Barbara Marie Anderson v. Carolyn W. Colvin

Filing 23

MEMORANDUM AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Alexander F. MacKinnon. IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Order. (See document for further details.) (sbou)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BARBARA MARIE ANDERSON, 12 Plaintiff, 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. Case No. SA CV 16-01686 AFM MEMORANDUM AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 17 18 I. 19 BACKGROUND 20 Plaintiff Barbara Marie Anderson filed her application for supplemental 21 security income under Title XVI of the Social Security Act on March 18, 2013, 22 alleging disability beginning August 14, 2012. After denial on initial review and on 23 reconsideration, a hearing took place before an Administrative Law Judge (“ALJ”) 24 on March 10, 2015, at which Plaintiff testified on her own behalf. A vocational 25 expert also testified. In a decision dated April 7, 2015, the ALJ found that Plaintiff 26 was not disabled within the meaning of the Social Security Act since March 18, 27 2013, the date the application was filed. The Appeals Council declined to set aside 28 the ALJ’s unfavorable decision in a notice dated July 26, 2016. Plaintiff filed a 1 Complaint herein on September 12, 2016, seeking review of the Commissioner’s 2 denial of her application for benefits. 3 In accordance with the Court’s Order Re: Procedures in Social Security 4 Appeal, Plaintiff filed a memorandum in support of the complaint on March 1, 5 2017 and the Commissioner filed a memorandum in support of her answer on 6 March 21, 2017. Plaintiff did not file a reply. This matter now is ready for 7 decision. 1 8 II. 9 STANDARD OF REVIEW 10 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 11 determine whether the Commissioner’s findings are supported by substantial 12 evidence and whether the proper legal standards were applied. See Treichler v. 13 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 14 evidence means “more than a mere scintilla” but less than a preponderance. See 15 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 16 1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 17 reasonable mind might accept as adequate to support a conclusion.” Richardson, 18 402 U.S. at 401. This Court must review the record as a whole, weighing both the 19 evidence that supports and the evidence that detracts from the Commissioner’s 20 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 21 than one rational interpretation, the Commissioner’s decision must be upheld. See 22 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 23 Error in a social security determination is subject to harmless error analysis. 24 Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012). Reversal “is not automatic, 25 but requires a determination of prejudice.” Id. A reviewing federal court must 26 1 27 28 The decision in this case is being made based on the pleadings, the administrative record (“AR”), and the parties’ memoranda in support of their pleadings. 2 1 consider case-specific factors, including “an estimation of the likelihood that the 2 result would have been different, as well as the impact of the error on the public 3 perception of such proceedings.” Id. (footnote and citation omitted). 4 III. 5 FIVE-STEP EVALUATION PROCESS 6 The Commissioner (or ALJ) follows a five-step sequential evaluation process 7 in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; 8 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996. 9 In the first step, the Commissioner must determine whether the claimant is 10 currently engaged in substantial gainful activity; if so, the claimant is not disabled 11 and the claim is denied. Id. If the claimant is not currently engaged in substantial 12 gainful activity, the second step requires the Commissioner to determine whether 13 the claimant has a “severe” impairment or combination of impairments significantly 14 limiting his ability to do basic work activities; if not, a finding of nondisability is 15 made and the claim is denied. Id. If the claimant has a “severe” impairment or 16 combination of impairments, the third step requires the Commissioner to determine 17 whether the impairment or combination of impairments meets or equals an 18 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 19 404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits 20 are awarded. Id. If the claimant’s impairment or combination of impairments does 21 not meet or equal an impairment in the Listing, the fourth step requires the 22 Commissioner to determine whether the claimant has sufficient “residual functional 23 capacity” to perform his past work; if so, the claimant is not disabled and the claim 24 is denied. Id. The claimant has the burden of proving that he is unable to perform 25 past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the 26 claimant meets this burden, a prima facie case of disability is established. Id. The 27 Commissioner then bears the burden of establishing that the claimant is not 28 disabled, because he can perform other substantial gainful work available in the 3 1 national economy. Id. The determination of this issue comprises the fifth and final 2 step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 3 828 n.5; Drouin, 966 F.2d at 1257. 