Dominguez v. Astrue

Filing 21

ORDER granting 16 Motion to Remand to Social Security Administration. IT IS FURTHER ORDERED that the Commissioner's decision is reversed and this matter is REMANDED for further proceedings as set forth in this Order. The Clerk of Court is directed to terminate this action. (See document for full details). Signed by Magistrate Judge Bridget S Bade on 10/1/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 April M. Dominguez, Plaintiff, 10 11 12 No. CV-2012-01589-PHX-BSB ORDER v. Carolyn W. Colvin, Acting Commissioner Social Security, 13 Defendant. 14 15 Plaintiff April M. Dominguez seeks judicial review under 42 U.S.C. § 405(g) of 16 the final decision of the Commissioner of Social Security (the Commissioner), denying 17 her application for disability insurance benefits under the Social Security Act. The 18 parties have consented to proceed before a United States Magistrate Judge pursuant to 28 19 U.S.C. § 636(b). For the following reasons, the Court reverses the Commissioner’s 20 decision and remands this matter for further administrative proceedings. 21 I. 22 Procedural Background On June 15, 2009, Plaintiff applied for supplemental security income (SSI) under (Tr. 169-176.)1 23 Title XVI of the Social Security Act (the Act), 42 U.S.C. § 726. 24 Plaintiff alleged disability beginning in 2001, due to panic disorder, agoraphobia, asthma, 25 and diabetic gastroporesis. (Tr. 207-08.) After the Social Security Administration (SSA) 26 denied Plaintiff’s initial application and her request for reconsideration, she requested a 27 hearing before an administrative law judge (ALJ). (Tr. 99-100, 106-09, 114-115.) After 28 1 Citations to “Tr.” are to the administrative record located at docket 18. 1 conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the 2 Social Security Act. 3 Commissioner when the Social Security Administration Appeals Council denied 4 Plaintiff’s request for review. (Tr. 1-6.); see 20 C.F.R. § 404.981 (explaining the effect 5 of a disposition by the Appeals Council.) Plaintiff now seeks judicial review of the 6 Commissioner’s decision pursuant to 42 U.S.C. § 405(g). (Tr. 25-32.) This decision became the final decision of the 7 The Court’s scheduling order directed Plaintiff to file an opening brief within sixty 8 days of the filing of the answer and record. (Doc. 7.) On February 26, 2013, Defendant 9 filed an Answer to the Complaint. (Doc. 16.) At the same time, Defendant filed a 10 Motion to Remand to the Social Security Administration for further administrative 11 proceedings and conceded that the ALJ had committed legal error. (Doc. 17 at 5.) 12 Plaintiff has not filed an opening brief and the deadline to do so has passed. Plaintiff, 13 however, filed a response to the motion to remand in which she argues that the Court 14 should reverse the Commissioner’s decision and remand for an immediate award of 15 benefits. (Doc. 19.) Therefore, the Court will consider Defendant’s motion to remand 16 and whether to remand for an immediate award of benefits or for further administrative 17 proceedings. 18 II. Relevant Background Regarding Medical Record 19 At the time of the administrative hearing, Plaintiff was in her early forties and had 20 a high school education. (Tr. 169, 208.) Plaintiff’s past relevant work included certified 21 nurse’s aide. (Tr. 212.) As set forth below, the medical evidence reflects that different 22 medical sources provided various opinions about Plaintiff’s restrictions caused by her 23 medical impairments. 24 On February 10, 2009, John Prieve, DO, performed a consultative examination at 25 the request of the Commissioner. (Tr. 462.) He opined that Plaintiff could lift and carry 26 twenty pounds occasionally and ten pounds frequently, stand or walk six hours 27 intermittently throughout an eight-hour day, occasionally climb ramps and stairs, never 28 -2- 1 climb ladders, frequently stoop, kneel, crouch, and crawl, occasionally to frequently 2 handle, finger, and feel; and that she should avoid unprotected heights. (Tr. 465-66.) 3 On April 17, 2009, Plaintiff’s treating physician, R. Bhakta, opined that Plaintiff 4 had severe gastroporesis, asthma, neuropathy, hypothyroidism, and carpal tunnel 5 syndrome.2 (Tr. 791.) Dr. Bhakta found that Plaintiff could lift and carry less than ten 6 pounds, sit more than two hours but less than three hours in an eight-hour day, stand 7 more than two hours but less than three hours in an eight-hour day, walk less than one 8 hour in an eight-hour day, occasionally use her hands and feet repetitively, occasionally 9 reach, crouch, and kneel, never bend, crawl, climb, stoop, or balance, never work around 10 unprotected heights, moving machinery, marked changes in temperature and humidity, or 11 environmental irritants, and never drive automotive equipment. (Tr. 791-92.) 