Opinion
For Michelle P Nelson, Plaintiff: Rebecca Christina Padilla, LEAD ATTORNEY, Potter Cohen and Samulon, Pasadena, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security Administration, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Lynn M Harada, LEAD ATTORNEY, SAUSA - U.S. Attorney's Office, U.S. Department of Justice, San Francisco, CA.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint (" Complaint") on August 28, 2013, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on July 10, 2014. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUES
1. Whether the Administrative Law Judge (" ALJ") properly evaluated the medical evidence. (Jt. Stip. 3-17.)
2. Whether the ALJ properly assessed plaintiff's credibility. (Jt. Stip. 17-32.)
DISCUSSION
I. Reversal is warranted based on the ALJ's evaluation of the medical evidence .
Plaintiff maintains the " ALJ improperly relied upon the medical opinion of the non-treating, non-examining State Agency medical consultant, A. Lizarraras, M.D. [(" Dr. Lizarraras")], rather than the medical opinion of Plaintiff's treating orthopedic surgeon, Scott Goldman, M.D. [(" Dr. Goldman")]." (Jt. Stip. 3.)
In evaluating medical opinions, the Ninth Circuit distinguishes among three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (as amended), " [t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § § 404.1527(d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for " clear and convincing" reasons. Lester, 81 F.3d at 830. Where, as in this case, the treating physician's opinion is contradicted, it may not be rejected without " specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
From January 21, 2008 through 2011, Dr. Goldman treated plaintiff's " severe osteoarthritis" of the cervical and lumbar spine, and right and left knees. (AR 458-63; see also AR 188-341, AR 364, AR 465-68.) Dr. Goldman treated plaintiff every one to three months. (AR 458.) In a letter, dated October 19, 2011, Dr. Goldman opined plaintiff " is unable to return to the workforce permanently" and assessed that she is unable to kneel, squat, bend, stoop, lift more than ten pounds, stand more than one hour in a workday, sit more than one hour in a workday, and walk more than one hour in a workday. (AR 467-68.)
On August 31, 2010, non-examining and non-treating physician Dr. Lizarraras completed a physical residual functional capacity (" RFC") assessment of plaintiff. (AR 342-49.) Based on a review of the record, Dr. Lizarraras determined plaintiff is able to occasionally lift and/or carry twenty pounds, frequently lift and/or carry ten pounds, stand and/or walk about six hours in an eight hour workday, sit about six hours in an eight hour workday, and has no limitations in her ability to push and/or pull. (AR 343.)
In assessing the medical opinions, the ALJ rejected Dr. Goldman's opinion. (AR 27.) The ALJ concluded that " there is no objective medical evidence in [plaintiff's] file that supports such a severe [RFC]." (Id.) The ALJ also found that " Dr. Goldman's opinion that '[plaintiff] is unable to return to the workforce permanently' is on an issue specifically reserved to the commissioner and is not given weight in this decision." (Id.) The ALJ then adopted Dr. Lizarraras's opinion in formulating plaintiff's RFC and found the " State agency opinions are internally consistent and consistent with the evidence as a whole." (Id.)
Having carefully reviewed the record and the Joint Stipulation, the Court is persuaded that the ALJ's assessment of Dr. Goldman's opinion is not legally sufficient and/or supported by substantial evidence.
First, the ALJ's rejection of Dr. Goldman's opinion based on a lack of objective findings is impermissibly broad and conclusory and " does not achieve the level of specificity" required to justify her rejection of plaintiff's treating physician. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (conclusory reason " does not achieve the level of specificity" required to justify an ALJ's rejection of a treating source's medical opinion); McAllister, 888 F.2d at 602 (ALJ's rejection of treating physician's opinion on the ground that it was contrary to the clinical findings in the record was " broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed."); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (" Merely to state that a medical opinion is not supported by enough objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim.") (internal quotation marks and citation omitted). Here, Dr. Goldman's opinion is based on roughly four years of consistent and frequent treatment of plaintiff and is supported by his own treatment notes, which are extensive and detailed. (AR 188-341, AR 364, AR 458-63, AR 465-68.) Moreover, in his letter, dated October 19, 2011, Dr. Goldman indicated that he based his RFC assessment on a physical examination of plaintiff performed on September 23, 2011 and diagnostic studies, including x-rays of the cervical spine, radiographs of the lumbar spine, x-rays of plaintiff's knees, and an MRI scan of the cervical and lumbar spine. (AR 465-67.)
Second, to the extent the ALJ rejected Dr. Goldman's opinion because he provided an opinion " on an issue specifically reserved to the commissioner, " it is axiomatic that the opinion of a treating physician is not conclusive as to the ultimate determination of disability, i.e ., that is the ALJ's function. See Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (" [T]he opinion of the treating physician is not necessarily conclusive as to either the physical condition or the ultimate issue of disability."); accord Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). However, that a physician provides a disability determination in his or her opinion does not provide a basis upon which to reject that opinion.
Lastly, the ALJ's adoption of the non-examining and non-treating physician Dr. Lizarraras's opinion, standing alone, does not constitute " substantial" evidence. See Lester, 81 F.3d at 832 (" In the absence of record evidence to support it, the nonexamining medical advisor's testimony does not by itself constitute substantial evidence that warrants a rejection of . . . the examining [physician]'s opinion."). Thus, Disputed Issue One warrants reversal of the Commissioner's decision.
II. Disputed Issue Two may be resolved upon further proceedings .
Credibility findings are reviewed in light of the record as a whole. See Struck v. Astrue, 247 Fed.Appx. 84, 86-87 (9th Cir. 2007); Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008). Accordingly, the Court declines to address the merits of plaintiff's credibility claim as it may be addressed appropriately by the ALJ upon further administrative proceedings.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at 603; Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985) (per curiam) (as amended).
This is not an instance where no useful purpose would be served by further administrative proceedings. Rather, this is an instance where additional administrative proceedings could remedy the defects in the ALJ's decision. On remand, the ALJ shall reassess the medical opinions in the record and provide sufficient reasons under the applicable legal standard for rejecting any portion of the medical opinions.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.