Fisher v. Colvin

Filing 19

ORDER: the final decision of the Commissioner of Social Security is vacated; this case is remanded for immediate calculation and award of benefits; the Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge Neil V Wake on 3/14/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kelly Teresa Fisher,

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No. CV-15-01490-PHX-NVW
Plaintiff,

ORDER

v.

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Carolyn W. Colvin, Acting Commissioner
of Social Security,

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Defendant.

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Plaintiff Kelly Teresa Fisher 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 not supported by substantial evidence and is based

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on legal error, the Commissioner’s decision will be vacated and the matter remanded for

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calculation and award of benefits.

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I.

BACKGROUND

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Plaintiff was born in May 1967 and was 42 years old at the onset of her disability.

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She completed a high school education and obtained a cosmetology license. Her only

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past relevant work was as a staffing coordinator. She underwent a spinal laminectomy in

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2001 and a spinal fusion in 2004. She had a spinal cord stimulator implanted in 2006. In

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addition to these procedures, she has had spinal injections. She suffers from chronic back

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pain, migraine headaches, fatigue, insomnia, and depression.
In August 2011, Plaintiff applied for disability insurance benefits and

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supplemental security income, alleging disability beginning March 20, 2010.

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September 9, 2013, she appeared with her attorney and testified at a hearing before the

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ALJ. A vocational expert also testified. On December 19, 2013, the ALJ issued a

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decision that Plaintiff was not disabled within the meaning of the Social Security Act.

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The Appeals Council denied Plaintiff’s request for review of the hearing decision,

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making the ALJ’s decision the Commissioner’s final decision. On August 3, 2015,

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Plaintiff sought review by this Court.

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II.

On

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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accord Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence

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is susceptible to more than one rational interpretation, we must uphold the ALJ’s findings

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if they are supported by inferences reasonably drawn from the record.”).

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III.

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 the burden shifts to the Commissioner at

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step five. 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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“severe”

medically

determinable

physical

or

mental

impairment.

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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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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 and determines whether the claimant is still

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capable 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 residual functional capacity, age, education, and work experience.

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§ 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is

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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, 2015, and that she has not engaged in

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substantial gainful activity since March 20, 2010. At step two, the ALJ found that

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Plaintiff has the following severe impairments: lumbar degenerative disc disease, facet

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osteoarthritis, left S1 radiculopathy (compressed nerve), left sacroiliac arthralgia (joint

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pain), migraine, headaches, and chronic pain syndrome.

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At step three, the ALJ

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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 20 C.F.R. Part 404, Subpart P,

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Appendix 1.

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At step four, the ALJ found that Plaintiff:

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has the residual functional capacity to perform the full range of light work
as defined in 20 CFR 404.1567(b) and 416.967(b) with the following
limitations: The claimant is capable of no more than occasional postural
maneuvers such as balancing, stooping, kneeling, crouching, crawling and
climbing on ramps and stairs; but must avoid climbing on ladders, ropes
and scaffolds. The claimant cannot be exposed to dangerous machinery
and unprotected heights. She will require a sit/stand option at will provided
it include not being off task for more than 10% of the day.

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The ALJ further found that Plaintiff is capable of performing past relevant work as a
staffing coordinator.
IV.

ANALYSIS

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A.

The ALJ Did Not Provide Clear and Convincing Reasons for
Discrediting Plaintiff’s Symptom 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). “This is not an easy

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requirement to meet: ‘The clear and convincing standard is the most demanding required

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in Social Security cases.’” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014)

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(quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

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If a claimant’s statements about pain or other symptoms are not substantiated by

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objective medical evidence, the ALJ must consider all of the evidence in the case record,

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including any statement by the claimant and other persons, concerning the claimant’s

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symptoms. SSR96-7p. Then the ALJ must make a finding on the credibility of the
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claimant’s statements about symptoms and their functional effects. Id. The claimant is

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not required to produce objective medical evidence of the symptom or its severity.

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Garrison, 759 F.3d at 1014.

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In making a credibility determination, an ALJ “may not reject a claimant’s

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subjective complaints based solely on a lack of objective medical evidence to fully

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corroborate the claimant’s allegations.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

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1219, 1227 (9th Cir. 2009) (internal quotation marks and citation omitted). But “an ALJ

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may weigh inconsistencies between the claimant’s testimony and his or her conduct,

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daily activities, and work record, among other factors.” Id. The ALJ must consider all of

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the evidence presented, including the claimant’s daily activities; the location, duration,

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frequency, and intensity of the pain or other symptoms; factors that precipitate and

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aggravate the symptoms; effectiveness and side effects of any medication taken to

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alleviate pain or other symptoms; treatment other than medication; any measures other

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than treatment the claimant uses to relieve pain or other symptoms; and any other factors

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concerning the claimant’s functional limitations and restrictions due to pain or other

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symptoms. SSR 96-7p.

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To ensure meaningful review, the ALJ must specifically identify the testimony

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from a claimant the ALJ finds not to be credible and explain what evidence undermines

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the testimony. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir.

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2014).

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“sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily

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discredit claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002);

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accord Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).

“General findings are insufficient.”

Id.

The ALJ must make findings

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Here, the ALJ found that Plaintiff’s “medically determinable impairments could

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reasonably be expected to cause the alleged symptoms.” The medically determinable

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impairments found by the ALJ are lumbar degenerative disc disease, osteoarthritis, left

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sacroiliac joint pain and radiculopathy, migraines, headaches, and chronic pain syndrome.

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Then the ALJ found Plaintiff’s “statements regarding the intensity, persistence, and
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limiting effects of the symptoms not entirely credible to the extent they are inconsistent

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with the residual functional capacity assessment.”

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Plaintiff testified that she is unable to sit, walk, or stand for any length of time

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because of the pain it causes. She said she is unable to bend or crouch and has difficulty

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lifting her legs to get in and out of the shower and to get dressed. She further testified

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that she has a lot of pain in her legs with swelling and cramping. Plaintiff also testified

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that she is taking a lot of medication for these symptoms, which makes her drowsy and

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unable to function. She said she lies in bed most of the day, watching television. She

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testified that she makes only easy, fast meals, such as soup or microwave meals. She said

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she rarely drives and only goes grocery shopping with assistance. Plaintiff testified that

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she follows her physician’s instructions regarding medications, stretching, and applying

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ice and heat.

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The ALJ found Plaintiff’s “alleged impairments and her characterization of pain

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are not consistent with the medical evidence of record.” The ALJ commented that

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Plaintiff was able to work in the past with her back impairment and stopped working due

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to kidney stones. The ALJ stated that Plaintiff did not take any medication from April

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2011 until 2013, has had only limited conservative treatment for pain, and has had

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minimal treatment for her back impairments.

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occasional gaps in treatment are due to the lack of insurance and funds to receive care,”

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but concluded “the medical evidence that is present in the record does not support the

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claimant’s allegations of disabling symptoms and limitations.” The ALJ found that the

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treatment records, diagnostic studies, and physical examinations do not support Plaintiff’s

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allegations of disabling symptoms and limitations. The ALJ further concluded, “The

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claimant’s subjective complaints are less than fully credible and the objective medical

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evidence does not support the alleged severity of symptoms.”

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The ALJ acknowledged that “the

The ALJ did not identify the specific testimony from Plaintiff the ALJ found not

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to be credible and did not explain what evidence undermines the testimony.

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Treichler, 775 F.3d at 1102. The ALJ did not expressly consider all of the record
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See

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evidence, such as Plaintiff’s daily activities, location of pain, factors that precipitate and

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aggravate the symptoms, effectiveness and side effects of any medication taken to

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alleviate pain or other symptoms, treatment other than medication; and measures Plaintiff

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uses to relieve pain.

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“subjective complaints based solely on a lack of objective medical evidence to fully

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corroborate the claimant’s allegations.” See Bray, 554 F.3d at 1227. Finally, the ALJ

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failed to make findings “sufficiently specific to permit the court to conclude that the ALJ

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did not arbitrarily discredit claimant’s testimony.” See Thomas, 278 F.3d at 958.

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B.

The ALJ impermissibly rejected Plaintiff’s

The ALJ Erred in Weighing Medical Source Opinion Evidence.
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See SSR 96-7p.

Legal Standard

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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). The Commissioner must give weight to the

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treating physician’s subjective judgments in addition to his clinical findings and

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interpretation of test results. Id. at 832-33. Where a treating physician’s opinion is not

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contradicted by another physician, it may be rejected only for “clear and convincing”

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reasons, and where it is contradicted, it may not be rejected without “specific and

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legitimate reasons” supported by substantial evidence in the record. Id. at 830; Orn v.

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Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (where there is a conflict between the opinion

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of a treating physician and an examining physician, the ALJ may not reject the opinion of

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the treating physician without setting forth specific, legitimate reasons supported by

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substantial evidence in the record).

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“Even if a treating physician’s opinion is contradicted, the ALJ may not simply

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disregard it.

The ALJ is required to consider the factors set out in 20 C.F.R.

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§ 404.1527(c)(2)-(6) in determining how much weight to afford the treating physician’s

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medical opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). If a treating
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source’s medical opinion does not meet the test for controlling weight, it still may be

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entitled to the greatest weight and should be adopted. Id. “Similarly, an ALJ may not

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simply reject a treating physician’s opinions on the ultimate issue of disability.” Id. The

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ALJ may, however, discount a treating provider’s opinion if it is based primarily on the

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claimant’s self-reports and the ALJ finds the claimant not credible. Id. at 1162.

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Further, an examining physician’s opinion generally must be given greater weight

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than that of a non-examining physician. Lester, 81 F.3d at 830. As with a treating

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physician, there must be clear and convincing reasons for rejecting the uncontradicted

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opinion of an examining physician, and specific and legitimate reasons, supported by

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substantial evidence in the record, for rejecting an examining physician’s contradicted

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opinion. Id. at 830-31. The opinion of a non-examining physician is not itself substantial

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evidence that justifies the rejection of the opinion of either a treating physician or an

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examining physician. Id. at 831.

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Factors that an ALJ may consider when evaluating any medical opinion include

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“the amount of relevant evidence that supports the opinion and the quality of the

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explanation provided; the consistency of the medical opinion with the record as a whole;

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[and] the specialty of the physician providing the opinion.” Orn, 495 F.3d at 631. In

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deciding weight to give any medical opinion, the ALJ considers not only whether the

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source has a treating or examining relationship with the claimant, but also whether the

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treatment or examination is related to the alleged disability, the length of the relationship,

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frequency of examination, supporting evidence provided by the source, and medical

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specialization of the source. 20 C.F.R. § 404.1527(c). Generally, more weight is given

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to the opinion of a specialist about medical issues related to his area of specialty than to

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the opinion of a source who is not a specialist. 20 C.F.R. § 404.1527(c)(5).

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The ALJ may discount a physician’s opinion that is based only the claimant’s

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subjective complaints without objective evidence. Batson v. Comm’r of Soc. Sec. Admin.,

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359 F.3d 1190, 1195 (9th Cir. 2004).

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2.

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Treating Family Practitioner Philo Rogers, D.O.

Dr. Rogers began treating Plaintiff in August 2009; she returned monthly through

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April 2011.

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abdominal tenderness and muscle spasms and tenderness in all areas of the spine. He

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prescribed multiple medications, including pain relievers, a muscle relaxant, and

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migraine medication. He referred Plaintiff to a neurologist and a pain clinic. On multiple

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occasions, Dr. Rogers administered trigger point injections to Plaintiff’s spine. In July

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2012, Dr. Rogers administered trigger point injections to Plaintiff’s lumbosacral spine

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and renewed pain medication prescriptions. Plaintiff saw Dr. Rogers again on October 5,

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Dr. Rogers documented physical examination findings that included

2012.

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On October 15, 2012, Dr. Rogers submitted a statement that Plaintiff suffers from

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back pain with lumbar neuropathy, degenerative disc disease, and failed back surgeries.

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In addition, he wrote, she has hypertension and fatigue. He opined that she is “totally and

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permanently disabled from any type of gainful employment due [to] the chronic pain

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syndrome and neuropathy symptoms.”

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On December 6, 2012, Dr. Rogers submitted a Multiple Impairment

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Questionnaire. He identified Plaintiff’s conditions as back pain, lumber neuropathy,

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headaches, fatigue, chronic pain syndrome, and degenerative disc disease. He reported

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that his diagnoses were supported by evidence of failed back surgeries, MRIs, and CT

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scans. He reported her primary symptoms as constant severe pain and lower extremity

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neuropathy, which has not been relieved with medication without unacceptable side

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effects. He said the pain is located in her back and pelvis and radiates down her legs. Dr.

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Rogers opined that in an 8-hour day, Plaintiff can only sit 0-1 hours and stand/walk 0-1

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hours. He further opined that she should not sit or stand/walk continuously. He opined

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that Plaintiff’s experience of pain, fatigue, or other symptoms would constantly interfere

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with attention and concentration. Dr. Rogers also opined that Plaintiff is depressed and

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frustrated by her constant severe pain. He further opined that Plaintiff would need to take

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frequent long unscheduled breaks to rest and is likely to be absent from work more than 3

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times per month. On June 14, 2013, Dr. Rogers submitted an updated medical source

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statement that was consistent with the information he provided December 6, 2012.

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The ALJ said he gave “no weight” to Dr. Rogers’ opinion because he is a primary

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care physician and not an orthopedic specialist, “his opinions rely heavily on the

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claimant’s subjective complaints and the totality of the evidence does not support these

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subjective complaints.”

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corroborated by objective evidence, the ALJ found it not credible and concluded Dr.

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Rogers could not rely on it either.

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3.

In other words, because Plaintiff’s pain testimony was not

Examining Consultants

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The ALJ gave great weight to the opinion of Bradley H. Werrell, D.O., who

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conducted a one-time physical evaluation of Plaintiff and submitted a Medical Source

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Statement dated December 10, 2011, on behalf of the State agency.

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physical examination showed almost entirely normal results. He diagnosed history of

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lumbar laminectomy and history of migraine headaches, but opined these conditions

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would not impose any limitations for 12 continuous months. Despite giving “great

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weight” to Dr. Werrell’s opinion of no limitations, the ALJ included many limitations in

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her residual functional capacity assessment.

Dr. Werrell’s

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The ALJ gave great weight to the opinion of Jeffrey Levison, M.D., who

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conducted a one-time physical examination of Plaintiff and submitted a Medical Source

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Statement dated May 17, 2013, on behalf of the State agency.

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Levison’s statement are numbered, and page four of six is missing. Page four apparently

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includes questions 1 and 2 because page five begins with question 3 regarding Plaintiff’s

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capacity to sit. On the pages that are included in the record, Dr. Levison opined that

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Plaintiff has no limitations in sitting, but may need to stretch intermittently. He also

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opined that Plaintiff is limited to frequent stooping, but not limited regarding climbing,

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kneeling, crouching, crawling, reaching, handling, fingering, and feeling. He opined that

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Plaintiff has no environmental limitations. Dr. Levison’s opinion regarding Plaintiff’s
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The pages of Dr.

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functional capacity for lifting, carrying, standing, or walking is not included in the record.

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Dr. Levison’s physical examination findings are essentially normal. He commented that

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Plaintiff reported low back pain, but did not show evidence of significant pain in her

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movements or heart rate. Despite giving “great weight” to Dr. Levison’s opinion that

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Plaintiff can perform unlimited sitting with intermittent stretching, the ALJ found

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Plaintiff requires “a sit/stand option at will provided it include not being off task for more

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than 10% of the day.” The ALJ’s residual capacity determination also disagrees with Dr.

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Levison regarding climbing, kneeling, crouching, crawling, and working around

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dangerous machinery and unprotected heights.

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The ALJ gave little weight to the August 26, 2013 Medical Source Statement of

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John P. Kelley, M.D., because (1) Dr. Kelley saw Plaintiff only once, and (2)

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“considering the relative[ly] positive evaluation, it appears Dr. Kelley relied heavily on

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the claimant’s subjective complaints in making his opinion.”

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examination, Dr. Kelley found limited range of motion in Plaintiff’s neck and lower back,

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palpable upper body muscle tenderness, tenderness in lower abdominal quadrants, and

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absent left Achilles reflex. Dr. Kelley opined that in an 8-hour day Plaintiff can sit 3-4

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hours and stand/walk 0-1 hours, and she was likely to be absent from work more than 3

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times a month as a result of her impairments or treatment. He opined that anxiety

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contributes to the severity of Plaintiff’s symptoms and functional limitations. However,

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he also opined that pain and fatigue would seldom interfere with Plaintiff’s attention and

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concentration, and she is capable of tolerating moderate stress.

Upon physical

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Because the opinions of examining physicians contradict that of treating physician

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Dr. Rogers, the ALJ was required to set forth specific and legitimate reasons for rejecting

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Dr. Rogers’ opinion. Further, the ALJ was required to consider the factors set out in

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20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to give Dr. Roger’s

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opinion. Therefore, the ALJ should have considered how long Dr. Rogers had treated

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Plaintiff, the number of times Dr. Rogers had seen Plaintiff, and the kinds and extent of

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examinations and testing Dr. Rogers performed or ordered from specialists. It was not
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sufficient for the ALJ to reject Dr. Rogers’ opinion merely because he is not an

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orthopedic surgeon and Plaintiff’s testimony regarding the severity of her pain was not

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corroborated by objective evidence.

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C.

Remand

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If the ALJ’s decision is not supported by substantial evidence or suffers from legal

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error, the district court has discretion to reverse and remand either for an award of

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benefits or for further administrative proceedings. Smolen v. Chater, 80 F.3d 1273, 1292

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(9th Cir. 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for

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further proceedings is appropriate if enhancement of the record would be useful.”

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Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the record

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has been developed fully and further administrative proceedings would serve no useful

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purpose, the district court should remand for an immediate award of benefits.” Id. (citing

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Smolen, 80 F.3d at 1292).

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Moreover, rejected symptom testimony and/or medical opinion evidence should be

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credited as true, and the case remanded with instructions to calculate and award benefits

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if three conditions are satisfied: “(1) the record has been fully developed and further

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administrative proceedings would serve no useful purpose; (2) the ALJ has failed to

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provide legally sufficient reasons for rejecting evidence, whether claimant testimony or

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medical opinion; and (3) if the improperly discredited evidence were credited as true, the

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ALJ would be required to find the claimant disabled on remand.” Garrison v. Colvin,

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759 F.3d 995, 1020 (9th Cir. 2014).

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All three conditions are satisfied here. There are no outstanding medical records

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or medical source opinions to be obtained. Further administrative proceedings would

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serve no useful purpose.

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discrediting Plaintiff’s testimony and the opinion of her treating physician. When the

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vocational expert was presented with a hypothetical including the limitations opined by

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Dr. Rogers, the expert said there would be no jobs existing in the national economy that

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could be performed by the hypothetical individual. Therefore, if Plaintiff’s testimony

The ALJ failed to provide legally sufficient reasons for

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were credited as true and Dr. Rogers’ opinion given controlling weight, the ALJ would be

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required to find Plaintiff disabled on remand.

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IT IS THEREFORE ORDERED that the final decision of the Commissioner of

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Social Security is VACATED and this case is REMANDED for immediate calculation

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and award of benefits. The Clerk shall enter judgment accordingly and shall terminate

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this case.

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Dated this 14th day of March, 2016.

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Neil V. Wake
United States District Judge

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