Mitchell Darin Hawk v. Carolyn W. Colvin

Filing 24

MEMORANDUM AND OPINION by Magistrate Judge Karen L. Stevenson re: IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED for further proceedings consistent with this Memorandum Opinion and Order. LET JUDGMENT BE ENTERED ACCORDINGLY. (rh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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) NO. CV 16-2821-KS
)
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) MEMORANDUM OPINION AND ORDER
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NANCY A. BERRYHILL,1 Acting
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Commissioner of Social Security,
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Defendant.
)
_________________________________ )
MITCHELL DARIN HAWK,
Plaintiff,
v.

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INTRODUCTION

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Mitchell Darin Hawk (“Plaintiff”) filed a Complaint on April 25, 2016, seeking review

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of the denial of his application for a period of disability and disability insurance benefits

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(“DIB”). (Dkt. No. 1.) On May 18, 2016, the parties consented, pursuant to 28 U.S.C. §

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636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12,

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15.) On January 5, 2017, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No 23.)

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Plaintiff seeks an order reversing the Commissioner’s decision and remanding for further

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The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration.
Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended
to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action.

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proceedings or an immediate award of benefits. (Joint Stip. at 18.) The Commissioner

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requests that the ALJ’s decision be affirmed or, in the alternative, remanded for further

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proceedings. (See id. at 18-19.) The Court has taken the matter under submission without

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oral argument.

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SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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On October 30, 2012, Plaintiff, who was born on November 25, 1967, protectively

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filed an application for DIB.2 (See Administrative Record (“AR”) 9, 178.) Plaintiff alleged

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disability commencing February 6, 2012 due to “collapsed lung with pleural effusion [and] 3

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fractured ribs; back injury; difficulty breathing – chest pain; anxiety; depression; head injury

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trauma; sleep apnea; diagnosed with pneumothorax; psychological issues; severe memory

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loss due to accident.” (AR 204.) Plaintiff previously worked as a dump truck driver (DOT

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902.683-010). (AR 23, 196.) After the Commissioner denied Plaintiff’s application initially

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(AR 74) and on reconsideration (id. 89), Plaintiff requested a hearing (see id.

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109). Administrative Law Judge Helen E. Hesse (“ALJ”) held a hearing on December 9,

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2014 (id. 30). Plaintiff, who was represented by counsel, testified before the ALJ as did

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vocational expert (“VE”) Alan Boroskin. (See AR 33-54.) On January 14, 2015, the ALJ

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issued an unfavorable decision, denying Plaintiff’s application for a period of disability and

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DIB. (Id. 9-24.) On March 24, 2016, the Appeals Council denied Plaintiff’s request for

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review. (Id. 1-4.)

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SUMMARY OF ADMINISTRATIVE DECISION

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The ALJ found that Plaintiff meets the insured status requirements of the Social

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Security Act through December 31, 2017. (AR 11.) The ALJ found that Plaintiff had not

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Plaintiff was 44 years old on the application date and thus met the agency’s definition of a younger individual.
See 20 C.F.R. § 404.1563(c).

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engaged in substantial gainful activity since his February 6, 2012 alleged onset date. (AR

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11.) The ALJ further found that Plaintiff had the following severe impairments: muscle

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strain/sprain; alleged back pain; and mild obesity. (AR 12.) The ALJ found that Plaintiff’s

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medically determinable mental impairments of anxiety disorder, posttraumatic stress disorder

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(PTSD), and organic brain syndrome, considered singly and in combination, were nonsevere.

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(AR 12.) The ALJ concluded that Plaintiff did not have an impairment or combination of

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impairments that met or medically equaled the severity of any impairments listed in 20

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C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526). (Id.

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14.) The ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to

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perform medium work with the following limitations:

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[Plaintiff] can lift and/or carry fifty pounds occasionally, twenty-five pounds

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frequently; . . . can sit, stand, or walk for six hours out [of] an eight-hour

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workday; . . . can occasionally climb ladders, ropes or scaffolds; . . . can

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frequently climb stairs, bend, balance, kneel, stoop crouch, and crawl.

