Opinion
No. CV-09-3056-CI.
August 26, 2010
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS PURSUANT TO 42 U.S.C. § 405(g)
BEFORE THE COURT are cross-Motions for Summary Judgment. (Ct. Rec. 17, 19.) Attorney D. James Tree represents Plaintiff; Special Assistant United States Attorney Michael S. Howard represents Defendant. The parties have consented to proceed before a magistrate judge. (Ct. Rec. 7.) After reviewing the administrative record and the briefs filed by the parties, the court GRANTS Plaintiff's Motion for Summary Judgment and remands the case to the Commissioner for additional proceedings.
On June 29, 2005, Randy Fortier (Plaintiff) applied for disability insurance benefits (DIB), alleging disability due to left elbow and right knee impairments. (Tr. 78, 85.) Plaintiff's date of last insured for DIB purposes was June 30, 2006. (Tr. 85.) At the administrative hearing, he alleged a closed period of disability from October 9, 2001, to June 2006, when he returned to work. He also alleged disabling depression during the closed period. (Tr. 583-84.)
Following a denial of benefits at the initial stage and on reconsideration, a hearing was held before Administrative Law Judge (ALJ) James Burke on April 23, 2008. (Tr. 582-95.) Plaintiff, who was represented by counsel, and vocational expert K. Diane Kramer, appeared and testified. (Id.) On July 14, 2008, ALJ Burke denied benefits in a written decision. (Tr. 12-18.) The Appeals Council denied Plaintiff's request for review. (Tr. 3-5.) This appeal followed. Jurisdiction is appropriate pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review:
The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000).
It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
SEQUENTIAL PROCESS
Also in Edlund, 253 F.3d at 1156-1157, the court set out the requirements necessary to establish disability:
Under the Social Security Act, individuals who are "under a disability" are eligible to receive benefits. 42 U.S.C. § 423(a)(1)(D). A "disability" is defined as "any medically determinable physical or mental impairment" which prevents one from engaging "in any substantial gainful activity" and is expected to result in death or last "for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Such an impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3). The Act also provides that a claimant will be eligible for benefits only if his impairments "are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy . . ." 42 U.S.C. § 423(d)(2)(A). Thus, the definition of disability consists of both medical and vocational components.
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). This burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a). At step five, the burden shifts to the Commissioner to show that (1) the claimant can perform other substantial gainful activity; and (2) a "significant number of jobs exist in the national economy" which claimant can perform. 20 C.F.R. §§ 404.1520(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
STATEMENT OF FACTS
The facts of the case are set forth in detail in the transcript of proceedings, and are summarized briefly here. At the time of the hearing, Plaintiff testified he had returned to work and had been sober since January 26, 2006. (Tr. 585.) The record shows Plaintiff was 51 years old at the time of the hearing, unmarried and had no children. He lived with his mother until she passed away. (Tr. 248-49.) He has a high-school education and additional training as a telecommunications technician. (Tr. 83.) In addition, he has work experience as a security guard, cable installer, electronics repairer, driver, and laborer. (Tr. 88, 97, 592.) Plaintiff's contends his physical impairments combined with depression rendered him unable to sustain work during the closed period. (Tr. 588-89.)
ADMINISTRATIVE DECISION
The ALJ found Plaintiff had not engaged in substantial gainful activity between his alleged onset date and 2005. (Tr. 14.) At step two, he found Plaintiff had the medically determinable impairments of "chronic tendonitis/bursitis of the elbow and knee, uncontrolled hypertension, and intermittent flares of gout." (Id.) He made no findings regarding non-severe impairments. At step three, the ALJ found Plaintiff's impairments alone and in combination did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). (Tr. 15.) At step four, he found Plaintiff had the residual functional capacity (RFC) to perform light level work, i.e. "he can lift carry up to 20 pounds occasionally, 10 pounds frequently; and he can sit and stand up to six hours, and walk two hours in an 8-hour workday." (Tr. 15-16.) The ALJ found Plaintiff's statements regarding his symptoms were not credible to the extent they were inconsistent with the ALJ's RFC findings. (Tr. 17.) After finding Plaintiff could no longer perform his past work, ALJ Burke proceeded to step five, applied the Medical-Vocational Guidelines (Grids) and found Plaintiff "not disabled," as defined by the Social Security Act. (Tr. 17-18.)
ISSUES
The question presented is whether there is substantial evidence to support the ALJ's decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends the ALJ erred when he: (1) failed to find Plaintiff's diagnosed depression was a severe impairment at step two; (2) improperly rejected medical opinions of Plaintiff's treating and examining medical sources; and (3) failed to meet his burden at step five when he relied on the Grids. (Ct. Rec. 18 at 11.) Defendant responds the ALJ's decision is supported by substantial evidence and free of legal error. (Ct. Rec 20.)
