Tackett v. Commissioner Social Security
Filing
15
OPINION AND ORDER. The decision of the Commissioner is REVERSED. This action is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Opinion. IT IS SO ORDERED. Signed on 05/14/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MICHELLE TACKETT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.
ROBYN M. REBERS
P.O. Box 3530
Wilsonville, OR 97070
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
JEFFREY R. McCLAIN
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 6:12-cv-00959-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Michelle Tackett seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
applications for disability insurance benefits (DIB) under Title II
of the Social Security Act, 42 U.S.C
jurisdiction pursuant to 42 U.S.C.
follow,
this
court
reverses
§
and
§§
401-403.
405(g).
remands
This Court has
For the reasons that
the
decision
of
the
filed
an
Commissioner for further administrative proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On
August
14,
2007,
plaintiff
protectively
application for a period of disability and disability insurance
benefits.
The claim was denied initially on February 20, 2008, and
on reconsideration on June 20, 2008.
Plaintiff filed a request for
a hearing before an administrative law judge
appeared
at
a
hearing
on
June
continuance to obtain an attorney.
27,
2010,
(ALJ).
and
was
Plaintiff
granted
a
The ALJ held another hearing on
February 11, 2011, at which plaintiff appeared with her attorney
and testified.
An impartial medical expert, Arthur Lorber, M.D.,
and vocational expert, Mark McGowan, also appeared and testified.
On March 25,
2011,
the ALJ issued an unfavorable decision.
The
Appeals Council denied plaintiff's request for review on May 8,
2012.
The ALJ's decision therefore became the final decision of
the Commissioner for purposes of review.
2 - OPINION AND ORDER
Plaintiff was 51 years old at the time of the hearing, has a
high school diploma,
attended trade school,
work as a phlebotomist.
and is certified to
Plaintiff alleges disability beginning
March 10, 2010, as amended orally at the hearing, due to chronic
obstructive pulmonary disease (COPD), and degenerative disc disease
of the
obesity.
lumbar and cervical
spine,
which is exacerbated by her
Plaintiff has past relevant work as a phlebotomist and
resident care aid.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert,
482 U.S.
137, 140 (1987);
20 C.F.R.
Bowen v.
404.1520.
§
Each
step is potentially dispositive.
The claimant bears the burden of
proof at steps one through four.
See Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685,
689 (9th Cir. 2009); Tackett v. Apfel,
F. 3d 1094, 1098 (9th Cir. 1999).
180
At step five, the burden shifts
to the Commissioner to show that the claimant can do other work
which exists in the national economy.
Andrews v. Shalala, 53 F.3d
1035, 1043 (9th Cir. 1995).
The
ALJ
concluded
that
plaintiff met
the
insured
status
requirements of the Social Security Act through December 31, 2012.
A claimant seeking DIB benefits under Title
disability on or prior to the
II must
last date insured.
establish
42 u.s.c.
416(I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
3 - OPINION AND ORDER
§
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since her amended alleged onset of
disability.
See 20 C.F.R.
At step two,
the ALJ found that plaintiff had the following
severe impairments:
cervical
and
404.1520(b), 404.1571 et seq.
§§
mild COPD, degenerative disk disease of the
lumbar
spine,
and
obesity.
See
20
C.F.R.
§
404.1520 (c).
At step three, the ALJ found that plaintiff's impairments, or
combination of impairments did not meet or medically equal a listed
impairment.
See 20 C.F.R.
404.1520(d), 404.1525, 404.1526.
§§
The ALJ assessed plaintiff with a residual functional capacity
(RFC) with the following limitations: plaintiff can perform a range
of light work, except due to chronic neck and back pain,
perform
tasks
that
involve
no
more
than
four
she can
hours
of
standing/walking, and about six hours of sitting in an eight-hour
workday (with normal breaks); plaintiff must be permitted to change
positions
as
necessary
to
relieve
discomfort;
plaintiff
may
occasionally stoop, kneel, crouch, or climb ramps or stairs; she
must
avoid balancing,
crawling,
or
climbing
ladders,
ropes
or
scaffolds; due to plaintiff's combination of pain medication side
effects and respiratory symptoms, she must avoid workplace hazards,
such
as
excessive
unprotected
vibration
heights
and
or
moving
concentrated
machinery,
exposure
to
as
well
as
respiratory
irritants; plaintiff's overhead reaching bilaterally is limited to
4 - OPINION AND ORDER
no greater than frequently to account for her subjective complaints
and mild range of motion deficit.
