Opinion
For Jennifer Sueann Zamora, Plaintiff: Harvey P Sackett, LEAD ATTORNEY, Sackett and Herrera, Of Counsel Olinsky Law Group, Syracuse, NY.
For Carolyn W Colvin, acting Commissioner of Social Security, Defendant: Sundeep R Patel, LEAD ATTORNEY, SAUSA - Office of the United States Attorney, 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
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint on June 11, 2014, seeking review of the Commissioner's denial of her application for Supplemental Security Income (" SSI"). In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on March 25, 2015. 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 applied a presumption of continuing nondisability pursuant to Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). (Jt. Stip. 5-12.)
2. Whether the ALJ properly evaluated the medical evidence. (Jt. Stip. 12-27.)
3. Whether the ALJ properly assessed plaintiff's credibility. (Jt. Stip. 27-37.)
4. Whether the ALJ posed a complete hypothetical to the vocational expert (" VE"). (Jt. Stip. 37-42.)
DISCUSSION
I. Reversal is not warranted based on the ALJ's misapplication of Chavez v. Bowen .
Plaintiff contends that the " ALJ misapplied the ruling of Chavez v. Bowen and improperly determined that [plaintiff] 'failed to rebut the presumption of continuing non disability by showing changed circumstances indicating a greater disability in her subsequent claim.'" (Jt. Stip. 5-6.) Plaintiff maintains that the " ALJ overlooked the increasing severity of Plaintiff's musculoskeletal impairments." (Jt. Stip. 6.)
Res judicata applies if the Commissioner has " made a previous determination or decision . . . about [a claimant's] rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action." 20 C.F.R. § § 404.957(c)(1) & 416.1457(c)(1). A previous final determination of nondisability creates a presumption of continuing nondisability with respect to any subsequent unadjudicated period of alleged disability. See Chavez, 844 F.2d at 693; Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996) (as amended); Social Security Acquiescence Ruling (" SSAR") 97-4(9), 1997 WL 742758.
The Commissioner issues SSARs when a " United States Court of Appeals['] holding conflicts with [the Commissioner's] interpretation of a provision of the . . . Act or regulations[.]" 20 C.F.R. § 416.1485(b). SSARs are " binding on all components of the Social Security Administration[.]" Id. at § 402.35(b)(2); accord Pinto v. Massanari, 249 F.3d 840, 844 n. 3 (9th Cir. 2001).
This presumption may be overcome by a showing of " changed circumstances." Chavez, 844 F.2d at 693; Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). To show " changed circumstances, " the evidence must establish that the claimant suffers from an impairment that indicates a greater disability since the prior decision denying benefits. Chavez, 844 F.2d at 693. In other words, the presumption of nondisability does not apply if the claimant raises an issue not considered in the previous decision, such as the existence of a new impairment, or demonstrates an increase in the severity of an impairment, either one of which adversely affects her residual functional capacity (" RFC"). See Lester, 81 F.3d at 827.
At the beginning of his decision, the ALJ explained that plaintiff " filed a prior application for [SSI], " which was denied in a hearing decision dated February 18, 2011. (AR 20, AR 63-38.) The ALJ then stated that plaintiff " failed to rebut the presumption of non-disability" resulting from the previous denial, and noted that plaintiff's unadjudicated period began on April 18, 2011, the date her application was filed. (AR 20-21; see AR 73.) Nonetheless, the ALJ did not give preclusive effect to the first ALJ's determinations, such as the RFC found in the prior denial. Instead, the ALJ assessed that plaintiff retained the RFC to
The ALJ mistakenly refers to the date of the prior ALJ decision as May 18, 2011. (See AR 20, AR 63-68.)
perform light work . . . except [plaintiff] is limited to walking for 2 hours out of an 8-hour workday and sitting for 6 hours out of an 8-hour workday. She can lift and carry 20 pounds occasionally and 10 pounds frequently. She cannot work at unprotected heights; she cannot balance, work with vibration or climb ladders. She cannot kneel or crawl. She can occasionally stoop, bend, and climb, and she can occasionally climb ladders and stairs.
