Rose v. Astrue

Filing 29

ORDER and OPINION granting 16 Plaintiff's MOTION for Summary Judgment. This case will be remanded to the Commissioner for further proceedings notinconsistent with this opinion. Signed by Judge Timothy M. Burgess on 8/3/11. (DMT) *Modified on 8/4/2011 to add text* (DMT).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
KAREN ROSE,
Plaintiff,

Case No. 2:09-cv- 02074 - PHX - TMB

vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

ORDER AND OPINION

Defendant.

I. MOTION PRESENTED
Plaintiff Karen Rose (“Rose”) applied to the Social Security Administration (“SSA”) for
disability insurance benefits and SSI in March of 2003.1 After an unfavorable final judgment by
the SSA, Rose sought judicial review, pursuant to which case was remanded because the
Administrative Law Judge (“ALJ”) had failed to apply the law correctly in making evidentiary
and credibility findings.2 On remand, the ALJ again issued an unfavorable decision,3 and the
Appeals Council denied review.4 Rose filed a complaint challenging the second final decision of
the SSA.5 Thereafter, Rose filed a motion for summary judgment at docket 16 requesting that the
case be remanded to SSA for award of benefits. Defendant Michael J. Astrue (“Commissioner”)
filed a motion objecting to remand at Docket 17. Rose replied to the Commissioner’s motion at

1

Docket 1; Administrative Record (“AR”) 63-64.

2

AR 484-516.

3

AR 14-25.

4

AR 8-10.

5

Docket 1.

Docket 28. For the reasons stated below, the case is remanded for new proceedings.6

II. RELEVANT BACKGROUND
Rose filed applications for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). After being denied initially and on reconsideration, an ALJ denied her
claim in a decision dated May 23, 2005. When the Appeals Council denied her request for
review, the ALJ’s decision became the final decision of the Commissioner,7 and Rose timely
filed a request for review.8
On review, the United States District Court for the District of Arizona reversed the
Commissioner’s final decision.9 The Court held on remand that “the ALJ made only general
findings that Plaintiff was not credible” because they were not supported by objective medical
evidence and that “the ALJ did not state that Dr. Gibson’s opinion was contradicted[,] only that
the limitations assessed by Dr. Gibson were not supported by her records or the remainder of the
record,” which was not a “specific and legitimate” reason for discounting the opinion of a
treating physician, especially as “the ALJ’s reasoning was cursory and the record contains
substantial evidence supporting [Dr.] Gibson’s assessment.”10 The ALJ was instructed on

6

Oral argument was not requested and would not assist the court.

7

Baston v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193 n.1 (9th Cir. 2004)
(citing 20 C.F.R. §404.981).
8

42 U.S.C. §405(g).

9

CV 06-1885-PHX-EHC, Jan. 26, 2008.

10

AR 515.
2

remand to reassess Rose’s testimony and credit Dr. Gibson’s assessment, and accordingly to
reassess Rose’s residual functional capacity (“RFC”).
After a second hearing on June 16, 2008, the ALJ issued a second unfavorable decision
dated August 28, 2008.11 The second decision was substantially similar to the first, as
demonstrated by the plaintiff’s brief at Dkt. 16, pages 3-5. Again finding Rose not credible, the
ALJ on remand determined that objective medical evidence did support some impairment, but
not to the extent alleged.12 Having found Rose not credible, and having assigned Dr.
Greenfield’s assessment greater weight than Dr. Gibson’s assessment (both doctors were treating
physicians), the ALJ found that Rose’s RFC permitted her to return to her previous employment,
and was thus not disabled.13
Rose was 63 years old at the last date insured, with some college education and past
relevant work as a certified legal assistant and administrative assistant/application specialist.14
Rose injured her right knee in a 1994 fall, which degenerated over the next several years.15
Rose’s left knee and back also worsened over the next several years.16 In June of 2001 she
stopped working.

11

AR 704-742, 457-467.

12

AR 464-65.

13

AR 465-66.

14

AR 63, 81, 413-14, 710-11, 77, 85-90, 95-102, 415-17, 721-25.

