Opinion
Case No. CV 14-06858 (GJS)
09-01-2015
JOHN WHITE, III, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
I. PROCEEDINGS
Plaintiff John White, III ("Plaintiff") filed a complaint seeking review of the Commissioner's denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The parties filed consents to proceed before the undersigned United States Magistrate Judge, and motions addressing disputed issues in the case (Plaintiff's Brief, and Memorandum in Support of Defendant's Answer). The Court has taken the motions under submission without oral argument.
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE
DECISION
Plaintiff filed an application for DIB, alleging that he had been disabled since December 10, 2008, due to congestive heart failure and stroke symptoms. (Administrative Record ("AR") 113-14, 155). After an administrative hearing, Plaintiff's application was denied in a written decision by an administrative law judge ("ALJ"). (AR 33-40, 1005-28). The Appeals Council granted review, and remanded the matter for further proceedings. (AR 45-46).
Meanwhile, Plaintiff filed an application for SSI. (AR 141-50). Plaintiff alleged that he had been disabled since November 1, 2008, due to a heart condition, a stroke, two heart attacks, a pacemaker, and cardiomyopathy. (AR 141-50).
Following a supplemental hearing, an ALJ denied benefits in a written decision. (AR 13-22, 1029-53). The ALJ determined that, although Plaintiff has the severe impairments of congestive heart failure, status post myocardial infarction, and status post pacemaker implantation surgery, Plaintiff retains the residual functional capacity ("RFC") to perform a limited range of light work. (AR 15-16). The ALJ found that Plaintiff's limitations preclude the performance of Plaintiff's past relevant work, but not the performance of certain other jobs. (AR 20-21). The Appeals Council denied Plaintiff's request for review. (AR 6-8).
Specifically, the ALJ found that Plaintiff has the ability to: lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk up to 2 hours in an 8-hour workday; and sit without restriction. (AR 16). The ALJ further found that Plaintiff must avoid exposure to heights, heavy machinery and extreme temperatures, and is precluded from crawling, walking on uneven terrain, and climbing ladders, ropes, or scaffolds. (AR 16).
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), the Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971) (citation and quotations omitted); see also Hoopai, 499 F.3d at 1074.
Where, as here, the Appeals Council considered additional material, but denied review, the additional material becomes part of the Administrative Record for purposes of the Court's analysis. See Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence."); Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) (courts may consider evidence presented for the first time to the Appeals Council "to determine whether, in light of the record as a whole, the ALJ's decision was supported by substantial evidence and was free of legal error"); Penny v. Sullivan, 2 F.3d 953, 957 n. 7 (9th Cir. 1993) ("the Appeals Council considered this information and it became part of the record we are required to review as a whole").
IV. DISCUSSION
Plaintiff contends that the ALJ: (1) failed to articulate valid reasons for rejecting the opinion of Plaintiff's treating cardiologist, Howard Baik, M.D.; and (2) failed to properly consider the side effects of Plaintiff's medication. (Plaintiff's Brief at 4-10). As set forth below, the Court agrees with Plaintiff, in part, and remands the matter for further proceedings.
A. Dr. Baik
Dr. Baik began treating Plaintiff for severe dilated cardiomyopathy and congestive heart failure in March 2009. (AR 410, 815-19, 825). Plaintiff had a history of prior heart attacks and stroke, and underwent pacemaker implantation surgery in May 2009. (AR 201-08, 214, 816). Dr. Baik prescribed a variety of medications to treat Plaintiff's heart conditions, including Coreg (carvedilol), a beta blocker. (AR 417, 458, 545, 608, 736, 795, 805, 817, 999). Although Coreg caused Plaintiff significant fatigue, Dr. Baik prescribed increasingly high doses of the medication to manage Plaintiff's conditions. (AR 415, 417-18, 544, 736, 738, 795, 800, 805, 819, 997, 999).
