Kristin Jane Rowsey v. Carolyn W Colvin

Filing 18

ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Robert N. Block, re Joint Stipulation for Social Security Cases 17 . (twdb)

1

O

2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15
16
17

KRISTIN JANE ROWSEY,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN COLVIN, Acting
)
Commissioner of Social Security, )
)
Defendant.
)
)
)
_____________________________

Case No. CV 13-5627 RNB
ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING
FOR FURTHER ADMINISTRATIVE
PROCEEDINGS

18
19

Plaintiff filed a Complaint herein on August 13, 2013, seeking review of the

20 Commissioner’s denial of her application for a period of disability and Disability
21 Insurance Benefits. In accordance with the Court’s Case Management Order, the
22 parties filed a Joint Stipulation on June 3, 2014. Thus, this matter now is ready for
23 decision.1
24
25

1

As the Court advised the parties in its Case Management Order, the
26 decision in this case is being made on the basis of the pleadings, the administrative
record, and the Joint Stipulation (“Jt Stip”) filed by the parties. In accordance with
27
Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which
28
(continued...)
1

1
2

DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising

3 as the grounds for reversal and remand are as follows:
4
5

1.

Whether the Administrative Law Judge (“ALJ”) properly

considered the opinion of plaintiff’s treating physician.

6

2.

7

determination.

8

3.

9

Whether the ALJ made a proper adverse credibility
Whether the ALJ posed a complete hypothetical question

to the vocational expert.

10
11
12

DISCUSSION
As to Disputed Issue One, the Court concurs with the Commissioner that

13 reversal is not warranted here based on the ALJ’s alleged failure to properly consider
14 the opinion of plaintiff’s treating physician. However, as to Disputed Issue Two, the
15 Court concurs with plaintiff that the ALJ failed to make a proper adverse credibility
16 determination. As a result of the Court’s finding with respect to Disputed Issue Two,
17 it is unnecessary for the Court to reach the issue of whether the ALJ posed a complete
18 hypothetical question setting out all of plaintiff’s limitations, including the limitations
19 set out in plaintiff’s subjective symptom testimony.
20
21 A.

Reversal is not warranted based on the ALJ’s alleged failure to properly

22

consider the opinion of plaintiff’s treating physician (Disputed Issue One).

23

Disputed Issue One is directed to the ALJ’s rejection of the opinion of

24 plaintiff’s treating physician, Dr. Barcohana. (See Jt Stip at 3-15.)
25

The law is well established in this Circuit that a treating physician’s opinions

26
27

1

(...continued)
28 party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
2

1 are entitled to special weight because a treating physician is employed to cure and has
2 a greater opportunity to know and observe the patient as an individual. See
3 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating physician’s
4 opinion is not, however, necessarily conclusive as to either a physical condition or the
5 ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.
6 1989). The weight given a treating physician’s opinion depends on whether it is
7 supported by sufficient medical data and is consistent with other evidence in the
8 record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician’s
9 opinion is uncontroverted by another doctor, it may be rejected only for “clear and
10 convincing” reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter
11 v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the treating
12 physician’s opinion is controverted, it may be rejected only if the ALJ makes findings
13 setting forth specific and legitimate reasons that are based on the substantial evidence
14 of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“A
15 treating physician’s opinion on disability, even if controverted, can be rejected only
16 with specific and legitimate reasons supported by substantial evidence in the
17 record.”); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th
18 Cir. 1987).
19

In April 2011, Dr. Barcohana performed a right L5-S1 microdiskectomy on

20 plaintiff’s back. (See AR 427-30.) Shortly thereafter, in May 2011, Dr. Barcohana
21 completed a Physical Residual Functional Capacity Questionnaire in which he
22 estimated plaintiff’s functional limitations. (See AR 433-36.) Specifically, Dr.
23 Barcohana opined that plaintiff could lift less than 10 pounds frequently, could not
24 lift 10 pounds or more, could stand or walk for less than 2 hours in an 8-hour
25 workday, could sit for less than 6 hours in an 8-hour workday, and could not sit,
26 stand, or walk for prolonged periods of time. (See AR 434.) Notably, Dr. Barcohana
27 stated that he did not expect plaintiff’s impairments to last for at least 12 months.
28 (See AR 433.)
3

