Summary
finding ALJ erred in failing to proffer any reason for not explaining the rejection of consultative psychiatrist's opinion that claimant would have mild to moderate limitations with respect to handling normal stresses at work
Summary of this case from Aguilar v. BerryhillOpinion
NO. EDCV 12-00606-MAN
05-02-2013
DWAYNE L. JACKSON, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION
AND ORDER
Plaintiff filed a Complaint on May 3, 2012, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On June 15, 2012, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on January 31, 2013, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for further administrative proceedings, including, but not limited to, the taking of additional vocational testimony; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.
SUMMARY OF ADMINISTRATIVE PROCEEDINGS
Plaintiff filed an application for a period of disability, DIB, and SSI on August 20, 2007. (Administrative Record ("A.R.") 20.) Plaintiff, who was born on April 22, 1960, claims to have been disabled since February 1, 2001 (A.R. 22), due to chronic pain in his back and legs, right foot pain, left shoulder pain, nervousness, and depression (A.R. 35, 67, 73). Plaintiff has past relevant work experience as a school bus driver. (A.R. 25.)
On the alleged onset date, plaintiff was 40 years old, which is defined as a younger individual. (A.R. 25; citing 20 C.F.R. §§ 404.1563, 416.963.)
After the Commissioner denied plaintiff's claims initially and upon reconsideration (A.R. 67-71, 73-78), plaintiff requested a hearing (A.R. 79). On April 29, 2010, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Mason D. Harrell, Jr. (the "ALJ"). (A.R. 32-62.) Vocational expert David A. Rinehart also testified. (Id.) On May 20, 2010, the ALJ denied plaintiff's claim (A.R. 20-27), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-4). That decision is now at issue in this action.
SUMMARY OF ADMINISTRATIVE DECISION
The ALJ found that plaintiff met the insured status requirements of the Social Security Act through March 31, 2003, and has not engaged in substantial gainful activity since February 1, 2001, the alleged onset date of his disability. (A.R. 22.) The ALJ determined that plaintiff has the severe impairments of status post gunshot wound to the left shoulder and depression. (Id. ) The ALJ concluded, however, that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Id.)
The ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform less than the full range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c) with the following limitations:
[plaintiff] is limited to simple repetitive tasks. He can lift up to 20 pounds with his left arm but he cannot use his left arm to do work above shoulder level. He cannot perform fast paced work or work that requires hypervigilance. He cannot work with the public and his interactions with coworkers and supervisors should be non-intense. He would miss work 2 or less times per month.(A.R. 23.)
The ALJ found that plaintiff is unable to perform his past relevant work. (A.R. 25.) However, based upon his RFC assessment for plaintiff and after having considered plaintiff's age, education, work experience, and the testimony of the vocational expert, the ALJ found "there are jobs that exist in significant numbers in the national economy that [plaintiff] can perform," including "electronics worker" and "sewing machine operator." (A.R. 26.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, from February 1, 2001, through the date of the ALJ's decision. (A.R. 27.)
The ALJ found that plaintiff has at least a high school education and is able to communicate in English. (A.R. 26.)
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).
Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.
DISCUSSION
Plaintiff claims the ALJ erred by not considering properly: (1) plaintiff's subjective symptom testimony; and (2) the RFC assessment for plaintiff. (Joint Stipulation ("Joint Stip.") at 4-6, 13-17, 22-23.)
I. The ALJ Failed To Provide Clear And Convincing Reasons For Finding Plaintiff's Subjective Symptom Testimony To Be Not Credible.
Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the symptoms must be considered. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and her conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c).