See 20 C.F.R.
§§
404.1527,
404.1529.
At step four,
the ALJ found plaintiff unable to perform any
past relevant work.
See 20 C.F.R.
§
404.1565.
At step five, the ALJ concluded that considering plaintiff's
age, education, work experience, and residual functional capacity,
jobs exist in significant numbers in the national economy that the
claimant can perform.
416.960 (c), 416.966.
See 20 C.F.R.
404.1560(c),
§§
404.1566,
Accordingly, the ALJ concluded that Plaintiff
is not disabled under the meaning of the Act.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
credibility;
plaintiff contends the following
(1) the ALJ improperly assessed plaintiff's
(2) the ALJ failed to give controlling weight to the
opinion of Martin Johnson, f'l. D., her treating physician;
ALJ erroneously permitted Arthur
Lorber,
testify;
fails
and
(4)
the
ALJ's
RFC
to
a
medical
account
( 3) the
expert,
for
all
to
of
plaintiff's limitations, including her obesity.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
§
405(g); Andrews,
53 F.3d at 1039.
5 - OPINION AND ORDER
42
u.s.c.
"Substantial evidence means
more than a mere scintilla but less than a preponderance; it is
such
relevant
evidence
as
a
reasonable
adequate to support a conclusion."
690.
mind
might
Id.; Valentine,
accept
as
57 4 F. 3d at
The court must weigh all the evidence, whether it supports or
detracts from the Commissioner's decision.
807 F.2d 771,
772
(9th Cir.
1986).
Martinez v. Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational interpretation.
Batson v.
Comm'r of Soc.
Security
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at
1039-40.
If the evidence supports the Commissioner's conclusion,
the Commissioner must be affirmed; "the court may not substitute
its judgment for that of the Commissioner."
Edlund v. Massanari,
253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193.
DISCUSSION
I.
Plaintiff's Testimony
To
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
20 C.F.R.
§
404.1529.
The first stage is a
threshold test in which the claimant must produce objective medical
evidence
of an
underlying
impairment
that
expected to produce the symptoms alleged.
533 F.3d 1035,
1039
(9th Cir.
1273, 1282 (9th Cir. 1996).
2008);
could
reasonably be
Tommasetti v. Astrue,
Smolen v.
Chater,
80 F.3d
At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
6 - OPINION AND ORDER
provide
clear
claimant's
and
convincing
testimony
reasons
regarding
the
for
severity
discrediting
of
the
the
symptoms.
Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th
Cir. 2008); Lingenfelter, 504 F.3d at 1036.
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
the
Thomas v.
F.3d at 1039;
2002) ;
Orteza
v.
the
ALJ
Factors
determinations
claimant's
Barnhart,
Shalala,
may
F. 3d
consider
include
treatment
50
the
278 F.3d 947,
748,
when
objective
history,
the
not
Tommasetti,
arbitrarily discredit the claimant's testimony.
ALJ did
533
958
750
(9th
making
such
medical
claimant's
(9th Cir.
Cir.
1995).
credibility
evidence,
the
daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of
any
pain
and
medication,
relevant
character
evidence.
Tommasetti, 533 F.3d at 1039.
In a November 2007 Function Report, plaintiff described that
she suffers constant, chronic low back pain and pain in her right
leg.
Plaintiff stated that she can only lift five to eight pounds
due to shortness of breath and fatigue.
Plaintiff stated that she
sometimes
support
uses
a
cane
or
walker
for
when
ambulating.
Plaintiff described that she has difficulty sleeping,
every two hours due to back pain and discomfort.
and wakes
Plaintiff is able
to make herself simple meals and assists in caring for her young
grandson.
