Lazzell v. Astrue

Filing 26

ORDER Defendant's decision denying benefits is reversed. The case is remanded to Defendant for an award of benefits. The Clerk is directed to enter judgment accordingly. Signed by Judge David G Campbell on 6/30/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Lazzell,

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No. CV-10-1659-PHX-DGC
Plaintiff,

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vs.

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ORDER

Michael J. Astrue, Commissioner of Social
Security,

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Defendant.

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Plaintiff suffers from back and other injuries sustained in a motorcycle accident.

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He also has diabetes and is morbidly obese. He applied for disability benefits and

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supplemental security income in March 2007, claiming to be disabled since February 21,

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2007. Doc. 11, Tr. 109-22. The application was denied. Tr. 63-70, 78-84. A hearing

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before an Administrative Law Judge (ALJ) was held on June 25, 2009. Tr. 35-58. The

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ALJ issued a written decision on September 11, 2009, finding Plaintiff not disabled

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within the meaning of the Social Security Act.

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Defendant’s final decision when the Appeals Council denied review. Tr. 1-3.

Tr. 23-34.

This decision became

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Plaintiff then commenced this action for judicial review pursuant to 42 U.S.C.

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§ 405(g). Doc. 1. For reasons that follow, the Court will reverse Defendant’s decision

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and remand for an award of benefits.1

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Plaintiff’s request for oral argument is denied because the issues have been fully briefed
(Docs. 16, 22, 25) and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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I.

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Standard of Review.
The Court has the “power to enter, upon the pleadings and transcript of record, a

judgment affirming, modifying, or reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
Commissioner’s decision to deny benefits “should be upheld unless it is based on legal
error or is not supported by substantial evidence.” Ryan v. Comm’r of Soc. Sec., 528 F.3d
1194, 1198 (9th Cir. 2008).

In determining whether the decision is supported by

substantial evidence, the Court “must consider the entire record as a whole and may not
affirm simply by isolating a ‘specific quantum of supporting evidence.’” Id.
II.

Discussion.
Whether a claimant is disabled is determined using a five-step evaluation process.

To establish disability, the claimant must show (1) he has not worked since the alleged
disability onset date, (2) he has a severe impairment, and (3) his impairment meets or
equals a listed impairment or (4) his residual functional capacity (RFC) precludes him
from performing his past work. At step five, the Commissioner must show that the
claimant is able to perform other work. See 20 C.F.R. §§ 404.1520, 416.920.
Plaintiff has met his burden. He has not worked since February 21, 2007. Tr. 25,
¶ 2. He has multiple severe impairments: status post motorcycle accident, subdural
hematoma, cervical disc bulging with possible fracture, lumbar and thoracic degenerative
disc disease, diabetes mellitus, morbid obesity, sensorineural hearing loss, right knee
degenerative joint disorder, and right shoulder dislocation. Tr. 25, ¶ 3. While those
impairments do not meet or equal a listed impairment (Tr. 27, ¶ 4), they do preclude
Plaintiff from performing his past work as a truck driver (Tr. 32, ¶ 6). At step five, the
ALJ concluded that Plaintiff is not disabled because he has the RFC to perform light
work with certain limitations. Tr. 27-34, ¶¶ 5, 9-11.
Plaintiff contends that the ALJ erred in three respects: rejecting the opinions of
treating physicians, adopting the assessment of the non-examining doctor, and finding

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Plaintiff’s symptom testimony not credible. Docs. 16, 25. Defendant contends that the
ALJ did not err and her decision is supported by substantial evidence. Doc. 22. The
Court concludes that the ALJ committed reversible error in rejecting the opinions of
Dr. Mathew Benjamin.
Dr. Benjamin has treated Plaintiff since before the motorcycle accident. See Tr.
347-76, 541-90. On June 23, 2009, Dr. Benjamin completed a pain functional capacity
questionnaire and a medical assessment of Plaintiff’s ability to do work-related activities.
Tr. 899-903. He opined that Plaintiff experiences moderately severe pain, that the pain
results from movement and being in a static position, and that the pain is severe enough
to frequently interfere with Plaintiff’s attention, concentration, pace, and ability to
complete tasks in a timely manner. Tr. 899-900. With respect to Plaintiff’s ability to do
work-related activities, Dr. Benjamin opined, among other things, that Plaintiff can sit,
stand, and walk less than 2 hours in an 8-hour workday and must alternate positions every
half hour. Tr. 901-02. Those opinions were based on Dr. Benjamin’s own diagnoses and
objective clinical and diagnostic findings documented elsewhere in the medical records.
Tr. 899, 901.
As Plaintiff’s treating physician, Dr. Benjamin is “employed to cure and has a
greater opportunity to know and observe [Plaintiff] as an individual.” McCallister v.
Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). His opinions regarding the severity of
Plaintiff’s pain and impairments are therefore entitled to “special weight,” and if the ALJ
chooses to disregard them, she must, at a minimum, “‘set forth specific, legitimate
reasons for doing so, and this decision itself must be supported by substantial evidence.’”
Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988)) (quoting Cotton v. Bowen, 799 F.2d
1403, 1408 (1986)); see Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).
The ALJ (Tr. 32) rejected Dr. Benjamin’s opinions on the ground that they are
“inconsistent” with other records of the doctor indicating that Plaintiff is “totally
disabled” (Tr. 543), “permanently disabled” (Tr. 878), and unable to perform “any

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occupation” (Tr. 600).

