Turner v. Colvin

Filing 16

ORDER Reversing and Remanding Defendant's Decision to Deny Benefits by Judge Karen L Strombom. (TW)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 STEPHEN M. TURNER, Case No. 3:16-cv-05381-KLS 7 8 9 Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of defendant’s denial of his 13 applications for disability insurance and supplemental security income (SSI) benefits. The parties 14 15 have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 16 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, 17 the Court finds that defendant’s decision to deny benefits should be reversed, and that this matter 18 should be remanded for further administrative proceedings. 19 20 FACTUAL AND PROCEDURAL HISTORY On June 25, 2013, plaintiff filed an application for disability insurance benefits and 21 22 23 another one for SSI benefits, alleging in both applications that he became disabled beginning May 1, 2013. Dkt. 9, Administrative Record (AR), 21. Both applications were denied on initial 24 administrative review and on reconsideration. Id. At a hearing held before an Administrative 25 Law Judge (ALJ), plaintiff appeared and testified, as did a vocational expert. AR 41-78. 26 In a written decision dated November 24, 2014, the ALJ found that plaintiff could ORDER - 1 1 perform other jobs existing in significant numbers in the national economy, and therefore that he 2 was noted disabled. AR 21-35. On April 27, 2016, the Appeals Council denied plaintiff’s request 3 for review of that decision, making it the Commissioner’s final decision, which plaintiff then 4 appealed in a complaint filed with this Court on May 20, 2016. AR 1; Dkt. 1-3; 20 C.F.R. § 5 404.981, § 416.1481. 6 7 8 Plaintiff seeks reversal of the ALJ’s decision and remand for further administrative proceedings, arguing the ALJ erred: (1) in finding plaintiff’s pituitary cyst and resulting testosterone and growth hormone deficits were not severe impairments; (2) in rejecting the opinions of Jared Hellings, Psy.D., and Howard Platter, M.D.; (3) in discounting plaintiff’s credibility; and (4) 14 in finding plaintiff could perform other jobs existing in significant numbers in the national economy. 15 For the reasons set forth below, the Court agrees the ALJ erred in rejecting the opinion of Dr. 9 10 11 12 13 16 Platter and thus in finding plaintiff could perform other jobs. The Court, therefore, finds remand 17 for further administrative proceedings is warranted. 18 DISCUSSION 19 20 The Commissioner’s determination that a claimant is not disabled must be upheld if the 21 “proper legal standards” have been applied, and the “substantial evidence in the record as a 22 whole supports” that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); 23 24 see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). “A decision supported by substantial 25 26 evidence nevertheless will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.” Carr, 772 F.Supp. at 525 (citing Brawner v. Sec’y of ORDER - 2 1 Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such 2 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 3 Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at 4 1193. 5 The Commissioner’s findings will be upheld “if supported by inferences reasonably 6 7 drawn from the record.” Batson, 359 F.3d at 1193. Substantial evidence requires the Court to 8 determine whether the Commissioner’s determination is “supported by more than a scintilla of 9 evidence, although less than a preponderance of the evidence is required.” Sorenson v. 10 Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one 11 rational interpretation,” that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). That is, “[w]here there is conflicting evidence sufficient to support either outcome,” 13 the Court “must affirm the decision actually made.” Allen, 749 F.2d at 579 (quoting Rhinehart v. 14 15 16 Finch, 438 F.2d 920, 921 (9th Cir. 1971)). I. The ALJ’s Evaluation of Dr. Platter’s Opinion 17 The ALJ is responsible for determining credibility and resolving ambiguities and 18 conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where 19 20 the evidence is inconclusive, “questions of credibility and resolution of conflicts are functions solely of the [ALJ].” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations, 21 22 23 “the ALJ’s conclusion must be upheld.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether inconsistencies in the evidence “are material (or 24 are in fact inconsistencies at all) and whether certain factors are relevant to discount” medical 25 opinions “falls within this responsibility.” Id. at 603. 