The ALJ makes a contradictory RFC determination by finding that plaintiff " cannot . . . climb ladders" and that she " can occasionally climb ladders." (AR 23.) However, it is clear from the hearing transcript that the ALJ meant to preclude plaintiff from climbing ladders. (AR 57-58 (posing hypothetical to VE containing a restriction from climbing ladders).)
(AR 23.)
In contrast, in the prior hearing decision, dated February 18, 2011, the first ALJ found plaintiff could:
perform light work . . . except she can lift 20 pounds occasionally and 10 pounds frequently. She can sit without restrictions, with normal breaks, and stand and/or walk 6 hours of an 8-hour workday, with normal breaks. She can perform occasional postural activities but no ladders[, ] ropes or scaffolds, and no work at unprotected heights.
(AR 65, AR 68.)
Here, plaintiff claims that an increase in severity of her musculoskeletal impairments existed, and the ALJ erred in finding plaintiff failed to rebut the presumption of continuing non-disability. (See Jt. Stip. 6.) Defendant concedes and " does not dispute that Plaintiff overcame the continued presumption of non-disability." (Jt. Stip. 11.) The Court concludes that even if the ALJ erred in applying Chavez, that error was harmless. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (any error is harmless where it does not negate the validity of the ALJ's ultimate conclusion). Despite the ALJ's statement that plaintiff " failed to rebut the presumption of non-disability, " (AR 20), the ALJ continued the sequential decision making process, and weighed plaintiff's medical evidence and made a full assessment of plaintiff's RFC. (See AR 23-28); Cha Yang v. Comm'r of Soc. Sec. Admin., 488 Fed.Appx. 203, 204 (9th Cir. 2012) (explaining that the ALJ misapplied Chavez, in " formulating Yang's [RFC], however, the ALJ in fact weighed Yang's medical evidence" and any " error was therefore harmless"); Payne v. Colvin, 2014 WL 348455, at *7 (E.D. Cal. Jan. 31, 2014) (finding any error in ALJ's misapplication of Chavez to be harmless as ALJ made full assessment of claimant's RFC and weighed each medical opinion). In fact, the ALJ found a more restrictive RFC than that found in the prior claim. (Compare AR 23 with AR 65); see Belcher v. Astrue, 2010 WL 2353524, at *8 (E.D. Cal. June 9, 2010) (finding ALJ's failure to cite to claimant's changed circumstances and misapplication of Chavez to be harmless error since ALJ thoroughly reviewed medical evidence and imposed additional limitations); Ward v. Colvin, 2014 WL 2197862, at *4 (W.D. Wash. May 27, 2014) (finding any misapplication of Chavez on part of ALJ to be harmless error since ALJ found a more restrictive RFC than the RFC from claimant's prior claim). In other words, even if the ALJ correctly found that plaintiff's changed circumstances rebutted the presumption of continuing non-disability, the ALJ would have had to go forward and review the medical evidence, as he did despite his error.
Plaintiff argues that the error is not harmless because " the ALJ's decision . . . unequivocally states that it is not considering the relevant period (i.e. the day after the former ALJ's [decision])." (Jt. Stip. 12.) Plaintiff's argument is inapposite. The ALJ correctly stated that the " prior decision is final and is not reopened or revised" and " consideration of evidence from the previously adjudicated period was done only for the purpose of evaluating the current and material period of alleged disability." (AR 20.) The relevant and unadjudicated period began on the filing date of plaintiff's application. SSI benefits are not payable prior to the application date, and plaintiff does not contend that there is a basis for reopening the first ALJ's unfavorable decision. See Social Security Ruling (" SSR") 83-20, 1983 WL 31249, at *1 (SSI payments " are prorated for the first month for which eligibility is established after application and after a period of ineligibility.") (emphasis added); 20 C.F.R. § 416.202(g) (requiring a claimant to file an application for SSI benefits to become eligible for SSI).
