Armstrong v. Commissioner of Social Security

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 7/6/15 RECOMMENDING that Plaintiff's motion for summary judgment 16 be GRANTED IN PART; The Commissioner's cross-motion for summary judgment 22 be DENIED; T he action be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g); Judgment be entered for plaintiff. Referred to Judge Morrison C. England, Jr; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WENDY SUSAN ARMSTRONG,

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Plaintiff,

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No. 2:14-cv-1305-MCE-KJN

v.

FINDINGS AND RECOMMENDATIONS

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 plaintiff’s application for Disability Insurance Benefits (“DIB”) under

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Title II of the Social Security Act (“Act”).1 In her motion for summary judgment, plaintiff

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principally contends that the Commissioner erred by finding that plaintiff was not disabled at any

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time from May 14, 2007, plaintiff’s alleged disability onset date, through December 31, 2008,

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plaintiff’s date last insured. (ECF No. 16.) The Commissioner filed an opposition to plaintiff’s

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motion and a cross-motion for summary judgment. (ECF No. 22.) Thereafter, plaintiff filed a

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reply brief. (ECF No. 24.)

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This action proceeds before the undersigned pursuant to E.D. Cal. L.R. 302(c)(15).
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For the reasons that follow, the court recommends that plaintiff’s motion for summary

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judgment be GRANTED IN PART, the Commissioner’s cross-motion for summary judgment be

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DENIED, and the action be remanded for further proceedings pursuant to sentence four of 42

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U.S.C. § 405(g).

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I.

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BACKGROUND
Plaintiff was born on November 22, 1960; has a GED; can speak, understand, read, and

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write in English; and previously worked primarily as a cement mason. (Administrative Transcript

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(“AT”) 37-39, 130.) On August 11, 2011, plaintiff applied for DIB, alleging that she was unable

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to work as of August 1, 2008, due to frequent staph infections, plantar fasciitis, bilateral knee

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pain, back pain, neck pain, limited range of motion in the left shoulder, and depression. (AT 11,

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60-61, 113, 131.) After the Commissioner denied plaintiff’s application initially and on

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reconsideration, plaintiff requested a hearing before an administrative law judge (“ALJ”), which

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took place on October 11, 2012, and at which plaintiff (represented by a non-attorney

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representative) testified. (AT 11, 33-52.) At that hearing, plaintiff amended her alleged disability

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onset date to May 14, 2007. (AT 11, 50.)

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In a decision dated November 15, 2012, the ALJ determined that plaintiff had not been

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under a disability, as defined in the Act, at any time from May 14, 2007, plaintiff’s amended

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alleged disability onset date, through December 31, 2008, plaintiff’s date last insured. (AT 11-

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21.) The ALJ’s decision became the final decision of the Commissioner when the Appeals

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Council denied plaintiff’s request for review on March 27, 2014. (AT 2-4.) Thereafter, plaintiff

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filed this action in federal district court on May 28, 2014, to obtain judicial review of the

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Commissioner’s final decision. (ECF No. 1.)

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II.

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ISSUES PRESENTED
On appeal, plaintiff raises the following issues: (1) whether the ALJ erroneously rejected

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the opinion of one of plaintiff’s treating physicians; (2) whether the ALJ improperly discounted

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the credibility of plaintiff and her husband; (3) whether the ALJ’s residual functional capacity

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(“RFC”) assessment was erroneous and unsupported by substantial evidence; and (4) whether the

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ALJ erred in not obtaining vocational expert testimony for purposes of making a determination at
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step five of the sequential disability evaluation process.

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III.

LEGAL STANDARD
The court reviews the Commissioner’s decision to determine whether (1) it is based on

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proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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A.

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The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

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five-step analytical framework.2 As an initial matter, the ALJ found that plaintiff remained

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Disability Insurance Benefits are paid to disabled persons who have contributed to the Social
Security program. 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to disabled
persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability, in part, as
an “inability to engage in any substantial gainful activity” due to “a medically determinable
physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel
five-step sequential evaluation governs eligibility for benefits under both programs. See 20
C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The following summarizes the sequential evaluation:

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Step one: Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed to step
three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of impairments meet or
equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the
claimant is automatically determined disabled. If not, proceed to step four.
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insured for purposes of DIB through December 31, 2008. (AT 13.) At the first step, the ALJ

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concluded that plaintiff had not engaged in substantial gainful activity from May 14, 2007,

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plaintiff’s amended alleged disability onset date, through December 31, 2008, plaintiff’s date last

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insured. (Id.) At step two, the ALJ determined that plaintiff had the following severe

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impairments through the date last insured: abdominal hernia with chronic wound infections,

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headaches, and plantar fasciitis. (Id.) However, at step three, the ALJ determined that plaintiff

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did not have an impairment or combination of impairments that met or medically equaled an

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impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AT 14-15.)