Plaintiff argues, correctly, that the opinions rendered by

Dr. Benjamin on June 23, 2009 (Tr. 899-903) are entirely consistent with his other
opinions that Plaintiff is disabled. The ALJ’s error in this regard is harmless, Defendant
asserts, because she provided other legally valid reasons for rejecting Dr. Benjamin’s
opinion. Doc. 22 at 11 n.8. The Court does not agree.
The only other reason the ALJ gave for rejecting Dr. Benjamin’s opinions is that
they are “not consistent with the weight of the evidence of record.” Tr. 32. This Circuit
has made clear that “conclusory reasons will not justify an ALJ’s rejection of a medical
opinion[.]” Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294 F.3d 1294, 1299
(9th Cir. 1999). To say that a medical opinion is against the weight of the evidence “does
not achieve the level of specificity [Ninth Circuit] cases have required[.]” Embrey, 849
F.2d at 421-22.
To properly reject Dr. Benjamin’s opinions about Plaintiff’s pain and work-related
abilities, the ALJ must do more than offer her own conclusions. She must set forth her
own “interpretations and explain why they, rather than [the treating physician’s], are
correct.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The ALJ has failed to
provide the requisite “detailed, reasoned, and legitimate rationales for disregarding
[Dr. Benjamin’s] findings.” Embrey, 849 F.2d at 422. Her rejection of his opinions was
clearly erroneous.
Defendant asserts that because the ALJ found Plaintiff’s symptom testimony to be
not entirely credible, it was reasonable for the ALJ to also reject Dr. Benjamin’s
opinions. Doc. 22 at 13. But the ALJ, not this Court, is required to provide specific
reasons for rejecting medical opinions. See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
1050, 1054 (9th Cir. 2006). Indeed, the Court “cannot affirm the decision of [the ALJ]
on a ground that the [ALJ] did not invoke in making [her] decision.” Pinto v. Massanari,
249 F.3d 840, 847 (9th Cir. 2001).

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III.

Remedy.
The decision to remand for further development of the record or for an award

benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel,
211 F.3d 1172, 1173-74 (9th Cir. 2000). This Circuit has held that an action should be
remanded for an award of benefits where the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, no outstanding issue remains that must be resolved before
a determination of disability can be made, and it is clear from the record that the ALJ
would be required to find the claimant disabled were the rejected evidence credited as
true. See, e.g., Varney v. Sec’y of HHS, 859 F.2d 1396, 1400 (9th Cir. 1988).
After applying the credit-as-true rule to improperly discredited evidence, no
outstanding issue remains to be resolved before determining that Plaintiff is entitled to
benefits. The impartial vocational expert testified that the pain and functional limitations
found by Dr. Benjamin, if adopted, would preclude sustained work. Tr. 57. Defendant
does not disagree with this conclusion. See Doc. 22 at 11 n.8. Because it is clear that the
ALJ would be required to find Plaintiff disabled, see Benecke v. Barnhart, 379 F.3d 587,
593-95 (9th Cir. 2004), the Court will remand the case for an award of benefits. See Orn
v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (remanding for an award of benefits where it
was “‘clear from the record that the ALJ would be required to determine the claimant
disabled’”) (citation omitted). Given this ruling, the Court need not address Plaintiff’s
arguments that the ALJ failed to properly evaluate his credibility and erred in adopting
the assessment of the non-examining doctor.
Defendant claims that a remand for further development of the record is in order.
Doc. 22 at 19. Plaintiff applied for disability benefits more than four years ago. He has
been denied at the initial, reconsideration, hearing, and appellate levels of the
administration. Plaintiff specifically argued before the Appeals Council that that ALJ
had erroneously rejected the opinions of Dr. Benjamin (Tr. 10-12), but his request for
review was denied (Tr. 1-3). A remand for further proceedings is not warranted. See

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D’Angelo v. Astrue, No. CV-06-3055-PHX-EHC, 2007 WL 4617186, at *9 (D. Ariz.
Dec. 27, 2007).
IT IS ORDERED:
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Defendant’s decision denying benefits is reversed.

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The case is remanded to Defendant for an award of benefits.

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The Clerk is directed to enter judgment accordingly.

Dated this 30th day of June, 2011.

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