Hoffman v. Colvin

Filing 25

REPORT AND RECOMMENDATION on 12 and 15 summary judgment motions. Objections to R&R due by 9/7/2017. A party may respond to any objection within 14 days of receiving it. Signed by Magistrate Judge Andrew G. Schopler on 8/24/2017.(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 16-cv-1976-JM-AGS

Mary M. HOFFMAN,
Plaintiff,

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REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS (ECF Nos. 12 & 15)

v.
Nancy A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.

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In this Social Security appeal, plaintiff alleges that the Administrative Law Judge

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erroneously found her mental impairments to be non-severe and improperly disregarded

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her surgeon’s opinion about her physical ailments. Although the ALJ made some errors,

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they were harmless. The decision to deny plaintiff’s disability-benefits application should,

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therefore, be affirmed.

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BACKGROUND

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At Step Two of the five-step disability evaluation process, the ALJ ruled that

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plaintiff Mary Hoffman had various severe physical impairments—joint disease, a spine

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disorder, reconstructive joint surgery, and obesity—but that her depression and anxiety

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were not severe. (AR 20.) At Step Four, the ALJ evaluated Hoffman’s residual functional

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capacity—that is, “the most [work she] can still do despite [her] limitations.” 20 C.F.R.

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§ 416.945(a)(1). In this analysis, the ALJ gave “little weight” to the opinion of treating
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orthopedic surgeon Dr. Norman Kane, who felt Hoffman was physically disabled. The

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judge instead found that she could still “perform the full range of sedentary work,” thereby

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dooming her disability application. (See AR 23, 29.)

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DISCUSSION

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A.

Mental Impairments

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(1) Step Two: Severity

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Hoffman first faults the ALJ for concluding that her depression and anxiety were not

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sufficiently severe to pass Step Two of the five-step evaluation process. This objection is

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inconsequential for a couple reasons. First, because the ALJ went on to “extensively

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discuss[]” Hoffman’s mental impairments “at Step 4 of the analysis,” any error in

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“neglecting to list [those impairments as severe] at Step 2 . . . was harmless.” Lewis v.

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Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (citation omitted); (see AR 25-28). Second, even

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at Step Two, Hoffman doesn’t challenge the ALJ’s “Paragraph B” conclusion that she had

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at most “mild” mental-health limitations and no episodes of decompensation (AR 21),

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which the regulations warn will “generally” lead to a finding that an “impairment[] is not

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severe.” 20 C.F.R. § 404.1520a(d)(1); see Zueger v. Colvin, No. C14-180-MJP-BAT, 2014

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WL 3752124, at *7 (W.D. Wash. July 30, 2014) (holding that failing to contest an adverse

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Paragraph B decision renders other Step Two errors harmless); Adams v. Astrue,

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No. 11-cv-00477-MO, 2012 WL 1664815, at *3 (D. Or. May 10, 2012) (holding that

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Step Two error “was harmless” because the claimant’s “mental impairments would still

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fail to satisfy the ‘paragraph B’ criteria”).

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(2) Step Four: Residual Functional Capacity

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Perhaps because of these Step-Two harmless-error obstacles, Hoffman re-formulates

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her argument in her reply brief as a critique of the ALJ’s Step-Four residual-function

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analysis, during which he allegedly “minimize[ed] Ms. Hoffman’s mental impairments

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without adequate justification.” (ECF No. 17, at 2.) Although this issue is arguably waived,

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the Court will address it. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (holding

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that courts may not consider “an argument raised for the first time in a reply brief”).
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ALJs need only support their residual-function determination with “substantial

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evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citation omitted).

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“Substantial evidence means more than a mere scintilla but less than a preponderance; it is

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such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008)

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(citation omitted).

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Even accepting Hoffman’s entire critique of the ALJ’s reasoning, there was still

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“substantial evidence supporting the ALJ’s decision” based on “all the other reasons given

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by the ALJ” for his “residual functional capacity,” so any error is “harmless.” See Batson

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v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). In fact, the ALJ gave

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several compelling reasons that Hoffman barely challenges: (1) Hoffman “did not receive

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specialized mental health treatment for over a year”; (2) “the State Agency program

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psychologists” both found her mental impairments were “nonsevere”; and (3) after “a

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comprehensive psychiatric evaluation,” the examining psychiatrist found she was at most

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“mildly limited” and could “perform work activities on a consistent basis.” (AR 21, 26.)

