(SS) Bolger v. Commissioner of Social Security

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JEFFREY BOLGER, No. 2:18-cv-2247 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 [15] 16 Defendant. [17] 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge improperly found plaintiff did not 21 meet a listing impairment, erred in making a residual functional capacity determination, and 22 improperly rejected medical opinion evidence. 23 //// 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210 (d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). [27] 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action [28] 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 further proceedings consistent with this order. 4 PROCEDURAL BACKGROUND 5 In June of 2014, plaintiff filed applications for Disability Insurance Benefits (“DIB”) 6 under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income 7 (“SSI”) under Title XVI of the Act alleging disability beginning on June 22, 2012. (Transcript 8 (“Tr.”) at 15, 265-73.) Plaintiff’s alleged impairments include major depressive disorder, bipolar 9 disorder and a broken left tibia. (Id. at 113.) Plaintiff’s applications were denied initially, (id. at 10 180-88), and upon reconsideration. (Id. at 193-98.) 11 Plaintiff requested an administrative hearing and a hearing was held before an 12 Administrative Law Judge (“ALJ”) on October 11, 2016. (Id. at 35-69.) Plaintiff was 13 represented by an attorney and testified at the administrative hearing. (Id. at 35-37.) In a 14 decision issued on July 6, 2017, the ALJ found that plaintiff was not disabled. (Id. at 26.) The 15 ALJ entered the following findings: 16 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013. [17] 2. The claimant has not engaged in substantial gainful activity 18 since June 22, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.). [19] 3. The claimant has the following severe impairments: major 20 depressive disorder; bipolar disorder; nonunion of the left tibial fracture resulting in intramedullary rod placement (20 CFR 21 404.1520(c) and 416.920(c)). 22 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 23 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 24 and 416.926). 25 5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work 26 as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to standing and walking 4 hours total, sitting 6 hours total; no 27 ladders; only occasional kneeling, crouching, crawling, and climbing stairs; frequent balance and stooping. He must avoid hazards such 28 as unprotected heights and moving machinery; no more than 1 occasional changes to the routine work setting, no more than occasional interactions with members of the public, coworkers and 2 supervisors; limited to routine, repetitive work in a stable environment. [3] 6. The claimant is unable to perform any past relevant work (20 4 CFR 404.1565 and 416.965). 5 7. The claimant was born [in] 1976 and was 35 years old, which is defined as a younger individual age 18-49, on the alleged disability 6 onset date (20 CFR 404.1563 and 416.963). 7 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964). [8] 9. Transferability of job skills is not material to the determination of 9 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” 10 whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2). [11] 10. Considering the claimant’s age, education, work experience, and 12 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 13 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)). 14 11. The claimant has not been under a disability, as defined in the Social Security Act, from June 22, 2012, through the date of this 15 decision (20 CFR 404.1520(g) and 416.920(g)). 16 (Id. at 17-26.) 17 On June 26, 2018, the Appeals Council denied plaintiff’s request for review of the ALJ’s 18 July 6, 2017 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 19 405(g) by filing the complaint in this action on August 17, 2018. (ECF. No. 1.) 20 LEGAL STANDARD 21 “The district court reviews the Commissioner’s final decision for substantial evidence, 22 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 23 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 24 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 26 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 27 “[A] reviewing court must consider the entire record as a whole and may not affirm 28 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., [1] 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 2 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 3 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 4 1072, 1075 (9th Cir. 2002). 5 A five-step evaluation process is used to determine whether a claimant is disabled. 20 6 C.F.R. § 404.1520 ; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 7 process has been summarized as follows: 8 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. [9] Step two: Does the claimant have a “severe” impairment? If so, 10 proceed to step three. If not, then a finding of not disabled is appropriate. [11] Step three: Does the claimant’s impairment or combination of 12 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 13 disabled. If not, proceed to step four. 14 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. [15] Step five: Does the claimant have the residual functional capacity to 16 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. [17] 18 Lester v. Chater, 81 F.3d 821 , 828 n.5 (9th Cir. 1995). 