Canfield v. Commissioner Social Security Administration
Filing
23
Opinion and Order: The Commissioners decision is affirmed in part and reversed in part. On remand, the ALJ shall consider the medical opinion of Dr. Dunn, evaluate all medical opinion evidence, and conduct the step five analysis after taking into consideration all of plaintiffs limitations based on the relevant medical evidence. Signed on 6/28/2016 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT L. CANFIELD,
Plaintiff,
v.
Civ. No. 6:15-cv-00846-MC
OPINION AND ORDER
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff brings this action under 42 U.S.C. § 405(g) to obtain judicial review of the final
decision of the Commissioner of Social Security denying plaintiff’s claim for disability insurance
benefits. The Commissioner’s decision is affirmed in part and reversed in part. Because it is not
clear that the ALJ would have to find plaintiff disabled, this matter is remanded to the ALJ for
additional findings.
1 – OPINION AND ORDER
PROCEDURAL BACKGROUND
On March 5, 2012, plaintiff filed an application for disability insurance benefits alleging
disability as of December 2, 2009. Tr. 116-119. After a hearing, the administrative law judge
(ALJ) found plaintiff not disabled. Tr. 843-73. Plaintiff appealed to this Court, where the
Commissioner conceded errors by the ALJ. Plaintiff argues the ALJ erred by: 1) failing to give
clear and convincing reasons for rejecting Plaintiff’s testimony; 2) failing to credit the opinion of
Dr. Joseph Dunn, M.D.; and 3) failing to show the Commissioner met her burden of proof to
show that plaintiff retains the ability to perform “other work” in the national economy. Pl.’s Br.
12-20. Plaintiff moves to remand this action for a determination of benefits. Pl.’s Br. 20. The
Commissioner agrees the ALJ erred in failing to reasonably evaluate the opinion of Dr. Dunn,
but argues only remand for further proceedings is appropriate as most of the ALJ’s findings were
supported by the record and free of legal error. Def.’s Br. 1-2. Because the ALJ reasonably
provided clear and convincing reasons for rejecting plaintiff’s testimony, yet failed to evaluate
the medical opinions of Dr. Dunn and failed to show plaintiff retains the ability to perform “other
work” in the national economy given the conflicting medical evidence, the ALJ’s decision is
affirmed in part, reversed in part, and remanded for further proceedings.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
2 – OPINION AND ORDER
980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the
evidence can reasonably support either affirming or reversing, ‘the reviewing court may not
substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin.,
740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
1996)).
DISCUSSION
I.
The ALJ Gave Sufficient Reasons to Reject Plaintiff’s Testimony
First, plaintiff argues the ALJ failed to give clear and convincing reasons for rejecting
Plaintiff’s testimony. Pl.’s Br. 14-19. Specifically, plaintiff argues the ALJ erred in discrediting
his testimony because his pain was consistent with the objective medical findings, he engaged in
strengthening exercises to the best of his abilities, and his early signs of improvement were not
sustained. Pl.’s Br. 14-19.
The Cotton test places a burden on the claimant to show: 1) objective medical evidence
of impairment and; 2) that the impairment, or combination of impairments, could reasonably
produce some degree of the reported symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.
1996). Once a claimant meets the Cotton test, and there is not affirmative evidence of
malingering, the ALJ may reject the claimant’s testimony regarding the severity of her symptoms
only by providing clear and convincing reasons supported by specific evidence in the record. Id.
at 1283-84; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). In evaluating a claimant’s
credibility, the ALJ may use “ordinary techniques of credibility evaluation.” Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012). Examples of clear and convincing reasons include
3 – OPINION AND ORDER
conflicting medical evidence, effective medical treatment, medical noncompliance,
inconsistencies either in the claimant’s testimony or between his testimony and his conduct, daily
activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague
or less than candid, and testimony from physicians and third parties about the nature, severity
and effect of the symptoms complained of. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir.
2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin.,
119 F.3d 789,792 (9th Cir. 1997).
Here, the ALJ found plaintiff’s impairments could reasonably be expected to cause some
symptoms, but found plaintiff’s statements “concerning the intensity, persistence and limiting
effects of these symptoms were not entirely credible.” Tr. 23. The ALJ cited numerous reasons
for discrediting plaintiff’s testimony. First, the ALJ noted plaintiff wrote in his initial application
that “he remained capable of lifting up to 20 pounds, sitting 10-20 minutes at a time, and
standing upright for up to 20 minutes at a time,” (Tr. 23, 200), and was able to drive himself to
the grocery store independently every three to five days. Tr. 23, 204. The ALJ stated “[s]uch
activity reasonably suggests he retains significant physical functioning.” Tr. 23.
