Opinion
Civil No. 00-126-HA
January 4, 2001
Tim Wilborn, Portland, OR 97204, Attorney for Plaintiff
Lucille G. Meis, Special Assistant United States Attorney Seattle, WA 98121-1833, Attorney for Defendant
OPINION AND ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Joyce Hogan appeals the final decision of the Commissioner of the Social Security Administration denying plaintiff's claim for Social Security Widow's insurance benefits and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. § 416 and 423. For the reasons stated below, this court concludes that the decision of the Commissioner must be reversed.
I. Procedural History of the Case
Plaintiff filed an application for benefits on March 12, 1996. After initial denial of plaintiff's claim, a hearing was held before an administrative law judge ("ALJ"), who found against plaintiff's application, and the Appeals Council declined to review plaintiff's administrative appeal.
II. The ALJ's Findings
At the time of the hearing plaintiff was 54-years old with a high-school education. Plaintiff last worked in 1995. Her husband, a fully insured wage earner, died in 1989, and plaintiff has not remarried. Under social-security regulations, in order to receive widow's benefits, she must establish that she was operating under a disability before March 31, 1996. 20 C.F.R. § 404.335(c)(1)
Plaintiff alleges disability based on a combination of impairments, including sleep apnea, asthma, back pain, depression, and swelling in her legs. She also has drug and alcohol problems, which are now in remission. The ALJ found that her impairments are "severe," but they do not meet or equal the criteria listed in 20 C.F.R. § 404, Subpart P, Appendix 1. Because of her apnea, plaintiff has considerable difficulty sleeping. She wakes up several times each night due to shortness of breath and is never fully rested. She takes at least one nap during the day. She wears a breathing mask at night, but often wakes up and takes it off due to feelings of claustrophobia. (Tr. 402.) She had surgery on her throat at the Oregon Health Sciences University, but the surgery was intended only to lessen her loud snoring, which disturbs family members. The surgery was not intended to, and has not, improved her sleep apnea. Her treating physician, Dr. Kullberg found that "[d]ue to these symptoms she is now unable to work because of difficulty with mental alertness and concentration." (Tr. 143.)
Plaintiff also suffers from depression related to her sleep apnea and takes anti-depression medication as a result. Plaintiff also suffers from chronic lower back pain and swelling of her legs, which interferes with standing and walking. Because of her history of substance abuse, plaintiff is limited in the types of pain medication she can take.
Both Dr. Kullberg and Dr. Kirk have opined that plaintiff is disabled and cannot return to work. The ALJ rejected their opinions finding that they were too conclusory and not supported by the evidence. The ALJ also rejected plaintiff's testimony of the extent of her symptoms, finding she was not credible.
Plaintiff appealed the denial to the Social Security Appeals Council. On appeal, plaintiff submitted an additional opinion of Dr. Richards, which also found that she was disabled. Dr. Richards performed an MRI and found that plaintiff suffered from degenerative disc disease and had other spinal problems requiring surgery. Despite the additional evidence, the Appeals Council declined to grant plaintiff's request to review the ALJ's decision.
III. Standard of Review
The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The burden of proof to establish a disability rests upon the claimant. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 117 S.Ct. 209 (1996). In order to meet this burden, a claimant must demonstrate an inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). An individual will be determined to be disabled only if there are physical or mental impairments of such severity that the individual is not only unable to do previous work but cannot, considering his or her age, education, and work experience, engage in any other kind of substantial gainful work existing in the national economy. 42 U.S.C. § 423(d)(2)(A). The 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)(1)(A).
Social Security regulations provide a five-step sequential analysis for determining whether a claimant is disabled. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § 404.1520. First, the claimant must not currently be performing "substantial gainful activity." Second, the claimant, based on medical evidence, must have a "severe" impairment or combination of impairments. A severe impairment is one "which significantly limits the claimant's physical or mental ability to do basic work activities." 20 C.F.R. § 404.1520(c). Third, a "severe" impairment must be equivalent in nature to an impairment listed in the regulations as one which the Commissioner acknowledges is so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1529(d). Fourth, if the claimant does not have a listed impairment, the impairment must in combination with other factors prevent the claimant from doing past work. Fifth and finally, if the claimant has established that the impairment prevents performance of past work, the burden shifts to the Commissioner to demonstrate that the claimant can perform other types of work that exist in the national economy, given the claimant's residual functional capacity, age, education, and work experience. Distasio v. Shalala, 47 F.3d 348, 348, (9th Cir. 1995).
