Sparrow v. Colvin, No. 1:2014cv03005 - Document 27 (E.D. Wash. 2015)

Court Description: ORDER Granting 19 Plaintiff's Motion for Summary Judgment and Denying 25 Defendant's Motion for Summary Judgment. Signed by Senior Judge Fred Van Sickle. (PL, Case Administrator)

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Sparrow v. Colvin Doc. 27 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 KEITH SPARROW, NO: 14-CV-3005-FVS Plaintiff, 8 9 10 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Defendant. 12 BEFORE THE COURT are the parties’ cross motions for summary 13 judgment. ECF Nos. 19 and 25. This matter was submitted for consideration 14 without oral argument. Plaintiff was represented by D. James Tree. Defendant was 15 represented by Diana Andsager. The Court has reviewed the administrative record 16 and the parties’ completed briefing and is fully informed. For the reasons discussed 17 below, the court grants Plaintiff’s Motion for Summary Judgment and denies 18 Defendant’s Motion for Summary Judgment. 19 JURISDICTION 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 1 Dockets.Justia.com 1 Plaintiff Keith Sparrow protectively filed for disability insurance benefits 2 and supplemental security income (“SSI”) on January 27, 2009, alleging an onset 3 date of March 11, 2008. Tr. 158-161. Benefits were denied initially and upon 4 reconsideration. Tr. 110-113, 116-122. Plaintiff requested a hearing before an 5 administrative law judge (“ALJ”), which was held before ALJ R.J. Payne on 6 February 7, 2011. Tr. 64-103. Plaintiff was represented by counsel and testified at 7 the hearing. Tr. 81-100. Medical experts Dr. Reuben Beezy and Dr. Thomas 8 McKnight also testified. Tr. 68-80. The ALJ denied benefits on February 17, 2011. 9 Tr. 35-49. Plaintiff filed a request for review by the Appeals Council, which was 10 granted because the ALJ decision “was not supported by substantial evidence.” Tr. 11 154-157. On July 24, 2012, the Appeals Council issued an unfavorable decision. 12 Tr. 19-27. 13 Jurisdiction to review the Secretary's decisions regarding disability benefits 14 is governed by 42 U.S.C. § 405(g), which provides for review only of a “final 15 decision of the Commissioner of Social Security made after a hearing.” 42 U.S.C. 16 § 405(g) (1988). When the Appeals Council denies review of claim, the ALJ’s 17 decision is a final decision subject to review. Sims v. Apfel, 530 U.S. 103, 106 18 (2000); Osenbrock v. Apfel, 240 F.3d 1157, 1160 (9th Cir. 2001); McCarthy v. 19 Apfel, 221 F.3d 1119, 1122 (9th Cir. 2000). However, when the Appeals Council 20 reviews a claim, the Appeals Council decision is the final decision under § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 2 1 See Sousa v. Callahan, 143 F.3d 1240, 1242 n. 3 (9th Cir. 1998); 20 C.F.R. §§ 2 404.981, 422.210(a). Thus, this court has jurisdiction over the July 24, 2012 3 decision of the Appeals Council, which is the final decision of the Commissioner. 4 The court does not have jurisdiction to review the decision of ALJ Payne, which in 5 this case is not a final decision of the Secretary. However, because the Appeals 6 Council adopted many of the ALJ’s findings and conclusions, this decision will 7 reference the ALJ’s findings when applicable. 8 STATEMENT OF FACTS 9 The facts of the case are set forth in the administrative hearing and 10 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 11 and will therefore only be summarized here. 12 Plaintiff was 43 years old at the time of the hearing. Tr. 81. He graduated 13 from high school. Tr. 92. Plaintiff has been employed as an alarm installer, 14 landscape laborer, machine operator, maintenance technician, sanitation worker, 15 and pesticide applicator. Tr. 206-217. He sustained a back injury while working in 16 2003. Tr. 81-82. Plaintiff alleges he is disabled due to a back injury, hypertension, 17 and depression. See Tr. 116. Plaintiff testified he can sit for half an hour before he 18 needs to move around; stand for fifteen minutes to half an hour before he feels 19 pressure in his hips and back; and walk for fifteen minutes at a time. Tr. 84-86. He 20 can comfortably lift 25 or 30 pounds. Tr. 88-89. His pain is generally about a four ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 3 1 or five on a scale of one to ten, with the worst being a seven. Tr. 97. Plaintiff 2 testified that he does not talk to his friends as much and isolates himself. Tr. 90. He 3 reported that he has done a lot of crying since his wife was diagnosed with 4 Huntington’s disease. Tr. 90. 