Next, the ALJ found plaintiff’s physical therapy records “reasonably suggest that
[plaintiff’s] back injury was acute in nature,” and “his pain symptoms steadily declined with
appropriate treatment.” Tr. 24. Specifically, the ALJ found within a month of plaintiff’s back
injury, plaintiff’s physical therapist noted, “he went to work and can complete all light duties”
despite increased pain. Tr. 23, 245. The ALJ also noted the physical therapist observed plaintiff
demonstrate “increased mobility and decreased pain,” although he occasionally experienced
“sharp” pain in his low back. Tr. 24, 240. Additionally, the ALJ found, in January 2010 plaintiff
reported “marked improvement” in daily functioning, even without pain medications (Tr. 24,
4 – OPINION AND ORDER
242), and in March 2010 reported “marked improvement in pain with vigorous activities,” which
included shooting a basketball. Tr. 24, 225-26.
Plaintiff argues these signs of early improvement in his condition were not sustained,
noting that “within a few weeks he experienced increased pain in the low back, with tingling and
burning and (sic) the left foot.” Pl.’s Br. 15, Tr. 231. Further, plaintiff argues evidence shows
“[h]e told his physical therapist that at work he could ‘barely move,’ although he did not lift
anything over 10 pounds,” (Pl.’s Br. 15, Tr. 247), “moving from sitting to standing aggravated
his low back,” (Pl.’s Br. 15, Tr. 247), and he “was able to shoot a basketball without increasing
low back pain, but he still had increased neck pain with numbness and tingling.” Pl.’s Br. 15, Tr.
225. Plaintiff’s argues the record does not show “a quick and lasting improvement in the early
days after [p]laintiff’s work injury.” Pl.’s Br. 15. Granted, the ALJ failed to acknowledge
plaintiff’s improvements were not sustained, and I find this reason for discrediting plaintiff’s
testimony is not supported by substantial evidence. However, under Carmickle v. Comm’r of
Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008), the court need not uphold every
reason the ALJ discredited the plaintiff, as long as substantial evidence exists to support the
ALJ’s decision. Here, the ALJ provided numerous other reasons for finding plaintiff not entirely
credible, reasons that are supported by the record. An ALJ’s error is harmless where it is
“inconsequential to the ultimate nondisability determination.” Stout v. Comm’r, Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Here, the ALJ’s error is harmless because allowing
the ALJ to address her failure to address plaintiff’s lack of sustained improvement would not
affect the ALJ’s overall credibility finding, which is supported by substantial evidence.
Therefore, I find no error.
5 – OPINION AND ORDER
Third, the ALJ found plaintiff’s complaints concerning his pain and limitations were not
fully credible because the degree of limitation was not consistent with the objective medical
evidence. Tr. 24. The ALJ cited the opinions of Dr. Bradley Bergquist, Dr. Edmund Frank, Dr.
William Carr, Dr. James Tran, Dr. Brad Lorber, and Dr. Joseph Dunn. First, the ALJ cited the
opinion of Dr. Bergquist, who, after reviewing medical imaging obtained in January 2011,
opined the focal disc protrusion at L5-S1 was “small” and did not touch or displace the nerve
root. Tr. 24, 279. The ALJ also noted Dr. Bergquist “cited inconsistencies in the record that
undermined the credibility of Mr. Canfield’s subjective pain complaints,” specifically noting
“disparate supine and seated straight-leg raise testing results, positive Waddell tests,” and
“giveway weakness of the left quadriceps despite the fact that [plaintiff] could do a partial squat
and rise without evidence weakness.” Tr. 24, 285. The ALJ also cited the opinions of Dr. Frank
and Dr. Carr, who found plaintiff’s pain was “in excess of the objective changes found on his
radiologic studies,” and found plaintiff’s lumbar condition was “mild-to-moderate” in severity,
specifically noting discrepancies between plaintiff’s seated and supine straight-leg raise testing.