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(AR 15.)

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The ALJ found that Plaintiff was able perform his past relevant work as a dump truck

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driver (DOT 902.683-010). (AR 23.) Accordingly, the ALJ determined that Plaintiff had

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not been under a disability, as defined in the Social Security Act, from the alleged onset date

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through the date of the ALJ’s decision. (Id. at 23-24.)

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether it is free from legal error and supported by substantial evidence in the

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record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence

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is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm’r of

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Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the

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

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findings if they are supported by inferences reasonably drawn from the record.” Molina v.

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Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

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Although this Court cannot substitute its discretion for the Commissioner’s, the Court

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nonetheless must review the record as a whole, “weighing both the evidence that supports

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and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted);

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Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ

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is responsible for determining credibility, resolving conflicts in medical testimony, and for

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resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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The Court will uphold the Commissioner’s decision when the evidence is susceptible

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to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005). However, the Court may review only the reasons stated by the ALJ in his decision

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“and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at

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630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The Court will not

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reverse the Commissioner’s decision if it is based on harmless error, which exists if the error

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is “‘inconsequential to the ultimate nondisability determination,’ or if despite the legal error,

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‘the agency’s path may reasonably be discerned.’” Brown-Hunter v. Colvin, 806 F.3d 487,

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492 (9th Cir. 2015) (internal citations omitted).

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DISCUSSION

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The sole issue in dispute is whether the ALJ properly considered the opinions of

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Plaintiff’s treating orthopedist.

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I.

The ALJ’s Evaluation Of The Records Of Plaintiff’s Treating Physician

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A. Treatment Records of Dr. Gibson

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Plaintiff contends that the ALJ improperly evaluated the opinion of Dr. Harry L.

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Gibson, M.D., Plaintiff’s treating orthopedist. (Joint Stip. at 3-10.) The record reflects that

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Dr. Gibson treated Plaintiff in connection with his workers’ compensation claim between

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February 2012 and February 2013. (AR 491-513.) At his first appointment with Dr. Gibson,

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Plaintiff reported that, on December 29, 2010, while operating a back hoe, he fell backwards

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and landed on some of the equipment on the ground. He immediately felt pain in his chest

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and was unconscious for a while.

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Emergency Room in Orange, California, where they initially did not recognize that he had

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fractured his ribs and discharged him. (AR 510.) Plaintiff returned to the emergency room

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to report trouble breathing, at which point further studies were conducted and it was

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determined that Plaintiff had broken several ribs and had a considerable amount of blood and

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fluid in his chest space. (AR 510.) After taking some time off to heal, Plaintiff returned to

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“light duty” work in the office but continued to experience pain and shortness of breath that

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worsened over time. (AR 511.)

(AR 509, 510.)

Plaintiff was transported to UCI

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At that initial visit, Dr. Gibson had a film made of Plaintiff’s thoracic spine, which

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showed that Plaintiff had two rib fractures that had not healed despite more than a year

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passing since the date of injury. (AR 512.) The film also revealed that Plaintiff’s diaphragm

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was elevated on the right side. (AR 512.) X-rays of Plaintiff’s thoracic spine showed four

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discs that had developed a considerable amount of bone formation and the disc spaces

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looked like they were going to fuse spontaneously. (AR 512.) Finally, x-rays of Plaintiff’s

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lumbar spine showed reverse spondylolisthesis L4 on L5, which explained Plaintiff’s

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chronic back pain. (AR 512.) Dr. Gibson recommended a bone stimulator to try to get

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Plaintiff’s ribs to heal and a visit to a chest medical specialist to address Plaintiff’s lungs.

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(AR 512.) Dr. Gibson opined that Plaintiff was totally disabled and might need long-term

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disability if his chest medical problems did not resolve. (AR 513.) The following month, on

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March 21, 2012, Dr. Gibson stated that because “the patient tells me there is no light duty

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work, until we got some progress to see if the ribs would heal, I think it is appropriate that he

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be off work.” (AR 508.)