DISCUSSION
A. Credibility
On de novo review, the court must determine whether the ALJ's determinations are free of legal error and supported by substantial evidence. Brawner, 839 F.2d at 433. Although issues of credibility are the sole province of the ALJ in these proceedings, when the adjudicator finds a claimant's statements regarding the severity of impairments and limitations are not credible, he must make a credibility determination with findings sufficiently specific to permit the court to conclude the ALJ did not arbitrarily discredit claimant's allegations. Richardson, 402 U.S. at 400; Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).
To reject a claimant's subjective complaints, the ALJ must provide "specific, cogent reasons for the disbelief." Morgan, 169 F.3d, at 599 ( quoting Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). If there is no affirmative evidence of malingering, the reasons must be "clear and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Furthermore, "the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citation omitted).
If the credibility determination is a critical factor in the ALJ's decision, it should be as comprehensive and analytical as feasible, and the finding should be explicit whether the Secretary believed or disbelieved the claimant. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981) ( quoting Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert denied, 420 U.S. 931 (1975). The court will not infer lack of credibility. Murray v. Heckler 722 F.2d 499, 502 (1983).
Here, the ALJ's credibility determination is not sufficiently specific or "clear and convincing." For example, in discounting Plaintiff's statements, the ALJ noted Plaintiff "conceded at his hearing that his elbow and knee impairments were not disabling by themselves or in combination." (Tr. 16.) However, independent review shows that Plaintiff's representative made this assertion at the hearing, not Plaintiff. (Tr. 589.) The representative's statement, unsupported by either Plaintiff's testimony or medical evidence, is not substantial evidence to support the ALJ's finding that Plaintiff's subjective statements are unreliable. In addition, it appears Plaintiff did not describe his mental or physical limitations at the hearing because the ALJ did not question Plaintiff directly about his physical or mental symptoms or how they affected his ability to work between 2001 and 2005. Therefore, the court is unable to review what specific testimony or allegations are being rejected by the ALJ.
As found by the Ninth Circuit, although it is Plaintiff's burden to provide evidence of impairments, the ALJ is not "a mere umpire" during disability proceedings. He has a duty to question Plaintiff about symptoms and limitations stemming from the medically determinable impairments established by the record. See Widmark v. Barnhart, 454 F.3d 1063, 1068-69 (9th Cir. 2006). This is true even if the claimant is represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).
The ALJ also reasons that Plaintiff's failure to mention his relapse of substance abuse between February 2005 and May 2005, during a November 2005 psychological evaluation is cause to discredit his claims. (Tr. 16-17; see also Tr. 179, 190-91, 251.) Although a claimant's lack of candor about substance abuse is a "clear and convincing" reason to discount his symptom allegations, Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999), in this case, the ALJ failed to explain what testimony was rendered unreliable by Plaintiff's failure to disclose a recent relapse during the interview, and in what way that failure discredited his claim. On review, the court is unable to determine what testimony the ALJ is disregarding and whether the ALJ's reasoning is supported by substantial evidence. Without more specificity, the ALJ's reasoning is legally insufficient. Holohan, 246 F.3d at 1208.
Finally, the ALJ's finding that Plaintiff resumed work after four years does not undermine Plaintiff's claim his physical impairments, combined with depression, rendered him unable to sustain work during the closed period alleged. (Tr. 16.) The ALJ's credibility findings are not supported by clear and convincing reasons, which is cause for remand. Id.
B. Step Two: Evidence of Severe Mental Impairment
Plaintiff argues the ALJ erroneously ignored evidence of severe mental impairments diagnosed by examining psychologists Drs. Billings and Shultz, and non-examining agency psychologist, Dr. Mary Gentile, all of whom diagnosed a major depressive disorder. (Ct. Rec. 18 at 15-17; Tr. 204, 235, 252.)
At step two of the sequential evaluation, the ALJ determines whether a claimant suffers from a "severe" impairment, i.e., one that significantly limits his physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). To satisfy step two's requirement of a severe impairment, the claimant must prove the existence of a physical or mental impairment by providing medical evidence consisting of signs, symptoms, and laboratory findings; the claimant's own statement of symptoms alone will not suffice. 20 C.F.R. § 404.1508. The fact that a medically determinable condition exists does not automatically mean the symptoms are "severe," or "disabling" as defined by the Social Security regulations. See, e.g., Edlund, 253 F.3d at 1159-60; Fair, 885 F.2d at 603; Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985).
However, even if a claimant's depression is determined non-severe, diagnosed mental disorders must be considered in combination with other impairments at step two to determine if the combined impairments have more than a minimal effect on the claimant's ability to perform work activities. 20 C.F.R. § 404.1529. If so, resultant limitations must be considered throughout the sequential evaluation process. Id.
The adjudicator's role at step two is further explained by SSR 85-28:
A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities; thus, an assessment of function is inherent in the medical evaluation process itself. At the second step of sequential evaluation, then, medical evidence alone is evaluated in order to assess the effects of the impairment(s) on ability to do basic work activities.SSR 85-28. The regulations advise the adjudicator that "[g]reat care should be exercised in applying the not severe impairment concept." Id.
