Opinion
For Nathan Sprague, Plaintiff: Brian C Shapiro, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Tova D Wolking, LEAD ATTORNEY, SAUSA - U.S. Attorney's Office, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.
DECISION AND ORDER
CARLA M. WOEHRLE, United States Magistrate Judge.
PROCEEDINGS
On April 25, 2014, Nathan Sprague (" Plaintiff") filed a Complaint seeking review of the Commissioner's denial of his application for child insurance benefits. Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On January 16, 2015, Defendant filed an Answer to Complaint. On July 6, 2015, the parties filed their Joint Stipulation.
As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
BACKGROUND
On June 4, 2010, Plaintiff filed an application for child's insurance benefits. (Administrative Record [" AR" ] at 122.) Plaintiff alleged that, beginning on June 3, 1992, he was unable to work due to autism. (AR at 69, 122.) The Commissioner denied Plaintiff's application initially and upon review. (AR at 69-78.)
On or about April 21, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). (AR at 81.) The ALJ conducted a hearing on June 5, 2012. (AR at 37-53.) Plaintiff appeared at the hearing with his attorney and testified. (AR at 40-47.) The Plaintiff's father and a vocational expert (" VE") also testified. (AR at 47-53.)
On June 27, 2012, the ALJ issued his decision denying benefits. (AR at 21-36.) In his decision, the ALJ noted that, to be entitled to child's insurance benefits, Plaintiff must have a disability that began before attainment of age 22. (AR at 24.) Here, Plaintiff was born on June 3, 1992, and had not attained age 22 as of June 3, 1992, the alleged onset date. (AR at 26.) The ALJ further found that Plaintiff suffers from the following " severe" impairments: Asperger's syndrome/autism and dysthymic disorders. (AR at 26.) Nevertheless, the ALJ concluded that Plaintiff retains the residual functional capacity (" RFC") to " perform a full range of work at all exertional levels but with the following nonexertional limitations: limitation to the performance of simple routine tasks with occasional public and coworker contact." (AR at 27.)
The ALJ determined that Plaintiff has no past relevant work, but that, " considering his age, education, work experience, and residual functional capacity, " there are jobs that exist in significant numbers in the national economy that he can perform. Specifically, the ALJ found that Plaintiff would be able to perform the jobs of hand packager and salvage recyler. (AR at 31-32.) Ultimately, the ALJ concluded that Plaintiff was not disabled pursuant to the Social Security Act. (AR at 32.)
On August 6, 2012, Plaintiff filed a timely request with the Appeals Council for a review of the ALJ's decision. (AR at 18-20.) The Appeals Council subsequently affirmed the ALJ's decision. (AR at 1-6.)
PLAINTIFF'S CONTENTION
In the Joint Stipulation, Plaintiff raises the following issue:
1. Whether the ALJ properly assessed the opinion of Plaintiff's treating psychiatrist, Timothy Tice, M.D.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.
In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
DISCUSSION
A. Applicable Law
Under the Social Security Act, to be entitled to child's insurance benefits, a claimant must be eighteen years or older and have a disability that began before attaining age 22. 20 C.F.R. § 404.350(a)(5)).
Disability is defined as the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or to last for a continuous period of at least twelve months. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated using a five-step test. See 20 C.F.R. § § 404.1520, 416.920. At step one, the ALJ determines if the claimant is engaging in " substantial gainful activity." 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is found not disabled. If he is not, the ALJ proceeds to step two.
At step two, the ALJ determines whether the claimant has a " severe" impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is " severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If the claimant does not have a " severe" impairment or combination of impairments, disability benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairment or combination of impairments is " severe, " the ALJ proceeds to step three.
At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 20 C.F.R. § § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is automatically determined disabled. See 20 C.F.R. § § 404.1520(d), 416.920(d). If not, the ALJ proceeds to step four.
At step four, the ALJ must assess the claimant's residual functional capacity (" RFC"). The RFC is the " most [one] can still do despite [his or her] limitations" and represents an assessment " based on all the relevant evidence." 20 C.F.R. § § 404.1545(a)(1), 416.945(a)(1). The ALJ then must determine whether the claimant's RFC is sufficient for the claimant to perform past relevant work. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the claimant is not disabled. If the claimant is no longer capable of past relevant work, the ALJ proceeds to step five. See 20 C.F.R. § § 404.1520(f), 416.920(f).
At the fifth and final step, the ALJ determines whether, considering claimant's RFC, age, education, and work experience, the claimant is able to perform other work that is available in significant numbers in the national economy. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not disabled. If he is not, the claimant is disabled and entitled to benefits. Id.
Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are non-adversarial and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner at step five. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520, 416.920.
B. Dr. Tice
In his sole claim, Plaintiff contends that the ALJ did not properly consider the opinion of his treating psychiatrist, Dr. Timothy Tice. (Joint Stip. at 4-13.) As discussed below, the Court agrees.
In general, a treating physician's opinion is entitled to special consideration because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). While a treating doctor's opinion regarding a claimant's condition is not necessarily conclusive as to either a medical condition or the ultimate issue of disability, it must be given substantial weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (stating that opinions of treating physicians are entitled to great deference). Accordingly, an ALJ " may reject the uncontradicted medical opinion of a treating physician only for 'clear and convincing' reasons supported by substantial evidence in the record." Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001)(quoting Reddick, 157 F.3d at 725). Even when there is a medical opinion contrary to that of the treating physician, an ALJ may rely on the contrary opinion only if there are " specific and legitimate" reasons supported by substantial evidence in the record. Holohan, 246 F.3d at 1202 (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). " 'The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [his] interpretation thereof, and making findings.'" Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)(quoting Magallanes, 881 F.2d at 751).
Here, Dr. Tice, a specialist in child and adolescent psychiatry, first began treating Plaintiff on February 19, 2009, and saw him on a monthly basis thereafter. (AR at 302, 333.) On February 23, 2012, Dr. Tice filled out a " Medical Source Statement (Mental)" and a " Mental Residual Functional Capacity Questionnaire." (AR at 332-37.) Dr. Tice noted Plaintiff's diagnoses of Asperger's disorder, attention deficit hyperactivity disorder (" ADHD"), and dysthymic disorder. (AR at 333.) He opined that Plaintiff was moderately limited in his abilities to deal with the public, withstand the stress and pressures associated with an eight-hour work day, and handle funds. (AR at 332.) He further opined that, " for 21 or more percent of a normal workday and workweek, " Plaintiff was " unable to perform and sustain the [following activities] on an ongoing, appropriate, and independent basis": maintain attention for two hour segments; ask simple questions or request assistance; accept instructions and respond appropriately to criticism from supervisors; respond appropriately to changes in a routine work setting; and understand, remember and carry out detailed instructions. (AR at 335-36.)
In his decision, the ALJ purported to fully credit Dr. Tice's opinion. (AR at 30.) However, the ALJ's RFC determination did not include several of Dr. Tice's limitations, including those in maintaining attention and withstanding the stress and pressures of an eight-hour workday. Rather, the ALJ's RFC determination included only a limitation to " simple repetitive tasks, with occasional public and coworker contact." (AR at 27.) The ALJ's failure to include Dr. Tice's limitations in Plaintiff's RFC constitutes an implicit rejection of this portion of Dr. Tice's opinion. See Smolen, 80 F.3d at 1286 (" By disregarding [the doctor's] opinions and making contrary findings, [the ALJ] effectively rejected them."). Yet the ALJ failed to give any reasons, let alone a specific and legitimate one, for rejecting this part of Dr. Tice's opinion. See Lester, 81 F.3d at 830-31 (Even if a treating or examining physician's opinion is contradicted, that opinion can be rejected only " for specific and legitimate reasons that are supported by substantial evidence in the record."). Accordingly, remand for further proceedings is appropriate.
In the Joint Stipulation, Respondent argues that the ALJ's limitation to " simple repetitive tasks" adequately captures Plaintiff's limitation in maintaining attention. In support, Respondent cites Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008). (Joint Stip. at 14-15.) This argument, however, is without merit. In Stubbs-Danielson, the Ninth Circuit held that " an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, and pace where the assessment is consistent with restrictions identified in the medical testimony." See id. at 1174. There, the only concrete restriction identified in the medical testimony was a restriction to simple tasks, despite some evidence that the claimant had deficiencies in pace and other areas. See id. However, in Brink v. Comm'r of Soc. Sec. Admin., 343 Fed.Appx. 211, 212 (9th Cir. 2009), the Ninth Circuit noted that Stubbs-Danielson -- wherein the medical testimony " did not establish any limitations in concentration, persistence, or pace" -- did not apply to cases where the medical testimony did establish such limitations and where the ALJ accepted such testimony. Here, the record establishes that Plaintiff was limited in the ability to maintain attention, and the ALJ expressly found that Plaintiff had moderate difficulties " with regard to concentration, persistence or pace." (AR at 27, 335.) Accordingly, under Brink's reasoning, which the Court finds persuasive, the ALJ's RFC determination should have included Plaintiff's moderate limitation in maintaining attention. See also Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed.Appx. 709, 712 (9th Cir. 2013) (" Although the ALJ found that Lubin suffered moderate difficulties in maintaining concentration, persistence, or pace, the ALJ erred by not including this limitation in the residual functional capacity determination or in the hypothetical question to the vocational expert.").
C. Remand is Required to Remedy the Defects in the ALJ's Decision
The decision whether to remand for further proceedings is within the discretion of the district court. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090 (9th Cir. 2014)(citing Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000)). Where there are outstanding issues that must be resolved before a determination 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. Harman, 211 F.3d at 1179. However, where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. (decision whether to remand for further proceedings turns upon their likely utility).
Here, even crediting Dr. Tice's opinion as true, Plaintiff's entitlement to benefits is not clear from the existing record because there is no vocational expert opinion of disability corresponding to Dr. Tice's opinion. See id. at 1180 (remanding for further proceedings in part because there was no testimony from the vocational expert that the limitations established by the record would render Plaintiff unable to engage in any work). Thus, remand for further proceedings is appropriate.
ORDER
Accordingly, IT IS ORDERED that:
1. The decision of the Commissioner is REVERSED.
2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.
3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.
JUDGMENT
IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.