4 IV. 5 THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 6 At step one, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since March 18, 2013, the date of the application. (AR 14.) At step 8 two, the ALJ found that Plaintiff had the following severe impairments: 9 degenerative disc disease of lumbar spine and lumbar stenosis; degenerative joint 10 disease left hip; and degenerative disc disease of cervical spine. (AR 14-16.) At 11 step three, the ALJ found that Plaintiff did not have an impairment or combination 12 of impairments that meets or medically equals the severity of one of the listed 13 impairments. (AR 16.) At step four, the ALJ found that Plaintiff had the residual 14 functional capacity (“RFC”) to perform less than the full range of sedentary work: 15 Specifically, [plaintiff] can lift/carry up to 10 pounds occasionally and 16 frequently; stand/walk approximately two hours of an eight-hour 17 workday; sit approximately six hours of an eight-hour workday with 18 normal breaks; frequently operate foot controls with the bilateral lower 19 extremities; occasionally climb ramps/stairs, never ladders, ropes and 20 scaffolds; occasionally balance, stoop, kneel, crouch and crawl; and 21 avoid concentrated exposure to extreme cold, excessive vibrations, and 22 workplace 23 unprotected heights. (AR 16-18.) 24 Finally, at step five, based on Plaintiff’s age, education, work experience, and 25 RFC, the ALJ concluded that Plaintiff is capable of performing her past relevant 26 work as a secretary. (AR 18-19.) Accordingly, the ALJ concluded that Plaintiff 27 has not been under a disability as defined in the Social Security Act since 28 March 18, 2013, the date the application was filed. (AR 19.) hazards such as dangerous moving machinery and 4 1 V. 2 DISCUSSION 3 Plaintiff contends that the ALJ erred by not providing “specific and 4 legitimate reasons” for rejecting Dr. Oliveira’s (treating physician) opinion and by 5 failing to obtaining medical records from Dr. Oliveira to fully and fairly develop 6 the record. (Plaintiff’s Memorandum at 6.) 7 On March 3, 2015, Dr. Oliveira wrote a letter summarizing Plaintiff’s 8 medical history and existing physical condition. See AR 448-49. In that letter, 9 Dr. Oliveira stated that Plaintiff had been his patient since February 23, 2014. (Id.) 10 In addition, Dr. Oliveira stated that in June 2014 Plaintiff had a lumbar spinal 11 fusion that lowered her lumbar pain from a 10/10 level to a 4/10 level. (Id.) 12 Dr. Oliveira also stated that an MRI conducted by Dr. Khan revealed a “second 13 disabling condition” in Plaintiff’s cervical spine. (Id.) While Dr. Oliveira stated 14 that Plaintiff has seen a reduction in pain, he opined that “together with her lumbar 15 issues, her cervical spine issues keep her totally disabled.” (Id.) 16 The ALJ gave “little weight” to Dr. Oliveira’s opinion because the opinion 17 was not supported by the cumulative evidence, noting specifically that Plaintiff’s 18 pain had been reduced from level 10/10 to 4/10 and that the results of an MRI 19 showed a “mild” degree of arachnoid adhesion and “mild” degree of facet 20 arthropathy. (AR 18.) The ALJ also stated that the determination of disability is 21 reserved for the commissioner and not the treating physician. (Id.)2 The ALJ based 22 2 23 24 25 26 27 28 Social Security Ruling 96-5p provides that “[i]f the case record contains an opinion from a medical source on an issue reserved to the Commissioner, the adjudicator must evaluate all the evidence in the case record to determine the extent to which the opinion is supported by the record.” An ALJ may not reject a treating physician’s opinion based merely on an invocation that the opinion involved an issue reserved to the Commissioner. See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998); Hill v. Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (ALJ was required to consider physician’s opinion that claimant was “unlikely” to work full time because it was an assessment based on objective medical evidence); Reddick, 157 5 1 this assessment on the two-page letter provided by Dr. Oliveira. (AR 448-49.) 2 There is no indication in the record that the ALJ contacted or requested additional 3 documents from Dr. Oliveira. The letter from Dr. Oliveira, however, suggests that 4 he was willing and able to discuss or provide documents regarding Plaintiff’s 5 treatment. (Id.) 6 The Court finds that the ALJ failed to fully and fairly develop the record 7 regarding Dr. Oliveira’s opinion and reverses the ALJ’s decision on that basis. An 8 ALJ has an affirmative duty to assist the claimant in developing the record at every 9 step of the sequential evaluation process. See Bustamante v. Massanari, 262 F.3d 10 949, 954 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 11 The ALJ’s duty exists whether or not plaintiff is represented by counsel. See 12 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The ALJ’s duty is 13 triggered “when there is ambiguous evidence or when the record is inadequate to 14 allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 15 459-60 (9th Cir. 2001) (citation omitted). An ALJ may discharge his duty to 16 develop the record in several ways, including subpoenaing the plaintiff’s physician, 17 submitting questions to the physician, continuing the hearing, or keeping the record 18 open after the hearing to allow supplementation of the record. Tonapetyan, 242 19 F.3d at 1150 (citations omitted). “[B]ecause treating source evidence (including 20 opinion evidence) is important, if the evidence does not support a treating source’s 21 opinion on any issue reserved to the Commissioner and the adjudicator cannot 22 ascertain the basis of the opinion from the case record, the adjudicator must make 23 ‘every reasonable effort’ to recontact the source for clarification of the reasons for 24 the opinion.” Social Security Ruling (“SSR”) 96-5p. 25 Here, the letter submitted by Dr. Oliveira, which summarizes the doctor’s 26 opinion of Plaintiff’s physical condition, logically suggests that treatment notes are 27 28 F.3d at 725 (ALJ must provide legally sufficient reasons to reject a treating physician’s opinion on the ultimate issue of disability). 