Murillo v. Colvin

Filing 16

ORDER that the final decision of the Commissioner of Social Security is vacated and this case is remanded for an award of benefits. The Clerk shall enter judgment accordingly and terminate this action. Signed by Judge David G Campbell on 5/28/14. (LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christina D. Murillo,
Plaintiff,

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ORDER

v.

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No. CV-13-01569-PHX-DGC

Carolyn W. Colvin,

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Defendant.

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Plaintiff Christina D. Murillo seeks review under 42 U.S.C. § 405(g) of the final

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decision of the Commissioner of Social Security (“the Commissioner”), which denied her

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disability insurance benefits and supplemental security income under sections 216(i),

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223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the

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Administrative Law Judge (“ALJ”) is based on legal error, the Commissioner’s decision

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will be vacated and the matter remanded for an award of benefits.

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I.

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Background.
Plaintiff was born in December 1975. She has a bachelor’s degree in social work

and has previously worked as a benefits administrator and a benefits specialist.

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On September 3, 2009, Plaintiff applied for disability insurance benefits. On

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July 13, 2010, she applied for supplemental security income. She alleged disability

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beginning July 29, 2009 in both applications. On October 17, 2011, she appeared with

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her attorney and testified at a hearing before the ALJ. A vocational expert also testified.

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On November 10, 2011, the ALJ issued a decision finding that Plaintiff was not

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disabled within the meaning of the Social Security Act. The Appeals Council denied

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Plaintiff’s request for review of the hearing decision, making the ALJ’s decision the

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Commissioner’s final decision.

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II.

Standard of Review.

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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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III.

ALJ’s Five-Step Sequential Evaluation Process.

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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

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§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step

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three, the ALJ considers whether the claimant’s impairment or combination of

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“severe”

medically

determinable

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physical

or

mental

impairment.

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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

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of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

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be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

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claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

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still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

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

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step, 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 found that Plaintiff meets the insured status requirements of

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the Social Security Act through December 31, 2014, and that she has not engaged in

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substantial gainful activity since July 29, 2009. At step two, the ALJ found that Plaintiff

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has the following severe impairments: fibromyalgia, migraine headaches, and obesity.

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The ALJ also found that Plaintiff has mild sleep apnea.

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determined that Plaintiff does not have an impairment or combination of impairments that

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

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Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to perform:

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At step three, the ALJ

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[L]ight work as defined in 20 CFR 404.1567(b) and
416.967(b), with the ability to lift and carry 10 pounds
frequently and 20 pounds occasionally, sit, stand and walk for
6 out of 8 hours per day with a sit-stand option required at
will, unlimited pushing and pulling with the upper and lower
extremities as long as within these weight limits, occasional
balancing, climbing, crouching and crawling, frequent
stooping and kneeling, and the need to avoid extremely cold
temperatures, dust, fumes and gases, humidity, hazardous
heights and moving machinery, and no more than moderate
noise levels, and the ability to tolerate office-level noise.

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A.R. 23-24. The ALJ further found that Plaintiff is able to perform her past relevant

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work as a benefits administrator or benefits specialist because such work does not require

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the performance of work-related activities precluded by Plaintiff’s RFC.

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IV.

Analysis.

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Plaintiff argues the ALJ’s decision is defective for two reasons: (1) the ALJ

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erroneously weighed medical source evidence, and (2) the ALJ improperly evaluated

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Plaintiff’s credibility and discounted her subjective testimony. Because the Court finds

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that the ALJ erroneously weighed medical source evidence, it need not address Plaintiff’s

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assertion that the ALJ improperly evaluated her credibility.

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A.

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Plaintiff argues that the ALJ improperly weighed the medical opinions of the

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following medical sources: treating physicians Drs. Dai, Bhalla, and Tran; examining

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psychologist Dr. Walter; licensed professional counselor Mr. Tucker; and examining

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physical therapist and disability specialist Mr. Randall. Doc. 10 at 5. Because the Court

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finds that the ALJ erroneously weighed Dr. Dai’s medical opinion, it will not address

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Plaintiff’s arguments regarding the other medical sources.

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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. The Commissioner is responsible for determining

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whether a claimant meets the statutory definition of disability and does not give

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significance to a statement by a medical source that the claimant is “disabled” or “unable

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to work.” 20 C.F.R. § 416.927(d).

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2.

Anita Dai, M.D.

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Plaintiff’s treating physician, Anita Dai, M.D., specializes in internal medicine.

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Doc. 10 at 5. On November 6, 2010, Dr. Dai opined that Plaintiff suffered from frequent

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migraine headaches lasting three hours or more. A.R. 541. She opined that Plaintiff’s

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headaches were accompanied with vertigo/dizziness, nausea, fatigue, and pain, and that

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the headaches occurred 15 times per month. Id. She further opined that Plaintiff had

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moderate restrictions on exposure to unprotected heights, moving machinery, marked

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changes in temperature and humidity, and dust, fumes and gases. Id. The ALJ did not

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accord Dr. Dai’s opinion about Plaintiff’s migraine headaches “greater weight” because,

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the ALJ explained, “the greater objective record fails to show [Plaintiff’s] headaches

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have occurred as frequently or with the severity of those cited by Dr. Dai, or that

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[Plaintiff] is otherwise unable to sustain at least sedentary work activity.” A.R. 27.

