Harrington v. Commissioner of Social Security

Filing 19

ORDER signed by Magistrate Judge Allison Claire on 2/4/14 ORDERING that Plaintiff's MOTION for Summary Judgment 13 is GRANTED in PART and DENIED in PART. The Commissioner's Cross-Motion for Summary Judgment 16 is DENIED; and This matter is REMANDED for further proceedings consistent with this order. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELE I. HARRINGTON,

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No. 2:13-cv-0052 AC

Plaintiff,
v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying her application for a period of disability and disability insurance

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benefits (“DIB”) under Title II of the Social Security Act (“the Act”). The parties’ cross-motions

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for summary judgment are pending. For the reasons discussed below, the court will grant in part

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plaintiff’s motion for summary judgment and deny the Commissioner’s cross-motion for

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summary judgment.

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PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB in September 2009, alleging disability beginning on

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April 24, 2009. Administrative Record (“AR”) 122-25. Plaintiff’s application was denied

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initially and again upon reconsideration. AR 78-82, 84-88. On May 11, 2011, a hearing was held

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before administrative law judge (“ALJ”) Jean R. Kerins. AR 41-69. Plaintiff appeared with
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attorney representation at the hearing, at which she and a vocational expert testified. See id. In a

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decision dated July 18, 2011, the ALJ found that plaintiff has not been under a disability within

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the meaning of the Act. AR 10-21. The ALJ made the following findings (citations to 20 C.F.R.

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omitted):

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1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.

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2. The claimant has not engaged in substantial gainful activity
since April 24, 2009, the alleged onset date.

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3. The claimant has the following severe impairments: bilateral
shoulder severe rotator cuff tendonitis, cervical spine sprain,
bilateral shoulder impingement syndrome, status-post bilateral
shoulder arthroscopic surgery, and adjustment disorder with
depressive features.

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4. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

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5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except
occasionally perform overhead reaching and frequently perform
postural activities, handling, fingering, and feeling. Mentally, she
has the ability to make judgments, understand, remember, carry out
detailed work but not complex instructions and had no limitations
in responding appropriately to usual work situations and interacting
appropriately with supervisors, co-workers, and the public.

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6. The claimant is unable to perform any past relevant work.

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7. The claimant was born on May 21, 1970 and was 38 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date.

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8. The claimant has at least a high school education and is able to
communicate in English.

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9.

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10. Considering the claimant’s age, education, work experience,
and residual functional capacity, the claimant has acquired work
skills from past relevant work that are transferable to other
occupations with jobs existing in significant numbers in the
national economy.

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11. The claimant has not been under a disability, as defined in the
Social Security Act, from April 24, 2009, through the date of this
decision.

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The claimant has acquired work skills from past relevant work.

AR 10-21.
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Plaintiff requested review of the ALJ’s decision by the Appeals Council, but the Council

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denied review on November 16, 2012, leaving the ALJ’s decision as the final decision of the

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Commissioner of Social Security. AR 1-6.

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FACTUAL BACKGROUND
Born on May 21, 1970, plaintiff was 38 years old on the alleged onset date of disability

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and 40 years old at the time of the administrative hearing. Prior to the onset of disability, plaintiff

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worked for 14 years as a dental hygienist. AR 45.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)). “While inferences from the record can constitute

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substantial evidence, only those ‘reasonably drawn from the record’ will suffice.” Widmark v.

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Barnhart, 454 F.3d 1063, 1066 (9th Cir.2006) (citation omitted).

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Although this Court cannot substitute its discretion for that of the Commissioner, the

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Court 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.” Desrosiers v. Sec' y of

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Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir.1988); see also Jones v. Heckler, 760 F.2d

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993, 995 (9th Cir.1985).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001)
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(citations omitted). “Where the evidence is susceptible to more than one rational interpretation,

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one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the Court may review only the reasons

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stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not

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rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); see also Connett v. Barnhart, 340 F.3d

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871, 874 (9th Cir. 2003).