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In May 2012, Dr. Gibson stated that Plaintiff was “clinically short of breath.” (AR

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506.) In July 2012, Dr. Gibson observed that Plaintiff’s fractured ribs still had not healed.

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(AR 501.) However, Plaintiff reported that physiotherapy was helping, and Dr. Gibson

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recommended that he continue. (AR 501.) At that time, Plaintiff’s medications included

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two different strength dosages of Norco, a highly addictive combination of acetaminophen

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and hydrocodone, Vicodin, another highly addictive combination of acetaminophen and

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hydrocodone, and Zolpidem (to treat insomnia). (AR 501.) Dr. Gibson also advised that

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Plaintiff seek a pulmonary physician due to a thick pleural effusion and elevated diaphragm

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on his right side. (AR 504.)

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In October 2012, nearly two years after Plaintiff’s injury, Dr. Gibson observed that one

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rib had healed but the other had not. (AR 500.) Dr. Gibson recommended the continued use

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of the bone stimulator. (AR 500.) In January 2013, a full two years after Plaintiff’s injury,

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Plaintiff reported that he was in constant pain and taking approximately 3-4 Norco a day to

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control the pain. (AR 494.) Dr. Gibson thought it would be helpful to refer Plaintiff to a

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chest surgeon and also to consider surgery on the ribs to obtain healing. (AR 494.) Finally,

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in February 2013, the date of the last treatment notes in the record, Dr. Gibson reported that

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Plaintiff’s condition remained “about the same” and indicated that one of Plaintiff’s

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fractured ribs still had not healed. (AR 492.) Plaintiff’s medications continued to include

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prescriptions for both strengths of Norco (7.5 mg hydrocodone/325 mg acetaminophen and

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10 mg hydrocodone/325 acetaminophen), a prescription for Vicodin, and a prescription for

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Zolpidem. (AR 491.)

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B. ALJ’s Decision

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As noted above, the ALJ determined that, from the alleged onset date of February 6,

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2012 through the January 14, 2015 date of decision, Plaintiff did not suffer from a severe

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medically determinable impairment of rib or bone fractures (AR 12 (finding Plaintiff’s only

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severe impairments were “muscle strain/sprain, alleged back pain, and mild obesity”) and

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could perform medium work as follows:

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[Plaintiff] can lift and/or carry fifty pounds occasionally, twenty-five pounds

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frequently; . . . can sit, stand, or walk for six hours out [of] an eight-hour

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workday; . . . can occasionally climb ladders, ropes or scaffolds; . . . can

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frequently climb stairs, bend, balance, kneel, stoop crouch, and crawl.

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(AR 15).

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In reaching these conclusions, the ALJ mentioned but did not discuss Dr. Gibson’s

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diagnosis of rib fractures (AR 18) and gave “little weight” to Dr. Gibson’s opinion that, due

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to his fractured ribs, Plaintiff was unable to return to his job as a dump truck driver. (AR

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22.) Specifically, the ALJ described Dr. Gibson’s opinions as “conclusory,” “inadequately

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supported by clinical findings,” and opinions on an issue reserved to the Commissioner.

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(AR 22.)

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limitations and she stated that “it is unclear whether Dr. Gibson opined that [Plaintiff] could

The ALJ also noted that Dr. Gibson did not assess any specific functional

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not work due [Plaintiff] informing him that his employer did not have any light work

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available.” (AR 22.)

