Lewis v. Astrue

Filing 22

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 21 re 10 Motion for Summary Judgment filed by Ricky D. Lewis is Denied in Part and Granted in Part; 17 Motion for Summary Judgment filed by Michael J. Astrue is Denied in Part and Granted in Part. Signed by Judge Richard F. Cebull on 4/2/2010. (EMA)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B U T T E DIVISION R I C K Y D. LEWIS, ) ) P l a i n t if f , ) ) vs. ) ) ) M I C H A E L J. ASTRUE, ) C om m is s ione r of Social Security, ) ) D e f e nd a n t . ) ______________________________ ) C V -0 9 -3 6 -B U -R F C

O R D E R ADOPTING FINDINGS A N D RECOMMENDATIONS OF U .S . MAGISTRATE JUDGE

O n February 1, 2010, United States Magistrate Judge Carolyn Ostby entered Find ings and Recommendation. Magistrate Judge Ostby recommends this Court re ma nd this matter. Upon service of a magistrate judge's findings and recommendation, a party ha s 14 days to file written objections. 28 U.S.C. § 636(b)(1). In this matter, no p a rty filed objections to the February 1, 2010 Findings and Recommendation. Failure to object to a magistrate judge's findings and recommendation waives all o b je c tio ns to the findings of fact. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1 9 9 9 ). However, failure to object does not relieve this Court of its burden to review

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de novo the magistrate judge's conclusions of law. Barilla v. Ervin, 886 F.2d 1514, 1 5 1 8 (9th Cir. 1989). A fte r an extensive review of the record and applicable law, this Court finds M a gis tra te Judge Ostby's Findings and Recommendation are well grounded in law a nd fact and adopts them in their entirety. A claimant is disabled for purposes of the Social Security Act if: (1) the c la ima nt has a medically determinable physical or mental impairment which can be e xp e c te d to result in death or which has lasted or can be expected to last for a c o ntinuo us period of not less than twelve months, and (2) the impairment or imp a irme nts are of such severity that, considering the claimant's age, education and w o rk experience, the claimant is not only unable to perform previous work, but the c la ima nt cannot "engage in any other kind of substantial gainful work which exists in the national economy." Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 9 7 4 (9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)). In determining whether a claimant is disabled, the Commissioner follows a five -s te p sequential evaluation process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th C ir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v). 1. The claimant must first show that he or she is not currently e nga ge d in substantial gainful activity. Tackett, 180 F.3d at 1098.

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2. If not so engaged, the claimant must next show that he or she has a s e ve re impairment. Id. 3 . The claimant is conclusively presumed disabled if his or her impairments meet or medically equal one contained in the Listing of Imp a irme nts described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (he re a fte r "Listing of Impairments"). Id. If the claimant's impairments d o not meet or medically equal one listed in the regulations, the a na lys is proceeds to the fourth step. 4 . If the claimant is still able to perform his or her past relevant work, he or she is not disabled and the analysis ends here. Id. "If the c la ima nt cannot do any work he or she did in the past, then the c la ima nt' s case cannot be resolved at [this step] and the evaluation p ro c e e d s to the fifth and final step." Id. at 1098-1099. 5 . If the claimant is unable to perform his or her past relevant w o rk due to a "severe impairment (or because [he or she does] not ha ve any past relevant work)" the court will determine if the claimant is able to make an adjustment to perform other work, in light of his or he r residual functional capacity, age, education, and work experience. 2 0 C.F.R. § 404.1520(g). If an adjustment to other work is possible the n the claimant is not disabled. Tackett, 180 F.3d at 1099. T he claimant bears the burden of proof at steps one through four, but at the fifth step the Commissioner bears the burden of establishing that there is other work in significant numbers in the national economy that the claimant can perform. Id. The Commissioner can meet this burden via the testimony of a vocational expert or re fe re nc e to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2 . Id. If the Commissioner is unable to meet this burden then the claimant is d is a b le d and entitled to benefits. Id.

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Plaintiff argues that the ALJ erred in finding that he did not meet or medically e q ua l the requirements of § 12.04 and § 12.08 of the Listing of Impairments, more s p e c ific a lly, the "B" criteria of those sections. In support of his findings that P la intiff does not meet or medically equal the requirements of § 12.04 and § 12.08, the ALJ only discussed the opinions and testimony of Dr. Donna Veraldi, who was a non-examining, medical expert. The ALJ does not mention the opinion of Dr. La ne s , who is Plaintiff's treating psychiatrist. Dr. Lanes expressed an opinion that Lewis suffers marked limitations with re s p e c t to his ability to understand and remember short, simple instructions, his a b ility to carry out short, simple instructions, his ability to understand and remember d e ta ile d instructions, his ability to carry out detailed instructions, his ability to inte ra c t appropriately with the public, his ability to interact appropriately with s up e rvis o rs , his ability to interact appropriately with co-workers, his ability to re s p o nd appropriately to work pressures in a usual work setting, and his ability to re s p o nd appropriately to changes in routine work settings. See Administrative R e c o r d (A.R.) at 625-628, 24-25.