1

The ALJ determined that Dr. Barcohana’s opinion “cannot be relied upon to

2 assess disability” for multiple reasons. One of the ALJ’s stated reasons was that Dr.
3 Barcohana’s opinion was inconsistent with his own treating records and those of any
4 other doctor. (See AR 31.) The Court concurs with plaintiff that this conclusory
5 statement, without more, is not sufficiently specific to constitute a legally sufficient
6 reason to reject Dr. Barcohana’s opinion as unreliable. See Embrey v. Bowen, 849
7 F.2d 418, 422 (9th Cir. 1988) (“To say that medical opinions are not supported by
8 sufficient objective findings or are contrary to the preponderant conclusions
9 mandated by the objective findings does not achieve the level of specificity our prior
10 cases have required.”); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989)
11 (same); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“The ALJ must do
12 more than offer his conclusions. He must set forth his own interpretations and explain
13 why they, rather than the doctors’, are correct.”) (citing Embrey, 849 F.2d at 421-22);
14 Regenitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1299 (9th Cir.
15 1999) (“[C]onclusory reasons will not justify an ALJ’s rejection of a medical
16 opinion.”). As discussed below, however, the Court finds that the error was harmless.
17

Another reason proffered by the ALJ was that Dr. Barcohana’s opinion was

18 inconsistent with his own admission, in the same opinion, that plaintiff did well
19 following back surgery and was experiencing only mild back pain. (See AR 31; see
20 also AR 433.) The Court finds that this was a legally sufficient reason on which the
21 ALJ could properly rely to reject Dr. Barcohana’s opinion. See Valentine v.
22 Commissioner Social Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (ALJ properly
23 “identified a contradiction” within treating medical opinion before rejecting it);
24 Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ
25 properly rejected treating medical opinion that had internal inconsistencies); Young
26 v. Heckler, 803 F.2d 693, 967 (9th Cir. 1986) (substantial evidence supported non27 disability determination where treating physician’s form indicating claimant was
28 “totally disabled” contradicted earlier medical reports, including those of physician
4

1 himself). Although plaintiff disputes this inconsistency on the basis that Dr.
2 Barcohana’s “subsequent medical reports” issued after the surgery established that
3 plaintiff still had severe pain (see Jt Stip at 8), the Court disagrees with this
4 characterization of the subsequent medical reports. Those subsequent reports did
5 reflect that plaintiff continued to experience a varying degree of pain after her
6 surgery. However, they also reflected that plaintiff’s back pain was “mild” (see AR
7 441), that plaintiff was “doing well” (see id.), that plaintiff’s right leg pain had gone
8 away (see AR 676), and that plaintiff had received relief from a trigger point injection
9 (see AR 677). Moreover, these subsequent medical reports do not alter the fact that
10 Dr. Barcohana stated in his May 2011 opinion that plaintiff did well following back
11 surgery and was experiencing only mild back pain, a statement which the ALJ was
12 entitled to find was internally inconsistent with the rest of Dr. Barcohana’s May 2011
13 opinion. Since the ALJ’s interpretation of the evidence thus was a rational one, it is
14 not the Court’s function to second-guess it. See Burch v. Barnhart, 400 F.3d 676, 679
15 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational
16 interpretation, it is the ALJ’s conclusion that must be upheld.”).
17

The final reason proffered by the ALJ for rejecting Dr. Barcohana’s opinion

18 was that a portion of the opinion in which Dr. Barcohana stated plaintiff was unable
19 to do “most daily activities such as housework” was inconsistent with plaintiff’s
20 actual daily activities, which included a part-time job in which she stood much of the
21 time, spending “half the day sitting and half the day standing,” and housework such
22 as preparation of meals for her family. (See AR 31; see also AR 43-44, 433.) The
23 Court finds that this also was a legally sufficient reason on which the ALJ could
24 properly rely to reject Dr. Barcohana’s opinion. See Rollins v. Massanari, 261 F.3d
25 853, 856 (9th Cir. 2001) (ALJ properly rejected treating physician’s opinion of
26 disability because it was inconsistent with claimant’s level of activity). Although
27 plaintiff disputes that there was any such inconsistency (see Jt Stip at 14-15), the
28 Court finds that Dr. Barcohana’s opinion that plaintiff could not do housework was
5

1 clearly inconsistent with plaintiff’s testimony that she did in fact do some housework,
2 including preparing meals, dusting, putting clothes on her children, and taking them
3 to school (see AR 44).
4

In sum, although one of the reasons proffered by the ALJ for rejecting Dr.