12 On October 19, 2009, Dr. Bhakta completed another form stating that Plaintiff 13 could lift and carry less than ten pounds, sit more than two hours but less than three hours 14 in an eight-hour day, stand or walk less than two hours in an eight-hour day, never use 15 her feet repetitively, occasionally use her hands repetitively, occasionally bend, crawl, 16 climb, reach, stoop, balance, crouch, and kneel, never work around unprotected heights, 17 moving machinery, marked changes in temperature and humidity, or environmental 18 irritants, and never drive automotive equipment. (Tr. 797-98.) Dr. Bhakta indicated that 19 in addition to the previous diagnoses, Plaintiff had severe lumbar radiculopathy and 20 neuropathy in her legs that caused difficulty walking. (Tr. 797.) 21 On February 11, 2010, Stephanie Jenkinson, M.D., performed a consultative 22 examination of Plaintiff and found that Plaintiff’s only limitation was working around 23 heights due to her morbid obesity. (Tr. 806-10.) Dr. Jenkinson opined that Plaintiff’s 24 hand numbness could be corrected by carpal tunnel release surgery. (Tr. 810.) 25 On October 21, 2010, Dr. Bhakta again completed the form that she had 26 completed the previous year and assessed that Plaintiff’s restrictions were similar to her 27 28 2 The parties spell Dr. Bhakta’s last name “Bhakta” and “Bahkta.” The Court uses the spelling in the medical records, Bhakta. (See Tr. 798.) -3- 1 previous restrictions. However, Dr. Bhakta found that instead of never using her feet 2 repetitively, Plaintiff could frequently use her feet repetitively. Dr. Bhakta also found 3 that, instead of occasionally balancing, Plaintiff could never balance, instead of a total 4 restriction on driving automotive equipment, Plaintiff had no driving restrictions, and 5 instead of a total restriction in working around environmental irritants, Plaintiff had 6 moderate restrictions. (Tr. 867-68). 7 III. The ALJ’s Decision 8 A claimant is considered disabled under the Social Security Act if he is unable “to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which has 11 lasted or can be expected to last for a continuous period of not less than 12 months.” 42 12 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A) (nearly identical standard for 13 supplemental security income disability insurance benefits). To determine whether a 14 claimant is disabled, the ALJ uses a five-step sequential evaluation process. See 20 15 C.F.R. § 404.1520, § 416.920. 16 In the first two steps, a claimant seeking disability benefits must initially 17 demonstrate (1) that he is not presently engaged in a substantial gainful activity, and (2) 18 that his disability is severe. 20 C.F.R. § 404.1520(a) (c). If a claimant meets steps one 19 and two, he may be found disabled in two ways at steps three and four. At step three, he 20 may prove that his impairment or combination of impairments meets or equals an 21 impairment in the Listing of Impairments found in Appendix 1 to Subpart P of 20 C.F.R. 22 pt. 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is presumptively disabled. If 23 not, the ALJ proceeds to step four. At step four, a claimant must prove that his residual 24 functional capacity (RFC) precludes him from performing his past work. 20 C.F.R. 25 § 404.1520(a)(4)(iv). If the claimant establishes this prima facie case, the burden shifts 26 to the government at step five to establish that the claimant can perform other jobs that 27 exist in significant number in the national economy, considering the claimant’s RFC, age, 28 -4- 1 work experience, and education. If the government does not meet this burden, then the 2 claimant is considered disabled within the meaning of the Social Security Act. 3 Applying the five-step sequential evaluation process, the ALJ found that Plaintiff 4 had not engaged in substantial gainful activity during the relevant period. (Tr. 27.) At 5 step two, he found that Plaintiff had severe carpal tunnel syndrome and obesity. (Id.) At 6 step three, the ALJ found that Plaintiff did not have an impairment or combination of 7 impairments that met or medically equaled one of the impairments listed in 20 C.F.R. pt. 8 404, subpt. P, app. 1. (Tr. 28.) The ALJ then found that Plaintiff had the residual 9 functional capacity to perform light work with occasional handling, fingering and feeling. 10 (Tr. 28.) The ALJ relied on vocational expert testimony that, although Plaintiff could not 11 perform her past relevant work, she could perform other jobs existing in significant 12 numbers in the national economy, such as surveillance system monitor and call out 13 operator. (Tr. 32.) Accordingly, the ALJ found that Plaintiff was not disabled under the 14 Act. (Id.) 15 IV. Standard of Review 16 The district court has the “power to enter, upon the pleadings and transcript of 17 record, a judgment affirming, modifying, or reversing the decision of the Commissioner 18 of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. 19 § 405(g). 20 supported by substantial evidence and it is free from legal error. Smolen v. Chater, 80 21 F.3d 1273, 1279 (9th Cir. 1996); Ryan v. Comm’r of Soc. Sec. Admin., 528 F.3d 1194, 22 1198 (9th Cir. 2008). Even if the ALJ erred, however, “[a] decision of the ALJ will not 23 be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 24 2005). The district court must affirm the Commissioner’s final decision if it is 25 Under this standard of review, substantial evidence means more than a mere 26 scintilla, but less than a preponderance; it is “such relevant evidence as a reasonable mind 27 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 28 401 (1971) (citations omitted); see also Webb v Barnhart, 433 F.3d 683, 686 (9th Cir. -5- 1 2005). In determining whether substantial evidence supports a decision, the court 2 considers the record as a whole and “may not affirm simply by isolating a specific 3 quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) 4 (internal quotation and citation omitted). 