Commissioner of Social Security v. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER signed by Magistrate Judge Craig M. Kellison on 9/29/14 GRANTING 18 Motion for Summary Judgment; DENYING 25 Motion for Summary Judgment. This matter is REMANDED for further proceedings consistent with this order; and the Clerk of the Court is DIRECTED to enter judgment and CLOSE this file. CASE CLOSED. (Meuleman, A)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JAMES D.A. SMITH,

12

Plaintiff,

13
14

No. 2:13-CV-0665-CMK

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

15
Defendant.
16
/
17
18

Plaintiff, who is proceeding with retained counsel, brings this action under

19

42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

20

Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

21

judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending

22

before the court are plaintiff’s motion for summary judgment (Doc. 18) and defendant’s cross-

23

motion for summary judgment (Doc. 25).

24

///

25

///

26

///
1

1

I. PROCEDURAL HISTORY

2

Plaintiff applied for social security benefits on April 27, 2010. In the application,

3

plaintiff claims that disability began on April 24, 2008. Plaintiff’s claim was initially denied.

4

Following denial of reconsideration, plaintiff requested an administrative hearing, which was

5

held on November 2, 2011, before Administrative Law Judge (“ALJ”) L. Kalei Fong. In a

6

January 24, 2012, decision, the ALJ concluded that plaintiff is not disabled as of October 2,

7

2009, based on the following relevant findings:

8

1.

The claimant has the following severe impairment(s): degenerative disc
disease of the lumbar and cervical spine with radiculopathy status post
lumbar laminectomy; and left shoulder disorder manifested by chronic
pain;

2.

The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

3.

The claimant has the following residual functional capacity through
October 1, 2009: less than a full range of sedentary work;

4.

Considering the claimant’s age, education, work experience, and residual
functional capacity through October 1, 2009, there were no jobs that exist
in significant numbers in the national economy that the claimant could
perform;

5.

Beginning on October 2, 2009, medical improvement occurred and
claimant has the following residual functional capacity: the claimant can
perform sedentary work; lift/carry no more than 25 to 30 pounds
occasionally and frequently; stand/walk, with normal breaks, for about 4
hours in an 8-hour workday; sit, with normal breaks, for about 6 hours in
an 8-hour workday; the claimant is able to climb ramps and stairs
occasionally, but is not able to climb ladders, ropes, or scaffolds; the
claimant is able to reach overhead occasionally with the left upper
extremity; claimant should avoid repetitive bending, stooping, crouching,
crawling, and exposure to hazards, including machinery and heights; and

6.

Considering the claimant’s age, education, work experience, residual
functional capacity beginning October 2, 2009, and vocational expert
testimony, there are jobs that exist in significant numbers in the national
economy that the claimant can perform.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

After the Appeals Council declined review on January 30, 2013, this appeal followed.

25

///

26

///
2

1

II. STANDARD OF REVIEW

2

The court reviews the Commissioner’s final decision to determine whether it is:

3

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

4

whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

5

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

6

(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

7

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

8

including both the evidence that supports and detracts from the Commissioner’s conclusion, must

9

be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

10

v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

11

decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

12

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

13

findings, or if there is conflicting evidence supporting a particular finding, the finding of the

14

Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

15

Therefore, where the evidence is susceptible to more than one rational interpretation, one of

16

which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

17

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

18

standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

19

Cir. 1988).

20

///

21

///

22

///

23

///

24

///

25

///

26

///
3

1

III. DISCUSSION

2

In his motion for summary judgment, plaintiff argues, among other things: (1) the

3

ALJ failed to provide reasons for tacitly rejecting limitations assessed by Drs. Hsia and Johnson;

4

and (2) the ALJ erred by failing to fully develop the record.

5
6

A.

Evaluation of Medical Opinions
The weight given to medical opinions depends in part on whether they are

7

proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

8

821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

9

professional, who has a greater opportunity to know and observe the patient as an individual,

10

than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285

11

(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given

12

to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4

13

(9th Cir. 1990).

14

In addition to considering its source, to evaluate whether the Commissioner

15

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

16

in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

17

uncontradicted opinion of a treating or examining medical professional only for “clear and

18

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

19

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

20

by an examining professional’s opinion which is supported by different independent clinical

21

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

22

1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

23

rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

24

81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

25

the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

26

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and
4

1

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

2

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

3

without other evidence, is insufficient to reject the opinion of a treating or examining

4

professional. See id. at 831. In any event, the Commissioner need not give weight to any

5

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

6

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

7

see also Magallanes, 881 F.2d at 751.

8

1.

9

Dr. Hsia
As to Dr. Hsia, the ALJ stated:

10

In May 2011, Rosalind A. Hsia, M.D., assessed the claimant with lumbar
spondylosis with acute L3 and L4 radiculopathies status post
decompression; cervical spondylosis with mild spinal canal stenosis at C56, and moderate spinal stenosis and severe, bilateral neuroforaminal
stenosis at C6-7; and axonal neuropathy of the pudendal nerves (Exhibit
15F). Dr. Hsia opined that the claimant should have work preclusions of
lifting, pushing, carrying, and pulling no more than 20 pounds; that he
should not sit for more than 60 minutes; that he should not stand for more
than 15 minutes; and that he should not bend at the waist more than twice
a day.

