Opinion
For Jack Strickler, 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: Annabelle J Yang, LEAD ATTORNEY, SAUSA - Social Security Administration, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Assistant U.S. Attorney SA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Santa Ana Branch-Civil Div, Santa Ana, CA.
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE AND REMANDING FOR PAYMENT OF BENEFITS
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Strickler challenges the denial of his application for Social Security benefits. On appeal, Plaintiff contends that the Administrative Law Judge (ALJ) impermissibly rejected his treating doctor's opinions. He also challenges the sufficiency of the ALJ's adverse credibility finding.
The Court finds that the ALJ failed to identify appropriate reasons supported by substantial evidence for either conclusion. The ALJ's decisions reflect an incomplete or unfair review of the evidence in the case. Crediting Plaintiff's testimony and the medical opinion of Plaintiff's physician as true, the Court vacates the ALJ's decision and remands the action to the agency for the calculation and payment of benefits.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits based on various physical and mental health ailments. After an administrative hearing, the ALJ found that several of Plaintiff's physical conditions constituted " severe impairments" as that term is used under the federal regulations. (AR 14.)
The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform a full range of light work. (AR 16.) In establishing the RFC, the ALJ found that Plaintiff was not credible in describing his symptoms and limitations. (AR 19, 20.) The ALJ also rejected the opinion of Plaintiff's treating physician which recommended more severe limitations. (AR 19-20.)
A vocational expert testified at the hearing that an individual with Plaintiff's RFC could perform work in the national and local economies. (AR 21-22, 48-49.) From this, the ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 22.)
III. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). A court must uphold the ALJ's conclusion even if the evidence in the record " is susceptible to more than one rational interpretation." Ludwig v. Astrue, 681 F.3d 1047, 1052 (9th Cir. 2012) (quotation omitted). A reviewing court " leave[s] it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
B. Rejection of Treating Physician's Opinion (Issue 1)
Plaintiff contends that the ALJ failed to provide an adequate reason for rejecting his treating physician's opinion.
1. Facts and Decision Below
Plaintiff's treating physician (Dr. Capen) submitted a form containing his opinions about Plaintiff's limited ability to work. (AR 320-327.) Dr. Capen diagnosed Plaintiff with back, neck, shoulder, and knee ailments. (AR 320.) In response to a question on the form about Plaintiff's pain, the doctor explained at length the constant nature and severity of Plaintiff's condition. (AR 320-21.) Additionally, Dr. Capen attached two pages of objective data to support his opinion, including the results of multiple MRIs and positive findings on several objective physical tests regarding Plaintiff's spine, neck, and knees. (AR 322-24.)
Dr. Capen then opined that Plaintiff had many work-related limitations. Among other limitations, the doctor reported that Plaintiff could stand or walk for only two hours in an eight-hour day. (AR 325.) Dr. Capen also opined that Plaintiff could not lift more than ten pounds, required a job where he could sit, stand, or walk at will, and would likely miss more than four days of work per month because of his impairments and treatment. (Id.)
Dr. Capen also marked the box indicating that Plaintiff was not capable of holding a " low stress" job. (AR 324.) It is not clear that Dr. Capen (identified in his signature block as an M.D.) practices as a psychiatrist or treated Plaintiff for any mental health condition.
In the written decision, the ALJ expressly gave Dr. Capen's opinion " little evidentiary weight." (AR 20.) The ALJ determined that Dr. Capen's report " primarily summarize[s] the claimant's subjective complaints and diagnoses but does not present objective clinical or laboratory findings that support its conclusions." (Id.) The ALJ made no reference to the additional material that Dr. Capen inserted into the opinion referring to Plaintiff's MRIs and in-office examinations.
Instead, the ALJ based the RFC assessment " in large part" on the opinion of an examining consultant. (AR 19.) The consultant (Dr. Ella-Tamayo) recommended far less restrictive work limitations than Plaintiff's physician. (AR 574.) The ALJ gave Dr. Ella-Tamayo's opinion " great weight" because she had " an opportunity to review the entire medical record." (AR 19.)
2. Relevant Law
An ALJ generally gives the most weight to medical evidence from a claimant's treating physician, and progressively less weight to the opinions of examining and nonexamining physicians. An ALJ " may only reject a treating or examining physician's uncontradicted medical opinion based on clear and convincing reasons." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (same). When a treating or examining physician's opinion is contradicted by another medical evaluation, the ALJ " must provide specific and legitimate reasons supported by substantial evidence" for rejecting that opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quotation omitted); Ruiz v. Comm'r of Soc. Sec. Admin., 490 F.App'x 907, 908 (9th Cir. 2012) (" To reject the opinion of an examining, nontreating doctor in favor of a contradicting, nonexamining, and nontreating doctor, the ALJ must provide specific and legitimate reasons that are supported by substantial record evidence.").
