Pineda v. Colvin

Filing 26

ORDER that this case is remanded for further proceedings. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 4/7/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lezley Marisol Pineda,
Plaintiff,

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ORDER

v.

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No. CV-13-01128-PHX-DGC

Carolyn W Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Lezley Marisol Pineda seeks judicial

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

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Social Security Act. Doc. 18. For the reasons that follow, the Court will remand this

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case for further proceedings.

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I.

Background.

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Plaintiff applied for disability insurance benefits and supplemental security

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income on February 2010, alleging disability beginning in January 2010.1 Doc. 19 at 2.

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After a hearing on July 19, 2011, an administrative law judge (“ALJ”) issued an opinion

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on August 11, 2011 finding Plaintiff not disabled. Id. at 2; A.R. 24. A request for review

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was denied by the Appeals Council and the ALJ’s opinion became the Commissioner’s

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final decision. Doc. 19 at 2.

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Plaintiff originally alleged disability beginning in March 2009, but amended her
disability onset date to January 2010 during her administrative hearing. Doc. 19 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

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Determining whether a claimant is disabled involves a sequential five-step

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evaluation. The claimant must show (1) he is not currently engaged in substantial gainful

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employment, (2) he has a severe physical or mental impairment, and (3) the impairment

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meets or equals a listed impairment or (4) his residual functional capacity (“RFC”)

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precludes him from performing his past work.

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determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to

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step five. If the claimant establishes his burden through step four, the Commissioner

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bears the burden at step five of showing that the claimant has the RFC to perform other

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work that exists in substantial numbers in the national economy.

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§ 404.1520(a)(4)(i)-(v).

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III.

If at any step the Commissioner

See 20 C.F.R.

Analysis.

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Plaintiff advances three arguments as to why the ALJ’s decision was erroneous.

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First, she argues that the ALJ erred by rejecting or ignoring assessments from a doctor

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and a nurse practitioner who treated Plaintiff. Doc. 18 at 1. Next, Plaintiff contends that

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the ALJ erred by rejecting her symptom testimony without providing clear and

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convincing reasons supported by substantial evidence. Id. Finally, she argues that the

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ALJ erred by relying on “the medical-vocational guidelines of Appendix 2 of the

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disability regulations” in determining that Plaintiff was not disabled. Id. at 2. The Court

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will consider each argument in turn.

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A.

Treating Source Opinions.

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In weighing medical source opinions in Social Security cases, the Ninth Circuit

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distinguishes among three types of physicians: (1) treating physicians, who actually treat

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the claimant; (2) examining physicians, who examine but do not treat the claimant; and

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(3) non-examining physicians, who neither treat nor examine the claimant. Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the

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opinion of a treating physician than to the opinion of a non-treating physician. Id. A

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treating physician’s opinion is afforded great weight because such physicians are

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“employed to cure and [have] a greater opportunity to observe and know the patient as an

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individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The controverted

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opinion of a treating or examining physician “can only be rejected for specific and

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legitimate reasons that are supported by substantial evidence in the record.” Lester, 81

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F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995)). “The

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ALJ can 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)).

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Nurse Practitioners are not an “acceptable medical source” for documenting a

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medical impairment under 20 C.F.R. § 404.1513(a). Rather, they are considered “other

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sources” that the Commissioner may use to show the severity of a claimant’s

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impairments and how these impairments may affect his ability to work. 20 C.F.R.

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§ 404.1513(d). “The ALJ may discount testimony from these ‘other sources’ if the ALJ

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gives reasons germane to each witness for doing so.” Molina v. Astrue, 674 F.3d 1104,

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1111 (9th Cir. 2012) (internal quotation marks and citations omitted).

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As to Nurse Practitioner Letellier’s assessment, Plaintiff asserts that the ALJ

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“impermissibly engaged in a selective analysis of that evidence without offering

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justification for doing so.” Doc. 18 at 19. The ALJ was required to provide “germane”

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reasons for discounting the testimony of NP Letellier. See Molina, 674 F.3d at 1111.

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The ALJ noted that full weight was not given to NP Letellier’s opinion “because her

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estimation that the claimant has moderately severe mental limitations is inconsistent with

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the substantial evidence described above.” A.R. 33. The evidence referred to by the ALJ

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was “the mental opinions of the psychological consultative examiner, the State agency

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medical consultant on reconsideration, and [NP Letellier],” which the ALJ found were

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“generally consistent in that they all assess the claimant is able to perform a range of

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work that is limited to simple repetitive tasks.” Id. The ALJ further noted that “the

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conservative course of care for the claimant’s mental impairment” and “the claimant’s

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improved status and the report that she was ‘doing well on a very low dose’ of

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medication” supported his assessment of the evidence. Id. Although Plaintiff argues that

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“logically the same standard that applies to treating physicians assessments should apply

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to treating nurse practitioner assessments,” (id. at 17), this is not the standard applied by

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the Ninth Circuit. 20 C.F.R. § 404.1513(a). The Court will not depart from established

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law. The ALJ provided “germane” reasons for discounting portions of NP Letellier’s

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opinion, and the Court accordingly finds no legal error.

