Schuh v. Berryhill

Filing 26

REPORT AND RECOMMENDATION Granting 13 Plaintiff's Motion for Summary Judgment and Denying Defendant's 18 Cross-Motion for Summary Judgment. The parties must file any objections to this report by August 12, 2019. Signed by Magistrate Judge Andrew G. Schopler on 7/29/19.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Richard Frank SCHUH,
Plaintiff,

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Case No.: 18-cv-1398-GPC-AGS
REPORT AND RECOMMENDATION
ON SUMMARY JUDGMENT
MOTIONS

v.
Andrew M. SAUL, Commissioner of
Social Security,
Defendant.

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In this social security appeal, the Administrative Law Judge discounted the opinion

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of claimant’s treating doctor. In doing so, the ALJ should have considered various

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regulatory factors, but didn’t. The key question here is whether that error is harmless.

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BACKGROUND
In 2008, plaintiff Richard Schuh suffered a work-related back injury that eventually
required surgery. (AR 21.) Since 2014, he has been seeking disability benefits. (AR 18.)

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According to treating physician Kenneth Altschuler, M.D., Schuh cannot handle

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“sitting for [more] than 30 minutes at a time due to lumbar radiculopathy and severe lower

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back pain,” among other limitations. (AR 315.) The ALJ agreed that Schuh is severely

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impaired by “lumbar degenerative disc disease,” but rejected Dr. Altschuler’s sitting-

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restriction opinion because the doctor began treating Schuh two years after Schuh’s insured

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status ended. (AR 20, 23.) The ALJ also gave “little weight” to several examining medical
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professionals who provided some support for a sitting limitation. (See AR 22-23, 287, 300-

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11; cf. AR 310 (“Due to lightheadedness & back pain, [Schuh] needed to intermittently

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change position, including one hour of lying down, prior to driving home.”).) Instead, the

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ALJ relied on two agency consultants who reviewed the medical records and opined that

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Schuh was able to perform some work. (AR 22, 69-74, 78-83.)

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Without accounting for any sitting restriction, a vocational expert testified that

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Schuh could perform some jobs in the national economy. (AR 24-25, 59.) The ALJ,

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therefore, found that Schuh was not disabled and rejected his disability application.

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(AR 25.)
DISCUSSION

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Schuh complains that the ALJ improperly rejected the opinion of his treating

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physician, Dr. Altschuler.1 (ECF No. 13-1, at 5.)

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A.

Treating Physician Rule

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A treating physician’s opinion is given “controlling weight” so long as it “is well-

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supported by medically acceptable clinical and laboratory diagnostic techniques and is not

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inconsistent with the other substantial evidence in the claimant’s case record.” Trevizo v.

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Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (alterations omitted). When a treating doctor’s

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opinion is not controlling, the ALJ must determine the appropriate weight to give it after

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“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;

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Although Schuh also identifies chiropractor Raymond Deters III, D.C., as a
“treating physician” (ECF No. 13-1, at 6), Dr. Altschuler is the only medical professional
to opine on Schuh’s limitations who qualifies as a treating doctor or “acceptable medical
source.” See 20 C.F.R. § 404.1502(a) (defining an “[a]cceptable medical source” to include
medical doctors, but not chiropractors).
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• specialization (whether the opinion relates to the doctor’s specialty); and
• any “other factors.”

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20 C.F.R § 404.1527(c)(2)-(6). ALJs need not engage in a “full-blown written analysis of

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all the regulatory factors,” but must show “some indication” that they considered each one.

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Hoffman v. Berryhill, No. 16-CV-1976-JM-AGS, 2017 WL 3641881, at *4 (S.D. Cal.

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Aug. 24, 2017), adopted, 2017 WL 4844545 (Sept. 14, 2017). When a treating doctor’s

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opinion is contradicted by another doctor, as here, the ALJ may only discount the treating

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physician’s opinion “by providing specific and legitimate reasons that are supported by

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substantial evidence.” Trevizo, 871 F.3d at 675.

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The ALJ offered a specific and legitimate reason for rejecting the treating

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physician’s opinion: Dr. Altschuler “was unable to assess the severity of the claimant’s

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condition” during the relevant period, because he only “began to treat the claimant two

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years after the date last insured expired.” (AR 23.) See Lombardo v. Schweiker, 749 F.2d

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565, 567 (9th Cir. 1984) (holding that in rejecting an examining doctor’s opinion, the ALJ

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“reasonably evaluated the remoteness of [the doctor]’s examination,” which occurred “one

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and a half years after the expiration of [claimant’s] insured status”); Cherpes v. Berryhill,

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727 F. App’x 319, 321 (9th Cir. 2018) (“The ALJ did not err in giving little weight” to a

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doctor’s opinion that was “based on examinations that occurred more than a year after

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[claimant]’s date last insured.”).

