Opinion
No. C10-4994 BZ
10-04-2011
ROBERT MARTIN, Plaintiff(s), v. MICHAEL J. ASTRUE, Defendant(s).
ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT
Pursuant to 42 U.S.C. § 405(g), Robert Martin appeals from a final decision by the Commissioner of Social Security which affirmed the Administrative Law Judge's (ALJ) order denying his claim for Social Security disability benefits. See Administrative Record (AR) 16-27. Plaintiff's motion for summary judgment asks me to reverse the ALJ's decision and either award him benefits or remand this matter for further proceedings before the ALJ. Docket No. 15. Defendant has filed a cross motion for summary judgment arguing that the ALJ's decision should be upheld. Docket No. 16. For the reasons explained below, plaintiff's motion is GRANTED IN PART and this matter is REMANDED to the ALJ for further administrative action consistent with this Order. Defendant's cross motion for summary judgment is DENIED.
The parties have consented to the Court's jurisdiction for all proceedings, including entry of final judgment under 28 U.S.C. § 63 6(c).
Plaintiff's claim for benefits asserted that he had been disabled since November 17, 2006. Following the standard five-step process for evaluating a Social Security claim, the ALJ first found that plaintiff had not performed substantial gainful activity since the alleged onset date. AR 18. At step 2, the ALJ determined that plaintiff suffered from obesity and degenerative disc disease of the lumbar and cervical spines. AR 18. Plaintiff has a history of back problems for most of his adult life, including several surgical procedures and epidural injections. At step 3, the ALJ found that these impairments did not meet or equal any impairment set out in the Listing of Impairments. AR 19-20. At step 4, the ALJ analyzed plaintiff's medical history, including the residual functional capacity (RFC) evaluations conducted by various doctors, and adopted the opinion of Dr. Michael Gurvey, the impartial medical expert who testified by telephone at the administrative hearing. AR 20-26. After reviewing plaintiff's medical file, Dr. Gurvey concluded that plaintiff could perform light exertional level work, with certain exceptions, because he could sit, stand, and walk six hours out of an eight hour work day if he took breaks. AR 25. Based on this RFC evaluation, and the testimony of the vocational expert, the ALJ determined that plaintiff was not disabled since he was capable of performing his past relevant work as an inventory clerk, land surveyor, and communication technician. AR 26.
See 20 C.F.R. § 404.1520.
Plaintiff also claimed that he suffered from other ailments, such as carpal tunnel syndrome and neck pain. AR 20. The ALJ, however, did not consider these ailments past step 2 because they did not meet the durational requirements (12 months) for disabilities under the Social Security Act. AR 16, 20. Moreover, these ailments did not arise until after the date that plaintiff was last insured which was December 31, 2007. AR 16, 20. Plaintiff has not challenged this decision. Nor has he challenged the ALJ's finding that his obesity did not prevent him from doing light work. AR 20. Accordingly, this Order only addresses plaintiff's argument that the ALJ erred when he concluded that plaintiff was not disabled by his degenerative disc disease.
The Commissioner has acknowledged that certain impairments are so severe that they preclude substantial gainful activity. These impairments are set out in the Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1. A claimant whose impairment or combination of impairments meet or equal the "Listings" is presumptively disabled.
The Commissioner's decision to deny benefits will be disturbed only if it is not supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Plaintiff first argues that the ALJ committed legal error by failing to provide clear and convincing reasons for discrediting plaintiff's testimony about the severity of his back pain. The Ninth Circuit has explained the applicable law on this issue as follows:
To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of anLingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). There is no dispute that the ALJ properly determined that plaintiff's underlying impairment of degenerative disc disease was supported by objective evidence. The parties also agree that there is no evidence of malingering. Thus, the only issue is whether the ALJ provided clear and convincing reasons for discrediting plaintiff's pain testimony.
underlying impairment "which could reasonably be expected to produce the pain or other symptoms alleged." Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)(en banc)(internal quotation marks omitted). The claimant, however, "need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). "Thus, the ALJ may not reject subjective symptom testimony ... simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Id.; see also Reddick, 157 F.3d at 722 ("[T]he Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.").
Second, if the claimant meets this first test, and there is no evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1281; see also Robbins, 466 F.3d at 883 ("[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.").
I find that the ALJ failed to do this. In his decision, the ALJ concluded that plaintiff's "medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are generally credible, but only to the extent consistent with the decision." AR 25. The ALJ never explained why he discounted the parts of plaintiff's testimony which were not consistent with the ALJ's decision, and, if this testimony was credited, how plaintiff would be able to work on a daily basis.
