Opinion
No. C 00-2986 MMC
February 4, 2003
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGEMENT; DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; REMANDING FOR FURTHER PROCEEDINGS
Plaintiff Erik Bo Nelsen ("Nelsen") brings the above-titled action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social. Security ("Commissioner") denying his claim for supplemental security income ("SSI") benefits under the Social Security Act. Before the Court are Nelson's motion forsummary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument: Having considered the papers submitted in support of and in opposition to the motions, Court rules as follows.
Jo Anne Barnhart is substituted for her predecessor. Lany G. Massanari, as Commissioner. See Fed.R.Civ.P. 25(d)(1),
BACKGROUND
Nelson was born on May 26, 1948. On March 12, 1998, when Nelson was 49, he filed an application for SSI benefits, alleging an inability to work since April 21, 1991 as a result of "herniated discs, facet syndrome, sciatica, spondylolisthesis, diabetes, [and] anxiety-depression." (Certified Transcript of Administrative Proceedings ("Tr.") at 85.) On April 30, 1998, the Social Security Administration ("SSA") denied his application, (Tr. at 56-58), and, on July 14, 1998, denied his request for reconsideration. (Tr. at 61-64.) Nelson then requested a hearing before an administrative law judge ("ALJ"). (Tr. at 65.) A hearing before the ALJ was conducted on July 30, 1999, at which time Nelson, Nelson's wife, and a vocational expert testified. (Tr. at 8.)
On October 5, 1999, the ALJ issued a decision denying Nelson's application for benefits. (Tr. at 8-16.) The ALJ found that Nelson suffers from "chronic myofascial pain syndrome and depression of a moderate degree that are `severe,'" (Tr. at 15); Nelson cannot perform his past relevant work as "a forklift operator, wine cellar worker, bottling line worker and cut off/saw operator," (Tr. at 9, 16); Nelson retains the residual functional capacity for "light work that permits a sit/stand option and involves simple, repetitive tasks," (Tr. at 11); and "[t]here are jobs that exist in significant numbers in the national economy that [Nelson] can perform," specifically "self-service store clerk, general assembler and machine operator." (Tr. at 15.) Accordingly, the ALJ cnncluded Nelson is not disabled. (Tr. at 15-16.)
On June 15, 2000, the Appeals Council denied Nelson's request for review of the ALJ's decision. (Tr. at 2.) Thereafter, Nelson commenced the above-titled action for judicial review.
STANDARD OF REVIEW
The Commissioner's decision to deny disability benefits will be affirmed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). "Substantial evidence means more than a mere scintilla, but less than a preponderance it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ's decision. Id. If the evidence is susceptible to more than one rational interpretation, the court will uphold the decision of the ALJ. Id. at 1039-40.
DISCUSSION
The SSA uses a five-step process to determine whether a claimant is disabled. With respect to the first four steps, the parties are in agreement that (1) Nelson is not engaged in substantial gainful activity; (2) he has severe impairments; (3) his impairments are not conclusively disabling; and (4) he cannot perform his past relevant work. With respect to the fifth step, the ALJ, as noted, found that Nelson retains the residual functional capacity to perform light work with a sit/stand option and that such work exists in the national economy. Nelson argues that the ALJ's finding at the fifth step is not supported by substantial evidence.
"The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 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." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
A. Lifting
"Light work' entails the ability to lift and carry up to ten pounds frequently and twenty pounds occasionally." Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990). Here, the ALJ found that Nelson retains the functional capacity to lift 20 pounds occasionally. In making that finding, the ALJ did not credit the opinion of an examining physician, Alan Kimelman, M.D. ("Dr. Kimelman"), who opined that Nelson could lift 20 pounds only rarely. Nelson argues that the ALJ improperly rejected Dr. Kimelman's opinion.
In a report issued following a consultative disability evaluation held May 11, 1999, Dr. Kimelman reported that Nelson's back impairments "include reduced range of motion, paraspinal myofascial tension, guarding with movement, normal deep tendon reflexes and normal manual muscle testing." (See Tr. at 259, 266.) Dr. Kimelman also offered the opinion that, in light of "background records, subjective complaints and objective findings of disability," Nelson has the capacity to lift 10 pounds frequently, 15 pounds occasionally and 20 pounds rarely. (See Tr. at 267.)
In his report, Dr. Kimelman defines "occasionally" as "activity is allowable for up to 1/3 of the day," and "rarely" as "activity is allowable for up to twice daily." (See Tr. at 266.) There is no indication in the record that the ALJ defined the terms differently.
In considering Dr. Kimelman's opinion, the ALJ stated: "I have accepted Dr. Kimelman's estimate of claimant's lifting capacity of ten pounds frequently but, in the absence of significantly abnormal bony pathology or spinal lesion with neurological compromise, I find that there is a retained capacity to occasionally lift up to twenty pounds." (See Tr. at 11.) The ALJ further stated he had "considered the opinion of the state agency consulting examiner who also found a capacity for light work." (See id. at 12.) In so stating, the ALJ referenced "Exhibit 12F," (see id.), a document titled "Physical Residual Functional Capacity Assessment," dated July 2, 1998, in which a nonexamining state agency consultant opined that Nelson retains the functional capacity to lift 20 pounds occasionally. (See Tr. at 250-51.) Lastly, the ALJ cited to Nelson's description of daily activities as supporting a finding that Nelson's, "myofacial pain syndrome [is] not seriously symptomatic." (See Tr. at 14.)