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C. Applicable Law

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The opinion of a treating source is generally entitled to greater weight than the

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opinion of doctors who do not treat the claimant because treating sources are “most able to

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provide a detailed, longitudinal picture” of a claimant’s medical impairments and bring a

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perspective to the medical evidence that cannot be obtained from objective medical findings

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alone. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also 20 C.F.R. §

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404.1527(c)(2). To reject an uncontradicted opinion of a treating physician, the ALJ must

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provide “clear and convincing reasons that are supported by substantial evidence.” Ghanim

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v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014). If, however, the treating physician’s

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opinion is contradicted by another medical source, the ALJ must consider the factors set out

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in 20 C.F.R. § 404.1527(c)(2)-(6) in determining how much weight to accord it. These

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factors include the “[l]ength of the treatment relationship and the frequency of examination”

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by the treating physician, the “[n]ature and extent of the treatment relationship” between the

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patient and the treating physician, the “[s]upportability” of the physician’s opinion with

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medical evidence, and the consistency of the physician’s opinion with the record as a whole.

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The ALJ must articulate “specific and legitimate reasons that are supported by substantial

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evidence” to reject the contradicted opinions of a treating physician. Ghanim, 763 F.3d at

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1161.

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A medical source’s opinion that a claimant is disabled or unable to work are not

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entitled to “special significance” because they are “opinions on issues reserved to the

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Commissioner.” 20 C.F.R. § 404.1527. Further, an ALJ may properly reject a treating

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physician’s conclusions that do not “mesh” with the treating physician’s objective data or

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history, see, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Rollins v.

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Massanari, 261 F.3d 853, 856 (9th Cir. 2001), and need not accept the opinion of any

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physician if that opinion is “conclusory and inadequately supported by clinical findings.”

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Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Bayliss v. Barnhart, 427 F.3d 1211,

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1216 (9th Cir. 2005) (“discrepancy” between treating physician’s assessment and clinical

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notes is a clear and convincing reason for not relying on the doctor’s opinion). However,

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“[w]hen there is ambiguous evidence or when the record is inadequate to allow for proper

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evaluation of the evidence” in a disability benefits case, the ALJ has an independent “duty to

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fully and fairly develop the record and to assure that the claimant’s interests are considered.”

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Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d

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1144, 1150 (9th Cir. 2001) (internal quotation marks and citation omitted).

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D. Discussion

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The ALJ failed to articulate specific and legitimate reasons supported by substantial

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evidence in the record for discounting Dr. Gibson’s opinions.

Although Dr. Gibson’s

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opinions that Plaintiff was totally disabled (AR 512) and needed to remain off of work until

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his ribs heal (AR 508) are not controlling, see, 20 C.F.R. § 404.1527, Dr. Gibson’s

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assessment that “there is no light duty work, so until we we got some progress to see if the

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ribs would heal, I think it is appropriate that he be off of work” indicates that Dr. Gibson

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believed Plaintiff had some functional limitations due to his fractured ribs. Nevertheless, the

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ALJ rejected this assessment because Dr. Gibson did not specify Plaintiff’s functional

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limitations and it was “unclear whether Dr. Gibson opined that [Plaintiff] could not work due

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to [Plaintiff] informing him that his employer did not have any light work available,” the

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ALJ rejected Dr. Gibson’s assessment. (AR 22.)

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As stated above, “[w]hen there is ambiguous evidence or when the record is

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inadequate to allow for proper evaluation of the evidence,” the ALJ has an independent

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“duty to fully and fairly develop the record and to assure that the claimant’s interests are

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considered.” Tonapetyan, 242 F.3d at 1150 (internal quotation marks and citation omitted).

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Here, the ALJ conceded that the basis for and precise contours of Dr. Gibson’s March 21,

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2012 opinion that Plaintiff should stay off of work while his ribs heal was “unclear.” (AR

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22.) This finding that Dr. Gibson’s opinion was ambiguous and inadequate to permit a

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proper evaluation of the evidence triggered the ALJ’s to recontact Dr. Gibson’s office for

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clarification and further development of the record. The ALJ erred in failing to do so.

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The ALJ’s other reason for discounting Dr. Gibson’s opinions is that they were
“conclusory” and “inadequately supported by clinical findings.”

(AR 22.)