Plaintiff is able to vacuum, dust, wash dishes by hand,
7 - OPINION AND ORDER
and sort laundry, but she must take breaks.
drive
for
assistance
short
distances,
lifting and
and
shop
carrying
for
grocery
Plaintiff is able to
groceries,
bags.
but
needs
Plaintiff
also
described that her medications make her drowsy and feel sedated.
At the February 11, 2011 hearing, plaintiff described that she
worked full time as a staff coordinator at a resident care facility
for autistic children.
Plaintiff stated that she was terminated in
March of 2010 after failing to timely report an incident where a
child bit her, and she fell down some stairs.
Plaintiff testified
that towards the end of her staff coordinator position, she was not
working a full eight hours each day, but would leave an hour or two
early, and make up that time later in the week.
Plaintiff testified that her biggest obstacle to returning to
work is pain in her back and shoulders.
takes Percocet and Soma at night,
Plaintiff stated that she
and anti-inflammatories during
the day, and that on a ten-point scale, with all her medications,
she rates herself at a seven and a half to eight.
Plaintiff testified that she continues to smoke three to four
cigarettes a day,
and uses her inhalers three to four times per
day.
Plaintiff testified that she could be on her feet
hour,
then would need to put her feet up.
she could sit for 45 minutes.
for an
Plaintiff stated that
Plaintiff testified that she can
walk one to two blocks before needing a rest of 15 to 20 minutes.
Plaintiff described that on a good day, she can take her grandson
8 - OPINION AND ORDER
Plaintiff stated that on a
to the park or go grocery shopping.
bad day, she needs to sit with ice or heat on her back.
Plaintiff
testified that she has an equal number of good and bad days.
In
the
March
25,
2011
plaintiff
has
medically
reasonably
be
expected
decision,
the
determinable
to
produce
ALJ
concluded
impairments
some
that
symptoms,
that
could
but
that
plaintiff's statements concerning the intensity, persistence, and
limiting effects of those symptoms are not entirely credible.
The ALJ provided several reasons for discounting plaintiff's
testimony.
First,
the
ALJ
found
that
concerning her on-going job searches was
severity of her alleged disability.
plaintiff's
testimony
inconsistent with the
At the hearing,
plaintiff
testified that she was actively seeking work as a phlebotomist and
noted that hospital shifts are typically 12 hours in length.
When
asked by her attorney whether she could perform an eight hour
shift,
plaintiff
difficult.
codes,
said
she
would
try,
but
stated
it
would
be
Plaintiff also testified that she could not respond to
or work for 40 hours a week.
In the decision,
the ALJ
determined that plaintiff's somewhat equivocal testimony indicated
plaintiff is not as disabled as she alleges, and discredited her on
that basis.
Plaintiff argues that
the ALJ should not have discredited
plaintiff for seeking work, even if it might prove unsuccessful.
See 20 C.F.R.
§
404.1574(a) & (c) (unsuccessful work attempts do not
9 - OPINION AND ORDER
count toward claimant's ability to perform substantial gainful
activity).
Having
carefully
reviewed
plaintiff's
hearing
testimony, it is clear that plaintiff desires to return to work as
a phlebotomist and is actively seeking such employment,
ALJ's
interpretation
is
supported
by
substantial
and the
evidence.
Although plaintiff's has posed a reasonable interpretation of her
testimony,
I
may not second-guess the ALJ' s
interpretation.
equally reasonable
See Rollins v. Massanari, 261 F.3d 853, 857 (9th
Cir. 2001).
Second, the ALJ discredited plaintiff because she lost her job
as a
staff coordinator because she failed to file
report, not due to her impairments.
an
incident
The ALJ noted that plaintiff
lost her job around the time of her amended onset of disability
date.
When
a
claimant
stops
working
for
reasons
other
than
disability, it supports an adverse inference as to the credibility
of her claim that she could not continue working due to disability.
See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (adverse
credibility determination based claimant losing job due to lay off,
not impairments).
While the ALJ did correctly find that plaintiff was terminated
for reasons unrelated to her disability,
there was conflicting
evidence concerning plaintiff's ability to work a full eight-hour
shift.