15

AR 417-19.

16

Id.
3

III. STANDARD OF REVIEW
The Social Security Act provides for payment of DIB to people who have contributed to
the Social Security program and who suffer from a physical or mental disability.17 Upon denial
of disability benefits after a hearing by an Administrative Law Judge (“ALJ”), a claimant may
request that the SSA Appeals Council review the ALJ’s decision.18 A person is not disabled if he
or she is capable of engaging the “substantial gainful work which exists in the national
economy.”19
On de novo review, a district court may enter, upon the pleadings and a transcript of the
record, a judgment affirming, modifying, or reversing the ALJ’s decision, with or without
remanding the case for a rehearing.20 On de novo review, the district court may enter, upon the
pleadings and a transcript of the record, a judgment affirming, modifying, or reversing the ALJ’s
decision, with or without remanding the case for a rehearing.21 The district court must uphold the
ALJ’s decision if it is supported by substantial evidence and the ALJ has applied the correct legal
standards.22 When the claimant is clearly disabled, the claimant is entitled to benefits, and the

17

42 U.S.C. § 423(a)(1).

18

20 C.F.R. § 404.967.

19

42 U.S.C. § 423(d)(2).

20

42 U.S.C. §405(g).

21

Id.

22

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2001). See also
Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d
1197, 1200 (9th Cir. 1990)).
4

Court may direct the Agency to award them on remand.23

IV. DISCUSSION
Rose objects to the ALJ’s credibility determination and evaluation of the medical
evidence, especially that of Dr. Gibson, whose opinion the ALJ had been ordered to credit on
remand but discounted with vague and legally impermissible reasons. This Court agrees with
both objections and will remand for the reasons explained below. On remand the ALJ is directed
to credit Dr. Gibson’s assessment and to reevaluate the testimony given by Rose in the second
hearing held on June 16, 2008. The ALJ is directed to make an RFC finding consistent with the
opinions on record of both treating physicians Drs. Gibson and Greenfield. If the ALJ’s RFC
finding varies from either opinion, the ALJ is directed to clearly state what legally permissible
reason for the discrepancy exists. Based on this new RFC finding, the ALJ may then rely on the
June 16, 2008 vocational expert testimony or hold any further proceedings necessary to
determine whether Rose can return to past relevant work or obtain other substantial gainful
employment.

1. Rose’s June 16, 2008 Testimony Should Have Been Found Credible
Rose made the following pertinent statements that the ALJ found not credible to the
extent that they differed from the RFC finding. In her March 2003 disability report, she reported
that the pain in her right knee prevented extended periods of sitting, standing, and propping her

23

Strauss v. Comm’r of Soc. Security, __ F.3d __, 2011 WL 1108221 (C.A.9 (Or.)) (citing
Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir.2004).
5

knee, and that varicose veins in her right leg similarly restricted her ability.24 A self-reported
questionnaire dated May 27, 2003 indicates that she had trouble cleaning herself or her house.25
She could shop for groceries and wash laundry with assistance from her husband, and run errands
by herself.26 She was reported to have worsened on reconsideration, with more pain and poor
sleep leading to less energy.27 By December of 2003, she exercised her back and knee daily, still
prepared meals, but needed more help from her husband to perform activities of daily living.28
At her March 23, 2005 hearing, she testified that she had to cut back her hours at work
due to difficulties sitting and walking up stairs after knee issues from her two falls and back
problems.29 She also reported developing varicose veins in her right leg and arthritis in her neck
and right hand.30 She stated that she had cut her work to part-time due to pain around 2000, and
stopped working to see if she could recover in 1999 and then again in 2001, but that her pain still
grew progressively throughout the day.31 Her testimony at the second hearing, held on June 16,
2008, was substantially similar, although Rose reported that the varicose veins in her right leg

24

AR 84.

25

AR 103-04.

26

Id.

27

AR 108, 111.

28

AR 115-16.

29

AR 417-19.

30

AR 422-23.

