Medley v. Colvin

Filing 26

ORDER: The final decision of the Commissioner of Social Security is REVERSED and the case REMANDED for an award of benefits. The Clerk shall enter judgment accordingly and terminate the case. Signed by Judge Douglas L Rayes on 10/23/17. (EJA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Ronald Wade Medley, 10 Plaintiff, 11 ORDER v. 12 No. CV-16-04060-PHX-DLR Commissioner of Social Security Administration, 13 14 Defendant. 15 16 The Social Security Administration (SSA) awarded Plaintiff disability benefits in 17 March 2010, finding a disability onset date of December 18, 2008. (A.R. 22.) In June 18 2012, the SSA conducted a continuing disability review (CDR) and determined that 19 Plaintiff showed medical improvement sufficient to return to work as of June 1, 2012. 20 (Id. at 118.) Plaintiff appealed this determination, appearing in front of a Disability 21 Hearing Officer (DHO), who affirmed the state agency findings of medical improvement. 22 (Id. at 134, 145.) Plaintiff then requested a hearing before an Administrative Law Judge 23 (ALJ). (Id. at 152.) 24 On May 7, 2015, Plaintiff and a vocational expert (VE) testified at a hearing 25 before an ALJ. (Id. at 65-115.) On November 30, 2015, the ALJ issued a decision 26 consistent with the opinions of the state agency and the DHO, finding that Plaintiff’s 27 disability ended within the meaning of the SSA on June 1, 2012. (Id. at 37.) Thereafter, 28 Plaintiff requested review of the ALJ’s decision by the Appeals Council. (Id. at 17-18.) 1 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 2 Commissioner’s final decision. (Id. at 1-6.) 3 On November 11, 2016, Plaintiff sought review by this Court. (Doc. 1.) After 4 receipt of the administrative record (Doc. 12), the parties fully briefed the issues for 5 review (Docs. 18, 22, 25). For reasons stated below, the Court finds that Commissioner’s 6 decision must be reversed and the case remanded for an award of benefits. 7 8 9 BACKGROUND To determine whether a claimant’s disability is continuing or has ceased, ALJs are required to follow the eight-step CDR process.1 See 20 C.F.R. § 404.1594(f). 10 At step one, the ALJ determines whether the claimant is engaged in substantial 11 gainful activity. § 404.1594(f)(1). If the claimant has engaged in substantial gainful 12 activity, the claimant’s disability is deemed to have ceased and benefits are terminated. 13 If, however, the claimant is not engaging in substantial gainful activity, the analysis 14 proceeds to step two, where the ALJ analyzes whether the claimant’s impairment meets 15 or equals an impairment set out in the Listing of Impairments found in 20 C.F.R. Part 16 404, Subpart P, Appendix 1. § 404.1594(f)(2). If a Listing is met, the evaluation stops 17 and the claimant continues to be disabled. If not, the analysis proceeds to step three. 18 At step three, the ALJ evaluates whether medical improvement has occurred since 19 the original determination of disability. § 404.1594(f)(3). If medical improvement 20 resulted in a decrease in the medical severity of the claimant’s impairments, the analysis 21 proceeds to the next step. If there has been no decrease in medical severity, there has 22 been no medical improvement and the analysis skips to step five. 23 At step four, the ALJ determines whether the medical improvement is related to 24 the claimant’s ability to work. § 404.1594(f)(4). Medical improvement is related to the 25 26 27 28 1 A similar sequential analysis is used to determine whether a claimant’s entitlement to supplemental security income (SSI) has ceased. The SSI CDR follows a seven-step review process, which corresponds with steps two through eight of the eightstep CDR for disability benefits. Compare 20 C.F.R. § 404.1594(f)(1)-(8), with § 416.994(b)(5)(i)-(vii). The SSI CDR differs only in that it does not consider whether the claimant has performed substantial gainful activity. -2- 1 ability to work if it results in an increase in the claimant’s capacity to perform basic work 2 activities. 