5 The court also may not “affirm the ALJ’s . . . decision based on evidence that the 6 ALJ did not discuss.” Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); see also 7 SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (emphasizing the fundamental rule of 8 administrative law that a reviewing court “must judge the propriety of [administrative] 9 action solely by the grounds invoked by the agency” and stating that if “those grounds are 10 inadequate or improper, the court is powerless to affirm the administrative action by 11 substituting what it considers to be a more adequate or proper basis.”). 12 The ALJ is responsible for resolving conflicts in testimony, determining 13 credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 14 Cir. 1995). “When the evidence before the ALJ is subject to more than one rational 15 interpretation, [the court] must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. 16 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004) (citing Andrews, 53 F.3d at 1041). 17 V. Weight Assigned to Treating Physicians’ Opinions 18 The parties agree that the ALJ erred by failing to properly evaluate the opinions of 19 Plaintiff’s treating physician Bhakta. (Docs. 17 at 5, Doc. 19 at 1.) Plaintiff asserts, as 20 she argued during the administrative proceedings, that the ALJ failed to give legally 21 sufficient reasons for rejecting Dr. Bhakta’s opinions. (Doc. 19 at 1, citing Tr. 271-272.) 22 Treating physicians’ opinions are entitled to more weight than the opinions of 23 other physicians because such physicians are “employed to cure and [have] a greater 24 opportunity to observe and know the patient as an individual.” Sprague v. Bowen, 812 25 F.2d 1226, 1230 (9th Cir. 1987); Smolen, 80 F.3d at 1285. An ALJ may reject a treating 26 physician’s uncontradicted medical opinion but may do so only when based on “clear and 27 convincing reasons.” Lester v. Chater, 81 F.3d 821, 830 31 (9th Cir. 1995). When such 28 an opinion is contradicted, however, the ALJ may reject it by providing “specific and -6- 1 legitimate reasons that are supported by substantial evidence in the record.” Id. “The 2 ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 3 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 4 Magallanes v. Bowen, 881 F.2d 747,751 (9th Cir. 1989) (citation omitted). 5 The record reflects that the ALJ gave legally insufficient reasons for rejecting the 6 treating physician’s assessments. The ALJ stated that he gave “little weight” to the 7 opinions of treating physician Bhakta because they were “inconsistent with the overall 8 medical evidence.” (Tr. 30.) The ALJ, however, did not sufficiently identify the other 9 medical evidence with which the treating physician’s opinions were inconsistent. See 10 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (“[t]o say that medical opinions are 11 not supported by sufficient objective findings or are contrary to the preponderant 12 conclusions mandated by the [required] objective findings does not achieve the level of 13 specificity”). The ALJ must do more than offer his conclusions. “He must set forth his 14 own interpretations and explain why they, rather than the doctors’ are correct.” Embrey, 15 849 F.2d at 422. As the parties agree, the ALJ did not give sufficient specific and 16 legitimate reasons, let alone “clear and convincing” reasons, for rejecting the assessments 17 of Dr. Bhakta. 18 Although the parties agree that the ALJ committed legal error in rejecting 19 Dr. Bhakta’s opinions without providing legally sufficient reasons, they disagree as to the 20 appropriate remedy. 21 administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 16.) 22 Plaintiff, on the other hand, seeks an order remanding for an award of benefits. 23 (Doc. 19.) 24 appropriate in this case. 25 VI. Defendant seeks an order remanding this matter for further As discussed below, the Court finds remand for further proceedings Whether to Remand for Further Proceedings or for an Award of Benefits 26 This Court has discretion to reverse and remand this case for further administrative 27 proceedings or for an immediate award of benefits. See 42 U.S.C. § 405(g) (sentence 28 four); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). “[R]emand for -7- 1 further proceedings is unnecessary if the record is fully developed and it is clear from the 2 record that the ALJ would be required to award benefits.” Holohan v. Massanari, 246 3 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded when “(1) the 4 ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] 5 evidence, (2) there are no outstanding issues that must be resolved before a determination 6 of disability can be made, and (3) it is clear from the record that the ALJ would be 7 required to find the claimant disabled were such evidence credited.” Smolen, 80 F.3d at 8 1292; see also McCartey, 298 F.3d at 1076-77. 