Tr. 24, 299. Next, the ALJ cited the opinion of Dr. Tran, who examined plaintiff in June 2011,
and determined that plaintiff’s “subjective complaints did not correlate to his pathology,” (Tr. 25,
317), specifically noting that Dr. Tran reported “the exam was stopped because the patient got
angry with provocative maneuvers that [were] done very slowly and would not cause pain to that
extent even if he has a discogenic problem.” Id. Next, the ALJ noted, that in June 2012, plaintiff
met with Dr. Lorber and told him, he could not tolerate “any stretches and does not engage in
any strengthening,” (Tr. 25, 656), however Dr. Lorber noted that plaintiff would likely tolerate a
stretching regimen “better than he anticipates.” Tr. 659. Finally, the ALJ cited part of Dr. Dunn’s
medical opinion and found “[t]he most recent medical records obtained at the hearing level do
6 – OPINION AND ORDER
not describe a sudden decline in [plaintiff’s] functioning.” Tr. 25. Specifically, the ALJ cited Dr.
Dunn’s notes that plaintiff was experiencing waxing and waning pain symptoms, but was
otherwise “doing well” with his medication regimen (Tr. 25, 835), had a normal range of motion
and muscle tone, and ambulated with a normal gait without excessive pain behavior. Tr. 25, 837.
The ALJ found “[s]uch objective findings reasonably suggest that [plaintiff] could still perform
light-level work that allowed him to sit or stand at will while performing essential job duties.”
Tr. 25.
Plaintiff argues his pain was consistent with the objective medical findings, arguing the
ALJ failed to mention a lumbar CT scan and discography done in February 2011 revealing a
discal fissuring, and the opinion of Dr. Patrick Golden, who found the disruption of the disc, as
evidenced by these tests, was “a significant pain generator.” Pl.’s Br. 16, Tr. 358-66. Plaintiff
further argues that many of the doctors whose opinions were cited by the ALJ were not aware of
these results when making their findings. Pl.’s Br. 15-17. The Commissioner’s findings must be
upheld if supported by inferences reasonably drawn from the record; if evidence exists to support
more than one rational interpretation, the court must defer to the Commissioner’s decision.
Batson v. Comm’r, 359 F.3d 1190, 1193 (9th Cir. 2004). Here, although variable interpretations
of the record could be made, I find the ALJ’s inferences are reasonably drawn from the record.
For this reason, I find no error.
Finally, the ALJ found plaintiff “declined to follow prescribed treatment reasonably
intended to improve his physical functioning” which the ALJ determined “further erode[d] the
credibility of [plaintiff’s] subjective pain complaints.” Tr. 25. The ALJ specifically cited
plaintiff’s enrollment in a multi-week pain management program, which he left after only four
days. Tr. 25, 805-34. The ALJ noted that treatment providers found plaintiff had “questionable”
7 – OPINION AND ORDER
motivation and “his ability to progress was ‘very limited by virtue of pain interference or self
limitation.’” Tr. 25, 813-14. Overall, the ALJ provided numerous clear and convincing reasons,
supported by substantial evidence, for discrediting plaintiff’s testimony. I find the ALJ
reasonably cited plaintiff’s testimony, medical noncompliance, and testimony from physicians, to
support her reasons for discrediting plaintiff’s testimony. Therefore, I find no error.
II.
The ALJ Failed to Evaluate the Medical Opinion of Dr. Joseph Dunn, M.D.
Next, plaintiff argues the ALJ erred by failing to provide legally sufficient reasons for
failing to credit the opinion of Dr. Joseph Dunn. Pl.’s Br. 12-14. Specifically, plaintiff argues the
ALJ failed to provide clear and convincing, or specific and legitimate reasons for discrediting Dr.
Dunn’s statements, and improperly found the document submitted by plaintiff’s attorney
summarizing a conversation between the attorney and Dr. Dunn was not a “medical source
statement.” Pl.’s Br. 12-13. An ALJ may reject the uncontradicted medical opinion of a treating
or examining physician only for “clear and convincing” reasons supported by substantial
evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). An ALJ may reject the contradicted opinion of a
treating or examining doctor by providing “specific and legitimate reasons that are supported by
substantial evidence.” Id.
Here, the ALJ noted a document submitted by plaintiff’s attorney that claimed to
summarize a conversation between Dr. Dunn and plaintiff’s attorney. Tr. 26, 738-40. The
document contained statements purported to be from Dr. Dunn where he noted plaintiff “will
need to lay down at least once a day, generally, and … will probably need to lay down for in
excess of half an hour,” will “have a variability of symptoms that [are] unpredictable,” will have
three or four “bad days in which he is unable to make it out of the house and keep
8 – OPINION AND ORDER
appointments”, and that his “medications are not always effective day to day.” Tr. 739. The ALJ
noted that “[a]ttorney-prepared summaries of medical source opinions are disfavored in Social
Security disability proceedings because there is no way to tell whether information attributed to
the physician was offered spontaneously or was merely suggested by the representative.” Tr. 26.