11
12
13
14
15

The undersigned gives significant weight to Dr. Hsia’s medical opinions,
as they are based on medical findings on examination of the claimant and
are well-supported by medically acceptable and laboratory diagnostic
techniques. Dr. Hsia’s determinations are also consistent with other
substantial evidence of record.

16
17
18
19

Plaintiff argues that the ALJ erred by, on the one hand giving Dr. Hsia’s opinion great weight

20

and, on the other hand, assigning plaintiff a residual functional capacity less restrictive than

21

would be indicated by Dr. Hsia’s limitations, thereby tacitly rejecting without explanation the

22

doctor’s opinions that plaintiff is precluded from lifting, pushing, carrying, or pulling more than

23

twenty pounds, sitting more than sixty minutes, standing more than fifteen minutes, and bending

24

at the waist more than twice per day. Defendant does not address this argument in its brief.

25

///

26

///
5

1

The court agrees with plaintiff. There are several areas in which the ALJ’s

2

residual functional capacity assessment reflects a silent rejection of Dr. Hsia’s opinions despite

3

the ALJ having given such opinions significant weight. Most notably, Dr. Hsia concluded that

4

plaintiff is precluded from sitting more than 60 minutes and made no mention of normal breaks,

5

yet the ALJ determined that plaintiff can sit for six hours with normal break but provided no

6

reasoning to support the less-restrictive limitation. The ALJ likewise rejected Dr. Hsia’s opinion

7

that plaintiff is precluded from standing more than 15 minutes.

8

The matter will be remanded to the agency for proper consideration of Dr. Hsia’s

9

opinions.

10

2.

Dr. Johnson

11

As to Dr. Johnson, the ALJ stated:

12

. . .Matthew D. Johnson, D.O., opined that the claimant was able to lift 10
pounds occasionally; to stand and/or walk for 2 hours in an 8-hour day; to
sit for less than 6 hours in an 8-hour day; to push and pull occasionally
with the upper extremities; and to never push and pull with the lower
extremities. Dr. Johnson also indicated that the claimant was not able to
climb, stoop, kneel, or crouch and that he could not perform repetitive
overhead activities with the left shoulder.

13
14
15
16
17
18
19

The undersigned gives significant weight to Dr. Johnson’s medical
opinions, as they are based on medical findings on examination of the
claimant and are well-supported by medically acceptable and laboratory
diagnostic techniques. Dr. Johnson’s determinations are also consistent
with other substantial evidence of record revealing that the claimant is able
to perform sedentary work. The undersigned notes that more weight is
given to Dr. Yen’s opinion that the claimant is able to lift 25 to 30 pounds,
as this determination was made by the claimant’s treating physician.

20
As with Dr. Hsia, plaintiff argues that the ALJ erred by giving Dr. Johnson’s opinion significant
21
weight yet rejecting certain of the doctor’s limitations without explanation.
22
Again, the court agrees. In particular, the ALJ erred by failing to discuss Dr.
23
Johnson’s assessed limitations to climbing. According to Dr. Johnson, plaintiff cannot climb.
24
Dr. Johnson does not limit this restriction to only ladders, ropes, or scaffolds. The ALJ,
25
however, concluded that plaintiff can occasionally climb stairs, thereby appearing to reject
26
6

1

without explanation Dr. Johnson’s more restrictive opinion.

2
3

The matter will be remanded to the agency for proper consideration of Dr.
Johnson’s opinions.

4

B.

Duty to Develop the Record

5

The ALJ has an independent duty to fully and fairly develop the record and assure

6

that the claimant’s interests are considered. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th

7

Cir. 2001). When the claimant is not represented by counsel, this duty requires the ALJ to be

8

especially diligent in seeking all relevant facts. See id. This requires the ALJ to “scrupulously

9

and conscientiously probe into, inquire of, and explore for all the relevant facts.” Cox v.

10

Califano, 587 F.2d 988, 991 (9th Cir. 1978). Ambiguous evidence or the ALJ’s own finding that

11

the record is inadequate triggers this duty. See Tonapetyan, 242 F.3d at 1150. The ALJ may

12

discharge the duty to develop the record by subpoenaing the claimant’s physicians, submitting

13

questions to the claimant’s physicians, continuing the hearing, or keeping the record open after

14

the hearing to allow for supplementation of the record. See id. (citing Tidwell v. Apfel, 161 F.3d

15

599, 602 (9th Cir. 1998)).

16

As discussed above, the evidence regarding Dr. Johnson’s climbing limitation is

17

ambiguous in that it is not clear whether the limitation applies to stairs. The matter will be

18

remanded to allow for further development of the record.

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///
7

1

IV. CONCLUSION

2

For the foregoing reasons, this matter will be remanded under sentence four of 42

3

U.S.C. § 405(g) for further development of the record and/or further findings addressing the

4

deficiencies noted above.

5

Accordingly, IT IS HEREBY ORDERED that:

6

1.

Plaintiff’s motion for summary judgment (Doc. 18) is granted;

7

2.

The Commissioner’s cross motion for summary judgment (Doc. 25) is

3.

This matter is remanded for further proceedings consistent with this order;

4.

The Clerk of the Court is directed to enter judgment and close this file.

8

denied;

9
10
11

and

12
13
14
15

DATED: September 29, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
8