Emberson v. Commissioner of Social Security

Filing 18

FINAL JUDGMENT AND ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 11/8/2017. CASE CLOSED. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PENNY ESTHER EMBERSON, Plaintiff, 12 13 14 v. CASE NO.: 1:16-cv-01587-EPG FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL SECURITY COMPLAINT NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 This matter is before the Court on Penny Esther Emberson’s (“Plaintiff” or “claimant”) 18 complaint for judicial review of an unfavorable decision of the Commissioner of the Social 19 Security Administration regarding her applications for supplemental security income. The parties 20 have consented to entry of final judgment by the United States Magistrate Judge under the 21 provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. 22 (ECF Nos. 7, 8.) 23 On November 2, 2017, a hearing was held, at which the Court heard from the parties. 24 Having reviewed the record, administrative transcript, the briefs of the parties, and the applicable 25 law, the Court finds as follows: 26 For the reasons announced by the Court on the record at the conclusion of the parties’ oral 27 argument on November 2, 2017, the Court finds that the decision of the Commissioner of Social 28 Security should be reversed and the case should be remanded for further proceedings. 1 1 The Administrative Law Judge (“ALJ”) erred by failing to provide specific and legitimate 2 reasons for rejecting the opinion of Plaintiff’s treating physician. “[T]his circuit distinguish 3 among the opinions of three types of physicians: (1) those who treat the claimant 4 (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); 5 and (3) those who neither examine nor treat the claimant (nonexamining physicians).” Lester v. 6 Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). Generally, the opinion of 7 treating physicians should be afforded greater weight than that of both examining physicians and 8 nonexamining physicians. Lester, 81 F.3d at 830. In turn, the opinion of examining physicians 9 should be afforded greater weight than that of nonexamining physicians. Lester, 81 F.3d at 830. 10 An ALJ “must provide ‘clear and convincing’ reasons for rejecting the uncontradicted 11 opinion of an examining physician.” Lester, 81 F.3d at 830 (citing Pitzer v. Sullivan, 908 F.2d 12 502, 506 (9th Cir.1990). “If a treating or examining doctor’s opinion is contradicted by another 13 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate reasons that are 14 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 15 “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and 16 conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes 17 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th 18 Cir.1986)). 19 Here, Plaintiff’s treating physician, Pushpalatha Arakere, MD, submitted a check-the-box 20 physical medical source statement. She stated that she treated Plaintiff from June 2012 to July 21 2013, and that Plaintiff appeared chronically ill and visibly fatigued. AR 449. Id. She opined that 22 Plaintiff could lift/carry 10 pounds frequently and 10 pounds occasionally, stand/walk 2-4 hours, 23 walk less than 1 block, and sit for less than 2-3 hours in an 8 hour day. Id. Dr. Arakere cited 24 Plaintiff’s visible fatigue in support of the limitations. AR 450. The ALJ gave Dr. Arakere’s 25 opinion less than controlling weight. AR 14. The ALJ reasoned, “I give partial weight to this 26 opinion because it is not supported with the relevant evidence. Dr. Arakere’s opinion is more 27 restrictive than the claimant hearing testimony where she testified she could lift 15 pounds and 28 could alternate between sitting and standing in 1-hour increments.” Id. 2 1 The Court finds that the ALJ failed to provide specific and legitimate reasons supported 2 by substantial evidence for rejecting the opinion of Plaintiff’s treating physician. First, the ALJ’s 3 finding that Dr. Arakere’s opinion is more restrictive than Plaintiff’s testimony is not supported 4 by substantial evidence in the record. A conflict between a claimant’s testimony and the opinion 5 of a physician may serve as substantial evidence to discredit a physician’s opinion. See Morgan v. 6 Comm'r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). The ALJ, however, manufactured 7 a conflict between Plaintiff’s testimony and the opinion of Dr. Arakere. At the administrative 8 hearing, the ALJ asked Plaintiff, “if you can’t lift 20 pounds can you lift 15 or can you lift 10.” 9 AR 55. Plaintiff responded that she “could lift 10, 15.” Id. Later, when asked whether she could 10 lift 10 to 15 pounds throughout an eight-hour workday, Plaintiff responded that she “wouldn’t be 11 able to take the pain.” AR 59. Plaintiff gave an estimate of her capability, and later qualified it 12 with further limitations. 