Plaintiff testified that toward the end of her employment,
she was fatigued,
and left work an hour early most days. The ALJ
10 - OPINION AND ORDER
specifically noted this accommodation permitted plaintiff to work,
despite her limitations.
On balance,
I conclude that the ALJ's
findings in this respect are not entirely supported by substantial
evidence.
The ALJ' s
third reason
for
discrediting plaintiff
is
not
The ALJ discredited claimant
supported by substantial evidence.
for an alleged discrepancy in the record concerning two falls on
the stairs which aggravated her back and shoulder pain.
hearing,
the ALJ inquired about the two incidents,
At the
and was not
satisfied with the documentation in plaintiff's medical records,
suggesting
that
testified
that
the
falls
first
fall
were
one
occurred
in
in
the
same.
February
Plaintiff
of
2010,
and
involved plaintiff being bitten by an autistic child at the group
facility, causing plaintiff to lose her balance and fall down a few
stairs.
Plaintiff testified that
August of 2010,
stairs
by
her
the
second fall
occurred in
and involved plaintiff being shoved down a
then-boyfriend.
Plaintiff
testified
that
few
the
boyfriend was arrested for assault, and that she had a restraining
order against the boyfriend.
A review of plaintiff's medical records substantiates that the
falls
were
indeed
two
separate
incidents,
and
that
plaintiff
reported increased pain in her back and leg which resolved with her
regular regiment of Percocet and Soma.
11 - OPINION AND ORDER
Tr. 535, 555.
Accordingly,
I conclude that the ALJ's credibility finding on this basis is not
supported by substantial evidence in the record.
Lastly, the ALJ discredited plaintiff for her failure to stop
smoking, despite her allegations of debilitating COPD.
demonstrates
The record
that plaintiff has been repeatedly advised by her
treating physician to stop smoking, yet continues to smoke three or
four cigarettes per day.
However, the Ninth Circuit has suggested
that smoking is an addiction, and that it may not be an appropriate
basis upon which to discredit a claimant.
of
Soc.
Sec.
Admin.,
554
F.3d
See Bray v. Commissioner
1219,
1227
(9th
Cir.
2009) (discrediting claimant for failing to stop smoking despite
COPD was harmless error) .
Therefore, I conclude the ALJ erred in
discrediting plaintiff on this basis.
I
error
in
discrediting claimant for failing to quit smoking was harmless.
In
short,
disagree
I
provided
with
the
Commissioner that
have
determined
for
discrediting
~ubstantial
evidence.
that
several
of
plaintiff
the ALJ' s
the
are
reasons
not
the
ALJ
supported
by
Because of these errors, I conclude that the
remaining reason does not amount to a clear and convincing support
for the adverse credibility determination.
credibility finding
cannot be sustained.
Accordingly, the ALJ's
Robbins v.
Admin., 466 F.3d 880, 884-85 (9th Cir. 2006).
Ill/
Ill/
12 - OPINION AND ORDER
Soc.
Sec.
II.
Physicians' Opinions
Plaintiff argues that the ALJ erred in rejecting the opinion
of Dr.
Lorber.
to
Johnson in favor
of the testifying medical expert,
Dr.
According to plaintiff, Dr. Johnson's opinion is entitled
ALJ
The
weight.
controlling
gave
weight"
"great
to
the
assessment of Dr. Lorber.
An ALJ may reject a treating physician's opinion when it is
inconsistent
if
physicians
with the
opinions
the ALJ makes
legitimate reasons
of
other treating or examining
for doing so that
evidence in the record."
setting
"findings
forth
specific,
are based on substantial
Lingenfelter v. Astrue, 504 F.3d 1028,
1042 (9th Cir. 2007) (quoting Orn v. Astrue, 495 F.3d 625, 632 (9th
Cir. 2007)).
When the medical opinion of a treating physician is
uncontroverted, however, the ALJ must give "clear and convincing
reasons" for rejecting it.
Lester v. Chater, 81 F.3d 821, 830-32
(9th Cir. 1995).