3 improvement is not related, the analysis proceeds to step five. If the improvement is related, the analysis skips to step six. If the 4 Step five applies where there has been no medical improvement or improvement 5 that is unrelated to the claimant’s ability to work. § 404.1594(f)(3), (4). If there has been 6 medical improvement unrelated to the claimant’s ability to work, the ALJ analyzes 7 whether any exceptions apply. § 404.1594(f)(5). If no exception applies, the ALJ must 8 find the claimant to be disabled. If certain exceptions apply, the analysis advances to step 9 six. If certain other exceptions apply, the ALJ must find that the claimant’s disability has 10 11 ended. At step six, the ALJ evaluates whether the claimant’s impairments are sufficiently 12 severe to limit his physical or mental abilities to do basic work activities. 13 404.1594(f)(6). If the impairments are not sufficiently severe, the claimant is no longer 14 disabled. Otherwise, the analysis proceeds to step seven, where the ALJ assesses the 15 claimant’s current residual functioning capacity (RFC) to determine whether he can 16 perform past relevant work. § 404.1594(f)(7). If the claimant has the capacity to perform 17 past relevant work, the claimant is no longer disabled. If not, the analysis proceeds to 18 step eight, where the ALJ determines whether the claimant can perform any other 19 substantial gainful activity. § 404.1594(f)(8). If so, the claimant is no longer disabled. If 20 not, the claimant’s disability continues. § 21 Here, the ALJ found at step one that Plaintiff had not engaged in substantial 22 gainful activity since June 1, 2012. (A.R. 24.) At step two, the ALJ determined that 23 Plaintiff’s impairments do not meet or equal the severity of one of the listed impairments 24 in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 27-29.) At step three, the ALJ 25 determined that Plaintiff experienced medical improvement as of June 1, 2012. (Id. at 26 29.) At step four, the ALJ found Plaintiff’s medical improvement was related to his 27 ability to work because it resulted in an increase in his RFC. (Id. at 30.) Because the 28 ALJ found that the improvement related to Plaintiff’s ability to work, she proceeded to -3- 1 step six and determined that Plaintiff’s impairments, in combination, were severe. (Id.) 2 At step seven, the ALJ found that Plaintiff: 3 has had the [RFC] to perform light work . . . except no climbing of ladders, ropes or scaffolds; [he should] avoid concentrated exposure to extreme cold and hazards such as unprotected heights. [He] is also limited to occasional climbing of ramps and stairs, kneeling, crouching and crawling. 4 5 6 7 8 9 10 11 (Id. at 30-35.) The ALJ also found that Plaintiff is incapable of performing his past relevant work. (Id. at 35-36.) At step eight, however, after considering Plaintiff’s age, education, work experience, and RFC, the ALJ concluded that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 36.) Accordingly, the ALJ concluded Plaintiff was no longer disabled. STANDARD OF REVIEW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is not the district court’s role to review the ALJ’s decision de novo or otherwise determine whether the claimant is disabled. Rather, the court is limited to reviewing the ALJ’s decision to determine whether it “contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla but less than a preponderance, and “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. “Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Id. The court, however, “must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.’” Id. Nor may the court “affirm the ALJ on a ground upon which he did not rely.” Id. In determining whether the ALJ committed legal error, the district court is bound to apply the legal standards imposed by the law of this Circuit. This includes the requirement that, even when contradicted by another physician, if “the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.” Id. at 632. -4- 1 DISCUSSION 2 Plaintiff argues that it was impossible for the ALJ to properly compare his prior 3 disability with his current condition because the ALJ failed to obtain the medical records 4 used to make the SSA’s initial disability determination. (Doc. 19 at 14-15.) Plaintiff 5 argues that a remand for award of benefits is appropriate, however, because, even 6 assuming that the ALJ properly developed the record during the CDR process, the ALJ 7 improperly rejected his treating physicians’ medical opinions when formulating his RFC. 8 (Id. at 16-17.) Having reviewed the record and the parties’ briefs, the Court concludes 9 that the ALJ erred in rejecting the opinions of Plaintiff’s treating physicians, and that the 10 ALJ would have been compelled to find Plaintiff disabled had she credited these 11 opinions. Because this conclusion is dispositive, the Court does not reach Plaintiff’s 12 alternative assignments of error. 