Opinion
No. 2:14-cv-42-EFB
09-22-2015
KATHRYN INNETTE HENSLEY, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties have filed cross-motions for summary judgment. For the reasons that follow, plaintiff's motion is granted, defendant's motion is denied, and the matter is remanded for further consideration.
I. BACKGROUND
Plaintiff protectively filed an application for a period of disability and DIB on July 30, 2009, alleging that she had been disabled since March 31, 2009. Administrative Record ("AR") 83, 194-200. Her application was denied initially and upon reconsideration. Id. at 85-88, 90-94. On May 22, 2012, a hearing was held before administrative law judge ("ALJ") Tamia N. Gordon. Id. at 46-82. Plaintiff was represented by counsel at the hearing, at which she and a vocational expert ("VE") testified. Id.
On June 7, 2012, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(i) and 223(d) of the Act. Id. at 27-39. The ALJ made the following specific findings:
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2014.Id. at 29-39.
2. The claimant has not engaged in substantial gainful activity since March 31, 2009, the alleged onset date (20 CFR 404.1571 et seq.).
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3. The claimant has the following severe impairments: affective disorder; and anxiety-related disorder (20 CFR 404.1520(c)).
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4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).
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5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels except work is limited to simple, routine, repetitive tasks and only occasional interaction with the public.
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6. The claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on July 31, 1960 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of jobs skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
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11. The claimant has not been under a disability, as defined in the Social Security Act, from March 31, 2009, through the date of this decision (20 CFR 404.1520(g)).
Plaintiff requested that the Appeals Council review the ALJ's decision, id. at 22, and on October 15, 2013, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner. Id. at 8-10.
II. LEGAL STANDARDS
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such 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. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
III. ANALYSIS
Plaintiff argues that the ALJ erred by improperly discrediting the opinions of her examining physicians. ECF No. 14 at 11-15.
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Lester, 81 F.3d at 834. Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining medical professional may be rejected for "specific and legitimate" reasons that are supported by substantial evidence. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (e.g., supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). However, "[w]hen an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not 'substantial evidence.'" Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
Plaintiff underwent a psychological evaluation, which was conducted by Dr. Mary McDonald, Ph.D. AR 475-480. Dr. McDonald diagnosed plaintiff with major depressive disorder, recurrent, chronic, without psychotic features; generalized anxiety disorder; adult antisocial behavior; amphetamine abuse in remission; cannabis abuse in remission; posttraumatic stress disorder; and borderline intellectual functioning. Id. at 479. Dr. McDonald opined that plaintiff has mild to marked impairments in her ability to understand and remember detailed instructions, but that her ability to understand, remember, and carry out very short and simple instructions is unimpaired. Id. at 479-480. She opined that plaintiff's ability to maintain attention and concentration for extended periods of time is variable; her ability to accept instructions from supervisors, respond appropriately to criticism, and withstand the stress of a routine day and adapt to various changes in the work setting is poor, and she is markedly impaired in exercising social judgment and awareness and in interacting with coworkers and the general public. Id. at 480. Dr. McDonald concluded that the likelihood of plaintiff emotionally deteriorating in a work environment was high. Id.
On May 15, 2012, at the request of plaintiff's attorney, examining physician Dr. Robert L. Morgan, Ph.D. completed a comprehensive psychological evaluation of plaintiff. Id. at 576-585. Dr. Morgan diagnosed plaintiff with major depressive disorder, recurrent, severe; and panic disorder with agoraphobia. Id. at 583. Dr. Morgan opined that plaintiff has marked impairments in maintaining activities of daily living and social functioning; interacting with the public, coworkers and supervisors; tolerating the stress of a routine workday and dealing with various changes in the work setting or to complete a normal workday or workweek; and concentrating in relation to complex tasks. Id. at 584. Dr. Morgan also opined that plaintiff had fair ability to concentrate relative to simple tasks. Id.