Even when contradicted, " a treating or examining physician's opinion is still owed deference and will often be entitled to the greatest weight" in disability proceedings. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). For this reason, when a treating physician submits a RFC form to the agency, the ALJ cannot consider it independently from the doctor's other treatment notes in the record. Id. at 1013.
3. Analysis
The strict work limitations that Plaintiff's treating physician recommended here conflicted with those advised by the agency's consultant. As a result, to reject Dr. Capen's opinion, the ALJ was required to state " specific and legitimate reasons supported by substantial evidence." Lester, 81 F.3d at 830.
This isn't a close call. The ALJ's reason for rejecting Dr. Capen's opinions -- they did not " present objective clinical or laboratory findings that support [the] conclusions -- was simply not true. Dr. Capen did reference specific objective medical records and physical exam results in support of his opinions about Plaintiff's physical capabilities. (AR 322-24.) A simple review of the form shows that the physician deliberately added several pages of typewritten material summarizing test and examination results of Plaintiff. That information amply supported his evaluation of Plaintiff's condition. Additionally, the record contained hundreds of pages documenting the records Dr. Capen reviewed, objective test results, his impressions, and his treatment plans for Plaintiff. Garrison, 759 F.3d at 1013.
The ALJ either failed to fairly read Dr. Capen's complete report or misunderstood the significance of its contents. Either way, no evidence supports the ALJ's conclusion regarding the alleged inadequacy of the treating physician's opinion. Lester, 81 F.3d at 830; Ruiz, 490 F.App'x at 908. Given the obvious significance of Dr. Capen's recommendation, the ALJ's error cannot have been harmless here. Ludwig, 681 F.3d at 1054.
C. Adverse Credibility Determination (Issue 2)
Plaintiff argues that the ALJ gave legally insufficient reasons for rejecting his subjective symptom testimony.
1. Facts and Decision Below
The agency scheduled two consultative examinations for Plaintiff. internal medicine and mental health. Plaintiff attended the internal medicine consultative examination. (AR 55, 569.) However, Plaintiff did not show up at the mental health evaluation. (AR 313.)
At the hearing, Plaintiff testified that his physical conditions and pain severely limited his ability to work. (AR 34-43.) He did not testify about any of his alleged mental limitations. Moreover, the ALJ did not discuss the missed consultative exam with Plaintiff or his attorney at the hearing.
Among other things, Plaintiff stated that he has gout attacks three to five times per month and that each attack can last a few days. (AR 41-42.) Plaintiff testified that he couldn't lift more than ten pounds or walk more than a block. (AR 35-36.) He also testified that he recently had knee surgery, but it was not helpful. (AR 34-35.)
The ALJ didn't believe him. In the written decision, the ALJ found that Plaintiff's failure to appear at the mental health consultative examination " calls into question the reliability" of Plaintiff's symptom testimony. (AR 20.) The ALJ reasoned that, by missing the appointment, Plaintiff " gave up the opportunity to provide convincing evidence about the allegedly disabling symptoms and limitations." (Id.) In support of these statements, the ALJ referenced the letter sent by the agency to Plaintiff indicating that Plaintiff had missed a consultative exam. (Id.)
The ALJ determined that Plaintiff's ability to perform basic activities of living and " pick up to ten pounds" was " consistent with an ability to do a wide range of light work." (AR 19.) The ALJ also found that Plaintiff's treatment (which included steroidal injections, surgery, and continued physical therapy) was " conservative in nature and not the type one would expect from a disabling condition." (Id.) The ALJ further concluded that the record " does not provide significant abnormal findings on examination and diagnostic workup" to support Plaintiff's disabling condition. (Id.)
2. Relevant Law
Certain disability decisions require an evaluation of a claimant's subjective symptomatic complaints. An ALJ may not " arbitrarily discredit a claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). If an ALJ determines that there is objective medical evidence of an underlying impairment that reasonably could cause the alleged pain or symptoms, the ALJ may disregard the individual's statements regarding the severity of those symptoms if, in the absence of evidence that the claimant is malingering, the ALJ provides " specific, clear and convincing reasons" for rejecting the claimant's testimony. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citation omitted).
An ALJ may consider a variety of factors in weighing a claimant's believability, including ordinary techniques of credibility evaluation, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and the claimant's daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quotations omitted). The lack of objective medical evidence to support a claimant's allegations " cannot form the sole basis for discounting" subjective symptom testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Additionally, an ALJ may not " improperly cherry-pick[ ]" from the medical evidence in reaching a conclusion regarding a claimant's believability. Ghanim, 763 F.3d at 1164.