13 I. The ALJ Erred in Rejecting the Opinions of Plaintiff’s Treating Physicians 14 In weighing medical source opinions, the Ninth Circuit distinguishes among three 15 types of physicians: 16 examining physicians, who examine but do not treat the claimant; and (3) non-examining 17 physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 18 830 (9th Cir. 1995). More weight generally should be given to the opinion of a treating 19 physician than to the opinions of non-treating physicians because treating physicians are 20 “employed to cure and [have] a greater opportunity to observe and know the patient as an 21 individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). However, a 22 treating physician’s opinion is entitled to controlling weight only if the opinion is well- 23 supported by medically acceptable diagnostic techniques and is not inconsistent with 24 other substantial evidence in the case record. §§ 404.1527(c)(2), 416.927(c)(2). Where a 25 treating physician’s opinion is contradicted, it may only be rejected with “specific and 26 legitimate reasons” supported by substantial evidence in the record. Lester, 81 F.3d at 27 830. “The ALJ can meet this burden by setting out a detailed and thorough summary of 28 the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making (1) treating physicians, who actually treat the claimant; (2) -5- 1 findings.” Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). 2 Dr. Kahlon, Plaintiff’s treating specialist, opined that Plaintiff could: (1) lift and 3 carry less than ten pounds, (2) stand and/or walk less than 2 hours in an 8-hour workday, 4 and (3) sit less than 6 hours in an 8-hour workday. (A.R. 691-93.) Dr. Kahlon also 5 opined that Plaintiff needed to alternate positions every 15 minutes and that it was 6 medically necessary for Plaintiff to use an assistive device on all terrains. 7 Similarly, Dr. Manzanares, Plaintiff’s primary care physician, opined that Plaintiff could: 8 (1) lift and carry less than ten pounds, (2) stand and/or walk less than 2 hours in an 8- 9 hour workday, and (3) sit less than 6 hours in an 8-hour workday. (Id. at 688-90.) (Id.) 10 Because Dr. Kahlon’s and Dr. Manzanares’ opinions were contradicted by a state 11 agency medical consultant (Id. at 475-82), the ALJ was required to provide specific and 12 legitimate reasons, supported by substantial evidence in the record, for rejecting them. 13 The ALJ assigned “no weight” to Dr. Kahlon’s and Dr. Manzanares’ opinions, 14 concluding that they were inconsistent with “correlating medical evidence” and 15 Plaintiff’s reported daily activities. (Id. at 34.) Neither of these reasons is sufficient. 16 First, the ALJ failed to cite a single medical record contradicting the opinions of 17 Plaintiff’s treating physicians. Instead, the ALJ summarily concluded that the medical 18 records point towards an adverse conclusion, making no effort to identify specific records 19 supporting her finding or relate those records to any of the specific medical opinions she 20 rejected. To say that medical opinions are not consistent with the longitudinal records 21 without offering further explanation does not achieve the level of specificity required. 22 Embrey, 849 F.2d at 421 (“The ALJ must do more than offer his conclusion.”). 23 Second, the ALJ’s conclusion that the treating physicians’ opinions are 24 inconsistent with Plaintiff’s reported daily activities is not supported by substantial 25 evidence in the record. The ALJ found that: 26 27 28 [Plaintiff] reported that he is able to watch television, watch his three-year old nephew, read, shop at a convenience store which he walks to and operate a motor vehicle on a regular basis, which requires a significant level of sitting, arising from a seated position, and the use of hand and foot controls, -6- 1 2 3 as well as sustained concentration and multi-step decision making. All of the above activities suggest a greater degree of functional capability than claimed. (A.R. 31-32.) But this description mischaracterizes the record. 