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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Suzanne Smith,
Plaintiff,

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No. CV 13-00507-PHX-DGC
ORDER

v.
Carolyn Colvin, Acting Commissioner of
Social Security,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Suzanne Smith seeks judicial review of

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the Commissioner’s decision finding her not disabled within the meaning of the Social

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Security Act. Doc. 18. For the reasons that follow, the Court will remand for an award

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of benefits.

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I.

Background.

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Plaintiff applied for disability insurance benefits on December 10, 2009, alleging

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disability beginning August 1, 2006. Doc. 26 at 1. After a hearing on July 14, 2011, an

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administrative law judge (“ALJ”) issued an opinion on August 25, 2011, finding Plaintiff

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not disabled. Id. at 2; A.R. 27-35. A request for review was denied by the Appeals

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Council and the ALJ’s opinion became the Commissioner’s final decision on December

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31, 2012. Doc. 26 at 2.

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II.

Legal Standard.

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Defendant’s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but

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less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept

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as adequate to support a conclusion.”

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supported by substantial evidence, the Court must consider the record as a whole,

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weighing both the evidence that supports the decision and the evidence that detracts from

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it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to

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support the Commissioner’s determination, the Court cannot substitute its own

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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

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evaluation process.

The claimant must show (1) he is not currently engaged in

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substantial gainful employment, (2) he has a severe physical or mental impairment, and

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(3) the impairment meets or equals a listed impairment or (4) his residual functional

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capacity (“RFC”) precludes him from performing his past work. If at any step the

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Commissioner determines that a claimant is or is not disabled, the analysis ends;

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otherwise it proceeds to step five. If the claimant establishes his burden through step

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four, the Commissioner bears the burden at step five of showing that the claimant has the

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RFC to perform other work that exists in substantial numbers in the national economy.

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See 20 C.F.R. § 404.1520(a)(4)(i)-(v).

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III.

Analysis.

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Plaintiff contends that the ALJ committed legal error by failing to provide specific

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and legitimate reasons supported by substantial evidence in the record for giving little

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weight to two treating physician opinions, namely Drs. Nuttall and Page. Doc. 18 at 4.

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The Ninth Circuit distinguishes between the opinions of treating physicians,

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examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

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830 (9th Cir. 1995).

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physician’s opinion and more weight to the opinion of an examining physician than to

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one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

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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

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evaluating opinion evidence, including length of examining or treating relationship,

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frequency of examination, consistency with the record, and support from objective

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evidence). The controverted opinion of a treating or examining physician “can only be

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rejected for specific and legitimate reasons that are supported by substantial evidence in

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the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043). “The ALJ can

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meet this burden by setting out a detailed and thorough summary of the facts and

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conflicting clinical evidence, stating his interpretation thereof, and making findings.”

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Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (citing Cotton v. Bowen, 799 F.2d

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1403, 1408 (9th Cir. 1986)). Because the Court finds that the ALJ failed to comply with

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this requirement in addressing the opinion of Dr. Nuttall, the Court need not address

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Plaintiff’s arguments regarding the ALJ’s treatment of Dr. Page’s opinion.

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A.

Dr. Nuttall.

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In evaluating Dr. Nuttall’s opinion, the ALJ stated that he afforded the opinion

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“little weight because it was inconsistent with the record as a whole.” A.R. at 34. He

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further specified that Dr. Nuttall’s opinion “was inconsistent with [Plaintiff’s] reports of

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activities of daily living, such as her statements that she was able to drive, shop, perform

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some light household cleaning, prepare some simple meals, and study medical billing and

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coding.” Id. He finally noted that Dr. Nuttall’s opinion “appeared to be an underestimate

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of her functional capabilities, and contrasts sharply with the evidence in the record.” Id.

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As noted above, the ALJ must provide specific reasons for rejecting the opinion of

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a treating physician. Lester, 81 F.3d at 830-31. The ALJ meets this burden “by setting

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out a detailed and thorough summary of the facts and conflicting clinical evidence,

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stating his interpretation thereof, and making findings.” Embrey, 849 F.2d at 421. The

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ALJ did set out the facts of Dr. Nuttall’s opinion (A.R. 33-34), but failed to summarize

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conflicting evidence, state his interpretation thereof, or make findings. The Court finds

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that the ALJ failed to offer anything more than conclusions in his analysis of Dr. Nuttall’s

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opinion, and only referred generally to its contradiction with other evidence in the record

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rather than identifying and interpreting the contradictory evidence. This is not sufficient

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to meet the standard required by the Ninth Circuit. See Embrey, 849 F.2d at 421-22

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(“The ALJ must do more than offer his conclusions.