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Dr. Dai’s medical opinion was contradicted by the opinions of Drs. Marc

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Wasserman, M.D. and D. Fruchtman, D.O., examining physicians who opined that

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Plaintiff had greater abilities than those identified in Dr. Dai’s opinion. A.R. 25-26. The

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ALJ therefore could discount Dr. Dai’s opinion for specific and legitimate reasons

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supported by substantial evidence. Lester, 81 F.3d at 830-31.

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Unfortunately, the ALJ’s reason for discounting Dr. Dai’s opinion was limited to a

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single phrase – “the greater objective record fails to show the claimant’s headaches have

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occurred as frequently or with the severity of those cited by Dr. Dai” – and no citations to

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the record. AR 27.1 If the Court looks elsewhere in the ALJ’s opinion to try and

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determine the reasons for the ALJ’s conclusion, little support can be found.

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The ALJ’s discussion of the record provides only two references to migraine

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headaches that plausibly contradict Dr. Dai’s opinion.

First, the ALJ cites Dr.

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Wasserman’s statement that Plaintiff’s migraines were “under decent control.” A.R. 25,

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716. But Dr. Wasserman did not explain what he meant by “decent control,” and his

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opinion states that Plaintiff suffers from migraine headaches three times per week.

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AR 716.

Second, the ALJ states that “[a]s of April 28, 2011, [Plaintiff] reported

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improvement in her headaches.” Unfortunately, the ALJ provides no citation to the

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1,095-page record for this statement. A.R. 25.

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That’s it. The ALJ’s opinion cites no other portions of the “greater objective

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record” to support her conclusion that Plaintiff’s headaches occur less frequently and

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with less severity than described by Dr. Dai. Mere references to an unclear statement by

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Dr. Wasserman and an incited report by Plaintiff, neither of which is even mentioned in

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the ALJ’s discussion of Dr. Dai’s opinion, certainly do not constitute specific and

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legitimate reasons supported by substantial evidence in the record. Nor do they satisfy

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the Ninth Circuit’s requirement that the ALJ provide a “detailed and thorough summary

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of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and

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making findings.” Cotton, 799 F.2d at 1408.

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The Commissioner admits “that Plaintiff had ‘severe’ migraine headaches,” but

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argues that Plaintiff’s neurological exams were consistently normal and provides

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numerous supporting citations. Doc. 14 at 9. The Court cannot, however, consider

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reasons or factual findings not provided by the ALJ.

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administrative law require us to review the ALJ’s decision based on the reasoning and

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factual findings offered by the ALJ – not post hoc rationalizations that attempt to intuit

“Long-standing principles of

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The only two citations in this paragraph of the ALJ’s opinion are to Dr. Dai’s
opinions. AR 27.
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what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554

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F.3d 1219, 1225 (9th Cir. 2009). The same is true for the Commissioner’s assertion that

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Plaintiff denied headaches, that Plaintiff reported fewer headaches, or that Drs.

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Wasserman, Mantey, and Johnson – and Dr. Dai herself – all concluded that Plaintiff’s

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headaches were controlled or stable with treatment. Doc. 14 at 10, 13. None of these

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reasons was cited by the ALJ, and the Court cannot “intuit” from her vague reference to

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“the greater objective record” that she relied on them.2

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Because the ALJ clearly failed to provide specific and legitimate reasons

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supported by substantial evidence for discounting Dr. Dai’s opinion, the Court concludes

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that the ALJ committed legal error. Her decision must therefore be vacated.3

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B.

Remand.

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Where an ALJ fails to provide adequate reasons for rejecting the opinion of a

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physician, the Court must credit that opinion as true. Lester, 81 F.3d at 834. An action

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

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are 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 as true. Smolen v.

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

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Defendant’s brief included a thorough and careful review of the record, as well
as detailed arguments. Defendant is reminded, however, of the need to comply with the
Court’s local rules on lines per page and font size in text and footnotes. See LRCiv
7.1(b)(1).
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Although the Court need not address them, the ALJ discounted the opinions of
Drs. Bhalla and Tran for the same cryptic reason – that their opinions were not supported
by “the greater objective record.” AR 28. When the Ninth Circuit has repeatedly
instructed that treating physician opinions may be discounted by ALJs only for clear and
convincing or specific and legitimate reasons, the Court finds it very frustrating to see
opinions such as the one in this case. Such opinions invite reversal and remand for an
award of benefits under the established credit-as-true doctrine, when simple compliance
with the Ninth Circuit’s longstanding instructions for writing decisions might well result
in different outcomes.
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At Plaintiff’s hearing, a vocational expert testified that an individual who suffered

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from less severe and less frequent headaches than those described in Dr. Dai’s opinion

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would be disabled. A.R. 57. When Dr. Dai’s opinion is credited as true, therefore, the

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expert opinion makes clear that the Court must remand for an award of benefits.

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IT IS ORDERED:

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The final decision of the Commissioner of Social Security is vacated and
this case is remanded for an award of benefits.

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2.

The Clerk shall enter judgment accordingly and terminate this action.

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Dated this 28th day of May, 2014.

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