19 The claimant bears the burden of proof in the first four steps of the sequential evaluation 20 process. Bowen v. Yuckert, 482 U.S. 137 , 146 n. 5 (1987). The Commissioner bears the burden 21 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094 , 22 1098 (9th Cir. 1999). 23 APPLICATION 24 Plaintiff’s pending motion asserts the following four principal claims: (1) the ALJ’s 25 treatment of the medical opinion evidence constituted error; (2) the ALJ erred by finding plaintiff 26 did not meet or equal Listing 1.06; (3) the ALJ failed to consider whether plaintiff needed a hand27 //// 28 //// 1 held assistive device; and (4) the ALJ’s residual functional capacity determination was 2 unexplained.3 (Pl.’s MSJ (ECF No. 14) at 6-12.4) 3 I. Medical Opinion Evidence 4 The weight to be given to medical opinions in Social Security disability cases depends in 5 part on whether the opinions are proffered by treating, examining, or nonexamining health 6 professionals. Lester, 81 F.3d at 830 ; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a 7 general rule, more weight should be given to the opinion of a treating source than to the opinion 8 of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830 . This is so because a 9 treating doctor is employed to cure and has a greater opportunity to know and observe the patient 10 as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 11 F.2d 1059 , 1063 (9th Cir. 1990). 12 The uncontradicted opinion of a treating or examining physician may be rejected only for 13 clear and convincing reasons, while the opinion of a treating or examining physician that is 14 controverted by another doctor may be rejected only for specific and legitimate reasons supported 15 by substantial evidence in the record. Lester, 81 F.3d at 830-31 . “The opinion of a nonexamining 16 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 17 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 18 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 19 accept the opinion of any physician, including a treating physician, if that opinion is brief, 20 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661 , 21 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 22 2009)). 23 Here, plaintiff challenges the ALJ’s treatment of the opinion offered by treating physician 24 Dr. Paul Gregory. (Pl.’s MSJ (ECF No. 14) at 9-10.) The ALJ discussed Dr. Gregory’s opinion 25 as follows: [26] 3 The court has reordered plaintiff’s arguments for purposes of clarity and efficiency. [27] 4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF [28] 1 Paul Gregory, M.D., the claimant’s orthopedist5, opined that the claimant can occasionally lift and/or carry less than 10 pounds; 2 frequently lift and/or carry less than 10 pounds; stand and/or walk for less than 2 hours in an 8-hour workday with crutches; sit for 6 hours 3 in an 8-hour workday; needs to alternate standing and sitting; never climb, balance, stoop, kneel, crouch, or crawl; and has restrictions 4 with heights, moving machinery, temperature extremes, chemicals, and dust. I accord little weight to this opinion because it is not 5 consistent with the record as a whole, e.g., generally unremarkable physical examinations (excellent range of motion, no neurological 6 deficits) as discussed above. Moreover, the opinion expressed is quite conclusory, providing very little explanation of the evidence 7 relied on in forming that opinion. 8 The ALJ’s analysis is erroneous, 9 [t]o say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions 10 mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective 11 factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain 12 why they, rather than the doctors’, are correct. 13 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); see also Tackett v. Apfel, 180 F.3d 14 1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning and the evidentiary 15 support for his interpretation of the medical evidence.”); McAllister v. Sullivan, 888 F.2d 599 , 16 602 (9th Cir. 1989) (“Broad and vague” reasons for rejecting the treating physician’s opinion do 17 not suffice). 18 Moreover, Dr. Gregory’s opinion is no less conclusory than the ALJ’s evaluation of Dr. 19 Gregory’s opinion. In this regard, Dr. Gregory’s Medical Source Statement repeatedly cited to 20 plaintiff’s chronic infection and nonunion of the left tibia in support of the limitations assessed. 21 (Tr. at 1021-25.) That is consistent with Dr. Gregory’s treatment notes. 22 While it is true that Dr. Gregory found plaintiff had “excellent range of motion,”—as 23 vaguely referenced by the ALJ’s decision—that is at best an incomplete picture of Dr. Gregory’s 24 findings and opinion. In this regard, following an examination Dr. Gregory spoke to plaintiff [25] 26 5 The opinions of medical specialists regarding the specialist’s area of expertise “are given more weight than the opinions of a nonspecialist.