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With regard to Dr. Varns’s opinion, Plaintiff argues that “the ALJ failed to even

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acknowledge Dr. Varns’s assessment of the effect that pain would have on [Plaintiff]’s

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ability to function: there would be frequent interference with attention and concentration,

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leading to frequent failure to complete tasks in a timely manner.” Doc. 18 at 18. The

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report she cites as ignored by the ALJ is the same report to which the ALJ stated he gave

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“significant weight.”

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Although the ALJ stated that he gave “significant” and “controlling” weight to Dr.

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Varns’s opinion (A.R. 32-33), he does not appear to have explicitly discussed the final

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two pages of the opinion wherein Dr. Varns opines that Plaintiff experiences pain that is

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“moderately severe,” that her pain would “frequently” interfere with attention and

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concentration, and that she would “frequently” experience deficiencies of concentration,

See id. (citing A.R. 590-91); A.R. 32 (citing A.R. 587-91).

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persistence, or pace. A.R. 590-591. The ALJ concluded that Dr. Varns’s opinion “found

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that [Plaintiff] could perform a broad range of work at the light exertional level.” A.R.

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32. The definition of light work contained in 20 C.F.R. § 404.1567(b), however, makes

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no mention of pain limitations such as those established by Dr. Varns’s opinion.

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Plaintiff correctly notes that an ALJ may not avoid his obligation to provide

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specific and legitimate reasons for rejecting a treating physician’s opinion by simply

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ignoring the opinion. Doc. 18 at 18 (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1038

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n.10 (9th Cir. 2007)). It is difficult to determine whether the ALJ actually considered the

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final two pages of Dr. Varns’s report in his determination that the opinion should be

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afforded significant and controlling weight. The Court, however, need not decide the

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issue because it concludes, in any event, that a remand is required to consult a vocational

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expert.

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B.

Plaintiff’s Subjective Testimony.

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In evaluating the credibility of a claimant’s testimony regarding subjective pain or

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other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine

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whether the claimant presented objective medical evidence of an impairment that could

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reasonably be expected to produce some degree of the pain or other symptoms alleged;

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and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the

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severity of the symptoms only by giving specific, clear, and convincing reasons for the

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rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).

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The ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause the alleged symptoms. A.R. 29. The ALJ then found

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Plaintiff’s statements regarding the intensity, persistence, and limiting effects of the

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symptoms not credible to the extent they were inconsistent with his RFC assessment. Id.

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The ALJ gave specific, clear, and convincing reasons for finding Plaintiff’s testimony not

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credible. The ALJ found that Plaintiff’s “activities of daily living are inconsistent with

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the claimant’s testimony regarding disability and demonstrate the capacity for work.” Id.

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He noted that Plaintiff “performed personal care tasks, prepared simple meals, cleaned,

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shopped, and watched television.” Id. He further noted that “[s]ome of the physical and

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mental abilities and social interactions required in order to perform these activities are the

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same as those necessary for obtaining and maintaining employment.” Id. at 29-30. The

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ALJ also stated that he discounted Plaintiff’s credibility because “her part-time work after

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the amended onset date is inconsistent with her allegation of disability,” and that medical

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records showed that Plaintiff “was working part-time as a leasing assistant on June 14,

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2011.” Id. at 30.

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The ALJ further noted that there was “no evidence of hospitalizations, physical

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therapy, pain clinic treatment, surgery, or other, similar treatment for [Plaintiff]’s alleged

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pain.” Id. In addition, the ALJ found that: (1) Plaintiff had failed to follow through on

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prescribed treatment, (2)“Dr. Zoltan reported that [her] left knee was stable and had full

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range of motion, (3) the findings of a September 21, 2010 x-ray were benign, (4) Plaintiff

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“received routine and conservative treatment for complaints of knee pain and mood

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disorder,” (5) a January 3, 2011 exam showed that Plaintiff’s knee was “stable, and had

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full range of motion,” (6) a May 2010 mental status examination showed that Plaintiff

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was “in a stable mental state,” and (7) recent treatment records from Phoenix Interfaith

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Counseling “continued to reaffirm [Plaintiff]’s stable mental status.” Id. at 30-32. The

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ALJ’s reasons for rejecting Plaintiff’s subjective testimony are sufficient to meet the

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standard required by the Ninth Circuit. See Vasquez, 572 F.3d at 591.

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C.

Use of Medical-Vocational Guidelines.