5 Barcohana’s opinion was not legally sufficient, the error was inconsequential to the
6 ultimate non-disability determination because the other reasons were legally
7 sufficient. See Stout v. Commissioner of Social Security, 454 F.3d 1050, 1055 (9th
8 Cir. 2006) (an ALJ’s error is harmless when such an error is inconsequential to the
9 ultimate non-disability determination); Curry v. Sullivan, 925 F.2d 1127, 1131 (9th
10 Cir. 1991) (harmless error rules applies to review of administrative decisions
11 regarding disability); see also Howell v. Commissioner Social Sec. Admin., 349 Fed.
12 Appx. 181, 184 (9th Cir. 2009) (now citable for its persuasive value per Ninth Circuit
13 Rule 36-3) (ALJ’s erroneous rationale for rejecting treating physician’s opinion was
14 harmless because the ALJ otherwise provided legally sufficient reasons to reject
15 opinion) (citing Stout, 454 F.3d at 1054); Donathan v. Astrue, 264 Fed. Appx. 556,
16 559 (9th Cir. 2008) (ALJ’s erroneous characterization of treating physicians’ opinions
17 was harmless “because the ALJ provided proper, independent reasons for rejecting
18 these opinions”).
19

The Court therefore finds that reversal is not warranted here based on the ALJ’s

20 alleged failure to properly consider Dr. Barcohana’s opinion.
21
22 B.

The ALJ failed to make a proper adverse credibility determination

23

(Disputed Issue Two).

24

Disputed Issue Two is directed to the ALJ’s adverse credibility determination

25 with respect to plaintiff’s subjective symptom testimony. (See Jt Stip at 15-23.)
26

An ALJ’s assessment of pain severity and claimant credibility is entitled to

27 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v.
28 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton test,” where the
6

1 claimant has produced objective medical evidence of an impairment which could
2 reasonably be expected to produce some degree of pain and/or other symptoms, and
3 the record is devoid of any affirmative evidence of malingering, the ALJ may reject
4 the claimant’s testimony regarding the severity of the claimant’s pain and/or other
5 symptoms only if the ALJ makes specific findings stating clear and convincing
6 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see
7 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12
8 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991)
9 (en banc).
10

Here, plaintiff testified that she was unable to work because of abdominal pain,

11 back pain, chronic weakness and atrophy in her right leg since childhood, and
12 depression. (See AR 45-49.) She also testified that she could sit for 20-25 minutes
13 at most, that she would then have to stand up to relieve her back pain, that she could
14 walk or stand for 15 minutes at time, and that she required a cane for walking long
15 distances. (See AR 47, 48.) Plaintiff also testified that since her back surgery, the
16 pain on her right side had improved but that the pain on her left side was still “really
17 bad.” (See AR 47.)
18

In her decision, the ALJ twice acknowledged the “two-step process” for

19 evaluating subjective pain and symptom testimony, in which the ALJ must (1)
20 determine whether there is an underlying medically determinable physical or mental
21 impairment that could reasonably be expected to produce plaintiff’s pain or other
22 symptoms and (2) determine the credibility of plaintiff’s statements based on a
23 consideration of the entire case record. (See AR 29, 30.)
24

However, despite twice acknowledging this two-step process, the ALJ did not

25 apply either step. First, nowhere in her decision did the ALJ make an explicit
26 determination whether plaintiff had presented objective medical evidence of an
27 underlying impairment that could reasonably be expected to produce some degree of
28 pain or other symptoms. The Court finds that the ALJ’s failure to make this threshold
7

1 determination constituted a failure to apply the correct legal standard in assessing
2 plaintiff’s subjective pain and symptom testimony. See 20 C.F.R. § 404.1529(b)
3 (discussing the Commissioner’s duty to make a threshold determination of whether
4 a medically determinable impairment(s) could reasonably be expected to produce a
5 claimant’s alleged symptoms); Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th
6 Cir. 2007) (to determine whether a claimant’s subjective symptom testimony is
7 credible, the ALJ must engage in a two-step analysis, the first of which requires
8 determining “whether the claimant has presented objective medical evidence of an
9 underlying impairment ‘which could reasonably be expected to produce the pain or
10 other symptoms alleged’”) (quoting Bunnell, 947 F.2d at 344); Smolen, 80 F.3d at
11 1281-82 (first stage of credibility analysis involves threshold determination of
12 whether a claimant produced objective medical evidence of an underlying impairment
13 which could reasonably be expected to produce some degree of symptom); see also
14 Craig v. Chater, 76 F.3d 585, 596 (4th Cir. 1996) (reversible error for ALJ to fail to
15 expressly consider threshold question of whether claimant had demonstrated by
16 objective medical evidence an impairment capable of causing the degree and type of
17 pain alleged).
18

Second, and more critically, nowhere in her decision did the ALJ proffer any

19 discernible reasons for her apparent rejection of the credibility of plaintiff’s
20 subjective symptom testimony based on consideration of the entire case record.
21 Instead, the administrative decision reflects that the ALJ twice set out the proper legal
22 standard for evaluating plaintiff’s subjective symptom testimony, briefly summarized
23 plaintiff’s testimony, and discussed the medical evidence with a few isolated
24 references to plaintiff’s testimony. (See AR 29-32.) This does not satisfy the Ninth
25 Circuit requirement that an ALJ, before making an adverse credibility determination,
26 specifically identify what subjective symptom testimony is not credible and explain
27 how the record evidence undermines it. See Parra v. Astrue, 481 F.3d 742, 750 (9th
28 Cir. 2007) (“The ALJ must provide ‘clear and convincing’ reasons to reject a
8