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 27 1996); see also Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Each rheumatologist’s opinion is given greater weight than those of the other physicians because it is an opinion of a [28] 1 about “the complex nature of a chronic infected nonunion with retained hardware.” (Id. at 895.) 2 Dr. Gregory explained that it would be “difficult to solve both of [plaintiff’s] problems 3 simultaneously.” (Id.) 4 Instead, Dr. Gregory recommended first addressing the chronic infection, through “6 5 weeks of IV intravenous antibiotics” followed by a “surgical procedure for intramedullary nail 6 removal and intramedullary local debridement of the infected site[.]” (Id.) Dr. Gregory stressed 7 against the use of “any replacement hardware until [plaintiff’s] infection” was “eradicated.” (Id.) 8 Plaintiff was also advised to “obtain a fracture walking Aircast” in anticipation of “gradual 9 increase weightbearing postoperatively.” (Id.) 10 Additionally, when an ALJ elects to afford the opinion of a treating physician less than 11 controlling weight, the opinion must be “weighted according to factors such as the length of the 12 treatment relationship and the frequency of examination, the nature and extent of the treatment 13 relationship, supportability, consistency with the record, and specialization of the physician.” 14 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citing 20 C.F.R. § 404.1527 (c)(2)-(6)). 15 The ALJ’s failure to discuss these factors “alone constitutes reversible legal error.” (Id. at 676.) 16 Accordingly, for the reasons stated above, the court finds that the ALJ failed to offer a 17 specific and legitimate, let alone clear and convincing, reason for rejecting Dr. Gregory’s opinion. 18 Plaintiff is, therefore, entitled to summary judgment on the claim that the ALJ’s treatment of the 19 medical opinion evidence constituted error. 20 II. Listing Error 21 Plaintiff also argues that the ALJ erred by failing to find that plaintiff’s impairments met 22 or equaled Listing 1.06. (Pl.’s MSJ (ECF No. 14) at 6-8.) At step three of the sequential 23 evaluation, the ALJ must determine whether a claimant’s impairment or impairments meet or 24 equal one of the specific impairments set forth in the Listings. 20 C.F.R. §§ 404.1520 (a)(4)(iii), 25 416.920(a)(4)(iii). The physical and mental conditions contained in the Listings are considered so 26 severe that “they are irrebuttably presumed disabling, without any specific finding as to the 27 claimant’s ability to perform his past relevant work or any other jobs.” Lester v. Chater, 81 F.3d 28 821, 828 (9th Cir. 1995). The Listings were “designed to operate as a presumption of disability 1 that makes further inquiry unnecessary.” Sullivan v. Zebley, 493 U.S. 521, 532 (1990); see also 2 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). If a claimant shows that her impairments meet 3 or equal a Listing, she will be found presumptively disabled. 20 C.F.R. §§ 404.1525-404.1526 , 4 416.925-416.926. 5 Listing 1.06 is applicable where there is a “[f]racture of the tibia . . . . [w]ith . . . [i]nability 6 to ambulate effectively, as defined in 1.00B2b, and return to effective ambulation did not occur or 7 is not expected to occur within 12 months of onset.” 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.06. 8 “Inability to ambulate effectively means an extreme limitation of the ability to walk; i.e., an 9 impairment(s) that interferes very seriously with the individual’s ability to independently initiate, 10 sustain, or complete activities.” Id. at § 1.00B2b(1). 11 Here, the ALJ addressed Listing 1.06 as follows: 12 After consideration of the evidence, detailed below, I conclude that the severity of the claimant’s physical impairments, either singly or 13 in combination, does not meet the specific criteria of section[] . . . 1.06 (fracture of a lower limb). No treating or examining physician 14 has mentioned findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that 15 are the same or equivalent to those of any listed impairment of the Listing of Impairments. [16] 17 (Tr. at 18.) That is the entirety of the ALJ’s analysis. 18 “An ALJ must evaluate the relevant evidence before concluding that a claimant’s 19 impairments do not meet or equal a listed impairment.” Lewis, 236 F.3d at 512 (citing Marcia v. 20 Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (“We hold that, in determining whether a claimant 21 equals a listing under step three of the Secretary’s disability evaluation process, the ALJ must 22 explain adequately his evaluation of alternative tests and the combined effects of the 23 impairments.”)). 24 Moreover, an “ALJ must provide a discussion of the evidence and an explanation of 25 reasoning for his conclusion sufficient to enable meaningful judicial review.” Diaz v. 26 Commissioner of Social Sec., 577 F.3d 500, 504 (3rd Cir. 2009) (quotation omitted); see also 27 Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (“The ALJ’s decision regarding the 28 applicability of Listing 1.04A is devoid of reasoning. . . . This insufficient legal analysis makes it 1 impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ’s 2 findings.”). 3 Here, the ALJ’s vague and conclusory reasoning is inadequate. Accordingly, the court 4 finds that plaintiff is also entitled to summary judgment with respect to the claim that the ALJ 5 erred at step three of the sequential evaluation by failing to consider Listing 1.06. 6 III. Hand-Held Assistive Device 7 Plaintiff next argues that the ALJ’s decision “fails to say anything about [plaintiff’s] need 8 for an assistive device,” that such a limitation should have been included in the residual 9 functional capacity (“RFC”) determination, and in the hypothetical question to the Vocational 10 Expert (“VE”). (Pl.’s MSJ (ECF No. 14) at 8-9.) 11 At step five of the sequential evaluation, “the Commissioner has the burden ‘to identify 12 specific jobs existing in substantial numbers in the national economy that a claimant can perform 13 despite his identified limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting 14 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)) (alterations omitted). The ALJ can meet 15 her burden by either taking the testimony of a Vocational Expert (“VE”) or by referring to the 16 grids. See Lounsburry v. Barnhart, 468 F.3d 1111, 1114-15 (9th Cir. 2006). Here, the ALJ relied 17 on the testimony of a VE. (Tr. at 25.) 18 While an ALJ may pose a range of hypothetical questions to a VE based on alternate 19 interpretations of the evidence, the hypothetical question that ultimately serves as the basis for the 20 ALJ’s determination, i.e., the hypothetical question that is predicated on the ALJ’s final residual 21 functional capacity assessment, must account for all of the limitations and restrictions of the 22 particular claimant. Bray, 554 F.3d at 1228 . “If an ALJ’s hypothetical does not reflect all of the 23 claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding 24 that the claimant can perform jobs in the national economy.” Id. (citation and quotation marks 25 omitted); see also Taylor, 659 F.3d at 1235 (“Because neither the hypothetical nor the answer 26 properly set forth all of Taylor’s impairments, the vocational expert’s testimony cannot constitute 27 substantial evidence to support the ALJ’s findings.”). 28 //// 1 Plaintiff’s treating physician, Dr. Gregory, opined that plaintiff required a hand-held 2 assistive device. (Tr. at 1024.) Presumably because the ALJ rejected Dr. Gregory’s opinion, the 3 ALJ’s hypothetical question to the VE did not account for the need for a hand-held assistive 4 device. (Tr. at 60-67.) Accordingly, plaintiff is also entitled to summary judgment on the claim 5 that the ALJ committed an error at step five of the sequential evaluation. 6 CONCLUSION 7 With error established, the court has the discretion to remand or reverse and award 8 benefits.6 McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 9 under the “credit-as-true” rule for an award of benefits where: 10 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 11 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 12 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. [13] 14 Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met, 15 the court retains “flexibility to remand for further proceedings when the record as a whole creates 16 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 17 Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 18 (“Unless the district court concludes that further administrative proceedings would serve no 19 useful purpose, it may not remand with a direction to provide benefits.”); Treichler v. 20 Commissioner of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ 21 makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand 22 the case to the agency.”). 23 //// 24 6 Having identified errors requiring remand, upon review of the record, and in light of plaintiff’s 25 argument that simply “the decision should be reversed,” the court finds it unnecessary to reach plaintiff’s remaining claim. (Pl.’s MSJ (ECF No. 14) at 12). See Janovich v. Colvin, No. 2:1326 cv-0096 DAD, 2014 WL 4370673 , at *7 (E.D. Cal. Sept. 2, 2014) (“In light of the analysis and conclusions set forth above, the court need not address plaintiff’s remaining claims of error.”); 27 Manning v. Colvin, No. CV 13-4853 DFM, 2014 WL 2002213 , at *2 (C.D. Cal. May 15, 2014) (“Because the Court finds that the decision of the ALJ must be reversed on the basis of the [28] 1 Here, the court cannot find that further proceedings would serve no useful purpose. Thus, 2 | this matter must be remanded for further proceedings. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Plaintiff's motion for summary judgment (ECF No. 14) is granted; 5 2. Defendant’s cross-motion for summary judgment (ECF No. 19) is denied; 6 3. The Commissioner’s decision is reversed; and 7 4. This matter is remanded for further proceedings consistent with this order. 8 || Dated: March 24, 2020 [10] ll -BORAH BARNES UNITED STATES MAGISTRATE JUDGE [23] DLB:6 24 || DB\orders\orders.soc sec\bolger2247.ord