6 1 available. (AR 448-449.) In that letter, Dr. Oliveira states that Plaintiff had been 2 his patient for over a year and that he was involved in the ongoing treatment of 3 Plaintiff. (AR 448.) It is reasonable to conclude that a physician who treated 4 Plaintiff over the past year would have notes and other records relating to that 5 treatment. The letter further communicates Dr. Oliveira’s willingness to assist in 6 these proceedings: “Please feel free to contact me at your earliest convenience 7 should you wish to speak with me directly about this matter.” (AR 449.) Thus, the 8 ALJ was put on notice that treatment records for the Plaintiff almost certainly 9 existed and were likely available upon request. 10 Because the decision rejects Dr. Oliveira’s opinion due to lack of support in 11 the record and because there was a strong indication that the doctor’s treatment 12 records existed, the onus was on the ALJ to contact Dr. Oliveira to inquire about his 13 supporting records before rejecting the opinion as unsupported. See Smolen v. 14 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought [she] needed to 15 know the basis of [the treating physician’s] opinions in order to evaluate them, 16 [she] has a duty to conduct an appropriate inquiry, for example, by subpoenaing the 17 physician or submitting further questions to them.”) The ALJ, however, apparently 18 made no effort to obtain evidence that could be found in Plaintiff’s treatment 19 records. (AR 12-57.) That was a failure to fully and fairly develop the record. See 20 Decoursey v. Astrue, No. CV 10-0628 JCG, 2011 WL 781925, at *5 (C.D. Cal. 21 Feb. 28, 2011) (ALJ improperly rejected opinion of treating physician without 22 seeking treatment records that were available and could have been produced on 23 request). Whether Dr. Oliveira properly based his opinions on sufficient clinical 24 findings may be a valid question, but it is a question that the ALJ should have 25 attempted to address with reference to Dr. Oliveira’s treatment records. See SSR 26 96-5p; Hayes v. Astrue, 270 Fed. Appx. 502, 504 (9th Cir. 2008) (finding error in 27 the ALJ’s failure to consider test results that could have been produced upon 28 request). The ALJ’s reliance on the lack of record evidence supporting 7 1 Dr. Oliveira’s opinion without seeking the doctor’s treating notes does not 2 constitute a “specific and legitimate” basis for discounting the doctor’s opinion. 3 See DeCoursey at *3-4. 4 “ALJ errors in social security cases are harmless if they are ‘inconsequential 5 to the ultimate nondisability determination’ and . . . ‘a reviewing court cannot 6 consider [an] error harmless unless it can confidently conclude that no reasonable 7 ALJ, when fully crediting the testimony, could have reached a different disability 8 determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015). Given 9 Dr. Oliveira’s opinion that Plaintiff is permanently disabled and unable to work, it 10 cannot be confidently said no reasonable ALJ would have found Plaintiff disabled 11 had the opinion been fully credited. 12 Dr. Oliveira’s treatment notes 13 Dr. Oliveira’s opinion without those records 14 Therefore, the error in failing to seek and in improperly assessing the weight to be given * * is not harmless. * 15 The law is well established that the decision whether to remand for further 16 proceedings or simply to award benefits is within the discretion of the Court. See, 17 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 18 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 19 1981). Before a case may be remanded for an immediate award of benefits, three 20 requirements must be met: “(1) the record has been fully developed and further 21 administrative proceedings would serve no useful purpose, (2) the ALJ has failed to 22 provide legally sufficient reasons for rejecting evidence, whether claimant 23 testimony or medical opinion, and (3) if the improperly discredited evidence were 24 credited as true, the ALJ would be required to find the claimant disabled on 25 remand.” Garrison v. Colvin, 759 F. 3d 995, 1020 (9th Cir. 2014); see also Brown- 26 Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015). If the record is “uncertain and 27 ambiguous, the proper approach is to remand the case to the agency” for further 28 proceedings. See Treichler, 775 F.3d at 1105. Here, further proceedings would be 8 1 useful to resolve conflicts and ambiguities in the record and would allow a request 2 for (and consideration of) the treating notes of Dr. Oliveira.3 See id. at 1103-04 (in 3 evaluating whether further administrative proceedings would be useful, the 4 reviewing court should consider “whether the record as a whole is free from 5 conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and 6 whether the claimant’s entitlement to benefits is clear under the applicable legal 7 rules”); Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014). Plaintiff has 8 failed to show that this case presents the rare circumstances that would warrant an 9 immediate award of benefits. ******************* 10 11 IT THEREFORE IS ORDERED that Judgment be entered reversing the 12 decision of the Commissioner of Social Security and remanding this matter for 13 further administrative proceedings consistent with this Order. 14 15 DATED: August 17, 2017 16 ____________________________________ ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 17 18 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. 9

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