Juarez v. Commissioner Social Security Administration

Filing 30

OPINION and ORDER - The Commissioner's decision is not supported by substantial evidence in the record, and is therefore REVERSED and REMANDED for further proceedings. IT IS SO ORDERED. DATED this 9th day of January, 2017, by United States Magistrate Judge John V. Acosta. (peg)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ORIAN LISA JUAREZ,

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Plaintiff,

v.

Case No. 1:15-cv-01820-AC
OPINION AND ORDER

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CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Defendant.

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ACOSTA, Magistrate Judge:

Orian Juarez ("plaintiff") seeks judicial review of the final decision of the Commissioner
of the Social Security Administration ("Commissioner") denying her application for Disability
Insurance Benefits ("DIB").

Because the Commissioner's decision is not supported by

substantial evidence, her decision is REVERSED and REMANDED for further proceedings.
Procedural Background

Plaintiff filed her application for DIB on April 26, 2012, alleging disability as of
February 16, 2010. (Tr. 212.) The Commissioner denied her application initially and upon
reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). (Tr.

127-28.) An administrative hearing was held on June 24, 2014. (Tr. 40-75.) After the hearing,
the ALJ issued an unfavorable decision dated August 8, 2014. (Tr. 20-34.) The Appeals Council
denied plaintiffs subsequent request for review on July 27, 2015, making the ALJ's decision
final.

(Tr. 1-6.) Plaintiff filed this appeal, arguing that the ALJ erred by: (1) improperly

rejecting the medical opinion evidence, and (2) improperly rejecting her subjective symptom
testimony.
Factual Background

Born in April, 1953, plaintiff was 61 years old at the time of the administrative hearing.
(Tr. 212.) She completed two years of college and worked as a registered nurse for over 30
years. (Tr. 47, 217.) Plaintiff alleges disability due to musculoskeletal pain, fibromyalgia, high
blood pressure, diabetes, depression, sleep apnea, high triglycerides, and breast cancer. (Tr.
216.)
Standard of Review

The comi must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NL.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and

detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th
Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may
not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) (citation omitted).
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The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the claimant must

demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l )(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a).
First, the Commissioner determines whether a claimant is engaged in "substantial gainful
activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b).
At step two, the Commissioner determines whether the claimant has a "medically severe
impairment or combination of impairments."

Yuckert, 482 U.S. at 140-41; 20 C.F.R. §

404.1520(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairment meets or equals "one
of a number of listed impairments that the Secretary acknowledges are so severe as to preclude
substantial gainful activity." Id.; 20 C.F.R. § 404.1520(d). If so, the claimant is conclusively
presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant can still perform "past
relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. § 404.1520(e). If the claimant can work,
she is not disabled; if she cannot perform past relevant work, the burden shifts to the
Commissioner. Yuckert, 482 U.S. at 141. At step five, the Commissioner must establish that the
claimant can perform other work.

Id. at 142; 20 C.F.R. § 404.1520(e) & (f).

If the

Commissioner meets this burden and proves that the claimant is able to perfmm other work
which exists in the national economy, she is not disabled. 20 C.F.R. § 404.1566.
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The ALJ's Findings

The ALJ performed the sequential analysis. At step one, he found that plaintiff had not
engaged in substantial gainful activity since her alleged onset date. (Tr. 26.) At step two, the
ALJ concluded that plaintiff had the severe impairments of degenerative disc disease of the
cervical spine with spondylosis; sacroiliac joint dysfunction; and obesity. Id At step three, the
ALJ determined that plaintiff did not have an impairment or combination of impairments that
met or medically equaled a listed impairment. (Tr. 28.)
The ALJ next assessed plaintiffs residual functional capacity ("RFC") and found that
plaintiff has the RFC to perform light work with the following limitations: she can stand and
walk for up to 4 hours and sit for up to 6 hours in an 8-hour workday; she can frequently climb
ramps or stairs and rotate her neck; she can occasionally stoop, kneel, crouch and crawl, and
perform overhead reaching with no above-shoulder work; and she should avoid all climbing of
ladders, ropes, or scaffolds, as well as concentrated exposure to excessive vibration and moderate
exposure to unprotected heights and hazardous machinery. (Tr. 29.)
At step four, the ALJ found that plaintiff was able to perform her past relevant work as a
nurse. (Tr. 32.) The ALJ therefore concluded plaintiff was not disabled. (Tr. 33-34.)
Discussion