In addition, in order to be eligible for widow's insurance benefits, a claimant must prove that she is the widow of an individual who was fully insured when he died and that her relationship lasted at least nine months immediately before the insured died. 20 C.F.R. § 404.335(a)(1). A claimant must also prove that she is at least fifty-years old and has a disability that started no later than seven years after the insured died or seven years after she was last entitled to survivor's benefits, whichever is later. 20 C.F.R. § 404.335(c)(1).
When this court reviews a decision of the Commissioner, it will be upheld if it is supported by substantial evidence and the ALJ applied the correct legal standards. "Substantial evidence is `more than a mere scintilla.' It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. It does not have to rise to a preponderance of the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975).
IV. Discussion
The court finds that the Commissioner's decision must be reversed on two grounds. First, the ALJ failed to identify sufficient grounds for rejecting the opinions of plaintiff's treating physicians. "[W]here the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for `clear and convincing' reasons." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). The ALJ rejected Dr. Kullberg's opinion that plaintiff's sleep apnea was disabling because the medical record indicates that plaintiff's symptoms are alleviated by wearing a mask to help her breathing. The records also indicates, however, that due to claustrophobia, plaintiff has considerable difficulty wearing the mask through the entire night. Thus, this reason for rejecting Dr. Kullberg's opinion is not supported by clear and convincing evidence.
The ALJ also rejected Dr. Kullberg, as well as the opinion of Dr. Kirk, another treating physician, because the ALJ found their opinions were too conclusory. However, the ALJ based his findings on the fifth step of the sequential analysis, namely, that plaintiff's impairment did not meet or exceed the regulatory criteria for disability. At this step, it is the Commissioner's burden to prove plaintiff is not disabled, not the plaintiff's burden to prove that she is not disabled. As a result, at this step, the ALJ cannot merely disregard medical opinions because he believes they do not provide a sufficient description of the reasons for the opinion. As the Ninth Circuit stated in a similar case, "If the ALJ thought he needed to know the basis for [the doctors'] opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (citing 42 U.S.C. § 405(d) and 20 C.F.R. § 404.950(d) and 404.1527(c)(3)). In this case, if the ALJ had concerns about the basis for Dr. Kullberg and Kirk's opinion because he found them to be too conclusory, he was required to obtain more information instead of simply rejecting their opinions. As a result, the ALJ's rejection of the opinions of plaintiff's treating physicians was not based on clear and convincing evidence. Second, the Appeals Council erred in refusing to consider the additional opinion of Dr. Richards. Although Dr. Richard's opinion was rendered after the hearing, it addresses plaintiff's disability before March of 1996. (Plaintiff's Exhibit B.) Dr. Richard performed an MRI and found that based on plaintiff's back injuries, she is unable to perform either sedentary or light work for eight hours a day. (Id.) In addition, even if plaintiff had the freedom to alternate between sitting and standing, he found she still would not be able to work a full day. (Id.) Dr. Richards further found that plaintiff had marked limitations in her ability to maintain attention and concentration for extended periods and would miss five or more days per month if she tried to work. (Id.) The Appeals council declined to consider Dr. Richard's additional opinion, apparently because it was issued after the hearing. However, an opinion cannot be rejected merely because it was issued retrospectively:
[I]t is clear that reports containing observations made after the period for disability are relevant to assess the claimant's disability. It is obvious that medical reports are inevitably rendered retrospectively and should not be disregarded solely on that basis.
Smith v. Bowen, 8849 F.2d 1222, 1225 (9th Cir. 1988). As a result, Dr. Richard's opinion should have been considered by the Appeals Council.
In a similar case, Ramirez v. Shalala, 8 F.3d 1449 (9th Cir. 1993), the Ninth Circuit dealt with the failure of the Appeals Council to consider additional evidence. The court noted that the Appeals Council could have remanded the matter for further proceedings, but "chose not to do so. Instead, it treated the record as complete." Id. at 1455. As a result, the Ninth Circuit also treated the record as complete in determining that a remand for further proceedings was inappropriate.
In accordance with Ramirez, this court will treat the record as complete in plaintiff's case. Here, Dr. Richards has concluded that plaintiff is disabled, and no reason appears in the record to disregard his opinion. In addition, Dr. Kullberg and Dr. Kirk also found that plaintiff is disabled, and the ALJ's reasons for rejecting those opinions were insufficient. Therefore, the Commissioner has failed to sustain its burden at the fifth step of the sequential analysis to prove that plaintiff is not disabled.
V. Conclusion.
The record as it now stands demonstrates that plaintiff is unable to engage in any substantial gainful activity by reason of his impairments and that plaintiff is disabled within the meaning of the Act. The record is fully developed, and further administrative proceedings would serve no useful purpose. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). The decision of the Commissioner is reversed, and this case is remanded to the Commissioner for the calculation and award of benefits. Any other pending motions are denied as moot.
IT IS SO ORDERED.