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The court will not reverse the Commissioner’s decision if it is based on harmless error,

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which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the

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ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th

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Cir.2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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ANALYSIS

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Plaintiff seeks summary judgment on the grounds that the ALJ: (1) failed to credit a

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treating physician’s opinion; (2) failed to mention, let alone consider, the opinion of her treating

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psychiatrist; and (3) improperly discredited plaintiff’s subjective testimony. The Commissioner,

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in turn, argues that the ALJ’s decision is supported by substantial evidence and is free from legal

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error.

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A.

Opinion of Treating Physician

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On July 22, 2009, treating physician Dr. Nicholas Colyvas completed a Comprehensive

Dr. Nicholas Colyvas

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Orthopaedic Consultation Report for a Claims Adjuster regarding plaintiff’s workers

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compensation claim. AR 313-17. Dr. Colyvas noted that plaintiff’s injury – specifically, her

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neck and bilateral shoulder pain – became progressively worse due to the repetitive nature of her

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work. He noted that plaintiff was initially treated with physical therapy, which exacerbated her

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condition. She was then treated by a chiropractor and prescribed medication. Plaintiff did see

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some improvement with the prescription medication and an occasional Advil. A physical

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examination of plaintiff revealed full range of motion in neck, though with reports of pain;

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limited range of motion in left shoulder due to pain; and full range of motion in the right shoulder.
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Examination of an x-ray of the left shoulder clearly showed calcific tendinitis, and an MRI of the

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cervical spine revealed a mild disc bulge at C5/6 but was otherwise negative. Dr. Colyvas opined

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that plaintiff was suffering from a repetitive stress injury manifesting as left shoulder severe

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rotator cuff teninosis and partial tear; cervical spine sprain with C5/6 left radicular pain; and right

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should rotator cuff tendinosis, possible cuff tear. Dr. Colyvas recommended conservative

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treatment at the time, including continued physical therapy and continued use of non-steroidal

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anti-inflammatory medications.

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Following several appointments concerning plaintiff’s bilateral shoulder pain and neck
pain between August and December 2009, see AR 307-12, Dr. Colyvas eventually performed

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surgery on plaintiff’s right shoulder on May 20, 2010, id. 418-19, and on plaintiff’s left shoulder

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on September 17, 2010. See AR 492.

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On March 3, 2011, Dr. Colyvas completed a Physical Residual Functional Capacity

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Questionnaire. AR 492-95. He diagnosed plaintiff with a repetitive stress injury, noting it to be

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stable though unlikely to improve. Her symptoms included pain and weakness of the upper

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extremities and upper back. Dr. Colyvas indicated that plaintiff’s impairments can be expected to

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last at least twelve months and that plaintiff is not a malingerer. In light of plaintiff’s

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impairments, he noted that plaintiff’s typical workday would be interrupted frequently. Dr.

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Colyvas opined that, in an 8-hour workday, plaintiff could sit/stand/walk and stand/walk for less

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than two hours at a time, but could sit for about two hours at a time. He further opined that

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plaintiff would need to take an unscheduled 15-minute break every 1-2 hours. He limited

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plaintiff to frequently lifting and carrying less than 10 pounds, occasionally lifting 10 pounds, and

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never lifting more than 20 pounds. He also limited plaintiff to occasionally looking up or down,

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turning head, and holding her head in a static position, twisting, stooping, crouching, squatting,

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climbing ladders and stairs. Lastly, he determined that, in an 8-hour workday, plaintiff could only

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grasp, turn or twist objects 20% of the time, could perform fine manipulations 10% of the time,

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and could reach overhead only 5% of the time.

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2.

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The ALJ gave only minimal weight to Dr. Colyvas’s physical questionnaire because it

Analysis

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was not consistent with the overall objective evidence or with the State Agency physical

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determinations at the reconsideration level.1 AR 19. Plaintiff contends this was in error.

