Gomez v. Colvin

Filing 19

ORDER This case is remanded for an award of benefits. The Clerk is directed to enter judgment and terminate this action. Signed by Judge David G Campbell on 7/8/2014. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carol Ann Gomez,

No. CV-13-01273-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin,

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Defendant.

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Pursuant to 42 U.S.C. § 405(g), Plaintiff Carol Ann Gomez seeks judicial review

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

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Security Act. Doc. 15. For the reasons that follow, the Court will remand the case for an

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award of benefits.

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I.

Background.

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Plaintiff applied for disability and supplemental security insurance benefits on

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October 12, 2010, alleging disability beginning March 30, 2010. Doc. 18 at 1. After a

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hearing on March 15, 2012 (A.R. 26-70), an administrative law judge (“ALJ”) issued an

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opinion on June 8, 2012, finding Plaintiff not disabled (A.R. 11-25). Plaintiff’s request

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

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Commissioner’s final decision. Doc. 18 at 2.

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II.

Legal Standard.

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The district court reviews only those issues raised by the party challenging the

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ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

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may set aside the Commissioner’s disability determination only if the determination is

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not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

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625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

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preponderance, and relevant evidence that a reasonable person might accept as adequate

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to support a conclusion considering the record as a whole. Id. In determining whether

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substantial evidence supports a decision, the court must consider the record as a whole

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and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

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As a general rule, “[w]here the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

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upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

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A.

Five-Step Sequential Evaluation.

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To determine whether a claimant is disabled for purposes of the Social Security

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Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

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the burden of proof on the first four steps, but at step five the burden shifts to the

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Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

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At the first step, the ALJ determines whether the claimant is engaging in

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substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

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disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

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has a “severe” medically determinable physical or mental impairment. § 404.1520(a)

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(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the

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ALJ considers whether the claimant’s impairment or combination of impairments meets

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or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt.

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404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id.

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If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant’s

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residual functional capacity (“RFC”) and determines whether the claimant is still capable

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of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not

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disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step,

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where he determines whether the claimant can perform any other work based on the

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claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

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claimant is not disabled. Id. If not, the claimant is disabled. Id.

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At step one, the ALJ determined that Plaintiff meets the insured status

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requirements of the Social Security Act and that she has not engaged in substantial

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gainful activity since March 30, 2010. At step two, the ALJ found that Plaintiff has the

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severe impairments of obesity, hypertension with renal involvement, stage III chronic

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kidney disease, fibromyalgia, a pain disorder, dysthymic disorder, and generalized

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anxiety disorder. At step three, the ALJ found that the Plaintiff does not have an

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impairment or combination of impairments that meets or medically equals an impairment

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listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that

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Plaintiff “has the residual functional capacity to perform light work as defined in 20

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C.F.R. § 404.1567(b), except for no more than occasional climbing, stooping, kneeling,

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crouching, and crawling; no exposure to dangerous machinery and unprotected heights;

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and relatively few workplace changes.” At step five, the ALJ concluded that Plaintiff is

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capable of performing her past relevant work as a legal clerk and data entry clerk because

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this work does not require the performance of work-related activities precluded by

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Plaintiff’s RFC.

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III.

Analysis.

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The only issue for review asserted at the outset of Plaintiff’s brief is that the ALJ’s

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decision is not supported by substantial evidence. Doc. 15 at 1. The Court, however, is

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only required to review those issues raised by the parties, see Lewis, 236 F.3d at 517

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n.13, and simply asserting that the ALJ’s decision is not supported by substantial

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evidence does not raise a specific issue for review.

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Plaintiff does raise specific issues later in her brief. First, she argues that the ALJ

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erred in rejecting the opinion of Dr. Prieve, an examining physician. Doc. 15 at 15.

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Next, she argues that the ALJ incorrectly classified Plaintiff’s work as a legal clerk as

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“substantial gainful activity.” Id. at 17. Finally, she argues that the ALJ erred in her

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assessment of Plaintiff’s subjective testimony. Id. at 19. Because the Court finds that the

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ALJ improperly weighed the medical evidence, it need not consider Plaintiff’s other

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arguments.

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A.

Weighing of Medical Source Evidence.
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Legal Standard.

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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

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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). If it is not contradicted by another doctor’s opinion, the opinion of a treating

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or examining physician can be rejected only for “clear and convincing” reasons. Lester,

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81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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

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specific and legitimate reasons that are supported by substantial evidence in the record.”

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Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

Generally, an ALJ should give greatest weight to a treating

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An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

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detailed and thorough summary of the facts and conflicting clinical evidence, stating his

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interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

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Cir. 1986). But “[t]he ALJ must do more than offer [her] conclusions. [She] must set

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forth [her] own interpretations and explain why they, rather than the doctors’, are

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correct.” Embrey, 849 F.2d at 421-22.

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The Commissioner is responsible for determining whether a claimant meets the

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statutory definition of disability and does not give significance to a statement by a

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medical source that the claimant is “disabled” or “unable to work.”

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§ 416.927(d).

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20 C.F.R.

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2.

Dr. Prieve.

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Dr. Prieve examined Plaintiff on February 8, 2011. A.R. 572-77. Because Dr.

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Prieve is an examining physician, the ALJ was required to provide either “clear and

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convincing” or “specific and legitimate” reasons for discounting his opinion.