Dr. Baik issued three opinions addressing Plaintiff's ability to perform work-related functions. In August 2010, Dr. Baik wrote a letter stating that Plaintiff's heart function was approximately one-third of the normal function. (AR 413). Dr. Baik opined that Plaintiff would "not be able to perform continuous physical work that requires 8 hours per day and 40 hours per week," and "will likely require 1.5 to 2 hours of rest after 4 hours of work." (AR 413). In December 2010, Dr. Baik completed a cardiac impairment questionnaire. (AR 415-20). Dr. Baik reported positive clinical findings of fatigue and symptoms of knee pain and muscle cramps. (AR 415-16). Dr. Baik noted that Plaintiff's echocardiogram supported the diagnosis of cardiomyopathy. (AR 416). Dr. Baik assessed Plaintiff with the ability to sit 6 hours in an 8-hour workday, stand/walk 4 to 5 hours in an 8-hour workday, and lift and carry 20 to 50 pounds occasionally. (AR 417-18). Dr. Baik also found that Plaintiff would be absent from work about two to three times a month and that Plaintiff's problems with pain, fatigue or other symptoms would interfere with Plaintiff's attention and concentration periodically. (AR 418). In October 2012, Dr. Baik wrote a letter stating that Plaintiff experiences side effects from the high doses of medication that he takes. (AR 993). Dr. Baik described Plaintiff's main symptom as fatigue, and noted that it "may interfere with his performing [ ] full time work." (AR 993).
A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion. . . . This is especially true when the opinion is that of a treating physician") (citation omitted). Even where the treating physician's opinion is contradicted, "if the ALJ wishes to disregard the opinion[s] of the treating physician he . . . must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted); see also Orn v. Astrue, 495 F.3d 625, 631-33 (9th Cir. 2007) (explaining that deference still owed to treating physician's opinion even if contradicted by other physician's opinion).
Plaintiff claims the ALJ rejected Dr. Baik's opinion without stating legally sufficient reasons for doing so. (AR 17-20). The Court agrees.
First, the ALJ found that Dr. Baik's opinion regarding Plaintiff's work-related limitations was inconsistent with the evidence of record. (AR 19). The ALJ summarized the medical record, and emphasized facts suggesting that Plaintiff's heart conditions had little effect on his body systems. (AR 18). The ALJ also noted that Dr. Baik had discontinued Plaintiff's prescription of nitroglycerin, and reported Plaintiff's heart failure as "stable" and cardiomyopathy as "resolved." (AR 18, 738, 999). However, the ALJ's focus on the absence of clinical findings and symptomatology associated with Plaintiff's heart conditions is not a legally sufficient basis for rejecting Dr. Baik's opinion, because Dr. Baik asserted that Plaintiff's fatigue was the primary condition interfering with Plaintiff's ability to perform full time work. (AR 415, 993). In other words, Plaintiff's medical records do not conflict with or otherwise detract from Dr. Baik's opinion that Plaintiff experienced significant fatigue, as a side effect of his beta blocker medication (Coreg). (AR 415, 544, 993, 999). Thus, the ALJ's conclusion that Dr. Baik's opinion is inconsistent with the medical record is not supported by substantial evidence.
The ALJ noted that Plaintiff's medical records indicated no signs of ischemia, shortness of breath, orthopnea, chest pain, or dizziness, a slightly reduced to normal ejection fraction, mild cardiomegaly without acute processes, occasional tenderness in the heart wall with normal heartrate, rhythm, heart sounds, and pulses, a relatively normal brain imaging scan, no signs of lower extremity edema, normal gait and coordination, a properly functioning pacemaker, an international normalized ratio within normal limits, and stable white blood cell count. (AR 18).