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Critically, nothing in the medical record rebuts the adverse opinions of these two consulting

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psychologists and the examining psychiatrist. And even on the first point, Hoffman merely

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notes that she received non-specialized mental health treatment during her year without a

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specialist visit. (ECF No. 12, at 15-16.) But this rebuttal side-steps the ALJ’s argument:

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that the lack of specialized psychiatric care “suggests her mental symptoms were not

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significantly limiting and that treatment with medication prescribed by her primary care

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physician was sufficient to manage her symptoms.” (AR 21.) So, even in their repackaged

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form, Hoffman’s criticisms do not warrant reversal.

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B.

Treating Physician Rule

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Next, Hoffman complains that the ALJ improperly rejected the uncontradicted

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opinion of her surgeon Dr. Kane. “If a treating physician’s opinion is ‘well-supported by

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medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent

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with the other substantial evidence in [the] case record, [it will be given] controlling
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weight.’” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citation omitted). When the

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treating physician’s opinion is uncontradicted by any other doctor,1 an ALJ may only reject

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it by stating “clear and convincing reasons that are supported by substantial evidence.”

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Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citations omitted). If

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the ALJ chooses not to give that opinion “controlling weight,” the judge must decide what

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weight to give it after “consider[ing] all of the following factors”:

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 length of the treatment relationship and the frequency of examination;
 nature and extent of the treatment relationship;
 supportability (whether the medical opinion includes “supporting
explanations” and “relevant evidence,” particularly “medical signs and
laboratory findings”);
 consistency with the record as a whole;
 specialization (whether the opinion relates to the doctor’s specialty); and
 any “other factors.”
20 C.F.R. § 404.1527(c)(2)-(6).

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(1) Failing to Explicitly Analyze All the Regulatory Factors

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In explaining his rejection of Dr. Kane’s opinion, the ALJ did not explicitly analyze

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each of these § 404.1527(c) factors. The Ninth Circuit has never expressly held that an ALJ

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should. Yet that conclusion might seem implicit in the recent case of Trevizo v. Berryhill,

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862 F.3d 987 (9th Cir. 2017), pet. for rehrg. filed, No. 15-16277 (9th Cir. Aug. 21, 2017),

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when the Court wrote:

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As the ALJ noted, Dr. Galhorta is Trevizo’s “primary treating
physician,” having treated her at least 22 times between 2008 and 2012. . . .
. . . . [T]he ALJ did not consider [§ 404.1527(c)] factors such as the
length of the treating relationship[ and] the frequency of examination. . . . This
failure alone constitutes reversible legal error.

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Although the Commissioner argues the opinion “is contradicted” (ECF No. 15-1,
at 19 n.3), the ALJ “did not find that [Dr. Kane’s] opinion was contradicted by any of the
other physicians. We therefore treat [his] opinion as uncontradicted.” See Trevizo v.
Berryhill, 862 F.3d 987, 997-98 (9th Cir. 2017).
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Id. at 997-98 (citation omitted). In other words, although it seems the ALJ “noted” a four-

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year treating relationship with 22 examinations, the Trevizo Court nonetheless found the

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ALJ did not “consider” that relationship’s length and frequency. A reasonable reading of

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this language would be: When considering the regulatory factors, it is not enough to merely

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mention the relevant facts; ALJs must explicitly set forth their analysis of those facts.

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Because that holding would be dispositive here, this Court ordered the parties to submit

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additional briefing on Trevizo.

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Hoffman endorses this very interpretation. She argues that the Ninth Circuit has long

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required express consideration of each regulatory factor and that Trevizo only “breaks new

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ground . . . in prescribing the appropriate remedy where an ALJ breaches that duty.” (ECF

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No. 24, at 2-3.) But Hoffman cites only three cases in her briefing, and none of them hold

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that an ALJ must explicitly analyze each factor. See Ghanim v. Colvin, 763 F.3d 1154,

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1161 (9th Cir. 2014) (“The ALJ is required to consider the factors set out in 20 C.F.R.

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§ 404.1527(c)(2)-(6). . . .”) (citations omitted and emphasis added); Orn, 495 F.3d at 631

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(“[T]he Administration considers specified factors. . . .”) (emphasis added); Holohan v.

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Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (“[T]he treating physician’s opinion . . .

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must be weighted using all the factors provided in 20 [C.F.R.] § 404.1527.”) (alterations

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and citations omitted; emphasis added).

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The Commissioner, on the other hand, contends that many Ninth Circuit cases have

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affirmed treating-physician decisions that lacked such an explicit factor-by-factor analysis,

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and Trevizo cannot overrule such longstanding precedent. It is true that, absent intervening

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Supreme Court authority, one three-judge Ninth Circuit panel “cannot reconsider or

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overrule the decision of a prior panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir.