A claimant's failure to attend a consultative examination, without good reason, can support a finding that the claimant is not disabled or not believable. 20 C.F.R. § 416.918(a); Alcazar v. Astrue, CV 12-4494 AGR, 2013 WL 645622 at *3 (C.D. Cal. 2013) (citing regulation). Some courts in this district have held that repeated failure to attend consultative examinations constitutes a failure to cooperate. Kreidler v. Barnhart, 385 F.Supp.2d 1034, 1037 (C.D. Cal. 2005); McCann v. Astrue, EDCV 09-1432 SS, 2010 WL 2803964 at *4 (C.D. Cal. 2010). An ALJ may consider lack of cooperation or malingering at consultative examinations in determining credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).
If a claimant " engages in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may discredit the claimant's allegations upon making specific findings relating to those activities." Burch, 400 F.3d at 681. The mere fact that a claimant " carried on certain daily activities, such as grocery shopping, driving a car, or limited walking or exercise, does not in any way detract" from his or her credibility as to overall disability. Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001). The ALJ must make " specific findings related to [the daily] activities and their transferability to conclude that a claimant's daily activities warrant an adverse credibility determination." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
An ALJ may reject plaintiff's testimony of disabling limitations or pain if the claimant failed to seek treatment or follow a prescribed course of treatment without a good reason. Id. at 638. Additionally, an ALJ may also determine that a claimant lacks credibility based on evidence that a claimant pursued conservative treatment instead of an aggressive program. Parra, 481 F.3d at 750-51. Numerous judges of this Court have concluded that spinal epidural injections are not a conservative form of treatment. See, e.g., Birkenstein v. Colvin, No. SA CV 12-1525 SP, 2013 WL 3872098 at *9 (C.D. Cal. 2013) (" epidural and trigger point injections may not be considered conservative"); Heyboer v. Colvin, No. ED CV 12-7128 E, 2013 WL 2423169 (C.D. Cal. 2013) (same); Jacobs v. Astrue, No. ED CV 12-834 MRW, 2013 WL 1431623 (C.D. Cal. 2013) (same); Christie v. Astrue, No. CV 10-3448 PJW, 2011 WL 4368189 (C.D. Cal. 2011) (same). However, " a single steroid injection over the course of several months" does not undermine an ALJ's credibility finding based on conservative treatment. Veliz v. Colvin, No. EDCV 14-0180 JPR, 2015 WL 1862924 at *8 (C.D. Cal. 2015); Walter v. Astrue, No. EDCV 09-1569 AGR, 2011 WL 1226529 at *3 (C.D. Cal. 2011) (ALJ permissibly discounted plaintiff's credibility based on " conservative treatment, " including medication, physical therapy, and single injection).
3. Analysis
In the written decision, the ALJ offered several reasons to disbelieve Plaintiff's testimony. However, those reasons were not sufficiently specific, clear, or convincing enough nor supported by substantial evidence to survive appellate review.
The only clear reason the ALJ gave for rejecting Plaintiff's symptom testimony was Plaintiff's failure to attend a consultative exam. The ALJ correctly found that Plaintiff did not attend a mental health examination as the agency instructed. From this, the ALJ determined that Plaintiff was untruthful in the testimony he gave about his physical conditions (knee, back, etc.). The government argues that Plaintiff's missed appointment provides a sufficient reason for the ALJ to have rejected his symptom testimony. (Docket # 14 at 31.)
That's not a convincing reason under Burrell. To be sure, the ALJ would have been entitled to disbelieve Plaintiff's testimony about his mental health if he refused to show up for an examination regarding those claims (as in Alcazar). But neither the ALJ nor the government offer a valid reason to assume that Plaintiff lied about all aspects of his claim simply because the agency was unable to develop evidence regarding one comparatively minor portion of his disability application. There is no evidence that Plaintiff missed other appointments or otherwise failed to cooperate with the agency's inquiries. Kreidler, 385 F.Supp.2d at 1037; McCann, 2010 WL 2803964 at *4. Likewise, there is no evidence of Plaintiff's lack of cooperation at the internal medicine consultative examination -- akin to malingering -- as discussed in Tonapetyan. 242 F.3d at 1148 (" lack of cooperation" included one doctor's report that plaintiff showed " poor effort" and another doctor's report that claimant was uncooperative during testing, but " much better" when explaining why she couldn't work).
The ALJ soundly found that Plaintiff's mental health complaints neither constituted a severe impairment nor needed to be incorporated into his RFC. Fair enough, and both results may flow (at least in part) from his failure to show at the psychological exam. But, the ALJ did not offer a legitimate reason to " question the reliability" of Plaintiff's statements regarding his more serious, diagnosed physical conditions. The blanket rejection of Plaintiff's testimony was unwarranted and constitutes error.
Tellingly, the ALJ did not ask Plaintiff any questions about the missed appointment during the administrative hearing. If the ALJ did not find Plaintiff's attendance at the mental health consultative examination to be a relevant topic of direct inquiry with him, it cannot -- without more -- constitute evidence sufficient that a reasonable person would consider " adequate" to support the adverse credibility decision. Burch, 400 F.3d at 679.