4 For example, the ALJ noted that Plaintiff regularly watches television and reads, 5 but ignores that he testified, consistent with his physicians’ opinions, that when doing 6 these activities he must alternate between sitting and standing every 15-20 minutes. (Id. 7 at 96-97.) Likewise, although Plaintiff testified that, “I go to my sister’s. I have a 8 nephew that we keep an eye on,” he later clarified, “I’m just saying he’s around . . . But I 9 would never, I can’t, [] watch him . . . like a baby sitter.” (Id. at 96.) Plaintiff testified 10 that he brought up the subject only to explain that “[his nephew]’s there . . . so it’s kind of 11 like he’s a factor in our lives.” (Id.) 12 a regular basis, but ignored that Plaintiff testified he drives “like once a month,” “not 13 very far,” and only when he is unable to arrange an alternative mode of transportation. 14 (Id. at 98.) More egregiously, the ALJ found that Plaintiff reported walking to a local 15 convenience store when the record reveals no such testimony. Rather, Plaintiff testified 16 that he drove to the convenience store and that even with the assistance of his cane he 17 was unable to walk without issue. (Id. at 98-100.) In short, an examination of the 18 testimony shows that the ALJ erred in characterizing Plaintiff’s statements to reach her 19 conclusion. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (finding that the ALJ 20 erred when mischaracterizing statements and documents contained in the record to reach 21 the conclusion that plaintiff had exaggerated her symptoms). The ALJ also found that Plaintiff operates a car on 22 Moreover, the ALJ failed to explain how activities such as reading, watching 23 television, watching his three-year old nephew, and driving short distances are 24 inconsistent with any of the limitations assessed by the treating physicians. See Zavalin 25 v. Colvin, 778 F.3d 842, 848 (9th Cir. 2015) (rejecting ALJ reliance on the claimant’s 26 activities where there was no indication of the extent, manner, or complexity of those 27 activities). For these reasons, the Court concludes that the ALJ erred in discrediting the 28 opinions of Plaintiff’s treating physicians. -7- 1 II. Remedy 2 Having determined that the ALJ committed reversible error, the Court has 3 discretion to remand the case for further development of the record, or to credit the 4 improperly rejected evidence as true and remand for an award benefits. Reddick, 157 5 F.3d at 728. In deciding whether to remand for an award of benefits, the Court considers 6 whether: (1) the ALJ failed to provide legally sufficient reasons for rejecting evidence, 7 (2) the record has been fully developed and further proceedings would serve no useful 8 purpose, and (3) it is clear from the record that the ALJ would be required to find the 9 claimant disabled were such evidence credited. Triechler v. Comm’r of Soc. Sec., 775 10 F.3d 1090, 1100-01 (9th Cir. 2014). All three conditions of the credit-as-true-rule are 11 met here. 12 First, for the foregoing reasons, the Court finds that the ALJ’s decision to reject 13 Plaintiff’s treating physicians’ opinions is neither free of legal error nor supported by 14 substantial evidence. Second, further proceedings would not serve a useful purpose 15 because the ALJ’s error was not due to a failure to develop the record. Finally, during 16 the hearing, the VE testified that someone with the limitations assessed by Plaintiff’s 17 treating physicians would be unable to perform Plaintiff’s past relevant work or other 18 work. (A.R. 108.) Accordingly, if the treating physicians’ opinions were credited as 19 true, the ALJ would be required to find Plaintiff continually disabled. 20 therefore exercises its discretion to remand for an award of benefits. The Court 21 IT IS ORDERED that the final decision of the Commissioner of Social Security 22 is REVERSED and the case REMANDED for an award of benefits. The Clerk shall 23 enter judgment accordingly and terminate the case. 24 Dated this 23rd day of October, 2017. 25 26 27 28 Douglas L. Rayes United States District Judge -8-

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