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The opinions of treating physicians are generally given greater weight than those of other

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physicians because of the treating physicians’ intimate knowledge of the claimant’s condition.

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Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 2001). In order to reject the opinion of a

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treating physician, the ALJ is required to show specific and legitimate reasons based on

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substantial evidence from the record. Id.; see also Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

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1996). Substantial evidence may be based in part on the testimony of a non-treating, non-

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examining medical advisor. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602-03 (9th

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Cir. 1999). However, substantial evidence may not be based on a reviewing physician’s opinion

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alone, or on the reviewing physician’s opinion and the ALJ’s personal observations. Id. Rather,

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substantial evidence requires additional evidence, such as inconsistencies between the treating

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physicians’ reports and the testimony of the claimant. Id. Additionally, an ALJ may properly

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discount a treating physician’s opinion where the treating physician relies heavily on the

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subjective complaints of the claimant. See id.

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Where, as here, the ALJ relied on the opinion of a State Agency consultant, the applicable
legal standard is:

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Where . . . a nontreating source’s opinion contradicts that of the
treating physician but is not based on independent clinical findings,
or rests on clinical findings also considered by the treating
physician, the opinion of the treating physician may be rejected
only if the ALJ gives specific, legitimate reasons for doing so that
are based on substantial evidence in the record.

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Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). In this case, the State Agency medical

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consultants were asked to review plaintiff’s medical file to determine the severity of plaintiff’s

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On January 12, 2010, a State Agency medical consultant who reviewed plaintiff’s medical
records regarding her bilateral shoulder pain completed a Physical Residual Functional Capacity
Assessment. AR 322-26. This consultant determined that plaintiff is capable of medium level
work with occasional overhead reaching. On August 17, 2010, a second State Agency medical
consultant completed a Physical Residual Functional Capacity Assessment, determining that
plaintiff could perform light work with limited overhead reaching. AR 447-51. This second
consultant’s opinion is the reconsideration referred to by the ALJ.
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impairments. These experts did not examine plaintiff nor did they undertake any independent

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testing prior to rendering their opinions; they simply reviewed the medical evidence in the file. In

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fact, even if the court assumes that the state experts had all of the medical evidence that plaintiff’s

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treating doctors had, which is in fact unclear from the record, the Ninth Circuit requires that the

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ALJ provide specific legitimate reasons for rejecting the opinions of plaintiff’s treating physician

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and giving weight to the non-examining opinions of the agency experts. The ALJ did not do so

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here.

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The ALJ also gave minimal weight to Dr. Colyvas’s opinion because it was not consistent

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with the overall objective evidence. However, the ALJ did not cite to the record or offer any

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analysis of the medical evidence in support of this position. The ALJ’s previous summary of

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portions of the medical record is insufficient to satisfy the Commissioner’s burden of setting forth

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specific and legitimate reasons for rejecting the opinion of a treating physician. See Embrey v.

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Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that medical opinions are not supported by

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sufficient objective findings or are contrary to the preponderant conclusions mandated by the

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objective findings does not achieve the level of specificity our prior cases have required, even

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when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions.

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He must set forth his own interpretations and explain why they, rather than the doctors’ are

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correct.”). The Commissioner attempts to remedy this problem by citing to medical evidence in

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support the ALJ’s decision, but this court must “review the ALJ’s decision based on the reasoning

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and actual findings offered by the ALJ.” See Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1226-

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27 (9th Cir. 2009) (internal citation omitted). Accordingly, the court finds that the ALJ erred in

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failing to give specific and legitimate reasons for giving minimal weight to the opinion of treating

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physician, Dr. Colyvas.

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B.

Opinion of Treating Psychiatrist

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1.

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From February 28, 2011 through March 30, 2011, plaintiff was evaluated by psychiatrist

Dr. Michael McAndrews

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Dr. Michael McAndrews. AR 496-504. At the time of these evaluations, plaintiff had been off of

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work for two years, was experiencing financial problems because her workers compensation
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payments stopped, was experiencing pain at all hours, and felt sad and increasingly worried. Dr.