26 In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings ORDER - 3 1 “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this 2 “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 3 stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences 4 “logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court itself may 5 draw “specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881 6 7 8 F.2d 747, 755, (9th Cir. 1989). The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 9 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1996). Even when a treating or examining physician’s opinion is contradicted, that opinion “can 11 only be rejected for specific and legitimate reasons that are supported by substantial evidence in 12 the record.” Id. at 830-31. However, the ALJ “need not discuss all evidence presented” to him or 13 her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation 14 15 omitted) (emphasis in original). The ALJ must only explain why “significant probative evidence 16 has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield 17 v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984). 18 19 20 In general, more weight is given to a treating physician’s opinion than to the opinions of those who do not treat the claimant. See Lester, 81 F.3d at 830. On the other hand, an ALJ need not accept the opinion of a treating physician, “if that opinion is brief, conclusory, and 21 22 23 inadequately supported by clinical findings” or “by the record as a whole.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d 24 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An 25 examining physician’s opinion is “entitled to greater weight than the opinion of a nonexamining 26 physician.” Lester, 81 F.3d at 830-31. A non-examining physician’s opinion may constitute ORDER - 4 1 substantial evidence if “it is consistent with other independent evidence in the record.” Id. at 2 830-31; Tonapetyan, 242 F.3d at 1149. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 With respect to the opinion evidence from Dr. Platter, the ALJ found: In December 2013, state agency medical consultant Dr. Platter opined that the claimant could lift and carry ten pounds frequently and twenty pounds occasionally. He opined that the claimant could stand and/or walk for six hours in an eight-hour workday, and that he could sit for six hours in the same period. He opined that the claimant needed to alternate between sitting and standing due to his back impairment. He opined that the claimant had a limited ability to reach overhead with his right upper extremity due to mild supraspinatus tendinosis. He opined that the claimant had an unlimited ability to handle and finger. He opined that the claimant could frequently crawl, kneel, balance, or climb ramps and stairs. He opined that the claimant could occasionally crouch, stoop, or climb ladders, rope, and scaffolding. He opined that the claimant should avoid concentrated exposure to vibration and workplace hazards. I give significant weight to Dr. Platter’s opinion, which is consistent with the claimant’s longitudinal examination findings and minimal degree of medical treatment since his alleged onset date. However, I find no reasonable basis to find that the claimant needs to alternate between sitting and standing in order to persist with light exertional labor. Dr. Platter opined that the claimant needed to alternate frequently due to symptoms regarding his spinal impairment. However, the claimant’s work history and medical history indicate that he was able to maintain fulltime labor as a teller . . . despite his longstanding spinal impairment. The claimant’s spinal imaging, as already discussed in this decision, has only found mild degenerative changes. 18 19 20 AR 32 (internal citations omitted). Plaintiff argues the ALJ’s reasons for rejecting Dr. Platter’s opinion are not valid. The 21 Court agrees. First, as plaintiff points out, the last time he worked as a teller was in 2008. AR 61. 22 Plaintiff testified, furthermore, that even at that time he could not “stand for long periods of time 23 24 without taking breaks,” and that sometimes his legs gave out. AR 62. Second, the ALJ offers no explanation as to how he came to the conclusion that plaintiff’s medical history indicates he was 25 26 able to maintain fulltime labor as a teller. Third, and finally, the ALJ does not adequately support his reliance on the mild degenerative changes found on spinal imaging, particularly as Dr. Platter ORDER - 5 1 himself appears to have relied on that imaging in forming his opinion. AR 174, 176; Gonzalez 2 Perez v. Sec’y of Health and Human Servs., 812 F.2d 747, 749 (1st Cir. 1987) (an ALJ may not 3 substitute his own opinion for the opinion of a physician); McBrayer v. Sec’y of Health and 4 Human Servs., 712 F.2d 795, 799 (2nd Cir. 1983) (an ALJ cannot arbitrarily substitute his own 5 judgment for a competent medical opinion); Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 6 7 1982) (an ALJ should avoid commenting on the meaning of objective medical findings without 8 supporting medical expert testimony). 