L

Medical Opinion Evidence
Plaintiff first argues that the ALJ erred by rejecting the medical opinions of 01thopedic

surgeon Andy Kranenburg, M.D., and treating physician Robe1t Blanche, M.D. In general, the
opinion of a treating physician is given more weight than the opinion of an examining physician,
and the opinion of an examining physician is given more weight than the opinion of a nonexamining physician. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014). "If a treating
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physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [theJ case record, [it will
be given] controlling weight." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); 20 C.F.R. §
404.1527(c). To reject the uncontroverted opinion ofa treating or examining physician, the ALJ
must present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005).
If a treating or examining physician's opinion is contradicted by another physician's

opinion, it may be rejected by specific and legitimate reasons. Tonapetyan v. Halter, 242 F.3d
1144, 1148 (9th Cir. 200 I). When evaluating conflicting opinions, an ALJ is not required to
accept an opinion that is not supported by clinical findings, or is brief or conclnsory. Id at I 149.
A. Orthopedic Surgeon Andy Kranenburg, MD.

Dr. Kranenburg examined plaintiff on April 13, 2011. (Tr. 490.) He noted increased
pain in her left side and found guarded forward flexion extension and "extreme tenderness to
palpation over the left sacral sulcus, along with positive hip extension and markedly strong
positive Fabere's test, on the left side." (Tr. 491.) Dr. Kranenburg diagnosed left sacroiliac joint
mihritis and dysfunction; mild multi-level spondylosis; obesity; and long-acting narcotic
tolerance. (Tr. 492.) He concluded that plaintiff was disabled by her level of pain. Id
The ALJ did not discuss Dr. K.ranenburg's opinion in his written decision, and therefore
rejected it. See Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996) (an ALJ effectively rejects
an opinion when he ignores it). It is error to ignore an examining physician's medical opinion
without providing reasons for doing so.

Id at 1286.

The ALJ's failure to discuss Dr.

K:ranenburg's medical opinion and provide legally sufficient reasons for rejecting it was legal
error.
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B. Treating Physician Robert Blanche, MD.

Over the course of treatment, Dr. Blanche authored numerous oprmons regarding
plaintiffs ability to work. On March 1, 2010, he opined that plaintiff"is in such severe pain that
she cannot work." (Tr. 443.) On March 23, 2010, Dr. Blanche wrote that plaintiffs condition
had improved, but "she is disabled completely from her neck, hunbar spine, and myofascial pain
syndrome." (Tr. 442.) He noted that plaintiffs medications were so strong as to preclude
working as a nurse.
The ALJ gave Dr. Blanche's opinion little weight. (Tr. 31.) As an initial matter, Dr.
Blanche's opinion that plaintiff could not perform her past work as a nurse was contradicted by
the opinions of state agency medical consultant Leslie Arnold, M.D., who reviewed the medical
evidence and concluded that plaintiff was not disabled.

(Tr. 89.)

The ALJ was therefore

required to provide specific, legitimate reasons for rejecting Dr. Blanche's controveried opinion.
Tonapetyan, 242 FJd at 1148.

The ALJ determined that Dr. Blanche's opinion was both internally inconsistent and
inconsistent with the medical record as a whole. (Tr. 31.) It is the ALJ's duty to resolve
conflicts in the record. Morgan v. Comm 'r, 169 FJd 595, 603 (9th Cir. 1999). Here, the ALJ
found that Dr. Blanche's conclusions were inconsistent with treatment notes from physical
exams, which showed "largely unremarkable" examination results. (Tr. 323, 331, 416.) Dr.
Blanche's own notes also reporied plaintiffs medical regimen was stable; her pain was wellcontrolled; and that she was doing "very well." (Tr. 434, 441.) Dr. Blanche also noted that
plaintiff was mentally clear enough to drive, despite opining that her medications caused severe
side effects. (Tr. 431.) On this record, it was reasonable for the ALJ to resolve the apparent
conflict within Dr. Blanche's opinion as well as the conflict between Dr. Blanche's opinion and
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the medical records as a whole by assigning less weight to Dr. Blanche's opinion. Morgan, 169
F.3d at 603.
The ALJ also found that plaintiffs activities of daily living contradicted Dr. Blanche's
opinion that plaintiff was severely limited in several functional areas. (Tr. 31.) A claimant's
activities can provide a legitimate basis for rejecting a physician's opinion. Magallanes v.
Bowen, 881 F.2d 747, 754 (9th Cir. 1989). Here, plaintiff was able to walk 1.5 miles each day,

shop for groceries, prepare simple meals, read, watch television, attend a craft market for several
hours per week, bake, and plant flowers. (Tr. 234-41.) While the record of plaintiffs daily
activities is susceptible to multiple interpretations, it was reasonable for the ALJ to conclude
based on plaintiffs activities that Dr. Blanche's opinion was entitled to less weight. Morgan,
169 F.3d at 603. In sum, the ALJ's evaluation of Dr. Blanche's opinion was supported by
substantial evidence.
)1.