A non examining physician
treats the claimant.
nonexamining
Lester,
physician cannot
is
one who
neither
81 F. 3d at 830.
by
itself
examines
nor
"The opinion of a
constitute
substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
A.
Id. at 831.
Dr. Johnson
Dr. Johnson is a an internist 1vi th a specialty in pulmonary
issues.
Dr. Johnson has been plaintiff's treating physician for
13 - OPINION AND ORDER
many years, and is responsible for coordinating plaintiff's care,
including referrals for plaintiff's back surgery in 2007.
Dr.
Johnson prescribes all of plaintiff's medications.
On
December
2010,
20,
in
questions
to
response
posed by
plaintiff's attorney, Dr. Johnson provided an opinion stating that
plaintiff suffers from chronic pain and weakness in her right lower
extremity due
to sciatica/radiculopathy from her lumbar spinal
degenerative disease, with preceding surgeries.
that
impingement.
COPD,
Dr.
nerve
root
Johnson also noted plaintiff's "significant"
with dyspnea on exertion,
bronchospastic exacerbation.
plaintiff' s· COPD
plaintiff has
show that
which
are MRis
there
Dr. Johnson noted
is
recurrent cough,
and occasional
Johnson noted the severity of
Dr.
by
demonstrated
spirometry.
Dr.
Johnson
additionally noted plaintiff's morbid obesity.
In
his
December
20
opinion,
Dr.
Johnson
indicated
that
plaintiff's degenerative disc disease with chronic pain limits her
ability to stand, walk, or sit for extended periods, and that she
cannot stoop, crouch, crawl or use her legs in a physical manner
for extended periods.
Dr. Johnson indicated that plaintiff must
avoid exposure to temperature extremes, dust, and fumes due to her
COPD.
Dr. Johnson further noted that plaintiff's endurance in all
tasks is limited by her obesity.
plaintiff
would
require
frequent
exacerbations of her conditions.
14 - OPINION AND ORDER
Lastly, Dr. Johnson opined that
days
of
absence
due
to
Dr. Johnson also completed a check-the-box form provided by
plaintiff's
In
attorney.
that
form,
Dr.
Johnson
opined
that
plaintiff could sit for only one to two hours, could stand and walk
for only two hours, and can lift only 10 pounds.
The ALJ indicated
that if all of Dr. Johnson's limitations are credited, plaintiff
would be precluded from full-time work.
The ALJ gave three reasons for giving Dr. Johnson's opinion
less weight.
First, the ALJ noted that Dr. Johnson's opinion was
not supported by his own treatment notes.
that
Dr.
Second, the ALJ noted
Johnson's opinion was contradicted by other objective
medical evidence, namely the opinion of examining physician Steven
Truong, M.D.
Third, the ALJ noted that Dr. Johnson's opinion was
contradicted by the opinion of Dr. Lorber.
The ALJ detailed inconsistencies between Dr. Johnson's opinion
and the limitations he described in his treatment notes.
The ALJ
noted that Dr. Johnson's notes consistently described plaintiff's
COPD as
mild,
yet
in his
December
plainti"ff' s COPD as significant.
2010
opinion,
he
describes
The ALJ noted that Dr. Johnson's
spirometry testing in July 2010 indicated that plaintiff was back
to baseline after a
within
normal
recent exacerbation,
limits.
Tr.
555-56.
and that her FEV1 was
The
ALJ's
supported by substantial evidence in the record.
conclusion that
findings
are
Thus, the ALJ's
Dr. Johnson's characterization of plaintiff's COPD
as significant is contrary to his treatment notes is a reasonable
15 - OPINION AND ORDER
one,
and the ALJ could discount Dr.
Johnson's opinion on this
basis.
The ALJ also correctly noted that contrary to Dr. Johnson's
December
2010
opinion,
plaintiff's
evidence of nerve root impingement.
Dr.
lumbar
spine
MRis
show
no
Other inconsistencies between
Johnson's opinion and his treatment notes are evident.