9 II. 10 11 12 The ALJ’s Step Five Determination The Commissioner employs a five-step “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 404.1520, § 416.920. If the claimant is found disabled or not disabled at any particular step thereof, the disability determination is made at that 13 step, and the sequential evaluation process ends. See id. A claimant’s residual functional capacity 14 15 (RFC) assessment is used at step four of the process to determine whether he or she can do his or 16 her past relevant work, and at step five to determine whether he or she can do other work. SSR 17 96-8p, 1996 WL 374184 *2. It is what the claimant “can still do despite his or her limitations.” 18 Id. 19 20 A claimant’s RFC is the maximum amount of work the claimant is able to perform based on all of the relevant evidence in the record. Id. However, an inability to work must result from 21 22 23 the claimant’s “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing 24 a claimant’s RFC, the ALJ also is required to discuss why the claimant’s “symptom-related 25 functional limitations and restrictions can or cannot reasonably be accepted as consistent with the 26 medical or other evidence.” Id. at *7. ORDER - 6 1 The ALJ found plaintiff had the physical RFC to perform: 2 light work . . . except he can occasionally reach overhead with his right upper extremity. He can frequently handle and finger with his right upper extremity. He cannot crawl or climb ladder [sic], rope [sic], scaffolding, ramps, or stairs. He can occasionally balance, stoop, kneel, or crouch. He should avoid concentrated exposure to vibration and hazards. 3 4 5 AR 28 (emphasis in the original). But because as discussed above the ALJ failed to provide valid 6 7 8 9 reasons for rejecting Dr. Platter’s opinion, the ALJ’s RFC assessment cannot be said to completely and accurately describe all of plaintiff’s functional limitations. If a claimant cannot perform his or her past relevant work, at step five of the sequential 10 disability evaluation process the ALJ must show there are a significant number of jobs in the 11 national economy the claimant is able to do. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 12 1999); 20 C.F.R. § 416.920(d), (e). The ALJ can do this through the testimony of a vocational 13 expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); Tackett, 180 F.3d at 1100-1101. 14 15 An ALJ’s step five determination will be upheld if the weight of the medical evidence supports 16 the hypothetical posed to the vocational expert. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir. 17 1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The vocational expert’s 18 testimony therefore must be reliable in light of the medical evidence to qualify as substantial 19 20 evidence. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Accordingly, the ALJ’s description of the claimant’s functional limitations “must be accurate, detailed, and supported by 21 22 23 the medical record.” Id. (citations omitted). Here, the ALJ found plaintiff could perform other jobs existing in significant numbers in 24 the national economy, based on the vocational expert’s testimony offered at the hearing in 25 response to a hypothetical question concerning an individual with the same age, education, work 26 experience and RFC as plaintiff. AR 34-35. But because as discussed above the ALJ erred in ORDER - 7 1 assessing plaintiff’s RFC, the hypothetical question the ALJ posed – and thus the vocational 2 expert’s testimony and the ALJ’s reliance on that testimony – also cannot be said to be supported 3 by substantial evidence or free of error. 4 III. Remand for Further Administrative Proceedings 5 The Court may remand this case “either for additional evidence and findings or to award 6 7 benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court 8 reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the 9 agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th 10 Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is clear from the record 11 that the claimant is unable to perform gainful employment in the national economy,” that 12 “remand for an immediate award of benefits is appropriate.” Id. 13 Benefits may be awarded where “the record has been fully developed” and “further 14 15 16 17 18 19 20 administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where: (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] 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. Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 21 22 23 24 Because issues remain in regard to the medical evidence in the record, plaintiff’s RFC, and his ability to perform other jobs existing in significant numbers in the national economy, remand for further consideration of those issues is warranted. 25 CONCLUSION 26 Based on the foregoing discussion, the Court finds the ALJ improperly determined ORDER - 8 1 plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is REVERSED and 2 this matter is REMANDED for further administrative proceedings. 3 DATED this 12th day of January, 2017. 4 5 A 6 7 Karen L. Strombom United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER - 9

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