Examining physician Dr. Benjamin Aleshire, Ph.D. completed a comprehensive psychiatric evaluation on March 14, 2010. Id. at 296. Dr. Aleshire diagnosed the plaintiff with posttraumatic stress disorder, chronic; major depressive disorder, recurrent; moderate alcohol dependence; amphetamine dependence, in full sustained remission per the claimant report; two back injuries per the claimant's report, high blood pressure; and a GAF of 48. Id. at 299-300. It was Dr. Aleshire's opinion that the plaintiff could adequately perform one to two step simple and repetitive tasks; perform work activities on a consistent basis without special or additional instruction; and is not able to adequately perform complex tasks. Id. at 300. He further opined that plaintiff is moderately impaired in ability to accept instructions from supervisors and interact with coworkers and the public; is mildly impaired in ability to maintain regular attendance in the workplace; is significantly impaired in ability to complete normal workday or workweek; and is not able to deal with the usual stress encountered in a competitive workplace. Id. at 300-301.
The record also contains a Mental Residual Functional Capacity Assessment completed by Dr. G. Ikawa, M.D., a non-examining physician. It was Dr. Ikawa's opinion that plaintiff is not significantly limited in understanding, remembering and carrying out very short and simple instructions; maintaining attention and concentration for extended periods; performing activities within a schedule, maintaining regular attendance and being punctual; sustaining an ordinary routine without special supervision; working in coordination with or proximity to others without distraction; and making simple work-related decisions. Id. at 323-324. Dr. Ikawa also found plaintiff is not significantly limited in completing a normal workday and workweek; accepting instructions and responding to criticism; getting along with coworkers; maintaining socially appropriate behavior and standards of neatness and cleanliness; responding to changes in the work setting; but was moderately impaired in understanding, remembering, and carrying out detailed instructions and interacting with the general public. Id. Dr. Ikawa concluded that plaintiff retained the RFC to sustain simple repetitive tasks, so long as her contact with the public was limited. Id. at 325. State agency reviewing physician Dr. E. Murillo, M.D. also evaluated plaintiff's records on October 5, 2010 and affirmed the findings of Dr. Ikawa. Id. at 338.
In assessing plaintiff's RFC the ALJ purportedly gave "some weight" to the opinions of Drs. Aleshire, McDonald, and Morgan, while giving "great weight" to the opinions of Drs. Ikawa and Murrilo. Id. at 37. The ALJ explicitly adopted the opinion from Drs. Aleshire, McDonald, and Morgan that plaintiff could perform simple and repetitive tasks, but he found that their other assessed limitations were unduly restrictive when compared to the evidence of record. Id. As Drs. Aleshire, McDondald, and Morgan's opinions were contradicted by the opinions provided by Drs. Ikawa and Murrilo, the ALJ was required to provide specific and legitimate reasons for resolving the conflict and adopting the nonexamining opinions over the opinions from the examining sources.
Plaintiff contends that the ALJ failed to provide legally sufficient reasons for partially rejecting the opinions of Drs. Aleshire, McDonald, and Morgan that plaintiff had significant limitations in accepting instructions from supervisors, interacting with coworkers and the general public, and dealing with the usual stress of competitive work. ECF No. 14 at 11-15. Plaintiff also contends the ALJ failed to provide a sufficient justification for rejecting Dr. Aleshire and Morgan's opinion that she was significantly impaired in her ability to complete a normal workday or workweek without interruption from psychological symptoms. Id.
The ALJ found that, with the exception of plaintiff's limitation to simple and repetitive tasks, the limitations assessed by these physicians were too restrictive when compared to other evidence in the record. The ALJ first discussed plaintiff's daily activities, noting that plaintiff "is able to take care of her personal hygiene, prepare simple meals, prepare housework, drive a car, shop for groceries, and pay bills. She was able to perform calculations and count change during the examination on March 14, 2010." AR 37. The ALJ, however, did not explain how the ability to perform any of these activities undermines these physicians' opinions. It is unclear how the ability to perform any of these menial tasks has any relevance to these physicians' opinions that plaintiff is significantly impaired her ability to accept instructions from supervisors, interact with coworkers and the general public, and to deal with the stress of a competitive work week. With the exception of grocery shopping, none of the activities identified by the ALJ involve interacting with others. Although grocery shopping may involve some interaction with others, i.e., interacting with the cashier when purchasing groceries, such interactions are not tantamount to accepting instructions from supervisors and interacting with coworkers. Furthermore, the ability to perform the activities identified by the ALJ does not demonstrate an ability to deal with stress. Accordingly, the ALJ's erred in relying on plaintiff's daily activities as a basis for rejecting the examining physician's opinions.
