phillips. The medical records document ongoing prescriptions for copious quantities of narcotic pain medications (see, e.g., Tr. 253, 315-16, 321) and reveal no indication that Crane was abusing those medications. Crane not only requested days off from work to deal with her symptoms, but also sought a restriction on her work hours to accommodate her pain medicine regimen. Tr. 40. Multiple chart entries document some 20 years of dealing with fibromyalgia symptoms and exacerbation of symptoms after fairly minor physical activities. See, e.g., Tr. 300, 303, 329. In sum, the medical records offer ample support for Dr. Phillip's opinion and the ALJ's conclusion to the contrary is not supported by substantial evidence.
II. Remand for an Award of Benefits
In addition to challenging the rejection of her treating doctors' opinions, Crane argues that the ALJ erred by failing to include additional impairments in her step-two finding and by improperly discounting her subjective testimony regarding her pain and other symptoms. However, this court need not belabor those other arguments, which may or may not serve to further support Crane's contention that she is disabled. /// ///
A. Legal Standard: Crediting as True
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F3.d 1172, 1178 (9th Cir. 2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Strauss v. Comm'r of Soc. Sec. Admin., 635 F3d 1135, 1138 (9th Cir 2011). The court may not award benefits punitively and must conduct a "credit-as-true" analysis to determine if a claimant is disabled under the Act. Id.
Under the "crediting as true" doctrine, evidence should be credited and an immediate award of benefits directed where "(1) the ALJ failed to provide legally sufficient reasons for rejecting the 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 (quoting Benecke v. Barnhart, 379 F3.d 587, 593 (9th Cir. 2004)). The "crediting as true" doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). The reviewing court declines to credit testimony when "an outstanding issue" remains. Luna v. Astrue, 623 F3d 1032, 1035 (9th Cir 2010).
B. Award of Benefits
Crane was fortunate enough to continue working during 2009 and 2010 by securing significant accommodations from her employer. However, as early as February 2009, and continuing into January 2014, three treating doctors opining on her condition concluded that she would be off task anywhere from 20-50 percent of the time and would miss as many as four work days per month due to the pain and other symptoms of her impairments. Tr. 283, 286, 453-54. No medical source statement, including the medical opinion of Dr. Harrison, on whom the ALJ heavily relies, contradicts those opinions. Furthermore, the opinions are augmented by additional information in the record, including requests for work accommodations to assist Crane in managing her narcotic and other pain medications, as well as witness statements of Crane's sister, husband, and daughter, which chronicle Crane's efforts to work despite her disabilities, continued deterioration in her condition, exacerbation of her symptoms, and long recovery following any physical exertion. Tr. 238-40.
The VE testified that competitive employment is precluded when a person either misses more than one day of work per month or is "unproductive for any reason for 10 percent or more of the time." Tr. 61. If the improperly discounted opinions of Crane's treating providers regarding her time off task and missing work is credited, it is clear from the record that the ALJ would be required to find Crane disabled. See Hampton v. Colvin, 149 F.Supp.3d 1279 (W.D. Wa. 2016) (crediting treating doctor opinion that plaintiff would miss more than four days per month as a result of her impairments, including fibromyalgia, would result in finding of disability). No further development of the record is indicated and no outstanding issues need resolved. Accordingly, the treating providers' statements should be credited, and this case should be remanded to the Commissioner for an award of benefits.
RECOMMENDATION
For the reasons discussed above, the Commissioner's decision that Crane is not disabled should be REVERSED and this case should be REMANDED to the Commissioner for the immediate payment of benefits.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to these Findings and Recommendation, if any, are due no later than fourteen (14) days from today's date. If objections are filed, any response is due fourteen (14) days from the date of the objections. See Fed. R. Civ. P. 72(b). Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007) (discussing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991)).
DATED this 6th day of March, 2017.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge