Opinion
For Thomas Eubon Stewart, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W Colvin, Commissioner of Social Security, Defendant: Kevin Gregory Gill, LEAD ATTORNEY, Social Security Administration, 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.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.
The Court now rules as follows with respect to the three disputed issues listed in the Joint Stipulation.
The decision in this case is being made on the basis of the pleadings, the administrative record (" AR"), and the Joint Stipulation (" Jt Stip") 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).
A. The ALJ failed to properly consider the treating physician's opinion (Disputed Issue One) .
Disputed Issue One is directed to the ALJ's rejection of the opinion of plaintiff's treating physician, Dr. Nguyen. (See Jt Stip at 3-14; see also AR 267-69.)
The law is well established in this Circuit that a treating physician's opinion is entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). " The 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 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), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for " clear and convincing" reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). Where, as here, a treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (" A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record."); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
Dr. Nguyen issued an opinion based on plaintiff's L5 slipped disc and osteoarthritis of the spine. (See AR 268.) Dr. Nguyen opined that plaintiff was limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently; standing and walking for less than two hours in an eight-hour workday; sitting for about two hours in an eight-hour workday; sitting for 20 minutes at a time before changing position; and standing for 15 minutes at a time before changing position. (See AR 267.)
The ALJ declined to give significant weight to Dr. Nguyen's opinion for three reasons. As discussed hereafter, the Court finds that none of the three reasons was legally sufficient.
First, the ALJ found that Dr. Nguyen's opinion was not supported by his treatment notes. Specifically, the ALJ found that (1) the only objective findings supporting Dr. Nguyen's opinion reflected a reduced range of motion of the lumbar spine and tenderness to palpation of the sacral area; and (2) on the one occasion when plaintiff requested a walker, Dr. Nguyen accommodated plaintiff with only the notations that plaintiff's back condition was unchanged, that he could not lie on the examination bed, and that he was walking with a cane. (See AR 17; see also AR 301, 306.) However, these were not the only treatment notes supporting Dr. Nguyen's opinion or his provision of the walker. For example, the treating medical record also included an imaging study of plaintiff's lumbar spine showing L5 pars defect with grade 1 anterolisthesis and secondary degenerative disc disease and facet joint disease (see AR 258; see also AR 264), which could have been a reasonable basis for both Dr. Nguyen's opinion and his provision of the walker. Although the ALJ did note this evidence (see AR 14), he failed to consider it as a possible basis for Nguyen's opinion. See Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir. 2014) (an ALJ's consideration of a medical opinion must include the " context of the overall diagnostic picture" or the medical record on the whole); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (an ALJ may not reject a medical opinion by relying on treatment notes selectively); see also Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (in rejecting a treating physician's opinion as unsupported by his own treatment notes, an ALJ may not overlook significant parts of the treating medical record).
Second, the ALJ found that Dr. Nguyen's opinion compared unfavorably to the opinion of the examining physician, Dr. Siciarz, who supposedly had made " a much more detailed examination regarding what [plaintiff] does not have, such as neurological deficits, which would [be] indicative of a herniated disc." (See AR 17; see also AR 245-49.) As a threshold matter, any inconsistency between Dr. Nguyen's opinion and Dr. Siciarz's opinion was merely determinative of the standard to be applied to the ALJ's proffered reasons for not crediting the opinion of Dr. Nguyen; it was not a legally sufficient reason in itself. See Lester, 81 F.3d at 830 (in event of conflict in the medical opinion evidence, an ALJ still must provide legally sufficient reasons to reject a treating or examining physician's opinion); see also Widmark v. Barnhart, 454 F.3d 1063, 1066-67 and n.2 (9th Cir. 2006) (existence of a conflict among the medical opinions by itself cannot constitute substantial evidence for rejecting a treating physician's opinion). Moreover, to the extent that the ALJ inferred that plaintiff did not have a herniated disc from Dr. Siciarz's failure to find neurological deficits (contrary to Dr. Nguyen's finding that plaintiff did have a slipped disc), the Court finds that the record does not contain substantial evidence to support any such inference. Dr. Nguyen's finding that plaintiff had a slipped disc was based not merely on an inference from an inconclusive neurological exam, but by objective clinical evidence: as noted, an imaging study of plaintiff's lumbar spine showed L5 pars defect with grade 1 anterolisthesis and secondary degenerative disc disease and facet joint disease. (See AR 258; see also AR 264.) It is not clear from the record that Dr. Siciarz even reviewed this imaging study. (See AR 245.)
Third, the ALJ found that Dr. Nguyen's opinion was incommensurate with plaintiff's treatment. Specifically, the ALJ found that although Dr. Nguyen had prescribed medication, Dr. Nguyen (1) did not refer plaintiff to other treatment such as physical therapy or to another professional, such as an orthopedic specialist, for possible surgical intervention; and (2) saw plaintiff on an as-needed basis for medication refills. (See AR 17-18.) To the extent that the ALJ was rejecting Dr. Nguyen's opinion because plaintiff's treatment was conservative (see Jt Stip at 12), the Court is mindful that an ALJ may properly reject a treating physician's opinion on that ground. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Here, however, the record reflects that plaintiff's treatment included a walker and several prescription medications -- including Vicodin, Enalapril, Xanax, Ativan, Restoril, and Hydrocodone -- that in the Court's view cannot properly be characterized as conservative. (See AR 246, 297, 299-302, 305.) Moreover, although the ALJ was correct that plaintiff's treatment did not include physical therapy or surgery, the Court does not find this fact, by itself, to constitute substantial evidence given the type of treatment plaintiff actually received and given the absence of any expert evidence in the record that physical therapy or surgery would have been the appropriate treatment in light of Dr. Nguyen's opinion. See Schomas v. Colvin, 732 F.3d 702, 709 (7th Cir. 2013) (ALJ's lay reasoning that treatment was conservative because claimant was not hospitalized or did not visit the emergency room more frequently " impermissibly substitutes the ALJ's personal observations for the considered judgment of medical professionals"); Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (an ALJ's lay conclusion that a medical opinion should be discounted because a claimant is taking only over-the-counter medicine is legally insufficient in the absence of other substantial evidence supporting the ALJ's conclusion); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000) (treating physician's failure to recommend surgery or prescription drugs was not substantial evidence of non-disability because the ALJ was not permitted to substitute his own expertise or view of the medical proof for the treating physician's opinion); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (ALJ's lay conclusions from the medical evidence were invalid where no medical opinion in the record suggested that claimant's course of treatment was incommensurate with his purported ailment); see generally Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not qualified as a medical expert); cf. Olsen v. Colvin, 551 F.App'x 868, 875 (7th Cir. 2014) (upholding ALJ's characterization of claimant's treatment as conservative where at least one orthopedic surgeon had described it as such).
B.The ALJ failed to properly consider the examining psychologist's opinion and failed to make a proper vocational determination (Disputed Issues Two and Three) .
Disputed Issue Two is directed to the ALJ's consideration of the opinion of the examining psychologist, Dr. Larson. (See Jt Stip at 14-20; see also AR 250-56.) Disputed Issue Three is directed to the ALJ's residual functional capacity (" RFC") determination in light of Dr. Larson's opinion. (See Jt Stip at 20-22.)
To reject the uncontradicted opinion of an examining physician, an ALJ must provide " clear and convincing" reasons. Where, as here, the examining physician's opinion is contradicted by that of another doctor, the ALJ must provide " specific and legitimate" reasons that are supported by substantial evidence in the record. See Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Lester, 81 F.3d at 830-31; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
A claimant's RFC is what a claimant can still do despite his limitations. See Reddick, 157 F.3d at 724; Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). An ALJ's RFC determination gives rise to the hypothetical question posed to the vocational expert (" VE"). See Valentine v. Commissioner, 574 F.3d 685, 690 (9th Cir. 2009). The ALJ's RFC determination and hypothetical question " must set out all the limitations and restrictions of the particular claimant." See id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)) (emphasis in original).
In his opinion, Dr. Larson stated that plaintiff had various limitations based on a learning disorder not otherwise specified, attention deficit hyperactivity disorder, mood disorder not otherwise specified, and polysubstance abuse in fair remission. (See AR 255.) Dr. Larson opined that plaintiff was (1) not impaired in his ability to understand, remember, and complete simple commands; (2) moderately impaired in his ability to comply with job rules such as safety and attendance, his ability to respond to changes in the normal workplace setting, and his ability to maintain persistence and pace in a normal workplace setting; and (3) markedly impaired in his ability to understand, remember, and complete complex commands. (See id.)
The ALJ summarized Dr. Larson's opinion but failed to incorporate any of the limitations identified in that opinion, particularly the marked and moderate limitations in mental functioning. Instead, the ALJ merely stated that he " concurs with Dr. Larson's conclusions and finds that the claimant is not impaired in his ability to perform the unskilled work identified by the vocational expert." (See AR 16.)