For
example, a November 6, 2009 treatment note reflects that plaintiff
"states her back pain overall is better and she is more active
without
significant
Additionally,
a
disability."
functional
31,
July
2009
treatment
plaintiff's back pain was better,
note
Tr.
537.
indicates
and that she was "much
that
more
ambulatory" working as a staff coordinator, and that she "recently
came back from summer camp with lots of hiking and was able to keep
up fairly well."
Tr. 538.
These 2009 notes are inconsistent with
Dr. Johnson's opinion concerning plaintiff's diminished functional
capacity and endurance.
Therefore,
I
conclude that the ALJ' s
determination that Dr. Johnson's opinion was inconsistent with his
treatment notes is supported by substantial evidence in the record.
B.
Dr. Truong
The ALJ also gave Dr. Johnson's opinion less weight because it
was
contradicted by
the
opinion
of
Steve
Truong,
opinion was consistent with a subset of light work.
i"l. D.,
whose
Dr. Truong
performed a disability occupational evaluation on April 5, 2010,
and
reviewed
plaintiff's
16 - OPINION AND ORDER
medical
records,
which
indicated
a
significant
history of degenerative
disc
Dr.
disease.
Truong
discussed that plaintiff's primary medical issue affecting her
functional capacity is her severe degenerative disc disease,
for
which plaintiff has undergone several surgeries.
Dr.
Tr.
522.
Truong discussed that plaintiff suffers from COPD, and is morbidly
obese and that plaintiff is fairly deconditioned.
Dr. Truong noted
that plaintiff has decreased air movement in both lungs.
The ALJ thoroughly discussed Dr. Truong's evaluation.
discussed
Dr.
Truong's
findings
that
plaintiff
The ALJ
exhibited mild
tenderness in the mid sacral spine and some tenderness in the left
and right perivertebral lumbar muscles.
The
ALJ noted that Dr.
Truong's findings indicated that plaintiff had full motor strength
in
all
extremities
except
the
lower
right,
which
was
"a
bit
suboptimal secondary to some guarding.•
The ALJ discussed that based on the examination of plaintiff,
and review of her records, Dr. Truong opined that plaintiff could
lift and carry five to 10 pounds frequently,
more than 15 pounds.
and should not lift
Dr. Truong opined that plaintiff could sit
uninterrupted for two hours, could stand and walk for 45 minutes to
one hour.
Dr. Troung determined plaintiff could sit for six hours
in an eight hour day with normal rest breaks, and could stand for
three hours and walk for three hours with rest breaks.
The ALJ
noted that Dr. Truong found some postural limitations, as well as
recommending avoiding environmental
17 - OPINION AND ORDER
hazards
due
to plaintiff's
Dr. Truong found that plaintiff could ambulate without an
COPD.
assistive device.
The ALJ gave Dr. Truong's opinion some weight,
finding they were consistent with the medical evidence as whole.
the
However,
ALJ
Dr.
that
determined
limitations
Truong's
to
handle, finger and feel were not supported by other evidence in the
record, and were inconsistent with the opinion of Dr. Lorber, and
thus did not credit that portion of his opinion.
The ALJ' s
Truong's opinion is supported by
summary of Dr.
Thus, Dr. Johnson's opinion is
substantial evidence in the record.
contradicted by other
evidence
substantial
record,
in the
and
therefore, the ALJ could appropriately give Dr. Johnson's opinion
than
less
Additionally,
Orn,
F.3d
495
conflicting
Truong's
Dr.
based
See
weight.
controlling
631.
at
opinion,
in
combination with the multiple inconsistencies between Dr. Johnson's
treatment notes and his opinion,
legitimate
reasons
I
conclude that the ALJ cited
for
specific
and
opinion.
discounting
Dr.
Johnson's
Tommasetti, 533 F.3d at 1041.
Dr. Lorber
C.
The ALJ also gave Dr. Johnson's opinion less weight by relying
on the testimony Dr.
with respect to Dr. Lorber:
Lorber
to
plaintiff;
without
testify
Plaintiff makes several arguments
Lorber.
