Garcia v. Commissioner of Social Security Administration

Filing 24

ORDER - The Commissioner's decision is REVERSED and this matter REMANDED for further proceedings consistent with this decision. The Clerk of the Court shall terminate this case. Signed by Judge Douglas L Rayes on 9/14/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Victor R Gracia,

No. CV-17-02331-PHX-DLR

Plaintiff,

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v.

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ORDER

Commissioner of Social Security
Administration,

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Defendant.

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Plaintiff Victor Gracia1 applied for Social Security Disability Insurance Benefits

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on April 4, 2013, alleging disability beginning March 25, 2013. After state agency

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denials, Gracia appeared and testified at a hearing before an Administrative Law Judge

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(“ALJ”). A vocational expert also testified. Following the hearing, the ALJ issued a

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written decision finding that Gracia is not disabled within the meaning of the Social

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Security Act (“SSA”). The ALJ’s decision became the Commissioner of Social Security

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Administration’s

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Administration Appeals Council denied Gracia’s request for review.

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followed. For the following reasons, the Court reverses the Commissioner’s decision and

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remands this matter for further proceedings.

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I. Background

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(“Commissioner”)

final

decision

when

the

Social

Security

This appeal

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

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The docket incorrectly identifies Gracia’s last name as “Garcia.”

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follows a five-step process.

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determines whether the claimant is engaging in substantial gainful activity.

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404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. At step two,

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the ALJ determines whether the claimant has a “severe” medically determinable physical

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or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the

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inquiry ends. At step three, the ALJ considers whether the claimant’s impairment or

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combination of impairments meets or medically equals an impairment listed in Appendix

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

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automatically found to be disabled. If not, the ALJ proceeds to step four. At step four,

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the ALJ assesses the claimant’s residual functional capacity (“RFC”) and determines

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

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404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. If not, the

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ALJ proceeds to the fifth and final step, where she determines whether the claimant can

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perform any other work based on the claimant’s RFC, age, education, and work

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

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is disabled.

20 C.F.R. § 404.1520(a).

At the first step, the ALJ
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Here, the ALJ found at step one that Gracia meets the insured status requirements

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of the SSA through December 31, 2018, and has not engaged in substantial gainful

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activity since his alleged disability onset date. (A.R. 17.) At step two, the ALJ found

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that Gracia has the following severe impairments: residuals of cervical fusion, congenital

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abnormalities of the thoracic spine, mild degenerative changes of the lumbar spine, a

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history of obesity, and restrictive lung disease/asthma. (Id.) At step three, the ALJ

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determined that Gracia’s listed impairments do not meet or equal the severity of one of

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the listed impairments in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. (Id. at 18.) At

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step four, the ALJ found that Gracia:

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has the [RFC] to perform light work . . . except [he] can lift
20 pounds occasionally and ten pounds frequently; [he] can
stand/walk for six hours in an eight-hour workday and sit for
six hours in an eight-hour workday; [he] can occasionally
stoop, kneel, crouch, crawl, and climb ramps and stairs, but
never climb ladders, ropes, and scaffolds; [he] is limited to
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occasional overhead reaching; and [he] should avoid
concentrated exposure to extreme cold, fumes, odors, dust,
gases, moving and dangerous machinery, and unprotected
heights.

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(Id. at 19.) Based on this RFC, the ALJ found at step five that Gracia is capable of

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performing past relevant work as a quality control technician and, alternatively, that he

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can perform other jobs that exist in significant numbers in the national economy. (Id. at

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32-33.) Accordingly, the ALJ found Gracia not disabled within the meaning of the SSA.

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(Id. at 34.)

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II. Standard of Review

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It is not the district court’s role to review the ALJ’s decision de novo or otherwise

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determine whether the claimant is disabled. Rather, the court is limited to reviewing the

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ALJ’s decision to determine whether it “contains legal error or is not supported by

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substantial evidence.” 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, and “such relevant

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evidence that a reasonable mind might accept as adequate to support a conclusion.” Id.

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“Where evidence is susceptible to more than one rational interpretation, the ALJ’s

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decision should be upheld.” Id. The court, however, “must consider the entire record as

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a whole and may not affirm simply by isolating a ‘specific quantum of supporting

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evidence.’” Id. Nor may the court “affirm the ALJ on a ground upon which he did not

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rely.” Id.

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III. Discussion

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On appeal, Gracia argues that the ALJ erred by (1) rejecting the opinion of

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consultative psychological examiner Dr. Frizzell, (2) basing his non-disability decision

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on non-examining state agency reviewers’ opinions along with the opinion of a

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consultative examiner who did not review Gracia’s medical records, and (3) discounting

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Gracia’s testimony about the severity of his symptoms.