The ALJ's other bases for rejecting Plaintiff's testimony are also too meager to merit affirmance. The evaluation of Plaintiff's minimal daily activities was particularly unconvincing. Plaintiff described truly minimal daily activities -- watching television, assisting with laundry, driving locally, walking a block, and lifting " up to ten pounds" -- that the ALJ concluded were consistent with the ability to do " a wide range of light work." (AR 19.) The ALJ's analysis makes no sense, especially because the ability to lift no more than ten pounds at a time is an element in the definition of " sedentary work, " not the light work level that the ALJ set in Plaintiff's RFC. 20 C.F.R. § 404.1567. The mere fact that Plaintiff performed basic daily activities -- without more -- does not undermine Plaintiff's credibility or convincingly demonstrate that he can perform workplace tasks. Vertigan, 260 F.3d at 1049-50. Orn, 495 F.3d at 630.
The ALJ's unexplained conservative-treatment finding fares no better. The medical record indicates that Plaintiff had knee surgery (delayed while waiting for insurance authorization), had epidural injections (although some were not administered due to insurance issues), tried physical therapy, exercises, aquatic therapy, acupuncture, and shock wave therapy, in addition to his medications. (AR 232, 269, 413, 432, 475, 481, 567.) Plaintiff's treating physician reported that Plaintiff " failed conservative treatment" and wanted to proceed with lumbar epidural steroid injections, but it appears that those injections were never authorized or received. (AR 432.) However, after waiting more than a year and a half for authorization, Plaintiff did have surgery on his left knee (for the second time). (AR 34-35, 481, 567.) Conservative treatment? The ALJ failed to convincingly explain how or why in any manner suitable for federal court review. Hill, 698 F.3d at 1159; Parra, 481 F.3d at 746.
Finally, the ALJ was not entitled to broadly state that Plaintiff's testimony was inconsistent with the objective medical evidence. At bottom, that conclusion formed " the sole basis for discounting" the subjective symptom testimony, which is unacceptable under Ninth Circuit law. Burch, 400 F.3d at 681. In rejecting Plaintiff's testimony, the ALJ erred by failing to adequately establish a clear and convincing reason supported by substantial evidence.
IV. REMEDY
The Court concludes that the ALJ committed error in finding that Plaintiff's symptom testimony was not believable and in rejecting Dr. Capen's opinions. Those errors were not harmless. Ludwig, 681 F.3d at 1054
Plaintiff testified about significant personal limitations due to his gout and other physical conditions. Moreover, as the ALJ recognized in discussing the medical opinions, " if accepted as credible, [Dr. Capen's opinion] would indicate that claimant could not perform any kind of work." (AR 20.) The exclusion of Dr. Capen's opinion and Plaintiff's testimony prejudiced him in that it likely could have led to a different result. Id. Remand is therefore warranted.
That leaves the question of remedy. When a court finds that an ALJ improperly rejected the testimony of a claimant or opinion of a treating physician, there is a " three-part credit-as-true standard" that may require the remand of Social Security actions to the agency for the calculation and payment of benefits. Garrison, 759 F.3d at 1020; Burrell, 775 F.3d at 1141. Such a disposition is appropriate when a court determines that:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.
Garrison, 759 F.3d at 1020.
Remand for payment of benefits is appropriate. The ALJ developed the record fully regarding Plaintiff's medical conditions, his testimony, his RFC, and the opinion testimony of the vocational expert. In response to questions from Plaintiff's attorney, the expert opined that Plaintiff was not employable if (as Dr. Capen opined and Plaintiff testified) he were to be off four or more days per month based on his conditions. (AR 50.) If the ALJ were to credit Plaintiff's testimony and Dr. Capen's opinion, Plaintiff would undoubtedly be found disabled and entitled to benefits.
Indeed, because the ALJ established a light work RFC for Plaintiff (even as the important evidence from Plaintiff and the doctor were excluded), this strongly suggests that the ALJ recognized that Plaintiff's disability claim was more than colorable. The Court therefore does not have " serious doubt as to whether Claimant is, in fact, disabled" such that the agency should conduct another hearing. Burrell, 775 F.3d at 1141. In light of the inadequate rejection of a treating physician's opinion and adverse credibility finding described above, further proceedings " would serve no useful purpose" here. The ALJ's error requires that the matter be remanded for the prompt payment of benefits. Garrison, 759 F.3d at 1020.
V. CONCLUSION
The ALJ's decision is VACATED for the reasons stated above. The Court REMANDS the case to the Agency for the calculation and award of disability benefits.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is VACATED, and the matter is REMANDED to the Social Security Administration for the calculation and award of benefits as required by the Court's Order.