Thus, Disputed Issue One does not warrant reversal of the Commissioner's decision.
II. Reversal is warranted based on the ALJ's evaluation of the medical evidence .
In Disputed Issue Two, plaintiff argues that the ALJ's RFC determination is not supported by substantial evidence. (Jt. Stip. 12.) Specifically, plaintiff complains that the ALJ did not assign proper weight to the opinion of treating physician Keolanui G. Chun, M.D. (" Dr. Chun"). (Jt. Stip. 13-16.) Plaintiff also contends that the ALJ erred in relying on the opinion of Jerome F. Wall, M.D. (" Dr. Wall") because his " statement regarding Plaintiff's capacity for work related activities was more conjecture than fact." (Jt. Stip. 16.) Further, plaintiff maintains that the ALJ " stated that he gave greatest weight to [the opinion of Jack H. Akmakjian, M.D. (" Dr. Akmakjian"), h]owever, the ALJ did not include in his [RFC] determination all of the limitations Dr. Akmakjian identified." (Jt. Stip. 17.)
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, 81 F.3d at 830. 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 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 2008 through 2012, Dr. Chun treated plaintiff in connection with work-related injuries she suffered when she was employed as an in-home support services medical attendant. (See AR 415-37, AR 455-66, AR 473-76, AR 505-553, AR 632-36, AR 869-70, AR 876-884, AR 899; see also AR 992-99.) On January 26, 2012, Dr. Chun completed a RFC Questionnaire on behalf of plaintiff. (AR 918-19.) In the questionnaire, Dr. Chun diagnosed plaintiff with isthmic spondylolisthesis and indicated that she suffered from lower back pain. (AR 918.) He reported that plaintiff also suffered from side effects from her medication, including dizziness, drowsiness, sedation, and upset stomach. (Id.) He opined she could sit for one hour in an eight-hour day, and stand/walk for one hour in an eight-hour workday. (Id.) He also determined that plaintiff could occasionally lift and carry less than ten pounds, but could not lift anything heavier. (AR 919.)
Spondylolisthesis is the " [f]orward movement of the body of one of the lower lumbar vertebrae on the vertebra below it, or on the sacrum." Stedman's Medical Dictionary, 840330 (2014). Isthmic is defined as " [d]enothing an anatomical isthmus." Id., 460180.
From 2011 through 2012, Dr. Wall treated plaintiff in connection with her work-related injuries. (AR 880-98, AR 911-16, AR 937-50.) On January 24, 2012, Dr. Wall completed a primary treating physician's permanent and stationary evaluation of plaintiff. (AR 937-40.) Based on an orthopedic examination and x-rays, Dr. Wall opined that plaintiff would be unable " to perform work activities where she would be doing prolonged standing, activities requiring repetitive squatting, kneeling, crawling, running, jumping, or twisting." (AR 938-39.) He also noted that " [p]ostoperatively, [plaintiff] has done very well, " (AR 937), but should " continue on a muscle strengthening program." (AR 939.)
Dr. Akmakjian examined plaintiff on a number of occasions in 2007 and 2008 in relation to her work-related injuries. (See AR 388-414.) Subsequently, on June 29, 2012, Dr. Akmakjian performed an Agreed Medical Reexamination. (AR 981-1002.) Following an extensive review of the medical record and a physical examination, Dr. Akmakjian opined that plaintiff should avoid heavy work with respect to her lumbar spine, and avoid repetitive kneeling, crawling, climbing, pivoting, turning and twisting, and squatting. (AR 1000.) Dr. Akmakjian found no other work restrictions. (Id.)
The ALJ assigned " little weight" to Dr. Chun's opinion, " some weight" to Dr. Wall's opinion, and " the greatest weight to Dr. Akmakjian's opinion." (AR 25, AR 26, AR 27-28.) The Court concludes the ALJ failed to properly evaluate the medical evidence.