The name of the consultant is illegible. (See Tr. at 257.)
Where an examining physician's opinion is contradicted by a non examining consulting physician, the ALJ may not reject the examining physician's opinion unless the ALJ "set[s] forth specific, legitimate reasons that are supported by substantial evidence in the record." See Nguyen v. Chater, 100 F.3d 1462, 1466 (9th Cir. 1996) (holding ALJ erred by rejecting opinion of examining physician where ALJ did not set forth specific, legitimate reasons for such rejection); cf. Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (affirming ALJ's rejection of examining psychologist's opinion where ALJ explained psychologist's opinion was "in irreconcilable conflict with his written report and test results"),cert. denied, 517 U.S. 1122 (1996). In so doing, the ALJ must "provide detailed, reasoned and legitimate rationales" and must relate any "objective factors" he identifies to "the specific medical opinions and findings he rejects." See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (holding ALJ erred by stating that certain test results and observations of physician "all preponderate toward a finding" claimant could perform light work, but failing to "relate any of these objective factors to any of the specified medical opinions and findings he rejects").
Here, the ALJ, by referring to the absence of certain findings in Dr. Kimelman's report, appears to have concluded that Dr. Kimelman's opinion conflicted with an objective factor, specifically, a lack of neurological impairment. (See Tr. at 11.) The ALJ, however, fails to set forth the basis for his conclusion that a lack of neurological involvement is inconsistent with Dr. Kimelman's finding that Nelson can lift 20 pounds. only rarely. See Day v. Weinberger, 522 F.2d 1154, 1156 (9***th Cir. 1975) (holding ALJ erred by "[going] outside the record to medical textbooks for the purpose of making his own exploration and assessment" of a claimant's condition). Additionally, although the ALJ made reference to the nonexamining consultant's opinion that Nelson could lift 20 pounds occasionally, the ALJ did not explain the weight given to that opinion or otherwise set forth why that opinion was more persuasive than that of Dr. Kimelman. See Social Security ruling 96-6p, 1996 WL 374180 (providing ALJ must "explain the weight given" to opinion of state agency consultant). Finally, although the ALJ stated that Nelson's daily activities indicated that his back impairment was not seriously symptomatic, the ALJ did not indicate which, if any, of Nelson's daily activities undermined Dr.Kimelman's opinion that Nelson could lift 20 pounds only rarely. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. 1990) (holding where ALJ found claimant could perform sedentary work and referred to claimant's daily activities, ALJ erred by not stating how "ability to perform those daily activities translated into the ability to perform appropriate work").
Accordingly, the ALJ erred by not providing specific and legitimate reasons for rejecting Dr. Kimelman's opinion. See Embrey, 849 F.2d at 422.
B. Deficiencies of Concentration, Persistence and Pace
The ALJ found that, as a result of Nelson's mental impairments, Nelson seldom has any "deficiencies of concentration, persistence or pace." (See Tr. at 13.) In making that finding, the ALJ did not credit the opinion of examining psychologist Richard Kjelson, PhD ("Dr. Kjelson"), who opined that Nelson has "moderate" deficiencies in such abilities. Nelson argues that the ALJ improperly rejected Dr. Kjelson's opinion.
In a report dated April 11, 1998, Dr. Kjelson, after performing psychological tests and reviewing Nelson's records, concluded that Nelson has a "moderate impairment" in certain "specific aspects of work functioning," including "maintaining attention, concentration, persistence and pace." (See Tr. at 199.) Dr. Kjelson also found that Nelson's intellectual capacity is "in the high average range." (See id.) Additionally, Dr. Kjelson made the following comment with respect to Nelson's functioning during the examination: "Attention and concentration capacities are generally of an adequate nature." (See id.)
With respect to Dr. Kjelson's opinion, the ALJ stated:
Claimant, was able to complete psychological testing with results that show a high average intellectual functioning. Clinically, Dr.Kjelson also noted that concentration and attention were adequate. Thus, I disagree with the assessment by Dr. Kjelson that claimant suffers a moderate loss of persistence or pace and ability to maintain concentration and attention and find that deficiencies of concentration, persistence or pace occurs seldom.
(See Tr. at 13.) The ALJ also pointed to Nelson's description of daily activites as supporting a finding that Nelson's "emotional disorder" is "not seriously symptomatic." (See Tr. at 14.)
Where the opinion of an examining psychologist is contradicted by a nonexamining physician, an ALJ may only reject the opinion of the examining psychologist by setting forth "specific, legitimate reasons that are supported by substantial evidence in the record." See Nguyen, 100 F.3d at 1466. Here, the ALJ cited no evidence supporting the reasons given for rejecting Dr. Kjelson's opinion. Rather, the ALJ appears to have simply disagreed with Dr. Kjelson's conclusion, that a person in the "high average range" of intellectual capacity with severe depression could have moderate deficiencies of concentration, persistence or pace, and that a person who can "adequate[ly]" concentrate during a mental health examination can have "moderate" impairments of concentration, persistence or pace in a work setting. An ALJ, however, may not substitute his own view of the effects of a mental impairment on a claimant for that of an examining psychologist. See Rohan v. Chater, 98 F.3d 966, 971 (1st Cir. 1996) (holding ALJ erred by rejecting treating psychiatrist's opinion that plaintiff was disabled where ALJ "simply indulged his own lay view of depression" for that of treating psychiatrist); see also Ferguson v. Schweiker, 765 F.2d 31, 37 (3rd Cir. 1985) (holding ALJ erred by "independently reviewing and interpreting the laboratory results" and thus "impermissibly substitut[ed] his own judgment for that of a physician"); Day, 522 F.2d at 1156 (holding ALJ erred by "[going] outside the record to medical textbooks for the purpose of making his own exploration and assessment" of a claimant's condition).
Although not discussed by the ALJ, a state agency consultant, in a report dated April 29, 1998, provided the opinion that Nelson "seldom" had deficiencies of concentration, persistence or pace. (See Tr. at 202, 209.)
In its motion for summary Judgment, the Commissioner notes the ALJ did state "Dr. Kjelson reported that [Nelson] denied any treatment for his emotional symptoms," (see Tr. at 14), an apparent reference to Dr. Kjelson's observation that Nelson "is not currently involved in psychological or psychiatric treatment." (See Tr. at 198.) The ALJ, however, did not relate that objective factor to his rejection of Dr. Kjelson's finding that Nelson is moderately limited in his ability to concentrate. See Embrey, 849 F.2d at 422 (holding ALJ erred by not relating "objective factors to any of the specified medical opinions and findings he reject[ed]").
Accordingly, as the ALJ failed to identify the objective factors on which he relied and to relate those factors to Dr. Kjelson's opinion, the AJL failed to "give sufficiently spacific reasons for rejecting" Dr. Kjelson's opinion, and thus erred. See Embrey, 849 F.2d at 422.
C. Remand
As noted, the ALJ found that Nelson can perform light work. For the reasons discussed above, however, that finding must be set aside. The remaining issue is whether the matter should be remanded to the ALJ with instructions to award Nelson benefits or for further proceedings.
Where an ALJ fails to "give sufficiently specific reasons for rejecting the conclusion of [a physician]," it is proper to remand the matter for "proper consideration of the physicians' evidence." See Embrey, 849 F.2d at 422 (remanding for further proceedings where ALJ rejected opinion of treating physician but did not relate objective factors on which he relied to opinion rejected); see also Nguyen, 100 F.3d at 1464, 1467 (remanding for further proceedings where ALJ failed to "set forth specific, legitimate reasons" for crediting opinion of nonexamining consultant over that of examining psychologist). A remand for further proceedings is also proper where an ALJ has, as appears to be the case here, rejected a physician's opinion in favor of his own interpretation of the medical evidence. See Day, 522 F.2d at 1156-57 (remanding for further proceedings where ALJ rejected physician's opinion in favor of "his own exploration and assessment" of claimant's condition); see also Rohan, 98 F.3d at 971 (remanding for further proceedings where ALJ "simply indulged his own lay view of depression" for that of treating physician). Remand is also warranted to allow an ALJ to discharge his duty under Social Security Ruling 96-6p and "explain the weight given" to the opinions of state agency consultants. See Social Security Ruling 96-6p,1996 WL 374180.
One state agency consultant was of the opinion that Nelson "seldom" has deficiencies of concentration, persistence or pace, (see, Tr. at 209; see, supra, n. 5), while another state agency consultant provided the opinion that Nelson "often" has deficencies of concentration, persistence or pace. (See Tr. at 244.) The ALJ did not discuss either opinion in his decision.
Accordingly, the Court, exercising its discretion, will remand the instant matter to the ALJ for proper consideration of the physicians' evidence on the issue of Nelson's lifting ability, and the effect of Nelson's mental impairments on his concentration, persistence and pace.
Such evidence may include, if the ALJ deems it necessary, an opinion from Nelson's treating physician(s), who submitted no opinion as to the effect of Nelson's back impairment on his ability to lift. See 20 C.F.R. § 404.1512(e) (providing SSA will recontact claimant's treating physician if evidence received from treating physician is "inadequate for [SSA] to determine whether you are disabled"); Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983) ("In Social Security cases the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.")
CONCLUSION
For the reasons expressed:
1. Plaintiffs motion for summary judgment is hereby GRANTED;
2. Defendant's motion for summary judgment is hereby DENIED;
3. The matter is hereby REMANDED to the SSA for further proceedings in accordance with this Order.
The Clerk shall close the file.