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1992) (citations omitted). And “[i]n determining whether it is bound by an earlier

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decision,” courts must consider not merely “the letter of particular precedents,” but also

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the “reason and spirit of cases,” including “the facts giving rise to the dispute.” Hart v.

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Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) (citation omitted). With these guiding

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principles in mind, it seems the Ninth Circuit has often considered similar “facts giving
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rise to the dispute” and affirmed ALJs who did not reduce their evaluation of each

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regulatory factor to writing. See, e.g., Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,

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1221, 1227-28 (9th Cir. 2009) (affirming ALJ’s decision to give treating physician’s

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opinion “little weight” based on four reasons that did not address certain regulatory

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factors); Magallanes v. Bowen, 881 F.2d 747, 751-54 (9th Cir. 1989) (affirming ALJ’s

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rejection of treating physician’s opinion “based on the claimant’s own testimony, and the

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opinions and evidence from” four other doctors, even though the ALJ’s discussion did not

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cover all the regulatory factors). Yet it is not clear that this precise “dispute” has ever been

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squarely presented to the Ninth Circuit, and this Court is reluctant to infer holdings about

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issues that were not raised on appeal.

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The Commissioner also argues that reading Trevizo to require “explicitly

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articulat[ed] findings” about each factor would conflict with Social Security regulations

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and rulings, as well as common practice. (ECF No. 23, at 2.) The regulations and rulings,

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in fact, contain no express-analysis-of-each-and-every-factor requirement. See 20 C.F.R.

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§ 404.1527(c) (“[W]e consider all of the following factors. . . .”) (emphasis added); id. at

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§ 404.1527(c)(2) (“[W]e apply the factors” and “will always give good reasons . . . for the

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weight we give your treating source’s medical opinion.”) (emphasis added); S.S.R. 96-2p,

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available at 61 Fed. Reg. 34,490, 34,492 (July 2, 1996) (explaining that the ALJ’s decision

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“must be sufficiently specific to make clear to any subsequent reviewers the weight the

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adjudicator gave to the treating source’s medical opinion and the reasons for that weight”).

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And the Commissioner points out that if the mandate to “consider” each factor really meant

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“expressly articulate the reasoning for,” then the regulations would not need to also insist

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that ALJs set forth specific “reasons.” See Bilski v. Kappos, 561 U.S. 593, 607-08 (2010)

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(holding that courts should avoid “interpreting any statutory provision in a manner that

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would render another provision superfluous”) (citation omitted).

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If the Ninth Circuit intended to effect such a sea change in treating-physician practice

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and procedure—requiring express factor-by-factor reasoning—one would expect the Court

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to expressly say so. While there is no law against appellate irony, it is hard to fathom that
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the Trevizo Court chose an implicit holding to announce a new rule of explicit findings.

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This is especially true here since such a rule would contradict a straightforward reading of

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the relevant regulations. Cf. Clark v. Martinez, 543 U.S. 371, 380-81 (2005) (“[W]hen

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deciding which of two plausible statutory constructions to adopt, a court must consider the

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necessary consequences of its choice. If one of them would raise a multitude of

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constitutional problems, the other should prevail. . . .”).

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Happily, Trevizo can be harmonized with the regulations, prior case law, and

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established practice. We must simply adopt a more restrictive—and less intuitive—reading

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of this sentence: “As the ALJ noted, Dr. Galhorta is Trevizo’s ‘primary treating physician,’

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having treated her at least 22 times between 2008 and 2012.” 862 F.3d at 997 (emphasis

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added). This Court concludes that the phrase “As the ALJ noted” applies only to the main

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clause (italicized) and not to the remainder of the sentence. In other words, in Trevizo the

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ALJ failed to note the treating relationship’s length or frequency, and also failed to

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demonstrate that those factors were otherwise considered, which was error. Interpreted

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thus, Trevizo does not demand a full-blown written analysis of all the regulatory factors; it

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merely requires some indication that the ALJ considered them.

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Thus, the ALJ’s failure to spell out his regulatory-factor rationale was not fatal here,

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as the record sufficiently shows he considered the necessary elements. (See, e.g., AR 23-

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specialty and years-long treatment relationship with Hoffman).)

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(2) Reasons for Rejecting Dr. Kane’s Opinion

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Turning to the merits, Hoffman argues the ALJ rejected Dr. Kane’s opinion without

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clear and convincing reasons. The ALJ’s four reasons are examined below.