Although the Commissioner argues that any failure by the ALJ to properly consider Dr. Larson's opinion was harmless error because the ALJ was correct in finding that his ultimate vocational determination for unskilled work was consistent with Dr. Larson's opinion (see Jt Stip at 19-20), the Court disagrees for two reasons. First, it is not clear from the record that the unskilled jobs identified by the VE at the administrative hearing (i.e., cashier II and production assembler) can be performed by a person with all of the limitations in mental functioning identified by Dr. Larson. See Social Security Ruling (" SSR") 85-15, 1985 WL 56857, at *4 (noting that unskilled work requires the mental abilities, " on a sustained basis, " to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting) (emphasis added) ; Jaramillo v. Colvin, 576 F.App'x 870, 876 (10th Cir. 2014) (holding that an ALJ's vocational determination for unskilled work did not adequately account for an examining psychiatrist's opinion that claimant had moderate limitations in some of the mental abilities described in SSR 85-15); see also Brink v. Commissioner Social Sec. Admin., 343 F.App'x 211, 212 (9th Cir. 2009) (now citable for its persuasive value per Ninth Circuit Rule 36-3) (" Indeed, repetitive, assembly-line work of the type described by the [vocational] expert might well require extensive focus or speed."); Meissl v. Barnhart, 403 F.Supp.2d 981, 983 (C.D. Cal. 2005) (" [C]ontrary to the Commissioner's argument here, the SVP level in a DOT listing indicating unskilled work, does not address whether a job entails only simple, repetitive tasks."). Second, the Ninth Circuit has repeatedly found reversible error where, as in this case, an ALJ's vocational determination fails to incorporate mental limitations supported by concrete evidence. See, e.g., Bagby v. Commissioner of Social Sec., 606 Fed.Appx. 888, 2015 WL 1567849, at *1-*2 (9th Cir. 2015); Lubin v. Commissioner of Social Sec. Admin., 507 F.App'x 709, 712 (9th Cir. 2013); Van Sickle v. Astrue, 385 F.App'x 739, 741 n.1 (9th Cir. 2010); Brink, 343 F.App'x at 212.
Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d 1273, 1275 n. 1 (9th Cir. 1990).
It follows that, to the extent that the ALJ's vocational determination relied on an RFC determination and vocational expert testimony that did not incorporate all of plaintiff's limitations, that determination was not supported by substantial evidence. See Valentine, 574 F.3d at 690 (" [A]n RFC that fails to take into account a claimant's limitations is defective."); DeLorme v. Sullivan, 924 F.2d, 841, 850 (9th Cir. 1991) (" If the hypothetical does not reflect all the claimant's limitations, we have held that the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy."); see also Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (vocational expert testimony that failed to account for claimant's deficiency in concentration, persistence, and pace could not constitute substantial evidence to support ALJ's non-disability determination).
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, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); 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).
Where, as here, a claimant contends that he is entitled to an award of benefits because of an ALJ's failure to properly consider the medical opinion evidence, the Court applies a three-step framework. See Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1099-1102 (9th Cir. 2014); see also Burrell, 775 F.3d at 1141-42; Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). First, the Court asks whether the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Second, the Court determines whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful. Third, if the Court concludes that no outstanding issues remain and further proceedings would not be useful, the Court may find the relevant testimony credible as a matter of law and then determine whether the record, taken as a whole, leaves " not the slightest uncertainty as to the outcome of the proceeding." Treichler, 775 F.3d at 1100-01 (citations omitted). Only when all three elements are satisfied does a case raise the " rare circumstances" that allow the Court to exercise its discretion to remand for an award of benefits. See id.
Here, although the Commissioner has made a lengthy argument under the foregoing authorities that the proper remedy in the event of reversal would be a remand to the Commissioner for further administrative proceedings, plaintiff has made only a cursory assertion that he is entitled to either a remand for further proceedings or an immediate award of benefits. (See Jt Stip at 23-25.) The Court deems plaintiff's failure to adequately brief the issue of the appropriate remedy and failure to even reply to the Commissioner's contentions in this regard as a concession to the correctness of the Commissioner's position that remand for an award of benefits is not warranted here. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (declining to order an immediate payment of benefits where the parties failed to present any argument about the effect of the ALJ's errors, meaning that there were no facts presented that clearly indicated the proper outcome).
Accordingly, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
It is not the Court's intent to limit the scope of the remand.
JUDGMENT
In accordance with the Order Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is reversed and this matter is remanded for further administrative proceedings, pursuant to sentence four of 42 U.S.C. § 405(g).