Smith v. Social Security Administration Commissioner

Filing 28

ORDER that this case is remanded for an award of benefits. The Clerk shall terminate this action. Signed by Judge David G Campbell on 2/3/2014. (LFIG)

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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 Suzanne Smith, Plaintiff, 10 11 12 No. CV 13-00507-PHX-DGC ORDER v. Carolyn Colvin, Acting Commissioner of Social Security, 13 Defendant. 14 15 Pursuant to 42 U.S.C. § 405(g), Plaintiff Suzanne Smith seeks judicial review of 16 the Commissioner’s decision finding her not disabled within the meaning of the Social 17 Security Act. Doc. 18. For the reasons that follow, the Court will remand for an award 18 of benefits. 19 I. Background. 20 Plaintiff applied for disability insurance benefits on December 10, 2009, alleging 21 disability beginning August 1, 2006. Doc. 26 at 1. After a hearing on July 14, 2011, an 22 administrative law judge (“ALJ”) issued an opinion on August 25, 2011, finding Plaintiff 23 not disabled. Id. at 2; A.R. 27-35. A request for review was denied by the Appeals 24 Council and the ALJ’s opinion became the Commissioner’s final decision on December 25 31, 2012. Doc. 26 at 2. 26 II. Legal Standard. 27 Defendant’s decision to deny benefits will be vacated “only if it is not supported 28 by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d 1 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but 2 less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept 3 as adequate to support a conclusion.” 4 supported by substantial evidence, the Court must consider the record as a whole, 5 weighing both the evidence that supports the decision and the evidence that detracts from 6 it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to 7 support the Commissioner’s determination, the Court cannot substitute its own 8 determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Id. In determining whether the decision is Determining whether a claimant is disabled involves a sequential five-step 9 10 evaluation process. The claimant must show (1) he is not currently engaged in 11 substantial gainful employment, (2) he has a severe physical or mental impairment, and 12 (3) the impairment meets or equals a listed impairment or (4) his residual functional 13 capacity (“RFC”) precludes him from performing his past work. If at any step the 14 Commissioner determines that a claimant is or is not disabled, the analysis ends; 15 otherwise it proceeds to step five. If the claimant establishes his burden through step 16 four, the Commissioner bears the burden at step five of showing that the claimant has the 17 RFC to perform other work that exists in substantial numbers in the national economy. 18 See 20 C.F.R. § 404.1520(a)(4)(i)-(v). 19 III. Analysis. 20 Plaintiff contends that the ALJ committed legal error by failing to provide specific 21 and legitimate reasons supported by substantial evidence in the record for giving little 22 weight to two treating physician opinions, namely Drs. Nuttall and Page. Doc. 18 at 4. 23 The Ninth Circuit distinguishes between the opinions of treating physicians, 24 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 25 830 (9th Cir. 1995). 26 physician’s opinion and more weight to the opinion of an examining physician than to 27 one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th 28 Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when Generally, an ALJ should give greatest weight to a treating -2- 1 evaluating opinion evidence, including length of examining or treating relationship, 2 frequency of examination, consistency with the record, and support from objective 3 evidence). The controverted opinion of a treating or examining physician “can only be 4 rejected for specific and legitimate reasons that are supported by substantial evidence in 5 the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). “The ALJ can 6 meet this burden by setting out a detailed and thorough summary of the facts and 7 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 8 Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (citing Cotton v. Bowen, 799 F.2d 9 1403, 1408 (9th Cir. 1986)). Because the Court finds that the ALJ failed to comply with 10 this requirement in addressing the opinion of Dr. Nuttall, the Court need not address 11 Plaintiff’s arguments regarding the ALJ’s treatment of Dr. Page’s opinion. 12 A. Dr. Nuttall. 13 In evaluating Dr. Nuttall’s opinion, the ALJ stated that he afforded the opinion 14 “little weight because it was inconsistent with the record as a whole.” A.R. at 34. He 15 further specified that Dr. Nuttall’s opinion “was inconsistent with [Plaintiff’s] reports of 16 activities of daily living, such as her statements that she was able to drive, shop, perform 17 some light household cleaning, prepare some simple meals, and study medical billing and 18 coding.” Id. He finally noted that Dr. Nuttall’s opinion “appeared to be an underestimate 19 of her functional capabilities, and contrasts sharply with the evidence in the record.” Id. 20 As noted above, the ALJ must provide specific reasons for rejecting the opinion of 21 a treating physician. Lester, 81 F.3d at 830-31. The ALJ meets this burden “by setting 22 out a detailed and thorough summary of the facts and conflicting clinical evidence, 23 stating his interpretation thereof, and making findings.” Embrey, 849 F.2d at 421. The 24 ALJ did set out the facts of Dr. Nuttall’s opinion (A.R. 33-34), but failed to summarize 25 conflicting evidence, state his interpretation thereof, or make findings. The Court finds 26 that the ALJ failed to offer anything more than conclusions in his analysis of Dr. Nuttall’s 27 opinion, and only referred generally to its contradiction with other evidence in the record 28 rather than identifying and interpreting the contradictory evidence. This is not sufficient -3- 1 to meet the standard required by the Ninth Circuit. See Embrey, 849 F.2d at 421-22 2 (“The ALJ must do more than offer his conclusions. 