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To reject the contradicted opinion of a treating medical source, the ALJ must p ro vid e specific and legitimate reasons supported by substantial evidence for doing s o . Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). The opinion of non-examining physicians, like Dr. Veraldi, cannot by itself c o ns titute substantial evidence justifying the rejection of either an examining or tre a ting physician's opinion. Id. at 1202. But, "[t]he opinions of non-treating or no n-e xa mining physicians may serve as substantial evidence when the opinions are c o ns is te nt with independent clinical findings or other evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). It is apparent that the ALJ failed to address Plaintiff's evidence at step three o r explain why he rejected the opinions of Dr. Lanes, a treating acceptable medical s o urc e . To reject Dr. Lanes' opinions, the ALJ needed to provide specific and le gitima te reasons supported by substantial evidence, which he did not. P la intiff also raises issues regarding the ALJ's treatment of other opinion e vid e nc e . On remand, the ALJ should reconsider this opinion evidence in light of the following discussion regarding the appropriate standards set forth in the re gula tio ns . O p inio n evidence cannot be rejected solely because it is not from an a c c e p ta b le medical source. The same factors provided in 20 C.F.R. § 416.927(d)

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for evaluating medical opinions from acceptable medical sources also apply when e va lua ting opinion evidence from other sources because "[t]hese factors represent b a s ic principles that apply to the consideration of all opinions." Soc. Sec. Ruling 0 6 -0 3 p at *4. These factors include: the nature of the examining relationship, the na ture of the treatment relationship, supportability, consistency, specialization of the s o urc e , and any other factors which tend to support or contradict the opinion. 20 C .F.R . § 416.927(d); 20 C.F.R. § 404.1527(d). Opinions from "medical sources, w ho are not technically deemed `acceptable medical sources' under [the] rules, are imp o rta nt and should be evaluated on key issues such as impairment severity and func tio na l effects, along with the other relevant evidence in the file." Soc. Sec. R uling 06-03p at *3. The ruling continues: The fact that a medical opinion is from an "acceptable medical source" is a factor that may justify giving that opinion greater weight than an o p inio n from a medical source who is not an "acceptable medical s o urc e " because. . . "acceptable medical sources" are the most q ua lifie d health care professionals. However, depending on the p a rtic ula r facts in a case, and after applying the factors for weighing o p inio n evidence, an opinion from a medical source who is not an ` a c c e p ta b le medical source' may outweigh the opinion of an " a c c e p ta b le medical source," including the medical opinion of a tre a ting source. Id . at *5 (internal quotation marks and citations omitted). T he ALJ here emphasized that Ms. Keener and Ms. Vos-Fernau are not a c c e p ta b le medical sources. A.R. at 33-34. Ms. Keener's and Ms. Vos-Fernau's
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opinions still must be considered with respect to assessing the severity of Plaintiff's imp a irme nts and the effect his impairments have on his functional abilities. Soc. S e c . Ruling 06-03p at *3. T he ALJ also rejected the opinions of Kelley Williams, Plaintiff's girlfriend, in part because they were not based on "objective medical evidence." A.R. at 34. The ALJ must consider "all relevant evidence." Soc. Sec. Ruling 06-03p at *6. The re gula tio ns specifically contemplate the evaluation of evidence from non-medical s o urc e s such as spouses, parents, and other care givers, siblings, other relatives, frie nd s , and neighbors, to "show the severity of [the claimant's] impairment(s) and ho w [the impairment] affects the [claimant's] ability to work. 20 C.F.R. § 4 1 6 .9 1 3 (d ). Ms. Williams' opinions reflect her observations of Plaintiff and how he func tio ns at home. A.R. at 319-327. That her opinions are not based on objective me d ic a l evidence is expected. The regulations contemplate that her opinions would no t be based on such evidence. See 20 C.F.R. § 416.913(d). Soc. Sec. Ruling 060 3 p at *6 states: In considering evidence from `non-medical sources' who have not s e e n the [claimant] in a professional capacity in connection with the ir impairments, such as spouses, parents, friends, and ne ighb o rs , it would be appropriate to consider such factors as the na ture and extent of the relationship, whether the evidence is c o ns is te nt with other evidence, and any other factors that tend to s up p o rt or refute the evidence.

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On remand, the ALJ should reconsider the evidence offered by non-medical sources in light of these regulations. B a s e d on the foregoing, the Court finds that there is not substantial evidence in the record to support the ALJ's decision. The Court further finds that the ALJ's d e c is io n is based on legal error. A c c o rd ingly, IT IS HEREBY ORDERED that the Commissioner's decision d e nying SSI is REVERSED and the case is REMANDED for further a d minis tra tive proceedings in accordance with this order and the Findings and R e c o mme nd a tio ns of Magistrate Judge Carolyn Ostby. The Commissioner's motion fo r summary judgment (Court Doc. 17) is DENIED in part and GRANTED in part, a nd Plaintiff's motion for summary judgment (Court Doc. 10) is DENIED in part a nd GRANTED in part. The Commissioner's motion is denied to the extent that it requests the ALJ's d e c is io n be affirmed, but is granted to the extent that it requests the case be re ma nd e d for further administrative proceedings. Plaintiff's motion is granted to the e xte nt that it requests the ALJ's decision be reversed, but denied to the extent that it re q ue s ts the Court to award benefits. T he Clerk of Court shall notify the parties of the entry of this Order and close this case.

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DATED the 2nd day of April, 2010.

_ /s / Richard F. Cebull______________ R IC H A R D F. CEBULL U N IT E D STATES DISTRICT JUDGE

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