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Before proceeding to step four, the ALJ found that, through the date last insured, plaintiff

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had the RFC to perform the full range of light work as defined in 20 C.F.R. § 404.1567(b). (AT

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15.) At step four, the ALJ determined that plaintiff was unable to perform any past relevant work

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through the date last insured. (AT 20.) However, at step five, the ALJ held, in reliance on the

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Grids, that, considering plaintiff’s age, education, work experience, and RFC, there were jobs that

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existed in significant numbers in the national economy that plaintiff could have performed

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through the date last insured. (Id.)

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Therefore, the ALJ concluded that plaintiff had not been under a disability, as defined in

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the Act, at any time from May 14, 2007, plaintiff’s amended alleged disability onset date, through

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December 31, 2008, plaintiff’s date last insured. (AT 21.)

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Step four: Is the claimant capable of performing his past relevant work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any
other work? If so, the claimant is not disabled. If not, the claimant is disabled.

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Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

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The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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B.

(1) Whether the ALJ erroneously rejected the opinion of one of plaintiff’s treating

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Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

physicians

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The weight given to medical opinions depends in part on whether they are proffered by

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treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,

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1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more

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weight is given to the opinion of a treating professional, who has a greater opportunity to know

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and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

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1996).

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To evaluate whether an ALJ properly rejected a medical opinion, in addition to

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considering its source, the court considers whether (1) contradictory opinions are in the record;

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and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a

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treating or examining medical professional only for “clear and convincing” reasons. Lester, 81

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F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be

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rejected for “specific and legitimate” reasons. Lester, 81 F.3d at 830. While a treating

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professional’s opinion generally is accorded superior weight, if it is contradicted by a supported

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examining professional’s opinion (supported by different independent clinical findings), the ALJ

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may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to

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weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,3 except that the ALJ

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in any event need not give it any weight if it is conclusory and supported by minimal clinical

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findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,

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minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a

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non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting

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a treating or examining physician’s opinion, but may constitute substantial evidence when it is

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The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3)
nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency;
(6) specialization. 20 C.F.R. § 404.1527.
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consistent with other independent evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144,

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1149 (9th Cir. 2001).

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In this case, one of plaintiff’s treating physicians, Dr. James Gonzalez, in a July 21, 2011
treatment note stated that:
Comes back to the office. When she was working, her job
description was that of a concrete finisher, which obviously
involves heavy lifting on a regular basis, including bending and
twisting. Because of her history of abdominal surgery, [plaintiff]
has a large abdominal wall hernia. She should be considered
permanently disabled because she has no abdominal core ability to
move at this time due to the hernias and this will be a permanent
and stationary condition.

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(AT 746.) The ALJ essentially rejected Dr. Gonzalez’s opinion, reasoning that it was vague,

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ambiguous, and conclusory; it failed to provide any specific functional limitations; and it was not

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clear whether Dr. Gonzalez was familiar with the definition of disability under the Act. (AT 19.)

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To be sure, Dr. Gonzalez’s July 21, 2011 note is vague, ambiguous, and conclusory. It

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fails to set forth any meaningful functional limitations to be potentially incorporated into the

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RFC. Furthermore, as the ALJ suggested, it is far from clear whether Dr. Gonzalez opined that

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plaintiff was disabled as that term is understood in the social security context. Indeed, Dr.

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Gonzalez’s discussion of plaintiff’s previous work and the requirements of that work may at least

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plausibly suggest that he used the term permanently disabled to mean that plaintiff was

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permanently unable to perform her previous heavy work. Nevertheless, although an ALJ may

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generally reject a conclusory, minimally supported opinion by a treating physician, the court

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concludes, for the reasons outlined below, that the ALJ should have further developed the record

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under the circumstances of this case.

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As an initial matter, although Dr. Gonzalez’s July 21, 2011 note is conclusory, the record

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contains copious treatment records by Dr. Gonzalez and other treating physicians, which

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documented plaintiff’s multiple surgeries, chronic wound infections, home health care by visiting

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nurses, abdominal hernias, headaches, and plantar fasciitis during the relevant period.

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Additionally, another physician, Dr. Tamas Vidovszky, who plaintiff consulted for a second

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opinion on November 1, 2011, documented that plaintiff at that time had a large, moderately
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symptomatic abdominal wall hernia. (AT 848.)4 Therefore, the record shows that plaintiff

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suffered from serious medical impairments, and the court cannot say that Dr. Gonzalez’s opinion

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is entirely unsupported by the record.

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Additionally, the court finds it significant that the ALJ in this case did not obtain an

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opinion from a consultative expert who personally examined plaintiff. Instead, the ALJ relied on

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the opinion of a non-examining state agency physician to conclude that plaintiff was capable of

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performing the full range of light work. (AT 19.) Even though the opinion of a non-examining

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medical expert can constitute substantial evidence when it is consistent with other independent

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evidence in the record, the record evidence here is too ambiguous to permit such reliance on the

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non-examining opinion.

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Accordingly, the court concludes that the case should be remanded for further
development of the medical opinion evidence, as discussed below.

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The court declines plaintiff’s invitation to remand the case for an award of benefits.