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“At step five, the ALJ can call upon a vocational expert to testify as to: (1) what

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jobs the claimant, given his or her residual functional capacity, would be able to do; and

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(2) the availability of such jobs in the national economy.” Tackett v. Apfel, 180 F.3d

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1094, 1101 (9th Cir. 1999). But an ALJ must not always utilize a vocational expert. In

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some cases, the ALJ may rely on Medical-Vocational guidelines, or “grids,” which are “a

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matrix system for handling claims that involve substantially uniform levels of

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impairment.” Id. at 1101 (citing 20 C.F.R. pt. 404, subpt. P, app. 2). “The Guidelines

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present, in table form, a short-hand method for determining the availability and numbers

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of suitable jobs for a claimant.” Id. (emphasis in original). “The Commissioner’s need

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for efficiency justifies use of the grids at step five where they completely and accurately

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represent a claimant’s limitation.” Tackett, 180 F.3d at 1101 (emphasis in original). This

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means that a claimant “must be able to perform the full range of jobs in a given category,

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i.e., sedentary work, light work, or medium work.” Id. (emphasis in original). The

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Tackett court noted that “significant non-exertional impairments . . . may make reliance

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on the [Guidelines] inappropriate,” and that “pain can be a non-exertional limitation.” Id.

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at 1101-02 (citing Derosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 577 (9th

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Cir. 1988)).

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Plaintiff argues that the ALJ’s “reliance on the grids was inappropriate because

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[she] suffered non-exertional impairments sufficiently severe as to impact the ability to

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work.” Doc. 18 at 34. The ALJ found that Plaintiff’s “limitation to unskilled work has

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little or no effect on the occupational base of work at the light exertional level because

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the claimant is still capable of the basic mental work-related activities, namely

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understanding, carrying out, and remembering simple instructions; making judgments

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that are commensurate with the functions of unskilled work,” such as “simple work-

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related decisions; responding appropriately to supervision, coworkers, and usual work

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situations; and dealing with changes in a routine work setting.” A.R. at 35 (citing SSR

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96-9p). As discussed above, the final two pages of Dr. Varns’s report indicate that

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Plaintiff experiences pain that is “moderately severe,” that her pain would “frequently”

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interfere with attention and concentration, and that she would “frequently” experience

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deficiencies of concentration, persistence, or pain. A.R. 590-591. These limitations

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could be described as “significant.” The ALJ’s conclusion that the Plaintiff’s “additional

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limitations have little or no effect on the occupational base of unskilled light work” (A.R.

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35) is at odds with Dr. Varns’s report.

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limitations found by Dr. Varns could have impacted Plaintiff’s ability to complete “basic

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mental work-related activities,” and because the ALJ did not explain whether or why he

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disregarded this portion of the Varns report, the Court concludes it was not appropriate

Because it appears that the non-exertional

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for the ALJ to rely solely on the grids and a vocational consultant should have been

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consulted. See Tackett, 180 F.3d at 1101-02 (“[S]ignificant non-exertional impairments .

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. . may make reliance on the [Guidelines] inappropriate.”).

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D.

Remand.

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Having found legal error, the Court has the discretion to remand the case for

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further development of the record or for an award benefits. See Reddick, 157 F.3d at 728.

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In Smolen v. Chater, the Ninth Circuit held that evidence should be credited and an action

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remanded for an immediate award of benefits when the following three factors are

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satisfied:

(1) the ALJ has failed to provide legally sufficient reasons for rejecting

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

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of disability can be made, and (3) 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. 80 F.3d 1273, 1292

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(9th Cir. 1996).

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Here, the ALJ clearly considered the opinion of Dr. Varns. Because he failed to

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include any discussion of the pain related limitations established by Dr. Varns, it is

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unclear whether the ALJ properly considered that portion of the report. However, even if

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the Court were to credit Dr. Varns’s report as true, it is not clear from the record that the

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ALJ would be required to find the Plaintiff disabled. The other portions of Dr. Varns’s

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report indicated that Plaintiff was capable of light work, and the ALJ failed to consult a

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vocational expert to determine the effect that Dr. Varns’s pain limitations would have on

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the occupational base. Accordingly, the question of whether any jobs would be available

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to Plaintiff if Dr. Varns’s opinion were credited as true remains unanswered. The Court

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therefore cannot say that it is clear from the record that the ALJ would be required to find

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Plaintiff disabled were Dr. Varns’s report credited and will remand this case for further

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proceedings. On remand, the Defendant is directed to consider the effect of Dr. Varns’s

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pain limitations on the occupational base of unskilled light work.

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IT IS ORDERED that this case is remanded for further proceedings. The Clerk
shall enter judgment accordingly and terminate this case.
Dated this 7th day of April, 2014.

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