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interpretations and explain why they, rather than the doctors’, are correct.”).

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Accordingly, the Court finds that the ALJ erred in his consideration of Dr. Nuttall’s

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opinion. Defendant’s decision must therefore be vacated.

He must set forth his own

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B.

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Having decided to vacate Defendant’s decision, the Court has the discretion to

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remand the case for further development of the record or for an award benefits. See

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Reddick, 157 F.3d at 728. In Smolen, the Ninth Circuit held that evidence should be

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credited and an action remanded for an immediate award of benefits when the following

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three factors are satisfied: (1) the ALJ has failed to provide legally sufficient reasons for

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rejecting evidence, (2) there are no outstanding issues that must be resolved before a

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determination of disability can be made, and (3) it is clear from the record that the ALJ

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would be required to find the claimant disabled were such evidence credited. 80 F.3d

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1273, 1292 (9th Cir. 1996); see Varney v. Sec. of Health & Human Servs., 859 F.2d 1396,

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1400 (9th Cir. 1988) (“In cases where there are no outstanding issues that must be

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resolved before a proper determination can be made, and where it is clear from the record

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that the ALJ would be required to award benefits if the claimant’s excess pain testimony

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were credited, we will not remand solely to allow the ALJ to make specific findings

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regarding that testimony.”); Swenson v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)

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(same); Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (“In a recent case where

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the ALJ failed to provide clear and convincing reasons for discounting the opinion of

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claimant’s treating physician, we accepted the physician’s uncontradicted testimony as

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true and awarded benefits.”) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1988));

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Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989) (extending Varney’s “credit as

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true” rule to a case with outstanding issues where the claimant already had experienced a

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long delay and a treating doctor supported the claimant’s testimony).

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Remand.

Defendant argues that it would be contrary to the Act to remand for an award of

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benefits. Doc. 26 at 18. Defendant cites Strauss v. Commissioner of the Social Security

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Administration, 635 F.3d 1135, 1138 (9th Cir. 2011), as stating that “[a] claimant is not

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entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter

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how egregious the ALJ’s errors may be.” Defendant argues that “Plaintiff has not met

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her burden to prove that she was disabled during the period at issue, so an award of

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benefits is improper. Doc. 26 at 18 (citing Strauss, 635 F.3d at 1137-38). Defendant

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further argues that “where additional proceedings can remedy defects in the original

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administrative proceeding, a social security case should be remanded.” Id. at 19 (citing

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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990)). Defendant finally argues that

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because “the record contains evidence inconsistent with a finding of disability,” remand

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for an award of benefits is inappropriate. Id. at 20.

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The Court has found that the ALJ failed to provide legally sufficient reasons for

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rejecting the opinion of Dr. Nuttall, one of Plaintiff’s treating physicians.

The

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uncontroverted testimony of the vocational expert in response to a question from the ALJ

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about Dr. Nuttall’s assessment shows that the ALJ would be required to find Plaintiff

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incapable of past or other full time work and therefore disabled if Dr. Nuttall’s opinion

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were credited as true. See A.R. 53. The procedural error the Court finds in this case is

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precisely the type of error that the Ninth Circuit in Strauss confirmed requires remand for

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an award of benefits: one in which the ALJ erred in discrediting evidence and, absent any

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outstanding issues to be resolved, “it is clear from the record that the ALJ would be

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required to find the claimant disabled were such evidence credited.” Strauss, 635 F.3d at

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1138 (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)).

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Moreover, the overwhelming authority in this Circuit makes clear that the “credit

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as true” doctrine is mandatory. See Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292;

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Reddick, 157 F.3d at 729; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); Moore

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v. Comm’r of Soc. Sec., 278 F.3d 920, 926 (9th Cir. 2002); McCartey v. Massanari, 298

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F.3d 1072, 1076-77 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir.

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2004); Benecke, 379 F.3d at 593-95; Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007);

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Lingenfelter v. Astrue, 504 F.3d. at 1041 (“[W]e will not remand for further proceedings

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where, taking the claimant’s testimony as true, the ALJ would clearly be required to

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award benefits[.]”).1

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Applying these cases, the Court concludes that the improperly rejected opinion of

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Dr. Nuttall must be credited as true and, when credited as true and combined with the

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vocational expert’s opinion, requires an award of benefits.

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IT IS ORDERED:

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This case is remanded for an award of benefits.

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2.

The Clerk shall terminate this action.

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Dated this 3rd day of February, 2014.

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This Court disagrees with the Ninth Circuit’s credit as true doctrine. The Court
is bound, nonetheless, to follow Ninth Circuit precedent.
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