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Generally, if the court finds that the ALJ’s decision was erroneous or not supported by substantial

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evidence, the court must follow the “ordinary remand rule,” meaning that “the proper course,

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except in rare circumstances, is to remand to the agency for additional investigation or

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explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). A

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remand for an award of benefits is inappropriate where the record has not been fully developed or

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there is a need to resolve conflicts, ambiguities, or other outstanding issues. Id. at 1101.
As noted above, Dr. Gonzalez’s July 21, 2011 note is ambiguous and thus insufficient in

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itself to establish plaintiff’s disability without further development of the record.

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Additionally, the record contains other conflicting evidence at least potentially casting
doubt on plaintiff’s claims of extended disability. For example, on July 1, 2008, two weeks after

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Dr. Vidovszky also noted that plaintiff was disabled. However, that notation appears in the
historical section of the report, and it is unclear whether Dr. Vidovszky actually assessed plaintiff
as disabled or whether he was merely recording plaintiff’s own report of disability. Also, in the
assessment portion of the report, Dr. Vidovszky states that it did not appear that plaintiff was
severely symptomatic, and he recommended abdominal wall binders to decrease her symptoms
and increase her activities. (AT 847-48.) Because Dr. Vidovszky, like Dr. Gonzalez, assessed no
specific functional limitations, his opinion is likewise ambiguous.
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plaintiff’s last surgery, one of plaintiff’s treating physicians observed that she was “doing well

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without any problems or complications” and was discharged from his care. (AT 611.) The

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record contains no further significant medical records prior to December 31, 2008, the date last

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insured, until a later visit on February 18, 2009, when plaintiff was noted to have an encrusted

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lesion on the navel, but with the remainder of the wound having healed well and no abdominal

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tenderness. (AT 224.) On November 19, 2009, one of plaintiff’s treating physicians indicated

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that plaintiff was doing well, she had an abdominal hernia but no abdominal tenderness, and he

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recommended that she ride her bike for exercise. (AT 219-20.)
Finally, the court notes that the record contains numerous references to plaintiff’s heavy

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alcohol use (at times, at least 7 alcoholic drinks per day), including suggestions by treating

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physicians that plaintiff’s alcohol use and withdrawal significantly impacted her treatment and

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recovery from surgery. (See, e.g., AT 295, 406, 473, 484.) Thus, even if the ALJ concludes on

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remand that plaintiff was disabled at some point during the relevant period, the ALJ must also

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determine whether plaintiff’s alcohol use was a contributing factor material to disability. See

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Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir. 2007). Under Ninth Circuit precedent, “the

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claimant bears the burden of proving that drug or alcohol addiction is not a contributing factor

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material to his disability.” Id. at 748.

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Therefore, in light of the ambiguities and conflicts in the record, as well as the issue of

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materiality of plaintiff’s substance abuse, the court finds it appropriate to follow the ordinary

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remand rule and remand for further proceedings.

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More specifically, on remand, the ALJ shall obtain a consultative examination of plaintiff

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by a physician who has full access to plaintiff’s past medical records. The consultative

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examination shall be focused on ascertaining what plaintiff’s functional limitations were between

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May 14, 2007, plaintiff’s alleged disability onset date, and December 31, 2008, plaintiff’s date

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last insured, but shall also consider whether plaintiff’s impairments and functional capacity

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improved or worsened thereafter through the present.5 Additionally, the consultative examiner

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Although the consultative examination will take place in the present, the consultative examiner
shall use best efforts, utilizing the findings of the present physical examination, plaintiff’s past
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should be requested to provide an opinion regarding the impact and materiality of plaintiff’s

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alcohol abuse. The ALJ shall further provide plaintiff with a reasonable amount of time to (a)

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provide a supplemental opinion by Dr. Gonzalez, which sets forth his diagnoses, clinical findings,

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and any assessed functional limitations with greater specificity, and (b) offer supplemental

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evidence regarding the issue of plaintiff’s alcohol abuse. The ALJ is also free to develop the

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record in other ways, as necessary.

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Importantly, the court expresses no opinion regarding how the evidence should ultimately

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be weighed, and any ambiguities or inconsistencies resolved, on remand. The court also does not

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instruct the ALJ to credit any particular opinion or testimony. The ALJ may ultimately find

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plaintiff disabled from May 14, 2007 through the present; may find plaintiff eligible for some

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type of closed period of disability benefits; or may find that plaintiff was never disabled during

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the relevant period—provided that the ALJ’s determination complies with applicable legal

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standards and is supported by substantial evidence in the record as a whole.

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(2) Other Issues
In light of the court’s conclusion that the case should be remanded for further

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development of the medical opinion evidence, the court declines to address plaintiff’s remaining

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issues. On remand, the ALJ will have an opportunity to reconsider his findings concerning

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credibility and the RFC based on the developed record, if appropriate, and seek vocational expert

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testimony, if necessary. The court expresses no opinion concerning those issues at this juncture.

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V.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 16) be GRANTED IN PART.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 22) be DENIED.

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3. The action be remanded for further proceedings pursuant to sentence four of 42 U.S.C.

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§ 405(g).
4. Judgment be entered for plaintiff.
medical records, and the examiner’s clinical expertise and judgment, to render an opinion
regarding plaintiff’s functional capacity during the relevant period.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO RECOMMENDED.
Dated: July 6, 2015

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