1 claimant’s subjective testimony, by specifically identifying ‘what testimony is not
2 credible and what evidence undermines the claimant’s complaints.’”) (quoting Lester
3 v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)), cert. denied, 552 U.S. 1141 (2008);
4 Dodrill, 12 F.3d at 918 (“If the ALJ wished to reject Dodrill’s pain testimony, he was
5 required to point to specific facts in the record which demonstrate that Dodrill is in
6 less pain than she claims.”); Ceguerra v. Sec’y of Health and Human Svcs., 933 F.2d
7 735, 738 (9th Cir. 1991) (noting that an ALJ may not “tacitly reject” a witness’s
8 testimony and that “[w]hen the decision of an ALJ rests on a negative credibility
9 evaluation, the ALJ must make findings on the record and must support those
10 findings by pointing to substantial evidence on the record”); Fair v. Bowen, 885 F.2d
11 597, 602 (9th Cir. 1989) (“In order to disbelieve a claim of excess pain, an ALJ must
12 make specific findings justifying that decision.”); Lewin v. Schweiker, 654 F.2d 631,
13 635 (9th Cir. 1981) (“Because the ALJ’s decision neither expressly discredits Lewin’s
14 testimony nor articulates any reasons for questioning her credibility, . . . it cannot
15 stand.”).
16

Although the Commissioner proffers some reasons on which the ALJ could

17 have relied to support an adverse credibility determination (see Jt Stip at 19-21), the
18 ALJ did not expressly invoke any of these reasons for not crediting plaintiff’s
19 subjective symptom testimony. Accordingly, the Court is unable to consider any of
20 them in order to uphold the ALJ’s adverse credibility determination. See Connett v.
21 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003); Ceguerra, 933 F.2d at 738.
22

The Court therefore finds that reversal is warranted here because the ALJ failed

23 to make a proper adverse credibility determination with respect to plaintiff’s
24 subjective symptom testimony.
25
26
27

CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further

28 proceedings or simply to award benefits is within the discretion of the Court. See,
9

1 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister, 888 F.2d at
2 603; Lewin, 654 F.2d at 635. Remand is warranted where additional administrative
3 proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d
4 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of
5 benefits is appropriate where no useful purpose would be served by further
6 administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980);
7 where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425
8 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits,
9 Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
10

Weighing in favor of a remand for further administrative proceedings here is

11 the fact that this is not an instance where no useful purpose would be served by
12 further administrative proceedings. Rather, additional administrative proceedings
13 conceivably could remedy the defects in the ALJ’s decision.
14

The Court is mindful of Ninth Circuit case authority holding that “the district

15 court should credit evidence that was rejected during the administrative process and
16 remand for an immediate award of benefits if (1) the ALJ failed to provide legally
17 sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that
18 must be resolved before a determination of disability can be made; and (3) it is clear
19 from the record that the ALJ would be required to find the claimant disabled were
20 such evidence credited.” See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004);
21 see also, e.g., Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S.
22 1038 (2000)2; Smolen, 80 F.3d at 1292; Varney v. Secretary of Health & Human
23 Servs., 859 F.2d 1396, 1399-1401 (9th Cir. 1988). Under the foregoing case
24 authority, when this test is met, the Court will take the improperly discredited
25
26
2

In Harman, the Ninth Circuit noted that this three-part test “really
constitutes a two part inquiry, wherein the third prong is a subcategory of the
28 second.” Harman, 211 F.3d at 1178 n.7.
27

10

1 testimony as true and not remand solely to allow the ALJ another opportunity to make
2 specific findings regarding that testimony.

This rule applies to a claimant’s

3 improperly discredited excess pain and other subjective symptom testimony.
4 However, in Connett, 340 F.3d at 876, the panel held that the “crediting as true”
5 doctrine was not mandatory in the Ninth Circuit. There, the Ninth Circuit remanded
6 for reconsideration of the claimant’s credibility where the record contained
7 insufficient findings as to whether the claimant’s testimony should be credited as true.
8 See id.
9

Based on its review and consideration of the entire record, the Court has

10 concluded on balance that a remand for further administrative proceedings pursuant
11 to sentence four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT IS
12 HEREBY ORDERED that Judgment be entered reversing the decision of the
13 Commissioner of Social Security and remanding this matter for further administrative
14 proceedings.3
15
16 DATED: June 13, 2014
17
18

ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28

3

It is not the Court’s intent to limit the scope of the remand.
11