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The ALJ’s opinion states that she gave “little weight to the opinion of Dr. Prieve,

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except with regard to his documentation about what medications that the [Plaintiff] has

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been taking.” A.R. 19. She notes that Dr. Prieve assessed the following limitations:

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(1) Plaintiff was limited to stand or walk for at least 2 hours but less than 6 hours in an 8-

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hour workday; (2) she could sit between 6 and 8 hours in an 8-hour workday; (3) she

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could lift or carry 10 pounds frequently and 20 pounds occasionally; (4) she could

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occasionally climb, stoop, kneel, crouch, crawl, handle, finger, and feel; and (5) she

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should avoid working at heights. A.R. 19.

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The ALJ provides no discussion of her reasons for giving little weight to Dr.

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Prieve’s opinion. Although the ALJ’s RFC assessment appears to be fairly consistent

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with most of Dr. Prieve’s assessed limitations, the ALJ provides no discussion of why she

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did not include Dr. Prieve’s opinion that Plaintiff could only “occasionally” handle,

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finger, or feel. A.R. 576. The ALJ sets out no conflicting clinical evidence and provides

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no interpretation of either Dr. Prieve’s opinion or any conflicting clinical evidence. The

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only other medical opinion discussed in the ALJ’s opinion is that of Dr. Tracy Ristich, a

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psychologist, and the discussion of that opinion focuses only on Plaintiff’s cognitive

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impairments. A.R. 19-20.

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Defendant’s brief identifies evidence that could support the ALJ’s rejection of Dr.

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Prieve’s opinion (Doc. 18 at 4-5), but the Court is limited to considering the reasoning

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and factual findings set forth by the ALJ. Bray v. Comm’r of Soc. Sec., 554 F.3d 1219,

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1225-26 (“Long standing principles of administrative law require us to review the ALJ’s

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decision based on the reasoning and factual findings offered by the ALJ – not post hoc

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rationalizations that attempt to intuit what the adjudicator might have been thinking.”)

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(internal citation omitted). The Court need not decide whether the ALJ was required to

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provide “clear and convincing” or “specific and legitimate” reasons for rejecting Dr.

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Prieve’s opinion because the ALJ provided no reasons for rejecting portions of Dr.

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Prieve’s opinion. This does not meet the standard required by the Ninth Circuit and

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constitutes legal error. See Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

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Because the Court concludes that the ALJ erred in rejecting the opinion of Dr. Prieve,

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Defendant’s decision must be vacated.

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B.

Remand.

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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 v. Chater, 157 F.3d 715, 728 (9th Cir. 1998). In Smolen, the Ninth Circuit held

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that evidence should be credited and an action remanded for an immediate award of

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benefits when the following three factors are satisfied: (1) the ALJ has failed to provide

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legally sufficient reasons for rejecting evidence, (2) there are no outstanding issues that

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must be resolved before a determination of disability can be made, and (3) it is clear from

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the record that the ALJ would be required to find the claimant disabled were such

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evidence credited. 80 F.3d 1273, 1292 (9th Cir. 1996).

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At the hearing before the ALJ on Plaintiff’s claim, the vocational expert (“VE”)

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was not specifically asked to respond to a hypothetical based on Dr. Prieve’s opinion.

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The ALJ did ask the VE a hypothetical based on the RFC she ultimately adopted in this

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case: an individual who could perform light work as defined in 20 C.F.R. § 404.1567(b),

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except for no more than occasional climbing, stooping, kneeling, crouching, and

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crawling; no exposure to dangerous machinery and unprotected heights; and relatively

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few workplace changes. A.R. 53-54. The VE responded that such a hypothetical person

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would be capable of performing Plaintiff’s past relevant work as a legal and data entry

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clerk. A.R. 54.

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Plaintiff’s attorney later asked the VE whether an individual that is “only able to

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occasionally perform the functions of handling, fingering, and feeling” would be able to

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do “the skilled part of a receptionist job” or “the skilled part of [an] information clerk

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job.” A.R. 67-68. The VE responded in the negative to both questions, noting that

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“[y]ou need to have frequent reaching, handling, fingering” for a receptionist job, and

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that “if you were down at occasional on the handling, fingering, reaching, you’re not

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going to be able to do probably many, any jobs within the clerical field.” A.R. 67-68.

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This testimony makes clear that if Dr. Prieve’s assessed limitations of occasional

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handling, fingering, and feeling were credited as true, an award of benefits would be

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required. See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (“[T]he district

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court should credit evidence that was rejected during the administrative process and

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remand for an immediate award of benefits if . . . 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.”); see also

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Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

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The overwhelming authority in this Circuit makes clear that the “credit as true”

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doctrine is mandatory. See Lester, 81 F.3d at 834; Smolen, 80 F.3d at 1292; Reddick, 157

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F.3d at 729; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); Moore v. Comm’r of

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Soc. Sec., 278 F.3d 920, 926 (9th Cir. 2002); McCartey v. Massanari, 298 F.3d 1072,

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1076-77 (9th Cir. 2002); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004); Benecke,

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379 F.3d at 593-95; Orn, 495 F.3d at 640; Lingenfelter v. Astrue, 504 F.3d. at 1041

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(“[W]e will not remand for further proceedings where, taking the claimant’s testimony as

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true, the ALJ would clearly be required to award benefits[.]”).1 Applying these cases, the

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Court concludes that the improperly rejected opinion of Dr. Prieve must be credited as

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true and, when credited as true and combined with the VE’s opinion, requires an award of

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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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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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2.

The Clerk is directed to enter judgment and terminate this action.

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Dated this 8th day of July, 2014.

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