For this reason, the ALJ concluded, “this summary is not considered an actual medical source
statement, and is given limited weight in this matter.” Tr. 26. The Commissioner concedes the
ALJ erred by concluding Dr. Dunn’s statements contained in this document were not a “medical
source statement,” and the case should be remanded. Def.’s Br. 1-2. However, the
Commissioner argues the case should be remanded for further administrative proceedings, and
not a finding of disability. Def.’s Br. 2-8.
As the ALJ erred, the question is whether to remand for further administrative
proceedings or an award of benefits. Generally, “when an ALJ’s denial of benefits is not
supported by the record, ‘the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.’” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.
2012), quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, an award of
benefits can be directed “where the record has been fully developed and where further
administrative proceedings would serve no useful purpose.” Smolen v. Chater, 80 F.3d 1273,
1292 (9th Cir. 1996). Remand for calculation of benefits is only appropriate where the creditas-true standard has been satisfied, which requires:
(1) the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion;
and (3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (citations omitted).
9 – OPINION AND ORDER
The Commissioner acknowledges the second element is satisfied, noting the ALJ failed to
provide legally sufficient reasons for rejecting Dr. Dunn’s medical opinions, but argues the
remaining two elements are not satisfied. Def.’s Br. 4. I address the remaining elements below.
The first element requires me to determine whether “the record has been fully developed
and further administrative proceedings would serve no useful purpose.” Garrison at 1020.
“Administrative proceedings are generally useful where the record ‘has [not] been fully
developed,’ Id., there is a need to resolve conflicts and ambiguities, Andrews v. Shalala, 53 F.3d
1035, 1039 (9th Cir. 1995), or the ‘presentation of further evidence ... may well prove
enlightening’ in light of the passage of time, Immigration and Naturalization Service v. Ventura,
537 U.S. 12, 18 (2002).” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir.
2014). “Where there is conflicting evidence, and not all essential factual issues have been
resolved, a remand for an award of benefits is inappropriate.” Id.
Here, Dr. Dunn’s medical opinion from the attorney submitted document was “not
considered an actual medical source statement” by the ALJ, and was only given limited weight.
Tr. 26. Further, as plaintiff argues, the ALJ failed to discuss the opinion of Dr. Golden who
examined plaintiff in June 2011 and plaintiff’s CT scan and discography, both of which conflict
with other medical opinions in the record. Pl.’s Br. 16. Where there exists conflicting medical
evidence, the ALJ is charged with determining credibility and resolving any conflicts. Chaudhry
v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). Since the ALJ failed to reasonably consider Dr.
Dunn’s medical opinion, failed to address the opinion of Dr. Golden, and failed to discuss
plaintiff’s CT scan and discography, there exist factual issues that must be resolved on remand.
For this reasons a remand for further administrative proceedings is appropriate.
10 – OPINION AND ORDER
III.
The Commissioner Did Not Meet Her Burden of Proof that Plaintiff Retains the
Ability to Perform “Other Work” in the National Economy
Finally, plaintiff argues the Commissioner failed to meet her burden of proof to show that
he retains the ability to perform “other work” in the national economy. Pl.’s Br. 19-20. At step
five, the burden shifts to the Commissioner to demonstrate that although the claimant is unable to
perform work that has been done in the past, the claimant is still able to perform work that exists
in the national economy. Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987); Tackett v. Apfel, 180
F.3d 1094, 1098 (9th Cir. 1999).
As discussed above, the record has not been fully developed because Dr. Dunn’s medical
opinion was not properly considered by the ALJ. Although the ALJ posed hypotheticals to the
VE which included the limitations based on Dr. Dunn’s medical opinions, it remains unclear
whether plaintiff can perform “other work” in the national economy because plaintiff’s overall
limitations have not be determined in light of all of the medical evidence. For this reason,
remand for further administrative proceedings is appropriate to allow the ALJ to determine
whether plaintiff retains the ability to perform “other work” in the national economy based on all
of the medical evidence.
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11 – OPINION AND ORDER
CONCLUSION
For the reasons above, the Commissioner’s decision is affirmed in part and reversed in
part. On remand, the ALJ shall consider the medical opinion of Dr. Dunn, evaluate all medical
opinion evidence, and conduct the step five analysis after taking into consideration all of
plaintiff’s limitations based on the relevant medical evidence.
IT IS SO ORDERED.
DATED this 28th day of June, 2016.
/s/ Michael McShane
Michael McShane
United States District Judge
12 – OPINION AND ORDER
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