3 interpretations and explain why they, rather than the doctors’, are correct.”). 4 Accordingly, the Court finds that the ALJ erred in his consideration of Dr. Nuttall’s 5 opinion. Defendant’s decision must therefore be vacated. He must set forth his own 6 B. 7 Having decided to vacate Defendant’s decision, the Court has the discretion to 8 remand the case for further development of the record or for an award benefits. See 9 Reddick, 157 F.3d at 728. In Smolen, the Ninth Circuit held that evidence should be 10 credited and an action remanded for an immediate award of benefits when the following 11 three factors are satisfied: (1) the ALJ has failed to provide legally sufficient reasons for 12 rejecting evidence, (2) there are no outstanding issues that must be resolved before a 13 determination of disability can be made, and (3) it is clear from the record that the ALJ 14 would be required to find the claimant disabled were such evidence credited. 80 F.3d 15 1273, 1292 (9th Cir. 1996); see Varney v. Sec. of Health & Human Servs., 859 F.2d 1396, 16 1400 (9th Cir. 1988) (“In cases where there are no outstanding issues that must be 17 resolved before a proper determination can be made, and where it is clear from the record 18 that the ALJ would be required to award benefits if the claimant’s excess pain testimony 19 were credited, we will not remand solely to allow the ALJ to make specific findings 20 regarding that testimony.”); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989) 21 (same); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (“In a recent case where 22 the ALJ failed to provide clear and convincing reasons for discounting the opinion of 23 claimant’s treating physician, we accepted the physician’s uncontradicted testimony as 24 true and awarded benefits.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988)); 25 Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989) (extending Varney’s “credit as 26 true” rule to a case with outstanding issues where the claimant already had experienced a 27 long delay and a treating doctor supported the claimant’s testimony). 28 Remand. Defendant argues that it would be contrary to the Act to remand for an award of -4- 1 benefits. Doc. 26 at 18. Defendant cites Strauss v. Commissioner of the Social Security 2 Administration, 635 F.3d 1135, 1138 (9th Cir. 2011), as stating that “[a] claimant is not 3 entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter 4 how egregious the ALJ’s errors may be.” Defendant argues that “Plaintiff has not met 5 her burden to prove that she was disabled during the period at issue, so an award of 6 benefits is improper. Doc. 26 at 18 (citing Strauss, 635 F.3d at 1137-38). Defendant 7 further argues that “where additional proceedings can remedy defects in the original 8 administrative proceeding, a social security case should be remanded.” Id. at 19 (citing 9 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). Defendant finally argues that 10 because “the record contains evidence inconsistent with a finding of disability,” remand 11 for an award of benefits is inappropriate. Id. at 20. 12 The Court has found that the ALJ failed to provide legally sufficient reasons for 13 rejecting the opinion of Dr. Nuttall, one of Plaintiff’s treating physicians. The 14 uncontroverted testimony of the vocational expert in response to a question from the ALJ 15 about Dr. Nuttall’s assessment shows that the ALJ would be required to find Plaintiff 16 incapable of past or other full time work and therefore disabled if Dr. Nuttall’s opinion 17 were credited as true. See A.R. 53. The procedural error the Court finds in this case is 18 precisely the type of error that the Ninth Circuit in Strauss confirmed requires remand for 19 an award of benefits: one in which the ALJ erred in discrediting evidence and, absent any 20 outstanding issues to be resolved, “it is clear from the record that the ALJ would be 21 required to find the claimant disabled were such evidence credited.” Strauss, 635 F.3d at 22 1138 (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). 23 Moreover, the overwhelming authority in this Circuit makes clear that the “credit 24 as true” doctrine is mandatory. See Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292; 25 Reddick, 157 F.3d at 729; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); Moore 26 v. Comm’r of Soc. Sec., 278 F.3d 920, 926 (9th Cir. 2002); McCartey v. Massanari, 298 27 F.3d 1072, 1076-77 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 28 2004); Benecke, 379 F.3d at 593-95; Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007); -5- 1 Lingenfelter v. Astrue, 504 F.3d. at 1041 (“[W]e will not remand for further proceedings 2 where, taking the claimant’s testimony as true, the ALJ would clearly be required to 3 award benefits[.]”).1 4 Applying these cases, the Court concludes that the improperly rejected opinion of 5 Dr. Nuttall must be credited as true and, when credited as true and combined with the 6 vocational expert’s opinion, requires an award of benefits. 7 IT IS ORDERED: 8 1. This case is remanded for an award of benefits. 9 2. The Clerk shall terminate this action. 10 Dated this 3rd day of February, 2014. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 This Court disagrees with the Ninth Circuit’s credit as true doctrine. The Court is bound, nonetheless, to follow Ninth Circuit precedent. -6-

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