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(a) Subjective Symptom Reporting

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First, the ALJ gave Dr. Kane’s opinion “little weight” because he “relied quite

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heavily on [Hoffman’s] subjective report of symptoms and limitations,” and “seemed

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uncritically to accept as true most, if not all,” of what Hoffman said, despite the fact that

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“there are good reasons for questioning the reliability of the claimant’s subjective
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complaints.” (AR 26.) “If a treating provider’s opinions are based to a large extent on an

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applicant’s self-reports and not on clinical evidence, and the ALJ finds the applicant not

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credible, the ALJ may discount the treating provider’s opinion.” Ghanim, 763 F.3d at 1162

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(citation and quotation marks omitted).

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Hoffman does not challenge the ALJ’s finding that she was not credible; instead she

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focuses on whether Dr. Kane’s opinion was based primarily on her self-reports or on

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clinical evidence. She points out that Dr. Kane “personally performed the most recent two

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surgeries on her right knee,” which were prompted by the identification of “significant

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abnormalities on imaging studies, which were themselves corroborated by clinical

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findings.” (ECF No. 12, at 15.) It is undeniable that Dr. Kane had access to many objective

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tests from which to draw conclusions, especially about Hoffman’s knees and hips. (See,

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e.g., AR 396-98 (noting various clinical dysfunctions); AR 400-01, 403 (gait observed);

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AR 406-07 (X-ray review); AR 409 (MRI review); AR 410 (physical exam and X-rays).)

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The problem is that while Dr. Kane may have had access to such evidence, he does not

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refer to any of it in his three written opinions. (See AR 374-75, 413-14, 695-702.) And

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some of the limitations Dr. Kane identified do not obviously correspond to any objective

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testing. (See AR 414 (noting restrictions on reaching, handling, fingering, and feeling); AR

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700-01 (concluding that Hoffman was likely to miss work “[m]ore than three times a

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month” and could tolerate only “low stress” work).)

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Even if another judge might reach a different outcome on this same record, it was

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rational for the ALJ to find that Dr. Kane relied too heavily on subjective complaints. See

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (“Where the evidence is susceptible

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to more than one rational interpretation, one of which supports the ALJ’s decision, the

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ALJ’s conclusion must be upheld.” (citation omitted)). This reason was clear and

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convincing, and supported by substantial evidence.

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(b) Unexplained Opinion Change—Cane Use

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The ALJ also discredited Dr. Kane because his “opinion regarding claimant’s ability

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to ambulate changed significantly within two weeks.” (AR 26.) On the April 18, 2013
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medical source statement, Dr. Kane answered the question, “Does the patient use an

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assistive device?”, by checking “No.” (AR 374-75.) But twelve days later—on the April 30,

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2013 statement—he marked “Yes” to the same question, writing that it was “medically

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necessary” for Hoffman to use a “Cane, when ambulating.” (AR 413-14.) The ALJ pointed

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out that Dr. Kane “fail[ed] to provide an explanation of the evidence relied on in forming

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his [new] opinion,” and that opinions lacking sufficient explanation or supporting evidence

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are entitled to less weight. (AR 26); see Bayliss, 427 F.3d at 1216 (holding that an

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unexplained “discrepancy” in a treating physician’s “recorded observations and opinions

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regarding [a claimant’s] capabilities” is a “clear and convincing reason for not relying on

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the doctor’s opinion”); Thomas, 278 F.3d at 957 (holding that when “[t]he record

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contain[ed] no information to support” the treating doctor’s change of opinion, the ALJ

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had a specific and legitimate reason for rejecting it).

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Hoffman argues that “Dr. Kane did explain Ms. Hoffman’s temporary use of a cane:

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She obtained it, without Dr. Kane having prescribed it, because she found it helpful for her

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pain and stiffness, symptoms that flowed from her objectively corroborated right knee

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osteoarthritis.” (ECF No. 12, at 19.) But the ALJ found that this conclusion was “based

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almost entirely on claimant’s subjective claim[s],” not objective medical evidence.

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(AR 26.) Of course, an alternative explanation for the change of opinion between April 18

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and 30 is that Dr. Kane learned new information at an intervening appointment. (AR 414

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(“Date last seen: 4/29/13”).) At that appointment, in fact, Dr. Kane recorded a “10º of

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valgus to her right knee,” which was an uptick from the “7º valgus deformity” last

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observed. (AR 396, 398.) Similarly, he noted that her knee’s “range of motion is about 3

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to 5º to 115º,” a slight drop from her prior range of “0 to about 120º.” (AR 396, 398.) But

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those same records also reflect increasing subjective complaints. (Compare AR 398 (On

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April 8, 2013: “Hoffman’s right knee is not better. . . . She wants some pain pills. . . .”)