31

AR 428-30.
6

had become more discomforting, causing her to have more trouble sitting for long periods.32
The ALJ found that Rose’s testimony concerning the “intensity, persistence and limiting
effects of [her] symptoms” were not credible to the extent that they differed from the decision’s
RFC finding “for the reasons stated below.”33 The Commissioner argues that the ALJ’s
interpretation of the evidence is reasonable and supported by substantial evidence, although fails
to explicate (and this Court could not find) what testimony was not credible and what evidence
undermined it. The ALJ apparently believed that Rose’s thrice weekly rehabilitative exercise,
reported lack of “acute distress,” holiday meal preparation leading to right shoulder pain, and
prescription to ambulate on the plane if traveling indicated that Rose was not limited to the
extent she alleged.34
Interpreting these agency regulations and rulings, the Ninth Circuit has held that it is the
prerogative of the ALJ to evaluate the claimant’s credibility.35 “Generally, questions of
credibility and resolution of conflicts in testimony are functions solely for the agency.”36 That
said, the case can be remanded because the ALJ failed to explain how this evidence related
specifically to any testimony.37 Alternatively, it should be remanded because the evidence
identified by the ALJ does not undermine Rose’s testimony, which admitted to exercise, travel
and meal preparation. The ALJ "cannot insulate ultimate conclusions regarding disability from
32

AR 717-30.

33

AR 465-66.

34

Id.

35

Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).

36

Id.

37

Social Security Ruling (SSR) 96-7p, available at 1996 WL 374186, at *4.
7

review by turning them into questions of 'credibility.' "38 It is not enough to merely list multiple
factors to discredit pain testimony without explaining how those factors affected the claimant's
credibility.39 The ALJ’s finding is not supported by substantial evidence, and the decision is
legally insufficient because it fails to explain how the ALJ arrived at his findings.40 The decision
does not make a reasonable inference from the evidence and is reversed.

2. The ALJ Failed to Properly Credit the Assessment of Dr. Gibson As Previously Directed
On first remand, the ALJ was instructed to treat Dr. Gibson’s opinion statement favorably
to Rose. Yet the second decision again relies on a comparison of Dr. Gibson’s opinion to
treating physician Dr. Greenfield, who diagnosed a less serious impairment to Rose’s knees, back
and shoulder. The ALJ did not explicitly resolve the discrepancies Drs. Greenfield, McPhee, and
Gibson’s assessments of Rose’s impairments or explain how the discrepancies between these
assessments were resolved. The ALJ must set out a " 'detailed and thorough summary of the
facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.' "41
The ALJ is not required to discuss each item of evidence, but he must explain why "significant
probative evidence has been rejected."42 But the ALJ, largely without explication and in

38

Jones v. Heckler, 760 F.2d 993, 997 (9th Cir.1985); see also Hammock v. Bowen, 867
F.2d 1209, 1214 (9th Cir.1989).
39

40

Cooper v. Sullivan, 880 F.2d 1152, 1158 n. 13 (9th Cir.1989).
Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir.2001).

41

Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983); Morgan, 169 F.3d at 600-01
(quoting Magallanes, 881 F.2d at 750).
42

Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984).
8

violation of the remand order, made an RFC finding that largely contradicts Dr. Gibson. An ALJ
effectively rejects a treating physician's opinion where he ignores it in his opinion and makes
contrary findings. "[The] failure to offer reasons for doing so [is] legal error."43
The RFC finding did not include specific and legitimate reasons for crediting Dr.
Greenfield’s opinion while ignoring the remand instructions to treat Dr. Gibson’s opinions with
deference. The Commissioner’s decision is reversed with instructions to defer to Dr. Gibson’s
medical opinion. If the ALJ’s RFC finding varies from Dr. Gibson’s opinion, the ALJ must give
a legally permissible reason for the variance.

V. CONCLUSION
For the reasons set forth above, the Plaintiff’s Motion for Summary Judgment at Docket
16 is GRANTED. This case will be remanded to the Commissioner for further proceedings not
inconsistent with this opinion.
DATED, this 3rd day of August, 2011.
/s/ Timothy M. Burgess
JUDGE TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE

43

Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir.1996).
9