At the April 29, 2010 administrative hearing, plaintiff testified that he has: major depression; chronic back pain; aching legs; bad circulation in his knees; and arthritis in his right ankle. (A.R. 35, 37-38.) Plaintiff also testified that he was shot in his left shoulder and "can't function with it like [he] normally could." (A.R. 44.) Plaintiff indicated that he presently is taking Darvocet for his pain and Lexapro for his depression. (A.R. 46, 50.) With respect to his physical limitations, plaintiff testified that he has difficultly sitting for long periods of time due to his impairments. (A.R. 46.) He also testified that he has problems using his left hand. (A.R. 47.) For example, plaintiff stated that he has difficulty lifting anything that weighs 20 pounds, because "it strains [his] back shoulder section." (Id.)He also stated that he limits himself to "smaller tasks around the house so that [he does not] continue to reinjure or re-aggravate [his] shoulder." (Id.)With respect to his depression, plaintiff testified that: he has no energy; it is hard for him to "get up [and] get going in the morning"; he "pretty much stay[s] to [him]self"; he has problems concentrating; he has "very low confidence" and is "always in fear . . . of someone finding something or [a] reason to fire [him]"; he has no motivation; he does not trust anyone; and he has crying spells. (A.R. 50-54.)
Plaintiff indicated that the Darvocet causes him to sleep for a few hours during the day. (A.R. 50-51.)
The ALJ found that plaintiff has the severe impairments of "status post gunshot wound to the left shoulder, and depression." (A.R. 22.) The ALJ cited no evidence of malingering by plaintiff. Accordingly, the ALJ's reasons for discrediting plaintiff's subjective complaints must be clear and convincing.
In his decision, the ALJ found that "[plaintiff]'s allegations were not fully credible." (A.R. 25.) In finding plaintiff to be not fully credible, the ALJ stated that "[plaintiff]'s statements concerning the intensity, persistence and limiting effects of the alleged symptoms are credible only to the extent that they are consistent with [the ALJ's RFC assessment for plaintiff]." (Id.) Contrary to the Commissioner's contention, no others reasons were cited by the ALJ for finding plaintiff to be not credible. As noted supra, plaintiff testified to various symptoms and limitations. While the ALJ may find these allegations to be not credible, the ALJ's boilerplate statement is not "sufficiently specific" to allow this Court to determine whether the ALJ rejected plaintiff's statements on permissible grounds. Therefore, the ALJ's reasoning does not constitute a clear and convincing reasons, as required, for finding plaintiff to be not credible.
While the Commissioner now offers other reasons to explain the ALJ's credibility determination, the Court cannot entertain these post hoc rationalizations. See, e.g., Connett, 340 F.3d at 874 (finding that "[i]t was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss").
Accordingly, because the ALJ failed to give clear and convincing reasons for finding plaintiff to be not credible, the ALJ committed reversible error.
II. The ALJ Failed To Consider Properly The Opinion Of Plaintiff's Treating Physician, And Therefore, On Remand, The ALJ Needs To Revisit Plaintiff's RFC.
Plaintiff claims that the ALJ erred in failing to include in his assessment of plaintiff's RFC the opinion of consultative psychiatrist Ernest A. Bagner, M.D., that plaintiff would have mild to moderate limitations with respect to handling normal stresses at work -- the inclusion of which could have affected the ALJ's determination that plaintiff can perform other work. (Joint Stip. at 4-6, 13-14.)
It is the responsibility of the ALJ to analyze evidence and resolve conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In the hierarchy of physician opinions considered in assessing a social security claim, "[g]enerally, 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); 20 C.F.R. §§ 404.1527(d), 416.927(d).
An ALJ must provide "clear and convincing reasons" for rejecting the uncontradicted opinion of an examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). To reject the contradicted opinion of an examining physician, an ALJ must provide "specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. The opinion of an examining physician may constitute substantial evidence upon which an ALJ may rely in assessing a claimant's RFC, if it is properly supported by the medical evidence. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)(consultative examiner's opinon on its own constitute substantial evidence, because it rested on independent examination of claimant).
In determining a claimant's RFC, an ALJ will consider all the relevant evidence in the record. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In so doing, the ALJ will consider all claimant's medically determinable impairments, including those that are not "'severe.'" 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). The ALJ also will consider "any statement about what [the claimant] can still do that have been provided by medical sources." 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).