Plaintiffs Testimony
Plaintiff next argues that the ALJ erred by rejecting her subjective symptom testimony.

The Ninth Circuit has developed a two-step process for evaluating the credibility of a claimant's
own testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ "must determine whether the claimant

has presented objective medical evidence of an underlying impairment which could reasonably
be expected to produce the pain or other symptoms alleged." Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007). Second, "ifthe claimant meets the first test, and there is no evidence
of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for doing so."' Id., quoting Smolen, 80
F.3d at 1281. The ALJ's overall credibility determination may be upheld even if not all of the
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ALJ's reasons for rejecting the claimant's testimony are upheld. Batson v. Comm 'r, 359 F.3d
1190, 1197 (9th Cir. 2004).
At the hearing, plaintiff testified that she was unable to work primarily due to pain,
exhaustion, and medication side-effects.

(Tr. 55.)

The ALJ rejected plaintiffs testimony

regarding her symptoms and limitations and provided clear and convincing reasons for doing so.
(Tr. 29.) First, the ALJ noted that plaintiffs daily activities were inconsistent with the degree of
severity of her alleged limitations. (Tr. 30.) A claimant's daily activities can form the basis of
an adverse credibility finding when they contradict a claimant's testimony. Molina v. As/rue,
674 F.3d 1104, 1113 (9th Cir. 2012). Here, for example, the ALJ found that plaintiff was more
active than she alleged in her testimony, because she was able to shop for groceries, prepare
simple meals, read, watch television, attend a craft market for several hours per week, bake, and
plant flowers. (Tr. 234-41.) The court finds that these activities alone do not contradict any
specific limitations alleged by plaintiff in her testimony. On this record, plaintiffs activities do
not provide a clear and convincing reason to reject her testimony. Molina, 674 F.3d at 1113.
Second, the ALJ found that plaintiffs alleged symptoms improved with treatment.
Plaintiffs pain management specialist Shawn Sills, M.D., noted repmis of significant pain relief
from her medications and other treatments. (Tr. 329-87.) On September 23, 2011, for example,
plaintiff declined surgery and repmied "exceptional" pain relief. (Tr. 365.) Plaintiff repmied
that she was able to perform activities of daily living without distress, functioned normally, and
had complete neck and back pain relief with injections. (Tr. 332, 334, 349.) As discussed
above, however, the ALJ failed to consider the opinion of Dr. Kranenburg and therefore did not
have the opportunity to weigh plaintiffs allegations against the complete medical record.

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Third, the ALJ found that clinical findings did not support the level of limitation alleged
in plaintiffs testimony.

(Tr. 30.) Minimal objective findings can undermine a claimant's

credibility when other legally sufficient reasons for rejecting her testimony are present. Burch,
400 F.3d at 680-81.

Here, plaintiff alleged significant limitations from her sacroiliac joint

dysfunction. However, the medical records showed that on examination, plaintiff was able to
move about easily and had full strength in her lower extremities bilaterally. (Tr. 320-24.) The
lack of objective findings in the record supporting plaintiffs allegations provides some weight to
the ALJ's rejection of her testimony, but does not constitute a clear and convincing reason for
rejecting her testimony. Burch, 400 F.3d at 680-81. In sum, the ALJ failed to provide legally
sufficient reasons for rejecting plaintiffs testimony.
Remand

The decision whether to remand for fmiher proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility offmiher proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to support the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135,
1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir 2004)). The
court may not award benefits punitively and must conduct a "credit-as-true" analysis to
determine if a claimant is disabled under the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (1) the ALJ has failed to provide legally sufficient reasons for
rejecting such evidence; (2) there are no outstanding issues that must be resolved before a
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determination of disability can be made; and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited. Id. The "credit-as-true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.
Connett v. Barnhart, 340 F.3d 871 876 (9th Cir. 2003) (citing Bunnell, 947 F.2d at 348 (en
bane)). The reviewing coutt should decline to credit testimony when "outstanding issues"

remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
Here, the ALJ failed to provide any rationale for rejecting the opinion of examining
physician Dr. Kranenburg, and failed to provide legally sufficient reasons for rejecting plaintiffs
testimony. The ALJ's decision was therefore not supported by substantial evidence. Outstanding
issues remain, however, before a detennination of disability can be made. On remand, the ALJ
should be given the opp01tunity to consider the erroneously rejected evidence, take new
testimony from a VE, and determine whether plaintiff can perform her past relevant work, or any
jobs exist in significant numbers in the national economy.
Conclusion

The Commissioner's decision is not supported by substantial evidence in the record, and
is therefore REVERSED and REMANDED for fmther proceedings.
IT IS SO ORDERED
DATED January 9, 2017.

OHN V. ACOSTA
"te States Magistrate Judge

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