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with AR 396 (On April 29, 2013: “She is very unhappy with the current state of her right

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knee.”).) At any rate, in his medical source statements, Dr. Kane did not mention any of

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this evidence, let alone explain whether such slight variations were medically significant.
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Without such clarification, the ALJ rationally interpreted Dr. Kane’s change of opinion as

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unexplained or based primarily on subjective complaints, and properly discounted it.

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(c) Poorly Supported Opinion / Checkbox Forms

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Another reason the ALJ disregarded Dr. Kane’s opinions was because of their very

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format: “[c]heck box forms that do not set forth explanations.” (AR 26.) The Ninth Circuit

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has not spoken with complete clarity on the subject of checkbox or fill-in-the-blank forms.

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Compare Trevizo, 862 F.3d at 999 n.4 (“[T]he ALJ was not entitled to reject the responses

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of a treating physician” simply because “those responses were provided on a ‘check-the-

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box’ form, were not accompanied by comments, and did not indicate to the ALJ the basis

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for the physician’s answers.” (citation omitted)); with Molina v. Astrue, 674 F.3d 1104,

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1111 (9th Cir. 2012) (“We have held that the ALJ may ‘permissibly reject check-off reports

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that do not contain any explanation of the bases of their conclusions.’” (alterations and

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citations omitted)).

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The one thing that can safely be gleaned from this case law is that when a doctor

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provides little explanation for an opinion, ALJs may afford it less weight, even if they can’t

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reject it altogether. On these forms, Dr. Kane provided no explanation for the limitations

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he checked off, other than conclusory diagnoses—no laboratory findings, no imaging

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studies, no objective medical evidence. (See AR 374-75, 413-14, 695-702.) Thus, the ALJ

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properly discounted his unexplained checkbox forms.

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(d) Opinion Contradicted by Hoffman’s Own Statements

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Finally, the ALJ found that “Dr. Kane’s opinions are inconsistent with [Hoffman’s]

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own allegations that she was able to sit in a car for two hours and walk on uneven ground

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without any increase in pain.” (AR 26; see AR 501.) Hoffman protests that the ALJ simply

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“cherry-pick[ed]” a single “treatment note indicative of some temporary improvement,”

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which was not “reflective of the entire trajectory of her treatment course.” (ECF No. 12,

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at 21; see AR 501.) The Commissioner does not address this argument, and the Court

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agrees with Hoffman. See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)

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(cautioning against “selective” reading of “treatment notes” and noting that medical
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improvements “must be read in context of the overall diagnostic picture”). For instance,

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the ALJ never mentions that days after that fateful car trip Hoffman was “not feeling well,”

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and within a week of it her knee was already “achy.” (AR 26, 499-500.) Ten months later,

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her condition deteriorated to the point that she was reportedly taking “1-2 oxycodone per

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day for the pain,” without complete relief. (AR 543.) In light of her full treatment course,

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the ALJ erred in finding that Dr. Kane’s opinions clashed with Hoffman’s self-reported

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capabilities.

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C.

Harmless Error Analysis

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Because the ALJ relied on one invalid reason—and three valid ones—for doubting

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Dr. Kane’s opinion, this Court must review for harmless error. See Marsh v. Colvin, 792

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F.3d 1170, 1173 (9th Cir. 2015) (holding that “harmless error analysis applies in the social

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security context,” including in the area of a “treating source’s medical opinion”); see also

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Baily v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016) (“Any error in the ALJ’s additional

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reasons for rejecting [the treating physician’s] opinions was harmless.”). The three

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remaining reasons here were clear and convincing, and supported by substantial evidence

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in the record. Thus, any error was harmless. Cf. Carmickle, 533 F.3d at 1162-63 (holding

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two invalid reasons for an adverse credibility finding were harmless error in light of the

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remaining reasoning).

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CONCLUSION

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The Court recommends that plaintiff’s summary judgment motion (ECF No. 12) be

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DENIED and defendant’s cross-motion for summary judgment (ECF No. 15) be

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GRANTED. The parties must file any objections to this report by September 7, 2017. See

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Fed. R. Civ. P. 72(b)(2). A party may respond to any objection within 14 days of receiving

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it. Id.

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Dated: August 24, 2017

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