13 This testimony does not conflict with, and is not more restrictive than, Dr. Arakere’s 14 opinion that Plaintiff could lift/carry 10 pounds frequently and 10 pounds occasionally in an 15 eight-hour workday. Similarly, Plaintiff testified that she can sit for an hour before needing to get 16 up to stretch and walk around. AR 53-54. Plaintiff also testified that after standing for an hour she 17 would need to sit down or change positions. AR 54. Plaintiff did not testify that she could 18 “alternate between sitting and standing in 1-hour increments.” AR 14. Dr. Arakere’s opinion also 19 did not state that Plaintiff would be unable to periodically alternate between sitting and standing. 20 AR 449-50. Thus, the Court does not find that substantial evidence supports the ALJ’s conclusion 21 that Dr. Arakere’s opinion was more restrictive than Plaintiff’s testimony regarding her 22 limitations. 23 Second, the ALJ’s finding that Dr. Arakere’s opinion was not supported by the relevant 24 evidence lacks sufficient specificity. See Embrey v. Bowen, 849 F. 2d 418, 421-422 (9th Cir. 25 1988); see e.g. Belanger v. Berryhill, 685 F. App’x 596, 598 (9th Cir. 2017) (finding that an 26 ALJ’s reason for giving a physician’s opinion less than controlling weight was insufficient where 27 the ALJ stated that the opinion was inconsistent with the records as a whole). The ALJ fails to 28 explain which aspects of Dr. Arakere’s opinion were inconsistent with the record and fails to 3 1 2 identify such inconsistencies in the record. Defendant argues that Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008) is controlling 3 in this matter. In Tommasetti the court found that the ALJ properly rejected a treating physician’s 4 opinion as a rehashing of claimant’s own statements, which the ALJ discredited. Tommasetti, 5 533 F.3d at 1041. Defendant argues that the ALJ rejected Dr. Arakere’s opinion as it relied on 6 Plaintiff’s discredited subjective complaints of fatigue. However, the ALJ does not give such 7 reasoning, and the Court cannot now inject such reasoning into the record. See Bray v. Comm'r of 8 Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of 9 administrative law require us to review the ALJ’s decision based on the reasoning and factual 10 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 11 adjudicator may have been thinking.”). Moreover, Dr. Arakere’s opinion is not based on 12 Plaintiff’s subjective complaint, but on her visual analysis of Plaintiff’s condition. AR 499-450. 13 Defendant also argues that under Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), the 14 Court should affirm the ALJ’s determination. In Magallanes, the court found, “To the extent that 15 [non-treating physicians’] conflicting opinion rested on independent, objective findings, those 16 opinions could constitute substantial evidence” in rejecting a treating physician’s opinion. 881 17 F.2d at 753. In this case, however, no non-treating physician made independent, objective 18 findings regarding the effects of fatigue on Plaintiff’s ability to perform sustained work activities 19 on a regular and continuing basis. Moreover, the ALJ did not cite this as a reason for his 20 determination, and the Court cannot now make guesses as to which medical evidence the ALJ 21 found contradicted Dr. Arakere’s opinion. See Bray, 554 F.3d at 1225. 22 Because the Court cannot confidently conclude that no reasonable ALJ, when fully 23 crediting the testimony, would have reached a different disability determination, the ALJ’s error 24 was not harmless. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) 25 (“[A] reviewing court cannot consider the error harmless unless it can confidently conclude that 26 no reasonable ALJ, when fully crediting the testimony, could have reached a different disability 27 determination.”). Furthermore, there are outstanding issues concerning whether, as the Vocational 28 Expert testified, Plaintiff would be able to do work on a regular and continuing basis when 4 1 2 considering the limitation identified by Dr. Arakere. On remand, the ALJ shall re-consider its assessment of the treating physician’s opinion 3 and articulate specific and legitimate findings supported by substantial evidence in the record in 4 evaluating the weight that should be afforded the opinion. 5 Accordingly, the Court GRANTS Plaintiff’s appeal from the administrative decision of 6 the Commissioner of Social Security and the case is remanded to the Social Security 7 Administration for further proceeding. The Clerk of the Court is DIRECTED to enter judgment 8 in favor of Plaintiff and against Defendant Nancy A. Berryhill, Acting Commissioner of Social 9 Security. 10 IT IS SO ORDERED. 11 12 Dated: November 8, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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