5 6 STANDARD OF REVIEW A district court's review of a final decision of the Commissioner of Social 7 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 8 limited: the Commissioner's decision will be disturbed “only if it is not supported 9 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 10 1158–59 (9th Cir.2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 11 relevant evidence that “a reasonable mind might accept as adequate to support a 12 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 13 substantial evidence equates to “more than a mere scintilla[,] but less than a 14 preponderance.” Id. (quotation and citation omitted). In determining whether this 15 standard has been satisfied, a reviewing court must consider the entire record as a 16 whole rather than searching for supporting evidence in isolation. Id. 17 In reviewing a denial of benefits, a district court may not substitute its 18 judgment for that of the Commissioner. If the evidence in the record “is susceptible 19 to more than one rational interpretation, [the court] must uphold the 20 [Commissioner’s] findings if they are supported by inferences reasonably drawn ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 4 1 from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.2012). Further, a 2 district court “may not reverse [a] decision on account of an error that is harmless.” 3 Id. at 1111. An error is harmless “where it is inconsequential to the ultimate 4 nondisability determination.” Id. at 1115 (quotation and citation omitted). 5 6 FIVE–STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 7 the meaning of the Social Security Act. First, the claimant must be “unable to 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than twelve 11 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant's impairment must be 12 “of such severity that he is not only unable to do his previous work[,] but cannot, 13 considering his age, education, and work experience, engage in any other kind of 14 substantial gainful work which exists in the national economy.” 42 U.S.C. § 15 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential analysis to 17 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 18 404.1520(a)(4)(i)-(v); 416.920(a)(4) (i)-(v). At step one, the Commissioner 19 considers the claimant's work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); 20 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 5 1 Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 2 404.1520(b); 416.920(b). 3 If the claimant is not engaged in substantial gainful activities, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the 5 claimant's impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work 8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 9 416.920(c). If the claimant's impairment does not satisfy this severity threshold, 10 11 however, the Commissioner must find that the claimant is not disabled. Id. At step three, the Commissioner compares the claimant's impairment to 12 several impairments recognized by the Commissioner to be so severe as to 13 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 14 404.1520(a)(4)(iii); 416.920(a) (4)(iii). If the impairment is as severe or more 15 severe than one of the enumerated impairments, the Commissioner must find the 16 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416 .920(d). 17 If the severity of the claimant's impairment does meet or exceed the severity 18 of the enumerated impairments, the Commissioner must pause to assess the 19 claimant's “residual functional capacity.” Residual functional capacity (“RFC”), 20 defined generally as the claimant's ability to perform physical and mental work ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 6 1 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 2 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 3 analysis. 4 At step four, the Commissioner considers whether, in view of the claimant's 5 RFC, the claimant is capable of performing work that he or she has performed in 6 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). 7 If the claimant is capable of performing past relevant work, the Commissioner 8 must find that the claimant is not disabled. 20 C.F.R. § § 404.1520(f); 416.920(f). 9 If the claimant is incapable of performing such work, the analysis proceeds to step 10 11 five. At step five, the Commissioner considers whether, in view of the claimant's 12 RFC, the claimant is capable of performing other work in the national economy. 20 13 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a) (4)(v). In making this determination, the 14 Commissioner must also consider vocational factors such as the claimant's age, 15 education and work experience. Id. If the claimant is capable of adjusting to other 16 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § § 17 404.1520(g)(1); 416.920(g) (1). If the claimant is not capable of adjusting to other 18 work, the analysis concludes with a finding that the claimant is disabled and is 19 therefore entitled to benefits. Id. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 7 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir.2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. § § 6 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 7 8 9 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful activity since March 11, 2008, the alleged onset date. Tr. 40. At step two, the ALJ 10 found Plaintiff has the following severe impairments: a shortened right leg with 11 mild/minimal disc protrusions and bulging of the lumbar and cervical spines. Tr. 12 40. At step three, the ALJ found that Plaintiff does not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments in 20 C.F.R. Part 404, Subpt. P, App’x 1. Tr. 42. The ALJ 15 then determined that Plaintiff has the RFC “to perform sedentary work as defined 16 in 20 CFR 404.1567(a) and 416.967(a) with postural limitations for climbing, 17 crawling, kneeling, bending, and unprotected heights.” Tr. 42. At step four, the 18 ALJ found Plaintiff is unable to perform any past relevant work. Tr. 44. After 19 considering the Plaintiff’s age, education, work experience, and RFC, the ALJ 20 determined there are jobs that exist in significant numbers in the national economy ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 8 1 that the Plaintiff can perform. Tr. 45. The ALJ concluded that Plaintiff has not 2 been under a disability, as defined in the Social Security Act, from March 11, 3 2008, through the date of the decision. Tr. 45. 4 5 APPEALS COUNCIL FINDINGS At step one, the Appeals Council found Plaintiff has not engaged in 6 substantial gainful activity since March 11, 2008, the alleged onset date. Tr. 24. At 7 step two, the Appeals Council found Plaintiff has the following severe 8 impairments: a shortened right leg with mild/minimal disc protrusions and bulging 9 of the lumbar and cervical spines. Tr. 24. At step three, the Appeals Council found 10 that Plaintiff does not have an impairment or combination of impairments that 11 meets or medically equals the severity of one of the listed impairments in 20 12 C.F.R. Part 404, Subpt. P, App’x 1. Tr. 24. The Appeals Council then determined 13 that Plaintiff had the RFC “to lift 10 pounds occasionally, stand or walk for two 14 hours in an eight-hour workday as well as sit for six hours in an eight-hour 15 workday. The claimant was limited to occasional climbing, stooping, kneeling, 16 crouching and crawling, as well as occasional exposure to unprotected heights.” 17 Tr. 24. At step four, the Appeals Council found Plaintiff is unable to perform any 18 past relevant work. Tr. 24. After considering the Plaintiff’s age, education, work 19 experience, and RFC, the Appeals Council found Plaintiff was “not disabled” 20 within the framework of Medical-Vocational Rule 201.28 and SSR 85-15. Tr. 45. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 1 The Appeals Council concluded that Plaintiff has not been under a disability, as 2 defined in the Social Security Act, from March 11, 2008, through the February 17, 3 2011 decision by the ALJ. Tr. 24-25. 4 ISSUES 5 The question is whether the Commissioner’s decision is supported by 6 substantial evidence and free of legal error. Specifically, Plaintiff asserts: (1) the 7 Appeals Council improperly rejected Plaintiff’s subjective complaints; (2) the 8 Appeals Council improperly evaluated the opinion evidence of record; and (3) the 9 Appeals Council committed reversible error by failing to discern chronic pain 10 syndrome and depression as severe impairments at step two; (4) the Appeals 11 Council failed to complete the administrative record; and (5) the Appeals Council 12 erred at step five.1 ECF No. 19 at 20-36. Defendant argues: (1) the Commissioner 13 reasonably concluded that Plaintiff was not credible; (2) the Commissioner 14 1 15 Appeals and Litigation Law manual (“HALLEX”), which provides guidance on 16 processing and adjudicating Social Security claims, the Appeals Council should 17 have remanded the case to the ALJ for further proceedings. ECF No. 19 at 20-22 18 (citing HALLEX I-3-3-4). However, it is well-established in the Ninth Circuit that 19 HALLEX has no legal force and is not binding on the courts. See Bunnell v. 20 Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003). Plaintiff generally argues that according to the Commissioner’s Hearings, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 1 reasonably evaluated the medical opinion evidence; (3) the ALJ’s step two finding 2 was supported by substantial evidence; (4) the administrative record is complete; 3 and (5) the Commissioner reasonably concluded that Plaintiff was not disabled at 4 step five. ECF No. 25 at 4-19. 5 6 7 DISCUSSION A. Credibility In social security proceedings, a claimant must prove the existence of 8 physical or mental impairment with “medical evidence consisting of signs, 9 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A claimant's 10 statements about his or her symptoms alone will not suffice. Id. Once an 11 impairment has been proven to exist, the claimant need not offer further medical 12 evidence to substantiate the alleged severity of his or her symptoms. Bunnell v. 13 Sullivan, 947 F.2d 341, 345 (9th Cir.1991) (en banc). As long as the impairment 14 “could reasonably be expected to produce [the] symptoms,” the claimant may offer 15 a subjective evaluation as to the severity of the impairment. Id. This rule 16 recognizes that the severity of a claimant's symptoms “cannot be objectively 17 verified or measured.” Id. at 347 (quotation and citation omitted). 