In determining whether a claimant has a severe impairment the ALJ must evaluate medical evidence submitted and explain the weight given to the opinions of accepted medical sources in the record. The regulations distinguish among three types of accepted medical sources: (1) sources who have treated the claimant; (2) sources who have examined the claimant; and (3) sources who have neither examined nor treated the claimant, but express their opinions based upon a review of the claimant's medical records. 20 C.F.R. § 404.1527. A treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a non-examining reviewing or consulting physician's opinion. Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Commissioner must provide "clear and convincing" reasons for rejecting uncontradicted examining physician opinions. Lester, 81 F.3d at 830.
Here, the ALJ failed to discuss or properly reject with "clear and convincing" reasons opinions of examining psychologist Dr. Schultz rendered in her December 2004 evaluation. Dr. Schultz opined Plaintiff had moderate limitations in cognitive and social functioning and marked limitations in his ability to tolerate the pressure and expectations of a normal work setting. She also recommended treatment with medication. (Tr. 199-200.) At the hearing, VE Kramer testified that, if credited, these limitations would significantly affect Plaintiff's ability to work. (Tr. 594-95.)
Although the ALJ appears to disregard Dr. Schultz's 2004 evaluation because she estimated a duration of six to nine months (Tr. 15), the record shows Dr. Gentile noted several moderate functional limitations due to depression in December 2005. (Tr. 228-30, 244.) State agency physicians such as Dr. Gentile are treated as expert non-examining sources in disability proceedings. The ALJ may not ignore these opinions and must explain the weight given. SSR 96-6p. Here, the ALJ failed to discuss or reject Dr. Gentile's opinion that Plaintiff would have moderate limitations in sustained concentration and persistence that would slow his pace. (Tr. 244.) This is reversible error. The limitations assessed by Dr. Gentile and Dr. Shultz are consistent with Plaintiff's claim that he could not sustain work due to depression and physical problems. Because the unrejected medical evidence presented by Plaintiff consists of formal diagnoses of depressive disorder and treatment recommendations, as well as medical opinions that Plaintiff's social functioning was more than minimally impaired, the ALJ erred in failing to find depression was a severe impairment. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
For step two purposes, the Plaintiff met his burden of providing objective medical evidence, as well as medical records documenting ongoing treatment with medication during the alleged closed period. 20 C.F.R. § 404.1526; Webb, 433 F.3d at 687. Because the ALJ failed to properly discredit Plaintiff's report that he became depressed in 2001 after his injury, that evidence is credited. (Tr. 250.) As discussed above, unrejected medical evidence establishes more than a "slight abnormality" in Plaintiff's mental condition. Remand is necessary for a new sequential evaluation which will include the effects of all severe and non-severe impairments on Plaintiff's ability to work during the closed period. Further, because of the step two error and the exclusion of unrejected non-exertional limitations assessed by Drs. Gentile and Schultz at steps four and five, the ALJ's application of the Grids at step five was erroneous. Tackett, 180 F.3d at 1103.
The use of the Grids is appropriate where the claimant's functional limitations "fall into a standardized pattern `accurately and completely' described by the Grids." Tackett, 180 F.3d at 1103 ( quoting Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). Significant non-exertional impairments make reliance on the Grids inappropriate. Desrosiers v. Secretary of Health and Human Serv., 846 F.2d 573, 577 (9th Cir. 1988). A vocational expert is required where "a claimant's non-exertional limitations are in themselves enough to limit his range of work." Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).
C. Remedy
A step two determination that a non-exertional impairment is severe "only raises a prima facie case of a disability." Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (citing Tackett, 180 F.3d at 1100). Therefore, Plaintiff might not succeed in proving he is disabled, as defined by the Social Security Act. Even if improperly rejected medical evidence is credited, on the record before the court it is not conclusive that a reasonable ALJ, considering existing medical evidence of physical and psychological impairments in combination (as required by the Regulations), would find Plaintiff disabled. Therefore, remand for additional proceedings is appropriate. See Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006); see also Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990).
On remand, the ALJ will take additional testimony from Plaintiff and address medical opinions as discussed above. In addition, the ALJ will address opinions from treating physician Judy Page, D.O. that there were a "limited number of jobs [Plaintiff] can do"; that Plaintiff should avoid repetitive climbing of ladders and stairs; and that Plaintiff cannot do jobs that required strong grasping or repetitive elbow work. (Tr. 275, 308, 465.) A new RFC determination will be made based on properly evaluated medical evidence and credible testimony. A vocational expert, if necessary, will be consulted at steps four and five to opine on the effects of non-exertional limitations on Plaintiff's occupational base. Accordingly,
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (Ct. Rec. 17) is GRANTED and the matter is remanded to the Commissioner for additional proceedings pursuant to 42 U.S.C. § 405(g) and as directed above.
2. Defendant's Motion for Summary Judgment dismissal (Ct. Rec. 19) is DENIED.
3. Application for attorney fees may be made by separate motion.
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. The file shall be CLOSED and judgment entered for PLAINTIFF.