With the advent of self-checkout, it is now possible to purchase groceries at a store without interacting with others. --------
The ALJ also noted that the evidence in the record indicates that the claimant has no difficulty in completing tasks when she is compliant with her treatment recommendations. Id. at 37. But the ALJ did not cite to any specific evidence in support of this conclusion. Assuming that such a finding is supported by substantial evidence—a finding plaintiff disputes—it nevertheless fails to provide a basis for rejecting these physicians' opinions. The ability to concentrate and complete tasks has no relation to plaintiff's ability to accept instructions from supervisors, interact with coworkers and the general public, and deal with the stress of competitive work. Accordingly, this reason also fails to constitute a legitimate basis for rejecting these physicians' opinions.
The ALJ also found that "Dr. McDonald's opinion that the claimant has marked impairments in the ability to interact with the general public may not be valid since the claimant admitted that she gave 'wise ass' answers during this examination." AR 37. Plaintiff did indeed report that she gave "wise ass" answers in response to Dr. McDonald's testing. Id. at 565. Where a physician's opinion is based largely on plaintiff's self-reports that have been discounted, an ALJ may reject the physician's opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). (citing Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999)). Given plaintiff's lack of effort and honesty during her examination with Dr. McDonald, the ALJ was permitted to give reduced weight to this physicians' opinion. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (the ALJ is entitled to make logical inferences stemming from the evidence).
However, this reason does not provide a basis for rejecting the opinions of Drs. Aleshire and Morgan. Dr. Aleshire specifically found that plaintiff was moderately impaired in her ability to accept instructions from supervisors and interact with coworkers and the public (id. at 300), while Dr. Morgan found that she had marked limitations in her ability to interact with the public, coworkers, and supervisors. Id. at 584. Any lack of effort during Dr. McDonald's examination does not account for the ALJ discounting the opinions from the other examining physician, and he failed to provide any other basis for why these opinions were excluded from plaintiff's RFC.
The ALJ also failed to provide an explanation for why he rejected Drs. Aleshire and Morgan's opinion that plaintiff is significantly impaired in her ability to complete a normal workday or workweek without interruption from psychological symptoms. Plaintiff's daily activities and purported ability to complete tasks while on medication do not directly contradict this opinion. Accordingly, the reasons stated by the ALJ do not justify the rejection of these opinions.
The court notes that Dr. McDonald specifically found that plaintiff was only mildly impaired in her ability to complete a normal workday or workweek without interruption. Id. at 480. As Dr. McDonald's opinion is entitled to the same weight as Drs. Aleshire and Morgan's opinion, the ALJ was free to resolve the conflict between these opinions. See Sheffer v. Barnhart, 45 F. App'x. 644, 645 (9th Cir. 2002) ("Because the ALJ was entitled to resolve this evidentiary conflict between conflicting opinions of equal weight, he did not need to provide specific and legitimate reasons for rejecting [two treating physicians' opinions]."); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002) ("Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld."); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (requiring specific and legitimate reasons only where the conflicting opinion is not based on independent clinical findings); Watson v. Barnhart, 2003 WL 21838474, *4 (N.D. Cal. August 1, 2003) (finding that ALJ decision was consistent with the opinion of one of the plaintiff's treating physicians and, therefore, the ALJ "did not need to articulate specific and legitimate reasons for disregarding [another treating physician's] opinion.").
However, there is no indication that the ALJ adopted the opinion of Dr. McDonald over the other two examining physicians. Rather, it appears that the ALJ only intended to adopt the examining physicians' opinion that plaintiff could perform simple and repetitive tasks, reject their opinions in all other regards, and fully adopt the opinions from non-examining physicians Ikawa and Murrilo. See AR 37. As the ALJ did not explain why he rejected Drs. Aleshire and Morgan's opinion that plaintiff is significantly impaired in her ability to complete a normal workday or workweek without interruption from psychological symptoms, this issue must also be addressed upon remand. See Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir.1984) (holding that the ALJ must explain why "significant probative evidence has been rejected").
Accordingly, the ALJ failed to give sufficient reasons for rejecting opinions from plaintiff's examining physicians.
IV. CONCLUSION
The ALJ failed apply the proper legal standard and her decision is not supported by substantial evidence. Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for summary judgment is granted;
2. The Commissioner's cross-motion for summary judgment is denied;
3. The matter is remanded for further consideration consistent with this order; and
4. The Clerk is directed to enter judgment in plaintiff's favor. DATED: September 22, 2015.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.