Plaintiff testified that his back problems caused him severe pain and prevented him from working. See AR 62-65. He explained that even while taking pain medication, such as Vicodin and Norco, doing light work would "knock [his] back out" and "lay [him] up" from a few days up to a few weeks. AR 63-65 (when the ALJ asked plaintiff how many days of the week he would be out of commission, plaintiff replied that it was three or four days per week); see also AR 71-72; 178-79 (in plaintiff's application for disability benefits, he wrote that after walking for about 30 minutes, he would experience sharp, burning pain in his back). As explained in Lingenfelter, it was legal error for the ALJ not to explain specifically why he did not believe plaintiff's subjective pain testimony. 504 F.3d at 1035-36; see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2007)("In making a credibility determination, the ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints") (citations and quotations omitted)).
Defendant points out that the ALJ's decision included a review of his medical history in which the ALJ alluded to several reasons that may help to explain why he did not believe the entirety of plaintiff's testimony. For instance, the ALJ explained that there was "scant objective evidence to support a conclusion of disability." See AR 25. In reviewing plaintiff's medical history, the ALJ also noted that there were instances where plaintiff reported to his doctors that treatment had reduced his pain. According to defendant, these statements in the ALJ's decision are specific enough to constitute clear and convincing reasons for why the ALJ discounted plaintiff's subjective pain testimony. I disagree and find that the ALJ's decision does not meet the Ninth Circuit's requirement to "specifically identify what testimony is credible and what testimony undermines" plaintiff's complaints. Greger, 464 F.3d at 635; see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)("If the ALJ wished to reject [the claimant's] pain testimony, he was required to point to specific facts in the record which demonstrate that [the claimant] is in less pain than she claims"). Furthermore, a finding that there is no objective evidence to substantiate plaintiff's claim "cannot form the sole basis for discounting" subjective symptom testimony. Renteria v. Astrue, 2010 WL 5175051 at *3 (C.D. Cal. 2010)(quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)); see also Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991).
Plaintiff also challenges the ALJ's decision to give more weight to the opinion of the nonexamining medical expert, Dr. Gurvey, than to the examining doctor, Dr. Todd Nguyen. "In order to discount the opinion of an examining physician in favor of the opinion of a nonexamining medical advisor, the ALJ must set forth specific, legitimate reasons that are supported by substantial evidence in the record." Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996). In his decision, the ALJ explained that out of all the medical opinions about plaintiff's condition, he gave "the greatest weight" to the opinion of Dr. Gurvey because his assessment was "comprehensive, and well explained, supported by objective findings and he was the only medical source of record able to review and consider the entire evidentiary file and to hear the testimony of the claimant, which I found was generally credible." AR 26. Defendant argues that this short explanation for adopting Dr. Gurvey's opinion constitutes specific and legitimate reasons which are supported by substantial evidence in the record. I disagree. The ALJ is essentially giving more weight to Dr. Gurvey because he was the last doctor to evaluate plaintiff's claims and therefore had the benefit of having plaintiff's "entire evidentiary file," including hearing plaintiff's testimony, to perform a "comprehensive" review. Dr. Nguyen, and the other state doctors that evaluated plaintiff, should not be discounted for the sole reason that they reviewed plaintiff's file during an earlier time period. This is particularly true since Dr. Nguyen personally examined plaintiff while Dr. Gurvey only reviewed plaintiff's medical file. Moreover, I do not find that the ALJ's explanation that Dr. Gurvey's opinion is supported by objective findings meets the specificity standard required by the Ninth Circuit. See Nguyen, 100 F.3d at 1466. (9th Cir. 1996). Accordingly, on remand, the ALJ shall provide specific and legitimate reasons for adopting Dr. Gurvey's opinion, including the specific objective findings that support Dr. Gurvey's opinion and are inconsistent with Dr. Nguyen's opinion.
Yet, since he testified by telephone, Dr. Gurvey never observed the plaintiff.
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For the foregoing reasons, IT IS HEREBY ORDERED that plaintiff's motion for summary judgment is GRANTED IN PART and defendant's cross motion for summary judgment is DENIED. This matter is REMANDED for the ALJ to provide clear and convincing reasons for discrediting plaintiff's testimony about his subjective pain. The ALJ must identify such reasons or accept the plaintiff's testimony. See Dodrill, 12 F.3d at 418. The ALJ shall also either adopt Dr. Nguyen's opinion or provide specific and legitimate reasons for giving more weight to Dr. Gurvey's opinion. IT IS FURTHER ORDERED that defendant shall submit a proposed judgment consistent with this Order by October 11, 2011.
Bernard Zimmerman
United States Magistrate Judge