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McAndrews observed plaintiff to be “angry, irritable, labile, tearful, DEPRESSED.” He noted

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that her facial expression and general demeanor reveal depressed mood, as do her speech and

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thinking. Dr. McAndrews’s primary diagnosis was Major Depressive Disorder, Recurrent,

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Severe w/o Psychotic Features. He discussed spiritual support for plaintiff, recommended

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psychotherapy to stress coping skills, and prescribed Zoloft for depression and anxiety. He also

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assigned a GAF score of 45.2

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The ALJ did not mention Dr. McAndrews or his diagnosis. Rather than referring to Dr.

Analysis

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McAndrews’s diagnosis of Major Depressive Disorder, Recurrent, Severe w/o Psychotic

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Features, the ALJ referred to a June 8, 2010 consultative examination performed by Dr. Jack

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Latow, which revealed mild depression and a GAF of 70-75, AR 400-03; a July 31, 2010

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Psychiatric Review Technique prepared by a State Agency consultative psychiatrist, who

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affirmed Dr. Latow’s diagnostic impression, see AR 433; and an undated letter prepared by

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Annette Kelso, MFT Intern at Olive Branch Counseling Group, who noted that plaintiff had been

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in therapy since September 2009, presented with major depression, as evidenced by depressed

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mood most of the day, hypersomnia with loss of energy, feelings of worthlessness, and

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diminished ability to concentrate, AR 508.

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The Commissioner argues that the ALJ was not required to discuss Dr. McAndrews’s

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records because they do not qualify as a “medical opinion.” Per the Commissioner, a “medical

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opinion” is a term of art for a statement that contains the following detailed information: (1) the

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nature and severity of plaintiff’s impairments for the period in question; (2) whether the 12-month

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duration requirement is met; and (3) the plaintiff’s residual ability to do specific work related

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The Global Assessment of Functioning (GAF) is a numeric scale (0 through 100) used by
mental health clinicians and physicians to rate subjectively the social, occupational, and
psychological functioning of adults, e.g., how well or adaptively one is meeting various
problems-in-living. A GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). See
DSM-IV at 34.
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mental and physical activities. This argument lacks merit. Although the ALJ was entitled to

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identify limitations in Dr. McAndrews’s treatment notes and diagnosis as factors in rejecting

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them, the ALJ was not relieved of her duty to consider the notes and diagnosis in the first

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instance. The Commissioner also argues that plaintiff’s treatment by Dr. McAndrews’s was her

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first referral to a psychiatrist, suggesting that she was functioning adequately prior to the referral.

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But again, the Commissioner’s post hoc rationalizations are improper. The undersigned therefore

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finds that the ALJ committed reversible error in failing to discuss Dr. McAndrews’s treatment

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notes and diagnosis.

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C.

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The ALJ’s Credibility Determination
Lastly, plaintiff argues that the ALJ erred in finding her subjective complaints not entirely

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credible. Because the court finds that this matter should be remanded for the aforementioned

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reasons, the court declines to consider this argument.

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D.

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Remand
Plaintiff asserts that this matter should be remanded for immediate payment of benefits

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rather than further proceedings. A remand for further proceedings is unnecessary if the record is

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fully developed, and it is clear from the record that the ALJ would be required to award benefits.

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Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). The decision whether to remand for

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further proceedings turns upon the likely utility of such proceedings. Barman v. Apfel, 211 F.3d

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1172, 1179 (9th Cir. 2000). In this matter, this court concludes that outstanding issues remain

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that must be resolved before a determination of disability can be made. Pursuant to this remand,

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the ALJ shall properly consider Dr. Colyvas and Dr. McAndrews’s opinions.

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CONCLUSION

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Accordingly, for the reasons stated above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment is granted in part;

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2. The Commissioner’s cross-motion for summary judgment is denied; and

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3. This matter is remanded for further proceedings consistent with this order.
DATED: February 4, 2014

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