9 However, “[r]emand for further proceedings is appropriate where there are 10 outstanding issues that must be resolved before a determination can be made, and it is not 11 clear from the record that the ALJ would be required to find claimant disabled if all the 12 evidence were properly evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) 13 (citing Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009)). “[T]he proper course, 14 except in rare circumstances, is remand to the agency for additional investigation or 15 explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002) (per curiam). The Ninth Circuit 16 has held that when “additional proceedings can remedy defects in the original 17 administrative proceeding, a social security case should be remanded.” 18 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (remanding “to the Secretary for proper 19 consideration of step three equivalence”). Marcia v. 20 Additionally, when an ALJ fails to “give sufficiently specific reasons for rejecting 21 the conclusion of [a treating physician],” it is appropriate to remand the matter for 22 “proper consideration of the physicians’ evidence.” 23 (remanding for further proceedings when ALJ rejected opinion of treating physician but 24 did not relate objective factors on which he relied to reject the opinion); see also Nguyen 25 v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996) (remanding for further proceedings 26 where ALJ failed to “set forth specific, legitimate reasons” for crediting opinion of 27 nonexamining consultant over that of examining psychologist). 28 -8- See Embrey, 849 F.2d at 422 1 After consideration of this matter, the Court exercises its discretion to remand this 2 matter for further proceedings and consideration of the record because “[t]here may be 3 evidence in the record to which the [ALJ] can point to provide the requisite . . . reasons 4 for disregarding” Dr. Bhakta’s opinions and the “Secretary is in a better position than this 5 court to perform this task.” See McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 6 (remanding to allow the Secretary to review the record and provide legally sufficient 7 reasons for rejecting the treating physician’s report and, alternatively, permitting the 8 Secretary to award benefits). 9 Commissioner may award benefits. See id. Alternatively, after proper review of the record, the 10 The Court also agrees with Defendant that remand is appropriate because the 11 record includes conflicting opinions concerning the severity of Plaintiff’s impairments. 12 Between April 2009 and October 2010, Dr. Bhakta, opined that Plaintiff could not 13 perform sedentary work activities. (Tr. 791-92, 797-98, 867-68.) In February 2009, 14 examining physician Prieve opined that Plaintiff could perform a range of light work. 15 (Tr. 465-66.) In February 2010, examining physician Jenkinson opined that Plaintiff’s 16 only limitation was working around heights due to her morbid obesity. (Tr. 810.) The 17 state agency physicians reviewed Plaintiff’s medical records in September 2009 and 18 March 2010, and assessed functional limitations consistent with a range of light medium 19 work. (Tr. 645-52, 811-18.) Thus, the medical evidence is in conflict concerning the 20 degree of limitation caused by Plaintiff’s impairments.3 21 22 23 3 24 25 26 27 28 Defendant also argues that the record does not fully support Plaintiff’s claims of debilitating impairments because Plaintiff did not follow through with carpal tunnel surgery in June 2009. (Doc. 17 at 5.) As Plaintiff explains, in June 2009, she was scheduled for a surgical consultation, not surgery. (Tr. 481, 677.) However, the Court does not resolve any issues related to the ALJ’s determination of Plaintiff’s credibility. Defendant further argues that Plaintiff’s adoption of her young grandchildren in 2009 is inconsistent with her complaints of limitations. The Court declines to determine whether the ALJ’s determination of Plaintiff’s credibility based on her activities was error because it is not necessary to the Court’s determination of whether to remand for further proceedings. -9- 1 VII. Conclusion 2 For the reasons discussed in this Order, the Commissioner’s decision is reversed 3 and this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further 4 administrative proceedings to allow the Commissioner to review the record and attempt 5 to provide legally sufficient reasons based on substantial evidence for assigning little 6 weight to the opinions of Plaintiff’s treating physician. Alternatively, the Commissioner 7 may decide to award benefits. 8 Accordingly, 9 IT IS ORDERED that Defendant’s Motion to Remand (Doc. 16) is GRANTED. 10 IT IS FURTHER ORDERED that the Commissioner’s decision is reversed and 11 this matter is REMANDED for further proceedings as set forth in this Order. The Clerk 12 of Court is directed to terminate this action. 13 Dated this 1st day of October, 2013. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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