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To the first point, the Court concludes that the ALJ reasonably rejected the opinion

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of Dr. Frizzell, who opined that Gracia was poorly adjusted, markedly depressed and

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irritable, would be unable to maintain regular attendance, and would require substantial

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supervision. (A.R. 590-91.) The ALJ gave this opinion little weight because Gracia had

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not received any psychiatric care or taken any psychiatric medications, and indicated at

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the hearing only that he had difficulty with stress. (Id. at 51-52, 57.) The ALJ also found

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that the opinion was inconsistent with Dr. Frizzell’s own examination findings, including

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that Gracia displayed no bizarre or unusual thought processes and had intact

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concentration, judgment, and insight. (Id. at 30-31, 587-592.) Finally, the ALJ found Dr.

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Frizzell’s opinion less reliable because Gracia’s wife provided most of the information

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during the evaluation, ostensibly because Gracia “appeared to speak broken English to

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some degree.” (Id. at 30-31, 587.) Yet during the hearing, Gracia communicated clearly

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in English without the aid of an interpreter. Moreover, the ALJ noted that Gracia’s wife

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provided some inaccurate information to Dr. Frizzell.

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adequately supported the ALJ’s decision to reject Dr. Frizzell’s opinion.

Collectively, these concerns

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As to the second point, the Court is troubled by the fact that neither of the

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consultative examiners, Drs. Hunter and Gomez, was provided copies of Gracias’

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medical records before their examinations.

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regulations require the agency to provide consultative examiners with “any necessary

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background information about [the claimant’s] condition,” 20 C.F.R. § 404.1517, and

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some courts have viewed with skepticism consultative examiner opinions rendered

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without a review of relevant medical records, see, e.g., McKenna v. Chater, 893 F. Supp.

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163, 170 (E.D.N.Y. 1995). Notably, there are no treating physician assessments in this

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record, and because non-examining state agency reviewer opinions are not, in and of

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themselves, substantial evidence, the opinions of the consultative examiners take on

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additional importance.

(Id. at 1293, 1301.)

Social Security

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Here, Drs. Gomez and Hunter offered drastically different opinions concerning

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Gracia’s limitations. Dr. Gomez found that Gracia has noticeable postural instability,

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uses knee braces and a four-wheeled walker for stability, is unable to perform “the toe

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walk, heel walk, [or] tandem walk” even with the help of his walker, and “does not

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appear to be able to keep his balance for more than a few seconds without the walker.”

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(A.R. 1292.) Dr. Gomez also found that Gracia has diminished sensation and weakness

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throughout his body, and opined that Gracia would be unable to lift almost anything

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while standing. (Id. at 1291-93.)

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Dr. Hunter, in contrast, found that Gracia has “normal gait with a normal station,”

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is able to walk on toes and heels “without difficulty,” and has intact sensation in all four

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extremities. (Id. at 1304.) Dr. Hunter also found that Gracia’s knees “appear stable on

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examination despite the fact that he has extensive bracing about both knees,” noted “it is

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unclear . . . why he requires such extensive assistive devices,” and observed that Gracia

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appears to have good strength. (Id. at 1305.) Dr. Hunter opined that Gracia “is able to do

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significantly more than he wishes this examiner to appreciate.” (Id.)

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Under the circumstances, the Court concludes that the ALJ should have resolved

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these conflicting opinions by soliciting an opinion from a consultative examiner who had

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reviewed Gracia’s medical records prior to rendering a decision. Indeed, without such an

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opinion, the ALJ is left with his own interpretation of the medical records and the

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opinions of non-examining state agency reviewers who reviewed partial sets of records.

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Accordingly, the Court will reverse the ALJ’s decision and remand with instructions to

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solicit the opinion of a consultative examiner who has been provided copies of Gracia’s

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medical records for review prior to the examination.2

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Lastly, the ALJ discounted Gracia’s subjective symptom complaints, in part

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because the ALJ found they were inconsistent with the overall medical record. The Court

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declines to opine on the ALJ’s credibility determination in light of its decision to remand

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for further proceedings.

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reviewed Gracia’s medical records might bear on the extent to which Gracia’s symptom

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testimony is consistent with the medical evidence. Accordingly, on remand the ALJ is

Indeed, the opinion of a consultative examiner who has

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Contrary to Gracia’s argument, this is not a case appropriate for application of
the credit-as-true rule. There quite clearly are conflicts in the medical opinion testimony
and further proceedings would serve a useful purpose: namely, providing an opportunity
for the ALJ to solicit the type of opinion Gracia contends is required by agency
regulations.
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free to reconsider Gracia’s symptom testimony in light of whatever opinions might be

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rendered by a consultative examiner who has reviewed Gracia’s medical records prior to

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examination.

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IT IS ORDERED that the Commissioner’s decision is REVERSED and this

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matter REMANDED for further proceedings consistent with this decision. The Clerk of

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the Court shall terminate this case.

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Dated this 14th day of September, 2018.

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Douglas L. Rayes
United States District Judge

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