However,

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substantial evidence in the record does not support this characterization of Dr. Gibson’s

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opinions. To the contrary, Dr. Gibson’s treatment notes reveal that he based his diagnosis,

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recommended course of treatment, and medical opinions on x-rays (see, e.g., AR 506 (May

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8, 2012 – x-ray showed fluid in the right lung field and elevated diaphragm on the right

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side), 512 (February 27, 2012 – x-ray of thoracic spine show four disks have developed a

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considerable amount of bone formation)) and a film of the thoracic spine (see, e.g., AR 512

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(February 27, 2012 – film of the thoracic spine showed two rib fractures that have not

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healed)).

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examinations, Dr. Gibson diagnosed two fractured ribs at the start of treatment (AR 512

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(February 27, 2012)) – one of which remained broken a full year after treatment began (AR

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492 (February 20, 2013)). Dr. Gibson also observed that Plaintiff was “clinically short of

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breath” (AR 506 (May 8, 2012)) and prescribed three highly addictive prescription pain

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medications to address Plaintiff’s constant pain from his unhealed ribs (AR 491). In light of

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these extensive clinical findings, substantial evidence does not support the ALJ’s

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characterization of Dr. Gibson’s opinions regarding Plaintiff’s diagnosis and inability to

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return to work as a dump truck driver as conclusory and inadequately supported.

Based on these images, his conversations with Plaintiff, and his physical

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Finally, Defendant argues that the ALJ properly assigned little weight to Dr. Gibson’s

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opinion because the Agreed Medical Examiner for Plaintiff’s workers’ compensation claim,

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Edward J. O’Neill, M.D., a Diplomate of the American Board of Preventative Medicine,

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concluded in August 2012 that Plaintiff had “recovered” from his chest wall injuries and

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chest surgery and “does not have residual impairment or disability.” (Joint Stip. at 13-14;

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AR 431.) The ALJ, however, did not cite Dr. O’Neill’s opinion as one of her reasons for

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discounting Dr. Gibson’s opinion (see generally AR 22), and the Court declines to affirm the

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ALJ’s decision based on grounds on which the ALJ did not rely. See Bray v. Comm’r of

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Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of

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administrative law require us to review the ALJ’s decision based on the reasoning and

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factual findings offered by the ALJ – not post hoc rationalizations that attempt to intuit what

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the adjudicator may have been thinking.”); Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d

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1050, 1054 (9th Cir. 2006). Furthermore, Dr. O’Neill did not review Dr. Gibson’s records –

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or indeed any records reflecting treatment after Plaintiff’s alleged onset date – and, therefore,

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Dr. O’Neill’s conclusion was not an informed rejection of Dr. Gibson’s assessment. (See

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generally AR 432-36 (listing the medical records Dr. O’Neill reviewed in reaching his

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conclusion).)

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The Court acknowledges that Defendant may be correct that, to the extent Plaintiff’s

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severe impairments rendered him unable to work on the alleged onset date of February 6,

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2012, his impairments were not disabling for a full year and thus Plaintiff was not under a

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disability, as that term is defined in the Social Security Act.

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However, the record before the Court does not support the conclusion that the ALJ’s error in

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failing to fully develop the record was “inconsequential to the ultimate nondisability

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determination” or that, despite the legal error, “the agency’s path may reasonably be

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discerned.” See Brown-Hunter, 806 F.3d at 492. Instead, it is also possible that a more fully

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developed record will support an award of benefits for either an open or a closed period of

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disability. Accordingly, the matter must be remanded for further development of the record

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and consideration of Dr. Gibson’s opinion. On remand, the ALJ must articulate specific and

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legitimate reasons supported by substantial evidence and “fully and fairly develop the

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(See Joint Stip. at 15.)

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record” before discounting the opinion and diagnosis of the orthopedist with whom Plaintiff

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had a year-long treatment relationship.

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CONCLUSION

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Accordingly, for the reasons stated above, IT IS ORDERED that the decision of the

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Commissioner is REVERSED, and this case is REMANDED for further proceedings

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consistent with this Memorandum Opinion and Order.

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IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this

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Memorandum Opinion and Order and the Judgment on counsel for plaintiff and for

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defendant.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATE: May 4, 2017

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___________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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