18 If an ALJ finds the claimant's subjective assessment unreliable, “the ALJ 19 must make a credibility determination with findings sufficiently specific to permit 20 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 1 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002). In making this 2 determination, the ALJ may consider, inter alia: (1) the claimant's reputation for 3 truthfulness; (2) inconsistencies in the claimant's testimony or between his 4 testimony and his conduct; (3) the claimant's daily living activities; (4) the 5 claimant's work record; and (5) testimony from physicians or third parties 6 concerning the nature, severity, and effect of the claimant's condition. Id. Absent 7 any evidence of malingering, the ALJ's reasons for discrediting the claimant's 8 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 9 661, 672 (9th Cir.2012) (quotation and citation omitted). 10 Here, the Appeals Council found Plaintiff’s “subjective complaints were not 11 fully credible for the reasons identified in the [ALJ’s] decision.” Tr. 24. The ALJ 12 generally found “the claimant’s statements concerning the intensity, persistence 13 and limiting effects of [his] symptoms are not credible to the extent they are 14 inconsistent with the above residual functional capacity assessment.” Tr. 44. 15 Plaintiff argues the Appeals Council, through the adoption of the ALJ’s credibility 16 finding, committed reversible error by improperly rejecting Plaintiff’s subjective 17 complaints. ECF No. 19 at 28-31. The court agrees. First, “[i]n assessing the 18 claimant’s subjective allegations of disability, the [ALJ found] that according to 19 his medical records, other than one [sic] evaluators indication of a shortened right 20 leg, he has had only minimal/mild objective findings for any significant back or ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 1 neck impairment.” Tr. 43. However, the ALJ did not support his reasoning with 2 citations to these alleged “minimal/mild objective findings” regarding Plaintiff’s 3 claims of back and neck impairments. See Thomas, 278 F.3d at 958 (ALJ must 4 “make a credibility determination with findings sufficiently specific to permit the 5 court to conclude that the ALJ did not arbitrarily discredit claimant’s testimony.”) 6 Defendant argues that “the Commissioner was entitled to rely on the fact that 7 multiple providers noted that Plaintiff’s allegations of pain were out of proportion 8 to, or inconsistent with his allegations, as a reason to discount his credibility.” ECF 9 No. 25 at 13-14. However, regardless of the existence of this evidence, the ALJ did 10 not provide any support for his reasoning in the decision. “We review only the 11 reasons provided by the ALJ in the disability determination and may not affirm the 12 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 13 (9th Cir. 2007). 14 The court notes that the ALJ does cite to a June 2009 consultative 15 psychological evaluation opining that Plaintiff only had a “mild mood disorder” 16 and finding “no indication that he suffers from any significant mental impairment 17 or limitations despite his assertions of depression.” Tr. 44, 386. The ALJ also 18 refers to, but provides no citations for, “more recent records … show[ing] that 19 [Plaintiff] has been stable with only mild hypertension, stable depression, and 20 fibromyalgia,” and Plaintiff’s testimony that his average pain level is generally a 4- ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 1 5 and “at worse a 7.” Tr. 44. However, while medical evidence is a relevant factor 2 in determining the severity of a claimant’s disabling effects, subjective testimony 3 may not be rejected solely because it is not corroborated by objective medical 4 findings. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). As discussed 5 below, the ALJ’s only other reason for rejecting Plaintiff’s testimony is not clear, 6 convincing, and supported by substantial evidence. As such, even if the objective 7 medical evidence does not support the level of impairment claimed, the negative 8 credibility finding is inadequate because a lack of objective evidence cannot be the 9 sole basis for discrediting Plaintiff’s testimony. 10 The ALJ noted that Plaintiff “estimated an average pain level of 4-5 [on the 11 typical pain scale of 0-10], at worse a 7, and on the day of hearing a 3-4, and that 12 he only took over the counter medications.” Tr. 44, 91-92, 97. “Evidence of 13 ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 14 severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 15 (relying on claimant’s treatment of physical ailments with over-the-counter pain 16 medication). Plaintiff did testify that he took over-the-counter medication for his 17 pain. Tr. 91-92. However, as noted by Plaintiff, the ALJ did not consider evidence 18 that Plaintiff discontinued use of certain medications due to side effects including 19 feeling dizzy, groggy and nauseated; notations that he is allergic to certain pain 20 medications; and indications that certain medications did not “solve his pain.” ECF ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 14 1 No. 19 at 31; Tr. 91-92, 288-290, 294, 303, 307, 340. Moreover, over the course of 2 the adjudicatory period, Plaintiff has taken more than over-the counter medication, 3 including: anti-inflammatories, anti-spasmodics, muscle relaxers, and 4 antidepressants. Tr. 385, 424, 427, 431-32, 443. Defendant argues the ALJ’s 5 finding was reasonable because the record alludes to Plaintiff’s previous use of 6 Percocet, which is seemingly inconsistent with records indicating he is “allergic to 7 pain medications.” ECF No. 25 at 15 (citing Tr. 286). However, the ALJ fails to 8 address this alleged inconsistency in his decision, nor does he elaborate with any 9 specificity as to why Plaintiff’s medication history undermines his testimony. 10 Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (in making a 11 credibility finding, the ALJ “must specifically identify the testimony she or he 12 finds not to be credible and must explain what evidence undermines the 13 testimony.”); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 14 2009) (“Long-standing principles of administrative law require us to review the 15 ALJ’s decision based on the reasoning and factual findings offered by the ALJ – 16 not post hoc rationalizations that attempt to intuit what the adjudicator may have 17 been thinking.”). Thus, assuming arguendo that the ALJ’s notation regarding over- 18 the-counter medication was offered as a reason to find Plaintiff not credible, the 19 court finds it was not specific, clear and convincing. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 15 1 Based on the foregoing, the ALJ and Appeals Council failed to cite specific, 2 clear and convincing reasons, supported by substantial evidence, for the adverse 3 credibility finding. On remand, the Commissioner should reconsider the credibility 4 finding. 5 6 B. Medical Opinion Evidence There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir.2001) (citations omitted). 11 Generally, a treating physician's opinion carries more weight than an examining 12 physician's, and an examining physician's opinion carries more weight than a 13 reviewing physician's. Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th 14 Cir.2001)(citations omitted). If a treating or examining physician's opinion is 15 uncontradicted, the ALJ may reject it only by offering “clear and convincing 16 reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 17 1211, 1216 (9th Cir.2005). Conversely, “[i]f a treating or examining doctor's 18 opinion is contradicted by another doctor's opinion, an ALJ may only reject it by 19 providing specific and legitimate reasons that are supported by substantial 20 evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830–831 (9th Cir.1995)). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 16 1 The Appeals Council considered “new and material evidence” that was not 2 previously considered by the ALJ, including medical source statements from 3 Plaintiff’s treating providers H. Benno Marx, M.D. and Jory Anderson, D.C. 4 “When the Appeals Council makes a decision, it will follow the same rules for 5 considering opinion evidence as [ALJs] follow.” 20 C.F.R. § 404.1527(e)(3). 6 Plaintiff contends the Appeals Council erred by improperly rejecting these 7 opinions. ECF No. 19 at 25-28. 8 1) H. Benno Marx 9 The Appeals Council considered Dr. Marx’s opinion dated June 13, 2012, in 10 which he noted diagnoses of chronic pain, compression of T12, L1, L2, and 11 secondary depression. Tr. 522. Dr. Marx opined that Plaintiff would probably miss 12 1-2 days a week due to medical impairments if he attempted to work a 40-hour per 13 week schedule. Tr. 523. The Appeals Council did not consider or grant weight to 14 this opinion. Tr. 22; see 20 C.F.R. § 404.1527 (directing ALJ to evaluate every 15 medical opinion in the record regardless of its source). Rather, it found “the 16 medical source statement submitted by Dr. Marx is [] similar to his opinion dated 17 October 11, 2010. This opinion was addressed in the [ALJ’s] decision on pages six 18 and seven.” Tr. 22. The court can only assume this “finding” by the Appeals 19 Council was intended to apply the ALJ’s reasoning and ultimate rejection of Dr. 20 Marx’s 2010 opinion, to Dr. Marx’s 2012 opinion. As noted by the ALJ in his ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 17 1 decision, in October 2010 Dr. Marx “indicated that the claimant has suffered from 2 chronic back pain, fatigue and depression, and would need to lay down throughout 3 the day, [and] have the potential to be [sic] absence/miss work up to four days a 4 month, and that work would deteriorate his condition.” Tr. 43-44, 422-23. The ALJ 5 summarily “rejected” Dr. Marx’s opinion “as completely unsupported.” Tr. 44. 6 Plaintiff argues “[a] generic assertion that an opinion is not supported by the record 7 is simply an inadequate basis for rejecting the opinion.” ECF No. 19 at 26. The 8 court agrees. 9 Defendant offers several compelling reasons that could be used to support a 10 rejection of Dr. Marx’s opinion. ECF No. 25 at 9-10. For example, “an ALJ may 11 discredit treating physicians’ opinions that are conclusory, brief, and unsupported 12 by the record as a whole, or by objective medical findings.” Batson v. Comm’r of 13 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003) (citations omitted). 14 However, when explaining his reasons for rejecting medical opinion evidence, the 15 ALJ must do more than state a conclusion; instead, the ALJ must “set forth his 16 own interpretations and explain why they, rather than the doctors’, are correct.” 17 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). “This can be done by setting 18 out a detailed and thorough summary of the facts and conflicting clinical evidence, 19 stating his interpretation thereof, and making findings.” Id. Defendant argues that 20 “the Commissioner’s opinion, read as a whole, makes clear the basis for his ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 18 1 rejection of Dr. Marx’s opinion.” ECF No. 25 at 10. However, even were the court 2 to accept the general recounting of “conflicting” medical evidence across the 3 entirety of the decision (Tr. 40-44), the ALJ only states a conclusion regarding Dr. 4 Marx’s opinion without the requisite “set[ting] forth [of] his own interpretations.” 5 See Reddick, 157 F.3d at 725. This was error and the Commissioner must 6 reconsider Dr. Marx’s opinion on remand. 7 2) Jory Anderson, D.C. 8 As a chiropractor, Dr. Anderson is not an “acceptable medical source” 9 within the meaning of 20 C.F.R. § 416.913(a). Instead, Dr. Anderson qualifies as 10 an “other source” as defined in 20 C.F.R. § 416.913(d). Molina v. Astrue, 674 F.3d 11 1104, 1111 (9th Cir. 2012). The ALJ need only provide “germane reasons” for 12 disregarding Dr. Anderson’s opinion. Molina, 674 F.3d at 1111. However, the ALJ 13 is required to “consider observations by nonmedical sources as to how an 14 impairment affects a claimant's ability to work.” Sprague v. Bowen, 812 F.2d 1226, 15 1232 (9th Cir. 1987). Moreover, “the adjudicator generally should explain the 16 weight given to opinions from these ‘other sources,’ or otherwise ensure that the 17 discussion of the evidence in the determination or decision allows a claimant or 18 subsequent reviewer to follow the adjudicator’s reasoning, when such opinions 19 may have an effect on the outcome of the case.” SSR 06-03p (Aug. 9, 2006), 20 available at 2006 WL 2329939 at *4. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 19 1 In June 2010 Dr. Anderson opined that Plaintiff is prevented from working 2 because he could not stand for longer than half an hour or perform manual labor 3 “due to worsening of compression fractures and thoracolumbar instability.” Tr. 4 519. Dr. Anderson also opined that Plaintiff could “maybe” do office work. Tr. 5 519. The Appeals Council considered this evidence and found “that the 6 longitudinal record does not support [Dr. Anderson’s] conclusion.” Tr. 22. Plaintiff 7 argues the Appeals Council failed to provide the requisite reasons for their 8 apparent rejection of Dr. Anderson’s opinion. The court agrees. The Appeals 9 Council merely states a conclusion, without pointing to any specific evidence in 10 the “longitudinal record” that would allow this court to assess its reasoning. See 11 SSR 06-03p, available at 2006 WL 2329939 at *4. For instance, the court is 12 unclear as to whether the “longitudinal record” does not support Dr. Anderson’s 13 finding that Plaintiff could not stand longer than 30 minutes, and the opinion that 14 Plaintiff could no longer perform manual labor. See Tr. 22. Defendant again offers 15 “substantial evidence” that would seem to support the Appeals Council finding 16 (ECF No. 25 at 11), however, the court declines to consider reasoning not offered 17 by the Appeals Council as part of the decision. See Bray, 554 F.3d at 1226. This 18 reason was not specific or germane. 19 20 The Appeals Council further “note[d] that Dr. Anderson opined that the claimant could perform office work, which is consistent with an ability to perform ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 20 1 sustained work activity at the sedentary level.” Tr. 22. Plaintiff correctly argues 2 that this finding mischaracterizes Dr. Anderson’s opinion that Plaintiff could 3 “maybe” perform office work. Tr. 519. Further, this error was not harmless, 4 because Dr. Anderson’s opinion was too equivocal to be “consistent” with the 5 assessed ability to perform sustained work at the sedentary exertional level. Cf. 6 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (error 7 harmless where it is non-prejudicial to claimant or irrelevant to ALJ’s ultimate 8 disability conclusion). The Commissioner should reevaluate Dr. Anderson’s 9 opinion on remand. 10 As a final matter, the court is compelled to note that, aside from the opinions 11 discussed above, the ALJ and Appeals Council neglected to evaluate all of the 12 medical opinion evidence regardless of whether it supported their decisions or not. 13 In determining whether a Plaintiff is disabled, the regulations direct the ALJ to 14 evaluate every medical opinion in the record regardless of its source. 20 C.F.R. §§ 15 404.1527(b); 416.927(b). While the ALJ is not required to discuss all of the 16 evidence presented, he or she must explain why significant probative evidence has 17 been rejected. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). As 18 noted by Plaintiff, and discussed below, the omission of opinion analysis is 19 particularly glaring in the case of agency medical examiner Dr. Eugene Kester, 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 21 1 M.D., who opined multiple moderate mental health limitations, which were never 2 considered by the ALJ or Appeals Council. Tr. 402-404. 3 In this case, the ALJ improperly rejected the opinions of Dr. Marx and Dr. 4 Anderson without providing the requisite reasons supported by substantial 5 evidence; and failed to consider all of the medical opinion evidence. As a result, 6 remand is required for proper analysis of the medical opinion evidence. 7 8 9 C. Step Two At step two of the sequential process, the ALJ must determine whether Plaintiff suffers from a severe impairment. 20 C.F.R. § 416.920(a). To be 10 considered ‘severe,’ an impairment must significantly limit an individual’s ability 11 to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c); Smolen v. 12 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment that is ‘not severe’ 13 must be a slight abnormality (or a combination of slight abnormalities) that has no 14 more than a minimal effect on the ability to do basic work activities. SSR 96-3P, 15 1996 WL 374181 at *1 (July 2, 1996). Basic work activities include “abilities and 16 aptitudes necessary to do most jobs, including, for example, walking, standing, 17 sitting, lifting, pushing, pulling, reaching, carrying or handling.” 20 C.F.R. § 18 404.1521(b). 19 20 Plaintiff bears the burden to establish the existence of a severe impairment or combination of impairments, which prevent him from performing substantial ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 22 1 gainful activity, and that the impairment or combination of impairments lasted for 2 at least twelve continuous months. 20 C.F.R. §§ 404.1505, 404.1512(a); Edlund v. 3 Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2011). However, step two is “a de 4 minimus screening device [used] to dispose of groundless claims.” Smolen, 80 5 F.3d at 1290. “Thus, applying our normal standard of review to the requirements of 6 step two, we must determine whether the ALJ had substantial evidence to find that 7 the medical evidence clearly established that [Plaintiff] did not have a medically 8 severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d 9 683, 687 (9th Cir. 2005). 10 The Appeals Council agreed with the ALJ’s findings at step two and 11 likewise found that Plaintiff had severe impairments including: shortened right leg 12 with mild minimal disc protrusions and bulging of the lumbar and cervical spines. 13 Tr. 23-24, 40. Plaintiff argues the Appeals Council erred at step two by failing to 14 discern chronic pain syndrome and depression as severe impairments.2 ECF No. 19 15 2 16 Plaintiff’s mental impairments were severe at step two. ECF No. 19 at 23-25. 17 However, as correctly noted by Defendant, an ALJ is not bound to consider GAF 18 scores or give them controlling weight. ECF No. 25 at 6-7. In fact, the 19 Commissioner has explicitly disavowed use of GAF scores as indicators of 20 disability. “The GAF scale ... does not have a direct correlation to the severity Plaintiff appears to rely heavily on GAF scores to support his argument that ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 23 1 at 22-25. Defendant responds by citing evidence in the record properly identified 2 by the ALJ and Appeals Council to support their finding that these impairments 3 were not severe, including: (1) the July 2009 consultative examination findings 4 that Plaintiff had “no indication of cognitive, mood or affective problems that 5 would interfere with employability” (Tr. 386), and (2) the testimony of medical 6 expert Dr. McKnight who opined that Plaintiff had no severe mental impairment, 7 and found no more than mild limitations in activities of daily living, maintaining 8 social functioning, and maintaining concentration, persistence or pace (Tr. 23, 41- 9 42, 79-80, 476). ECF No. 25 at 5-6. 10 However, as discussed above, the ALJ and Appeals Council did not properly 11 consider the medical opinion evidence in this decision, including agency evaluator 12 Dr. Kester’s mental residual functional capacity assessment that Plaintiff would be 13 moderately limited in his ability to maintain attention and concentration for 14 extended periods; interact appropriately with the general public; and get along with 15 coworkers or peers without distracting them or exhibiting behavioral extremes. Tr. 16 402-403. Moreover, Plaintiff’s credibility was not properly considered, including 17 his testimony the primary reasons he cannot “hold up” a 40 hour work week are 18 pain and depression. Tr. 86-91. “The ALJ is responsible for determining 19 requirements in our mental disorder listing.” 65 Fed.Reg. 50746–01, 50765 20 (August 21, 2000). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 24 1 credibility, resolving conflicts in medical testimony, and for resolving 2 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Here, the 3 ALJ did not resolve conflicts in the medical opinion evidence, nor did he properly 4 determine Plaintiff’s credibility. On remand the Commissioner should reevaluate 5 the step two finding after properly considering the opinion evidence and credibility 6 finding. 7 D. Administrative Record 8 Plaintiff argues that remand is necessary in this case because “the 9 administrative transcript is incomplete due to an inaudible hearing recording; 10 specifically, the medical expert Dr. Beezy’s testimony is inaudible.” ECF No. 19 at 11 35-36. Plaintiff contends that this testimony was material evidence without which 12 the court cannot conduct an adequate review of the record. Id. (citing Varney v. 13 Secretary of Health & Human Servs., 846 F.2d 581, 583 (9th Cir.) relief modified, 14 859 F.2d 1396 (9th Cir. 1988)); see also Bray, 554 F.3d at 1226 (“meaningful 15 review of an administrative decision requires access to the facts and reasons 16 supporting that decision”). Plaintiff specifically identifies several portions of Dr. 17 Beezy’s testimony as “material,” including: his opinion on whether pain is affected 18 by depression (Tr. 73), whether he concurs with treating physician Dr. Marx (Tr. 19 73-74), and whether he believes a treating physician is in a better position to form 20 an opinion as to a claimant’s pain (Tr. 74-75). ECF No. 19 at 36. Defendant argues ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 25 1 that the inaudible portions are not material, and that the transcript is adequate for 2 judicial review. ECF No. 25 at 18-19. 3 Plaintiff insists that because “the ALJ agreed with Dr. Beezy’s testimony the 4 testimony is critical to a correct analysis of the case.” ECF No. 26 at 5. However, a 5 review of the record confirms that the Appeals Council did not mention Dr. 6 Beezy’s testimony, and the ALJ only briefly recounted Dr. Beezy’s testimony 3 7 without granting any weight to his opinion. Tr. 43. Thus, it would seem to 8 mischaracterize the ALJ’s findings to say that he “agreed” with, or relied in any 9 way, on Dr. Beezy’s testimony. The court is inclined to agree with Defendant that 10 due to the lack of reliance on Dr. Beezy’s opinion, the inaudible portions are not 11 material or essential to conduct an adequate judicial review. However, on remand 12 the Commissioner should reevaluate Dr. Beezy’s testimony along with the other 13 medical opinion evidence, and if necessary take additional expert testimony to 14 clarify the inaudible portions of the transcript. 15 E. Step Five and RFC 16 3 17 Plaintiff argues this is further evidence that the failure to clarify the inaudible 18 portions of the transcript was harmful error. ECF No. 26 at 4. However, the ALJ’s 19 decision precisely recounts Dr. Beezy’s testimony (Tr. 69-75), and the court 20 declines to assign error on this basis. In his decision, the ALJ mistakenly refers to Dr. Beezy as Dr. Mabee. Tr. 43. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 26 1 Plaintiff argues that the Appeals Council failed to consider the combined 2 impact of Plaintiff’s impairments in the RFC analysis, and conducted an improper 3 analysis at step five of the sequential evaluation. ECF No. 19 at 22-25, 32-35. 4 Because of errors in considering the medical opinion evidence and in the 5 credibility determination, the RFC is not properly supported and the step five 6 finding is in question. On remand, the Commissioner should make a new step five 7 finding as is appropriate. 8 9 CONCLUSION The Appeals Council decision was not supported by substantial evidence 10 and free of legal error. Remand is appropriate when, like here, a decision does not 11 adequately explain how a conclusion was reached, “[a]nd that is so even if [the 12 Commissioner] can offer proper post hoc explanations for such unexplained 13 conclusions,” for “the Commissioner's decision must stand or fall with the reasons 14 set forth in the [] decision.” Barbato v. Comm'r of Soc. Sec., 923 F.Supp. 1273, 15 1276 n. 2 (C.D.Cal.1996) (citations omitted). On remand, the Commissioner must 16 reconsider the credibility analysis. Additionally, the Commissioner must properly 17 weigh all of the relevant medical opinion evidence according to the requisite 18 factors; and, if necessary, reconsider the entirety of the sequential process. 19 ACCORDINGLY, IT IS HEREBY ORDERED: 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 27 1 1. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is GRANTED. 2 The matter is remanded to the Commissioner for additional proceedings 3 pursuant to sentence four 42 U.S.C. § 405(g). 4 2. Defendant’s Motion for Summary Judgment, ECF No. 25, is DENIED. 5 The District Court Executive is hereby directed to enter this Order and 6 provide copies to counsel. Judgment shall be entered for Plaintiff and the file shall 7 be CLOSED. 8 9 10 DATED this 13th day of March, 2015. s /Fred Van Sickle Fred Van Sickle Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 28

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