First, although the ALJ stated that he assigned the " greatest weight to Dr. Akmakjian's opinion, " the ALJ failed to include the limitations opined by Dr. Akmakjian in formulating plaintiff's RFC. For example, Dr. Akmakjian found that plaintiff should avoid " repetitive . . . pivoting, turning and twisting, and . . . squatting." (AR 1000.) However, the ALJ failed to include these limitations in his RFC determination. (See AR 23 (ALJ finding plaintiff should avoid unprotected heights, cannot balance, work with vibration or climb ladders, kneel or crawl).) Accordingly, the ALJ's RFC determination is not supported by substantial evidence.
Second, the ALJ rejected Dr. Chun's opinion because " there are no treatment records from Dr. Chun['s] office, which indicate he has an ongoing treatment relationship with [plaintiff]." (AR 28.) However, Dr. Chun treated plaintiff since 2008, and the record includes treatment notes from the relevant time period, i.e., treatment notes dated April 4, 2011, and prescription notes dated July 3, 2012. (AR 884, AR 933.) More importantly, both Dr. Wall and Dr. Akmakjian referred to Dr. Chun's continued treatment of plaintiff on numerous occasions and Dr. Akmakjian summarized treatment notes made by Dr. Chun in 2012. (See AR 949 (treatment note, dated December 19, 2011, from Dr. Wall indicating that " Dr. Chun has recommended taking out her surgical me[t]al in the back"), AR 995-999 (examination report, dated June 29, 2012, from Dr. Akmakjian summarizing reports from Dr. Chun dated in 2011 through 2012).) Thus, the ALJ erred in rejecting Dr. Chun's opinion based on this reason.
Third, plaintiff contends that the ALJ erred in relying partially on Dr. Wall's opinion because his opinion " was more conjecture than fact" and Dr. Wall " recognized that Plaintiff could experience increasing symptoms and that if she did so he recommended that Plaintiff would need to consider further treatment and possible surgery." (Jt. Stip. 16.) The Court agrees. In his evaluation, dated January 24, 2012, Dr. Wall stated that " [i]f there would be increasing symptoms [plaintiff] would need to consider further workup and possible surgery." (AR 939.) Similarly, on June 29, 2012, Dr. Akmakjian reported that he " feel[s plaintiff] is permanent and stationary, " but elaborated that the " more difficult situation is with both knees." (AR 999.) Dr. Akmakjian also noted that " [u]pdated MRI studies of both knees and lower back are needed." (AR 1001.) Following both physicians' opinions, treatment notes show that plaintiff complained of knee swelling on June 5, 2012, had her knee drained of fluid following this date, and subsequently complained of more swelling and pain in her knee on July 18, 2012. (AR 953-57.) Accordingly, the ALJ's reliance on Dr. Wall's opinion was misplaced. In any event, the Court notes that the ALJ failed to include all of the limitations opined by Dr. Wall, nor did he indicate which limitations he rejected and provide specific and legitimate reasons for doing so. (Compare AR 939 with AR 23.)
Permanent and stationary is a term used in workers' compensation and is defined as " the point when the employee has reached maximal medical improvement his or her condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment." Cal. Code Regs. tit. 8, § 9811(i).
Thus, Disputed Issue Two warrants reversal of the Commissioner's decision.
III. The remaining issues may be resolved upon further proceedings .
Plaintiff's remaining claims are directly implicated by the resolution of Disputed Issue Two. Resolution of Disputed Issues Three and Four-- in which plaintiff challenges the ALJ's credibility and step five determinations -- is dependent on a proper evaluation of the medical evidence. See Struck v. Astrue, 247 Fed.Appx. 84, 86-87 (9th Cir. 2007) (credibility findings are reviewed in light of the record as a whole); Hayes v. Astrue, 270 Fed.Appx. 502, 505 (9th Cir. 2008) (RFC findings are reviewed in light of the record as a whole). Accordingly, the Court declines to determine their merits as they may be addressed appropriately by the ALJ as they arise upon further 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.
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.
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.