(1)
the ALJ erred in permitting Dr.
telephonically
without
advance
notice
to
(2) the ALJ erred in permitting Dr. Lorber to testify
verifying
whether
18 - OPINION AND ORDER
Dr.
Lorber
had
all
relevant
record
materials; and (3) the ALJ erred in crediting Dr. Lorber's opinion
over that of Dr.
Johnson.
The ALJ's reliance on Dr.
Lorber's
opinion is problematic.
1.
telephonic testimony
Plaintiff submits that under the regulations, medical experts
must testify in person or by video teleconference only, citing 20
C.F.R.
§
404.938(b).
Plaintiff submits that she was not informed
in advance of the hearing that
telephonically,
Dr.
Lorber would be testifying
as opposed to appearing in person or via video-
Plaintiff argues that by permitting Dr.
conference.
Lorber to
testify, the ALJ has committed harmful legal error.
The
Commissioner
responds
that
plaintiff
has
waived
this
argument because plaintiff's counsel did not object to Dr. Lorber's
testifying telephonically at the hearing, nor to the lack of notice
concerning
telephonic
appearance
at
the
hearing. 1
Plaintiff
contends that even if this argument is waived, I should review it
because it is question purely of law.
that
remand
is
necessary
specifically address
this
on
issue,
other
Because I have determined
grounds,
except
to
I
state
decline
20
C. F. R.
to
§
404.938(b) suggests that the hearing notice will include whether an
1
I note that plaintiff's counsel objected to Dr. Lorber's
testimony on the basis that Dr. Lorber is not on the list of
medical experts who is maintained on the regional office's
roster, citing HALLEX I-2-5-36, and to a line of questioning by
Dr. Lorber of plaintiff that counsel believed was irrelevant.
The ALJ overruled these objections.
19 - OPINION AND ORDER
appearance
of
a
"witness
is
scheduled
to
be
made
by
video
teleconferencing rather than in person."
2.
complete record
Plaintiff also complains
that
the ALJ did not
adequately
resolve plaintiff's counsel's concerns about whether Dr. Lorber had
all of the relevant medical records.
counsel inquired whether Dr.
medical records.
At the hearing, plaintiff's
Lorber had plaintiff's most recent
Dr. Lorber did not have Exhibit 23F, a cervical
spine MRI dated November 23, 2010.
The ALJ then proceeded to read
Exhibit 23F to Dr. Lorber over the telephone.
completed his testimony and was excused,
After Dr. Lorber
it was learned that Dr.
Lorber also did not have Exhibit 24F, which contained a treatment
note from Dr. Johnson dated August 26, 2010.
In the decision, the
ALJ determined that Exhibit 24F was not different in kind from
other treatment notes from Dr.
impacted
Dr.
Lorber's
Johnson,
testimony.
and thus would not have
Plaintiff also
submits
that
during the hearing that there were multiple instances of difficulty
with the audio connection with Dr. Lorber, and that the ALJ erred
in relying upon Dr. Lorber's testimony.
I agree.
I am not satisfied with the ALJ's resolution of Dr. Lorber's
opinion.
The ALJ clearly premised his rejection of Dr. Johnson's
opinion on the testimony as provided by Dr.
Lorber.
I
am not
convinced as to the completeness of the information provided to Dr.
Lorber.
Having carefully reviewed the hearing transcript, it is
20 - OPINION AND ORDER
clear that Dr. Lorber did not have all of the exhibited copies of
plaintiff's recent medical records,
indicates,
there
difficulty
Therefore,
were multiple
hearing
due
to
and as plaintiff correctly
instances
an
where
inadequate
Dr.
audio
Lorber had
connection.
I conclude that the ALJ's reliance upon Dr.
opinion was erroneous.
Lorber's
Because I have identified other errors in
the ALJ's analysis, I rejected the commissioner's suggestion that
reliance on Dr. Lorber's testimony was harmless error.
In the decision, the ALJ rejected part of Dr. Truong's opinion
based on the limitations described by Dr. Lorber:
The undersigned gives some weight to Dr.
Truong's findings and assessment, which are
generally consistent with the record as a
whole, but not to all of his limits because
the record as a whole supports the found
limits.