The ALJ additionally found that the opinions of the examining internist, Dr. Afra, and the state agency medical consultant, Dr. Chiang, were inconsistent with Dr. Baik's opinion. (AR 19, 251-62). The ALJ attributed significant weight to Dr. Afra's and Dr. Chiang's findings that Plaintiff was capable of performing a range of light work. (AR 19); see 20 C.F.R. §§ 404.1567(b) ("Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds."), 416.967(b) (same). However, the contradiction of a treating physician's opinion by another physician's opinion triggers rather than satisfies the requirement of stating "specific, legitimate reasons." See Valentine v. Commissioner, 574 F.3d 685, 692 (9th Cir. 2009) ("to reject the opinion of a treating physician 'in favor of a conflicting opinion of an examining physician[,]' an ALJ still must 'make [ ] findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record'") (quoting Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)); Winans, 853 F.2d at 647; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Thus, the ALJ's reliance on Dr. Afra's and Dr. Chiang's contrary findings does not justify rejection of Dr. Baik's opinion.
Second, the ALJ asserted that Dr. Baik's opinion was "without substantial support from the other evidence of record." (AR 19). However, as discussed above, Dr. Baik's opinion that Plaintiff had an impaired ability to perform full-time work was based primarily on Plaintiff's problems with fatigue. (AR 993). There are several notations in the medical record linking Plaintiff's fatigue with his use of medication. (AR 306, 993, 997, 999). The ALJ does not identify how Dr. Baik's clinical findings fail to support his opinion. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (finding that rejecting the treating physician's opinion on the ground that it was contrary to clinical findings in the record was "broad and vague, failing to specify why the ALJ felt the treating physician's opinion was flawed"). In the decision, the ALJ simply dismissed Plaintiff's complaints of fatigue by noting that "Dr. Baik did not reduce his dosage or discontinue the [beta blocker] medication." (AR 18). However, there is no indication in the record that reducing the dosage of Plaintiff's beta blocker medication was a reasonable way to treat Plaintiff's heart conditions. Rather, the record shows that Dr. Baik found that Plaintiff's conditions called for increasing dosages of Coreg over time, despite the significant side effect of fatigue. (AR 415, 417-18, 544, 736, 738, 795, 800, 805, 819, 997, 999). Thus, the lack of objective medical evidence is not a specific, legitimate basis for rejecting Dr. Baik's opinion.
Third, the ALJ found that Dr. Baik's opinion may have contained a conclusory legal assertion of disability. (AR 19). Although the ultimate issue of disability is reserved to the Commissioner, the ALJ still must set forth specific, legitimate reasons for rejecting a treating physician's opinion that a claimant is disabled. See Rodriguez, 876 F.2d at 762 n. 7 ("We do not draw a distinction between a medical opinion as to a physical condition and a medical opinion on the ultimate issue of disability."); Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ("In disability benefit cases such as this, physicians may render . . . opinions on the ultimate issue of disability - the claimant's ability to do work").
Finally, the ALJ asserted that Dr. Baik's opinion, as set forth in the October 2012 letter was vague, as it indicated that Plaintiff's fatigue "may interfere" with his ability to perform full time work. (AR 19-20, n. 1). However, if the ALJ found Dr. Baik's opinion too vague, she should have made attempts to clarify the extent of Plaintiff's limitations. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("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.") (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)).
In sum, the ALJ rejected Dr. Baik's opinion without stating specific, legitimate reasons for doing so.
The Court declines to address Plaintiff's remaining claim regarding the side effects of his medication, as reconsideration of Dr. Baik's opinion may resolve this issue on remand. --------
V. CONCLUSION AND ORDER
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"). But when there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id.
The Court finds that remand is appropriate because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors. See INS v. Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 154 L.Ed.2d 272 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, "except in rare circumstances"); Treichler v. Commissioner, 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is inappropriate where "there is conflicting evidence, and not all essential factual issues have been resolved"); Harman, 211 F.3d at 1180-81. It is not clear that the ALJ would be required to find Plaintiff disabled even if Dr. Baik's medical opinion regarding the effect of fatigue on Plaintiff's ability to work was fully credited. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (court will credit-as-true medical opinion evidence only where, inter alia, "the record has been fully developed and further administrative proceedings would serve no useful purpose").
IT IS THEREFORE ORDERED that Judgment be entered reversing the Commissioner's decision and remanding this matter for further administrative proceedings consistent with this Memorandum Opinion and Order.
DATED: September 01, 2015
/s/_________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE