Cruz v. Colvin

Filing 30

ORDER - Reversing the decision of the Administrative Law Judge, (R. at 32-41), as upheld by the Appeals Council on 4/26/2016, (R. at 1-4) and remanding this case to the Social Security Administration for a calculation of benefits. The Clerk shall enter final judgment consistent with this Order and close this case. Signed by Judge John J Tuchi on 4/17/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Belia Hurtado Cruz,
Plaintiff,

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ORDER

v.

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No. CV-16-02048-PHX-JJT

Commissioner of Social Security
Administration,

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Defendant.

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At issue is the denial of Plaintiff Belia Hurtado Cruz’s Application for Disability

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Insurance Benefits by the Social Security Administration (“SSA”) under the Social

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Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) with this Court seeking

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judicial review of that denial, and the Court now addresses Plaintiff’s Opening Brief

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(Doc. 27, “Pl.’s Br.”), Defendant Social Security Administration Commissioner’s

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Opposition (Doc. 28, “Def.’s Br.”), and Plaintiff’s Reply (Doc. 29, “Reply”). The Court

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has reviewed the briefs and Administrative Record (Doc. 23, R.) and now reverses the

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Administrative Law Judge’s decision (R. at 32-41) as upheld by the Appeals Council

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(R. at 1-4).

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I.

BACKGROUND

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Plaintiff filed her Application on December 5, 2011 (R. at 189-91), for a period of

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disability originally beginning April 9, 2011, but later amended by Plaintiff to

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September 1, 2011 (R. at 53-54, 189). Plaintiff’s claim was denied initially on July 31,

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2012 (R. at 113-16), and on reconsideration on February 26, 2013 (R. at 118-20).

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Plaintiff then testified at a hearing held before an Administrative Law Judge (“ALJ”) on

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December 17, 2014. (R. at 49-73.) On February 13, 2015, the ALJ denied Plaintiff’s

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Application. (R. at 32-41.) On April 26, 2016, the Appeals Council upheld the ALJ’s

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decision. (R. at 1-4.) The present appeal followed.

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The Court has reviewed the medical evidence in its entirety and finds it

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unnecessary to provide a complete summary here. The pertinent medical evidence will be

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discussed in addressing the issues raised by the parties. In short, upon considering the

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medical records and opinions, the ALJ found that Plaintiff has severe impairments of

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diabetes mellitus, degenerative disc disease (“DDD”), osteoarthritis, cervical spondylosis,

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fibromyalgia, left shoulder impingement, left lateral epicondylitis (“tennis elbow”), left

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trigger thumb, right ankle posterior tibialis tendinitis, and obesity (R. at 34), but that

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Plaintiff has the residual functional capacity (“RFC”) to perform skilled sedentary work

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with some limitations, including her past work as a customer service representative, such

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that Plaintiff is not disabled under the Act (R. at 40-41).

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II.

LEGAL STANDARD

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In determining whether to reverse an ALJ’s decision, the district court reviews

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only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236

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F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner’s

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disability determination only if the determination is not supported by substantial evidence

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or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial

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evidence is more than a scintilla, but less than a preponderance; it is relevant evidence

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that a reasonable person might accept as adequate to support a conclusion considering the

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record as a whole. Id. To determine whether substantial evidence supports a decision, the

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court must consider the record as a whole and may not affirm simply by isolating a

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“specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence

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is susceptible to more than one rational interpretation, one of which supports the ALJ’s

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decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954

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(9th Cir. 2002) (citations omitted).

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To determine whether a claimant is disabled for purposes of the Act, the ALJ

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follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of

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

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ

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determines whether the claimant is presently engaging in substantial gainful activity.

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20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id.

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At step two, the ALJ determines whether the claimant has a “severe” medically

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determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the

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claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether

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the claimant’s impairment or combination of impairments meets or medically equals an

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impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R.

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§ 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not,

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the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s RFC and

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determines whether the claimant is still capable of performing past relevant work.

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20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends.

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Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the

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claimant can perform any other work in the national economy based on the claimant’s

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RFC, age, education, and work experience. 20 C.F.R. § 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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III.

ANALYSIS

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Plaintiff raises two principal arguments for the Court’s consideration: (1) the ALJ

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erred in weighing the opinions of the treating physicians and the state agency non-

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examining physicians; and (2) the ALJ erred in finding Plaintiff’s testimony less than

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fully credible. (Pl.’s Br. at 9-25.)

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A.

The ALJ Assigned Improper Weight to the Assessments of Plaintiff’s
Treating Physicians and the State Agency Physicians Considering the
Record as a Whole

Plaintiff first argues the ALJ committed reversible error by assigning inadequate
weight to the assessment of two of Plaintiff’s medical care providers, Dr. Ehteshami and
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Dr. Keller. (Pl.’s Br. at 9-22.) The Ninth Circuit has stated that an ALJ “may only reject a

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treating or examining physician’s uncontradicted medical opinion based on ‘clear and

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convincing reasons.’” Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir.

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2008) (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996)). “Where such an

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opinion is contradicted, however, it may be rejected for specific and legitimate reasons

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that are supported by substantial evidence in the record.” Id.

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In this instance, the opinions of Plaintiff’s treating doctors were contradicted only

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by the opinions of the non-examining state agency physicians, who themselves simply

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relied on Plaintiff’s treatment records. The Court agrees with Plaintiff (Reply at 6) that it

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would be difficult to consider the opinions of the non-examining state agency physicians,

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standing alone, to be substantial evidence sufficient to contradict the treating physicians’

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opinions. The medical opinions of Plaintiff’s treating physicians are largely consistent,

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and thus the ALJ was required to provide clear and convincing reasons to reject them.

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But the Court finds that the ALJ failed to provide adequate reasons to reject the treating

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physicians’ opinions under either standard—clear and convincing or specific and

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legitimate.

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The ALJ’s reason, in its entirety, for rejecting the opinion evidence of

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Dr. Ehteshami, Plaintiff’s treating orthopedic doctor, is that the opinions were

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“conclusory, with no attached narrative and unsupported by objective evidence.” (R. at

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39.) The record does not bear this out. Dr. Ehteshami treated Plaintiff’s multiple spinal

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conditions from September 2011, when Plaintiff underwent spinal surgery in the form of

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a two-level cervical discectomy and fusion, through at least mid-2013. He examined

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Plaintiff’s physical condition regularly; treated her for cervical, thoracic and lumbar

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spinal pain and associated symptoms as well as knee pain and carpal tunnel syndrome;

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and referred Plaintiff to physical therapy, pain management, a rheumatologist for

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fibromyalgia, and an arthritis specialist—all of which treatment Plaintiff sought. (R. at

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410-16, 521-24, 826-46.) Dr. Ehteshami’s treatment notes were narrative and detailed—

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not “conclusory”—and supported by cited objective evidence in the form of MRI and x-

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ray images and physical examinations. (R. at 410-16, 521-24, 826-46.) As but one

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example, on April 10, 2012, Dr. Ehteshami’s physical examination of Plaintiff revealed

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that she had significant difficulty sitting and standing, and he noted her continued

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problems including “the cervical spine with a significant degree of arthritis, her thoracic

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spine, her lumbar spine, as well as continued radicular symptoms and neuropathy in her

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hands and legs.” (R. at 522-23.) Viewed in the light of his extensive treatment notes, the

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functional capacity form Dr. Ehteshami completed on August 5, 2013 (R. at 844-46) was

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not conclusory, lacking in narrative, or unsupported by objective evidence, as the ALJ

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states. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014); Orn, 495 F.3d at 634.

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Thus, the ALJ failed to provide sufficient reasons to reject Dr. Ehteshami’s medical

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assessments of Plaintiff.

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The same goes for the ALJ’s evaluation of the medical opinions of Plaintiff’s

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primary care physician, Dr. Keller. The ALJ provided the same terse reasoning for

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rejecting Dr. Keller’s opinions: “conclusory, with no attached narrative and unsupported

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by objective evidence.” (R. at 40.) But, as with Dr. Ehteshami, the record reveals

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Dr. Keller’s detailed treatment notes for Plaintiff over a course of years based on physical

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examinations and other objective evidence. (R. at 432-34, 645-60, 822-25, 911-19, 994-

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1003, 1026-30.) The functional capacity assessment Dr. Keller performed, when

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informed by his extensive treatment of Plaintiff, was detailed, narrative, and supported by

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objective evidence. See Burrell, 775 F.3d at 1140; Orn, 495 F.3d at 634. Thus, the ALJ

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improperly rejected the assessments by Plaintiff’s treating physicians.

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The ALJ based her finding that Plaintiff is not disabled on the opinions of two

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state agency physicians who did not examine Plaintiff. Moreover, those opinions were

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not supported by other medical assessments of Plaintiff in the record, including those of

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Plaintiffs’ treating physicians discussed above. This too was error on the part of the ALJ.

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See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1201-02 (9th Cir. 2007); Lester v.

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Chater, 81 F.3d at 831. For these reasons alone, the Court must reverse the ALJ’s

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decision.

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B.

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Plaintiff also argues that the ALJ erred in her consideration of Plaintiff’s symptom

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testimony (Pl.’s Br. at 19-25), and the Court agrees. An ALJ must provide “specific, clear

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and convincing reasons for rejecting the claimant’s testimony regarding the severity of

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the claimant’s symptoms.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1102 (9th

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Cir. 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “In evaluating

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the credibility of pain testimony after a claimant produces objective medical evidence of

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an underlying impairment, an ALJ may not reject a claimant’s subjective complaints

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based solely on a lack of medical evidence to fully corroborate the alleged severity of

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pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). This is because “pain

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testimony may establish greater limitations than can medical evidence alone.” Id. The

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ALJ may properly consider that the medical record lacks evidence to support certain

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symptom testimony, but that cannot form the sole basis for discounting the testimony. Id.

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at 681.

The ALJ Improperly Weighed Plaintiff’s Testimony

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In her evaluation of Plaintiff’s symptom testimony (R. at 37-38), the ALJ does

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precisely what the Ninth Circuit has instructed not to do: concluded that the severity or

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extent of Plaintiff’s reported symptoms is not supported by the ALJ’s reading of the

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objective medical evidence. See Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).

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The ALJ also discounted Plaintiff’s testimony of pain and other limitations by finding it

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was inconsistent with her reports of daily activities. (R. at 39.) For example, she found

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that Plaintiff’s ability to go to grocery store, visit her father, go to the car wash, or go to

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doctor’s appointments was inconsistent with her pain symptoms, though the

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inconsistency is not clear to the Court. Likewise, the ALJ’s other examples of

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inconsistencies are unsupported or lack specificity. See Zavalin v. Colvin, 778 F.3d 842,

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848 (9th Cir. 2014) (finding ALJ improperly relied on a claimant’s activities where there

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was insufficient evidence as to the extent, manner or complexity of the activities). As a

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result, the ALJ erred by failing to provide the requisite specific, clear and convincing

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reasons for rejecting Plaintiff’s symptom testimony.

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C.

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Plaintiff asks that the Court apply the “credit-as-true” rule, which would result in

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remand of Plaintiff’s case for payment of benefits rather than for further proceedings.

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(Pl.’s Br. at 25-27.) The credit-as-true rule only applies in cases that raise “rare

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circumstances” which permit the Court to depart from the ordinary remand rule under

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which the case is remanded for additional investigation or explanation. Treichler, 775

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F.3d at 1099-1102. These rare circumstances arise when three elements are present. First,

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the ALJ must have failed to provide legally sufficient reasons for rejecting medical

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evidence. Id. at 1100. Second, the record must be fully developed, there must be no

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outstanding issues that must be resolved before a determination of disability can be made,

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and the Court must find that further administrative proceedings would not be useful. Id. at

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1101. Further proceedings are considered useful when there are conflicts and ambiguities

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that must be resolved. Id. Third, if the above elements are met, the Court may “find[] the

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relevant testimony credible as a matter of law . . . and then determine whether the record,

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taken as a whole, leaves ‘not the slightest uncertainty as to the outcome of [the]

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proceeding.’” Id. (citations omitted).

The Credit-As-True Rule Applies

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In this case, the credit-as-true rule applies. As the Court discussed above, the ALJ

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failed to provide legally sufficient reasons for rejecting the opinions of Plaintiff’s treating

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physicians—who identified limitations inconsistent with Plaintiff’s ability to perform

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even sustained sedentary work—and Plaintiff’s symptom testimony. If this evidence is

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properly credited, the Court sees no significant conflicts or ambiguities that are left for

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the ALJ to resolve. Moreover, considering the record as a whole, including Plaintiff’s

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testimony as to her physical limitations—which the Court credits as a matter of law—the

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Court is left with no doubt that Plaintiff is disabled under the Act. See Garrison, 759 F.3d

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at 1022-23; Lingenfelter v. Astrue, 504 F.3d 1028, 1040-41 & n.12 (9th Cir. 2007).

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IV.

CONCLUSION

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Plaintiff raises materially harmful error on the part of the ALJ, and, for the reasons

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set forth above, the Court must reverse the SSA’s decision denying Plaintiff’s

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Application for Disability Insurance Benefits under the Act and remand for a calculation

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of benefits.

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IT IS THEREFORE ORDERED reversing the February 13, 2015 decision of the

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Administrative Law Judge, (R. at 32-41), as upheld by the Appeals Council on April 26,

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2016, (R. at 1-4).

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IT IS FURTHER ORDERED remanding this case to the Social Security
Administration for a calculation of benefits.
IT IS FURTHER ORDERED directing the Clerk to enter final judgment
consistent with this Order and close this case.
Dated this 17th day of April, 2018.

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Honorable John J. Tuchi
United States District Judge

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