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But the ALJ failed to undertake a sufficient regulatory-factor analysis. For example,

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the ALJ’s six-sentence treatment of Dr. Altschuler offers no inkling that the judge

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considered the consistency of the doctor’s opinion with the record as a whole. (See AR 23.)

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The ALJ also never mentions Dr. Altschuler’s specialty (“Family Medicine”), nor whether

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Dr. Altschuler’s opinion related to his specialty. (AR 23, 315.) The failure to consider these

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regulatory factors “alone constitutes reversible legal error.” See Trevizo, 871 F.3d at 676.

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B.

Harmless Error Analysis

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“[A]n ALJ’s error is harmless where it is inconsequential to the ultimate

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nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(internal quotation marks omitted). The Court must “look at the record as a whole to

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determine whether the error alters the outcome of the case.” Id.

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It is notable that in its briefing and during ten minutes of oral argument before this

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Court, the Social Security Administration articulated no grounds for harmless error. Nor

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was it able to do so after receiving an additional minute of argument specifically for that

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purpose. This Court, likewise, cannot say that the procedural error here was

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inconsequential. Dr. Altschuler recommended a strict restriction on Schuh’s sitting, which

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had some support in the record from testing, medical observations, and Schuh’s own

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testimony. (See, e.g., AR 54, 56, 278, 287, 301, 310.) The ALJ did not incorporate such a

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limitation into her questioning of the vocational expert or her residual functional capacity

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analysis. (AR 21, 59.) A sitting restriction may have rendered Schuh unable to find work

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and eligible for disability benefits. See SSR 83-10, 1983 WL 31251, at *5 (1983) (even a

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“sedentary” worker generally must sit for “approximately 6 hours of an 8-hour workday”);

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20 C.F.R. Pt. 404, Subpt. P, App. 2, at 201.12 (a “Sedentary” claimant with Schuh’s age

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and education is presumptively “Disabled”). At a minimum, the ALJ should consider the

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need for such a restriction in accordance with the mandatory regulatory factors.

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This Court’s remand decision is buttressed by the ALJ’s other factual errors. For

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example, the ALJ repeatedly misidentifies physical therapist Tony Sanchez and physical

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therapist assistant Celia Bartman as “William Buc[h]ner, M.D.,” the referring physician.

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(Compare AR 23 with AR 300, 311.) Similarly, the ALJ claims that the opinions of “other

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providers” are “not consistent with the opinions expressed by Dr. Deter[s]” (AR 22-23),

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but the record is devoid of such contrary opinions from other providers.
Because the mistakes regarding the treating doctor’s opinion mandate reversal, there

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is no need to address at length Schuh’s other arguments, which all lack merit.

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C.

Remand Type

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In deciding whether to remand for either further proceedings or an award of benefits,

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this Court’s discretion is guided by the three-step “credit-as-true” rule. See Treichler v.

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Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100-02 (9th Cir. 2014). First, the Court asks
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whether the ALJ failed to offer “legally sufficient reasons for rejecting evidence.” Id.

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at 1100. If so, the second stage of the inquiry is whether “the record has been fully

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developed,” whether there are “outstanding issues that must be resolved before a

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determination of disability can be made,” and whether “further administrative proceedings

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would be useful.” Id. at 1101 (citations omitted). Finally, if no outstanding issues remain,

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the Court may find “the relevant testimony credible as a matter of law” and award benefits,

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so long as the record as a whole “leaves not the slightest uncertainty as to the outcome of

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the proceeding.” Id. (alterations and quotation marks omitted).

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While the ALJ committed procedural error, the Court finds that further

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administrative proceedings would be useful, as there is “a need to resolve conflicts and

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ambiguities.” See Treichler, 775 F.3d at 1101. Despite the errors in the ALJ’s decision,

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Dr. Altschuler’s opinion is not a model of clarity either. (See AR 315.) The weight

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accorded to that opinion may be determinative, and the ALJ is in the best position to

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undertake the weighing.
CONCLUSION

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The Court recommends that Schuh’s summary judgment motion (ECF No. 13-1) be

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GRANTED, defendant’s cross-motion for summary judgment (ECF No. 18-1) be

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DENIED, and the case be remanded for further proceedings consistent with this opinion.

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The parties must file any objections to this report by August 12, 2019. See 28 U.S.C.

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§ 636(b)(1). A party may respond to any objection within 14 days of receiving it. Fed. R.

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Civ. P. 72(b)(2).

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Dated: July 29, 2019

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