Specifically, as addressed by Dr.
Lorber, the evidence does not support Dr.
Truong's found limits in handle, finger and
feel.
Tr. 27.
Because the ALJ relied upon Dr. Lorber's opinion to reconcile
the
conflicting
evidence
provided
by
Dr.
Truong,
the
ALJ's
evaluation of the medical evidence is problematic with respect to
any alleged limitations plaintiff's hands.
See Carmickle, 533 F. 3d
at 1164 (ALJ is responsible for resolving conflicts in the medical
record) .
Thus,
without Dr.
Lorber's opinion,
resolve those specific limitations.
21 - OPINION AND ORDER
the court cannot
Thus, I conclude that, on this
record,
the ALJ erred in evaluating the medical opinions with
respect to plaintiff's functional limitations.
III. RFC Assessment and VE Testimony.
I have concluded that the ALJ erred in evaluating plaintiff's
credibility, and has not reconciled medical evidence concerning any
alleged handling,
impact the ALJ' s
determinations
fingering and feeling limitations which could
assessment of plaintiff's RFC.
were
flawed,
the
Because those
hypothetical
vocational expert was legally inadequate.
posed
Therefore,
to
the
the ALJ's
Step Four and Step Five findings are not supported by substantial
evidence.
Robbins,
I decline to address any
466 F.3d at 886.
additional specific arguments raised by plaintiff.
IV.
Remand
The decision whether to remand for further proceedings or for
immediate payment of benefits is within the discretion of the court
and generally turns on the likely utility of further proceedings.
Harman v. Apfel,
211 F. 3d 1172, 1178
Brewes v. Comm'r Soc. Sec. Admin.,
(9th Cir.
2000).
See also
682 F.3d 1157, 1164 (9th Cir.
2012).
The
Ninth
determining
Circuit
when
evidence
immediately awarded.
F. 3d
1135,
1138
has
(9th
established
a
should
credited
and
test
Cir.
2011).
The
court
for
benefits
Strauss v. Comm'r of Soc. Sec. Admin.,
immediate award of benefits when:
22 - OPINION AND ORDER
be
three-part
should grant
635
an
(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
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 "crediting as true" doctrine is not a mandatory rule in
the Ninth Circuit, but leaves the court flexibility in determining
whether
to
enter
an
award
Commissioner's decision.
of
benefits
upon
reversing
the
Connett v. Barnhart, 340 F.3d 871, 876
(9th Cir. 2003).
On
this
necessary.
record,
I
conclude
that
further
proceedings
are
I have determined that the ALJ failed to provide clear
and convincing
reasons
for
discrediting plaintiff's
subjective
complaints about the limiting effect of her impairments.
have determined that
the ALJ provided specific and
I also
legitimate
reasons for crediting the opinion of Dr. Truong, who opined that
plaintiff
could
perform
a
subset
of
light
work,
which
would
preclude a finding of disability.
The ALJ also erroneously relied
upon the testimony of Dr. Lorber.
As noted above, however, there
are
conflicts
in
the
alleged functional
medical
limitations,
evidence
concerning
plaintiff's
especially with respect to any
alleged limitations with handling, fingering, and feeling.
Thus, based on the foregoing,
further
proceedings
reconsider
is
plaintiff's
required
I conclude that a remand for
to
credibility,
permit
( 2)
the
to
ALJ:
( 1)
reconsider
to
the
evaluation of the medical evidence and resolve any conflicts as
23 - OPINION AND ORDER
necessary,
and
(3)
to reconsider whether any new findings
with
respect to plaintiff's credibility and the medical evidence affect
plaintiff's
RFC,
and/or
the
remaining
steps
in
the
sequential
evaluation.
CONCLUSION
The decision of the Commissioner is REVERSED.
This action is
REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C.
§
405(g)
for further proceedings consistent with this Opinion.
IT IS SO ORDERED.
DATED this ~ day of MAY, 2013.
!x'~ ~2lt'~
Malcolm F. Marsh
United States District Judge
24 - OPINION AND ORDER
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