In a March 27, 2008 psychiatric evaluation, Dr. Bagner diagnosed plaintiff with, inter alia, depressive disorder, not otherwise specified, and alcohol abuse. (A.R. 235.) Dr. Bagner opined that plaintiff would have: "no limitations interacting with supervisors, peers or the public"; "zero to mild limitations maintaining concentration and attention and completing simple tasks"; "mild limitations completing complex tasks and completing a normal workweek without interruption"; and "mild to moderate limitations handling normal stresses at work." (A.R. 236; emphasis added.)
In his decision, the ALJ summarized the various medical opinions regarding plaintiff's mental impairment and resulting limitations. For example, the ALJ noted: (1) Dr. Bagner's diagnoses and opinions regarding plaintiff's mental impairment and functional limitations; (2) treatment notes from Stuart Finkelstein, M.D., which indicated that plaintiff was depressed and drinking alcohol; and (3) the opinion of the State Agency psychiatrist who opined that plaintiff's mental impairment was non-severe. (A.R. 24-25.) After summarizing the various opinions, the ALJ stated that notwithstanding the opinion of the State Agency psychiatrist, the ALJ was giving plaintiff "the benefit of the doubt by finding that his depression results in some work-related mental limitations." (A.R. 25.) Notably, however, the ALJ never specifically indicated the physician's opinion upon which he relied in determining the extent of plaintiff's mental limitations.
Although not entirely clear, it appears that the ALJ afforded the greatest weight to the opinion of Dr. Bagner, because many of Dr. Bagner's limitations are reflected in the ALJ's RFC assessment for plaintiff. For example, consistently with Dr. Bagner's opinion, the ALJ's RFC assessment for plaintiff includes a limitation to simple repetitive tasks and no "fast paced" work or work that requires hypervigilance. However, the ALJ's RFC assessment does not incorporate Dr. Bagner's opinion that plaintiff would have mild to moderate limitations in handling normal stresses at work. While the ALJ need not accept the full extent of Dr. Bagner's opinion, the ALJ may not reject it, or significant parts of it, without giving specific and legitimate reasons for so doing. See Salvador v. Sullivan, 917 F.2d 13, 14 (9th Cir. 1990)(mere summarization and implicit rejection of physician's opinion does not suffice). The ALJ's failure to proffer any reason, let alone an appropriate reason, for failing to incorporate properly and/or to explain the dismissal of a portion of Dr. Bagner's opinion constitutes error. Accordingly, on remand, the ALJ needs to properly consider Dr. Bagner's opinion and revisit his RFC assessment for plaintiff.
Although the Commissioner now offers other reasons to explain the ALJ's rejection of the opinion of Dr. Ahmed, the Court cannot entertain these post hoc rationalizations. See, e.g., Orn, 495 F.3d at 630 ("We review only the reasons provided by the ALJ in the disability determination and may not affirm on a ground upon which he did not rely").
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III. Remand Is Required.
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179-81.
Remand is the appropriate remedy to allow the ALJ the opportunity to remedy the above-mentioned deficiencies and errors. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)(ordering remand so that the ALJ could articulate specific and appropriate findings, if any existed, for rejecting the claimant's subjective pain testimony). On remand, the ALJ must revisit plaintiff's testimony and must either credit plaintiff's testimony or give clear and convincing reasons why plaintiff's testimony is not credible. Additionally, the ALJ must either credit Dr. Bagner's opinion or provide appropriate reasons supported by substantial evidence for rejecting it. After doing so, the ALJ may need to reassess plaintiff's RFC, in which case additional testimony from a vocational expert likely will be needed to determine what work, if any, plaintiff can perform.
CONCLUSION
Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for defendant.
LET JUDGMENT BE ENTERED ACCORDINGLY.
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MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE